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Sir Stephen Sedley, (born 9 October 1939), styled The Rt. Hon. Lord Justice Sedley was a judge of the Court of Appeal of England and Wales from 1999 to 2011.
[edit]Family background
His father was Bill Sedley (1910–1985), of a Jewish immigrant family, who operated a legal advice service in the East End of London in the 1930s.[1][2] In the War he served in North Africa and Italy with the Eighth Army.[3] He founded the firm of lawyers of Seifert and Sedley in the 1940s with Sigmund Seifert and was a lifelong Communist.[1]
[edit]Legal career
After graduation from Queens' College, Cambridge, Stephen Sedley was called to the Bar (Inner Temple) in 1964[4] and started practice in chambers with John Platts-Mills.[3] He was involved in many high-profile cases and inquiries, from the death of Blair Peach and the Carl Bridgewater murder trial to the contempt hearing against Kenneth Baker, then Home Secretary.[5]
He became a QC in 1983. He was appointed a High Court judge in 1992, serving in the Queen's Bench Division. In 1999 he was appointed to the Court of Appeal as a Lord Justice of Appeal.[4] He retired from the Court of Appeal in 2011 following the publication of a collection of his essays and lectures.[6]
[edit]Notable judicial opinions
He has provoked considerable debate about the role of government in collecting and keeping DNA samples. At present criminal suspects detained by the police in the UK automatically are givencheek swabs and their DNA kept, in perpetuity, by the government. This has created the situation where different races are differently represented in the United Kingdom National DNA Database. On the grounds that this situation is indefensible, Lord Justice Sedley argued for a blanket DNA collection policy, including collecting samples from all visitors to the UK.[7]
[edit]Published works
- Ashes and Sparks: Essays On Law and Justice. Cambridge University Press. 2011.
- The Seeds of Love: A comprehensive anthology of folk songs of the British Isles compiled and edited by S. Sedley and published in association with the English Folk Dance & Song Society. Essex Music Ltd.. 1967.
- (with Lawrence Kaplan, editors) (1992). A Spark in the Ashes: The Pamphlets of John Warr. Verso Books.
- (with Geoffrey Wilson) (1997). The Making and Remaking of the British Constitution (Law in its Social Setting). London: Blackstone Press.
- Freedom, Law and Justice (50th series of Hamlyn lectures).
2007.9
DNA FROM ALL
A senior British judge has called for a much bigger DNA database in the UK in the fight against crime. Sir Stephen Sedley a member of the Court of Appeal says everyone who lives in Britain - and everyone who visits the country too - should be required to give a DNA sample. The UK already has more than four million DNA profiles on file - the largest such database in the world. And this resource does help police solve as many as 20,000 crimes a year. But would a DNA database with 70 million profiles be a realistic and practical possibility? Stephen Beard reports.
What’s the best book you’ve read so far this year?
Stephen Sedley’s “Ashes and Sparks.” Sedley was a senior judge in our court of appeal until last year and in this collection of essays he writes on a range of issues that concern the individual and the state. He belongs, as one commentator noted, to the English tradition of radical nonconformism — the title is taken from a 17th-century Leveller pamphlet. But you could have no interest in the law and read his book for pure intellectual delight, for the exquisite, finely balanced prose, the prickly humor, the knack of artful quotation and an astonishing historical grasp. A novelist could be jealous.
斯蒂芬·塞德利(Stephen Sedley)的《灰燼與火花》(Ashes and Sparks)。 塞德利是英國上訴法院的高級法官，去年退休。這本散文集里的文章涉及個人和國家的一系列問題。就像一位評論員說的，他屬於英國傳統上那種“激進的不墨守成 規的人”——這個書名取自17世紀平均派(Leveller)的一本小冊子。但是，如果你對法律沒有任何興趣，你也可以純粹出於智性的愉悅去讀它，這是本 細膩的、精心調和的散文，有辛辣的幽默，巧妙的引用，以及對歷史的驚人解讀。文筆好得連小說家都羨慕。
Contents
Preface
| ix |
Acknowledgements
| xix |
Part I History
| 1 |
1 Victors’ justice
| 3 |
2 Above it all
| 17 |
3 Reading their rights
| 29 |
4 From victim to suspect
| 42 |
5 Farewell sovereignty
| 49 |
6 No law at all
| 56 |
7 The sound of silence
| 64 |
8 The spark in the ashes
| 88 |
9 Wringing out the fault
| 101 |
10 Everything and nothing
| 122 |
11 Skulls and crossbones
| 131 |
Part II Law
| 139 |
12 Justice miscarried
| 141 |
13 Breaking the law
| 147 |
14 Declining the brief
| 153 |
15 Big lawyers and little lawyers
| 161 |
16 Parliament, government, courts
| 170 |
17 Judges in lodgings
| 181 |
18 Mice peeping out of oakum
| 187 |
19 Justice in Chile
| 192 |
20 Never do anything for the first time
| 200 |
21 Rarely pure and never simple
| 213 |
22 Law and plumbing
| 225 |
23 The Laws of Documents
| 228 |
Part III Justice
| 231 |
24 The right to know
| 233 |
25 The moral economy of judicial review
| 246 |
26 Policy and law
| 255 |
27 Responsibility and the law
| 263 |
28 The Crown in its own courts
| 269 |
29 Human rights – who needs them?
| 285 |
30 Fundamental values – but which?
| 295 |
31 Overcoming pragmatism
| 302 |
32 Sex, libels and video-surveillance
| 311 |
33 This beats me
| 325 |
34 Public inquiries: a cure or a disease?
| 335 |
35 Human rights: a twenty-first century agenda
| 348 |
36 Are human rights universal, and does it matter?
| 365 |
37 Bringing rights home: time to start a family?
| 377 |
38 The four wise monkeys visit the marketplace of ideas
| 391 |
Index
| 407 |
Preface
I
I wish I could present this collection of lectures and articles as a rounded philosophy of law and justice. While I have things to say on both subjects, I aspire to be neither Rawls (whom I did not know) nor Dworkin nor Sen (both of whom I know and admire). This is partly at least because what they do is macro-justice, while I do micro-justice. Although in a moment of self-parody many years ago I added ‘changing the world’ to my banal list of hobbies in Who’s Who (a recreation which the Daily Mail, whenever it denounces me, cites with the utmost solemnity), the most a barrister or judge can ordinarily do is change the future for a few individuals.
As a judge, too, one can occasionally, superior courts permitting, change the law for the better. While this book does not include any of my judgments (a collection of extrajudicial writings is vanity enough), I hope I have done something in this direction. I have at least enjoyed the experience of first being declared a heretic by my judicial superiors for advancing the boundaries of what citizens can legitimately and enforceably expect from the state1 and then, as heretics do if they are spared the flames, watching the heresy become orthodoxy.2
II
It may have nothing to do with anything, but reading English at Cambridge between 1959 and 1961 still strikes me as the best thing I ever did. The English school was full of learning and ideas, and (apart from Frank Leavis, who had made an enemy of practically everyone) it was not yet split by factional quarrels. To listen to C. S. Lewis on mediaeval literature, to Muriel Bradbrook on the Elizabethans, to David Daiches on Burns, to George Rylands on the Augustans and to George Watson on the literary critics; to be taken word by word through a piece of verse by Leavis, as skilled a close reader as he was a sectarian literary snob; to be tutored by such poets and critics as John Holloway and Donald Davie (I found too late that I could have had Siegfried Sassoon as a tutor): it was all more than any student could have hoped for.
After that, reading for the Bar seemed the nearest one could come to prolonging the lotus-eating years. Entry was not problematic: the Bar of England and Wales had shrunk in the post-war years to about 2,000 (compared with its present 14,000-odd) but, with the dawning realisation that legal aid was a respectable way of earning a living, work was starting to expand. The examinations in those years were not demanding. You could memorise the full syllabus for a paper in about six weeks; some of the lecturers were known to devote their final lecture to the topics that were going to come up; and if you failed you could retake the exam as often as you wished. The part of the course that caused me greater difficulty was eating six dinners a term for three years in my inn of court. I miscounted them in my final term, the summer of 1964, and, having eaten only five, was refused call to the Bar until I had eaten my way through another full term.
Being able to corral legal studies into short bursts of intensive rote-learning made it possible to combine them with earning an erratic but stimulating living as a musician and interpreter. I had little talent for either, but it paid the rent. I still have the guitar I lent one evening in 1962 at the Troubadour folk club to a tousled young American whose first LP had just been released in the States. We played a jam session which lasted into the small hours; then he went his way and I went mine.
Within days of being called to the Bar I found myself, as most of my contemporaries did, in court: there was no moratorium on practice. I learned, as we all did, partly through precept and example in the course of pupillage but mainly at clients’ expense by making mistakes. Nearly half a century later, I can remember every detail of the pro bono petition on which I was briefed, still a pupil, for special leave to appeal to the Privy Council against a murder conviction in Jamaica. The three Law Lords could not have been more civil, but in spite of errors in the trial so obvious that even I could see them, leave was refused, as it practically always was at that time in criminal cases. I never had the nerve to find out whether, by the time, a few months later, that all the prisoners on death row in Kingston were reprieved to mark a royal visit, Isaac Cornish had been hanged.
© Cambridge University Press Ashes and Sparks
Cambridge University Press
9781107000957 - Ashes and Sparks - Essays on Law and Justice - By Stephen Sedley
Excerpt
1 Victors’ justice
There is an ironic background to this essay on the future of international criminal jurisdiction.
It was to have been delivered as the Lionel Cohen lecture at the Hebrew University of Jerusalem in June 2002. At the end of March that year, as I was preparing it, the Israeli attack on Jenin occurred. Friends (Jewish friends as it happened) forwarded to me an eyewitness account of appalling events which Israel then and since has refused to allow to be independently investigated. I am among the many Jews worldwide who feel shame at Israel’s repeated violations of international law, and I withdrew from the lecture.
Among the messages which reached me from Israel were some from scholars who felt as I did and had hoped for support. To them I apologise: perhaps I should have gone and spoken my mind. Others pointed out to me that, whatever its faults, Israel is a democracy. To them I replied that in a democracy protests count, and this was my protest.
A few days later the Plymouth Law Society invited me to give that year’s Pilgrim Fathers lecture, and I delivered in Devon the paper I had intended to give in Jersualem. It was published subsequently in the London Review of Books.
On 11 August 1942 Joseph Bursztyn, a doctor in the French Resistance, was executed as a hostage in reprisal for Resistance attacks on German troops occupying Paris. The previous month his wife had been arrested by the Vichy police and deported to the German death camps. Their small daughter, Claire, who was saved by neighbours, has lived to see Maurice Papon, who was responsible for her mother’s deportation, released after less than three years in prison.
On a summer’s day in 1944, with France newly liberated, Henri Boleslawski, who during the Vichy years had worked quietly as an official in the prefecture of Tulle forging identity documents for the Resistance and for the Allied airmen they were sheltering, put his daughter, Liliane, on his shoulders to watch the execution of a collaborator in the Place du Champ de Mars. For Henri, it was a moment of historic justice; for Liliane, it was an image of cruelty which has never left her.
My purpose in recounting these things is not only, out of the hundreds of thousands of courageous individuals who lost or risked their lives throughout Occupied Europe, to mark the memory of two who happen to have been members of my family. It is to point up the complex meaning of justice in a world broken apart, as the twentieth century world was, by conflicts in which justice and power were inexorably and repeatedly collapsed into one another. In a militarily occupied country, versions of justice necessarily start from opposite and irreconcilable premises. The occupying power builds on its de facto authority, the occupied nation on its moral legitimacy. Who tries and executes whom in such a conflict depends on the momentary possession of power, nothing else. Justice follows; it does not lead.
When responsibility for conflict is audited, as responsibility for the Second World War was audited in Nuremberg and Tokyo, it has historically been the prerogative of the victors to determine where justice lies. When in 1960 Adolf Eichmann was tracked down in Argentina and kidnapped by Israel, the want of any international court to try him and the want of any solid basis in international law for the exercise of jurisdiction by Israel were not allowed to stand between him and the gallows. The watching world, myself included, asked itself only which was worse: to try him or to let him go. For the rest, justice once again followed in the wake of power.
That, and very much more, was the twentieth century, the bloodiest yet. It has been estimated that 187 million people perished in its wars. The twenty-first century is fully capable of surpassing it; but I am not willing to assume that it will be a race to the bottom. Without becoming a proleptic Whig historian, I want to look at the almost counterfactual emergence in very recent years of an institutional shift towards the recognition and enforcement by impartial tribunals of individual responsibility for the kinds of crime which, for most of the twentieth century, were perpetrated in the name of states and regarded as almost entirely beyond the reach of legal process.
I say ‘almost entirely’ because, while the Allies’ tribunals at Nuremberg and Tokyo dispensed individual justice on charges of levying a war of aggression and of crimes against peace, much wider preparation had in fact been made for a new judicial order in the event of an Allied victory. In January 1942 the Declaration of St James had placed among the Allies’ principal war aims the punishment of those who, at whatever level, had been responsible for civilian massacres and the execution of hostages; though by the end of the war the UN War Crimes Commission was in doubt as to whether the taking of hostages was itself a war crime – oddly, since the point of taking hostages is to be able to execute them. In the end, it was the newly liberated states and the Allied powers who conducted local war crimes trials on a now forgotten scale: by the early part of 1948 almost two thousand Germans and Japanese who had had positions of command had been sentenced to death by these tribunals for atrocities against civilians or prisoners. The trials ran on into recent years as some of the surviving war criminals – Barbie, Touvier and Papon in France, for example – were finally flushed out.
There remain, however, stronger criticisms of the war crimes tribunals than the laxity of procedure which so enraged Norman Birkett, the alternate British judge on the Nuremberg court. The composition of the tribunals had no semblance of impartiality: every judge was a national of one of the victorious Allies. The dissent of the Indian judge at Tokyo, Justice Rahabinod Pal, still stings in its denunciation of the retrospective criminalisation of aggressive war (meaning, inevitably, the war waged by the loser); but his equally passionate denunciation of individual criminal responsibility for acts of state rings less true today. It is nevertheless a peculiar irony, in the light of the crisis now afflicting the newborn International Criminal Court, that one reason why Justice Pal was able to hold that there was no customary law making officers of state personally responsible for atrocities committed under their orders was that, in 1919, the two American members of the fifteen-man commission appointed to report to the Preliminary Peace Conference had refused to support any notion that the violation of the norms of war or the ‘elementary laws of humanity’ could be a crime. Their view that these were questions only of ‘moral law’ had resulted in the exclusion from the Treaty of Versailles of any provision for the trial of crimes against humanity, notwithstanding the availability of potent evidence of such crimes, the Turkish massacre of the Armenians among them.
From the aftermath of some of the most calamitous wars in human history, not forgetting that it was from the ashes of the war of 1939–45 that the great human rights instruments of our era emerged, let me move to another time and place: London, 25 November 1998. Senator Augusto Pinochet Ugarte has been arrested, in the course of one of his occasional visits to London, on two provisional warrants issued by metropolitan stipendiary magistrates in response to an international warrant issued by the central criminal court in Madrid on charges of murder committed between 1973 and 1983 and of torture between 1988 and 1992. A divisional court presided over by Lord Bingham has quashed both warrants on the ground that, as a former head of state, Pinochet is by statute immune from prosecution, but has stayed the quashing of the second – the torture warrant – in order that the Commissioner of Metropolitan Police and the Government of Spain can appeal to the House of Lords. Working at remarkable speed (Pinochet was arrested in mid-October), the judicial committee of the House is ready to give judgment.
We do not televise court proceedings in this country. The hearing before the Law Lords took place, as it almost always does, in an upstairs committee room in the Palace of Westminster. But because the Law Lords are, constitutionally speaking, a committee of the upper legislative house, it is in the chamber of the House of Lords that they assemble to vote on the outcomes of the cases they have been hearing. It was simply because both houses of the legislature are equipped with television cameras for the broadcasting of debates that the cameras were rolling as the Law Lords rose in turn to vote on the outcome of the appeal. I mention this because it has come to be believed that, in a sudden rush of PR-consciousness, special arrangements were made to televise the delivery of the first Pinochet judgment in the House of Lords. The truth is that its dramatic worldwide impact was one of those pieces of historical good fortune in which Britain specialises.
Few who watched it, whether live or on the news, will forget how, with the escalating tension of a penalty shoot-out, Lord Slynn and Lord Lloyd rose in turn to vote for the dismissal of the appeal; and how Lord Nicholls, Lord Steyn and Lord Hoffmann then rose one by one to cast their votes for allowing it. The extradition proceedings were to go ahead: there was to be no hiding place in the civilised world for torturers, whatever their status.
Satellites carried the words and images round the world. In Chile tens of thousands of people watched the judgment on open-air screens, erupting in either jubilation or anger at the outcome. And although this decision had to be unmade and then re-made by a differently constituted committee of the House, the key outcome was the same: Senator Pinochet must face the accusation of torture (not, ironically, that of murder), because the adherence of Chile along with the UK and Spain to the Convention Against Torture had obliged it from, at the latest, 8 December 1988 to withdraw any state immunities from torturers. In spite of the significant differences of legal reasoning between the first and third judgments of the House, due at least in part to the different ways in which the appeal was argued, the epoch-making message remained. On the allegations of torture and conspiracy to torture which postdated December 1988, Senator Pinochet could be extradited.
Subsequently the Home Secretary accepted that Senator Pinochet was medically unfit to face trial in Spain, and he was allowed to return to Chile. But Britain’s sense of pioneering rectitude, justified though it may be, has tended to eclipse the role of the Chilean judiciary. In particular, it is widely believed in this country that it was our extradition process which finally kickstarted legal proceedings against Pinochet in his home country. In fact, in addition to having been under investigation in Spain since 1996 for the killing and torture of Spanish nationals, Pinochet was already under investigation for genocide and other crimes in his own country when he was arrested in London. In January 1998, nine months before his arrest here, after he had relinquished his presidential status and while he was in the process of exchanging his command of the armed forces for a life senatorship, a complaint was laid against him in Santiago by Gladys Marín. Under the Chilean constitution, holders of high public office – bishops, senators, generals, judges and the like – are immune from the automatic investigation which such a complaint ordinarily triggers. The modern purpose of the privilege (though it has a dubious past) is to prevent the harassment of public figures by baseless complaints: but the immediate effect of the lodging of a complaint against a holder of high office is that, instead of an ordinary examining magistrate, a member of the senior judiciary is appointed to inquire into it. If this judge finds evidence both of a crime and of the implication in it of the accused public figure, the constitutional immunity can be lifted.
When Gladys Marín laid her complaint, the appeal court judge whose name stood next on the rota for such tasks was Juan Guzmán Tapía. Guzmán has always been open about his initial support, as a citizen, for the Pinochet regime. But as a judge he set about his task impartially and conscientiously, and the evidence he uncovered was horrifying. A Chilean investigating judge in homicide cases fulfils among his other functions those of a coroner in our system, and Guzmán’s room in the law courts gradually became stacked with dozens of boxes of human remains as he tracked the course of the ‘caravan of death’. By the time of Pinochet’s return to Chile, his constitutional immunity had been lifted by the Supreme Court, Guzmán and his family were under 24-hour armed guard and a major indictment was in preparation, charging Pinochet and senior army officers with conspiracy to kidnap and to murder.
The lifting of Pinochet’s constitutional immunity was itself a mark of the sea change which the later 1990s had witnessed in the structure and ethos of the Chilean Supreme Court. It was a court which had acquired a reputation for quiescence in the face of official abuses (it had managed to hold that even though Chile had from 1974 been officially in a state of war, the Geneva and Hague Conventions did not apply to it): but more recently it had withheld the benefit of a general amnesty from five senior military officers implicated in the ‘caravan of death’ because the amnesty did not cover aggravated kidnapping. The completeness of military impunity had already been punctured by the conviction, under pressure from Pinochet’s main initial backer, the United States, of the head of the secret police, General Manuel Contreras, for organising the assassination in Washington in 1976 of the exiled Chilean politician Orlando Letelier and an American colleague. (I mention this not only because it shed some valuable light in a dark place but because it illustrates one of the paradoxes to which I shall return: the contrast between the sensitivity of the United States to anything affecting its own citizens or territory and its seeming indifference to similar sensibilities on the part of other states.) But it is the view of commentators both in and outside Chile that the stand taken by the House of Lords did as much as anything to bring about the momentous decision of the Chilean Supreme Court to lift Pinochet’s constitutional immunity so that Guzmán could proceed with his indictment.
Pinochet’s legal advisers now advanced the same case of physical and mental frailty that had persuaded the British Home Secretary to discharge him. Guzmán, having read the reports from the UK with a critical eye, bespoke fresh ones. They satisfied him that, whatever the penalty might turn out to be, the Senator was fit to stand trial. Pinochet appealed against this decision. Last summer, after an inexplicably long delay, the Supreme Court overset the judge’s finding by four votes to one and held Pinochet unfit to face the trial to which a now formidable body of evidence was pointing. The indictment is proceeding nevertheless against the other accused, and their eventual trial may reveal to what extent, if any, Chile’s ordeal of torture, disappearance and killing was Pinochet’s responsibility.
Although the question of universal jurisdiction was raised in the Pinochet proceedings before the House of Lords, it was not found necessary to determine it. Universal jurisdiction is the power vested in states by customary international law to allow them to try certain grave crimes no matter where or by whom or against whom they were committed. It afforded probably the best legal foundation for Israel’s trial of Eichmann. But universal jurisdiction under customary international law tends to be marginalised in modern state practice by the incorporation of treaties either by automatic constitutional assimilation, as in the monist system of France, or by the domestic enactment of treaty provisions in common law countries such as the UK. The 1984 Torture Convention and the 1979 Hostages Convention have both been carried into the UK’s law, vesting universal jurisdiction in the UK’s courts as the conventions themselves require; though at least two of the law lords in the Pinochet cases were prepared to hold that the prohibition of torture was already a peremptory norm of international law which it required no treaty to criminalise.
Thus the domestic courts of states remain the primary forums for the prosecution of crimes against humanity. States have not merely the power but the obligation to prosecute offenders. In this situation the immunity of state officials becomes of critical importance, and it was on this immunity that Pinochet relied: his acts, whatever their criminality, had been the acts of a head of state and for that reason, he contended, were not justiciable at the instance of any other state. This argument the House of Lords accepted, but only up to the time when the Torture Convention took this defence away. The majority drew a distinction between crimes committed by a head of state in a personal capacity and crimes committed in an official capacity: international crimes committed in a personal capacity would be justiciable, as US courts had held in relation to General Noriega, the former Panamanian head of state now serving a life sentence in the US for narcotics crimes committed while in office; those committed in an official capacity would not be. There is something odd, indeed odious, about this. If, instead of trafficking privately in drugs, Noriega had used the apparatus of the state to do it, would he have been entitled to immunity? What moral or legal logic accords immunity only to the criminal who manages to subvert and abuse the powers of the state, so that the very magnitude of his crime (torture apart) becomes his shield?
These issues will not go away for a long time yet. But we do seem to have reached a plateau from which it is possible to get a better perspective on the terrain ahead.
In April 2000 a Belgian investigating judge issued an international arrest warrant against the then Foreign Minister of the Democratic Republic of the Congo, Abdulaye Yerodia Ndombasi, alleging crimes against international humanitarian law. Congo applied to the International Court of Justice in the Hague, which tries disputes between states, to set aside the warrant on two grounds. The first was that Belgium’s assertion of universal jurisdiction was in itself a violation of the Congo’s sovereignty. This ground was wisely dropped: universal jurisdiction is not such bad news. The case proceeded solely on the second ground – that the warrant violated the principle of diplomatic immunity. On this the Congo succeeded. The decision has been deplored as a setback for international humanitarian law, but in my view it is not. The rule it endorses is much less important than the exceptions with which it surrounds the rule.
The Congo’s own argument involved the exemplary use of Occam’s razor on a case bristling with difficulties, paring it down to the incontestable fact that Yerodia was a government minister on the day the warrant was issued. It also, I suspect, had on its side the unspoken fact that of all countries to point the finger of human rights abuse at the Congo, there could not have been a less appropriate one than Belgium. It was enough for the Congo to succeed that the court concluded that, on grounds of state convenience and comity, incumbent ministers enjoy immunity from proceedings before the courts of other nations, however grave the crimes with which they are charged. For reasons I have touched on even this seems debatable. But, importantly, the decision recognised only immunity – a temporary and localised protection – and not impunity; it accorded it to incumbent ministers, not to former ones; it accorded it to them in international law but not domestically; and it limited the immunity to proceedings before other national courts, noting that this was compatible with the absence of any such immunity before the international tribunals at Nuremberg and Tokyo and the International Criminal Tribunals dealing with events in the former Yugoslavia and in Rwanda.
This jurisprudence, important in itself, is enhanced by the separate and partly concurring opinion of three of the most influential judges on the Court: Higgins, Kooijmans and Buergenthal. They inverted the rule-and-exception paradigm, stressing that immunity was the exception and justiciability the rule. Pointing to the changing standards and scope of state immunity, they went on:
They cited Oppenheim, the leading work on international law:A comparable development can be observed in the field of international criminal law … A gradual movement towards bases of jurisdiction other than territoriality can be discerned. This slow but steady shifting towards a more extensive application of extraterritorial jurisdiction by states reflects the emergence of values which enjoy an ever increasing recognition in international society. One such value is the importance of the punishment of perpetrators of international crimes … This development not only has led to the establishment of new international tribunals and treaty systems in which new competences are attributed to national courts but also to the recognition of other, non-territorially based grounds of national jurisdiction.
There is, however, a downside to the expansion of national jurisdictions to try the gravest crimes. It was articulated by Lord Browne-Wilkinson in his note of reservation to the Princeton principles of universal jurisdiction issued in early 2001 by a working group of international lawyers assembled by the International Commission of Jurists:While no general rule of positive international law can as yet be asserted which gives states the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual evolution of a significant principle of international law to that effect.
The Princeton Principles propose that individual national courts should exercise such jurisdiction against nationals of a state which has not agreed to such jurisdiction … If the law were to be so established, states antipathetic to Western powers would be likely to seize both active and retired officials and military personnel of such Western powers and stage a show trial for alleged international crimes. Conversely, zealots in Western states might launch prosecutions against, for example, Islamic extremists for their terrorist activities.
Review: Stephen Sedley's Ashes and Sparks
Sedley's model of human rights is problematic, but his essay collection reveals one of the finest justices of his generation
Photograph: Sang Tan/AP
With Jonathan Sumption QC and Sir Nicholas Wilson expected to be
appointed to the Supreme Court shortly, who will be the next lawyer to
join the top rank? One senior judge who has been tipped for the top job - though his age might well prevent it - is Lord Justice Sedley, who recently retired from the Court of Appeal after sitting since 1999.
Called to the Bar in 1964, Sedley has written regularly for the London Review of Books since 1986, and has never shied away from engaging in public debate. His new anthology of essays and lectures, Ashes and Sparks, offers an insight into the development of his thinking on constitutional law and the role of justice in society.
During the 1970s and 1980s, Sedley's practice was fuelled by the rapid expansion of public law and judicial review. His background as an advocate is apparent throughout the 38 pieces in the collection, whose overarching theme is the interrelationships between the individual and different branches of the state. The tension between what Sedley labels 'macro-justice' and 'micro-justice' is everywhere apparent. Nonetheless, he takes care to reconcile the theories of jurists like Ronald Dworkin and Amartya Sen with the everyday exigencies of judicial reasoning.
Those hoping to divine the future from these judicial tea-leaves will find Sedley's writing on human rights particularly interesting. Initially sceptical of adopting a domestic human rights instrument based on the European Convention on Human Rights, he was "catapulted across the Rubicon" following the introduction of the Human Rights Act 1998, which he describes as having "deepened our own jurisprudence and sharpened our judicial standards".
But Sedley does not derive his conception of rights solely from the Strasbourg case law. Instead he prefers to place himself squarely within the tradition of English radical non-conformism, by drawing a direct line from theories on the rights of man that were first espoused during the Civil War by groups like the Levellers and the Diggers. Indeed, the 'ashes and sparks' of the title is derived from a phrase in a Leveller pamphlet, The Privileges of the People, published in 1649.
In a later piece, Sedley argues that in the 21st century, rights "will not be confined to those that seemed self-evident in the eighteenth and nineteenth", hinting at his framing of rights within a wider historical perspective. This might well raise an eyebrow among critics of what some of the press regards as judges 'legislating from the bench' in the field of human rights. But Sedley is quite right to point out in response that the rights alone mean nothing. "Any state can set out rows of shining rights, like medals on a leader's chest. Stalin did it, and much good it did his millions of victims". It is only in their application to difficult legal and practical issues that rights are given meaning.
Sedley recognises that law entails making difficult choices. However he does run into more difficulties with the relativistic nature he ascribes to rights. In one essay, he proposes dropping the argument for rights as a universal concept, in favour of a more locally diverse model. Sedley does admit that this carries a heavy price tag in terms of being able to insist on certain transnational values. But even then, he seems a little too keen on defining rights in such a way as to secure the widest possible agreement, without defining which core values truly are universal.
Given the increasing criticism judges face in the press, Sedley has been refreshingly proactive in his response. He recently settled a libel action against the Daily Telegraph, which had published a serious of untrue and professionally damaging allegations. For a judge to bring a libel case is extremely rare, but this was Sedley's second victory - his first having been in 1996, when the Independent issued a public apology after claiming he was politically partisan.
Interestingly – and given his radical roots, surprisingly – Sedley resists the idea of a judiciary perpetually at odds with the government, and even goes so far as to reject the idea of the Supreme Court developing into a full-blown 'constitutional court' with powers to strike down primary legislation it feels is unconstitutional. Although he hesitates to expand upon the powers of the court, Sedley repeatedly expresses his worry about the constitutional lacunae created by the exercise of the Crown's prerogative powers by the executive.
This is perhaps unsurprising given his involvement in one of the leading cases (M v Home Office [1994] 1 AC 337), on the accountability of ministers arising from these powers.
On the basis of the breadth and depth of inquiry exhibited here, Sedley would have been well suited to the challenge of that most Procrustean of all judicial appointments: the Supreme Court.
Thom Dyke is a barrister practising in human rights, criminal and public law
* This article was updated at 11.29 on 28 April 2011 to note Lord Justice Sedley's recent retirement from the Court of Appeal and the consequent unlikelihood of his appointment to the Supreme Court.
Called to the Bar in 1964, Sedley has written regularly for the London Review of Books since 1986, and has never shied away from engaging in public debate. His new anthology of essays and lectures, Ashes and Sparks, offers an insight into the development of his thinking on constitutional law and the role of justice in society.
During the 1970s and 1980s, Sedley's practice was fuelled by the rapid expansion of public law and judicial review. His background as an advocate is apparent throughout the 38 pieces in the collection, whose overarching theme is the interrelationships between the individual and different branches of the state. The tension between what Sedley labels 'macro-justice' and 'micro-justice' is everywhere apparent. Nonetheless, he takes care to reconcile the theories of jurists like Ronald Dworkin and Amartya Sen with the everyday exigencies of judicial reasoning.
Those hoping to divine the future from these judicial tea-leaves will find Sedley's writing on human rights particularly interesting. Initially sceptical of adopting a domestic human rights instrument based on the European Convention on Human Rights, he was "catapulted across the Rubicon" following the introduction of the Human Rights Act 1998, which he describes as having "deepened our own jurisprudence and sharpened our judicial standards".
But Sedley does not derive his conception of rights solely from the Strasbourg case law. Instead he prefers to place himself squarely within the tradition of English radical non-conformism, by drawing a direct line from theories on the rights of man that were first espoused during the Civil War by groups like the Levellers and the Diggers. Indeed, the 'ashes and sparks' of the title is derived from a phrase in a Leveller pamphlet, The Privileges of the People, published in 1649.
In a later piece, Sedley argues that in the 21st century, rights "will not be confined to those that seemed self-evident in the eighteenth and nineteenth", hinting at his framing of rights within a wider historical perspective. This might well raise an eyebrow among critics of what some of the press regards as judges 'legislating from the bench' in the field of human rights. But Sedley is quite right to point out in response that the rights alone mean nothing. "Any state can set out rows of shining rights, like medals on a leader's chest. Stalin did it, and much good it did his millions of victims". It is only in their application to difficult legal and practical issues that rights are given meaning.
Sedley recognises that law entails making difficult choices. However he does run into more difficulties with the relativistic nature he ascribes to rights. In one essay, he proposes dropping the argument for rights as a universal concept, in favour of a more locally diverse model. Sedley does admit that this carries a heavy price tag in terms of being able to insist on certain transnational values. But even then, he seems a little too keen on defining rights in such a way as to secure the widest possible agreement, without defining which core values truly are universal.
Given the increasing criticism judges face in the press, Sedley has been refreshingly proactive in his response. He recently settled a libel action against the Daily Telegraph, which had published a serious of untrue and professionally damaging allegations. For a judge to bring a libel case is extremely rare, but this was Sedley's second victory - his first having been in 1996, when the Independent issued a public apology after claiming he was politically partisan.
Interestingly – and given his radical roots, surprisingly – Sedley resists the idea of a judiciary perpetually at odds with the government, and even goes so far as to reject the idea of the Supreme Court developing into a full-blown 'constitutional court' with powers to strike down primary legislation it feels is unconstitutional. Although he hesitates to expand upon the powers of the court, Sedley repeatedly expresses his worry about the constitutional lacunae created by the exercise of the Crown's prerogative powers by the executive.
This is perhaps unsurprising given his involvement in one of the leading cases (M v Home Office [1994] 1 AC 337), on the accountability of ministers arising from these powers.
On the basis of the breadth and depth of inquiry exhibited here, Sedley would have been well suited to the challenge of that most Procrustean of all judicial appointments: the Supreme Court.
Thom Dyke is a barrister practising in human rights, criminal and public law
* This article was updated at 11.29 on 28 April 2011 to note Lord Justice Sedley's recent retirement from the Court of Appeal and the consequent unlikelihood of his appointment to the Supreme Court.
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