Republic of Ecuador v Occidental Exploration and Production Co
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[2005]
EWCA Civ 1116
ADMINISTRATION OF JUSTICE; Arbitration
COURT OF APPEAL
LORD
PHILLIPS OF WORTH MATRAVERS MR, CLARKE AND MANCE LJJ
20,
21, 22 JULY, 9 SEPTEMBER 2005
Arbitration – Award – Setting aside award –
Jurisdiction – Jurisdiction to consider challenge to arbitration award where
arbitration arising from terms of bilateral investment treaty – Whether rights
and duties in arbitration properly seen as ‘state rights’ – Whether challenge
non-justiciable as involving consideration of terms of unincorporated treaty
and adjudication upon transactions of foreign sovereign states – Arbitration
Act 1996, s 67.
The claimant state and the defendant Californian
corporation entered into arbitration following a dispute arising from an
investment agreement concluded pursuant to a bilateral investment treaty
entered into between the claimant and the United States. The treaty conferred rights directly on
private investors and provided for direct resolution rights, including
arbitration, against the state involved in the event of an investment
dispute. London was chosen by the
arbitrators as the place of arbitration.
The arbitrators made an award which was largely in favour of the
defendant. The claimant then issued a
claim form seeking to have this award set aside under, inter alia, s 67a of the Arbitration Act 1996, which provided
that a party to arbitral proceedings could apply to the court challenging any
award of the arbitral tribunal as to its substantive jurisdiction. The defendant also brought a claim
challenging that part of the award which was not favourable to it. By application notice the defendant raised a
prior objection that the claimant’s challenge involved the English court having
to interpret provisions of the bilateral investment treaty and therefore was
non-justiciable. At first instance the
judge decided against the defendant and it appealed. On the appeal, the defendant argued that the
rights and duties in the arbitration should be seen as state rights. It further argued that if the arbitration was
regarded as being in the defendant’s own right, then the challenge under s 67
raised issues which were non-justiciable, as they would involve enforcing or interpreting
the terms of an unincorporated treaty and/or be contrary to the established
principle that the courts would not adjudicate upon the transactions of foreign
sovereign states.
________________________________________
a Section 67, so far as material, provides: ‘(1)
A party to arbitral proceedings may … apply to the court—(a) challenging any
award of the arbitral tribunal as to its substantive jurisdiction; or (b) for
an order declaring an award made by the tribunal on the merits to be of no
effect … because the tribunal did not have substantive jurisdiction …’
________________________________________
Held – (1) Where a dispute arose out of or
related to a commercial agreement entered into between a state and a private
investor pursuant to a bilateral investment treaty, it would be both artificial
and wrong in principle to suggest that the investor was in reality pursuing a
claim vested in his or its home state.
It
225
would potentially undermine the efficacy of the
protection held out to individual investors, if such protection was subject to
the continuing benevolence and support of their national state. It was well established that treaties could
in modern international law give rise to direct rights in favour of
individuals, particularly where the treaty provided a dispute resolution
mechanism capable of being operated by individuals acting on their own behalf
and without their national state’s involvement or even consent. In the instant case the language of the
treaty made it clear that injured nationals or companies were to have a direct
claim for their own benefit in respect of investment disputes, whether arising
from an investment agreement, from an executive authorisation, or from the
alleged breach of any right conferred by the treaty with respect to an
investment (see [17]–[20], below).
(2) English courts were not wholly precluded from
interpreting or having regard to the provisions of unincorporated
treaties. Context was always
important. In the present context the
question arose whether such interpretation was required in order to determine a
person’s rights and duties under domestic law.
Taking into account the special character of a bilateral investment
treaty such as the instant one and the agreement to arbitrate which it was intended
to facilitate, the treaty involved on any view a deliberate attempt to ensure
for private investors the benefits and protection of consensual
arbitration. The agreement was
recognised under English private international law rules and subject to the
1996 Act because England was chosen as the place of arbitration. For the
English court to treat the extent of such rights as non-justiciable would
appear to involve an extension, rather than an application, of existing
doctrines developed in different contexts.
Finally, the provisions of the treaty had led to an agreement to
arbitrate a dispute which could cover the interpretation of any aspect of the
treaty, including aspects going to the arbitrators’ jurisdiction, and gave rise
to rights between the parties to it, including the right to have disputes
arbitrated within its terms and not have disputes arbitrated which fell outside
its terms. There was no good reason why
any arbitration held pursuant to such an agreement, or any supervisory role
which the court of the place of the arbitration could have in relation to any
such arbitration, should be categorised as being concerned with ‘transactions
between states’ so as to invoke the established principle of non-justiciability
(see [31], [32], [37], [40], [41], [58], below); R (on the
application of Campaign for Nuclear Disarmament) v Prime Minister of the
UK [2003] 3 LRC 335 applied; Philippson v Imperial Airways Ltd [1939]
1 All ER 761, Buttes Gas and Oil Co v Hammer (Nos 2 & 3) [1981]
3 All ER 616 and Maclaine Watson & Co Ltd v Department of Trade and
Industry [1989] 3 All ER 523 considered.
Notes
For the law relating to the treatment of the acts of
foreign states see 18(2) Halsbury’s Laws (4th edn reissue) para 621.
For the Arbitration Act 1996, s 67 see 2 Halsbury’s
Statutes (4th edn) (2003 reissue) 699.
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68, [2005] 2 WLR 87.
A-G of Canada v SD
Myers Inc 2004 FC 38, [2004] 3 FCR 368, Can FC.
226
Arab Monetary Fund v
Hashim (No 3) [1991] 1 All ER 871, [1991] 2 AC 114, [1991] 2
WLR 729, HL.
Banco Nacional de
Cuba v Sabbatino (1964) 376 US 398, US SC.
Barcelona Traction,
Light and Power Co Ltd (Belgium v Spain) (second phase),
Re [1970] ICJ Rep 4, ICJ.
Blackburn v AG [1971]
2 All ER 1380, [1971] 1 WLR 1037, CA.
Brind v Secretary of
State for the Home Dept [1991] 1 All ER 720, sub nom R v Home Secretary,
ex p Brind [1991] 1 AC 696, [1991] 2 WLR 588, HL.
British Airways Board
v Laker Airways Ltd [1984] 3 All ER 39, [1985] AC 58, [1984] 3 WLR 413, HL.
Buttes Gas and Oil Co
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Camuzzi International
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Camuzzi International
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Cook v Sprigg
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1 All ER 239, [1986] QB 441, [1986] 2 WLR 745.
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ER 527, [2005] 2 AC 1, [2005] 2 WLR 1.
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Henderson v Henderson
(1843) 3 Hare 100, 67 ER 313, [1843–60] All ER Rep 378, VC Ct.
Jones v Ministry of
the Interior of the Kingdom of Saudi Arabia (Secretary of State for
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Jurisdiction of the
Courts of Danzig Case (1928) PCIJ Rep Series B, No 15, PCIJ.
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883, [2002] 2 WLR 1353.
LaGrand Case (Germany
v United States) (2001) 40 ILM 1069, ICJ.
LG&E Energy
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unreported), ICSID Arb Trib.
Loewen Group Inc, The
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418, [1989] 3 WLR 969, HL.
McKerr, Re [2004]
UKHL 12, [2004] 2 All ER 409, [2004] 1 WLR 807.
227
Mavrommatis Palestine
Concessions, Case of the (1924) PCIJ Rep Series A, No 2, PCIJ.
Orion Compania
Espanola de Seguros v Belfort Maatschappij voor Algemene Verzekgringeen [1962]
2 Lloyd’s Rep 257.
Philippson v Imperial
Airways Ltd [1939] 1 All ER 761, [1939] AC 332, HL.
Post Office v Estuary
Radio Ltd [1967] 3 All ER 663, [1968] 2 QB 740, [1967] 1 WLR 1396, CA.
R (on the
application of Campaign for Nuclear Disarmament) v Prime Minister of the
UK [2002] EWHC 2777 (Admin), [2003] 3 LRC 335.
R v Lyons [2002]
UKHL 44, [2002] 4 All ER 1028, [2003] 1 AC 976, [2002] 3 WLR 1562.
Rustomjee v The Queen
(1876) 2 QBD 69, CA.
Secretary of State in
Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22, 15 ER 9, PC.
SGS Société Générale
de Surveillance SA v Islamic Republic of Pakistan (2002) 8 ICSID Reports
383, ICSID Arb Trib.
Westland Helicopters
Ltd v Arab Organisation for Industrialisation [1995] 2 All ER 387, [1995]
QB 282, [1995] 2 WLR 126.
Zoernsch v Waldock [1964]
2 All ER 256, [1964] 1 WLR 675, CA.
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A-G v Nissan
[1969] 1 All ER 629, [1970] AC 179, [1969] 2 WLR 926, HL.
Al-Adsani v UK
(2001) 12 BHRC 88, ECt HR.
Al-Naimi (t/a
Buildmaster Construction Services) v Islamic Press Agency Inc [2000]
1 Lloyd’s Rep 522, CA.
Ashingdane v UK (1985)
7 EHRR 528, [1985] ECHR 8225/78, ECt HR.
Azov Shipping Co v
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Azov Shipping Co v
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Azurix Corp v
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China Agribusiness
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Deutsche Schachtbau-
und Tiefbohrgesellschaft mbH v Xas Al Khaimah National Oil Co [1988] 2 All
ER 833, [1990] 1 AC 295, [1988] 3 WLR 230, HL.
Golder v UK
(1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.
Helbert Wagg & Co
Ltd, Re, Re Prudential Assurance Co Ltd [1956] 1 All ER 129, [1956] Ch 323,
[1956] 2 WLR 183.
Holland v
Lampen-Wolfe [2000] 3 All ER 833, [2000] 1 WLR 1573, HL.
How Engineering
Services Ltd v Lindner Ceilings Floors Partitions plc (17 May 1995,
unreported), QBD.
Impreglio SpA v
Islamic Republic of Pakistan ICSID Case No ARB/03/3 (22 April 2005,
unreported), ICSID Arb Trib.
Lesotho Highlands
Development Authority v Impregilo SpA [2005] UKHL 43, [2005] 3 All ER 789,
[2005] 3 WLR 129.
Lively Ltd v City of
Munich [1976] 3 All ER 851, [1976] 1 WLR 1004.
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Rep 116, CA.
228
Oppenheimer v
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R (on the
application of Abbasi) v Secretary of State for Foreign and Commonwealth
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R v DPP, ex p
Kebeline, R v DPP, ex p Rechachi [1999] 4 All ER 801, [2000] 2 AC 326,
[1999] 3 WLR 972, HL.
R v Secretary of
State for the Home Dept, ex p Launder [1997] 3 All ER 961, [1997] 1 WLR
839, HL.
Salini Construttori
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ICSID Arb Trib.
Sempra Energy
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SGS Société Générale
de Surveillance SA v Islamic Republic of Pakistan (2002) 8 ICSID Reports
356, Pak SC.
SGS Société Générale
de Surveillance SA v Republic of the Philippines (2004) 8 ICSID
Reports 518, ICSID Arb Trib.
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United Mexican States
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Appeal
The Republic of Ecuador brought a claim under ss 67 and 68
of the Arbitration Act 1996 seeking to set aside the award of an arbitral
tribunal dated 1 July 2004 given largely in favour of the defendant, Occidental
Exploration and Production Company, a Californian corporation. The dispute arose in relation to an
investment agreement between the parties entered into pursuant to a bilateral
investment treaty between the Republic of Ecuador and the United States of
America. The arbitration was provided
for by the terms of the treaty and Occidental raised a preliminary objection
that any challenge to the award would involve an interpretation of an
unincorporated treaty which made the claim non-justiciable by an English
court. Aikens J on 29 April 2005 ([2005]
EWHC 774 (Comm), [2005] 2 Lloyd’s Rep 242) found in favour of the Republic of
Ecuador on the objection and Occidental appealed. The facts are set out in the judgment of the
court.
Christopher Greenwood
QC and Toby Landau (instructed by Debevoise & Plimpton LLP)
for Occidental.
David Lloyd Jones QC
and Simon Birt (instructed by Weil Gotshal & Manges LLP) for
the Republic of Ecuador.
Cur adv
vult
229
9 September 2005.
The following judgment of the court was delivered.
MANCE LJ.
OUTLINE
[1] This is the judgment of the court. The appeal, from a judgment and order of
Aikens J dated 29 April 2005 ([2005] EWHC 774 (Comm), [2005] 2 Lloyd’s Rep
240), concerns the extent to which the English courts may under s 67 of the
Arbitration Act 1996 consider a challenge to the jurisdiction of an award made
by arbitrators appointed under provisions to be found in a bilateral investment
treaty. The treaty was signed on 27
August 1993 between the United States of America and the Republic of
Ecuador. It contained provisions
‘concerning the encouragement and reciprocal protection of investment’ in each
country by the nationals and companies of the other. These included a provision (art VI) whereby,
in the event of an ‘investment dispute’, such nationals and companies could
enjoy direct dispute resolution rights against the other country. One of the options provided was arbitration
subject to the Arbitration Rules of the United Nations Commission on
International Trade Law (UNCITRAL), as here occurred. The arbitration was between Occidental
Exploration and Production Company (Occidental), a Californian corporation, and
Ecuador. There was a distinguished panel
of arbitrators consisting of the Hon Charles N Brower, Dr Patrick Barrera
Sweeney and, as chairman, Professor Francisco Orrego Vicuña. Their final award was dated 1 July 2004.
[2] Regarding the place of any arbitration,
the treaty says (art VI, para 5) only that it ‘shall be held in a state that is
a party to the New York Convention’ (United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York, 10 June
1958; UNTS 3320 (1959); Cmnd 6419)).
There are over 130 such states.
But art 16(1) of the UNCITRAL Arbitration Rules 1976 (UN General
Assembly Resolution 31/98), to which the treaty refers, provides that: ‘Unless
the parties have agreed upon the place where the arbitration is to be held,
such place shall be determined by the arbitral tribunal, having regard to the
circumstances of the arbitration.’
Occidental and Ecuador were unable to agree upon a place, and the
arbitrators by decision dated 1 August 2003 determined that it should be
London. The factor ‘tipping the balance’
in favour of London (over Washington, DC) was its ‘perception … as being
neutral’. Hearings were actually held in
Washington, but the award dated 1 July 2004 records the place of arbitration as
London.
[3] By their award the arbitrators determined
the dispute in favour of Occidental, save on one point relating to whether
there had been expropriation, which was not in the event relevant to the
result. Ecuador by claim form dated 11
August 2004 seeks to have the award set aside under both ss 67 and 68 of the
1996 Act. Also on 11 August 2004,
Occidental issued a claim form seeking, in the event of a challenge to the
award by Ecuador and if necessary, to re-visit the point on expropriation. But by application notice dated 24 November
2004 Occidental raised a prior objection, that Ecuador’s challenge requires the
English court to interpret provisions of the bilateral investment treaty
between the United States and Ecuador, in contravention of a rule of English
law making such an issue ‘non-justiciable’.
Colman J directed the trial of a preliminary issue relating to that
objection. Before Aikens J the objection
was abandoned as regards the points raised under s 68. By his
230
judgment and order under appeal, Aikens J also
decided it against Occidental as regards the points raised under s 67. Aikens J was not, and we are not, concerned
with the merits of Ecuador’s challenge under either of ss 67 and 68.
OCCIDENTAL’S INVESTMENT
[4] The investment to which Occidental’s claim
related arose under a contract dated 21 April 1999 with Petroecuador (a
state-owned corporation of Ecuador).
Occidental thereby obtained the exclusive right to carry out hydrocarbon
exploration and exploitation in Block 15 of the Ecuadorian Amazon basin
region. Occidental assumed virtually all
the costs, and received in return a percentage of the oil produced and the
right to export it. The percentage was
determined under an elaborate formula in cl 8.1 of the contract known as
‘Factor X’.
[5] The costs incurred by Occidental involved
it in paying value added tax (VAT). As
an exporter, it sought reimbursement of this VAT from the Ecuadorian tax
authority, the Servicio de Rentas Internas (SRI). At first, in respect of periods from July 1999
to September 2000, this was afforded by SRI, but thereafter and in respect of
subsequent periods it was refused. SRI
initially justified its refusal on the ground that Factor X had been calculated
on a basis covering Occidental’s potential VAT liabilities. Latterly (although Ecuador suggests that the
arbitrators failed to appreciate this) the justification advanced by SRI and
Ecuador changed and was and is that VAT refunds are only available to exporters
of ‘manufactured’ products, within which description it is contended that the
crude oil exported did not fall.
THE BILATERAL INVESTMENT TREATY
[6] The judge summarised the scheme of the
treaty (see [2005] 2 Lloyd’s Rep 240):
‘[14] … (1) The Preamble
sets out the aim of the Treaty, which is to promote greater economic
co-operation and investment between the parties, but on a defined and agreed
basis.
(2) Article I sets out
various definitions. “Investment” is
defined broadly.
(3) Article II sets out
the basis on which each party will permit and treat investment … It also provides that the parties will ensure
that investment will have fair and equitable treatment according to
international law standards.
(4) Article III deals
with expropriation or nationalisation of investments.
(5) Article IV deals
with transfers, particularly of funds.
(6) By Article V the
Parties agree to consult promptly to resolve any disputes in connection with
the Treaty.
(7) Article VI deals
with the resolution of “investment disputes” between a state party and a
national or company of the other state party.
Its terms are central to this application …
(8) Article VII concerns
the resolution of disputes between the two parties to the treaty, ie … USA and
Ecuador … If necessary, disputes are to be submitted to an arbitral tribunal, for
binding decision “in accordance with the applicable rules of international
law”.’
(9) Article X deals with
the tax policies of each party and provides that each party should strive to
accord fairness and equity in the treatment of investments of nationals and
companies of the other party. It states
that the
231
provisions of the
Treaty, in particular articles VI and VII will nevertheless apply to matters of
taxation only to a certain extent, as set out in the article. This article gave rise to argument about its
scope in the arbitration between Occidental and Ecuador.’ (Our emphases.)
[7] More specifically, arts II, V, VI, VII and
X of the treaty provide:
‘II.3(a) Investment
shall at all times be accorded fair and equitable treatment, shall enjoy full
protection and security and shall in no case be accorded treatment less than
that required by international law.
(b) Neither Party shall
in any way impair by arbitrary or discriminatory measures the management,
operation, maintenance, use, enjoyment, acquisition, expansion or disposal of
investments. For purposes of dispute
resolution under Articles VI and VII, a measure may be arbitrary or
discriminatory notwithstanding the fact that a party has had or has exercised
the opportunity to review such measure in the courts or administrative
tribunals of a Party …
V. The Parties agree to
consult promptly, on the request of either, to resolve any disputes in
connection with the Treaty or to discuss any matter relating to the
interpretation or application of the Treaty.
VI.1 For purposes of
this Article, an investment dispute is a dispute between a Party and a national
or company of the other Party arising out of or relating to (a) an investment
agreement between that Party and such national or company; (b) an investment
authorization granted by that Party’s foreign investment authority to such
national or company; or (c) an alleged breach of any right conferred or created
by this Treaty with respect to an investment.
2. In the event of an
investment dispute, the parties to the dispute should initially seek a
resolution through consultation and negotiation. If the dispute cannot be settled amicably,
the national or company concerned may choose to submit the dispute, under one
of the following alternatives, for resolution:
(a) to the courts or
administrative tribunals of the Party that is party to the dispute; or
(b) in accordance with
any applicable, previously agreed dispute-settlement procedures; or
(c) in accordance with
the terms of paragraph 3.
3. (a) Provided that the
national or company concerned has not submitted the dispute for resolution
under paragraph 2 (a) or (b) and that six months have elapsed from the date on
which the dispute arose, the national or company concerned may choose to
consent in writing to the submission of the dispute for settlement by binding
arbitration:
(i) to the International
Centre for the Settlement of Investment Disputes (“Centre”) established by the
Convention on the Settlement of Investment Disputes between States and Nationals
of other States, done at Washington March 18, 1965 (“ICSID Convention”),
provided that the Party is a party to such Convention; or
(ii) to the Additional
Facility of the Centre, if the Centre is not available; or
(iii) in accordance with
the Arbitration Rules of the United Nations Commission on International Trade
Law (UNCITRAL); or
232
(iv) to any other
arbitration institution, or in accordance with any other arbitration rules, as
may be mutually agreed between the parties to the dispute.
(b) Once the national or
company concerned has so consented, either party to the dispute may initiate
arbitration in accordance with the choice so specified in the consent.
4. Each Party hereby
consents to the submission of any investment dispute for settlement by binding
arbitration in accordance with the choice specified in the written consent of
the national or company under paragraph (3).
Such consent, together with the written consent of the national or
company when given under paragraph (3) shall satisfy the requirement for:
(a) written consent of
the parties to the dispute for purposes of Chapter II of the ICSID Convention
(jurisdiction of the Centre) and for purposes of the Additional Facility Rules;
and
(b) an “agreement in
writing” for purposes of Article II of the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June
10, 1958 (“New York Convention”).
5. Any arbitration under
paragraph 3(a) (ii), (iii) or (iv), of this Article shall be held in a state that
is a party to the New York Convention.
6. Any arbitral award
rendered pursuant to this Article shall be final and binding on the parties to
the dispute. Each Party undertakes to
carry out without delay the provisions of any such award and to provide in its
territory for its enforcement.
7. In any proceeding
involving an investment dispute, a Party shall not assert, as a defense,
counterclaim, right of set-off or otherwise, that the national or company
concerned has received or will receive, pursuant to an insurance or guarantee
contract, indemnification or other compensation for all or part of its alleged
damages.
8. For purposes of an
arbitration held under paragraph 3 of this Article, any company legally
constituted under the applicable laws and regulations of a Party or a political
subdivision thereof that, immediately before the occurrence of the event or
events giving rise to the dispute, was an investment of nationals or companies
of the other Party, shall be treated as a national or company of such other
Party in accordance with Article 25(2)(b) of the ICSID Convention.
VII.1 Any dispute
between the Parties concerning the interpretation or application of the Treaty
which is not resolved through consultations or other diplomatic channels, shall
be submitted, upon the request of either Party, to an arbitral tribunal for
binding decision in accordance with the applicable rules of international
law. In the absence of an agreement by
the Parties to the contrary, the arbitration rules of … (UNCITRAL), except to
the extent modified by the Parties or by the arbitrators, shall govern …
X.1. With respect to its
tax policies, each Party should strive to accord fairness and equity in the
treatment of investment of nationals and companies of the other Party.
2. Nevertheless, the
provisions of this Treaty, and in particular Article VI and VII, shall apply to
matters of taxation only with respect to the following:
(a) expropriation,
pursuant to Article III;
(b) transfers, pursuant
to Article IV; or
233
(c) the observance and
enforcement of terms of an investment agreement or authorization as referred to
in Article VI (1) (a) or (b),
to the extent they are not subject to the dispute
settlement provisions of a Convention for the avoidance of double taxation
between the two Parties, or have been raised under such settlement provisions
and are not resolved within a reasonable period of time.’
THE AWARD
[8] On 4 April 2002 Occidental gave notice to
Ecuador that a dispute had arisen, and, after allowing six months to lapse, on
11 November 2002 Occidental wrote consenting in writing to the submission of
the dispute to arbitration under UNCITRAL rules, as provided in art
VI.3(a)(iii) of the treaty. Occidental alleged breaches of arts II.3(a) and (b)
and III.1. The arbitrators were
appointed. In September 2003, Ecuador
raised objections to any consideration by the tribunal of Occidental’s claims
on three grounds. The first was that,
following the refusal of reimbursement of VAT, Occidental had brought
proceedings in Ecuador under Ecuadorian law.
The tribunal decided that this did not preclude Occidental’s separate
claim in the arbitration, and this is no longer in issue. The second was that Occidental’s claims,
relating as they did to matters of taxation, were precluded by art X. This, in Ecuador’s submission, limits the
application of art VI to the three categories of complaint specified in art
X.2(a), (b) and (c) and even then only permits jurisdiction subject to the
closing caveat in art X.2. The third
(linked with the second through art X.2(a)) was that the claim that there had
been any expropriation was on any view ‘inadmissible’ (ie evidently unfounded).
[9] The tribunal agreed with Ecuador in
relation to the third objection. But it
nevertheless rejected the second objection.
It did so, first, on the ground that the claim could, because of the
arguments founded on Factor X, be regarded as involving ‘the observance and
enforcement of terms of an investment agreement or authorisation as referred to
in Article VI(1)(a) or (b)’. Ecuador
asserts that no such basis for jurisdiction was ever suggested by Occidental,
whose claims were expressly limited to alleged breaches of rights conferred or
created by the treaty under art VI.1(c).
The second ground on which the tribunal rejected the second objection
was, it would seem, that art X.2 is not an exclusive definition of the
circumstances in which matters of taxation can give rise to arbitration under
art VI, and that art X.1 may be relied on in arbitration in areas outside the
three areas covered by art X.2(a), (b) and (c).
Ecuador wishes to challenge this interpretation of art X.
[10] Having held that it had jurisdiction, the
tribunal considered the merits of Occidental’s claims, apart from that based on
expropriation. It found that Occidental
was entitled to the refund of all VAT paid as a result of the importation or
local acquisition of goods or services used for the production of oil for
export, and awarded it compensation of $US 71,533,649 together with interest
totalling $US 3,541,280. It made certain
other orders (some of which Ecuador seeks to challenge, under s 68 of the
Arbitration Act 1996, as beyond the tribunal’s powers under UNCITRAL rules,
although that challenge gives rise to no issue before us).
234
THE ISSUES
[11] Before us, the issues have mirrored those
argued extensively before Aikens J. In
bare outline, Mr Greenwood QC for Occidental submits that Ecuador’s challenge
to the tribunal’s jurisdiction under s 67 raises issues upon which English
courts cannot or should not adjudicate.
First, it would require the court to enforce or interpret the terms of
the treaty, contrary to a principle stated in Maclaine Watson & Co Ltd v
Department of Trade and Industry [1989] 3 All ER 523, [1990] 2 AC 418 (the
Tin Council case). Secondly and in
any event, it would require the court to ‘adjudicate upon the transactions of
foreign sovereign states’ contrary to a wider principle of ‘judicial restraint
or abstention’ stated by Lord Wilberforce in Buttes Gas and Oil Co v Hammer (Nos
2 & 3) [1981] 3 All ER 616 at 628, [1982] AC 888 at 931. The first principle may be viewed as a
particular concretisation of the second wider principle. In support of these submissions, Mr Greenwood
suggests (though less emphatically than before the judge) that the rights and
duties in issue in the arbitration should be seen as state rights—Occidental
was in other words claiming no more than to enforce the rights which the United
States of America would have in international law against Ecuador in respect of
any breach of the treaty towards a United States national or company. But, assuming that Occidental was in the
arbitration claiming in its own right, Mr Greenwood submits that any
adjudication by an English court upon the question whether the arbitrators
acted within their jurisdiction would still depend upon the application or
interpretation of an international treaty and be impermissible. The underlying rationale of the House of
Lords authorities which, on his case, lead to this conclusion is, he submits,
judicial restraint in the national and international interests, reinforced in
the specific area of unincorporated treaties by the constitutional
consideration that it is for Parliament, and not the United Kingdom government
or the courts, to introduce new law at a domestic level. As to the need for the judicial restraint, he
submits that a decision on the scope of the matters submitted to arbitration
could involve a decision upon the scope of the rights enforceable not just by
Occidental but necessarily also by the United States, and could have
international implications.
[12] Mr Lloyd Jones QC for Ecuador submits in
response that the court is concerned with an agreement to arbitrate, arising in
a manner contemplated by the treaty but nonetheless separate from the treaty
and made between different parties, only one of them party to the treaty. English law having become the curial law of
the arbitration (albeit only as a result of a decision of the arbitrators
pursuant to the terms of the agreement to arbitrate), he submits that neither
of the principles which Mr Greenwood invokes should be understood as precluding
the English court from considering and determining an objection to the
arbitrators’ jurisdiction under s 67 of the 1996 Act, even if this would
involve construing those parts of the treaty (particularly arts VI and X, and
possibly also art III) at which it is necessary to look in order to determine
the scope of the matters falling within the scope of Ecuador’s offer to
arbitrate which Occidental accepted.
[13] With regard to the nature of the rights
pursued in the arbitration, the judge concluded that investors like Occidental
were not enforcing rights of the United States, but were given ‘the right to
pursue, in their name and for themselves, claims against the other state party’
(see [2005] 2 Lloyd’s Rep 240 at [61]).
He then held, and this was not in issue before us, that Occidental’s
235
substantive claims were governed by principles of
international law (in the same way that any claims arising between the United
States and Ecuador would be). He held
that the arbitration agreement coming into existence between Occidental and
Ecuador was likewise subject to international law. This is in issue before us, although neither
side suggests that the answer is crucial to its own case. Finally, the judge held, and it is common
ground before us, that the arbitral procedure was governed by the law of
England as the law of the place of arbitration.
Hence, the possibility of applications under the 1996 Act. Turning to the issues of justiciability, the
judge did not consider that examination by the court of Ecuador’s challenge
under s 67 to the arbitrators’ jurisdiction would ‘infringe any of the “rules”
of non-justiciability … set out by Lord Oliver’ in the Tin Council case
(see [2005] 2 Lloyd’s Rep 240 at [72]–[81]).
He accepted the distinction advanced by Mr Lloyd Jones between
adjudication upon rights operating purely at the international level and
adjudication upon international rights intended to be exercised in a tribunal
subject to control under municipal laws; and he considered that s 67 gave a
‘foothold’ in domestic law to challenge the jurisdictional ruling of the
tribunal.
THE NATURE OF THE RIGHTS TO WHICH OCCIDENTAL’S CLAIM
RELATES
[14] In support of the proposition that
Occidental was enforcing rights of the United States under the treaty, Mr
Greenwood referred us to the traditional position regarding the protection of
nationals under international law. This
was summarised by the Permanent International Court of Justice in the Case
of the Mavrommatis Palestine Concessions (1924) PCIJ Rep Series A, No 2 at
12:
‘It is an elementary
principle of international law that a State is entitled to protect its
subjects, when injured by acts contrary to international law committed by
another State, from whom they have been unable to obtain satisfaction through
the ordinary channels. By taking up the
case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality
asserting its own rights—its right to ensure, in the person of its subjects,
respect for the rules of international law.
The question, therefore,
whether the present dispute originates in an injury to a private interest,
which in point of fact is the case in many international disputes, is
irrelevant from this standpoint. Once a
State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant.’
[15] One feature of the traditional protection
is that it is up to the protecting state of the injured national whether and
how far to make it available. This was
put starkly in Re Barcelona Traction, Light and Power Co Ltd (Belgium
v Spain) (second phase) [1970] ICJ Rep 4 at 44:
‘78. The Court would
here observe that, within the limits prescribed by international law, a State
may exercise diplomatic protection by whatever means and to whatever extent it
thinks fit, for it is its own right that the State is asserting …
79. The State must be
viewed as the sole judge to decide whether its protection will be granted, to
what extent it is granted, and when it will cease. It retains in this respect a discretionary
power the exercise of which
236
may be determined by
considerations of a political or other nature, unrelated to the particular case
…’
See also Oppenheim’s International Law (9th edn,
1992) vol 1, p 934 (para 410).
[16] Bilateral investment treaties such as the
present introduce a new element, and create a ‘very different’ situation (cf
Zachary Douglas ‘The Hybrid Foundations of Investment Treaty Arbitrations’ (2003)
BYIL 151 p 169). The protection of
nationals is crystallised and in the present treaty expanded to cover every kind
of investment ‘owned or controlled directly or indirectly by nationals or
companies of the other Party’ (art 1), but the investor is given direct
standing to pursue the state of the investment in respect of any ‘investment
dispute’. An investment dispute is
defined (art VI.1) as—
‘a dispute … arising out
of or relating to (a) an investment agreement between that Party and such
national or company; (b) an investment authorisation granted by that Party’s
foreign investment authority to such national or company; or (c) an alleged
breach of any right conferred or created by this Treaty with respect to an
investment.’
Under the present treaty, a dispute may thus arise out of
or relate to (a) a commercial agreement, (b) an executive authorisation or (c)
an alleged breach of a treaty right.
Article VI(3)(a) of the present treaty provides the investor with
various ways in which to pursue an investment dispute—(i) by use of the
International Centre for the Settlement of Investment Disputes (ICSID),
provided the state is a party to the relevant convention, (ii) by use of the
Centre’s Additional Facility, if the Centre is not itself available, (iii) by
UNCITRAL arbitration, as here occurred, or (iv) by using any other arbitration
institution or rules agreed between the parties to the dispute.
[17] Where a dispute arises out of or relates
to a commercial agreement made with the investor, it would seem to us both
artificial and wrong in principle to suggest that the investor is in reality
pursuing a claim vested in his or its home state, and that the only improvement
by comparison with the traditional state protection for investors is
procedural. It would potentially
undermine the efficacy of the protection held out to individual investors, if
such protection was subject to the continuing benevolence and support of their
national state. Douglas, in the article
already cited (p 170), draws attention to arbitrations where the national state
by intervention or in submissions opposed its investor’s claims or the tribunal’s
jurisdiction to hear them: but, if the claims were the state’s, such opposition
should have been of itself fatal.
[18] In the case of a claim of type (c)—and
probably also (b)—any substantive right would have to be found in the
treaty. The treaty would have to be
regarded as conferring or creating direct rights in international law in favour
of investors either from the outset, or at least (and in this event
retrospectively) as and when they pursue claims in one of the ways provided. These alternative analyses are advanced by
Douglas (pp 182–184). The former
analysis is in our view natural and preferable, but it does not matter which
applies.
[19] That treaties may in modern international
law give rise to direct rights in favour of individuals is well established,
particularly where the treaty provides a dispute resolution mechanism capable
of being operated by such individuals acting on their own behalf and without
their national state’s
237
involvement or even consent. Oppenheim vol 1,
p 847 (para 375) put the matter in this way in 1992:
‘States can … and
occasionally do, confer upon individuals, whether their own subjects or aliens,
international rights strictu sensu, ie rights which they can acquire
without the intervention of municipal legislation and which they can enforce in
their own name before international tribunals.’
See also Oppenheim vol 1, pp 16–22 (para 7), as
well as McCorquodale ‘The Individual and the International Legal System’ in
Evans’ International Law (2003) pp 304–306.
Most frequently cited in this connection is the Permanent Court of
International Justice’s Advisory Opinion in the Jurisdiction of the Courts
of Danzig Case (1928) PCIJ Rep Series B No 15, considering the effect of a
treaty (the Beamtenabkommen) made on 22 October 1921 between
Poland and Danzig. The Beamtenabkommen
regulated the employment conditions of Danzig railway employees who had, after
the First World War, passed into the service of the Polish Railways
Administration. Poland’s contention that
this treaty only created inter-state rights was rejected. The court said (at
17–18) that:
‘It may be readily
admitted that, according to a well established principle of international law,
the Beamtenabkommen, being an international agreement, cannot, as such,
create direct rights and obligations for private individuals. But it cannot be disputed that the very
object of an international agreement, according to the intention of the
contracting Parties, may be the adoption by the Parties of some definite rules
creating individual rights and enforceable by the national courts. That there is such an intention in the
present case can be established by reference to the terms of the
Beamtenabkommen.’
The court thus looked at the intention of the states
making the treaty and held (at 23), in that light, that the Beamtenabkommen ‘constitutes
part of the provisions of the “contract of service”, that is “the series of
provisions which constitute the legal relationship between the Railways
Administration and its employees”’ and that the relevant officials could sue
the Administration direct in the Danzig courts.
In the more recent LaGrand Case (Germany v United States)
(1999) ICJ Rep 9 the International Court of Justice held that art 36(1)(b) of
the Vienna Convention on Consular Relations, requiring prison authorities to
‘inform the person concerned without delay of his rights under this
subparagraph’ creates ‘individual rights’.
By this we read the court as meaning rights of the person concerned
operating independently of and not derivative from any rights of such person’s
national state (even though that state, Germany, was invoking such rights under
the compulsory jurisdiction article of the relevant Optional Protocol). In the area of human rights a number of
treaties provide individuals with rights of access to vindicate the protection
afforded by the treaty. The European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950
(Rome, 4 November 1950; TS 71 (1953); Cmnd 8969) is thus enforceable by victims
of the breach of such rights, and ‘any person, non-governmental organisation or
group of individuals’ may seek to establish that he is a victim by bringing a
direct claim before the European Court of Human Rights in Strasbourg (cf art 34
of the convention).
[20] Turning therefore to the present treaty,
its language makes clear that injured nationals or companies are to have a
direct claim for their own benefit
238
in respect of all three types of claim specified in
(a), (b) and (c). The natural conclusion
is that all three types of claim are capable of pursuit by investors in their
own right. As Douglas puts it in
his article (p 182): ‘The fundamental assumption underlying the investment
treaty regime is clearly that the investor is bringing a cause of action based
upon the vindication of its own rights rather than those of its national
state.’ We note that this is how the
matter is also seen by the authors of a number of recent international
arbitration awards, faced with arguments relying on the Barcelona Traction
case to limit or control the protection available to investors under bilateral
investment treaties. We will not cite
all of them. But in Enron Corporation
v Argentine Republic ICSID Case No ARB/01/3 (14 January 2004, unreported)
the tribunal said that the Barcelona Traction case ‘has been held not to
be controlling in investment claims such as the present, as it deals with the
separate question of diplomatic protection in a particular setting’ (see para
38) and (at para 48) that—
‘what the State of
nationality of the investor might argue in a given case to which it is a party
cannot be held against the rights of the investor in a separate case to which
the investor is party. This is precisely
the merit of the ICSID Convention in that it overcame the deficiencies of
diplomatic protection where the investor was subject to whatever political or
legal determination the State of nationality would make in respect of its
claim.’
Similar statements appear in LG&E Energy
Corporation v Argentine Republic ICSID Case No ARB/02/1 (30 April 2004,
unreported) (para 52), in GAMI Investments Inc v Govt of the United Mexican
States (2005) 44 ILM 545 at 550 (para 30), in Camuzzi International SA v
Argentine Republic ICSID Case No ARB/03/2 (11 May 2005, unreported) (paras
138–145), where the tribunal observed that diplomatic protection (at para 145)—
‘cannot then be
considered the general rule in the system of international law presently
governing the matter, but as a residual mechanism available when the affected
individual has no direct channel in its own right’
and in Camuzzi International SA v Argentine Republic
ICSID Case No ARB/03/7 (10 June 2005, unreported) (para 44), where the tribunal
said of the Barcelona Traction case that—
‘this decision of the International
Court of Justice referred particularly to the diplomatic protection that could
be expected by the shareholders in this case, but specifying that they can
enjoy other protection, if there is a specific agreement in this regard. In this case, this is precisely the
situation. There is an applicable
international juridical agreement. This
agreement is the Treaty and according to it, Camuzzi has the right to request,
directly and immediately, the protection of its rights by accessing the
Tribunal.’
Finally, we mention Gas Natural SDG SA v Argentine
Republic ICSID Case No ARB/03/10 (17 June 2005, unreported), where the
tribunal stated (at para 34):
‘The scheme of both the
ICSID Convention and the bilateral investment treaties is that in this circumstance,
the foreign investor acquires rights under the Convention and Treaty, including
in particular the standing to initiate international arbitration.’
239
[21] Mr Greenwood relied on the decision and
reasoning of another distinguished arbitration panel (Sir Anthony Mason, Judge
Abner J Mikva and Lord Mustill) in The Loewen Group Inc v USA (2003) 42
ILM 811. Claims were made by a Canadian
company (TLGI) for discrimination by the United States contrary to art 1102 of
the North American Free Trade Agreement (NAFTA). Subsequent to the arbitration hearing on
their merits, TLGI filed for relief under Ch 11 of the United States Bankruptcy
Code, and a reorganisation plan was approved, whereby (a) immediately before TLGI
went out of business, it assigned the claims to a new Canadian corporation
(Nafcanco), (b) the rest of its business operations were then reorganised as a
new United States corporation, which owned and controlled Nafcanco. The claims were Nafcanco’s only asset and
their pursuit its only business. All of
the benefits of any award in favour of Nafcanco would have enured to the new
United States corporation (ie as Nafcanco’s parent and controller). The arbitrators held that their jurisdiction
to determine the claims before them had ceased, since the real claimant was now
a United States corporation. They
applied (at 847 (para 225) the general principle of international law, whereby
there must be ‘continuous national identity from the date of the events giving
rise to the claim … through the date of the resolution of the claim …’. They recognised (at 846 (para 223)) that
NAFTA allowed an individual investor to ‘make a claim on its own behalf and
submit the claim to international arbitration’ and (at 848 (para 229)) that ‘As
claimants have been allowed to prosecute claims in their own right more often,
provision has been made for amelioration of the strict requirement of
continuous nationality’. But they found
no such ameliorating provision in NAFTA, and they rejected (at 848 (para 233))
any resemblance between, on the one hand:
‘Rights of action under
private law aris[ing] from personal obligations (albeit they may be owed by or
to a State) brought into existence by domestic law and enforceable through
domestic tribunals and courts’
and, on the other hand:
‘NAFTA claims [which]
have a quite different character, stemming from a corner of public
international law in which, by treaty, the power of States under that law to
take international measures for the correction of wrongs done to its nationals
has been replaced by an ad hoc definition of certain kinds of wrong,
coupled with specialist means of compensation.’
The arbitrators concluded that:
‘There is no warrant for
transferring rules derived from private law into a field of international law
where claimants are permitted for convenience to enforce what are in origin the
rights of Party states.’
[22] The award on this point in the Loewen
case is controversial (cf Douglas ‘The Hybrid Foundations of Investment Treaty
Arbitrations’ (2003) BYIL 151, especially pp 175–176). But we do not, in any event, consider that
its reasoning or decision affects the proper conclusion regarding the nature of
the rights capable of pursuit by investors under the present bilateral
investment treaty. The provisions of
NAFTA, although it is a trilateral investment treaty, appear for present
purposes to be materially the same as those of the present treaty, but even the
tribunal in the Loewen case accepted that the claimant was
240
pursuing claims ‘in its own right’ and ‘on its own
behalf’. The statement that NAFTA
‘claimants are permitted for convenience to enforce what are in origin the
rights of Party states’ was said in a context where the tribunal was concerned
to emphasise that the rights (to whomsoever they belonged) remained subject to
international law principles governing continuity of nationality. It is reading too much into this compressed
language to conclude that the tribunal meant that the rights enforced remained
simply and solely the rights of the states, which claimants were being given
some form of power to enforce, as third parties or attorneys. But, if the tribunal in the Loewen
case meant to suggest that the rights conferred under a bilateral (or
multilateral) investment treaty such as the present remain of the same
character as the rights identified by the Permanent Court of International
Justice in Case of the Mavrommatis Palestine Concessions (1924) PCIJ Rep
Series A, No 2 or by the International Court of Justice in Re Barcelona
Traction, Light and Power Co Ltd (Belgium v Spain) (second
phase) [1970] ICJ Rep 4, we would respectfully disagree with its
analysis.
NON-JUSTICIABILITY
[23] We turn to the core aspect of Mr
Greenwood’s case, non-justiciability.
The wider basis on which this is asserted was identified by Lord
Wilberforce in Buttes Gas and Oil Co v Hammer (Nos 2 & 3) [1981]
3 All ER 616, [1982] AC 888. The civil
claims pursued between private individuals or concerns in that case were not
founded on any investment treaty, or even on any private law contract referring
to the provisions of any treaty. But the
defence of justification raised by Mr Hammer and Occidental as defendants (in
response to Buttes Gas’s libel claim) and Occidental’s counterclaim for
conspiracy to defraud could, on the unusual facts of that case, only have been
decided by considering a range of extremely contentious international matters:
an allegation that the Ruler of Sharjah had back-dated a decree extending his
territorial waters; a claim to sovereignty by the government of Iran made
subsequent to such decree; instructions to the ruler of Umm al Qaiwain by the
United Kingdom political agent; intervention by Her Majesty’s naval, air and
military forces then operating in the relevant area under treaty arrangements;
and further intervention by the Iranian government. In the single full speech given by Lord
Wilberforce, these issues were held to be non-justiciable, on the basis of a
general principle of English law that ‘the courts will not adjudicate upon the
transactions of foreign sovereign states’ ([1981] 3 All ER 616 at 628, [1982]
AC 888 at 931–932). This was explained
as a matter of ‘judicial restraint or abstention’ and to be ‘inherent in the
very nature of the judicial process’ (see [1981] 3 All ER 616 at 628, [1982] AC
888 at 931–932). In applying this
principle to the facts of the case, Lord Wilberforce said ([1981] 3 All ER 616
at 633, [1982] AC 888 at 938)—
‘the important
inter-state issues and/or issues of international law which would face the
court … have only to be stated to compel the conclusion that these are not
issues upon which a municipal court can pass … [T]here are … no judicial or
manageable standards by which to judge these issues, or to adopt another phrase
… the court would be in a judicial no-man’s land: the court would be asked to
review transactions in which four sovereign states were involved, which they
had brought to a precarious settlement, after diplomacy and the use of force,
and to say that at least part of these were
241
“unlawful” under
international law. I would just add …
that it is not to be assumed that these matters have now passed into history,
so that they now can be examined with safe detachment.’
We note in parenthesis that the House did not have to
address what would have happened to the libel claim, if Buttes Gas had insisted
on pursuing it, after it was held that the defence of justification was
non-justiciable—though Lord Wilberforce commented that ‘this would seem
unjust’. The injustice was avoided since
Buttes was held to its offer to abandon the libel claim in this event.
[24] In British Airways Board v Laker
Airways Ltd [1984] 3 All ER 39 at 49, [1985] AC 58 at 85–86, Lord Diplock,
with whose speech all other members of the House agreed, said that:
‘The interpretation of
treaties to which the United Kingdom is a party but the terms of which have not
either expressly or by reference been incorporated in English domestic law by
legislation is not a matter that falls within the interpretative jurisdiction
of an English court of law.’
This was however in the context of a claim that the United
States government had been in breach of treaty obligations (so that the
considerations later identified in the Buttes Gas case were potentially
in play). The case was not concerned
with a situation where the interpretation of treaty wording may be relevant to
the construction of an agreement with a private party, or with any investment
treaty. In Westland Helicopters Ltd v
Arab Organisation for Industrialisation [1995] 2 All ER 387, [1995] QB 282,
international arbitration proceedings under a joint venture agreement had led
to an award in Westland’s favour against the organisation. The award was converted into a judgment and
Westland obtained garnishee orders nisi against six London banks. Colman J was faced with a claim by an
Egyptian intervener to be the same as (or a successor to) the organisation by
virtue of domestic Egyptian laws. The
justification for such laws was in issue but was said by the intervener to lie
in an international law principle of necessity which was in turn said to be
invoked by breach by the other member states setting up the organisation of the
treaty by which it was set up. Colman J
held such issues to be non-justiciable.
[25] On the other hand, in Kuwait Airways
Corp v Iraqi Airways Co (No 3) [2002] UKHL 19, [2002] 3 All ER 209,
[2002] 2 AC 883, the House of Lords held that the principle in the Buttes
Gas case did not prevent the English courts from identifying the plain
breach of the United Nations Charter involved in Iraq’s invasion of Kuwait and
subsequent expropriation of the Kuwait civil aviation fleet. The problems of adjudication confronting the
court in the Buttes Gas case were absent, the standard to be
applied was clear and manageable and the outcome not in doubt (see [25], [113],
[125] and [146] per Lord Nicholls, Lord Steyn, Lord Hoffmann and Lord Hope of
Craighead). Lord Steyn regarded (see
[113]) the proposition that the Buttes Gas case established ‘an absolute
rule … that courts in England will not adjudicate upon acts done abroad by
virtue of sovereign authority’ as ‘too austere and unworkable an interpretation
of the Buttes case’.
[26] The narrower and more clear-cut basis on
which Mr Greenwood advances his case was stated in Maclaine Watson & Co
Ltd v Department of Trade and Industry [1989] 3 All ER 523, [1990] 2 AC
418. The International Tin Council (ITC)
was a body constituted by an international treaty not incorporated into
242
law in the United Kingdom. The ITC was also created a legal person in
the United Kingdom by art 5 of the International Tin Council (Immunities and
Privileges) Order 1972, SI 1972/120 made under the International Organisations
Act 1968. The ITC in its form as a legal
person in the United Kingdom—rather than the states who were its members and
the parties to the international treaty—was held accordingly to be the
contracting party in the contracts it had entered into with the appellant
companies. There was no basis in English
law for holding the member states liable for its debts, and, even if in
international law any such basis had existed, there would have been no basis
for enforcing such a liability in a United Kingdom court. If under international law the (unincorporated)
treaty made the ITC the agent of its members when contracting, this too was a
liability which a United Kingdom court could not enforce, if it could not be
found in the 1972 Order. A claim for the
appointment of a receiver over ITC’s assets, including any claims it might have
under the treaty to be indemnified by its members in respect of its liabilities
to the appellants, failed for similar reasons.
[27] The two main speeches, with which the
three other members of the House of Lords agreed, were delivered by Lord
Templeman and Lord Oliver. Lord Templeman’s speech stresses the inability of
United Kingdom courts to enforce unincorporated ‘treaty rights and obligations
conferred or imposed by agreement or by international law’ (see eg [1989] 3 All
ER 523 at 526, 529, [1990] 2 AC 418 at 476–477, 480), although it suggests that
such courts might look at an unincorporated treaty ‘for the purpose of
resolving any ambiguity in the meaning and effect of the Order of 1972’ (see
[1989] 3 All ER 523 at 530, [1990] 2 AC 418 at 481). Lord Oliver expressed himself more widely
([1989] 3 All ER 523 at 544–545, [1990] 2 AC 418 at 499–500):
‘It is axiomatic that
municipal courts have not and cannot have the competence to adjudicate upon or
to enforce the rights arising out of transactions entered into by independent
sovereign states between themselves on the plane of international law. That was firmly established by this House in
Cook v Sprigg [1899] AC 572 at 578 [1895–9] All ER Rep 773 at 776, and was
succinctly and convincingly expressed in the opinion of the Privy Council
delivered by Lord Kingsdown in Secretary of State in Council of India v
Kamachee Boye Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28–29:
“The transactions of independent States between each
other are governed by other laws than those which Municipal Courts administer:
such Courts have neither the means of deciding what is right, nor the power of
enforcing any decision which they may make.”
On the domestic plane,
the power of the Crown to conclude treaties with other sovereign states is an
exercise of the royal prerogative, the validity of which cannot be challenged
in municipal law: see: Blackburn v AG [1971] 2 All ER 1380, [1971] 1 WLR
1037. The Sovereign acts
“throughout the making of the treaty and in relation
to each and every of its stipulations in her sovereign character, and by her
own inherent authority; and, as in making the treaty, so in performing the
treaty, she is beyond the control of municipal law, and her acts are not to be
examined in her own Courts”
(See Rustomjee v R (1876)
2 QBD 69 at 74, per Lord Coleridge CJ.)
243
That is the first of the
underlying principles. The second is
that, as a matter of the constitutional law of the United Kingdom, 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. Quite
simply, a treaty is not part of English law unless and until it has been
incorporated into the law by legislation.
So far as individuals are concerned, it is res inter alios acta from
which they cannot derive rights and by which they cannot be deprived of rights
or subjected to obligations; and it is outside the purview of the court not
only because it is made in the conduct of foreign relations, which are a
prerogative of the Crown, but also because, as a source of rights and
obligations, it is irrelevant.’
[28] However, he continued ([1989] 3 All ER
523 at 545, [1990] 2 AC 418 at 500–501) by recognising some exceptions:
‘These propositions do
not, however, involve as a corollary that the court must never look at or
construe a treaty. Where, for instance, a
treaty is directly incorporated into English law by Act of the legislature, its
terms become subject to the interpretative jurisdiction of the court in the
same way as any other Act of the legislature.
Fothergill v Monarch Airlines Ltd [1981] 2 All ER 696, [1981] AC 251 is a recent
example. Again, it is well established
that where a statute is enacted in order to give effect to the United Kingdom’s
obligations under a treaty, the terms of the treaty may have to be considered
and, if necessary, construed in order to resolve any ambiguity or obscurity as
to the meaning or scope of the statute.
Clearly, also, where parties have entered into a domestic contract in
which they have chosen to incorporate the terms of the treaty, the court may be
called upon to interpret the treaty for the purposes of ascertaining the rights
and obligations of the parties under their contract: see, for instance, Philippson
v Imperial Airways Ltd [1939] 1 All ER 761, 1939] AC 332.
Further cases in which
the court may not only be empowered but required to adjudicate upon the meaning
or scope of the terms of an international treaty arise where domestic
legislation, although not incorporating the treaty, nevertheless requires,
either expressly or by necessary implication, resort to be had to its terms for
the purpose of construing the legislation (as in Zoernsch v Waldock [1964]
2 All ER 256, [1964] 1 WLR 675) or the very rare case in which the exercise of
the royal prerogative directly effects an extension or contraction of the jurisdiction
without the constitutional need for internal legislation, as in Post Office
v Estuary Radio Ltd [1967] 3 All ER 679, [1968] 2 QB 740.
It must be borne in
mind, furthermore, that the conclusion of an international treaty and its terms
are as much matters of fact as any other fact.
That a treaty may be referred to where it is necessary to do so as part
of the factual background against which a particular issue arises may seem a
statement of the obvious. But it is, I
think, necessary to stress that the purpose for which such reference can
legitimately be made is purely an evidential one. Which states have become parties to a treaty
and when and what the terms of the treaty are, are questions of fact. The legal results which flow from it in
international law, whether between the parties inter se
244
or between the parties
or any of them and outsiders, are not and they are not justiciable by municipal
courts.’
[29] The unenforceability in the United
Kingdom of unincorporated treaties under the reasoning in the Tin Council
case was at the heart of the further decisions of the House of Lords in
Brind v Secretary of State for the Home Dept, especially [1991] 1 All ER
720 at 723, 735, [1991] 1 AC 696 at 748, 762 per Lord Bridge and Lord Ackner
and R v Lyons [2002] UKHL 44, [2002] 4 All ER 1028, [2003] 1 AC 976,
especially at [27], [79] and [104] per Lord Hoffmann, Lord Hobhouse and Lord
Millett. Lord Hoffmann referred (at
[27]) to the Tin Council case as establishing that the English courts
‘have no jurisdiction to interpret or apply’ unincorporated international
treaties. Mr Lloyd Jones referred us to Lord Steyn’s suggestion in Re McKerr
[2004] UKHL 12 at [51], [2004] 2 All ER 409 at [51], [2004] 1 WLR 807 that
the reasoning, though not the actual decision, in the Tin Council case
would one day receive ‘comprehensive re-examination’. But, like Aikens J, we would regard any root
and branch re-examination of its reasoning as a matter for a higher court.
[30] In Brind’s case, the House again
acknowledged that reference might be made to an unincorporated treaty (in that
case the European Convention on Human Rights) to resolve an ambiguity in
English primary or secondary legislation (see [1991] 1 All ER 720 at 723, 734,
736, [1991] 1 AC 696 at 748, 760, 761, 763, per Lord Bridge, Lord Ackner and
Lord Lowry); and there are a number of modern authorities where English courts
have been assisted in one context or another in deciding upon the proper
approach under English law by having regard to treaties or principles in
international law: see eg A v Secretary of State for the Home Dept
[2004] UKHL 56 at [19], [68], [2005] 3 All ER 169 at [19], [68], [2005] 2 AC
68, per Lord Bingham; European Roma Rights Centre v Immigration Officer at
Prague Airport (United Nations High Commissioner for Refugees
intervening) [2004] UKHL 55 at [44], [45], [2005] 1 All ER 527 at
[44], [45], [2005] 2 AC 1, per Lord Steyn and per Baroness Hale at
[98]–[100]. In Kuwait Airways Corp v
Iraqi Airways Co (No 3) [2002] 3 All ER 209, [2002] 2 AC 883 a
critical feature of the House of Lords decision was the provisions of the
United Nations Charter and Security Council Resolutions; and Lord Steyn (at
[114]) rejected as ‘marching logic to its ultimate unreality’ Iraqi Airways’
submission that, because these were unincorporated, they must be disregarded.
[31] English courts are not therefore wholly
precluded from interpreting or having regard to the provisions of
unincorporated treaties. Context is
always important. Philippson v Imperial Airways Ltd [1939] 1 All ER 761,
[1939] AC 332, to which Lord Oliver referred in the Tin Council case,
was itself a case where the English courts interpreted such provisions in an
international convention in order to arrive at the meaning of a domestic law
contract for carriage by air: see per Lord Atkin ([1939] 1 All ER 761 at
765–767, [1939] AC 332 at 346–349), Lord Russell ([1939] 1 All ER 761 at 770,
[1939] AC 332 at 353) (though he found the meaning of the relevant convention
unclear, and ended up applying the domestic principle of contra proferentem)
and Lord Wright ([1939] 1 All ER 761 at 778–781, [1939] AC 332at
364–369). In Arab Monetary Fund v
Hashim (No 3) [1991] 1 All ER 871 at 880, [1991] 2 AC 114 at
166, Lord Templeman himself pointed out that ‘passages extracted and amassed
from a lengthy speech’—that of Lord Oliver in the Maclaine Watson & Co
Ltd v Department of Trade and Industry [1989] 3 All ER 523, [1990] 2 AC
418—‘deal with different issues and different facts’. The present case concerns very different
issues from those in
245
play in either the Tin Council case or AMF
v Hashim. Mr Greenwood in argument described the principles in both
Buttes Gas and Oil Co v Hammer (Nos 2 & 3) [1981] 3 All
ER 616, [1982] AC 888 and the Tin Council case as ‘carving out a small
and carefully circumscribed sphere’. We
need therefore to consider with care the proper scope and application in the
present context of general statements expressed in different contexts. In R (on the application of
Campaign for Nuclear Disarmament) v Prime Minister of the UK [2002]
EWHC 2777 (Admin) at [47], [2003] 3 LRC 335 at [47] a Divisional Court presided
over by Simon Brown LJ, identified the principle under discussion as a
principle—
‘[whereby] the court has
no jurisdiction to declare the true interpretation of an international
instrument which has not been incorporated into English domestic law and which
it is unnecessary to interpret for the purposes of determining a person’s
rights and duties under domestic law.’
The question arises whether in the present case there is a
sufficient foothold of the nature contemplated by these last words.
[32] The answer to this question can in our
view only be found by taking into account, first, the special character of a
bilateral investment treaty such as the present and, second, the agreement to
arbitrate which it is intended to facilitate and which is both recognised under
English private international law rules and (since England is the place of
arbitration) subject to the 1996 Act.
The treaty involves, on any view, a deliberate attempt to ensure for
private investors the benefits and protection of consensual arbitration; and
this is an aim to which national courts should, in an internationalist spirit
and because it has been agreed between states at an international level,
aspire to give effect—compare the reasoning of the Permanent Court of
International Justice in the Jurisdiction of the Courts of Danzig Case (1928)
PCIJ Rep Series B, No 15. The present
treaty holds out to investors on a standing basis the right ‘to choose to
consent in writing to the submission of the dispute for settlement by binding
arbitration’ in any one of four specified ways (although the fourth, as pointed
out, involves further agreement); and, once such consent is given, ‘either
party to the dispute may initiate arbitration in accordance with the choice so
specified in the consent’. The treaty
expressly goes on to provide that the consent of the relevant state ‘hereby’ to
the submission of any investment dispute for settlement by binding arbitration
in accordance with the choice specified in the relevant investor’s written
consent, together with the investor’s written consent when choosing such
arbitration, shall satisfy the requirement for written consent under the ICSID
Convention and for ‘an “agreement in writing” for purposes of Article II of the
[New York] Convention …’ and that any arbitration shall be held in a state
party to that convention. This purpose
can only be fulfilled, in a legal system with a dualist approach to
international law like the English, if the operation of the mechanism for
consensual arbitration in the treaty does in fact generate an ‘agreement in
writing’. The application of the New
York Convention depends on such an agreement, and the provisions of the 1996
Act (ss 100–104) relating to the enforcement of foreign arbitral awards give
effect to this requirement in English law.
We would not in the circumstances accept Mr Greenwood’s submission that
the consensual aspect of the arbitration contemplated in art VI of the treaty
is a matter of mere form. It must, as it
seems to us, have been intended to give rise
246
to a real consensual agreement to arbitrate, even
though by a route prescribed in the treaty.
[33] Further, as Mr Greenwood accepts, the
agreement to arbitrate which results by following the treaty route is not
itself a treaty. It is an agreement
between a private investor on the one side and the relevant state on the other. The question may then arise: under what law
is that agreement to arbitrate to be regarded as subject, applying the
principles of private international law of the English forum? Mr Lloyd Jones argues that the arbitration
agreement coming into existence between Occidental and Ecuador is subject to
Ecuadorian law (with matters of procedure being subject to the law of England
as the place of arbitration). His
proposition is that Ecuadorian law has the closest and most real connection
with any agreement to arbitrate between a United States investor and Ecuador,
while United States law would have the closest and most real connection with
any agreement to arbitrate between an Ecuadorian investor and the United States
of America. He points out that art 1(2)
of the UNCITRAL Arbitration Rules contemplates that there may be ‘provision[s]
of the law applicable to the arbitration from which the parties cannot
derogate’, and that the normal position with arbitration agreements is that
they are subject to some national law.
But, dramatic though the expansion has been in recent years in the
number of bilateral investment treaties, there is very limited authority
anywhere on the nature or effect of arbitrations under such treaties. It is common ground that English private
international law recognises an agreement to arbitrate substantive issues such
as the present according to international law cf Orion Compania Espanola de
Seguros v Belfort Maatschappij voor Algemene Verzekgringeen [1962] 2
Lloyd’s Rep 257 at 264, per Megaw J, Dicey and Morris on the Conflict of
Laws (13th edn, 2000) vol 1, p 606 (para 16-031) and Mustill and Boyd
The Law and Practice of Commercial Arbitration (2nd edn, 1989) pp 80–81,
and it is also clear that the present is such.
(The words ‘in accordance with the law’ in s 46(1)(a) and ‘the law
determined by the conflict of laws rules which it considers applicable’ in s
46(3) of the 1996 Act are capable of having this broad meaning, and s 46(1)(b)
now adds further to the flexibility of arbitration, by permitting an agreement
to arbitrate issues in accordance with other, non-legal considerations.) All this being so, we would be minded to
accept that, under English private international law principles, the agreement
to arbitrate may itself be subject to international law, as it may be subject
to foreign law. That possibility also
appears to us to have been embraced as long ago as 1962 by Megaw J in the
Orion Compania Espanola de Secguros case.
And, if one assumes that this is possible, then that is the view that we
would, like the judge, take of this particular arbitration agreement. Although it is a consensual agreement, it is
closely connected with the international treaty which contemplated its making,
and which contains the provisions defining the scope of the arbitrators’
jurisdiction. Further, the protection of
investors at which the whole scheme is aimed is likely to be better served if
the agreement to arbitrate is subject to international law, rather than to the
law of the state against which an investor is arbitrating.
[34] In the light of the preceding paragraph
we have some reservations about one aspect of the judgment of Hobhouse J in
Dallal v Bank Mellat [1986] 1 All ER 239, [1986] QB 441. In relation to the principles applicable to
consensual arbitration, he may be read as having insisted that any agreement to
arbitrate must be subject to the proper law of a municipal legal system, rather
247
than international law (see [1986] 1 All ER 239 at
250, [1986] QB 441 at 456). We note that
Mustill and Boyd does not read Hobhouse J as requiring more than that any
choice of international law to govern an agreement to arbitrate should be
express. We are however unclear why even
this should be necessary. We add that
the issue in the Dallal’s case was whether an adjudication of the
Iran-US Claims Tribunal should be recognised as a decision by ‘a court of
competent jurisdiction’ for the purposes of the principle in Henderson v
Henderson (1843) 3 Hare 100, 67 ER 313.
Hobhouse J in the event recognised it for such purposes on an
alternative basis, drawing on the analogy of a ‘statutory’ arbitration. He may on one reading still have thought it
necessary to identify some validating municipal law (see [1986] 1 All ER 239 at
252, [1986] QB 441 at 458). But he went
on to refer to authorities recognising the competence of international
tribunals established by treaty or by state acquiescence to adjudicate in other
countries upon issues affecting the nationals of, and choses in action sited
within, such states (see [1986] 1 All ER 239 at 252, [1986] QB 441 at 458–462),
and to say that ‘competence can be derived from international law and
international comity requires that the courts of England should recognise the
validity of the decisions of foreign tribunals whose competence is so derived’
(see [1986] 1 All ER 239 at 255, [1986] QB 441 at 461–462). We note that in R v Lyons [2002] 4 All
ER 1028 at [44], [2003] 1 AC 976, Dallal’s case was considered and was
treated, at least by Lord Hoffmann, as if concerned simply with a decision of a
tribunal set up under an international treaty without any municipal legal
authority. Dallal’s case was
distinguished not on the ground that decisions of the European Court of Human
Rights could not bind because, in English eyes, the court was no more than a
body set up under an international treaty, but because (a) the issues were
different and in any event (b) such decisions could not override an Act of
Parliament. If English law recognises
the binding force of a ‘quasi-statutory’ adjudication at the international
level, it is, in our view, hard to see why it should not be possible for a
state and an investor to enter into an agreement to arbitrate of the type
contemplated by the present bilateral investment treaty subject to
international law.
[35] However, if this is not possible and any
such agreement must, under English private international law, be subject to a
municipal law, then, since the present agreement was clearly intended to be
binding, it must be subject to Ecuadorian or United States law. There is no reason to doubt that it would be
valid and enforceable as intended under either or both of these laws. But, bearing in mind that it would be an
agreement by a United States investor relating to an investment in Ecuador and
to an alleged breach of duty by Ecuador towards the investor in Ecuador, we
would (on the present hypothesis) accept Mr Lloyd Jones’s submission that the
governing law would be that of Ecuador.
[36] Ultimately, however, we do not consider
that it matters what law governs the agreement to arbitrate. The strength or
otherwise of Mr Greenwood’s submissions that the English court cannot or should
not entertain a challenge to the arbitrators’ jurisdiction under s 67, because
this would involve considering, construing and applying the treaty provisions regarding
jurisdiction, cannot depend critically upon whether or not the agreement to
arbitrate is subject to international or Ecuadorian law. Even if it were generally subject to
Ecuadorian law, it would not be possible to consider,
248
construe or apply the treaty provisions regarding
jurisdiction without taking into account its international legal meaning as
between Ecuador and the United States.
[37] The question thus squarely arises whether
the principles in either Buttes Gas and Oil Co v Hammer (Nos 2 &
3) [1981] 3 All ER 616, [1982] AC 888 or Maclaine Watson & Co
Ltd v Department of Trade and Industry [1989] 3 All ER 523, [1990] 2 AC 418
preclude the English court from considering a challenge to the jurisdiction of
the arbitrators, when the determination of this challenge would involve
construing the treaty provisions by reference to which their consensual
jurisdiction is defined. Mr Greenwood
submits that nothing in the treaty itself can affect the application of such
principles. They are domestic legal
principles, not dependent upon or capable of being altered by treaty, still
less by a treaty to which the United Kingdom is not party. He submits that, since the jurisdiction of
the arbitrators is to be ascertained by examination of the treaty, any
determination of the extent of their jurisdiction will also reflect or bear on
the proper scope of the issues which the two states have agreed to discuss or
resolve between themselves under art V of the treaty and which, if no such
resolution is achieved, either state is able to refer to inter-state
arbitration under art VII. But that does
not, we think, make the subject-matter of the dispute between an investor and a
state the same as any dispute (if any) that may exist between the two
states. And, even if it does, we
consider that Mr Greenwood’s submissions fail to recognise the combined force
of the two factors mentioned in the first two sentences of para [32],
above. The case is not concerned with an
attempt to invoke at a national legal level a treaty which operates only at the
international level. It concerns a
treaty intended by its signatories to give rise to rights in favour of private
investors capable of enforcement, to an extent specified by the treaty wording,
in consensual arbitration against one or other of its signatory states. For the English court to treat the extent of
such rights as non-justiciable would appear to us to involve an extension,
rather than an application, of existing doctrines developed in different
contexts. Mr Greenwood highlights the
possibility that a state might be upset by a decision interpreting a bilateral
investment treaty, and drew our attention to a letter of protest dated 1
October 2003 by the Swiss government following SGS Société Générale de
Surveillance SA v Islamic Republic of Pakistan (2002) 8 ICSID Reports
383. But the treaty itself provides for
separate dispute resolution between a private investor and either of the states
party to it, both of whom must be taken to have been content to accept any such
risk. And the argument anyway carries
him too far. Société Générale de
Surveillance SA v Islamic Republic of Pakistan was a decision not of a
court, but of an ICSID arbitration tribunal to which the state had on any view
agreed. Further, recourse to a court,
when and if permissible, would (one hopes) be likely to correct any error in
interpretation, rather than to perpetuate or introduce one. It is not without irony that Ecuador is here
seeking (without any protest by the United States) to invoke the court’s
jurisdiction, while Occidental is resisting it.
[38] In the case of an ICSID arbitration, no
recourse to the English court is currently possible under the 1996 Act: see the
Arbitration (International Investment Disputes) Act 1966, s 3(2). The ICSID scheme also differs in having its
own enforcement mechanism, so that the New York Convention is
inapplicable. Neither of these factors
suggests to us that the English court
249
should refrain from exercising jurisdiction under s
67 in respect of an arbitration conducted under art VI.3(a)(iii) and UNCITRAL
rules.
[39] Mr Greenwood also referred us to the
provisions in the treaty for inter-state arbitration. We would agree that it is highly probable
that courts could not exercise jurisdiction over an inter-state arbitration
under art VII (because it would not be based on an agreement to arbitrate
within the meaning of the 1996 Act or of the New York Convention and/or because
of s 9(2) of the State Immunity Act 1978).
But again this has in our view no bearing on the question whether the
English court can and should exercise jurisdiction over an investor-state
arbitration under art VI.
[40] Nonetheless, we shall consider further
whether there is any basis for the principles in the Buttes Gas case and
the Tin Council case to apply having regard to the terms and effect of
the treaty and to what has taken place consequent upon it. Here, the provisions of the present treaty
between the two states contemplate and have led, as between one of the states
and an investor, to an agreement—recognised under English private international
law principles—to arbitrate a dispute which may cover the interpretation of any
aspect of the treaty, including aspects going to the arbitrators’ jurisdiction. That agreement to arbitrate, recognised under
English private international law, gives rise to rights between the parties to
it, including the right to have disputes arbitrated within its terms and not to
have disputes arbitrated which fall outside its terms.
[41] We see no good reason why any arbitration
held pursuant to such an agreement, or any supervisory role which the court of
the place of arbitration may have in relation to any such arbitration, should
be categorised as being concerned with ‘transactions between states’ so as to
invoke the principle of non-justiciability in the Buttes Gas case. No one suggests that any of such issues was
non-justiciable before the arbitrators, whether they were issues going (a) to
their jurisdiction or (b) to the substance of the investor’s claims. It is apparent that such arbitrations have
become frequent, and that the majority have led to published awards, of which
we have been shown a considerable number.
Appeals on the substance of such awards could not come before an English
court under s 69(1) of the 1996 Act except in so far as they were regarded as
raising a question of law within the meaning of that section. But it is not suggested that there is any
equivalent limitation of the issues of jurisdiction which may normally be
raised in court under s 67. If issues
regarding jurisdiction are justiciable before the arbitrators, we do not find
it easy to see why they should be regarded as non-justiciable before the
English court. It is true that, on our
preferred view, the present agreement to arbitrate was subject to international
law, and that any doctrine of non-justiciability operates, of its nature, in
domestic rather than international law (cf Banco Nacional de Cuba v
Sabbatino (1964) 376 US 398). But
the issues of jurisdiction, with which the arbitrators were entrusted, were
from a technical viewpoint issues which a court of law would also appear
qualified and able to determine.
Differing views may, perhaps, be held by some as to whether the carefully
thought out scheme of the 1996 Act now fulfils all the (it may well be,
differing) needs or desires of all who resort to English arbitration subject
potentially to the English courts’ jurisdiction under the Act. But this case is not a forum for arguing
about such matters, and it has not been argued as if it were. This case concerns not the scheme of the 1996
Act, but whether there is a general principle of non-justiciability in English
law which precludes the conventional
250
operation of the 1996 Act, for reasons of
constitutional propriety or because of wider considerations of judicial
restraint, having regard to inherent limitations in the judicial role and/or to
this country’s national and international interests.
[42] As to judicial restraint, we accept that
the resolution of the present issues of jurisdiction is not likely to be as
clear-cut as was the case with the different issues of international law in
Kuwait Airways Corp v Iraqi Airways Co (No 3) [2002] 3 All ER 209,
[2002] 2 AC 883. But nothing appears to
have been or to be likely to be involved in the resolution of the present
issues which could make them remotely comparable in difficulty of manageability
or resolution or in sensitivity to the issues in the Buttes Gas
case. It is also inherent in the treaty
itself that issues of jurisdiction involving one state will be determined in
the absence of the other, by an independent arbitration tribunal. We cannot see how the objection to their
being raised in court under s 67 can in these circumstances be said to depend
on any limitation ‘inherent in the very nature of the judicial process’. We find it equally impossible to see how the
objection could be said to raise any considerations relating to this country’s
national and international interests remotely equating to those found in the
Buttes Gas case.
[43] Mr Greenwood sought to support his
submissions on non-justiciability by reference to the decision of the
International Court of Justice in East Timor (Portugal v Australia)
(1995) ICJ Rep 90. The court there
refused, in the absence of Indonesia as a party, to entertain a claim brought
by Portugal challenging Australia’s right to conclude a treaty with Indonesia
to delimit the continental shelf in the area of the Timor Gap. Portugal’s claim was based on the proposition
that it alone remained in law the administering power in respect of East Timor,
despite the Portuguese authorities’ withdrawal from East Timor in 1975 followed
by Indonesia’s intervention in and control of East Timor since 1975. Portugal’s claim against Australia
necessarily depended upon showing that Indonesia had acquired no legal status
in respect of East Timor and that Australia and Indonesia therefore had no
right to enter into the treaty. The very
subject matter of Portugal’s claim was the lawfulness of Indonesia’s
conduct. But the court also made clear
that it was ‘not necessarily prevented from adjudicating when the judgment it
is asked to give might affect the legal interests of a State which is not party
to the case’ (see (1995) ICR Rep 90 at 104 (para 34)). Further, the position is clearly quite
different where, as here, a treaty between two states makes clear that an
investor national of one of the states may pursue direct rights against the
other, without the involvement, presence or even consent of his own national
state. Where the treaty contemplates and
provides for dispute resolution means of this nature, the principle of
international law to be found in the East Timor case cannot help in
either international or national law to identify whether or when a national
court may appropriately exercise a supervisory jurisdiction provided by the
relevant procedural law.
[44] Mr Greenwood also held out to us,
briefly, the spectre of an English court having to reconsider the correctness
of an arbitration panel’s ruling on the validity of the treaty. Although there is no such issue in this case,
in another case an issue might, he observes, arise about, say, duress or the
completion and validity of the treaty.
We leave aside the improbable nature of such an issue. Even so, we question the example of duress,
because that would appear likely only to make the treaty voidable, and so not
to affect the jurisdiction of an arbitration agreement arising from the
operation of its terms. It is, we
suspect, even conceivable that a valid agreement to arbitrate could result from
the
251
operation in good faith of the terms of a treaty
which for some reason subsequently proved not to have been validly
executed. However that may be, (a) we
are not persuaded that it would necessarily be incongruous for an English court
to reconsider even an issue of validity, if the arbitrators had done so, and
(b) if it would be incongruous, the reason could well be that, in this
particular context as opposed to the present, the principle in the Buttes
Gas case did apply.
[45] As to the narrower principle of
jurisdiction stated in the Tin Council case, Mr Lloyd Jones submits that
the present situation is on all fours with Philippson v Imperial Airways Ltd
[1939] 1 All ER 761, [1939] AC 332.
The judge did not go so far, pointing out that in Philippson’s
case there was ‘a municipal law contract’. But, as we have observed, under English
private international law, an agreement to arbitrate may be subject not merely
to English, but also to any foreign law or to public international law. The mere fact that the agreement was here
subject to international law does not seem to us to differentiate the present
case from the Philippson case.
[46] A more compelling distinction between
this case and the Philippson case is perhaps that the contract in the
Philippson case was entirely independent of the treaty, and, since
it simply incorporated treaty concepts or terms, independent of the treaty’s
validity in international law. That
brings one back to the position, already discussed, of a challenge to
jurisdiction based on a contention that the treaty was for some reason
invalid. The spectre briefly conjured up
and argued by Mr Greenwood in this regard relates to a different kind of
jurisdictional issue from the present.
The present jurisdictional issues arise under an agreement to arbitrate
which both parties to the arbitration accept to have been validly made and
implemented. The English courts, which
under the relevant English law principles of private international law
recognise the agreement, are being asked to interpret its scope in order to
give effect to the rights and duties contained in the agreement to
arbitrate. That in our view satisfies
both the essential elements of the Philippson case, and the criterion
for jurisdiction identified in R (on the application of Campaign for
Nuclear Disarmament) v Prime Minister of the UK [2003] 3 LRC 335.
[47] On no view do we regard it as a critical
distinction that one party to the present arbitration was a state,
Ecuador. Indeed, one may argue that the
presence as party to the arbitration of the state arguing (and indeed raising)
the relevant jurisdictional issues makes it easier, rather than more difficult,
to contemplate an English court ruling on the interpretation of the scope of
the arbitration provisions in the treaty.
And we consider that the fact that the states party to the treaty
deliberately chose to provide for a mechanism for dispute resolution which
invokes consensual arbitration, with its domestic legal connotations, is a
factor which should make the English court hesitate long about subjecting such
arbitration proceedings to special principles of judicial restraint developed
in relation to international transactions or treaties lacking any foundation or
incorporation in domestic law.
[48] These considerations are by themselves in
our view sufficient to decide this appeal in Ecuador’s favour. But Mr Lloyd Jones also advances two
fall-back arguments. The first is based
on evidence that, under Ecuadorian law, the treaty is self-executing, and
becomes part of Ecuadorian law—indeed at a level superior to that of any
ordinary domestic law. On that basis, he
submits that, even if the agreement to arbitrate was not itself a sufficient
justification for an
252
English court to consider the scope of the
arbitration contemplated by the treaty, the incorporation into Ecuadorian law
removed any objection. He referred to
Arab Monetary Fund v Hashim (No 3) [1991] 1 All ER 871,
[1991] 2 AC 114, where the English court was able to recognise the existence of
the Arab Monetary Fund, because it had been incorporated in the United Arab
Emirates. But matters of status and
contract are subject to different principles in private international law. If the agreement to arbitrate had been
subject to Ecuadorian law, Mr Lloyd Jones’s argument could have had force. As it is, it seems to us of no assistance to
Ecuador.
[49] Mr Lloyd Jones also suggests, with
reference to Jones v Ministry of the Interior of the Kingdom of Saudi Arabia
(Secretary of State for Constitutional Affairs intervening);
Mitchell v Al-Dali [2004] EWCA Civ 1394, [2005] QB 699, [2005] 2 WLR 808,
that it would be an infringement of the right of access to the courts under art
6 of the European Convention on Human Rights, if the issue of the arbitrators’
jurisdiction could not be raised under s 67 of the 1996 Act. We find it unnecessary to go into this very
briefly argued suggestion, which has on its face some implausibility in the
case of a state claiming to be protected in respect of its supposed human
rights.
THE JUDGE’S APPROACH AND FURTHER CONSIDERATIONS
[50] The judge took a different route to the
same conclusion. He considered, firstly,
that s 67 by itself confers on Ecuador a right to challenge the jurisdiction of
the arbitrators, and, secondly, that the exercise of considering the
arbitrators’ jurisdiction is no different in kind from that undertaken by
Hobhouse J in Dallal v Bank Mellat [1986] 1 All ER 239, [1986] QB 441.
[51] As to the first point, we would agree
with Mr Greenwood that there is a potential problem about treating s 67 as by
itself conferring a right for the purposes of satisfying the test suggested by
Simon Brown LJ in the Campaign for Nuclear Disarmament case. It is not so much that s 67 is procedural,
although Simon Brown LJ was probably focusing on substantive rights. It is rather that the prior question arises
whether s 67 is itself to be read as subject to any principle of non-justiciability,
and this question has, we think, to be answered by looking more widely than at
s 67 alone. Mr Lloyd Jones does not
suggest that s 67 is in mandatory terms, capable by themselves of overriding
any principle of non-justiciability.
Bearing in mind its use of the word ‘may’, its language could be read as
subject to such principle, particularly when s 81(1) provides that ‘Nothing in
this Part shall be construed as excluding the operation of any rule of law
consistent with the provisions of this Part …’.
So it is necessary to look beyond s 67 in order to determine whether the
principle of non-justiciability extends to prevent an English court considering
arbitrators’ jurisdiction in circumstances such as the present.
[52] Turning to the judge’s second point, in
our view Dallal’s case and later authority considering it do offer some
further support to Ecuador’s case on this appeal. It is true that Hobhouse J was not concerned
with any challenge to the jurisdiction of the Iran-United States Claims
Tribunal over the issues which it determined; and it is also true, as already
observed, that on one reading of his judgment he was concerned to find a basis
in municipal law for any recognition of that tribunal’s adjudication (cf [1986]
1 All ER 239 at 250, 252, [1986] QB 441 at 456, 458). On the other hand, he was on any view
prepared to look at unincorporated international treaties and at state conduct
or acquiescence in
253
order to determine whether to recognise the
tribunal’s competence and decision, and R v Lyons [2002] 4 All ER 1028,
[2003] 1 AC 976 throws no doubt on the legitimacy of this (cf [30]–[32],
above). Hobhouse J pointed out that, in
determining whether the tribunal’s adjudication was a decision by a ‘court of
competent jurisdiction’ for the purposes of the principle in Henderson v
Henderson, all he was doing was ‘giving effect to an English procedural
remedy in respect of a procedural complaint that is recognised by English law’
(see [1986] 1 All ER 239 at 255, [1986] QB 441 at 462). Neither judicial restraint nor the unincorporated
nature of the relevant treaty or international law prevented him doing
this. Once again, this demonstrates
that, given the right context, the English court can and will have regard to an
international treaty and general international law. As in Dallal’s case, so here Ecuador
is seeking a procedural remedy which is on its face available in respect of
proceedings over which the English courts have been given, under the 1996 Act,
a certain (albeit limited) supervisory jurisdiction. In our view, although Dallal’s case is
not direct authority on the present point, it shows that the principle of
non-justiciability is not, in any of its aspects, absolute, and need not and
should not be applied over-rigidly. We
add that the more stress is laid, as Mr Greenwood sought to do, on the
relatively formal way in which consensus to arbitrate was achieved under the
present treaty, the closer the analogy between the present arbitration and the
‘statutory’ arbitration which Hobhouse J identified in Dallal’s case.
[53] The fact that the treaty is at pains to
bring about an award capable of enforcement under the New York Convention is in
our view a still more significant factor.
The convention provides both for recognition and enforcement and, under
art V, for limited circumstances in which recognition and enforcement ‘may be
refused, at the request of the party against whom it is invoked’ if that party
provides appropriate proof of such circumstances. These include that:
‘(a) … the said
agreement is not valid under the law to which the parties have subjected it,
or, failing any indication thereon, under the law of the country where the
award was made; or …
(c) The award deals with
a difference not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the scope
of the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that
part of the award which contains decisions on matters submitted to arbitration
may be recognised and enforced; or
(d) The composition of
the arbitral authority or the arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, was not in accordance
with the law of the country where the arbitration took place …’
[54] These provisions, relating to recognition
and enforcement and to the circumstances in which the same may be refused, are
reflected in English law in s 103(1) and (2)(b), (c) and (d) and (4) of the
1996 Act. In a judgment in Dardana
Ltd v Yukos Oil Co [2002] EWCA Civ 543 at [18], [2002] 1 All ER (Comm) 819
at [18], with which the other members of the court agreed, Mance LJ rejected an
argument that the word ‘may’ in s 103(2) had a ‘permissive, purely
discretionary, or [as he saw it] arbitrary, force’. The word
254
‘may’ in that subsection must also have been intended
to reflect the corresponding word in the New York Convention.
[55] The present treaty expressly contemplated
the application of the New York Convention.
It seems to us that all concerned must be taken to have understood that
the usual grounds for opposing recognition and enforcement would apply,
including any grounds based on want or excess of jurisdiction by the arbitrators,
to which s 103 of the 1996 Act gives effect.
The wider doctrine of non-justiciability, inspired by the United States
‘political question’ doctrine and introduced into English law in Buttes Gas
and Oil Co v Hammer (Nos 2 & 3) [1981] 3 All ER 616, [1982]
AC 888, cannot be regarded as directed to or as undermining this point. The narrower doctrine, based on the principle
that international agreements do not create direct rights and obligations in
favour of private persons and recognised in English law in Maclaine Watson
& Co Ltd v Department of Trade and Industry [1989] 3 All ER 523, [1990]
2 AC 418, is well established in international law—see Jurisdiction of the
Courts of Danzig Case (1928) PCIJ Rep Series B, No 15. But that case also shows that the position is
quite different in international law where two states have deliberately agreed
to confer rights intended to be enforceable domestically on private
persons. Viewed in that context, we see
no incongruity in a conclusion that the consensual arbitration intended under
the treaty carries with it the usual procedural and supervisory remedies
provided under English law as the relevant procedural law. That being so, we do not see any sensible
basis for suggesting that there is or should be any difficulty about an English
court, in the context of an English award, determining the scope of
arbitrators’ jurisdiction under s 67 or (in the case of an application to
enforce) under s 66. It is also to be
noted that, under s 66, the English court is given no option at all but to
refuse enforcement, if ‘the person against whom it is sought to be enforced
shows that the tribunal lacked jurisdiction to make the award’. Mr Greenwood suggests valiantly that a
sensible distinction might, if necessary, be drawn between the ‘proactive’
intervention involved under s 67 and the ‘reactive’ involvement of a court
under ss 66 and 103. That would be a
quite inadequate basis for the application of what is said to be a fundamental,
or even constitutional, principle regarding non-justiciability in the one
context but not in the other. We do not
consider that anything in English law compels so unsatisfactory a
conclusion. We also note that we were shown
cases in which courts in other countries have exercised or assumed that it was
open to them to exercise equivalent supervisory power to review the
jurisdiction of arbitrators appointed under investment treaties—see eg Czech
Republic v CME Czech Republic BV (2003) 42 ILM 915, especially at 969–71
and A-G of Canada v SD Myers Inc 2004 FC 38, [2004] 3 FCR 368 (Kelen J,
Canadian Federal Court; 13 January 2004), especially at 386–387 (paras 33–35).
We were not shown any authorities to contrary effect.
[56] For completeness, we mention one further
minor point. The treaty provides, as one
of the available dispute resolution methods, recourse to the courts or
administrative tribunals of the state party to the dispute. In a country like Ecuador with a monist
system, under which the treaty was self-executing at a high constitutional level,
it would not even require legislation to enable investors, if they wished, to
pursue the state in its own courts on any of the treaty grounds. The scope of the concept of ‘investment
dispute’ in art VI and of the protection afforded by art X would then be
determined by a domestic
255
state court.
This possibility is at least to be borne in mind when considering
whether the English court should regard as non-justiciable a similar issue,
when sought to be raised (here by the state itself) on a challenge to the
jurisdiction of an arbitration panel appointed under an agreement reached as
contemplated by the third of the available dispute resolution means.
CONCLUSIONS
[57] We accept that the English principle of
non-justiciability cannot, if it applies, be ousted by consent. We are however concerned with issues
regarding its proper scope and interpretation in a novel context. The considerations which we have identified
at [51]–[56], above all militate against an understanding of that principle, in
either of its aspects, which would tend, if anything, to undermine the chosen
scheme of those involved. They reinforce
the conclusion that we would, for reasons summarised at [31]–[47], above,
anyway reach.
[58] For these reasons, we would conclude that
the judge reached the correct conclusion and would dismiss Occidental’s appeal
in respect of Aikens J’s determination of the preliminary point in favour of
Ecuador.
Appeal dismissed.
James
Wilson Barrister (NZ).
256
[2006] 2 All ER 257
R v Goldstein
R v Rimmington
R v Rimmington
[2005]
UKHL 63
CRIMINAL; Criminal Law: HUMAN RIGHTS; Expression,
Family Life, Non-retroactivity of Criminal Law, Privacy: TORTS; Nuisance
HOUSE OF LORDS
LORD
BINGHAM OF CORNHILL, LORD NICHOLLS OF BIRKENHEAD, LORD RODGER OF EARLSFERRY,
BARONESS HALE OF RICHMOND AND LORD BROWN OF EATON-UNDER-HEYWOOD
20,
21 JULY, 27 OCTOBER 2005
Criminal law – Public nuisance – Nature of offence
– Whether common law offence of public nuisance continuing to exist – Whether
offence of public nuisance infringing human rights – Human Rights Act 1998, Sch
1, Pt I, arts 7, 8, 10.
The defendants in two separate cases were each
charged with causing a public nuisance.
In one case R was charged with sending 538 separate postal packages
containing racially offensive material to different recipients. At a preparatory hearing the judge ruled that
the indictment charged R with an offence known to the law, and that the
prosecution was not an abuse of process because brought inconsistently with the
principle of legal certainty guaranteed by art 7a of the Eureopean Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998) or as infringing the rights to respect for private life and to
freedom of expression in arts 8b and 10c other than ‘in accordance with the law’ or ‘as
prescribed by law’ as required by those articles. In the other case, at a time when fears as to
public security were high, G had posted an envelope containing salt to a
friend. The inclusion of the salt was
intended to be humorous, and the friend gave unchallenged evidence at trial
that had he received the envelope he would have recognised it as a joke. However, at the sorting office some of the
salt leaked onto the hands of a postal worker who feared it might be
anthrax. The building was evacuated and
the police were called. G pleaded not
guilty, but was convicted. He appealed
against his conviction and R appealed against the judge’s ruling in the
preparatory hearing. The appeals were heard together and dismissed by the Court
of Appeal. The defendants appealed,
contending (i) that, as applied in their cases, the offence of causing a public
nuisance was too imprecisely defined, and the courts’ interpretation of it too
uncertain and unpredictable, to satisfy the requirements either of the common
law or of the convention; (ii) that as conduct formerly chargeable as the crime
of public nuisance had become the subject of express statutory provision it should be charged under the appropriate
statutory provision and not as public nuisance; and that accordingly the crime
of public nuisance had ceased to have any practical application or legal
existence. The
________________________________________
a Article 7, so far as material, is set out at
[34], below
b Article 8, so far as material, 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 …’
c Article 10, so far as material, provides: ‘(1)
Everyone has the right to freedom of expression … (2) The exercise of these
freedoms … may be subject to such … restrictions or penalties as are prescribed
by law …’
________________________________________
257
issue also arose as to what state of mind had to be
proved against a defendant to convict him of causing a public nuisance.
Held – (1) Where Parliament had defined the
ingredients of an offence, perhaps stipulating what should and should not be a
defence, and had prescribed a mode of trial and a maximum penalty, it would
ordinarily be proper, unless there was good reason for doing otherwise, that
conduct falling within that definition should be prosecuted for the statutory
offence and not for a common law offence which might or might not provide the
same defences and for which the potential penalty was unlimited. It followed that the circumstances in which,
in future, there could properly be resort to the common law crime of public
nuisance would be relatively rare. However, the courts had no power to abolish
existing offences and it was not open to the House to conclude that the common
law crime of causing a public nuisance no longer existed (see [29]–[31], [41],
[43], [52]–[54], [58], [60], below).
(2) The definition of the offence of causing a public
nuisance as the doing of an act not warranted by law or an omission to
discharge a legal duty the effect of which was to endanger the life, health,
property or comfort of the public, or to obstruct the public in the exercise or
enjoyment of rights common to all Her Majesty’s subjects was clear, precise,
adequate and based on a discernible rational principle. The principles that no one should be punished
under a law unless it was sufficiently clear and certain to enable him to know
what conduct was forbidden before he did it, and that no one should be punished
for any act which was not clearly and ascertainably punishable when the act was
done, were entirely consistent with arts 7(1), 8(2), and 10(2) of the
convention. However, to permit a
conviction of causing a public nuisance to rest on an injury caused to separate
individuals rather than on an injury suffered by the community or a significant
section of it as a whole contradicted the rationale of the offence and
perverted its nature, in convention terms changing the essential constituent
elements of the offence to the detriment of the accused. The offence did not, therefore, extend to
separate and individual telephone calls, however persistent and vexatious, and
the extension of the crime to cover postal communications, as in R’s case,
would be a further illegitimate extension (see [33], [34], [36], [37], [38],
[41], [43], [48], [58], [60], below); R v Norbury [1978] Crim LR 435 and
R v Johnson [1997] 1 WLR 367 overruled.
(3) The correct test as to the state of mind to be
proved against a defendant to convict him of causing a public nuisance was that
he was responsible for a nuisance which he knew, or ought to have known (because
the means of knowledge were available to him), would be the consequence of what
he did or omitted to do. That test had,
however, to be applied to the correct facts.
In G’s case, it had not been proved against him that he knew or
reasonably should have known (because the means of knowledge were available to
him) that the salt would escape in the sorting office or in the course of
post. Accordingly, the appeals would be
allowed (see [39], [40], [41],[43], [56]–[58], [60], below); R v Shorrock
[1993] 3 All ER 917 applied.
Decision of the Court of Appeal [2004] 2 All ER 589
reversed.
Notes
For the convention requirement that offences be clearly
defined, the convention right to respect for private life and the convention
right to freedom of expression,
258
see 8(2) Halsbury’s Laws (4th edn reissue) paras
148–150, 158, and for the common law offence of public nuisance, see 34 Halsbury’s
Laws (4th edn reissue) paras 5,6.
For the Human Rights Act 1998, Sch 1, Pt I, arts 7,
8, 10, see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 706, 707.
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Kokkinakis v Greece (1994)
17 EHRR 397, [1993] ECHR 14307/88, ECt HR.
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R v Adler [1964]
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R v Clark (Mark)
[2003] EWCA Crim 991, [2003] 2 Cr App R 363.
R v Clark [1963]
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R v Crawley
(1862) 3 F & F 108, 176 ER 49.
R v Eskdale
[2001] EWCA Crim 1159, [2002] 1 Cr App R (S) 118.
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R v Jarvis (1862)
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3 All ER 155, [1975] 1 WLR 1379, CA.
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R v Ong [2001] 1
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R v Soul (1980)
70 Cr App R 295, CA.
R v Stephens
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259
R v Stevenson
(1862) 3 F & F 106, 176 ER 48.
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(1815) 4 M & S 73.
R v White (1757)
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O’Callaghan (Trustees for St Joseph’s Society for Foreign Missions)
[1940] 3 All ER 349, [1940] AC 880, HL.
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1 QB 918, [1895–9] All ER Rep 1167, DC.
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2 Sim NS 133, 61 ER 291.
Sunday Times v UK (1979)
2 EHRR 245, [1979] ECHR 6538/74, ECt HR.
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1 EHRR 737, [1976] ECHR 5493/72, ECt HR.
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260
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Appeals
R v Goldstein
The defendant, Harry Chaim Goldstein, appealed with leave
of the House of Lords Appeal Committee given on 1 April 2004 from the decision
of the Court of Appeal (Latham LJ, Moses J and Sir Edwin Jowitt) on 28 November
2003 ([2003] EWCA Crim 3450, [2004] 2 All ER 589) dismissing his appeal against
his conviction in the Crown Court at Southwark on 3 October 2002 following a
trial before Judge Fingret and a jury of an offence of causing a public
nuisance by posting or causing to be posted an envelope containing salt to Unit
36, Northend Road, Wembley. The Court of
Appeal certified that a point of law of general public importance was involved
in the decision namely (i) Is the mens rea requirement of the common law
offence of causing a public nuisance satisfied by proving that the defendant
either knew or ought to have known, in the sense that the means of knowledge
were available to him, that there was a real risk that the consequence of his
actions could be to create the sort of nuisance that in fact occurred (as per
R v Shorrock [1993] 3 All ER 917).
(ii) If not, what is the mens rea?
(iii) Is the offence of causing a public nuisance as currently defined
compatible with arts 7, 8 and 10 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms 1950, or does the question of
compatibility fall to be decided on the facts of the particular public nuisance
alleged to have been caused? (iv) If the
latter, is it for the jury or the judge alone to decide the issue of
compatibility. The facts are set out in
the opinion of Lord Bingham of Cornhill.
R v Rimmington
Anthony Rimmington appealed with leave of the House of
Lords Appeal Committee given on 1 April 2004 from the decision of the Court of
Appeal (Latham LJ, Moses J and Sir Edwin Jowitt) on 28 November 2003 ([2003]
EWCA Crim 3450, [2004] 2 All ER 589) dismissing his appeal against the
preliminary ruling of Leveson J at the Central Criminal Court on 3 September
2002 that the indictment he faced, of causing a nuisance to the public between
25 May and 13 June 2001 by sending 538 postal packages containing racially
offensive material, charged him with an offence known to the common law and
that its prosecution did not amount to an abuse of process. The Court of Appeal certified that a point of
law of general public importance was involved in the decision namely (i) Is the
mens rea requirement of the common law offence of causing a public nuisance
satisfied by proving that the defendant either knew or ought to have known, in
the sense that the means of knowledge were available to him, that there was a
real risk that the consequence of his actions could be to create the sort of
nuisance that in fact occurred (as per R v Shorrock [1993] 3 All ER
917). (ii) If not, what is the mens
rea? (iii) Is the offence of causing a
public nuisance as currently defined compatible with arts 7, 8 and 10 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950, or does the question of compatibility fall to be decided on the facts of
the particular public nuisance alleged to have been caused? (iv) If the latter, is it for the jury or the
261
judge alone to decide the issue of compatibility. The facts are set out in the opinion of Lord
Bingham of Cornhill.
James Guthrie QC
and Bernard Eaton (instructed by Coninghams, Twickenham) for
Rimmington.
Jonathan Goldberg QC
and Gary Grant (instructed by Barker Gillette) for Goldstein.
David Perry and
Mark Rainsford (instructed by the Crown Prosecution Service) for the
Crown in Rimmington’s case.
David Perry and
Tracy Ayling (instructed by the Crown Prosecution Service) for the
Crown in Goldstein’s case.
Their Lordships took time for consideration.
27 October 2005.
The following opinions were delivered.
LORD BINGHAM OF CORNHILL.
[1] My Lords, these appeals, heard together,
raise important and difficult questions concerning the definition and
ingredients, today, of the common law crime of causing a public nuisance. The appellants contend that, as applied in
their cases, the offence is too imprecisely defined, and the courts’
interpretation of it too uncertain and unpredictable, to satisfy the
requirements either of the common law or of the European Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1
to the Human Rights Act 1998). A
question also arises on the mens rea which must be proved to establish the
offence.
[2] The facts of the two cases are quite
different. Mr Rimmington was charged in
an indictment containing a single count of public nuisance, contrary to common
law. The particulars were that he—
‘between the 25th day of
May 1992 and the 13th day of June 2001, caused a nuisance to the public, namely
by sending 538 separate postal packages, as detailed in the schedule …
containing racially offensive material to members of the public selected by
reason of their perceived ethnicity or for their support for such a group or
randomly selected in an attempt to gain support for his views, the effect of
which was to cause annoyance, harassment, alarm and/or distress.’
No evidence has yet been called or facts formally
admitted, but it is not effectively in dispute that Mr Rimmington sent the
packages listed in the schedule to the identified recipients, some of them prominent
public figures, between the dates specified.
The communications were strongly racist in content, crude, coarse,
insulting and in some instances threatening and arguably obscene. When arrested in June 2001 Mr Rimmington
suggested that his campaign had been prompted by a racially-motivated assault
upon him by a black male in 1992: he had decided to retaliate by causing ‘them’
mental anguish. The indictment preferred
against him was challenged at the Central Criminal Court before Leveson J, who
held a preparatory hearing under s 29 of the Criminal Procedure and
Investigations Act 1996 to resolve the issues of law raised by the
defence. He ruled that the indictment
charged Mr Rimmington with an offence known to the law and that the prosecution
was not an abuse of process because brought inconsistently with arts 7, 8 or 10
of the convention. Mr Rimmington’s
appeal to the Court of Appeal (Criminal Division) against that decision was
heard by
262
Latham LJ, Moses J and Sir Edwin Jowitt with that of Mr
Goldstein, and was dismissed ([2003] EWCA Crim 3450, [2004] 2 All ER 589,
[2004] 1 WLR 2878).
[3] In the proceedings against Mr Rimmington
so far, he has been anonymised as ‘R’ in the title of the case. Where a preparatory hearing is likely to be
followed by a substantive trial and there is a risk that the trial may be
prejudiced by reporting of the preparatory hearing, there may be very good
reason to defer full reporting of the preparatory hearing, as is recognised by
s 37 of the 1996 Act. But there is no
statutory warrant for withholding the name of a defendant (see s 37(9)), and in
the present case there is no reason why reporting should be restricted. I would accordingly order under s 37(5) of
the Act that sub-s (1) shall not apply to this appeal. There should be no resort to anonymity in
criminal cases without good reason and statutory authority.
[4] Mr Goldstein was charged in an indictment
containing one count of public nuisance contrary to common law. The particulars were that he—
‘between the 16th day of
October 2001 and the 20th day of October 2001 caused a nuisance to the public
by posting or causing to be posted, an envelope containing salt to Unit 36,
Northend Road, Wembley.’
Mr Goldstein, an ultra-orthodox Jew, is a supplier of
kosher foods in Manchester. He bought
supplies from the company of an old friend in London, Mr Abraham Ehrlich, with
whom he had a bantering relationship. Mr
Goldstein owed Mr Ehrlich a significant sum of money, which the latter had
pressed him to pay. Mr Goldstein
accordingly put the cheque in an envelope (addressed to Ibrahim Ehrlich) and
included in the envelope a small quantity of salt. This was done in recognition of the age of
the debt, salt being commonly used to preserve kosher food, and by way of
reference to the very serious anthrax scare in New York following the events of
11 September 2001, which both men had discussed on the telephone shortly
before. The inclusion of the salt was
intended to be humorous, and Mr Ehrlich gave unchallenged evidence at trial
that had he received the envelope he would have recognised it as a joke. But the envelope did not reach him. In the course of sorting at the Wembley
sorting office some of the salt leaked onto the hands of a postal worker who
understandably feared it might be anthrax and raised the alarm. The building, in which some 110 people
worked, was evacuated for about an hour, the second delivery for that day was
cancelled and the police were called. On
inspecting the envelope the police were satisfied that the substance was
salt. Mr Goldstein pleaded not guilty
before a judge (Judge Fingret) and jury in the Crown Court at Southwark but on
3 October 2002 he was convicted. He was sentenced
to a community punishment order of 140 hours, and ordered to pay £500
compensation and £1,850 towards the costs of the prosecution. His appeal against conviction was heard and
dismissed with that of Mr Rimmington.
NUISANCE
[5] The origins and nature of nuisance have
been the subject of detailed scholarly research which need not for present
purposes be rehearsed: see Winfield ‘Nuisance as a Tort’ (1932) 4 CLJ 189, FH
Newark ‘The Boundaries of Nuisance’ (1949) 65 LQR 480, J Loengard ‘The Assize
of Nuisance: Origins of an Action at Common Law’ [1978] CLJ 144. It seems clear that what we would now call
the tort of private nuisance, recognised in the Assize of Nuisance, provided a
remedy complementary to that provided by the Assize of Novel Disseisin. As Holdsworth succinctly puts it (A
History of English Law (5th edn, 1942) vol III,
263
p 11): ‘The novel disseisin was directed to secure an
undisturbed possession: the assize of nuisance to secure its free
enjoyment.’ By the fifteenth century an
action on the case for private nuisance was recognised. Thus the action for private nuisance was
developed to protect the right of an occupier of land to enjoy it without
substantial and unreasonable interference.
This has remained the cardinal feature of the tort, as recently affirmed
by the House in Hunter v Canary Wharf Ltd, Hunter v London Docklands
Development Corp [1997] 2 All ER 426, [1997] AC 655. The interference complained of may take any
one of many different forms. What gives
the tort its unifying feature (see Fleming The Law of Torts (9th edn,
1998) p 457) is the general type of harm caused, interference with the
beneficial occupation and enjoyment of land, not the particular conduct causing
it.
[6] It became clear over time that there were
some acts and omissions which were socially objectionable but could not found
an action in private nuisance because the injury was suffered by the local
community as a whole rather than by individual victims and because members of
the public suffered injury to their rights as such rather than as private
owners or occupiers of land. Interference
with the use of a public highway or a public navigable river provides the best
and most typical example. Conduct of
this kind came to be treated as criminal and punishable as such. In an unpoliced and unregulated society, in
which local government was rudimentary or non-existent, common nuisance, as the
offence was known, came to be (in the words of JR Spencer ‘Public Nuisance—A
Critical Examination’ [1989] CLJ 55, p 59) ‘a rag-bag of odds and ends which we
should nowadays call “public welfare offences”’. But central to the content of the crime was
the suffering of common injury by members of the public by interference with
rights enjoyed by them as such. I shall,
to avoid wearisome repetition, refer to this feature in this opinion as ‘the
requirement of common injury’.
[7] Unusually, perhaps, conduct which could
found a criminal prosecution for causing a common nuisance could also found a
civil action in tort. Since, in the
ordinary way, no individual member of the public had any better ground for
action than any other member of the public, the Attorney General assumed the
role of plaintiff, acting on the relation of the community which had
suffered. This was attractive, since he
could seek an injunction and the abatement of the nuisance was usually the
object most desired: see Spencer, pp 66–73.
It was, however, held by Fitzherbert J, as early as 1536 (YB 27 Hy VIII
Mich pl 10) that a member of the public could sue for a common or public
nuisance if he could show that he had suffered particular damage over and above
the ordinary damage suffered by the public at large. To the present day, causing a public nuisance
has been treated as both a crime and a tort, the ingredients of each being the
same.
THE CRIME OF PUBLIC NUISANCE
[8] The House was very helpfully referred to a
number of authoritative statements on and definitions of the crime of public
nuisance. The earliest of these was
Hawkins A Treatise of the Pleas of the Crown (1716) Bk 1, Ch LXXV, where
he raised as a first question ‘What shall be said to be a Common Nuisance’, and
began his answer:
‘Sect. 1. As to the first point it seems, That a Common
Nuisance may be defined to be an Offence against the Publick, either by doing a
Thing which tends to the Annoyance of all the King’s Subjects, or by neglecting
to do a Thing which the common Good requires.
264
Sect. 2. But Annoyances to the Interests of particular
Persons are not punishable by a public Prosecution as Common Nuisances, but are
left to be redressed by the private Actions of the Parties aggrieved by them.’
He gave examples.
In his Commentaries on the Laws of England (1768) Bk III, Ch 13,
p 216 Blackstone distinguished between public or common nuisances, ‘which
affect the public, and are annoyance to all the king’s subjects’ and
private nuisances, which he defined as ‘any thing done to the hurt or annoyance
of the lands, tenements, or hereditaments of another’. In Book IV ((1769) Ch 13, p 167) he explained
further:
‘common nuisances are
such inconvenient or troublesome offences, as annoy the whole community in
general, and not merely some particular person; and therefore are indictable
only, and not actionable; as it would be unreasonable to multiply suits, by
giving every man a separate right of action, for what damnifies him in common
only with the rest of his fellow-subjects.’
[9] In 1822, in the first edition of his
long-lived work then called A Summary of the Law Relative to Pleading and
Evidence in Criminal Cases, JF Archbold published a precedent of an
indictment for carrying on an offensive trade.
The requirement of common injury (as I have called it) was recognised in
the particulars:
‘to the great damage and
common nuisance of all the liege subjects of our said lord the King there
inhabiting, being, and residing, and going, returning, and passing through the
said streets and highways …’
He referred to such other common nuisances as using a shop
in a public market as a slaughterhouse, erecting a manufactory for hartshorn,
erecting a privy near the highway, placing putrid carrion near the highway,
keeping hogs near a public street and feeding them with offal, keeping a fierce
and unruly bull in a field through which there was a footway, keeping a
ferocious dog unmuzzled and baiting a bull in the King’s highway. He went on to deal with such common nuisances
as keeping a disorderly house and a common gaming house, although these became
statutory offences the same year (3 Geo IV, Cap CXIV).
[10] It seems likely that the draftsman of s
268 in Ch XIV of the Indian Penal Code (Act XLV of 1860) intended to summarise
the English common law on public nuisance as then understood:
‘A person is guilty of a
public nuisance who does any act or is guilty of an illegal omission which
causes any common injury, danger or annoyance to the public or to the people in
general who dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may have occasion
to use any public right.’
In the draft Code annexed to their Report by the Criminal
Code Bill Commissioners in 1879, the following proposals were made:
‘Section 150
Common nuisance defined
A common nuisance is an
unlawful act or omission to discharge a legal duty, which act or omission
endangers the lives safety health property or
265
comfort of the public,
or by which the public are obstructed in the exercise or enjoyment of any right
common to all Her Majesty’s subjects.
Section 151
What common nuisances are
offences
Every one shall be
guilty of an indictable offence, and shall be liable upon conviction thereof to
one year’s imprisonment, who commits any common nuisance which endangers the
lives safety or health of the public, or which injures the person of any
individual.
Section 152
When a common nuisance is
not to be deemed criminal
Any one convicted upon
any indictment or information for any common nuisance other than those
mentioned in the preceding section shall not be deemed to have committed a
criminal offence; but all such proceedings or judgments may be taken and had as
heretofore to abate or remedy the mischief done by such nuisance to the public
right.’
In A Digest of the Criminal Law (1877) Ch XIX, p
108, Sir James Stephen defined a common nuisance as—
‘an act not warranted by
law or an omission to discharge a legal duty, which act or omission obstructs
or causes inconvenience or damage to the public in the exercise of rights
common to all Her Majesty’s subjects.’
In the eighth and ninth editions of the work, published in
1947 and 1950 respectively, this definition remained unchanged. The definition to be found in para 31-40 of
the 2005 edition of Archbold’s Criminal Pleading, Evidence and Practice (pp
2609–2610), save in its reference to morals, reflects the effect of these
definitions:
‘A person is guilty of a
public nuisance (also known as common nuisance), who (a) does an act not
warranted by law, or (b) omits to discharge a legal duty, if the effect of the
act or omission is to endanger the life, health, property, morals, or comfort
of the public, or to obstruct the public in the exercise or enjoyment of rights
common to all Her Majesty’s subjects.’
[11] In a number of countries where the law
has derived from English sources, an offence of common or public nuisance,
having characteristics similar to those defined above, is to be found. Thus in Canada, where common law offences
have been abolished, s 180 of the Criminal Code now provides:
‘(1) Every one who
commits a common nuisance and thereby (a) endangers the lives, safety or health
of the public, or (b) causes physical injury to any person, is guilty of an
indictable offence and liable to imprisonment for a term not exceeding two
years.
(2) For the purposes of
this section, every one commits a common nuisance who does an unlawful act or
fails to discharge a legal duty and thereby (a) endangers the lives, safety,
health, property or comfort of the public; or (b) obstructs the public in the
exercise or enjoyment of any right that is common to all the subjects of Her
Majesty in Canada.’
266
Section 230 of the Queensland Criminal Code provides:
‘Common nuisances.—Any
person who—(a) without lawful justification or excuse, the proof of which lies
on the person, does any act, or omits to do any act with respect to any
property under the person’s control, by which act or omission danger is caused
to the lives, safety, or health, of the public; or (b) without lawful
justification or excuse, the proof of which lies on the person, does any act,
or omits to do any act with respect to any property under the person’s control,
by which act or omission danger is caused to the property or comfort of the
public, or the public are obstructed in the exercise or enjoyment of any right
common to all Her Majesty’s subjects, and by which injury is caused to the
person of some person; is guilty of a misdemeanour, and is liable to
imprisonment for 2 years.’
To similar effect is s 140 of the Tasmanian Criminal Code
Act 1924:
‘Common nuisance
defined.—(1) A common nuisance is an unlawful act or an omission to
discharge a legal duty, such act or omission being one which endangers the
lives, safety, health, property, or comfort of the public, or by which the
public are obstructed in the exercise or enjoyment of any right common to all
His Majesty’s subjects.
(2) For the purposes of
this section the comfort of the public shall be deemed to be affected by any
pollution of the environment within the meaning of the Environmental
Management and Pollution Control Act 1994.’
[12] All of the foregoing definitions, as I
read them, treat the requirement of common injury as a, perhaps the,
distinguishing feature of this offence.
THE AUTHORITIES: (1)
[13] There are many authorities on this
subject, and it is necessary to be selective.
In R v White (1757) 1 Burr 333, 97 ER 338 the nuisance to ‘all
the King’s liege subjects’ living in Twickenham and travelling and passing the
King’s highway was impregnating the air with ‘noisome and offensive stinks and
smells’. Each defendant, on undertaking
to avoid repetition, was fined 6s 8d. A
mother of a young child who took him through a public street well knowing that
the child suffered from the contagious, infectious and dangerous disease of
smallpox, was convicted and sentenced to three months’ imprisonment in the
custody of the marshal: see R v Vantandillo (1815) 4 M & S 73. The defendant in R v Moore (1832) 3 B
& Ad 184, 110 ER 68 ran a rifle range in Bayswater where customers shot at
pigeons, causing a crowd to assemble outside and in neighbouring fields to
shoot at the pigeons which escaped, causing noise, damage, disturbance and
mischief. On conviction the defendant
undertook to discontinue the shooting and no penalty was imposed. R v Medley (1834) 6 C & P 292,
[1824–34] All ER Rep 123 arose from pollution of the River Thames. Denman CJ directed the jury that the
ignorance of the directors was no defence if they had authorised a manager to
conduct the works, and they were each fined £25. In Soltau v De Held (1851) 2 Sim NS
133 at 142–143, 61 ER 291 at 295, Kindersley V-C said:
‘I conceive that, to
constitute a public nuisance, the thing must be such as, in its nature or its
consequences, is a nuisance—an injury or a damage, to all persons who come
within the sphere of its operation, though it may be so in a greater degree to
some, than it is to others.’
267
R v Henson (1852) Dears CC 24, 169 ER 621 involved
a mare which, like the child in R v Vantandillo, was infected with a
‘contagious, infectious and dangerous disease’.
The defendant, having brought the mare on to the highway with knowledge
of its condition, was convicted of causing a common nuisance.
[14] The House was referred to R v
Stevenson (1862) 3 F & F 106, 176 ER 48, which concerned the exposing
for sale of unfit meat. Similar
authorities concern the bringing to market of unfit meat (R v Jarvis
(1862) 3 F & F 108, 176 ER 49) and the sending to a meat salesman of meat
unfit for human consumption (R v Crawley (1862) 3 F & F 108, 176 ER
49). It is not entirely clear that these
offences were charged as common nuisances at common law. But it is clear that knowledge of the
unfitness of the meat, or its intended sale for human consumption, was treated
as an ingredient of the offences.
[15] The issue in R v Stephens (1866)
LR 1 QB 702, [1861–73] All ER Rep Ext 2059 was whether the owner of a slate
quarry was answerable for a public nuisance caused by his workmen without his
knowledge and contrary to his general orders.
The jury had convicted. The case
is important for the observations of Mellor J ((1866) LR 1 QB 702 at 708–709,
[1861–73] All ER Rep Ext 2059 at 2060):
‘It is quite true that
this in point of form is a proceeding of a criminal nature, but in substance I
think it is in the nature of a civil proceeding, and I can see no reason why a
different rule should prevail with regard to such an act as is charged in this
indictment between proceedings which are civil and proceedings which are
criminal. I think there may be nuisances
of such a character that the rule I am applying here, would not be applicable
to them, but here it is perfectly clear that the only reason for proceeding
criminally is that the nuisance, instead of being merely a nuisance affecting
an individual, or one or two individuals, affects the public at large, and no
private individual, without receiving some special injury, could have
maintained an action. Then if the
contention of those who say the direction is wrong is to prevail, the public
would have great difficulty in getting redress.
The object of this indictment is to prevent the recurrence of the
nuisance. The prosecutor cannot proceed
by action, but must proceed by indictment, and if this were strictly a criminal
proceeding the prosecution would be met with the objection that there was no
mens rea: that the indictment charged the defendant with a criminal offence,
when in reality there was no proof that the defendant knew of the act, or that
he himself gave orders to his servants to do the particular act he is charged
with; still at the same time it is perfectly clear that the defendant finds the
capital, and carries on the business which causes the nuisance, and it is
carried on for his benefit; although from age or infirmity the defendant is
unable to go to the premises, the business is carried on for him by his sons,
or at all events by his agents. Under
these circumstances the defendant must necessarily give to his servants or
agents all the authority that is incident to the carrying on of the
business. It is not because he had at
some time or other given directions that it should be carried on so as not to
allow the refuse from the works to fall into the river, and desired his
servants to provide some other place for depositing it, that when it has fallen
into the river, and has become prejudicial to the public, he can say he is not
liable on an indictment for a nuisance caused by the acts of his servants. It appears to me that all it was necessary to
prove is, that the nuisance was caused in the carrying on of the works of the
quarry.’
268
Blackburn J, who had presided at the trial, agreed. He said ((1866) LR 1 QB 702 at 710, [1861–73]
All ER Rep Ext 2059 at 2061):
‘All that it is
necessary to say is this, that where a person maintains works by his capital,
and employs servants, and so carries on the works as in fact to cause a
nuisance to a private right, for which an action would lie, if the same
nuisance inflicts an injury upon a public right the remedy for which would be
by indictment, the evidence which would maintain the action would also support
the indictment. That is all that it was
necessary to decide and all that is decided.’
Thus the overlap between the criminal offence and the
civil tort was affirmed, and this fact was relied on to justify a strict
approach to the ordinary requirement of mens rea.
[16] This strict approach was acknowledged by
Wright J in Sherras v De Rutzen [1895] 1 QB 918 at 922, [1895–9] All ER
Rep 1167 at 1170. Usually cited for its
reference to the presumption that mens rea is an essential ingredient in every
offence, this passage continues with a discussion of various exceptions where
the presumption does not apply (footnotes omitted):
‘Another class
comprehends some, and perhaps all, public nuisances: R v Stephens where
the employer was held liable on indictment for a nuisance caused by workmen
without his knowledge and contrary to his orders; and so in R v Medley
and [Barnes v Akroyd (1872) LR 7 QB 474]. Lastly, there may be cases in which, although
the proceeding is criminal in form, it is really only a summary mode of
enforcing a civil right: see per Williams and Willes JJ. in [Morden v Porter
(1860) 7 CBNS 641, 141 ER 967], as to unintentional trespass in pursuit of
game; [Lee v Simpson (1847) 3 CB 871, 136 ER 349], as to unconscious
dramatic piracy; and [Hargreaves v Diddams (1875) LR 10 QB 582], as to a
bona fide belief in a legally impossible right to fish.’
[17] The next case which must be mentioned, Sedleigh-Denfield
v O’Callaghan (Trustees for St Joseph’s Society for Foreign Missions)
[1940] 3 All ER 349, [1940] AC 880, was a case of private nuisance, concerned
with the liability of an owner for continuing a nuisance originally caused,
without his knowledge, by a trespasser.
Viscount Maugham opined ([1940] 3 All ER 349 at 353, [1940] AC 880 at
887):
‘All that is necessary
in such a case is to show that the owner or occupier of the land with such a
possible cause of nuisance upon it knows of it, or must be taken to know of
it. An absentee owner, or an occupier
oblivious of what is happening under his eyes, is in no better position than
the man who looks after his property …’
Lord Wright ([1940] 3 All ER 349 at 365, [1940] AC 880 at
904) formulated what has come to be accepted as the test:
‘Though the rule has not
been laid down by this House, it has, I think, been rightly established in the
Court of Appeal that an occupier is not prima facie responsible for a
nuisance created without his knowledge and consent. If he is to be liable, a further condition is
necessary—namely, that he had knowledge, or means of knowledge, that he knew,
or should have known, of the nuisance in time to correct it and obviate its
mischievous effects. The liability for a
nuisance is not, at least in modern law, a strict or absolute liability.’
269
[18] The leading modern authority on public
nuisance is A-G (ex rel Glamorgan CC and Pontardawe RDC) v PYA
Quarries Ltd [1957] 1 All ER 894, [1957] 2 QB 169. This was a civil action brought by the
Attorney General on the relation of the Glamorgan County Council and the
Pontardawe Rural District Council to restrain a nuisance by quarrying
activities which were said to project stones and splinters into the
neighbourhood, and cause dust and vibrations.
It was argued for the company on appeal that there might have been a
private nuisance affecting some of the residents, but not a public nuisance
affecting all Her Majesty’s liege subjects living in the area. In his judgment Romer LJ reviewed the
authorities in detail and concluded ([1957] 1 All ER 894 at 902, [1957] 2 QB
169 at 184):
‘I do not propose to
attempt a more precise definition of a public nuisance than those which emerge
from the text-books and authorities to which I have referred. It is, however, clear, in my opinion, that
any nuisance is “public” which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects. The sphere of the nuisance may be described
generally as “the neighbourhood”; but the question whether the local community
within that sphere comprises a sufficient number of persons to constitute a
class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove
that every member of the class has been injuriously affected; it is sufficient
to show that a representative cross-section of the class has been so affected
for an injunction to issue.’
Denning LJ agreed.
He differentiated between public and private nuisance on conventional
grounds:
‘The classic statement
of the difference is that a public nuisance affects Her Majesty’s subjects
generally, whereas a private nuisance only affects particular
individuals.’ (See [1957] 1 All ER 894
at 908, [1957] 2 QB 169 at 190.)
He went on to say—
‘that a public nuisance
is a nuisance which is so widespread in its range or so indiscriminate in its
effect that it would not be reasonable to expect one person to take proceedings
on his own responsibility to put a stop to it, but that it should be taken on
the responsibility of the community at large.’
(See [1957] 1 All ER 894 at 908, [1957] 2 QB 169 at 191.)
[19] In R v Madden [1975] 3 All ER 155,
[1975] 1 WLR 1379 the defendant made a hoax bomb call by telephone to a steel
works. The message was received by a
telephonist, who informed the engineer and also the police. The police informed the chief security
officer of the works, who caused eight security men to carry out a search. This lasted for just over an hour before the
telephone call was found to be a hoax.
The defendant was convicted at trial but succeeded on appeal, because
the recorder had directed the jury to consider potential and not actual danger
and discomfort, and because the requirement of common injury was not met. Giving the judgment of the court, James LJ
said ([1975] 3 All ER 155 at 157–158, [1975] 1 WLR 1379 at 1383):
‘It is, in our view,
still an offence known to the law of this country to commit a public
nuisance. A person who makes a bogus
telephone call falsely giving information as to the presence of explosives may,
in our view,
270
if there is evidence, be
shown to have committed an offence of public nuisance. In this particular case the conviction must be
quashed on two grounds. First, the
directions which the learned recorder was persuaded by the Crown to give to the
jury were not right in that those directions invited the jury to consider the
potential danger to the public rather than the actual danger; or the potential
risk to the comfort of the public as distinct from the actual risk to the
comfort of the public. Secondly, on the
evidence which I have recited, it was not possible for a jury, properly directed,
to have arrived at the conclusion that a considerable number of persons were
affected by the action of the appellant.
It is quite clear that for a public nuisance to be proved, it must be
proved by the Crown that the public, which means a considerable number of
persons or a section of the public, was affected, as distinct from individual
persons.’
(The first of these grounds would seem hard to reconcile
with the decisions in R v Vantandillo and R v Henson.)
[20] The decision of the Court of Appeal (Criminal
Division) in R v Soul (1980) 70 Cr App R 295 is not easy to
explain. The appellant, who had agreed
with others to secure the unlawful release of a restricted Broadmoor patient,
was charged and convicted of conspiring to effect a public nuisance. Her appeal failed. The court rejected an argument, based on R
v Madden, that the Crown had failed to prove any actual danger. No more than, at most, passing reference was
made to the requirement of common injury.
A critical commentary in [1980] Crim LR 234 suggested that public
mischief, held by the House of Lords in DPP v Withers [1974] 3 All ER
984, [1975] AC 842 not to be an offence, could in effect be restored by
judicial legislation.
[21] R v Ruffell (1992) 13 Cr App R (S)
204 was an appeal against sentence. The
appellant had pleaded guilty to causing a public nuisance, and had been
sentenced to a suspended term of 12 months’ imprisonment and a fine of
£7,000. The nuisance had consisted of an
‘acid house’ party, which had attracted some thousands of people. A side road to the site had been blocked by
traffic. There had been very loud music,
overnight and lasting for about 12 hours.
The surrounding woodlands had been littered with human excrement. The appeal against the sentence of
imprisonment failed, but the fine was quashed on the ground that the appellant
had no means to pay it. The facts of
R v Shorrock [1993] 3 All ER 917, [1994] QB 279, which also involved an
‘acid house’ party, were a little similar.
The appellant accepted that a public nuisance had been caused, but
denied that he had had the requisite knowledge to be criminally liable. Thus the issue concerned the mens rea which
the Crown had to prove to establish guilt.
Giving the judgment of a Court of Appeal which also included Simon Brown
LJ and Popplewell J, Rattee J reviewed the authorities and concluded that the
answer was that given by the House in Sedleigh-Denfield’s case: the
appellant was guilty of the offence charged—
‘if either he knew or he
ought to have known, in the sense that the means of knowledge were available to
him, that there was a real risk that the consequences of the licence granted by
him in respect of his field would be to create the sort of nuisance that in
fact occurred …’ (See [1993] 3 All ER
917 at 926, [1994] QB 279 at 289.)
[22] R v Ong [2001] 1 Cr App R (S) 404
was an application for leave to appeal against a sentence of four years’
imprisonment imposed on a plea of guilty to a
271
court of conspiring to cause a public nuisance. The public nuisance which was planned was the
extinguishment of the floodlights at a Premier Division football match between
Charlton Athletic and Liverpool in order to make a fraudulent gain for a group
of Far Eastern bookmakers. The plan, if
implemented, would have plunged those attending the match, presumably a crowd
of thousands, into darkness, and prevented them seeing the match they had paid
to see. Leave was refused.
THE AUTHORITIES: (2)
[23] I have reserved for separate
consideration a line of recent authority much relied on by the Crown in the
case of Mr Rimmington, but the correctness of which is challenged by him.
[24] The line appears to begin with R v
Norbury [1978] Crim LR 435, a case heard by Judge Beezley in the Crown
Court at Norwich in March 1977. The defendant
had over a period of some four years made 605 obscene telephone calls to 494
different women. The making of such
calls was a summary offence punishable with a maximum fine of £50 under s 78 of
the Post Office Act 1969, but the defendant was indicted for causing a public
nuisance, an indictable offence for which there was no maximum penalty. His counsel moved to quash the indictment, I
infer on the ground that the requirement of common injury was not met, but this
argument was rejected. The judge ruled
(at 435–436):
‘It seems to me, dealing
with the present indictment, that a repetition over a long period and on a
number of occasions of telephone calls of an obscene nature, intending to cause
offence and alarm and resulting in such offence and alarm to a large number of
Her Majesty’s subjects, selected from a telephone directory or merely by chance
dialling is the very kind of act and, indeed, the very kind of series of acts
which the public has an interest in condemning and has a right to vindicate.’
In the light of this ruling the defendant pleaded
guilty. The judge’s observations, as
quoted, are unexceptionable and must command unqualified assent. But they do not address the question whether
separate calls to individual victims can satisfy the requirement of common
injury as I have defined it in [6], above.
The commentator (at 436) sounded a note of warning:
‘The facts of the
present case are strikingly different from the typical case of public nuisance
which is obstruction of the highway. There
might be some danger of public nuisance assuming the mantle of public
mischief. The House of Lords has held
that public mischief—even conspiracy to effect a public mischief—is not an
offence known to the law: [DPP v Withers]; but there is no doubt that
public nuisance is an offence. The
question is as to how far it extends.
The present case shows that it may have some potentiality for
growth. Offences covering such a wide
range of different matters with no obvious boundaries are only doubtfully compatible
with the principle of legality—i.e. that no one should be punished for
an act which was not declared by law to be an offence before the act was done.’
[25] The warning was not heeded. In R v Millward (1986) 8 Cr App R (S)
209 the defendant had made hundreds of telephone calls (636 in a single day) to
a young woman police officer with whom he had become infatuated, at the police
station where she worked. He had pleaded
guilty to two counts of causing a public nuisance and the appeal, which did not
succeed, was against a sentence of
272
30 months’ imprisonment. The ingredients of the offence were not in
issue, and the only reference to the requirement of common injury was in the
judgment of the court delivered by Glidewell LJ (at 210):
‘Quite apart from
anything else, this disrupts the whole operation of the police station to which
these calls are directed, because a member of the public may wish to report an
urgent matter such as a criminal offence, and cannot do so or is delayed in
doing so because of this kind of behaviour on the part of the appellant.’
[26] In R v Johnson [1997] 1 WLR 367,
an appeal against conviction, the requirement of common injury was the central
issue. The appellant had over a period
of years made hundreds of obscene telephone calls to at least 13 women, and had
been convicted of causing a public nuisance.
It was argued on his behalf that (a) each telephone call was a single
isolated act to an individual, and although that might have amounted to a
private nuisance it was wrong to group all the calls together and to regard the
cumulative effect as a public nuisance, and (b) that in any event the scale and
width of the conduct complained of was insufficient to constitute a public
nuisance. Tucker J, giving the reserved
judgment of the court, rejected the argument.
He ruled (at 370–371):
‘In our judgment it is
permissible and necessary to look at the cumulative effect of these calls, made
to numerous ladies on numerous occasions in the case of each lady, and to have
regard to the cumulative effect of the calls in determining whether the
appellant’s conduct constituted a public nuisance. In our opinion it was conduct which
materially affected the reasonable comfort and convenience of a class of Her
Majesty’s subjects: see per Romer L.J. in [A-G (ex rel
Glamorgan CC and Pontardawe RDC) v PYA Quarries Ltd [1957] 1 All ER
894, [1957] 2 QB 169] … It was a nuisance which was so widespread in its range,
or so indiscriminate in its effect, that it would not be reasonable to expect one
person to take proceedings on her own responsibility, but that they should be
taken on the responsibility of the community at large: see Denning L.J. … It
was proved by the Crown that the public, meaning a considerable number of
persons or a section of the public, was affected, as distinct from individual
persons.’
[27] There was a plea of guilty in R v
Eskdale [2001] EWCA Crim 1159, [2002] 1 Cr App R (S) 118. The appellant had made about 1,000 obscene
telephone calls, some of them very highly objectionable, to 15 women over a
period of two weeks. An appeal against a
sentence of nine years’ imprisonment was dismissed. There was also a plea of guilty in R v
Harley [2002] EWCA Crim 2650, [2003] 2 Cr App R (S) 16. Over three months in the summer of 2001 the
appellant had made nearly 5,000 calls to more than 1,000 people. A sentence of 21 months’ imprisonment was for
special reasons reduced to nine months.
Sentences of 18 months’ and five years’ imprisonment were reduced to
nine months and 30 months in R v Holliday [2004] EWCA Crim 1847, [2005]
1 Cr App R (S) 349. The appellants were
animal liberation activists who had pleaded guilty to causing a public nuisance
by making a large number of telephone calls to employees and shareholders of
certain companies whose activities the appellants opposed. The calls were designed to jam the company
telephone switchboards, and some of them were threatening and
intimidating. In R v Lowrie
[2004] EWCA Crim 2325, [2005] 1 Cr App R (S) 530 the appellant appealed unsuccessfully
against a sentence of eight years’ imprisonment imposed on his pleas of guilty
to 12 counts of
273
causing a public nuisance. In each case the count was based on a hoax
call to one of the emergency services.
THE CURRENT STANDING OF PUBLIC NUISANCE
[28] The appellants contended (1) that conduct
formerly chargeable as the crime of public nuisance had now become the subject
of express statutory provision, (2) that where conduct was the subject of
express statutory provision it should be charged under the appropriate
statutory provision and not as public nuisance, and (3) that accordingly the
crime of public nuisance had ceased to have any practical application or legal
existence.
[29] There is a large measure of truth in the
first of these contentions. Section
79(1) of the Environmental Protection Act 1990, as amended, establishes nine
categories of statutory nuisance (the state of premises, smoke emissions, fumes
or gases from dwellings, effluvia from industrial trade or business premises,
accumulations or deposits, animals, noise from premises, noise from vehicles or
equipment in a street and other matters declared by other Acts to be statutory
nuisances). Section 33 controls the
dumping of waste. The Act lays down a
detailed procedure for securing abatement, provides for criminal proceedings
and prescribes maximum penalties for failure to comply with an abatement
notice: see, generally, McCracken, Jones, Pereira and Payne Statutory
Nuisance (2001) Chs 2, 3, 5, 8, 9 and 10.
Section 85 of the Water Resources Act 1991 makes it an offence to
pollute controlled waters. It prescribes
a maximum penalty of three months’ imprisonment and a fine of £20,000 on
summary conviction, and two years’ imprisonment and a fine on conviction on
indictment. By s 137 of the Highways Act
1980 it is a summary offence punishable by a fine not exceeding level 3 on the
standard scale wilfully to obstruct free passage along a highway. Section 1 of the Protection from Harassment
Act 1997 creates a crime of harassment, punishable summarily by imprisonment
for a maximum of six months and a fine on scale 5. If the harassment involves repeated threats
of violence the defendant is liable under s 4, on conviction on indictment, to
five years’ imprisonment and a fine.
Section 32 of the Crime and Disorder Act 1998 creates an offence of
racially or religiously motivated harassment and prescribes maximum
penalties. Section 63 of the Criminal
Justice and Public Order Act 1994 confers powers on the police to remove
persons attending or preparing for a rave—
‘at which amplified
music is played during the night (with or without intermissions) and is such
as, by reason of its loudness and duration and the time at which it is played,
is likely to cause serious distress to the inhabitants of the locality …’
Breach of the statutory requirements is punishable on
summary conviction by imprisonment for up to three months and a fine not
exceeding level 4 on the standard scale.
By s 51 of the Criminal Law Act 1977, as amended, bomb hoaxes are
punishable, on conviction on indictment, by a maximum of seven years’
imprisonment, with a maximum of six months’ and a fine of £1,000 on summary
conviction. Section 114 of the
Anti-terrorism, Crime and Security Act 2001 makes it an offence, attracting similar
penalties, to place or send any substance or thing—
274
‘with the intention of
inducing in a person anywhere in the world a belief that it is likely to be (or
contain) a noxious substance or other noxious thing and thereby endanger human
life or create a serious risk to human health.’
Section 85 of the Postal Services Act 2000 makes it an
offence to send by post anything which is likely to injure a postal worker or
anything which is indecent or obscene.
On summary conviction the offence is punishable by a fine, on conviction
on indictment by imprisonment for a maximum of 12 months and a fine. By s 1 of the Malicious Communications Act
1988, enacted to give effect to the Law Commission’s Report on Poison-Pen
Letters (Law Com no 147) (HC 519, 1985), as amended, it is an offence to
send to another person a letter, electronic communication or article of any
description which is indecent, grossly offensive, threatening or known or
believed to be false. The offence is
punishable on summary conviction with a maximum of six months’ imprisonment and
a fine on scale 5 on the standard scale.
There has recently been enacted, in s 127 of the Communications Act
2003, an offence, attracting the same penalties, of improperly using a public
electronic communications network. While
it cannot be confidently asserted that there is no conduct which might formerly
have been properly prosecuted as public nuisance which is not now the subject
of express statutory provision, the appellants are in my opinion correct that the
most typical and obvious causes of public nuisance are now the subject of
express statutory prohibition.
[30] There is in my opinion considerable force
in the appellants’ second contention under this head. Where Parliament has defined the ingredients of
an offence, perhaps stipulating what shall and shall not be a defence, and has
prescribed a mode of trial and a maximum penalty, it must ordinarily be proper
that conduct falling within that definition should be prosecuted for the
statutory offence and not for a common law offence which may or may not provide
the same defences and for which the potential penalty is unlimited. If the directors in R v Medley (1834)
6 C & P 292, [1824–34] All ER Rep 123 who were ignorant of what had been
done, or the octogenarian owner in R v Stephens (1866) LR 1 QB 702,
[1861–73] All ER Rep Ext 2059 who was ignorant of what had been done and whose
orders were disregarded, were today to be prosecuted for causing a public
nuisance rather than under the relevant statutory provision, they would have
powerful grounds for objecting, and the same point applies more generally. It cannot in the ordinary way be a reason for
resorting to the common law offence that the prosecutor is freed from mandatory
time limits or restrictions on penalty.
It must rather be assumed that Parliament imposed the restrictions which
it did having considered and weighed up what the protection of the public
reasonably demanded. I would not go to
the length of holding that conduct may never be lawfully prosecuted as a
generally expressed common law crime where it falls within the terms of a
specific statutory provision, but good practice and respect for the primacy of
statute do in my judgment require that conduct falling within the terms of a
specific statutory provision should be prosecuted under that provision unless
there is good reason for doing otherwise.
[31] It follows from the conclusions already
expressed in [29]–[30], above that the circumstances in which, in future, there
can properly be resort to the common law crime of public nuisance will be
relatively rare. It may very well be, as
suggested by JR Spencer in his article cited in [6], above (p 83) that ‘[t]here
is surely a strong case for abolishing the crime of public nuisance’. But as the courts have no power to create new
offences (see [33], below), so they have no power
275
to abolish existing offences. That is a task for Parliament, following
careful consideration (perhaps undertaken, in the first instance, by the Law
Commission) whether there are aspects of the public interest which the crime of
public nuisance has a continuing role to protect. It is not in my view open to the House in
resolving these appeals to conclude that the common law crime of causing a
public nuisance no longer exists.
DEFINITION
[32] The appellants submitted that the crime
of causing a public nuisance, as currently interpreted and applied, lacks the
precision and clarity of definition, the certainty and the predictability
necessary to meet the requirements of either the common law itself or art 7 of
the convention. This submission calls
for some consideration of principle.
[33] In his famous polemic Truth versus
Ashurst, written in 1792 and published in 1823, Jeremy Bentham made a
searing criticism of judge-made criminal law, which he called ‘dog-law’:
‘It is the judges (as we
have seen) 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 till he does it, and then beat
him for it. This is the way you make
laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is
he should not do—they won’t so much as allow of his being told: they lie
by till he has done something which they say he should not have done,
and then they hang him for it.’
The domestic law of England and Wales has set its face
firmly against ‘dog-law’. In DPP v
Withers [1974] 3 All ER 984, [1975] AC 842 the House of Lords ruled that
the judges have no power to create new offences: see Lord Reid ([1974] 3 All ER
984 at 987, [1975] AC 842 at 854), Viscount Dilhorne ([1974] 3 All ER 984 at
992, [1975] AC 842 at 860), Lord Simon of Glaisdale ([1974] 3 All ER 984 at
995, 999, [1975] AC 842 at 863, 867), Lord Kilbrandon ([1974] 3 All ER 984 at
1008, [1975] AC 842 at 877). Nor may the
courts nowadays widen existing offences so as to make punishable conduct of a
type hitherto not subject to punishment (see [1974] 3 All ER 984 at 995, [1975]
AC 842 at 863 per Lord Simon). The
relevant principles are admirably summarised by Judge LJ for the Court of
Appeal (Criminal Division) in R v Misra [2004] EWCA Crim 2375, [2005] 1
Cr App R 328, in a passage which I would respectfully adopt:
‘[29] To develop his
argument on uncertainty, Mr Gledhill [for Dr Misra] focussed our attention on
Art. 7 of the Convention, entitled “No punishment without law”, which provides:
“7(1) No-one shall be
held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national or international law at the
time when it was committed nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was committed.”
In our view the essential
thrust of this Article is to prohibit the creation of offences, whether by
legislation or the incremental development of the common law, which have
retrospective application. It reflects a
well-understood principle of domestic law, that conduct which did not
contravene the criminal law at the time when it took place should not
retrospectively be stigmatised as criminal, or expose the perpetrator to
276
punishment. As Lord Reid explained in [Waddington v
Miah [1974] 2 All ER 377 at 379, 380, [1974] 1 WLR 683 at 694, 695],
“There has for a very
long time been a strong feeling against making legislation, and particularly
criminal legislation, retrospective … I use retrospective in the sense of
authorising people being punished for what they did before the Act came into
force.”
[30] Mr Gledhill
demonstrated that the Convention contained repeated references to expressions
in English such as “prescribed by law”: in French, the same phrase reads
“prévue par la loi”. We shall assume
that the concepts are identical. Article
7 therefore sustains his contention that a criminal offence must be clearly
defined in law, and represents the operation of “the principle of legal
certainty” (see, for example, [Brumarescu v Romania (2001) 33 EHRR 862
at 878 (para 61) and Kokkinakis v Greece (1994) 17 EHRR 397 at 423 (para
52)]. The principle enables each
community to regulate itself:
“with reference to the
norms prevailing in the society in which they live. That generally entails that the law must be
adequately accessible—an individual must have an indication of the legal rules
applicable in a given case—and he must be able to foresee the consequences of
his actions, in particular to be able to avoid incurring the sanction of the
criminal law.” [SW v UK (1996) 21
EHRR 363].
[31] Mr Gledhill further
emphasised that in [Grayned v City of Rockford (1972) 408 US 104] the
United States Supreme Court identified “a basic principle of due process that
an enactment is void for vagueness if its prohibitions are not clearly defined. Vagueness offends several important values …
A vague law impermissibly delegates basic policy matters to policemen, judges
and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.” He pointed out that Lord Phillips M.R. had
approved these dicta in [R (on the application of L) v
Secretary of State for the Home Dept [2003] EWCA Civ 25 at [25], [2003] 1
All ER 1062 at [25], [2003] 1 WLR 1230].
[32] We acknowledge the
force of these submissions, but simultaneously emphasise that there is nothing
novel about them in our jurisprudence.
Historic as well as modern examples abound. In the 17th century Bacon proclaimed the
essential link between justice and legal certainty:
“For if the trumpet give
an uncertain sound, who shall prepare himself to the battle? So if the law give an uncertain sound, who
shall prepare to obey it? It ought
therefore to warn before it strikes … Let there be no authority to shed blood;
nor let sentence be pronounced in any court upon cases, except according to a
known and certain law … Nor should a man be deprived of his life, who did not
first know that he was risking it.”
(Quoted in Coquillette, Francis Bacon pp 244 and 248, from
Aphorism 8 and Aphorism 39—A Treatise on Universal Justice.)
The judgment of the
Supreme Court of the United States in Grayned effectively mirrored
Blackstone:
“… Law, without equity,
though hard and disagreeable, is much more desirable for the public good than
equity without law: which would make every judge a legislator, and introduce
most infinite confusion; as there would then be almost as many rules of action
laid down in our courts, as there are differences of capacity and sentiment in
the human mind.” (Commentaries,
3rd ed., 1769, vol. 1 p. 62)
277
[33] Recent judicial
observations are to the same effect.
Lord Diplock commented in [Black-Clawson International Ltd v
Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810 at 836, [1975] AC
591 at 638]:
“The acceptance of the
rule of law as a constitutional principle requires that a citizen, before
committing himself to any course of action, should be able to know in advance
what are the legal consequences that will flow from it.”
In [Fothergill v
Monarch Airlines Ltd [1980] 2 All ER 696 at 705, [1981] AC 251 at 279] he
repeated the same point:
“Elementary justice or,
to use the concept often cited by the European court, the need for legal
certainty, demands that the rules by which the citizen is to be bound should be
ascertainable by him (or, more realistically, by a competent lawyer advising
him) by reference to identifiable sources that are publicly accessible.”
More tersely, in [Warner
v Metropolitan Police Comr [1968] 2 All ER 356 at 381, [1969] 2 AC 256 at
296], Lord Morris of Borth-y-Gest explained in terms that:
“… in criminal matters
it is important to have clarity and certainty.”
The approach of the common law is perhaps best encapsulated in the
statement relating to judicial precedent issued by Lord Gardiner L.C. on behalf
of himself and the Lords of Appeal in Ordinary on July 26, 1966 [Practice
Statement (Judicial Precedent) [1966] 3 All ER 77, [1966] 1 WLR
1234].
“Their Lordships regard
the use of precedent as an indispensable foundation upon which to decide what is
the law and its application to individual cases. It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs, as well as a
basis for orderly development of legal rules.”
In allowing themselves
(but not courts at any other level) to depart from the absolute obligation to
follow earlier decisions of the House of Lords, their Lordships expressly bore
in mind:
“… the danger of
disturbing retrospectively the basis on which contracts, settlements of
property and fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law.”
[34] No further citation
is required. In summary, it is not to be
supposed that prior to the implementation of the Human Rights Act 1998, either
this Court, or the House of Lords, would have been indifferent to or unaware of
the need for the criminal law in particular to be predictable and certain. Vague laws which purport to create criminal
liability are undesirable, and in extreme cases, where it occurs, their very
vagueness may make it impossible to identify the conduct which is prohibited by
a criminal sanction. If the court is
forced to guess at the ingredients of a purported crime any conviction for it
would be unsafe. That said, however, the
requirement is for sufficient rather than absolute certainty.’
There are two guiding principles: no one should be
punished under a law unless it is sufficiently clear and certain to enable him
to know what conduct is forbidden before he does it; and no one should be
punished for any act which was not clearly and ascertainably punishable when
the act was done. If the ambit of a
common law offence is to be enlarged, it ‘must be done step by step on a case
by case basis and not with one large leap’: see R v Clark (Mark)
[2003] EWCA Crim 991 at [13], [2003] 2 Cr App R 363 at [13].
278
[34] These common law principles are entirely
consistent with art 7(1) of the convention, which provides:
‘No punishment without law
1. No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal
offence under national or international law at the time when it was
committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence
was committed.’
The European Court of Human Rights has repeatedly
considered the effect of this article, as also the reference in art 8(2) to ‘in
accordance with the law’ and that in art 10(2) to ‘prescribed by law’.
[35] The effect of the Strasbourg
jurisprudence on this topic has been clear and consistent. The starting point is the old rule nullum
crimen, nulla poena sine lege (see Kokkinakis v Greece (1993) 17 EHRR
397 at 423 (para 52), SW v UK (1996) 21 EHRR 363 at 398–399 (para 35/33):
only the law can define a crime and prescribe a penalty. An offence must be clearly defined in law (SW
v UK), and a norm cannot be regarded as a law unless it is formulated with
sufficient precision to enable the citizen to foresee, if need be with appropriate
advice, the consequences which a given course of conduct may entail (Sunday
Times v UK (1979) 2 EHRR 245 at 271 (para 49), G v Federal Republic of
Germany (1989) 60 DR 256 at 261 (para 1), SW v UK (at 398 (para
34/32)). It is accepted that absolute
certainty is unattainable, and might entail excessive rigidity since the law
must be able to keep pace with changing circumstances, some degree of vagueness
is inevitable and development of the law is a recognised feature of common law
courts (Sunday Times v UK (at 271 (para 49)), X Ltd v UK (1982)
28 DR 77 at 81 (para 9), SW v UK (at 399 (para 36/34)). But the law-making function of the courts
must remain within reasonable limits (X Ltd v UK (at 81 (para 9)). Article 7 precludes the punishment of acts
not previously punishable, and existing offences may not be extended to cover
facts which did not previously constitute a criminal offence. The law may be clarified and adapted to new
circumstances which can reasonably be brought under the original concept of the
offence (X Ltd v UK (at 288 (para 9)), G v Federal Republic of
Germany (at 261–262)). But any
development must be consistent with the essence of the offence and be
reasonably foreseeable (SW v UK (at 399 (para 36/34)), and the criminal
law must not be extensively construed to the detriment of an accused, for
instance by analogy (Kokkinakis v Greece (at 423 (para 52)).
[36] How, then, does the crime of causing a
public nuisance, as currently interpreted and applied, measure up to these
standards? Mr Perry, for the Crown,
pointed out, quite correctly, that offences such as blasphemous libel (X Ltd
v UK), outraging public decency (S v UK App No 17634/91 (2 September
1991, unreported)) and blasphemy (Wingrove v UK (1996) 1 BHRC 509) had
withstood scrutiny at Strasbourg. Only
in Hashman v UK (2000) 8 BHRC 104 had a finding that the applicants had
acted contra bonos mores been held to lack the quality of being ‘prescribed by
law’. It was suggested, as put by
Emmerson and Ashworth Human Rights and Criminal Justice (2001) p 288
(para 10-23), that ‘the standard of certainty required under the Convention,
and under comparable constitutional principles, is not a particularly exacting
one’. I would for my part accept that
the offence as defined by Stephen, as defined in Archbold (save for the
reference to morals), as enacted in the Commonwealth codes quoted above and
279
as applied in the cases (other than R v Soul
(1980) 70 Cr App R 295) referred to in [13]–[22], above is clear, precise,
adequately defined and based on a discernible rational principle. A legal adviser asked to give his opinion in
advance would ascertain whether the act or omission contemplated was likely to
inflict significant injury on a substantial section of the public exercising
their ordinary rights as such: if so, an obvious risk of causing a public
nuisance would be apparent; if not, not.
[37] I cannot, however, accept that R v
Norbury [1978] Crim LR 435 and R v Johnson [1997] 1 WLR 367 were
correctly decided or that the convictions discussed in [23]–[27], above were
soundly based (which is not, of course, to say that the defendants’ conduct was
other than highly reprehensible or that there were not other charges to which
the defendants would have had no answer).
To permit a conviction of causing a public nuisance to rest on an injury
caused to separate individuals rather than on an injury suffered by the
community or a significant section of it as a whole was to contradict the
rationale of the offence and pervert its nature, in convention terms to change
the essential constituent elements of the offence to the detriment of the
accused. The offence was cut adrift from
its intellectual moorings. It is in my
judgment very significant that when, in 1985, the Law Commission addressed the
problem of poison pen letters, and recommended the creation of a new offence,
it did not conceive that the existing offence of public nuisance might be
applicable. It is hard to resist the
conclusion that the courts have, in effect, re-invented public mischief under
another name. It is also hard to resist
the conclusion expressed by Spencer, at p 77 of his article cited above ([1989]
CLJ 55):
‘almost all the
prosecutions for public nuisance in recent years seem to have taken place in
one of two situations: first, where the defendant’s behaviour amounted to a
statutory offence, typically punishable with a small penalty, and the
prosecutor wanted a bigger or extra stick to beat him with, and secondly, where
the defendant’s behaviour was not obviously criminal at all and the prosecutor
could think of nothing else to charge him with.’
As interpreted and applied in the cases referred to in
[23]–[27], above, the offence of public nuisance lacked the clarity and
precision which both the law and the convention require, as correctly suggested
by the commentators in [1978] Crim LR 435, p 436 and [1980] Crim LR 234,
Spencer CLJ [1989] 55, pp 77–79, and Professor Ashworth in his commentary on
the present cases at [2004] Crim LR 303, pp 304–306. See also McMahon and Binchy Law of Torts
(3rd edn, 2000) p 676, n 6.
MR RIMMINGTON’S APPEAL
[38] It seems to me clear that the facts
alleged against Mr Rimmington, assuming them to be true, did not cause common
injury to a section of the public and so lacked the essential ingredient of
common nuisance, whatever other offence they may have constituted. The Crown contended that, if persistent and
vexatious telephone calls were a public nuisance, it was a small and
foreseeable step to embrace persistent and vexatious postal communications
within that crime also. I would agree
that if the telephone calls were properly covered it would be a small and
foreseeable development, involving no change in the essential constituent
elements of the offence, to embrace postal communications also. But, for reasons already given, the crime of
public nuisance does not extend to separate and individual telephone calls,
however persistent and vexatious, and
280
the extension of the crime to cover postal
communications would be a further illegitimate extension. The judge and the Court of Appeal, bound by
R v Johnson [1997] 1 WLR 367, reached a different conclusion. I am of opinion that for all the reasons
given above, and those given by my noble and learned friends, this appeal must
be allowed.
MR GOLDSTEIN’S APPEAL
[39] The argument in this appeal was very
largely directed to the issue of mens rea: what state of mind must be proved
against a defendant to convict him of causing a public nuisance? The Crown contended that the correct test was
that laid down by the Court of Appeal in R v Shorrock [1993] 3 All ER
917 at 925, [1994] QB 279 at 289, that the defendant is responsible for a
nuisance which he knew, or ought to have known (because the means of knowledge
were available to him), would be the consequence of what he did or omitted to
do. That was a test clearly satisfied on
the facts of that case, where the defendant deliberately permitted use of his
field and should have known what the result would be. It is a test satisfied, I think, in all the
public nuisance authorities considered above, save those based on vicarious
liability (which are hard to reconcile with the modern approach to that subject
in cases potentially involving the severest penalties, and may well be
explained, as Mellor J did in R v Stephens (1866) LR 1 QB 702 at
708–709, [1861–73] All ER Rep Ext 2059 at 2060–2061, by the civil colour of the
proceedings). I would accept this as the
correct test, but it is a test to be applied to the correct facts.
[40] Mr Goldstein deliberately posted an
envelope containing a small quantity of salt.
He intended it to reach the addressee, Mr Ehrlich. Had it done so there would have been no
public nuisance, as the trial judge correctly directed the jury. The public nuisance alleged was the escape of
the salt from the envelope, which led to the evacuation of the sorting office
by 110 workers for an hour and the cancelling of a second post. I am willing to assume (without deciding)
that those events could be a sufficiently substantial injury to a significant
section of the public to amount to a public nuisance. But the escape of the salt was not a result
which Mr Goldstein intended. Nor,
plainly was it a result which he knew would occur, since it would have rendered
his intended joke entirely futile. It
would seem far-fetched to conclude that he should reasonably have known that
the salt would escape, at any rate without detailed consideration of the type
of envelope used and the care taken in sealing it. He himself said that he had no idea the salt
would leak out (see the Court of Appeal judgment [2004] 2 All ER 589 at
[38]). But neither at trial nor on
appeal was this question squarely addressed.
The emphasis was on a foreseeable consequence if there were an escape
and not on the foreseeability of an unintended escape. In the event, I conclude that it was not
proved against Mr Goldstein that he knew or reasonably should have known
(because the means of knowledge were available to him) that the salt would
escape in the sorting office or in the course of post. For these reasons, and those given by my
noble and learned friends, his appeal must be allowed and his conviction
quashed.
LORD NICHOLLS OF BIRKENHEAD.
[41] My Lords, I have had the advantage of
reading in draft the speech of my noble and learned friend Lord Bingham of
Cornhill. I respectfully agree with his
exposition of the common law offence of public nuisance, its boundaries, and
the
281
place this offence now occupies in the criminal
law. For the reasons he gives I too
would allow both appeals.
[42] I add just one footnote, concerning hoax
messages. Whether a hoax message is
capable of constituting the offence of causing a public nuisance depends
primarily upon the content of the hoax.
In the ordinary course a hoax message which, as intended, inconvenienced
only the recipient would lack the necessary public element. Very different would be a hoax message of the
existence of a public danger, such as a hoax telephone call that an explosive
device has been placed in a railway station.
A hoax message of this character is capable of constituting the offence
even though made to one person alone.
This is because the message, to whomsoever addressed, was expected and
intended to be passed via the police to users and potential users of the
railway station. In other words, the
message was the means whereby the caller intended to cause public alarm and
disruption.
LORD RODGER OF EARLSFERRY.
[43] My Lords, I have had the privilege of
considering the speech of my noble and learned friend, Lord Bingham of
Cornhill, in draft. I agree with it but
add some observations in view of the difficulty and importance of the issues
involved.
[44] The law of nuisance and of public
nuisance can be traced back for centuries, but the answers to the questions
confronting the House are not to be found in the details of that history. What may, perhaps, be worth noticing is that
in 2 Institutes 406 Coke adopts a threefold classification of nuisance: public
or general, common, private or special.
Common nuisances are public nuisances which, for some reason, are not
prosecutable. See D Ibbetson A
Historical Introduction to the Law of Obligations (1999) p 106, nn 62 and
65. So for Coke, while all public
nuisances are common, not all common nuisances are public. Later writers tend to elide the distinction
between common and public nuisances but, throughout, it has remained an
essential characteristic of a public nuisance that it affects the community,
members of the public as a whole, rather than merely individuals. For that reason, the appropriate remedy is
prosecution in the public interest or, in more recent times, a relator action
brought by the Attorney General. A
private individual can sue only if he can show that the public nuisance has
caused him special injury over and above that suffered by the public in
general. These procedural specialties
derive from the effect of the public nuisance on the community, rather than the
other way round. I therefore doubt
whether, in a criminal context at least, it is of much help to follow Denning
LJ in the civil case of A-G (ex rel Glamorgan CC and Pontardawe RDC)
v PYA Quarries Ltd [1957] 1 All ER 894 at 908, [1957] 2 QB 169 at 191
and to seek to identify a public nuisance by asking whether the nuisance is so
widespread in its range or so indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings on his own responsibility
to put a stop to it.
[45] As Lord Bingham has shown, there have
been many attempts to define the scope of public nuisance. The concept was applied to a number of
disparate situations at a time when there was no perceived need to define its
boundaries very precisely. In consequence,
it has been aptly described as ‘a ragbag of odds and ends’: see J R Spencer
‘Public Nuisance—a Critical Examination’ [1989] CLJ 55, p 59. In his Digest of the Criminal Law even
the highly rational Sir James Fitzjames Stephen could do little more than
reflect this reality. Mr Guthrie QC used
this lack of coherence in the definition of the offence as a basis for
submitting that its contours were so uncertain as to make it incompatible
282
with art 7 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1
to the Human Rights Act 1998). While a
lack of coherence in defining the scope of an offence may offend modern eyes,
it does not follow that there is any violation of art 7. If the individual elements of the crime are
identified clearly enough and the law is applied according to its terms,
potential offenders and their advisers know where they stand: they cannot
complain because the law could perhaps have been formulated more
elegantly. For present purposes I would
be content to adopt the definition in Archbold’s Criminal Pleading, Evidence
and Practice 2005 pp 2609–2610 (paras 31–40), under deletion of the
reference to morals:
‘A person is guilty of a
public nuisance (also known as common nuisance), who (a) does an act not
warranted by law, or (b) omits to discharge a legal duty, if the effect of the
act or omission is to endanger the life, health, property, morals, or comfort
of the public, or to obstruct the public in the exercise or enjoyment of rights
common to all Her Majesty’s subjects.’
[46] Mr Rimmington seems to have embarked upon
his vile campaign of letter writing in 1992.
At all events, the first entry in the schedule relates to a letter
received on 1 June 1992. If—most improbably—after
sending a number of letters Mr Rimmington had paused to consider whether he was
committing the offence of public nuisance, then he would surely have found
enough in the books to put him on his guard.
While there was apparently no case where the writer of obscene or
objectionable letters had been prosecuted for public nuisance, there were
several cases, starting with R v Norbury [1978] Crim LR 435, where it
had been held or accepted that the making of a large number of obscene or
objectionable telephone calls to individuals could constitute public
nuisance. It would have been only
prudent for Mr Rimmington to assume that the general reasoning behind those
decisions would be applicable to the sending of a large number of obscene or
objectionable letters. In that
situation, superficially at least, the law was sufficiently certain to meet the
requirements of art 7 for Mr Rimmington’s purposes.
[47] Of course, it does not follow that the
law as laid down in the R v Norbury line of cases was correct: a
statement of the law may be definite but wrong.
I am indeed satisfied that the law was misstated in those cases. A core element of the crime of public
nuisance is that the defendant’s act should affect the community, a section of
the public, rather than simply individuals.
Obvious examples would be the release of smoke or fumes which affect a
village or neighbourhood or the emission of loud noises which disturb the
neighbourhood. In such cases the release
or emission or—where it is repeated—each release or emission affects the public
in the area. Of course, if one were to
break it down, the general effect on the community might well be seen to be
made up of a collection of private nuisances occurring more or less
simultaneously. Romer LJ made this point
in the PYA Quarries case [1957] 1 All ER 894 at 905–906, [1957] 2 QB 169
at 187, where the court granted an injunction against the defendants carrying
on their business in such a manner as to cause splinters to be projected from
the confines of their quarry or to occasion a nuisance to Her Majesty’s
subjects by dust or vibration. In the
pleadings as originally framed the Attorney General had included various
allegations about the damage caused to occupiers of the adjacent houses and
land; that the vibrations were a source of danger to the houses, and that the
dust settled on them and made them dirty and uncomfortable to live in. Counsel had later deleted these allegations
on the
283
ground that, in a public nuisance action, evidence of
individual experiences should not be received, although such evidence would be
highly relevant in cases of alleged private nuisance. Romer LJ rejected this argument:
‘I cannot for myself
accept this contention. Some public
nuisances (for example, the pollution of rivers) can often be established
without the necessity of calling a number of individual complainants as
witnesses. In general, however, a public
nuisance is proved by the cumulative effect which it is shown to have had on
the people living within its sphere of influence. In other words, a normal and legitimate way
of proving a public nuisance is to prove a sufficiently large collection of
private nuisances.’
Although the number of houses affected by the flying
splinters of stone and by the dust and vibration presumably varied a bit from
blast to blast, each blast tended to affect homes in the vicinity of the quarry
and a picture of the overall effect of the blasting on the community could be
built up from the evidence of individual residents about its effect on them.
[48] As my noble and learned friend, Lord
Nicholls of Birkenhead, points out, a telephone call or a letter, which is
intended to be passed on and broadcast to the public, may be the means of
effecting a public nuisance. Suppose,
however, that someone makes a series of obscene telephone calls to people
living in a village or neighbourhood. In
that situation each call is heard, and is intended to be heard, only by the
recipient. Of course, as the calls mount
up, more and more residents will be affected and the general peace of the
neighbourhood may be disturbed. But each
telephone call affects only one individual, not the community in the village or
neighbourhood. Therefore, it does not
have that quality which is the hallmark of the crime of public nuisance. And no such individual call can become a
criminal public nuisance merely by reason of the fact that it is one of a
series. Otherwise, acts which were not
criminal when originally done would become criminal at some unspecified point
when the defendant had made enough calls for it to be said that, taken
together, they were affecting the public in the neighbourhood. In my view, therefore, Judge Beezley set the
law off down a wrong course in R v Norbury [1978] Crim LR 435 at
435–436, when he ruled that a public nuisance was constituted by—
‘a repetition over a
long period and on a number of occasions of telephone calls of an obscene
nature, intending to cause offence and alarm and resulting in such offence and
alarm to a large number of Her Majesty’s subjects, selected from a telephone
directory or merely by chance dialling …’
In R v Johnson [1997] 1 WLR 367, the defendant was
charged on an indictment containing one count of public nuisance, but the
particulars referred to telephone calls made on hundreds of occasions to at
least 13 women in the South Cumbria area.
The defendant was convicted and, on appeal, argued that his conduct did
not amount to the crime of public nuisance.
The Court of Appeal rejected that argument. Applying the same reasoning as in R v
Norbury, Tucker J said (at 438), that it was permissible to have regard to
the cumulative effect of the calls in determining whether the appellant’s
conduct constituted a public nuisance.
In the present case the Court of Appeal were, of course, bound by the
decision in R v Johnson and duly applied it. For the reasons which I have given, I am
satisfied that this approach was mistaken and that these decisions should be
overruled.
[49] Like the defendant in R v Johnson,
Mr Rimmington was charged on an indictment containing one count of public
nuisance. In his case the particulars
284
referred to him sending 538 separate postal packages
between 20 May 1992 and 13 June 2001.
Details about the individual packages were set out in an extensive
schedule. The first package in that
schedule was received on 1 June 1992 and the next package that could be dated
was received in October 1993. The
recorded incidents are somewhat sparse until June 1995, after which there are
many more packages, often apparently sent in batches posted about the same time
but quite often in different areas. The
recipients come from a variety of organisations scattered over different parts
of London and the South East. Most of
them would not know one another. In
these circumstances it would be highly problematical, for Mr Rimmington or for
a court, to decide at what point, if any, the cumulative effect of the letters
meant that his conduct was materially affecting the reasonable comfort and
convenience of a class of Her Majesty’s subjects—and so, ultimately, to make
the initial incident in 1992, retrospectively, one component of a single crime
of public nuisance committed over nine years.
A crime which was defined so as to apply in such an uncertain way would
indeed be objectionable, both in terms of the well-recognised standards of
English law and in terms of the convention jurisprudence. Both are conveniently summarised in the
passage from the judgment of Judge LJ in R v Misra [2004] EWCA Crim 2375
at [29]–[34], [2005] 1 Cr App R 328 at [29]–[34], which Lord Bingham has
quoted. But, as I have explained, I am
satisfied that the particulars in the indictment do not disclose a legally
relevant charge of public nuisance. I
accordingly agree that Mr Rimmington’s appeal must be allowed and his
conviction quashed.
[50] The course of conduct which Mr Rimmington
pursued in sending these letters was so depraved and offensive that it would be
a matter of concern if the criminal law could not deal with it. But that is not the case. As his counsel noted, though with
understandable diffidence, there are other offences which might cover the kind
of conduct with which he was charged.
Section 1 of the Malicious Communications Act 1988, as amended, makes it
an offence to send another person a letter, electronic communication or article
of any description which conveys a message which is indecent or grossly
offensive, or which conveys a threat or information which is false and known or
believed to be false. The offence is
punishable on summary conviction with a maximum of six months’ imprisonment and
a fine on scale 5. Similarly, by s 85(1)
and (4) of the Postal Services Act 2000 it is an offence to send by post a
packet enclosing any thing which is likely to injure a postal worker or which
is indecent or obscene. The offence is
triable either way: on summary conviction it is punishable by a fine, while on
conviction on indictment it is punishable by imprisonment for up to 12 months
and a fine. Mr Perry accepted, on behalf
of the Crown, that some, at least, of the incidents alleged against Mr
Rimmington would have fallen within the scope of one or other of the statutory
provisions. So any decision by your
Lordships that Mr Rimmington’s conduct does not amount to public nuisance would
leave it open to the Crown to deal with future offenders by charging them with
the appropriate statutory offence.
[51] Why then did the Crown not adopt that
course in Mr Rimmington’s case? Mr Perry
gave two reasons. First, by the time
that Mr Rimmington was unmasked as the writer of the letters, many of the
incidents were so old that there was a bar on any prosecution under
statute. Secondly, even where the
offences were not time-barred, the sentence available on conviction under
statute was regarded as insufficient to mark the seriousness of the appellant’s
conduct. And, if a number of separate
offences were charged together in summary proceedings, the maximum sentence
that could be imposed was limited to 12 months.
In
285
order to avoid these difficulties, it had been
decided to charge Mr Rimmington on indictment with the common law crime of
public nuisance.
[52] When Parliament enacted the statutory
offences, it did not expressly abolish the corresponding aspect of the common
law offence of public nuisance.
Therefore, if—contrary to my view—Mr Rimmington’s conduct in writing the
letters had amounted to a public nuisance, it would presumably have continued
to do so even after the statutory offences were introduced. So a charge could not have been regarded as
bad simply because it was framed in terms of the common law rather than in
terms of the statute. To put the matter
more generally, where Parliament has not abolished the relevant area of the
common law when it enacts a statutory offence, it cannot be said that the Crown
can never properly frame a common law charge to cover conduct which is covered
by the statutory offence. Where nothing
would have prevented the Crown from charging the defendant under the statute
and where the sentence imposed would also have been competent in proceedings
under the statute, the defendant is not prejudiced by being prosecuted at
common law and can have no legitimate complaint.
[53] Here, however, according to what Mr Perry
told the House, the Crown had deliberately chosen the common law offence in
order to avoid the time bar which Parliament had enacted and to allow the
judge, if he thought fit, to impose a heavier sentence than the one permitted
under statute. The issue bears some
resemblance to the issue in R v J [2004] UKHL 42, [2005] 1 All ER 1,
[2005] 1 AC 562. There is no suggestion,
of course, that the Crown acted in bad faith.
On the contrary, it is easy to understand why they did what they
did. In a particular case, such as this,
a time limit which prevents prosecution once a certain time has passed since
the act was committed can appear to be arbitrary and to reward an offender for
concealing his offences. The sentence
available under the statute may also seem inadequate to reflect the gravity of
the defendant’s conduct. But Parliament
has deliberately chosen to intervene and to prescribe a period within which
conduct of this kind can be prosecuted summarily under statute. This must be taken to reflect Parliament’s
judgment that, if the conduct has not been prosecuted within that time, the
public interest is now against proceeding.
That judgment may be based on various factors. Parliament may, for example, consider that
after a certain period everyone should move on and prosecutors should turn
their attention to other matters. Police
and prosecution resources, it may be thought, are better spent on detecting and
prosecuting recent, rather than stale, offences of this kind or recent, rather
than old, incidents in a course of conduct.
More serious matters should be given priority. Similarly, in the matter of sentence,
Parliament has reached a view that certain conduct is appropriately covered by
an offence which can be tried only summarily and which should attract no more
than a particular level of sentence.
Parliament has also fixed the maximum sentence to be imposed in summary
proceedings, even where the defendant is convicted of more than one
charge. Again, in any particular case,
the sentence available under statute may appear to the prosecutor to be
inadequate. But Parliament is entitled
to place an offence in what it regards as the appropriate level in the
hierarchy of offences and to limit the sentencing power of a court where the
accused is not tried by jury.
[54] It is not for the Crown to second-guess
Parliament’s judgment as to any of these matters by deliberately setting out to
reject the applicable statutory offences and to charge the conduct in question
under common law in order to avoid the time limits or limits on sentence which
Parliament has thought appropriate. It
may be that, in the light of experience, Parliament’s judgment can
286
be seen to have been flawed or to have been
superseded by events. Doubtless, the
prosecuting authorities have channels through which they can—and perhaps
should—draw any such perceived deficiencies to the attention of the Home
Secretary. It is then up to ministers
and, ultimately, Parliament to decide whether the law should be changed. But, unless and until it is changed, its
provisions should be respected and the Crown should not devise a strategy to
avoid them.
[55] Lord Bingham has described the
circumstances of Mr Goldstein’s case. It
is plain that he put the salt in the envelope intending it to be a humorous
message to his friend, Mr Ehrlich, who would have understood the joke. He posted the letter in a period when, following
events in the United States, there were fears about the possibility of anthrax
germs being sent through the post. It is
therefore not surprising that when, just before 6 am, some of the salt spilled
out of the torn envelope on to the hands of a sorter, Mr Owen, he raised the
alarm. Indeed, Mr Goldstein accepted
that the escape of the salt could have terrified Mr Owen. The Wembley sorting office was cleared and
the police were called. They soon saw
that the powder was salt but the sorters could not return to work for over an
hour. For that reason, the first
delivery of letters was somewhat later than usual. The management then decided to cancel the
second delivery since, by the time the first delivery had been completed, the
postal workers had finished their shift and would have had to be paid overtime
to do the second delivery. The judge
reminded the jury of evidence that over 35,000 businesses missed the second
delivery and that some people had telephoned to complain. He was therefore directing the jury that, in
deciding whether Mr Goldstein was guilty of public nuisance, they could take
account of the inconvenience to the public caused by the cancellation of the
second delivery.
[56] In R v Shorrock [1993] 3 All ER
917 at 925, [1994] QB 279 at 289, the Court of Appeal held that a defendant
landowner was responsible for a public nuisance which he knew or ought to have
known (in the sense that the means of knowledge were available to him) would be
the consequence of activities carried on by him on his land. In the present case the Court of Appeal held
that a similar test should be applied to Mr Goldstein. Mr Guthrie argued that the House should
disapprove the decision in R v Shorrock and bring the mens rea for
public nuisance into line with the approach adopted in R v G [2003] UKHL
50, [2003] 4 All ER 765, [2004] 1 AC 1034.
For my part, I was not persuaded by that submission. In R v G the House was considering the
proper interpretation of ‘reckless’ in s 1(1) and (2) of the Criminal Damage
Act 1971 and, in para [28] of the leading speech, Lord Bingham made it as plain
as he could that he was not addressing the meaning of ‘reckless’ in any other
statutory or common law context. The
decision is therefore not in point.
Particularly having regard to the essentially regulatory nature of much
of the law of public nuisance, it seems to me that, even if it is unusual, the
mens rea described in R v Shorrock is apt in situations where the
offence truly applies. I would accept
the reasoning in R v Shorrock.
Applying the test in R v Shorrock, I am, however, satisfied that
Mr Goldstein did not have the necessary mens rea to be convicted of public
nuisance.
[57] It was not unlawful for Mr Goldstein to
put salt into a packet to be sent through the post. Nevertheless, if he had done so with the
intention of provoking an anthrax scare and disrupting the post and if those
events had come to pass, he might well have been guilty of public
nuisance. But, according to the evidence,
he had no such intention and, he said, he had never for a moment foreseen that
the salt would leak out. Even if he had
done so, however, it seems to me
287
impossible to hold that he either knew or had the
means of knowing that the events which happened in the Wembley sorting office and
in the surrounding district would occur.
In the heightened atmosphere of the time, he might have been able to
foresee that there would be some disruption in the sorting office, but he had
no means of knowing at what time of day his letter would be sorted or that the
second delivery of post would be cancelled and cause inconvenience to the
businesses in the area. Indeed, as the
judge explained to the jury, the manager only decided to cancel it when he
realised that they would have to pay overtime to the postal workers to do the
work. The disruption to the public,
which the jury were invited to consider, was therefore not an immediate
consequence of Mr Goldstein’s act, but the consequence of an independent
commercial decision of the post office management which he had no means of
anticipating when he posted the letter.
To hold Mr Goldstein guilty of public nuisance on the basis of this
(relatively minor) inconvenience to the public would be to stretch the offence
beyond its legitimate limits. I accordingly
agree that his appeal should be allowed and his conviction quashed.
BARONESS HALE OF RICHMOND.
[58] My Lords, I agree, for the reasons given
by my noble and learned friend, Lord Bingham of Cornhill, that both these
appeals should be allowed. It is not
open to the courts, however tempted they might be by the history so
attractively presented by John Spencer in his valuable article ‘Public
Nuisance—A Critical Examination’ [1989] CLJ 55, to abolish existing
offences. Nor it is open to the courts
to ‘widen existing offences so as to make punishable conduct of a type hitherto
not subject to punishment’ (see [33], above).
We are not, therefore, engaged in a law reform exercise. Our task is to define and re-establish the
essential ingredients of the crime as they emerged after the publication of
Hawkins Treatise of the Pleas of the Crown in 1716. The essence of the crime which he and the
later institutional writers identified was, as my noble and learned friend has
shown, ‘the suffering of common injury by members of the public by interference
with rights enjoyed by them as such’ (see [6], above). It is not permissible to multiply separate
instances of harm suffered by individual members of the public, however similar
the harm or the conduct which produced it, and call them a common injury. Conduct which was not criminal when the first
letter was sent would become criminal at some unknown future time when it was
thought that enough such letters had been sent to constitute such a common
injury. This must be wrong in
principle. Nor can it be right to punish
someone who had no reason to think that his letter would cause any harm to
anyone, because he had no reason to think that the salt would leak out in
circumstances where his joke would not be understood.
[59] I am pleased to be able to reach both
conclusions, because I was a signatory to the Law Commission’s Report on
Poison-Pen Letters (Law Com No 147) (1985).
This resulted in the Malicious Communications Act 1985, which seems
tailor-made to identify any culpable conduct in both these situations. This arose from the Commission’s examination
of the common law offence of criminal libel, as part of its programme of
codification of the criminal law.
Neither in that report, nor in the preceding Working Paper on
Criminal Libel (LCWP No 84) (1982), was it suggested that public nuisance
might be available to cover campaigns of multiple malicious communications such
as that conducted by Mr Rimmington. This
is all the more remarkable, as the Commission had briefly considered public
nuisance in the context of its work on public order
288
offences, which eventually resulted in the Public
Order Act 1986. The Commission had
originally intended to include public nuisance in that work, as it had sometimes been used in public order
situations, such as ‘sit-down’ demonstrations in central London: see R v
Moule [1964] Crim LR 303, R v Adler [1964] Crim LR 304, cf R v
Clark [1963] 3 All ER 884, [1964] 2 QB 315.
In its Working Paper on Offences against Public Order (LCWP 82)
(1982) pp 7–9 (paras 1.9–1.12), however, the Commission announced that
reviewing the offence, either as a whole or in so far as it penalised highway
obstructions, would take the project far outside the realms of public order. The ‘best practicable approach’ would be a
separate review of the whole offence (p 9 (para 1.12)). Unfortunately, however, this has not been
done. The Commission did remark (pp 7–8
(para 1.10)) that the offence had been used in a wide variety of situations,
and referred to the then relatively recent cases of R v Norbury [1978]
Crim LR 435 (making a large number of obscene telephone calls) and R v Soul
(1980) 70 Cr App R 295 (assisting in effecting the escape of a patient from
Broadmoor). So the offence of public
nuisance, as recently employed in the courts, was certainly in the minds of the
criminal law team at the Commission in 1982 when they were working on poison
pen letters. Yet nowhere was it
suggested that public nuisance might be the appropriate response to the more
serious and prolonged ‘poison pen’ campaigns, although these are by no means
uncommon. I am relieved to be able to
conclude that the Commission was right to ignore it. It is of interest to note, however, that in
its report on Offences relating to Public Order (Law Com No 123) (1983)
pp 3–4 (para 1.8) the Commission did say that if the recommended offences were
enacted ‘it will be preferable for public nuisance not to be charged in
situations where there are disturbances to public order’, thus foreshadowing the
observations of my noble and learned friend at [30], above.
LORD BROWN OF EATON-UNDER-HEYWOOD.
[60] My Lords, I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord Bingham of
Cornhill. I respectfully agree with all that
he says and for the reasons he gives, I too would allow both these appeals.
[61] I also agree with what Lord Nicholls of
Birkenhead says at [42] of his speech and with the speeches of Lord Rodger of
Earlsferry and Baroness Hale of Richmond.
Appeals allowed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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