26 October 2013

R v Gul and Dworkin's Model

Ronald Dworkin explains the legal process in Law's Empire. Students may benefit from reading this and other jurisprudence. This post attempts to explain how a short paragraph in Law's Empire may help students understand what happens in case law.

(EDIT: The material in this post is examined again in my next post, 'Dworkin and Gul Continued'. That post takes issue with this one. I also add the following headnote material:)

Supreme Court

[2013] UKSC 64

23 October 2013

R = Prosecution/Respondent
Gul = Defendant/Appellant (D)

Lord Neuberger, Lady Hale, Lord Judge, Lord Hope, Lord Mance, Lord Kerr, Lord Reed.

1. Dworkin's Words

Dworkin states:
Lawsuits (…) raise (…) three different kinds of issues: (…) fact, (…) law, and the twinned issues of political morality and fidelity. First, what happened? (…) Second, what is the pertinent law? (…) Third, if the law [for example] denies compensation, is that unjust? If so, should judges ignore the law and grant compensation anyway? (Law's Empire (Hart 1998) 3.)
Dworkin scrutinises these issues. This post tries to apply the quote to a recent case, R v Gul [2013] UKSC 64, to see if Dworkin's steps provide a usable framework for case analysis.

2. Introduction to R v Gul

Lord Neuberger and Lord Judge wrote the court's opinion. Five other Supreme Court Justices agreed with their determination, with no dissents. Lords Neuberger and Judge explain:
  1. D appealed against his sentence and conviction for breaching the Terrorism Act 2006 s 2;
  2. Both appeals were dismissed;
  3. So D went further--to the Supreme Court--to debate 'terrorism's' meaning in the Terrorism Act 2000 s 1.

2.1 Factual Issues

D uploaded videos of terrorist attacks by, eg, Al-Qaeda against targets in Chechnya and Iraq. D praised their bravery and encouraged others to emulate the filmed behaviour. Praising terrorist behaviour is iniquitous, but it must be legally prohibitted (ie be a crime) to convict someone for giving that praise.

2.2 Legal Issues

The Terrorism Act 2006 s 2(2)(a) proscribes distributing terrorist publications, which are defined in s 2(3). 'Terrorism' itself is defined in Terrorism Act 2000 s 1. So far, this is unproblematic. Ordinarily, distributing videos of identified terrorists such as Al-Qaeda members easily fits into the 'illegal' classification.

In this case, however, D argued that terrorism did not easily or clearly apply to the uploaded videos. That is, D was convicted because terrorism is defined broadly. Under that same breadth, D argued the victims themselves should have been classed as terrorists due to their armed occupation of a sovereign State. As such, D claimed the videos portrayed self-defence. If the videos were not 'terrorist publications', D could not have breached s 2 in the Terrorist Act 2006.

The legal issue according to Dworkin's suggestion, then, concerns whether 'terrorism' is so broad that a conviction which relies on it's definition would be unjust.

The Court of Appeal said:
Does the (…) Terrorism Act 2000 (…) include within its scope (…) all military attacks by a non-state armed group against any (…) state or inter- governmental organisation armed forces in the context of a non- international armed conflict? (at [2013] UKSC 64 [8] (my emphasis).)
If the answer is 'yes', the films D uploaded to the internet were of terrorists. If the answer is 'yes' and that answer would result in an injustice, should the court quash D's conviction even if the law states D should be convicted?

The answer was 'yes' and the court ignored whatever spurious injustices may have existed: the court sensibly upheld D's conviction for encouraging terrorists.

2.3 Policy

Dworkin's 'morality and fidelity' are sometimes grouped under 'policy' when others write about the same ideas. Gul pivots on these sorts of considerations.
  • Broad definitions make it difficult for citizens to know what actions will result in a conviction;
  • So broad definitions are usually unacceptable;
  • If the Terrorism Acts are too broad, then some 'non-state armed group[s']' military action may fall outside the Acts' scope;
  • If some action falls outside that scope, the action filmed in D's videos may not be terrorist, after all; and
  • D may not have committed an offence for circulating 'terrorist publications' under Terrorist Act 2006 s 2;
  • So D's conviction may have been unjust.

The court writes the problem in words remarkably consilient with Dworkin's:
Despite the undesirable consequences of (…) the very wide definition of “terrorism” (…) it is difficult to see how the natural, very wide, meaning of the definition can properly be cut down by this Court (at [38]).
This means that whatever possible injustice, a sufficient, better definition for 'terrorism' does not exist. The court decided to interpret and apply the law with 'fidelity' to the legislature.

3. Conclusion

The main ideas in Gul are easy to grasp in a single read through. However, some subtleties render this case difficult to understand. This is due to the court's reluctance to follow logic through to its final conclusions (see [28] in particular): if they were fully to conclude, the result may have been to admonish British and Coalition armed forces for terrorism. For obvious reasons, the court is unlikely to enter such a debate. For a start, and to limit this criticism by legal technicalities, it would undermine the judiciary's separation from politics, and therefore undermine their position under a constitution that promotes barriers between law-making and its application.

Perhaps due to this subtlety, I do not think my attempt succeeds in its attempt to prove Dworkin's short paragraph, quoted above, is helpful for law students. That is not to say I do not think Dworkin is useful for law students. Rather, it is to suggest that my experiment has failed to illustrate Dworkin's three-part framework is helpful for elucidating case law.

However, it may be a more fundamental problem from one of three places: one, my logic; two, the court's unusual and subtle evasion; or three, Dworkin's theory.

I have a feeling it is a combination of all three. One, Gul and Law's Empire are complex texts, which I do not (or fail to) do justice to. Two, the court's evasion confuses their reasoning. And three, Dworkin's three-part thesis is correct in principle but the third step is largely impractical because it groups together too many judicial reasoning techniques. Whatever the reasons, applying Dworking to Gul in this example feels artificial.

Created: 26 October 2013. Version 1.1: 29 October 2013.

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