UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

In this regular feature, we take a look at how stories concerning the Supreme Court have been reported in the media. 

The Supreme Court has frequently been in the press spotlight over the past fortnight.   Whilst the grant of permission in the Joseph v Spiller case (the defamation action concerning the Gillettes pop group) was generally welcomed as an opportunity to widen the fair comment defence to libel claims, there have been strong criticisms levelled of the decision in Ahmed v HM Treasury (No. 2) not to suspend the unfreezing of the assets of terror suspects, and also of the long running saga of the appointment of a twelfth justice. 

Ahmed v HM Treasury

In the first Ahmed decision, commented on here by Alison Macdonald of Matrix, the Supreme Court held that that orders imposed against terrorist suspects by Gordon Brown’s government without scutiny by Parliament, which froze the suspects’ assets and left them (in Lord Hope’s words, echoing Lord Justice Sedley in the Court of Appeal) as “effectively prisoners of the state”, were illegal.  In Ahmed No. 2 [2010] UKSC 5, the Treasury asked the Supreme Court to suspend the effect of its order so that Parliament would have time to pass corrective legislation before the suspects’ assets were unfrozen; however, the Court (Lords Phillips, Rodger, Walker, Brown and Mance; Lady Hale) declined to do so (Lord Hope dissenting).  The ratio for the judgment was that the orders in question were “ultra vires and of no effect in law”, such that the Court’s order would not alter the position vis-a-vis third parties – so suspension would be a procedure “designed to obfuscate the effect of its judgment”.

The Daily Telegraph responded by accusing the Supreme Court of “lending a helping hand to terrorism“.  In an article entitled “The Supreme Court has sunk very low indeed”, Alasdair Palmer accuses the Justices (Lord Hope excepted) of placing their own self-importance above public safety, which is “ludicrous” and “appalling”:  “It is impossible to understand whey their Lordships think that such a consideration should take precedence over diminishing a clear and present danger to national security.  They know what terrorism involves: scores or even hundreds of people injured or killed by bombs meant to murder as many innocents as possible […] there would be no difficulty in the Supreme Court [delaying implementation of its decision for three months, as the the ECJ did in the Kadi case].”

Lord Hope’s powerful dissent makes it clear that Mr Palmer is not alone in thinking the Court got this one wrong. 

Appointment Process for the Twelfth Justice

We reported Frances Gibb’s fascinating article on the machinations behind the appointment of the twelfth justice last week.  The thrust of her piece is that Jonathan Sumption QC, having been informed by the appointments panel that the job was his, was then unceremoniously cold shouldered following an outcry led by Court of Appeal judges, who felt it was unfair that they had been leapfrogged.  One source is reported as saying, “there was an unholy row […] they felt they had been tricked out of their rights” – notwithstanding Parliament’s desire to open up the judiciary by way of direct appointments.

If this account is true, then it is the latest example of the type of unwelcome squabbling we saw back in 2003, when Tony Blair took the sudden decision to scrap the Lord Chancellor’s office.  The Judicial Appointments process was designed to ensure an open, transparent and fair judiciary.  The current process, which looks like dragging on until Easter, seriously undermines its credibility: a “little more than a sham”, in Frances Gibb’s conclusion. 

Writing in the Law Society’s Gazette, Joshua Rozenberg agreed, calling for a training scheme for would-be judges to be implemented – a “Judicial Academy”, which would be tasked with ensuring that candidates with no prior judicial experience (in particular, minority candidates) receive the type of training they need to succeed, such that “no candidate who merits judicial appointment is inappropriately excluded“.  An interesting idea, but will the cash strapped Ministry of Justice be willing or able to fund it?

Joseph v Spiller: Potential Reform of Libel Laws

It was not all bad news for the Court, however.  We reported here that permission had been granted to the libel action between the Gillettes, a Motown cover band, and its booking agents, 1311 Events.  The parties had fallen out over a dispute booking at an Italian restaurant in Leeds, and 1311 Events subsequently published allegations about the band’s lack of professionalism on its website.  The question for the Supreme Court will be whether 1311 Events should be entitled to run a defence based on fair comment in the public interest . 

This is the first libel case to reach the Supreme Court in four years, and the first time the fair comment defence (which is widely considered to have become overly restrictive) has been considered at the highest level since 1992.  Coming off the back of the decisions to overturn the Trafigura and John Terry ‘super-injunctions’, and the lifting of the anonymity orders in Ahmed, it seems these are relatively happy days for the often strained relationship between the media and the judiciary.  Is it too good to last, we wonder?