Lord Hoffmann and the Smoking Gun

So (h/t Gregg Callus) there is a very interesting story in the Scotsman about potential impending tobacco litigation.  Philip Morris wants, we are told, to claim £11bn for the forthcoming requirements that death sticks have to be sold in plain packaging with pictures of cancerous growths on them.  I resist the urge to make this a compensation culture, human rights gone mad story because the story appears to be as least partially true.  Here are some excerpts from the report:

'Karl' Marx: Property is theft. Smoking related trademark infringement on the other hand...
‘Karl’ Marx: Property is theft. Smoking related trademark infringement is billion dollar larceny

TOBACCO giant Philip Morris is to launch the biggest corporate compensation case in history against the UK and Scottish Governments over the decision to impose plain packaging on cigarettes….

Legal advice from former Advocate General of Scotland Lord Davidson of Glen Clova and retired judge Lord Hoffman says the policy breaches international law on image rights and the Human Rights Act.

…Papers seen by The Scotsman show that Lords Hoffman and Davidson consider that trademarks are protected under European law and forced removal of them is a “deprivation of property” and breach of Article 1, Protocol 1 of the European Court of Human Rights, and Article 17 of the EU Charter of Fundamental Rights, both of which apply in Scotland and England.

Now this is quite a carefully worded passage intended to convey the impression that their Lordships have advised that the tobacco litigation will succeed, which their advice may not in fact say.  The passage after the one that is paraphrased may have a massive great big lawyers BUT in it: “Even were the trademark infringement argument to succeed… [followed by a long list of reasons why Philip Morris and their ilk will fail”.

However that is not what interests me for the present.  What interests me for the present is whether Lord Hoffmann should have advised at all (assuming the report is correct).  By the marvel that is twitter, I am indebted to the former Court of Appeal judge, Sir Henry Brooke, who pointed towards para. 9.1 of the Guide to Judicial Conduct 2013  (although para. 9.2 may also be relevant):

9.1 The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/ mediator and may receive remuneration for lectures, talks or articles.

9.2 Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.

On the face of it, there is a potential breach of para. 9.1 if Lord Hoffmann advised in the course of private practice as a barrister.   Lord Hoffman appears to still practice as a mediator and arbitrator through Brick Court Chambers.  I suppose we could wonder whether his advice was given as a barrister or in some other capacity?  He is providing exactly the sort of services 9.1. appears to want to preclude and whether he is formally doing that as a barrister or not is (I think) immaterial really: it’s his status as a former Law Lord which is crucial not whether he is now practising as a barrister or not.  Another possibility is that Lord Hoffmann is not, or does not feel, bound by the Guide (he retired from the highest court in 2009, I believe and I do know what rules (if these are indeed rules) was in place then.  May be that provides a somewhat inglorious excuse.  Or perhaps he advised big tobacco pro bono in his capacity as a private citizen, rather than (and here I am merely being mischievous) on a no win no fee basis.

I’ll leave it to others to debate the application of para. 9.2. but I do want to say this.  There is a way of writing an opinion so that it gives clients as much comfort as possible on their case.  Legal aid opinions were one such area where, many years ago, I was told by a really rather senior barristers how the language could be finessed to get a case with very (very) modest prospects of success through a (then much looser) legal aid merits test.  These hired gun opinions are even more dangerous when they are to be used for PR purposes. Now of course, as I have noted, we do not have all of the opinion given here (if indeed an opinion was in fact given or given in writing) and we have even less reason, for now at least, to think any of the lawyers involved knew the opinion would be used for publicity purposes (something the Bar recently permitted).  Any opinion may have been selectively or inaccurately reported.  Whether that is true or not is important but in some ways irrelevant: the potential for abuse is significant and it illustrates the perils rather nicely of the retired, senior judiciary being willing to take up an advisory role in any capacity that they relinquished on joining the bench, particularly if they are to be wheeled out by private interests in matters of such public controversy.  Perhaps there should be a rule against it, and perhaps we should call it Rule 9.1.



There is some more background to the debate here. The view of the Judicial Council would have been given when Hoffmann was still on the bench.  http://royaldutchshellplc.com/2007/11/05/legal-week-straw-will-not-let-judges-return-to-private-practice-see-footnote-relating-to-mr-justice-laddie-judge-for-the-shelldonovan-trial/ 
h/t Jeremy Hopkins to pointing to this which is either a previous similar opinion or the opinion referred to http://ift.tt/1Gv8ghQ

6 thoughts on “Lord Hoffmann and the Smoking Gun

  1. Reblogged this on | truthaholics and commented:
    “The general rules of judicial immunity do not extend to giving a judge or magistrate an open licence to be corrupt or oppressive. Corruption would be a ground for prosecution. Oppressive conduct would result in the removal of a magistrate, and the same fate might befall an oppressive judge.” [‘Foundations of law Constitutional and administrative law de Smith’ – Fourth Edition – pages 372 & 373 – published by Penguin Education]

      1. I know Richard and thanks for the clarification as well as a very nuanced analysis (which we’ve reblogged also with that thought-provoking comment.) You’ve raised some very pertinent questions here over big business, brand image exploitation, post-retirement judicial conduct and how well they should sit together. In a functional democracy no one can have their cake and eat it too, without manifesting a conflict of interest, at least in theory, perhaps if not so much in practice. I hope this story goes viral and generates much-needed debate, discussion and ultimately, some measure of social reform and proper accountability.

  2. Hear ,hear about Rule 9.1. As a (very recently retired) solicitor, it always struck me as essential that such a rule be maintained. Sad to see that one so eminent appears to be in breach of such a golden principle.

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