IN THE HIGH COURT OF JUSTICE
CO/75/96QUEEN'S BENCH DIVISION
DIVISIONAL COURT
IN THE MATTER OF section 42(1) of the Supreme Court Act 1981 as amended by section 24 of the Prosecution of Offences Act 1985
AND IN THE MATTER OF Lewis Frank Foley
B E T W E EN :- HER MAJESTY'S ATTORNEY-GENERAL Applicant
- and -
LEWIS FRANK FOLEY Respondent
_________________________________________________________________
SKELETON ARGUMENT OF LEWIS FRANK FOLEY
_________________________________________________________________
TIME ESTIMATE - 2 days
LIST OF ISSUES
VALIDITY OF APPLICATION FOR "CIVIL PROCEEDINGS ORDER" UNDER SECTION 42(1) SUPREME COURT ACT 1981
1. Whether proved in Divisional Court that HM Attorney-General authorised making of "Civil Proceedings Order" or sub-delegated authority to Solicitor-General under section 1(1)(c) Law Officers Act 1944?
2. Whether proved in Divisional Court that HM Attorney-General and Solicitor-General have been lawfully appointed to their posts?
3. Whether decision of Government Law Officers to apply for "Civil Proceedings Order" under section 42(1) Supreme Court Act 1981 can be challenged in a court as being oppressive and unconstitutional?
4. Whether Respondent should be permitted to file evidence in Court of Appeal relating to issues No 1 and 2 or whether such evidence solely for Divisional Court if Court of Appeal sets aside "Civil Proceedings Order".
5. Whether offices of HM Attorney-General actually exist constitutionally in law?
CHALLENGING DECISION TO APPLY FOR "CIVIL PROCEEDINGS ORDER" OF GOVERNMENT LAW OFFICERS
1. Whether decision of Government Law Officers to apply for "Civil Proceedings Order" can be challenged in a court as being oppressive and unconstitutional?
LENGTH OF "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT
1. Whether Divisional Court should make an indefinite "Civil Proceedings Order" or whether it should be limited in time under section 42(2) Supreme Court Act 1981?
PROPOSITIONS OF LAW
VALIDITY OF "CIVIL PROCEEDINGS ORDER"
AUTHORISATION OF HM ATTORNEY-GENERAL FOR MAKING OF "CIVIL PROCEEDINGS ORDER"
1. Not conceded that Attorney-General authorised application for "Civil Proceedings Order" against Respondent. Law Officer must personally authorise application to be made under section 42(1) Supreme Court Act 1981.
2. Not conceded that HM Attorney-General sub-delegated to Solicitor-General authority to make application for "Civil Proceedings Order" against Respondent either under section 1(1)(c) Law Officers Act 1944.
3. Court must be satisfied that either HM Attorney-General sub-delegated authority to Solicitor-General under section 1(1)(c) Law Officers Act 1944 to authorise application for "Civil Proceedings Order" and that he subsequently gave his authority or HM Attorney-General exercised this power himself before Order can be applied for with jurisdiction.
4. See Attorney-General -v- Hayward (1995) 10 November 1995, Supreme Court Library transcript, per Henry LJ at page 13 para D to page 15 para F, and Pill LJ at page 25 para G to page 26 para D and Staughton LJ at page 26 para E to page 27 para A.
5. Court must however be satisfied on a high standard of balance of probabilities, see Attorney-General -v- Hayward (1995) 10 November 1995, Supreme Court Library transcript, per Henry LJ at pages 10 para G to page 12 para C, and in particular approving the standard of proof approved of in R -v- Secretary of State for the Home Department ex parte Khawaja (1984) AC 74, at page 11 paras A-B,
--------------------------------------------------------------------------------------"Having regard to all the authorities to which we have been referred, culminating in the case of R -v- Secretary of State for the Home Department ex parte Khawaja (1984) AC 74, I am satisfied that the proper standard of proof here is the civil standard, paying proper regard to the seriousness of the issue at stake."---------------------------------------
6. No jurisdiction at all for Treasury Solicitors to make application for "Civil Proceedings Order" on their own or instructed by official of Legal Secretariat to Law Officers, and if occurred in this case then "Civil Proceedings Order" a nullity ab initio and must be set aside ex debito justitiae, as issue one of validity of Order and jurisdiction of Divisional Court to make it in respect of Respondent.
7. Present affidavit of Treasury Solicitor sworn by Ms Charlotte Isobel Martin on 16 February 1996 does not show involvement of any of Law Officers as required by section 42(1) Supreme Court Act 1981, see Attorney-General -v- Hayward (1995) 10 November 1995, Supreme Court Library transcript, per Pill LJ at page 25 para G to page 26 paras A-D, and in particular paras C-D,
"However, in any future applications under section 42, care should in my view be taken that appropriate information is provided in the affidavit in support of the application. An application under section 42 can have serious consequences, and the Attorney-General's involvement required by statute should be demonstrated plainly in the evidence submitted to the court with the application."
8. This principle relating to both jurisdiction of Court to make "Civil Proceedings Order" and evidence in support of it to show relevant involvement of Law Officers as required by section 42(1) Supreme Court Act 1981, again reinforced and applied in Attorney-General -v- Williams CO/905/95 April 22 1996 DC (1996) COD 386, Crown Office List transcript, per Pill LJ at page 2 paras D-F,
"There is evidence by way of affidavit before the court that a law officer has personally considered the papers in this case and authorised the making of the application. Bearing in mind the fundamental right under consideration, the right to bring proceedings before the courts, it is, in my view, appropriate that personal consideration is given to any proposed application by a law officer and that evidence of such consideration appears in the material before the court."
9. Further, evidence should have been adduced by Treasury Solicitors from both Law Officers who have direct personal knowledge of granting of relevant authorisation.
10. Judicial note cannot be taken by court of signatures of Law Officers as no statutory provision for this, and evidence of signatures without supporting evidence from Law Officers would not explain itself, see Myers -v- DPP (1965) AC 1001.
CANNON OF STATUTORY CONSTRUCTION APPLICABLE TO SECTION 42 SUPREME COURT ACT 1981 ND MEANING OF MADE IN SECTION 42(1) SUPREME COURT ACT 1981
1. Literal strict interpretation must be given to section 42 Supreme Court Act 1981.
2. Statutes removing rights of citizen to be interpreted as though were penal statute, see Maxwell on Statutes, 12 Edition pages 251-252, and Walsh -v- Secretary of State for India (1863) 10 HLC 367, per Lord Westbury LC and Hugh -v- Windust (1884) 12 QBD 224, per Bowen LJ.
3. See also Bennion on Statute Law 3rd Edition by Francis Bennion at pages 149-150, "Impairment of rights in relation to law and legal proceedings".
4. The removal of legal remedies to be strictly construed and this must apply to provisions of section 42(1A)(a)(b)(c) and (3) Supreme Court Act 1981, see Boulting -v- Association of Cinematograph, Television and Allied Technicians (1963) 2 QB 606.
5. Same approach would apply to phrase "reasonable grounds" in section 42(3) Supreme Court Act 1981 to give a broader and more lenient meaning more favourable to Applicant.
6. Further if any ambiguity in statute, more lenient interpretation should be given in favour of subject, see David -v- Da Silva (1934) AC 106, and Wonderland Cleathorpes (1965) AC 58, per Viscount Simmons at page 71 and D'Avigdor-Goldsmid -v- Inland Revenue Commissioners (1953) AC 347.
7. Mischief rule inapplicable to penal statutes, see London & County Commercial Properties Investments Ltd -v- Attorney-General (1953) 1 WLR 312, per Upjohn J page 319, and Tuck & Sons -v- Priester (1887) 19 QBD 629, page 638 and Plowman J in Re HPC Productions Ltd (1962) Ch 466, page 486, and Lord Tomlin in ICR -v- Duke of Westminster (1936) AC 1.
8. Attorney-v- Jones (1990) 2 All ER 636 wrongly decided that mischief rule applied to interpretation of section 42 Supreme Court Act 1981, per Donaldson MR at page 638 para H.
9. This dictum not binding on any subsequent Court of Appeal, or lower court as either decided per incuriam, see W A Sharratt Ltd -v- John Bromley Church Stratton Ltd (1985) QB 1038 regarding cannon of interpretation applicable, or in conflict with Re Boaler (1915) 1 KB 21 which may be equally binding on Court of Appeal and Divisional Court.
10. Re Boaler (1915) 1 KB 21 authority on interpretation of meaning of "legal proceedings" which given restrictive meaning to excluding criminal proceedings in Vexatious Actions Act 1896 which statutory predecessor of section 42 Supreme Court Act 1981, and apart from some amendments, is consolidating statute.
11. Re Boaler (1915) 1 KB 21 approved by Court of Appeal in Ex parte Ewing (No 2) (1994) 1 WLR 1553, per Bingham MR at page 1558 para F-G.
"The principle of construction for which Mr Ewing contends is sound."
12. Attorney-v- Jones (1990) 2 All ER 636 regarding approach to interpretation to section 42 Supreme Court Act 1981 may be by implication overruled in any event by approval of Re Boaler (1915) 1 KB 21 in Ex parte Ewing (No 2) (1994) 1 WLR 1553
13. In construing consolidating Act, Parliament presumed not to alter existing law, see Gilbert -v- Gilbert (1928) P 1, per Scrutton LJ and R -v- Governor of Brixton Prison ex parte De Demko (1959) 1 QB 268, per Lord Evershed MR.
14. Also presumption that words in present statute bear same meanings as former, see Crook -v- Edmondson (1966) 2 QB 81, and therefore cannon of interpretation applied in Re Boaler (1915) 1 KB 21 still applicable to whole of section 42 Supreme Court Act 1981.
15. Authorities considered and fully discussed in Maxwell on the Interpretation of Statutes 12th Edition at pages 20-25.
16. Strict literal rule applicable to abrogation of rights of citizens applied in Re Boaler (1915) 1 KB 21, per Kennedy LJ pages 34-35,
"But if it includes an abridgement of the rights of the subject in regard to redress for crimes committed in regard to his person or his property, one would, I venture to think justly expect the Legislature, instead of using words of general import, to make it quite clear that criminal proceedings were intended to be included in the enactment. "Statutes which encroach on the rights of the subject whether as regards person or property, are similarly" (the learned author has in the preceding chapter been dealing with the construction of Penal Acts)" subject to a strict construction..... It is a recognised rule that they should be interpreted, if possible, so as to respect such rights." (Maxwell on the Interpretation of Statutes, 5th ed. p 461.)"
17. See principle further expounded in Re Boaler (1915) 1 KB 21, per Scrutton LJ pages 38-39,
"------------------------------------------------------------------------------------a strict construction of penal laws, or statutes encroaching on rights, especially the liberties of the subject, or imposing burdens; all are cases where general words have been cut down to a narrower meaning in endeavouring to seek the intention of the Legislature, not from the widest meaning of the words used, but from the considerations that must have influenced Parliament in framing the enactment."--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------"In the case of this statute the Legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting parts of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights."
18. Again in Re Boaler (1915) 1 KB 21, per Scrutton LJ page 41 principle overwhelmingly applied to construction of Act,
"I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used."
19. Contended therefore that strict literal interpretation should be given to word "made" in section 42(1) Supreme Court Act 1981, and that if ambiguous, least onerous and favourable meaning should be given in favour of Respondent.
WHETHER HM ATTORNEY-GENERAL AND SOLICITOR-GENERAL HAVE BEEN LAWFULLY APPOINTED TO THEIR POSTS
1. Positions of HM Attorney-General and Solicitor-General purportedly granted by Letters Patent under Great Seal, see Letters Patent Act 1571.
2. Not conceded that present Great Seal has been authorised by Gt Seal Act 1688 and Gt Seal Act 1884. Present Seal may be forgery or may not exist at all.
3. Not conceded that Gt Seal if exists has been kept as authorised by Gt Seal Offices Act 1874 or Crown Office Act 1890 or Court of Chancery.
4. Not conceded that either HM Attorney-General or Solicitor-General were ever lawfully issued with Letters Patent at all, or that these were lawfully issued under Gt Seal. If so issued, not conceded that they were genuine.
5. Not conceded that either Law Officer sworn into office by Lord Chancellor under section 12(4) Promissory Oaths Act 1868, or that such ceremonies took place in present case with Law Officers.
6. Not conceded that either Law Officers appointed by Monarch to positions of office or advised to do so by Prime Minister.
7. If Law Officers not properly sworn into office, or in possession of necessary Letters Patent issued under Gt Seal, then not lawful office holders and accordingly could not exercise power to authorise application for "Civil Proceedings Order" under section 42(1) Supreme Court Act 1981, and Order a nullity ab initio.
8. No evidence of any of these matters before Divisional Court at all, see affidavit sworn by Treasury Solicitor Ms Charlotte Isobel Martin on 16 February 1996.
9. Contended that these matters must be formally proved, and cannot be taken judicial note of, or be assumed to have taken place in accordance with correct lawful procedure.
CHALLENGING DECISION TO APPLY FOR "CIVIL PROCEEDINGS ORDER" OF GOVERNMENT LAW OFFICERS
1. Contended that decision of either HM Attorney-General or Solicitor-General to make application for "Civil Proceedings Order" against Respondent, arbitrary oppressive and abuse of process of court.
2. No evidence before Divisional Court that either relevant Law Officer failed to acquaint himself personally with facts of Respondent's case, see affidavit sworn by Treasury Solicitor Ms Charlotte Isobel Martin on 16 February 1996.
3. See also test approved by House of Lords in Gouriet and ors -v- Attorney-General and ors (1977) 3 All ER 70, per Viscount Dilhorne page 89 para J to page 90 para A,
"However clear it appears to be that an offence has been committed, it is, as Sir Hartley Shawcross then Attorney-General said in 1951, the Attorney-General's duty "in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public opinion morale and order." (See Edwards, p. 223.)
This approach which the Attorney-General should make when considering whether a prosecution should be started, is in my opinion the kind of approach he should have made to the question of giving his consent to Mr. Gouriet's application.--------------------------------------------------------------------------------------------------------------------------------In the discharge of any of the duties to which I have referred, it is, of course, always possible that an Attorney-General may act for reasons of this kind and may abuse his powers."
4. See also Attorney-General -v- Williams CO/905/95 April 22 1996 DC (1996) COD 386, per Pill LJ, where held that it appropriate for evidence to be before court that Law Officer had considered papers in case and had given merits of application his personal consideration, as well as simply his consent for making of application, due to nature of Order regarding fundamental right to bring proceedings before courts.
5. Prejudicial and tarnishing effect of the making of "Civil Proceedings Order" was illustrated in HM Attorney-General -v- Cutler (1987) 5 November, Supreme Court Library transcript, per Woolf LJ at page 5 para H to page 6 paras A-B,
--------------------------------------------------------------------------------------"Nonetheless it is right that this court should bear in mind that an order under section 42 of the Supreme Court Act 1981 is a formidable one which should not be taken lightly by any court, because it restricts a particular litigant in a way in which the remainder of the public are not restricted. Therefore to that extend it impinges upon his rights as an individual and reflects upon him as a citizen."
6. If "Civil Proceedings Order" obtained arbitrarily against Respondent affecting his reputation, then breach of article 12 Universal Declaration of Human Rights 1948 which provides,
"No one shall be subjected to arbitrary ---------------------------------attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
7. See also article 17 International Covenant on Civil and Political Rights 1966 which provides,
"No one shall be subjected to---------------------------------------------------unlawful attacks on his honour and reputation."
8. Respondent contends that as no evidence before Divisional Court of consent of either relevant Law Officer, but also that he had personally considered papers in case and merits of application, then application for "Civil Proceedings Order" not "made" under section 42(1) Supreme Court Act 1981 by either HM Attorney-General or Solicitor-General if properly authorised.
9. Respondent contends that even if proved that relevant Law Officer authorised application, "Civil Proceedings Order" would still therefore be nullity ab initio, if personal consideration not given to papers and merits of application as not therefore application of Law Officer, and brought without locus standii.
10. Therefore application for "Civil Proceedings Order" complete misuse of statutory powers for ulterior purpose that not original intention of section 42 Supreme Court Act 1981, see Municipal Council of Sydney -v- Campbell and ors (1925) AC 338, per Duff J.
"A body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the courts will interfere. As Lord Loreborn said, in Marquess of Clanricarde v. Congested Districts Board (1914) 79 J.P. 481: "Whether it does so or not is a question of fact.""
11. Respondent contends that court should review actions of government Law Officers who should be accountable before courts for their actions regarding applications for Civil Proceedings Orders under section 42(1) Supreme Court Act 1981.
12. Gouriet and ors -v- Attorney-General and ors (1977) 3 WLR 300 and R -v- Solicitor-General ex parte Taylor (1996) 8 Admin LR 206, (1996) COD 61, not therefore relevant to this kind of case due to nature of Order being obtained, apart from reference in Gouriet and ors -v- Attorney-General and ors (1977) 3 All ER 70, per Viscount Dilhorne page 89 para J to page 90 para A.
13. R -v- Solicitor-General ex parte Taylor (1996) 8 Admin LR 206, (1996) COD 61 only decision of Divisional Court and should be overruled by Divisional Court as not subject to state decisis rule, see R -v- Greater Manchester Coroner ex parte Tal (1985) QB 67.
14. This principle recently applied in R -v- Governor of Brookhill Prison ex parte Evans and R -v- Governor of Onley Young Offender Institution Rugby ex parte Reid, 15 November 1996, Crown Office List transcript, per Bingham LCJ, where Divisional Court overruled 4 previous decisions of Divisional Court relating to calculation of remand time under section 67(1) Criminal Justice Act 1967 as amended.
15. Contended that same principles for review of Law Officers regarding applications for Civil Proceedings Orders should apply as approved by House of Lords in Council of Civil Service Unions -v- Ministry for the Civil Service (1985) AC 374, per Lord Diplock at page 410 para D,
"By 'illegality', I mean that the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it------------------------------------------------------------------------by 'irrationality', I mean 'Wednesbury' unreasonableness-------------------------------------------------------------------------------------------------------I have described the third head as 'procedural impropriety' rather than a failure to observe the basic rules of natural justice."
16. This even more so in view of observations of Pill LJ in Attorney-General -v- Williams CO/905/95 April 22 1996 DC (1996) COD 386.
WHETHER OFFICES OF HM ATTORNEY-GENERAL ACTUALLY EXIST IN LAW OF CONSTITUTIONALLY
1. Not conceded that posts of HM Attorney-General or Solicitor-General actually exist in law as not created by statute, see R -v- Solicitor-General ex parte Taylor (1996) 8 Admin LR 206, (1996) COD 61(1996) COD 61, per Stuart-Smith LJ and Butterfield J, where held that Law Officers not amenable to Judicial Review, but situation might have been different if offices of Law Officers created by statute.
2. Post of Law Officers like Prime Minister which holds no actual legal authority at all as created by custom in 18 Century stemming from William Pitt the Younger.
3. If created by unwritten constitution, can be made up as go along, see Princess Diana saga regarding whether she could ascend to throne as divorcee etc. and abdication crisis re Mrs Simpson's position as Queen being divorcee concocted by Stanley Baldwin with no legal force whatsoever.
4. Not conceded that Law Officers posts ever historically and legally created even under unwritten constitution, either by Parliament or by any previous Sovereign by Prerogative powers or otherwise, or by common law by courts.
5. Leading text book on this subject entitled "The Law Officers" published in 1964 and Halsbury's Laws do not clarify issue at all.
6. Appears that first HM Attorney-General appointed in 1315 as King's Advocate and first Solicitor-General in 1461, but no guidance on who authorised this, or its legal or constitutional validity.
7. Post of HM Attorney-General took its present name at a later stage however.
LENGTH OF "CIVIL PROCEEDINGS ORDER" AGAINST RESPONDENT
1. Section 42(2) Supreme Court Act 1981 provides,
"An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely."
2. Divisional Court must always specifically apply its mind to issue of whether a "Civil Proceedings Order" should remain in force for "a specified period" or "indefinitely" under section 42(2) Supreme Court Act 1981.
3. If Divisional Court does not deal or consider issue of length of Civil Proceedings Order" therefore has no jurisdiction to make Order at all which would be nullity ab initio.
4. Divisional Court must therefore afford opportunity to Respondents to make submissions on length of Order as clearly entitled to be heard regarding issue in accordance with principles of natural justice, and Respondent must be given adequate opportunity of dealing with specific issue, see R -v- Chief Constable of North Wales ex parte Evans (1982) 1 WLR 1155.
5. This extremely important, as Order remains in force "indefinitely" and cannot be set aside by subsequent court unless nullity ab initio.
6. See Rohrberg -v- Charkin Times Law Report 30 January 1985, Supreme Court Library transcript 85/15, regarding to both Orders under section 51 of the Supreme Court of Judicature (Consolidation) Act 1925 and section 42(1) of the Supreme Court Act 1981, per Donaldson MR at page 1 para H to page 2 para A and para C-F,
"So far as section 51 is concerned, there is no power in that section or elsewhere in the Act for the court to consider whether an order made under that section should be discharged.-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
So far as section 42 of the 1981 Act is concerned (which, as I say, is not directly relevant to Miss Rohrberg's case, since her order was made under the 1925 Act) it is in all material respects save one the same as the corresponding section under the 1925 Act. That exception is in subsection (2), which provides that an order under section (1) may provide that it is to cease to have effect at the end of the specified period, but otherwise remains in force indefinitely. If there is any assistance to be obtained from the 1981 Act it is to suggest that the scheme of this particular statutory provision is that unless the order itself contains some limitation it is indefinite in duration.
Accordingly, I would hold, as did the Divisional Court, that neither the High Court, nor the Divisional Court as part of it, has any jurisdiction to entertain an application to discharge an order, made either under section 51 of the 1925 Act or under section 42 of the 1981 Act, although there is undoubtedly a power in the Court of Appeal to entertain an appeal limited to the issue of whether the order should have been made originally."
7. Provision for Civil Proceedings Orders for a "specified period" only came into force with section 42(2) Supreme Court Act 1981, as not previously included in section 1 Vexatious Actions Act 1896 or section 51 Supreme Court of Judicature (Consolidation) Act 1925, so that Orders made under those provisions were automatically indeterminate in length.
8. Unless court specifically rules on length of "Civil Proceedings Order", then provisions of section 42(2) Supreme Court Act 1981 rendered otiose.
9. Appears to be case that any indeterminate or maximum Disqualification or restriction order should be reserved for only the most serious of cases, as case with Orders made by Crown Court under section 2(1) and 2(2)(b)(c) Company Directors Disqualification Act 1986.
10. See R -v- Millard (1993) 15 Cr App R (S) 445, per McCowan LJ at page 448 approving Re Seven Oaks Stationery (Retail) Ltd (1991) Ch 164, per Dillon LJ at page 174 paras E-G,
"I would for my part endorse the division of the potential 15-year disqualification period into three brackets,------------------------------------(i) the top bracket of disqualification for periods over 10 years should be reserved for particularly serious cases.----------------------------------------(ii) The minimum bracket of two to five years' disqualification should be applies where, though disqualification is mandatory, the case is relatively, not very serious. (iii) The middle bracket of disqualification for from six to 10 years should apply for serious cases which do not merit the top bracket."
Dated this 17 day of February 1997 Signed
LEWIS FRANK FOLEY
Respondent