Ruthie, via a post on her firm’s new blog, alerted Geeklawyer to a Criminal Appeal’s Court case that hinged on the barrister’s second worst nightmare: giving a duff authority to a court.
Admittedly it was Her Majesty’s Customs and Excise: their reputation for incompetent prosecution is a matter of some awe within the profession. Nonetheless it transpires that, in pursuing a Confiscation Order, they relied on a Statutory Instrument that had been superseded some 5 years earlier! A number of other improper property seizures had occurred on this false premise. Only by chance did someone at Customs, unrelated to the case, spot the error and pull the red handle. The train stopped at the Court of Appeal.
There is case law to say that Counsel’s job is to be totally up on the law in all its finest latest and most obscure detail; to the very latest law hot out of Parliament the night before and cases not as yet reported. This is a stern standard albeit for a good reason. Nonetheless Toulsen LJ made it clear that the problem was in reality structural rather than the fault of the Crown’s Counsel Mr Cammerman. He said
“This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.
First, the majority of legislation is secondary legislation.
Secondly, the volume of legislation has increased very greatly over the last 40 years. … In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions, including the House of Lords Committee on the Merits of Secondary Legislation.”
He then refers to OPSI addressing these issues with their ongoing publication plans…
“The aim is laudable, indeed imperative, but there is a long way to go and meanwhile the volume of legislation advances apace. It is a serious state of affairs when the relevant legislation is not accessible, the Government’s own public information website (OPSI) is incomplete and the prosecution in an excise case unintentionally misleads the court as to the relevant Regulations in force. Although the problem has in this case arisen in an excise context, it is part of a wider problem of substantial constitutional importance”
OPSI are unlikely to get to nail this serious problem for a long time, if ever. In the meantime the FreelegalWeb group are looking at methods by which a community of lawyers and the public can create user driven data reuse and collaboration schemes, which have proven to be so successful by Wikipedia and the various MySociety projects, to produce a resource useful to everyone.
This is an excellent post — very interesting
It is a serious problem and one that really does need to be addressed. The recent Coroners and Criminal Justice proposals — another dog’s breakfast.
Ok, so there were 13’000 pages of new statutory instruments in 2005, but only a very small number of those pages would relate to law applicable to Customs & Excise. Surely Her Majesty rakes in enough cash from excise duty to provide her servants with legal databases such as Lexis or Westlaw? If not, what about the free use of such databases provided by the Inns, or practitioners texts that have an online update facility?
When I first heard of this case, I rather assumed it was a dusty, old, one man band barrister, who was just getting around to the idea of purchasing a mobile telephone, but would wait a bit longer to see if they catch on:-)
All in all pretty unforgivable really and no doubt very embarrassing
Actually an enormous proportion would relate to HMRC, tax law generates more legislation and secondary legislation (particularly from Europe) than anything else and is notoriously more anally bound to the wording of the legislation. And why do you think Butterworths LexisNexis and Westlaw would be any more reliable thanOPSI, where do you think they get their data? Similarly the online practitioners textbooks across the board — the online updates to one of the two standard practitioner’s guides to Landlord and Tenant is seriously out of date on a crucial point on leasehold enfranchisement.
And hardly an old dusty barrister: the whole point was that counsel had checked what the law actually said online on OPSI and OPSI was wrong. Very easy to see how that would happen. Old dusty barristers who rely on checking the Queen’s Printer’s copy in the library and working through every amendment and SI would have been right.
The whole thing is a shambles. Perhaps we should just have a statute that says the law is what Halsbury (ie Butterworths) says it is as of some defined date and amend it from there.
Hm — if Rubbish Authority is but the SECOND worst nightmare , I’d really, REALLY hate to think what the first one is!!
PS: Are you in Canada yet, or are you stuck in the purgatory of departures? If you are there, hope the flight was ok and if you arent there you’ll get there — eventually!
I think that you will find that OPSI publishes legislation in its original form only, hence it is an unreliable source for current law for that sole reason.
On the other hand legislation sourced via a decent electronic source will usually, within a short time (ie. far less than 5 years) contain some sort of indication that it has been, or will be repealed and will usually state which legislation has replaced/amended it via the amendments section at the foot of the page.
The problem here is, as the judge said, that the patchwork of websites holding this information was so jumbled as to be nearly incoherent even to lawyers versed in research. Counsel in that case slipped up yes; but I disagree that it was ‘unforgivable’; I’ve very nearly done it & I suspect many lawyer’s have. As Ruthie said “There but for the grace of God go I”
As much to the point, as Toulson said, what about the public? They have a right to know an up to date version of the laws that bind them.
> As much to the point, as Toulson said, what about the public?
> They have a right to know an up to date version of the laws that bind them.
I always wondered if an individual could challenge in court the claim that ignorance of the law is no defence? For example, in relation to a particular area of law, they could not only claim that it’s so complex that they would need to pay a lawyer to interpret it (i.e. obiding by that area of law would be the preserve of the rich) but that it is impossible for them to get hold of a consolidated (and therefore up to date) text of law — so they wouldn’t be able to see what law they were supposed to be abiding by!
The Statue Law Database (which used to be run by the MoJ and is now run by OPSI) attempts to show revised legislation, although it is incomplete (Articles 5 and 6 of the High Court and County Courts Jurisdiction Order 1991 and the whole of the Taxes Management Act 1970 are missing) and out of date (almost every Act is preceded by a notice saying “There are effects on this legislation that have not yet been applied to the Statute Law Database for the following year(s): 2003, 2004, 2005, 2006, 2007, 2008.”, and statutory instruments are apparently “not revised on the Statute Law Database”; “effects” includes amendments, repeals, and commencement orders).
Commercial providers, being commercial, charge sufficient for their services so as to be able to remain up to date. The SLD, providing a free service and being fairly low in the government’s spending priorities, apparently is not sufficiently funded to allow this.
You can be sure that if ignorance of the law was a defence, the authorities would do a better job of disseminating it.
First geek point, the search facilities on both OPSI and the SLD are hopeless, and the easiest way I know of to check for amendments to an SI is to use a Google search on site:www.opsi.gov.uk for the name of the regulations as a phrase, together with ‘amend*’ as a separate word. In this case, (to give the hyperlink in full) http://www.google.co.uk/search?hl=en&as_q=amend*&as_epq=Excise+Goods+Holding+Movement+Warehousing+and+REDS+Regulations+1992&as_oq=&as_eq=&num=100&lr=lang_en&as_filetype=&ft=i&as_sitesearch=www.opsi.gov.uk&as_qdr=all&as_rights=&as_occt=any&cr=&as_nlo=&as_nhi=&safe=images gives 20 results, some of which are duplicates, and, while time-consuming, it isn’t impossibly difficult to trace amendment. Could anyone tell me how to tell the search to return extracts longer than Google’s twenty words?
Second geek point: in 2007, the Subordinate Legislation Committee of the Scottish Parliament proposed here that there should be automatic consolidation of subordinate legislation the fifth time it was amended. But nothing has been done.