30 Intervention and Amicus Curiae

IT WAS FORMERLY a rare practice in our courts for judges to seek help from anyone other than the parties to litigation. But by the beginning of the twenty-first century, faced with unfamiliar challenges - the advent of human rights notably prompting the major challenge - an increasing number of organisations (mainly pressure groups) had entered the forensic scene, usually by way of written and sometimes oral submissions.

But this procedural transformation in the process of intervention by third parties, although conceptually accepted as part of the legal process, was traditionally ignored or resisted, even at times declared unwelcome. The history of this change of judicial heart can be traced through instances in my professional life, as counsel and as an aspiring intervener.

My earliest experience of intervention in legal proceedings fol­lowed the unilateral declaration of independence in Southern Rhodesia on 11 November 1965, when a number of acute legal con­sequences called for judicial determination in the English courts. One example was the recognition in England of divorce decrees granted by the rebellion judges. Joanna Adams, who was born and brought up in England, was divorced from her Rhodesian husband, after which she returned to England and sought a declaration here that she was validly divorced by English law. She gave notice of her proceedings to the Attorney-General, and I was briefed by the Treasury Solicitor to intervene on behalf of the Crown to argue that no recognition could be given to the orders of a Rhodesian judge who had chosen to act under the rebellious government of Mr Ian Smith and his ministerial colleagues.

The exercise was repeated six years later. This time the issue was the validity of a bankruptcy order made in Rhodesia against a fraud­ulent solicitor whose funds were thought to have found their way into the hands of his brother in Bromley, Kent. Could the Registrar in Bankruptcy in London give effect to a Rhodesian bankruptcy order as an order of a ‘British court’ under the Bankruptcy Act 1914, in order to examine the bankrupt’s brother? This time there was no hesitation in the court granting the Attorney-General leave to inter­vene when the brother appealed to the Court of Appeal against the Registrar’s order recognising the Rhodesian bankruptcy order.

Denning began his judgment in his idiosyncratic style as a kind of popular story-teller: ‘David Emlyn James is a lawyer who has gone astray’, the tale trailing off into a revisitation of the details of the bankrupt’s depredation of his partners’ funds. My argument, which raised the constitutional issue whether any purported law in post­UDI Rhodesia could be given any recognition in England, won the day; the two other appeal court judges paid strict attention to the constitutional law. But in Denning’s eyes he would have nothing of so formidable a legal obstacle as the enforcement of British obliga­tion to a UN resolution on sanctions for Rhodesia. I recite the words in Denning’s judgment:

[It was] Mr Blom-Cooper, who launched the main attack on the Rhodesian courts. It was he who asked us to give no recognition whatever to what the Rhodesian courts had done. He said that we should give no help whatever to get in the money or the property of David James - so as to restore it to the rightful owners. It was, he said, in the interests of high policy. All I would say about that argument is this: if it be in the interests of high policy, it is not in the interests of justice. I see no justice what­ever in letting David James get away with his ill-gotten gains and letting the rightful owners go away empty-handed.

The sequel to the delivery of the three judgments provided an odd­ity in the appellate process. My opponent, Andrew Bateson QC, naturally applied for leave to appeal to the House of Lords, no doubt with confidence, since Lord Denning’s body language exhibited a desire that his dissent might find favour upstairs in the final appeal court.

If I felt only slightly miffed about the treatment of my argument, I took away with me at least an abiding sense of how courts, when dealing with cases that raised difficult legal issues, might be materi­ally assisted by interested observers of some (in a legal sense) high- profile cases. Twenty years later, when I was chairman of the Mental Health Act Commission, I was alerted as such an observer to inter­vene in the case of the sterilisation of a mentally handicapped woman.^[270] Under the Mental Health Act 1983 there was an unusual provision for safeguarding the interests of mental health patients who were contemplating undergoing operations for psycho-surgery.

It occurred to me and my colleagues on the Commission that this unique power was highly relevant to the questions posed for the courts when faced with the medical decision whether the medical profession could go ahead and sterilise the patient. I managed to convince the civil servants at the Department of Health that the Commission should seek the leave of the House of Lords to inter­vene, not to advance any argument for or against either of the par­ties to the litigation, but directly to assist the Law Lords in their deliberations. The Department applied; the application was granted, without apparent fuss.

Mr (now Mr Justice) Duncan Ouseley was appointed as counsel to appear as an intervening party. He did so in his usual competent and expansive manner. But the presiding Law Lord, Lord Bridge, showed more than mere disinterest in what the Commission did in

performance of its task to control the medical use of lobotomy and like surgery. He treated Duncan with the worst form of judicial mis­behaviour. I think Duncan will not easily forgive me for putting him in the forensic firing line. But at least two other Law Lords referred to the Commission’s submissions. One of them had inter­vened in the course of Duncan’s argument, to soften the lordly blows.

Lord Bridge’s hostility to our intervention focused on the func­tion of an intervener. Up to that point, intervention had been accorded (other than where the Crown was intervening as of right, as it did in the Rhodesian cases) to pressure groups which were desirous of pursuing their heavily biased agendas, almost invaria­bly to support one side or the other in the litigation.

I was to learn that, to my personal cost, some time later. In 1999 Myra Hindley’s appeal against the Home Secretary’s fixing of the tariff of her life sentence as ‘whole life’ was heard in the House of Lords. Much of the argument centred on a proper interpretation of the mandatory sentence of life imprisonment for murder as the sub­stitute penalty when Parliament abolished the death penalty in 1965. A friend of mine of over 40 years was the late Terence Morris, once Emeritus Professor of Criminology and Criminal Justice at the London School of Economics. We had co-authored a book in 1964 called A Calendar of Murder,^[271] a study of every murder case in the courts of England and Wales from 1957 (on the passing of that year’s Homicide Act) until 1962. Thereafter we have written frequently in law journals and elsewhere on the law and practice of homicide. We have regarded ourselves as aficionados of, if not experts in, mur­der. Not appreciating the limited view which the judiciary was tak­ing to the practice of intervention I wrote to Lord Browne-Wilkinson, the Senior Law Lord, asking whether the two of us might be permit­ted to submit a written brief to their Lordships. His reply was friendly, but presently unforthcoming. I quote from his letter of 5 March 1999:

You are quite right in saying that we are more open to application from organisations such as JUSTICE to put in an amicus brief and, in excep­tional circumstances, to address the Committee orally. However, the new procedure is at a very early stage and is not properly worked out as yet.

Although I am sympathetic to your desire to present the materials you wish to put before the Committee yourselves, I do not feel able to encourage you to do that at this stage since I think we must learn how to deal first with the pressure groups, such as Liberty or JUSTICE, acting as an amicus before trying to deal with the rather different problems which I think would be raised if individuals were allowed to act as amici. I hope you do not think I am being unduly stodgy but I suggest that you should channel your information through JUSTICE or Liberty. Although of course I cannot give any assurance, certainly we would be likely to take such an application seriously.

In the event we decided not to channel our information through the two pressure groups mentioned, mainly because we did not wish to be seen as partisan, but rather as objective scholars on the topic under judicial scrutiny.

The role of intervener, taken on by statutory bodies and non-gov­ernmental organisations, will be likely to be partisan, more or less fiercely so. The ‘assistance’ they give will no doubt be potentially helpful, although the inherent bias will tend to diminish the value of the assistance. Hence, one readily understands Lord Hoffmann’s injunction to such interveners to keep their submissions short, to the point and not to replicate the submissions of the litigating par­ties. But if the purpose of intervention is to provide help to the court, particularly when for their own litigious purposes the rival parties do not advance some relevant argument, the unbiased assis­tance of the expert on a specific topic should surely be welcome.

By January 2006 the House of Lords had learned how to deal with the pressure groups which had regularly been intervening. The practice was systematised in Practice Direction 37 of the Practice Directions Applicable to Civil Appeal, although the breadth of intervention in its personality was left for decision on a case-by- case basis.

In 2008 the House of Lords delivered judgment in 74 cases, in 16 of which permission to intervene was granted. The range of inter­veners included the Equity and Human Rights Commission (on four occasions), Liberty and JUSTICE (three occasions) and INQUEST and MIND (two occasions). A department of Government intervened on four occasions, principally to present a view on how the Human Rights Act 1998 should be applied. No individuals intervened.

The Court of Appeal (Civil Division) only took up the baton of third party intervention at the turn of the twenty-first century, but even then only to let matters flow: it neither encouraged nor discour­aged intervention, according to a retired Lord Justice of Appeal, Sir Henry Brooke, in an article in Public Law.^[272] Between January 2001 and November 2006 there were 67 formal applications to intervene, at a rate of 12 a year. Since then the practice has begun to develop.

If third-party intervention by public authorities and non­governmental organisations at the appellate stage, both final and intermediate, was embedded in the area of civil litigation, it was far from reception in the criminal jurisdiction. No distinction has been made between civil and criminal appeals in the House of Lords, although intervention in the latter cases was rare (the most notable instance being an early reference to the European Convention on Human Rights, where Liberty was permitted to intervene^[273]). But in the Court of Appeal (Criminal Division) there was overt hostility to the notion, as I was to learn to my cost.

In the second appeal in the Sally Clark case in January 2003, the Expert Witness Institute (of which I was then chairman) sought to intervene. The appeal focused on the flawed expert evidence of Professor Sir Roy Meadow. Sally Clark’s second appeal in this high- profile, seemingly unexplained child cot death case raised acute issues relating to expert witnesses; the case at the trial had involved no fewer than 11 medical experts - forensic pathologists, neuro­pathologists, opthalmologists and psychiatrists, including notably a distinguished professor of paediatrics and child health, Sir Roy Meadow, who gave impermissible statistical evidence - he testified that in his opinion there was only a one in 73 million chance of having two cot deaths in the same family. While the appeal focused on the cause of death of two infant boys, the case clearly exposed weaknesses in the procedures for hearing and testing expert testi­mony - issues which were exercising the minds of my colleagues and me in the Expert Witness Institute (EWI). We compiled a state­ment for the Court of Appeal (Criminal Division) suggesting that the Court might seize the opportunity in its judgment to comment on the practice and procedure for admitting and testing evidence on scientific and technological issues.

The Court convened to hear the appeal, presided over by Lord Justice John Kay, now deceased but then considered to be a strong candidate to become Lord Chief Justice in the near future. On sub­mitting our memoranda, we received the message that the Court was unwilling to authorise intervention by EWI. Lord Justice Kay indicated that as EWI’s chairman I would be allowed to address the Court at the opening of the appeal. This I did, standing not in coun­sel’s row but on the bench in front of the row of leading counsel, from a position from which I, unwigged and unrobed, was unaccus­tomed to addressing a court. For approximately 10 minutes, after Lord Justice Kay had obtained from counsel to the parties no objec­tion to my application to intervene, I sought to persuade the Court that intervention from interested parties had become a regular fea­ture of court procedure, although there appeared to be no reported incident in the criminal appellate system.

Throughout my career at the Bar, I had only occasionally met with outright hostility from any member of the judiciary. This was the exception to the rule. It was obvious from the outset of my appli­cation that I had not merely failed to persuade the Court, but Lord Justice Kay in refusing to countenance any help I might have given to the Court expressed his ruling in forthright, unfriendly terms. The question of the admissibility (and the handling) of expert evidence is currently the topic of a Consultation Paper from the Law Commission.^[274] Lord Justice Kay will not be one of the Law Commission’s consultees: he died in office at the age of 60. I am not aware that intervenors have yet been entertained in the criminal courts, either at trial or on appeal.

In the years 2011-12 the UK Supreme Court heard seven cases out of 77 where interveners were involved, in one of which - Rubin v Eurofinance SA^[275] - there were three interveners. But that was exceptional. In R v Hughes^[276] on 4 January 2013 an application was initially made by two academic criminologists, but they were told that if they wished to apply without having to pay the fee of £750 it would be necessary for the applicant to be a registered charity who would be allowed to intervene without payment. The courts have yet to consider the American style of intervention by amici curiae.

The helpful assistance from amici is still not to hand. I would like to think that I have persuaded the Justices of the UK Supreme Court to adopt the practice of entertaining submissions - initially in writ­ing, occasionally by oral advocacy - from any interested person or organisation that can help (without payment of a fee) towards a sound judgment on issues of public interest.