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Employment law and tribunals: a critical analysis Part 4

Employment law and tribunals: a critical analysis: Part 4

  • Information technology

There is a movement, fortunately not currently particularly successful, towards the replacement of lawyers with information technology. A group of academics appears to be furthering their careers from prophesying the end of lawyers and the triumph of computers. This movement largely ignores the reality of everyday legal practice, which is essentially about relationships between human beings. Perhaps some areas of legal work in the commercial or conveyancing field can be transferred from people to machines, saving workers from lives of drudgery. But any lawyer who has practised in the fields of, for example, crime, family or employment, will know that their work is all about human beings and not about machinery. A very clear, and not unusual example, is that of a worker who has been made ill by workplace conditions including the overuse of computers and emails.  Given the professional duty to act in the interests of the client, it is clear that the last thing that such a client needs is to be referred to a machine for advice. Machines, at least at present, cannot deal with emotional communication and are unlikely ever to be able to offer a tissue for drying tears. Those who advocate the end of lawyers and their replacement with machines appear not ever to have advised clients who have lost their jobs in highly stressful circumstances and who need to tell their story to a professional adviser. The day may come when computers can offer counselling services. It has not yet arrived.

Another aspect of the movement towards the computerisation of legal services is the apparent failure to recognise that hardware and software can break down. The clearest current example of this is the repeated failure of information technology related to communications between prisons and the criminal courts. Often, the reality is that the systems simply don’t work. Any criminal practitioner is aware of the intense frustration and waste of court time caused by this inefficiency. To react to this by arguing that the technology will soon be perfected is to avoid the reality of the present imperfections of computer hardware and software, the vagaries of electricity supply and the recognised, and excusable, inadequacies of information technology operators.  

  • Disability discrimination

There are an estimated 6.5 million disabled people in the United Kingdom. There is evidence, anecdotal and statistical, of discrimination against the disabled. If ever there was a need for a clear set of rules, it is in the context of  protecting the rights of the disabled.

The current law dealing with disability discrimination is set out in the Equality Act 2010. This Act replaced the Disability Discrimination Act 1995, but many of the cases decided under the 1995 Act continue to apply. The legislative provisions, it is fair to say, are so opaque and convoluted that non-lawyers and lawyers alike face extreme difficulty in grasping their meaning. It seems, without confidence of accuracy, that there are five, or perhaps six, types of disability discrimination. Each of these has a separate and complex definition. Identifying the type of discrimination which applies in a specific case requires a major effort of library research and analysis.  It is simply not realistic for most disabled persons who are not lawyers to bring their own proceedings. Lord Justice Sedley commented, in a disability case, that the law in its present form was not at all easy to follow. This was a particular misfortune in an Act which it ought to be possible for employees and managers to read, understand and implement without legal advice or litigation.

Harvey on Industrial Relations and Employment Law, the leading employment law book, has more than 50 closely printed and argued pages of text dealing with disability discrimination in employment. The editors of Harvey describe the legislation as unusually complex and posing novel questions of interpretation. They state that a proper understanding of the law requires a close study of its structure and technical detail. A commonsense approach is simply not sufficient and, in many cases, is likely to be positively dangerous if taken as a guide to proper behaviour.

Disabled employees who are non-lawyers, for whose protection the law of disability discrimination exists, are effectively prevented from understanding the rules. They are obliged to seek legal advice, often at ruinous cost, in order to understand their rights.

Employment law and procedure: a critical analysis Part 3

Employment law and procedure: a critical analysis Part 3
Workplace stress
As well as legal duties under statutes and regulations, employers have obligations under duties imposed by the common law. These duties are essentially judge-made and consist of a mass of decided cases. With reference to work-related stress, one of the positive points about the English common law is that it is prepared to compensa te people who have been driven mad, to use a colloquial term, by workplace conditions. English judges have created a rule that mental illness caused by employers can be treated in a similar way to physical injury. Cases of, for example, bullying, harassment and exploitation at work, where a recognised psychiatric illness has resulted, can lead to victims obtaining compensation. The leading case on work-related stress is Hatton v Sutherland and Others (2002). Lady Hale’s judgment in this case extends to almost 30 pages of the report. There are no Latin words or phrases in the judgment. Lady Hale deals with a case with complex facts in a difficult area of law. The judgment examines and analyses psychiatric illness in general, defines and describes workplace stress and goes on to explain the relevant law. Anyone with an interest in work-related stress should be advised to read this judgment in its entirety. It can safely be recommended to non-lawyers: a rarity.
Costs warnings
Before lawyers turned the employment tribunal into a quasi-court, costs were not an issue in that tribunal. The general, almost universal, rule was that the losing party in an employment tribunal matter, unlike a claim in the civil courts, was not at risk of having to pay the other side’s costs. This principle has been gradually eroded by legislation and lawyers’ practice. The current position is that large firms of solicitors, normally acting on behalf of employers, have a standard practice of issuing costs warning letters to employee claimants in the tribunal. The standard form of these letters is a statement that the claim has no merit, is unreasonable and is bound to lose. The inevitable result of such a defeat, states the costs warning letter, is that an application will be made for payment of the winner’s costs. This can be a frightening threat. Given that large firms of solicitors may charge £300 an hour for their time, costs threats of £20,000 are not unusual. For claimants who are unemployed, or perhaps disabled and have very little money, the costs warning may well succeed in dissuading them from carrying on. This, of course, defeats the whole object of employment tribunal proceedings, which at one time were an informal and low risk means of workers enforcing their rights. This ethos is rapidly disappearing. The money imperative is increasingly used by employers to prevent employment tribunals deciding claims on their merits. Justice in the employment tribunal is following the civil courts in being subordinate to the rich and powerful.
Non-disclosure agreements
When employment tribunal claims are settled by negotiation, normally by a reasonable sum of money changing hands from an employer to a worker in return for a claim to be withdrawn, the settlement agreement will usually include a standard non-disclosure clause. This, if agreed to by the employee, will prevent them discussing, or perhaps even mentioning, the case outside a small circle of family and legal advisers. If the employee is reluctant to take a vow of silence, the settlement agreement may well fall through. Some employees agree to the non-disclosure clause and then reveal details of the claim, perhaps to the press. From a legal point of view, this is generally accepted as being a breach of contract. The employer may then seek to recover, through the civil courts, the money paid in settlement. This may be a risk that a worker who is determined to expose the actions of an employer may be prepared to take.

Employment law and procedure: a critical analysis Part 2

Employment law and procedure: a critical analysis

Part 2

  • Complexity

To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at the time, I must confess, as a Slough of Despond through which the court would never drag its feet but I have, by leaping from tussock to tussock as best I might, pale and exhausted, reached the other side. (Lord Justice Harman in Davy v Leeds Corporation (1964)).

In the early nineteenth century Jeremy Bentham made the following points:

  • Laws are expressions of the will of the human lawgiver. This is disguised by the fact that many laws are not expressed in imperative language.
  • The use by lawyers of language so complex and different from normal use serves three purposes:
    • It forms a bond among legal professionals, setting them apart from society and reinforcing their complacency and resistance to reform;
    • It increases their fees;
    • It creates an atmosphere of awe.   

English law has a highly-developed and complex set of rules aimed at protecting workers against unfair dismissal. There is a clear general right not to be unfairly dismissed. If a worker is dismissed and she or he reasonably believes that they have been unfairly treated, then in theory they have the right, in some circumstances, to complain to an employment tribunal. If they belong to a trade union, then the union may pick up the costs of legal advice and representation and bear the risk of paying the other side’s costs.

The rules and procedures surrounding unfair dismissal have become so complex (essentially because of the involvement of lawyers and the adversarial nature of British justice, resulting in a mass of decided cases which interpret complex statutes) that it is very difficult for non-lawyers to exercise those rights themselves. For the non-unionised worker without money, it is almost impossible to exercise the right not to be unfairly dismissed. The procedural complexity of tribunal proceedings is daunting, and lawyers have made it worse. It should also be noted that the United States has no concept of unfair dismissal. The British legal profession has a duty to strongly resist possible deregulation in this direction.

Comments made by Lord Justice Pill in the case of Suffolk Mental Health Partnership NHS Trust v Hunt and Others (2009), in a case involving the level of detail which should be included in a written grievance related to an equal pay claim, were as follows:

  •  The encouragement of negotiation, conciliation and settlement might be frustrated if grievance procedures led to satellite litigation on technical issues about whether a statement amounted to a grievance.

In the same case, Lord Justice Wall commented:

  • Employment-related issues which were designed to be simple and understood by ordinary working people had become overlaid with degrees of sophisticated argument which at times rendered them unrecognisable.
  • Employment tribunals were set up as fora in which ordinary working men and women could bring claims, which they had been unable to resolve in the workplace, with a view to swift and straightforward resolution. To this end, the rules relating to representation were very relaxed, case management powers were wide and costs were only to be awarded in extreme circumstances.
  • His experience was that these essentially worthy aims were in grave danger of being frustrated by over-elaborate and sophisticated arguments which were unintelligible to the layman.
  • His plea was that there should be a return to the clear intentions of the employment tribunal system; that lawyers should strive for clarity and simplicity and that unions and employers should strive to make the system work in the interests of ordinary working people.

Conspiracy law, class and society; the choice of conspiracy: a historical perspective

The Choice of Conspiracy

No prosecution of a political character should be undertaken without the prior consent of the Cabinet.

Cabinet Instruction, 6 August 1924

It is of paramount importance that I have and must jealously maintain a position of complete independence from political influences while accepting my answerability to Parliament through the Attorney-General. This is…still a factor of considerable importance in maintaining public confidence in the fair and impartial administration of the criminal law. In practice this works because all Attorneys-General, certainly in my experience, respect the need for the Director (of Public Prosecutions) to be free from political influences and because, although by statute law his consent is necessary for certain types of prosecution, he does not in practice seek to exercise any direct control over the decisions and advice of myself and my officers.

Sir Thomas Hetherington, Guardian, 2 June 1980

These two statements illustrate the opposite ends of the spectrum of publicly-expressed wisdom as to the nature of the English prosecution process. The first, an instruction given by the Prime Minister in 1924 after the Campbell fiasco, may be seen as having more to do with practical reality than the second, issued by the present Director of Public Prosecutions in reply to criticism of the role and functions of his office.

The preceding analyses of conspiracy law in the context of Ireland, Chartism, dissidence and the trade union movement have shown the significant role of the judges in creating and developing that law in the light of social and economic conditions. But this responsibility has not been exclusive: Parliament has also played its part in delineating the offence. It is also most important to recognise that in every conspiracy trial, some individual or group of individuals must have made the choice of a conspiracy charge. This selection process results in the presentation to the courts of the opportunity to make law. It may be seen as one method of manipulating the penal system, and as such can be regarded as having equal significance with the judicial role, particularly in the mass of conspiracy cases decided since 1962. The process whereby conspiracy is chosen, involving as it does issues of prosecutorial discretion and professional confidentiality, is extremely difficult to analyse, and this Chapter can only offer glimpses through the fog of secrecy and obscurity which surrounds English prosecutions.

England has no Ministry of Justice or central prosecuting agency. Thus, responsibility for the choice of conspiracy cannot be attributed to any one institution. In fact, no less than thirteen different stages of the prosecution process may be identified, at any of which the crucial decision which eventually leads to new law may be made. First, the private individual may decide to bring conspiracy charges. Second, police constables exercising their discretion in the street may perform a ‘selection’ function. Third, in most police forces a senior officer makes the initial decision to prosecute. Fourth, the matter may be referred to a local authority prosecutions department or to solicitors acting privately. The next stage may be a delegation to counsel. This can be followed by reference to the Indictments Office of the local Crown Court, after which the plea-bargaining process may operate. During the hearing itself, the judge may exercise his power to throw out the charge, or the jury may refuse to convict. In the event of a conviction, appellate procedures come into play: the decisions of the Court of Appeal and the House of Lords are the most visible sources of conspiracy law, and as such are the central concern of most of this book, but they form only a part of the selection process. Parts of this process may be bypassed if the case is referred to the Director of Public Prosecutions by the police – this may lead to involvement by the Attorney-General, the Home Secretary, the Cabinet and the Prime Minister. Despite repeated denials of ‘political’ involvement by these institutions, there is clear evidence that the executive has played a part in a number of 20th century prosecutions.

  • The Individual

The technical, and in practice mythical, rule is that any private citizen may prosecute any offence. This principle, which ranks in validity with the assertion that England has no political trials, prosecutions or prisoners, is drummed into the ears of law students year after year as a basic element of the English legal system. In reality, the problems of cost, time, technical complexity and non-cooperation by the authorities involved in presenting a criminal prosecution are almost insurmountable by a private individual. There are, of course, exceptional instances of persons with the wealth or energy to carry their own prosecutions to a successful conclusion. The main examples in conspiracy are Hain where the proceedings were partly financed by white South Africans, and the Bristol case where a highly motivated social worker eventually succeeded in obtaining a Crown Court conviction. But for general purposes, individual prosecutions form an insignificant part of the selection process.

  • The Police

Another great English legal myth is the assertion that there is no national police force, and that therefore all prosecutions are brought by local forces acting independently. The basis for this view is that the police are organised according to local authority areas. Local authorities certainly have a legal responsibility to provide buildings and equipment for their local force and, nominally, to appoint Chief Constables. This appointment is subject to veto by the Home Secretary, who meets 50% of the cost of local forces. This, together with the power to conduct ad hoc inquiries and the direct control of the Metropolitan Police (through the appointment of the Commissioner) means, in effect, central governmental control. The main instrument of this control, so far as is known, is the Home Office Circular – over 100 of which are reputedly sent to all Chief Constables. The Circulars are covered by the Official Secrets Act; Parliament cannot discuss them, nor are they available to the public. A request by the author to the Home Office for an interview on the process whereby conspiracy charges are selected was refused, because:

…we do not get involved in the prosecution process and certainly not at the level of detail which would be of use to you. The Home Office is, in short, too far removed from these day-to-day decisions to contain the kind of expertise you are seeking.

Police Functions

The basic function of the police in the selection process is to gather evidence and to initiate the prosecution. The vast majority of prosecutions are brought by the police. This does not mean that all offences are prosecuted, or that all offenders are arrested: if the criminal law was fully enforced, everyone would be a criminal. From a legal point of view, the duty of the police to prosecute has been adjudicated on: in R v Metropolitan Commissioner of Police, ex Parte Blackburn, where mandamus was sought to compel the police to enforce the law against gaming clubs, Lord Denning ruled that:

It is for the Commissioner of Metropolitan Police, or the Chief Constable, as may be, to decide is any particular whether enquiries should be pursued or whether an arrest should be made or a prosecution brought.

The nature of this discretion has been examined in detail so far as American police forces are concerned, and to a lesser extent in England. The decision whether or not to prosecute has been subject to scrutiny, but the question of choice of offence has not. The significance of the latter decision is well-illustrated by the Thorpe conspiracy case, where, for some unexplained reason conspiracy to intimidate was not charged, and the use of a conspiracy to murder charge led to an acquittal. The police themselves are understandably reluctant to discuss the factors which influence their selection of charges. The author was able to interview a senior officer from a typical mixed urban and rural police force as to his attitudes towards conspiracy charges. 

So far as the police are concerned, responsibility for the initial selection of conspiracy charges depends upon internal arrangements within each force, but would not normally lie at a level lower than that of Chief Inspector. Individual constables are advised by one textbook that conspiracy is not an arrestable offence – that it is only triable on indictment and therefore only to be used when the circumstances are in some degree serious. This was confirmed during the interview, when the senior officer stressed that in his view conspiracy was a very serious offence, not taken lightly by him or any of his officers, and unlikely to be used where there was clear evidence of a full offence having been committed unless it would be in the public interest to bring conspiracy charges. He saw the prosecution process as ‘weeding’ the initial charges, to reduce the number of conspiracy trials. At its basic level, this weeding process could operate when a constable was involved in arresting two or more people for a common offence such as burglary. In theory, all such arrests could lead to conspiracy trials: in practice, they do not. In the officer’s force, all prosecutions are sent to the local authority prosecutions department for preparation. In difficult places, or those likely to be sent to the Crown Court, counsel’s opinion would be sought. Acknowledging that conspiracy way very easy to prove, the officer stressed that this did not mean that the police took advantage of the relaxed rules of evidence. In his experience, the most frequent use of conspiracy was in the area of complex fraud offences, where it was the only appropriate charge. Some alleged conspiracies had to be referred to the Director of Public Prosecutions, and most would be. It was clear that important cases with a ‘political’ element were essentially within the realm of the Director’s office: it cannot be seriously alleged that the police have been responsible for the explosion of conspiracy law since 1962.

  • The Legal Profession

It is extremely difficult to assess the extent of lawyers’ influence in the selection of conspiracy charges, because of the principle of confidentiality which covers all aspects of the ‘advice’ process. The function of the solicitor or barrister acting privately depends largely upon practice in the local police area: some forces have their own solicitors’ departments, while others refer their prosecutions to local firms or to the legal department of the local authority. It is known, for example, that Scotland Yard has had its own Solicitors’ Branch since 1935, and we may assume that individuals within this Branch must have had some involvement at the initial stage of the selection process. Prosecution briefs involving indictable offences are sent to barristers who act in the course of their normal practice, but in general those barristers are all members of a limited number of sets of Chambers and receive the great majority of prosecution briefs. Their advice as to the feasibility of a conspiracy conviction must play an unassessable part in the process.

One aspect of the barrister’s role which, until 1977, was not acknowledged to exist at all, is that of plea-bargaining. This has been defined as ‘the practice whereby the defendant enters a plea of guilty in return for which he will be given some consideration that results in a sentence concession’. It is impossible to estimate the effect which pre-trial dealing has had upon the choice of conspiracy, but we may speculate that it is most likely to be relevant where both conspiracy and substantive offences are alleged. In this situation, a plea of guilty to the full offence may result in the conspiracy count being dropped. Another possibility is that, where a number of separate conspiracies are charged, one or more may be taken out in return for a guilty plea. This would operate to reduce the choice available to the court.

  • The Director of Public Prosecutions

The office [of DPP] is not under any attack. On the contrary, the present incumbent, Sir Tony Hetherington, was knighted in a recent honours list, although it was not stated whether this was for his services in shelving the Rhodesia sanctions case, in carrying through the ABC official secrets case to its triumphant conclusion, or in preparing so expertly the case against Jeremy Thorpe.

E.P. Thompson, New Society, 22 November 1989

The office of Director of Public Prosecutions was created in 1879 after severe criticism of the practice whereby Chief Constables referred difficult criminal cases direct to the Home Secretary. By 1908 the Director had become, effectively, the government’s solicitor. The constitutional position of the office is, like so many British institutions, difficult to pinpoint. Responsibility for appointment rests with the Home Secretary, but after appointment the Director is responsible to the Attorney-General, and acts under his general guidance. The powers and duties of the Director are laid down by statute: he is obliged to undertake certain categories of prosecution, and must also intervene in any case ‘which appears to him to be of importance or difficulty or which for any other reason requires his intervention’. He is also available, at the request of the police, to advise whether there is sufficient evidence to justify a prosecution.

So far as the conspiracy selection process is concerned, the DPP is obviously involved at the most crucial stage. Under the Criminal Law Act 1977, section 4, no prosecution for conspiracy to commit a summary offence may be commenced without his consent. The section also states that the DPP must be consulted before anyone is charged with conspiring to commit an offence which itself would require his consent. The aim of this provision is to prevent the pre-1977 practice of bringing conspiracy charges as a means of avoiding reference to the DPP, which would be obligatory if certain substantive offences were alleged. The Director also has power to intervene and take over any prosecution ‘if he thinks fit’ – this discretion is left unfettered by the 1977 statute.

According to a recent newspaper article by the present holder of the office, the fundamental role of the DPP is to undertake prosecutions of importance and difficulty, and to advise the police on cases referred by them. In deciding whether to go ahead with a prosecution, three principles are applied: first, the case is examined to ensure that there is no basic defect, for example in jurisdiction; second, the adequacy of the evidence is assessed to establish whether there is a reasonable prospect of conviction, and third, the Director decides whether a prosecution is merited by applying the ‘public interest’ test. The statement stressed that the question ‘what effect would a prosecution have on the fortunes of the government, or any political party for that matter, either nationally or locally’, could never be a proper question when deciding whether or not to prosecute. The appointment of the Director of Public Prosecutions is essentially, and rightly, independent and non-political, says the article.

In one sense, the function of the DPP in the conspiracy selection process is easier to isolate than any of the other twelve. This is because, when the Director becomes responsible for a case, his title is inserted into the citation in place of that of the Queen. Thus we can say with certainty that the DPP was involved in the trials of Shaw, Bhagwan, Knuller, Doot, Kamara and Nock – the bulk of the post-1960 conspiracy expansion. It is also known that in the cases of Pollitt – the 1925 Communist trial, Maycock – the Birmingham conspiracy to trespass, and Thorpe, the Director was involved in at least an advisory capacity. As to the specific factors governing the decision to use conspiracy charges in these cases, one may only surmise: there is no evidence of political pressure, and a request by the author for an interview with the Director as to his attitudes towards conspiracy was not acknowledged.

  • The Attorney-General

In deciding whether or not to prosecute in a particular case, there is only one consideration which is altogether excluded, and that is the repercussion of a given decision upon my personal or my party’s or the government’s political fortunes: that is a consideration which never enters into account.

Hartley Shawcross, Attorney-General 1951

This sort of total official refutation of political influences upon the decision to prosecute is, as we have seen, not limited to the Attorney-General. It is typical of the post-war attitude of judges and law officers. The Attorney-General himself is the closest institution to a Minister of Justice existing in England. He is a member of the political party in power, and is essentially the government’s barrister. Within the Cabinet, he is the Minister responsible for the institution and conduct of criminal proceedings. Yet we are told that he is completely divorced from party political considerations and from any kind of political control. Those who put forward this view must not have taken into account a whole series of cases listed by Edwards as illustrating the fact that

It is in this special area, where the offence is bound up with questions of public security and the interests of the state, in other words where the crime charged falls within that loose category described as political offences, that the position of the Attorney-General vis-à-vis the executive is to be seen in its sharpest form.

In 1881, the prosecution of Johann Most for inciting the murder of European sovereigns was expressly instituted by the Cabinet. Eight years later, the Government was advised by the Attorney-General that the prosecution of Taggart for incitement to murder the Prime Minister was unlikely to succeed: the Home Secretary instructed the Chief Constable of Liverpool not to prosecute.

Again, in 1893, the Director of Public Prosecutions was prevented by the Home Secretary from prosecuting those responsible for serious rioting in Bristol. In 1924, both the Attorney-General and the Director of Public Prosecutions decided to prosecute the editor of the Workers’ Weekly for incitement to mutiny. After the exertion of pressure by Ramsay Macdonald, then Prime Minister, who wished to avoid the publicity which a trial of members of the Communist Party would inevitably bring, the case was abandoned. More recently, in the case of Chandler, the Attorney-General decided to use the charge of conspiring to contravene the Official Secrets Act despite earlier undertakings that the Act would only be used in the context of espionage. When Leila Khaled, a hijacker, was detained in London, instead of facing serious criminal charges, she was released to aid negotiations with Palestinian guerrillas. The conspiracy to intimidate charge brought against the Shrewsbury Three was initiated at a level higher than that of Chief Constable, after two separate police forces had advised against prosecution. But, we are told over and over again, the Law Officers are totally free from any kind of political pressure. Perhaps the truth is more nearly expressed by Wilcox:

It would be idle to pretend that in the past Attorneys have never been placed under political pressure: how far they have succeeded in resisting such pressure is obscure.

If this statement is extended to all thirteen stages of the process whereby conspiracy charges are selected, we may begin to glimpse the truth about the explosion of conspiracy since 1962.

Conclusions (1)

  1. The Rationale of Conspiracy

It is useless to try and conceal the fact that an organised body of men working together can produce results very different from those which can be produced by an individual without assistance. Laws adapted to individuals…require modification if they are to be applied with the effect to large bodies of persons acting in concert. The English law of conspiracy is based upon and justified by this irredeemable truth.

Lord Linley in South Wales Miners Federation v Glamorgan Coal Co. (1905) AC 239

Is there any need for an offence of conspiracy? Why should the law prohibit certain combinations? Why should an agreement be a crime? The answers to these, and similar questions, have been the object of varieties of judicial and academic wisdom since the middle of the 18th century. Justifications for the existence of conspiracy as a criminal offence fall into three broad categories, as follows:

  • The ‘preventive’ factor

The most recent, and coherent statement of this view was given by the Law Commissioners in their main Report on conspiracy law which led to the introduction of the Criminal Law Bill. Their conclusion was that conspiracy enables the law to intervene at an early stage before a contemplated crime has actually been committed:

…the formation of an intention necessarily precedes the achievement of the intended consequences and, during the period between these two events, there exists a clear social danger which ought, if possible, to be avoided. The law recognises the absurdity which would be entailed if, knowing that someone was on the way to achieving a prohibited event, it could only stand by until the event had happened. The law, therefore, steps in under some circumstances at an earlier stage than completion of the intended consequence and makes certain conduct during that time criminal. This it does by use of the inchoate common law offences of attempt, incitement and conspiracy…conspiracy is, of all the preparatory offences, the one which can occur at the earliest time.

This argument becomes rather less than convincing if it is applied to the reality of the leading conspiracy cases decided since 1960. In Shaw, Bhagwan, Knuller, Doot, Kamara and Scott, conspiracy had no preventive or deterrent effect whatever: the full aim of the conspirators had been accomplished in every case. These decisions clearly illustrate the reality, that most conspiracies are inferred from the acts of the parties: the plotters are arrested after their agreement has been put into effect. In general, conspiracy is used, not as a means of prosecuting ‘gunpowder plot’ type agreements, but because it is easy to prove, and because it is a more serious charge. It may be argued that ‘preventive’ conspiracy was in fact employed in the Thorpe and the ‘Persons Unknown’ cases, but the verdicts of not guilty returned by the jury in both trials can hardly be seen as a vindication of the efficacy of conspiracy.

  • ‘Overall criminality’

Where the substantive charges do not reflect the overall criminality, it may be appropriate to add a conspiracy charge.

Lord Justice James in R v Jones and Others  (1974) Cr.App.Rep. 120

This, the view of Lord Justice James, has been interpreted as a justification for the conspiracy convictions in the Shrewsbury Pickets case. It is, essentially, an argument in favour of including conspiracy charges in indictments which also allege substantive offences carried out in pursuance of the agreement, on the basis that in some cases only a ‘global conspiracy count’ can give a faithful picture of the whole affair. In the words of Alex Lyon:

Offences of conspiracy are necessary…it may be necessary to use them against people who have been responsible for planning offences – the ‘Mr Bigs’ of the situation.

The ‘overall criminality’ argument was stated slightly differently by Lord Justice Lawton in dismissing the appeals of the persons convicted in the Angry Brigade trial:

…there may be clear evidence of conspiracy but little evidence that any of the plotters committed criminal acts – in such a case, those who instigate the criminal acts can only be brought to justice by means of a conspiracy charge.

  • The significance of numbers

The general principle on which the crime of conspiracy is founded is this, that the confederacy of several persons to effect any injurious object creates such a new and additional power to cause injury as requires criminal restraint: although none would be necessary were the same thing proposed, or even attempted to be done, by any person singly.

Thus, the Criminal Law Commission, reporting in 1843, clearly expressed the state’s especial horror of combinations, whether political, industrial, or simply criminal. The 19th century trade union cases contain repeated assertions of the ‘danger in numbers’ argument, and it is in the field of industrial conflict that this justification for the application of conspiracy has most frequently been stressed. According to Erle, ‘the force acquired by combination is incalculably greater than the sum of powers so transferred to the union by each individual’. In Boots v Grundy Mr Justice Phillimore declared that ‘the effectual strength of one is as nothing compared with the force of a combination which may be irresistible’. Lord Brampton expressed a similar view in Quinn v Leathem (the case which decided that it was unlawful to agree to operate a closed shop):

Much consideration of the matter has led me to be convinced that a number of actions and things not in themselves actionable or unlawful if done separately without conspiracy may, with conspiracy, become dangerous and alarming, just as a grain of gunpowder is harmless, but a pound may be highly destructive.

As Sayre and others have pointed out, the ‘pound of gunpowder’ theory is open to serious logical and analytical objections. In the first place, it cannot be said that the act of combining is criminal: it is not an offence to form a social club, a church or a political association. Secondly, a single individual with wealth and influence has greater power available for any enterprise he may wish to effect than perhaps a dozen persons of lesser means. Yet a single person may go beyond more intention and carry out acts of preparation, so as to put himself in a position to be able to carry out his plan, and still stay within the law. This problem was recognised by Viscount Simon who pointed out in the Crofter case that:

…the view that the explanation is to be found in the increasing power of numbers to do damage beyond what one individual can do is open to the obvious answer that this depends on the personality and influence of the individual. In the play, Cyrano de Bergerac’s single voice was more effective to drive the bad actor Montfleury off the stage than the protests of all the rest of the audience to restrain him. The action of a single tyrant may be more potent to inflict suffering on the continent of Europe than a combination of less powerful persons.

Sayre’s survey of the American cases decided around the end of the 19th century discloses a number of statements which accord with the view of Simon. For example, in Lindsay & Co v Montana Federation of Labour, it was said that

There can be found running through our legal literature many remarkable statements that an act perfectly lawful when done by one person becomes by some sort of legerdemain criminal when done by two or more persons acting in concert…but with this doctrine we do not agree. If an individual is clothed with a right when acting alone, he does not lose such right merely by acting with others, each of whom is clothed with the same right. If the act done is lawful, the combination of several persons to commit it does not render it unlawful. In other words, the mere combination of action is not an element which gives character to the act.

Again, Justice Holmes in Vegelahn v Guntner said:

There is a notion which latterly has been insisted on a good deal, that a combination of persons to do what any one of them lawfully might do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some as yet unformulated truth may not be hidden under this proposition. But in the general form in which it has been presented and accepted by many courts, I think it plainly untrue, both on authority and on principle.

Such logical and analytical objections to the various justifications for the continued existence of conspiracy law are, perhaps, less useful than a functional examination of the law. An ‘analytical’ approach without reference to the social and economic background of the cases may be intellectually satisfying, but it does not really tell us why the state has singled out combinations for especially severe penal treatment. It is submitted that the true rationale of conspiracy is the law’s especial horror of any form of association which can be thought to be opposed to the state. It is clear that the use of conspiracy charges against organised labour in the case of the Shrewsbury Three stemmed from the fact that, in previous trials of striking building workers at Mold Crown Court, substantive charges could not be proved. The most appropriate judicial statements are those which are found in cases with ‘political’ overtones like Mulcahy, where Mr Justice Willes stressed that the numbers of persons involved caused danger to the state, and that it was absurd if one person procuring arms amounted to treason, while conspiring with 1000 persons to enlist did not. Again, Stephen tells us that seditious conspiracy was provided as a serious counterpoise to political combinations. But perhaps the most significant judicial statement of all is that of Mr Justice Fitzgerald in Parnell, cited in full at the head of Chapter Two. Fitzgerald made it clear that, in political trials, conspiracy was used because no other charge would stick: the state reserves its strongest legal weapons for those who pose the greatest threat, that is, whose who combine, associate or organise for radical change.

Employment law and procedure: a critical analysis

 Employment law and procedure: a critical analysis

Currently, British employment law is a sprawling mass of statutes, regulations and decided cases. The leading textbook – Harvey – comprises 8 densely-packed looseleaf volumes. The breadth and complexity of employment laws makes them largely inaccessible to non-lawyers, and poses significant challenges to specialist employment lawyers.

  • Funding

 Although fees for employment tribunal (ET) claims have been abolished (but it is rumoured that the Conservative government may seek to reintroduce them), claimants with serious employment issues face significant financial hurdles. ET claims involve lengthy and demanding preliminary procedures before the case reaches a tribunal hearing. Instructing lawyers to handle these procedures is expensive. Claimants who belong to trade unions may be supported by their union, but there is no automatic right to legal advice and representation through the union. Claimants may have legal expenses insurance cover, normally as an addition to house insurance. Such cover involves a number of procedural steps and usually includes a requirement that the case is handled by the insurer’s lawyer. This contradicts the principle that claimants are entitled to their own choice of lawyer.

  • The two-year rule

Current English employment law requires a claimant to have two years continuous employment to benefit from most statutory employment rights. This rule can have iniquitous effects. It is far from unusual for employers to dismiss workers shortly before the completion of the two-year period to avoid liability for unfair dismissal.

  • Redundancy

Redundancy, like much of employment law, is an increasingly complex concept. Its legal definition often bears little relationship with the reality of the distress, mental and physical, caused to workers who have lost their jobs. It is not unknown for employers to dispense with unwanted workers on the pretext of a fake “redundancy” accompanied by minimally acceptable financial compensation. Such false redundancies can be attacked through an application of selected decided cases from the mass of case law.

  • Employment Tribunal case management: limited scope for advocacy

The increased case management powers of the employment tribunal are part of the movement from a tribunal proper to a civil court. ET applications involve detailed and onerous preliminary procedures, subject to strict controls and deadlines. In many cases, most of the legal issues related to a case are decided in advance of the hearing. Persuasive advocacy has had its day.

Legal and professional developments: review of 2019


  • Access to legal advice and representation

There has been no improvement in relation to access to legal services, but rather a deterioration in the position. This is particularly so in relation to family law matters, where increasing numbers of non-lawyers find themselves outside the scope of legal aid. They struggle with the complexities of family law and procedure. Family law judges continue to express their concern at the number of unrepresented litigants in their courts.

The Bar Council has recently expressed its concern at the increasing number of paid Mckenzie representatives appearing in courts. They are unregulated and appear to be uninsured. The question for the profession is whether litigants in person who cannot afford barristers or solicitors can fairly be criticised for choosing the cheaper option.

The Bar Pro Bono Unit has changed its name to “Advocate”. It helps some, carefully chosen, poor claimants with free advice and/or representation. This organisation regularly states that it should not operate as an alternative to a proper, state-funded, legal service. However, it cannot escape the fact that it is, essentially, a charity.  A comparison can be drawn with homeless people relying on small change from the pockets of the wealthy.

2019 also saw a continuing reduction in the number of practising criminal barristers who are simply unable to live on the wholly inadequate fees for their work.

  • The accession to power of a Conservative government

The shattering defeat of the Left in the general election and the assumption of power by a Prime Minister whose personal life would, in previous decades, almost certainly have affected his rise to power, has resulted in a number of areas of uncertainty for lawyers. These include the constitutional position of the judiciary, the organisation of the civil service and the extent of deregulation of a number of areas of legal controls.

  • Employment law and procedure

Employment law and procedure has continued to develop in complexity, mainly through a mass of decided cases. These Chambers have held monthly seminars on recent developments in employment law. On average, 12 significant new cases have been reported in our Newsletter and discussed in the seminars. For specialist lawyers, these developments are challenging. For non-lawyers they make self-representation, particularly in the area of disability discrimination, practically impossible.

  • Supreme Court

The Supreme Court decision that the government’s prorogation of  Parliament was unlawful has resulted in more work for Constitutional lawyers, with the need for Constitutional law textbooks to be rewritten. It can also be seen as representing a direct confrontation between the judiciary and the executive with few historical parallels.

  • Independence of  the judiciary

Any future threat to the independence of the judiciary, whether by the politicisation of judicial appointments or any other rumoured developments, must be strenuously resisted by the legal profession.

  • Deregulation

It is anticipated that the Conservative government may embark upon a general programme of legal deregulation. For employment lawyers this may mean significant changes in employment rights and health and safety regulations. For example, unlimited compensation in workplace discrimination cases is entirely an EU concept transposed into UK law. Detailed health and safety regulations, aimed at the protection of workers, are also directly based on EU Directives. The future is uncertain.

  • Regulation of the profession

It has been rumoured that the Bar Standards Board (BSB) may cease to exist through the general reorganisation of the profession’s regulatory bodies. If so, it may be anticipated that few in the profession will mourn its passing. The BSB is responsible for the Bar Handbook, generally regarded as grossly over-complicated and subject to frequent amendment. The Bar Council is reported to have pleaded with the BSB to recognise the everyday demands of practising lawyers and to reduce the complexity of the Handbook. New, complex transparency rules introduced by the BSB have proved virtually impossible to implement.  Similarly, simple, but admittedly sometimes ineffective, continuing professional development rules have been replaced by rules of a grinding complexity. The relationship between the BSB, the Bar Council and the Inns of Court appears to be impenetrable.

Conspiracy law, class and society Part 14: attempted reform

Attempted Reform

On Second Reading, my hon. friends and I thought this was a diabolically awful Bill and we voted against it. Since then some improvements have been made and it is now no more than a devilishly awful one (Ian Mikardo, during the third reading of the Criminal Law Bill).

  • 19th Century Reforms

Like the other ‘inchoate’, or preliminary offences of attempt and incitement, conspiracy escaped the Benthamite-inspired reforms of criminal law during the 19th century. In 1861, the work of the reformers culminated in the passing of seven major consolidating statutes. Liberal jurists had argued for the separation of the judiciary from the legislature, and despite strong opposition from the judges themselves, the 1861 legislation effectively limited the judicial role to that of interpretation so far as most substantive offences were concerned. The statutes did not expressly repeal offences which remained uncodified and conspiracy, as one of those offences, remained in the hands of the judges, almost entirely outside Parliamentary control. We have seen how the judges were by no means slow to grasp the opportunity to develop conspiracy in the areas of Irish, ‘political’, and trade union trials.

Conspiracy did not entirely escape the reforms: Section 4 of the Offences against the Person Act 1861 provided that:

All persons who shall conspire, confederate and agree to murder any person, whether he be a subject f Her Majesty or not, and whether he be within the Queen’s dominions or not, shall be guilty of a misdemeanour and shall be liable to imprisonment for any term not more than ten years.

This rule was a direct result of the acquittal of Bernard on a charge of conspiring to murder Napoleon III after a trial in which doubts were expressed as to whether an alien could be charged in England with conspiracy to commit a crime abroad. It resulted in the absurdity that, until 1977, a plot to damage property, to trespass or to corrupt the public morals could be punished with a 30 or 40-year sentence (since the judges had unlimited sentencing power in common law conspiracy trials) whereas an agreement to murder was subject to a ten-year maximum.

Other 19th century statutes of marginal relevance to conspiracy were the Conspiracy and Protection of Property Act 1875, passed as a result of trade union agitation, which limited liability in the area of trade disputes, and the Explosive Substances Act 1883, which replaced seditious conspiracy with a statutory charge of conspiring to cause explosions.

  • The Law Commission

The next major reforms of criminal law came in the 1960s, after Harold Wilson’s Labour government announced its intention to codify the whole of the English Legal System. The Law Commission, set up to achieve this aim, published seven Reports on conspiracy between 1973 and 1977. The first recommended that conspiracy should be limited to criminal offences. The next proposed the creation of new criminal trespass offences to replace Hailsham’s common law conspiracy to trespass. The fourth stated the Commissioners’ view that conspiracy to corrupt public morals and to outrage public decency should be abolished. The final, major Report, which included a draft Bill, confirmed the earlier view that only agreements to commit offences should be punishable as conspiracies, and urged that this should be implemented as soon as possible. With regard to punishments, the Commissioners, who comprised a judge, two barristers, a solicitor and a law professor, advised that judicial sentencing power should be curbed, and set out maximum penalties depending upon the seriousness of the crime agreed to be committed.

In two areas, no change was proposed: first, it was stated that since English law contains no general ‘fraud’ offence, conspiracy to defraud should be retained. Second, the Commission was silent on the question of evidence in conspiracy trials. The Commissioners might respond to this with the reply that their concern was solely with substantive matters, and that the law of evidence was outside the scope of their work. One might respond that, to the person convicted of conspiracy, the distinction between substance and evidence may appear more that a little academic.

  • Evidence

There is no doubt that prosecuting counsel in the past have abused the whole business of conspiracy and have put it in when substantive offences were clearly available on the evidence and there was no reason to put in a conspiracy charge, but they have put it in because they can get in hearsay evidence which otherwise would not be admissible and because it tends to magnify the possibility of punishment and to get the case into the higher courts at a much more serious level.

A major criticism of conspiracy law is that, when the charge is brought, the rules of the game change in favour of the prosecution. Over the centuries a body of special rules of evidence has been built up, which are peculiar to conspiracy trials. The Irish and Chartist cases demonstrate the extent to which political trials, heard at a time when judges were prepared to admit that trials could be political, have contributed a special body of evidential and procedural rules to the present system. In Pritt’s view:

The proof of conspiracy is made easier by the provision of the law of evidence (again, common law) that so long as there is any evidence, however tenuous, from which the agreement might be inferred, the acts and words of any of the alleged conspirators, alleged to have been done or spoken in pursuance of the conspiracy, are admissible in evidence against all the others, on the footing that they are all agents of one another (although, at the time when the evidence is admitted, the jury has not found that there was an agreement – and so some agency – as alleged).

The rule against hearsay, described by Glanville Williams as ‘one of the best known rules of law as well as one of its most intricate professional mysteries’, is all but abandoned in conspiracy trials. An early example is Shellard (the Monmouthshire Chartists) where evidence of someone other than the accused having told people to go to a meeting was admitted against the accused on the basis that all the acts in question were part of one transaction. Some academics have argued that this is not really a special exception to the rule, but forms an example of the doctrines of agency. This attempt to rationalise the relaxation of evidential requirements in conspiracy trials may be traced to 19th century cases like Duffield where Mr Justice Erle was keen to introduce the concept of agency as a means of admitting hearsay evidence against trade unionists.

  • Proof of Agreement

It is extremely difficult for the prosecution to prove conspiracy according to the normal rules of evidence, because direct evidence of an agreement is rarely available. This has led to the development of the doctrine of inference. The judges have repeatedly declared that, so far as proof goes, conspiracy is generally to be inferred from the acts of the parties carried out in pursuance of their agreement. Prosecution strategy is generally aimed at establishing that the accused acted in a certain way and in asserting that such behaviour could only have arisen as the result of a plan of action. In this way, proof of conspiracy is actually easier than proof of other offences. One example is Hunt, where Mr Justice Bayley directed the jury that if

…the circumstances were such that they could not have occurred except in pursuance of a previous plan between the parties, then that implies that there must have been such a plan, and would warrant the conclusion of conspiracy. In this way, standards of proof have been relaxed to such an extent that is has been said that a conspiracy is easier to prove than a normal commercial contract – in the words of prosecuting counsel at the trial of the Shrewsbury Three: ‘…it could be done with a nod or a wink.’

The Law Commission was silent on this point. In fact, the only comment relevant to rules of evidence was the view stated in its 76th report that the reason for retaining the offence of conspiracy is to enable the criminal law to intervene at an early stage before a contemplated crime has actually been committed. The Commissioners felt that the necessity for proof of an agreement was a sufficient safeguard against the danger of punishing conduct too far removed from an actual crime. They did not state an opinion as to the methods of establishing this proof. Their statements take no account of the fact that most conspiracy charges, far from enabling the law to intervene at an early stage and nip criminal organisations in the bud, are normally preferred after the agreed offence has been committed. One may cite, as leading examples, Shaw (conspiracy to corrupt public morals after publication of Ladies’ Directory); Kamara (conspiracy to trespass after occupation of Sierra Leone High Commission) and the Angry Brigade (conspiracy to cause explosions after series of explosions). One of the great myths of English law, comparable with the myths of judicial neutrality, the separation of powers and an unarmed police force, is the fictional assertion that conspiracy has an essentially ‘preventive’ nature. As a general rule, and certainly in the great majority of cases decided since 1960, conspiracy counts have been tacked on by the prosecution because the relaxation of rules of evidence makes a conviction more likely and increases judicial sentencing power. As the Haldane Society pointed out, no truly comprehensive reform of conspiracy law is possible without a thorough examination of the rules of evidence associated with it.

  • The Criminal Law Bill

This Bill entered Parliament in its draft form as set out by the Law Commission. It was advertised to the public as a far-reaching measure for the reform of conspiracy law, to increase the penalties for football hooliganism, and to protect holidaymakers whose homes might be taken over by squatters. In reality, it contained a marginal change in conspiracy, measures to criminalise trespass and an onslaught on the right to trial by jury on purely financial grounds.

The paltry reforms offered, which amount to no more than a correction of the most crass of judicial innovations in this field, will probably be offered as a liberal balance to the sterner medicine of other sections.

Even these paltry reforms received such a Parliamentary mauling that the final result totally refuted the views of those who thought that analyses of the history of conspiracy would become irrelevant, a mere pre-history, when the Bill became law.

First, the government decided not to abolish conspiracy to corrupt public morals, pending an examination of the whole of the law relating to obscenity by a Departmental Committee. This decision was generally criticised during the Bill’s second reading, and in the Upper House Lord Gardiner, having described the offence as ‘a great blot on our legal system’, stressed that the Bill thus excluded one of the first and most definite recommendations of the Law Commission.

Second, the draft Bill had included a clause defining the mens reas of conspiracy – the element of intention which the prosecution would have to prove. This was taken out during the Committee Stage in the Lords, when a group of senior judges who had themselves been directly involved in making the law during the 1960s-1970s excluded the clause on the grounds of complexity and obscurity. In the words of Lord Morris of Borth-y-Gest:

If you wanted to set a question to judges, Circuit Judges, recorders, magistrates, and justices’ clerks, if you wanted to test their skill, you might put that subsection before them and say to them ‘What does it mean?’ I venture to suggest that most of them would be puzzled. I can only feel that here is being imposed upon the legal profession and the public moments of mental agony, torment and anguish in trying to understand what these words mean.

Lord Edmund Davies gave the clause a similar description:

…so obscure and difficult as to be really a trap to the tired and overworked judge, towards the end of the day, who is called upon to direct a jury.

The actual words complained of were as follows: ‘…for a person to be guilty of conspiracy…both he and the other persons with whom he agrees must intend to bring about any consequence which is an element of that offence…’ Whilst not the clearest of English, this clause is certainly less obscure than much current legislation. Taxation statutes, in particular, are advantageously meaningless to those wealthy enough to employ specialist advisors. These views are notable because, in the first place, they take no account of the comprehension of the law by the accused: this follows the tradition of the English system that the person actually charged with a crime is not the central figure at the trial, and is only allowed to speak in very limited circumstances. Second, the composition of the Lords Committee deserves closer analysis. Morris (Lord Morris of Borth-y-Gest) had sat in judgement in both of the cases which established the existence of conspiracy to corrupt public morals, in with Simon (Viscount Simon of Glairsdale) had also played a part. Viscount Dilhorne, a Conservative MP from 1943 until 1962, had, during the 1970s, abolished public mischief, redefined conspiracy to defraud, and created the rule that English courts have jurisdiction if the evidence shows that a conspiracy, wherever formed, is still in existence when the accused come to England.

The other members of the Committee were Viscount Hailsham, the creator of conspiracy to trespass, Lord Elwyn-Jones, and Lord Edmund-Davies. All sat in judgement on the efforts of the Law Commission. When English judges are called upon to apply unpopular, repressive or patently absurd rules of law, it is not uncommon for them to assert that, if the law needs changing, it must be referred to Parliament. In the case of conspiracy, this meant that it was referred back to themselves as members of the Upper House. If this is a necessary consequence of the present composition of a non-elected upper chamber, then the arguments for drastic reforms are obvious, if the appearing of a democratic Parliamentary system is to be maintained.

Conspiracy Part 13: Conspiracy and the trade unions since 1920

Conspiracy and the Trade Unions since 1920

The threat of industrial strife is almost as damaging to the welfare of the nation as the threat of war (A.F. Wilcox, The Decision to Prosecute, 1900).

This comment by a former Chief Constable shows how seriously industrial disputes are regarded by English agencies of law enforcement. One of the means by which the threat has been countered is the law of conspiracy: this chapter aims to show that the function of that law is essentially the same today as it has been for at least 200 years.

Between 1920 and 1964, trade disputes were, as a rule, kept out of both civil and criminal courts. There are one or two exceptions, but the general impression gained from the Law Reports is that litigation, and adjudication, in the industrial context, was extremely rare in the first half of the 20th Century. Just as in Ireland, and in the area of overtly ‘political’ cases, there has ben no consistently chronological development of conspiracy as it affects trade unions, but rather to distinct phases of intense activity. This phenomenon is confirmed by O’Higgins and Partington’s limited statistical survey of decisions by the higher courts in cases concerning industrial conflict between 1871 and 1969. Their main conclusion was that the survey revealed less evidence of judicial bias than might have been expected. They also commented:

Why is it that there are so few cases coming before the courts? One may especially comment here on the paucity of cases in the 1920s and ‘30s even though this was a period of exceptional industrial unrest. Part of the explanation may lie in the belief common to both sides of industry that lawyers and the courts are best kept out of the field of industrial relations. In addition, there is a widespread belief among trade unionists that the law is weighted against them.

After cases like Taff Vale, it is perhaps hardly surprising that trade unionists lost confidence in the neutrality of the courts. One might add that, while this lack of confidence helps to explain the paucity of civil cases, it does not apply to criminal prosecutions where there is no question of choice by the defendant. Another point is that, after the passing of the Trade Disputes Act 1906, which gave the unions immunity from liability in tort, judges were more ready to accept their legitimacy and battles between employer and employee were less often fought out in the courtroom. But the main question remains: if the growth of conspiracy law reflects the strength of movements against the state, and can be seen as a response to threats, real or imagined, by dissident groups, then why are the Law Reports not full of conspiracy cases decided during the First World War, the General Strike, the depression of the 1930s and the Second World War?

  • Conspiracy and the Great 20th Century Emergencies

So far as the First World War was concerned, the government reacted to industrial disputes not with common law doctrines but with the Defence of the Realm Acts 1914 and 1915, which gave the King in Council ‘such powers as may be necessary for the efficient prosecution of the war’. This meant the imposition of a comprehensive system of state control over industry an agriculture, with the extension of the jurisdiction of courts-martial, and the effective supremacy of military law. As in Ireland, where the Easter Rising showed that the English state would drop the mask of legitimacy and invoke military reprisals when a real threat developed, so the British mainland was governed almost exclusively by statutory powers from 1914 until 1919. There was no room for conspiracy law.

The General Strike of 1926 was not without its conspiracy trials: we have seen how the leadership of the Communist Party was effectively removed from the preparatory stages of the strike by a prosecution for seditious conspiracy. The General Strike itself was declared illegal in Parliament by Sir John Simon, a former Attorney-General, and by Mr Justice Astbury. Astbury, who had been appointed to the Bench during Simon’s period of office as Solicitor-General, issued an injunction preventing the Firemens’ Union from joining the Strike, in a case described by Goodhart as ‘an off-hand judgement given in a case where the defendants were not represented by counsel’. Astbury ruled:

The so-called General Strike called by the TUC council is illegal, and persons inciting or taking part in it are not protected by the Trade Disputes Act 1906. No trade dispute has been alleged or shown to exist in any of the unions affected, except in the miners’ case, and no trade dispute does or can exist between the TUC on the one hand and the Government and Nation on the other.

This meant that, in theory, the leaders of all the unions involved could be made liable for damages in conspiracy, but Astbury’s judgement was refuted by Goodhart in an essay published in 1927. In his view, the General Strike was clearly a trade dispute – any coercion of the government was merely incidental – and if Astbury was implying that the Strike was criminal, then it could only be so under the doctrines of seditious conspiracy. The failure of the Strike was not followed by a mass of prosecutions, so we may perhaps assume that prosecutors felt that Goodhart’s view was more accurate than Astbury’s. Half a century later, Lord Denning followed Astbury: he prevented the steelworkers’ union from instructing its members employed in the private sector to strike, on the basis that the steel strike was not a trade dispute but a political matter, aimed at putting pressure on the government. The House of Lords took a similar view to Goodhart and overruled Denning’s judgement.

In legal terms, one result of the General Strikers’ defeat was the passing of the Trade Disputes and Trade Union Act 1927 which outlawed sympathetic and political strikes. This statute remained in force throughout the depression years of the 1930s, and may help to explain the dearth of conspiracy cases, both civil and criminal, during that period. During the Second World War, the Act was supplemented by the Emergency Powers (Defence) Acts which gave the government power to issue regulations, giving it complete control over persons and property. Defence Regulation 1AA made it an indictable offence to ‘instigate or incite’ a stoppage of essential work: Regulation 58A gave enormous powers to the Minister of Labour (Ernest Bevin) and prohibited all strikes unless 21-days’ notice was given to the ministry. With statutory powers of this magnitude, conspiracy law became irrelevant. Kahn-Freund has pointed out that the really important feature of the emergency legislation was its disappearance soon after the cessation of hostilities. In October 1948 an unofficial dock strike started in Bristol, in support of Canadian seamen who were in dispute with their employers. Troops were used to move cargoes from the docks but no prosecutions were brought under Defence Regulations still in force – arguably because the use of such criminal sanctions could have led to a national official strike. Two years later, when the government did attempt to apply the Regulations, they were convincingly defeated by striking gasworkers. We may perhaps conclude that the English state would prefer to use ‘legitimate’ common law sanctions whenever possible in place of emergency powers, and that the repeal of such powers is a tribute to the strength and determination of the trade union movement.

  • Developments in Civil Liability

The great civil trials involving trade unionists did not entirely disappear during the 1920s and ‘30s. In Reynolds v Shipping Federation the judiciary accepted the concept of the closed shop and expressed approval of a system of collective bargaining between unions and employers. The shipowners’ federation, comprising the bulk of owners of shipping in the UK, had agreed with the seamen’s union that they would only employ members of that union on their ships. A member of another union was refused employment as a greaser, and he sued the Federation for conspiracy. It was held that, since the agreement was entered into not from a malicious desire to inflict loss on an individual or class of individuals, but from a desire to advance the business interests of employers and employed alike, by maintaining the advantages of collective bargaining and control, it was not unlawful and no action for conspiracy was maintainable.

Mr Justice Sargant showed how dramatic the change in judicial attitudes had been by declaring that

…for many years past no-one has questioned the right of a trade union to insist, if they are strong enough to do so, under penalty of a strike, that an employer shall employ none but members of the trade union…the result of any such effective combination of workmen has been to impose on the other workmen in the trade the necessity of joining the union as a condition of obtaining employment. Here, the employers, instead of being forced against their wills into employing union men only, have recognised that advantages may arise from adopting such a course voluntarily, and have accordingly made an agreement with the trade union to that effect. The incidental result to the other workmen in the trade is the same as if the employers had yielded against their wills instead of agreeing voluntarily. But I fail to see that workmen who are unwilling to join the union have any greater reason to complain of a violation of their legal rights in the second case than in the first.

Conspiracy law, class and society Part 12: public mischief

Public Morality

One of the first major cases in the recent resurgence of conspiracy was DPP v Shaw, where the publisher of the Ladies Directory – a list of prostitutes – was convicted of conspiracy to corrupt public morals. In the House of Lords it was argued on behalf of Shaw that new offense in relation to public morals could not be created by the courts. Rejecting this argument, Viscount Simmonds delivered his famous judgement that

I entertain no doubt that there remains in the courts a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order, but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for…it matters little what label is given to the offending act…to one of your lordships it may appear an affront to public decency, to another it will seem a corruption of public morals. Yet others may deem it a public mischief. I now assert that there is a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare.

This statement, which both created a new offence and pointed out the impossibility of classifying it according to existing rules, finally laid to rest the argument that English judges do not make law. It is probably one of the most criticised decisions of recent times: in the Lords itself, the dissenting judgement of Lord Reid shows that the judges were uneasy about their power to extend conspiracy. One example of the academic outrage which followed Shaw is the comment of Fitzgerald that the case ran counter to two cardinal principles of free and democratic government. First, the idea of the rule of law, based on the demand that the citizen should be ruled by laws and not by the whims of men; and second the principle of legality, that only existing breaches of law should be punishable – the citizen should be able to know in advance what conduct is permitted and what is forbidden. Fitzgerald also points out that when Parliament creates a crime, its effect is for the future only; but when the judges make a law, their creation is retrospective not merely to the time of the facts of the case, but forever. The law of conspiracy is riddled with judicial assertions that the function of the courts is to state the law as it always has been, if not as far back as the origin of the universe, then certainly to Angle-Saxon times.

The name of Jeremy Bentham was also invoked by critics of the Shaw decision, who quoted the master of utilitarianism as follows:

It is the judges that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait until he does it and then beat him. This is the way you make laws for your dog and this is the way the judges make laws for you and me.

The extent of academic and juristic influence upon criminal prosecutors during the last two decades is best illustrated by the fact that the Shaw case led to a spate of more than 30 public morality prosecutions between 1962 and 1972. These ranged from ‘blue film’ cases to the supply of heroin. But the most significant ‘morality’ conspiracy cases were those brought against the expanding underground press of the early 1970s, characterised by Robertson as ‘assuming the proportions of a cultural collision’.

In Knuller the editors of IT newspapers faced conspiracy charges for publishing homosexual adverts. Lord Reid’s judgement shows that he did not regard himself as bound by his statement in Shaw that there was no such offence as conspiracy to corrupt the public morals. In the interests of certainty, Shaw must be upheld and the convictions of the editors affirmed. This was despite the fact that in 1964 Sir Peter Rawlinson, then Solicitor-General in a Conservative government, had assured the House of Commons that conspiracy charges would never again be used to circumvent the provisions of the Obscene Publications Act 1959. In O’Higgins; view, ‘if one inquires why this odd offence of conspiring to corrupt the public morals is used instead of the offence of publishing an obscene magazine, the answer is probably that this is done in order to deprive the accused of the defence to which they would, under the Obscene Publications Act, be entitled’. This defence – that the material was published for the public good – becomes irrelevant when conspiracy charges are brought. The value of the Rawlinson assurance was revealed by the Lords’ statement that it had not been brought to the attention of the judges. It should also be noted that, in 1967, homosexual acts had been partially legalised. Lord Reid dealt with this by pointing out that there was a material difference between exempting conduct from criminal penalties and making it lawful in the full sense: again, conspiracy law was not affected.

Another famous trial involving the alternative press and those who advocated alternative forms of society was that of Anderson and others for conspiring to corrupt the public morals of publishing Oz Schoolkids Issue which allegedly contained obscene articles, cartoons, drawings, and illustrations. Again, conspiracy was used to avoid the complications of obscenity statutes. The verdict of not guilty showed yet again that the only real defence against conspiracy as repression is the common-sense of twelve jurors.

If these prosecutions were designed, as has been suggested, to suppress the emergence during the early 1970s of an alternative society and an alternative morality, their success may be assumed from the fact that the underground press haw now disappeared, but conspiracy to corrupt public morals is still with us. Despite the anguished criticisms voiced by academics, despite years of debate by the Law Commission which resulted in a clear recommendation for abolition, despite the views of members of Commons and Lords that the offence is ‘a blot on our penal system’, it remains available for the use of prosecutors who can prove no other charge.

Conspiracy law, class and society Part 9

The Hain Case

On 21 August 1972, Peter Hain, who six months earlier had attacked the use of ‘political’ conspiracy charges, was convicted of conspiring to disrupt a tennis match. The facts of the Hain affair may appear to fit into the framework of cases during the 1970s with a political overtone, but it is not really an example of the prosecutors’ obsession with conspiracy charges, because neither the police nor the Director of Public Prosecutions were interested in indicting Hain for his anti-apartheid activities. Hain is one of the few cases where the origins of the decision to use conspiracy can be traced: the prosecution was brought at the instigation of Freedom Under Law Limited, an organisation partly funded by white South Africans. It alleged that Hain had conspired with persons unknown to obtain a lawful object by unlawful means, that is, interfering with the lawful rights of persons to watch a Davis Cup tennis match against South Africa, by running onto the court and distributing leaflets. Hain was, in effect, subjected to a ‘blanket’ indictment in which lawyers could distinguish 147 different ‘unlawful activities’, including an allegation worded in almost exactly the same way as an offence under the Conspiracy and Protection of Property Act 1875, intended to deal with unruly trade unionists, as follows: ‘watching and besetting places where members of the team happened to be, and following members of the team from place to place’.

Hain was not, of course, the only person who had demonstrated against South African sports tours, nor was he the only identifiable one. His public image made him a suitable scapegoat and ensured maximum publicity for the political organisation which took him to court. Judge Gillis fulfilled the prosecutors’ expectations by refusing to accept defense submissions that tours by South African teams were not in the public interest because they would strain race relations in England. He held that the issue of ‘public interest’ meant ‘something of importance to citizens interested in the maintenance of law and order.’ Telling Hain that any conviction for conspiracy was a serious matter, Gillis fined him £200 and saved the South African subscribers their money by ordering that costs should be paid from public funds.

One significance of Hain’s case is its difference from another private prosecution brought in Bristol during 1975. David Southwell, a voluntary social worker, had been assaulted and unlawfully evicted from his flat by a group of men who included a prominent local lawyer. Neither the local authority nor the police would handle his complaint, so Southwell brought his own conspiracy prosecution, unaided by wealthy racists. He appeared in person at the committal hearings, where he established a prima facie case against the accused, but was represented by counsel at the Crown Court trial. The accused changed their plea to guilty at the last moment, possibly to avoid the embarrassing publicity which cross-examination might bring. Judge Ewart James fined them a total of £50 for five offences including conspiracy to evict, conspiracy to effect forcible entry and conspiracy to trespass. It is difficult to resist the conclusion that the seriousness of conspiracy charges seems to depend, at least so far as private prosecutions are concerned, on the public image of the accused and the influence of the prosecutor.