Courts and the administration of justice – Page 3

Why have the terms of the now-discharged Afghan super-injunction not been published?

17th July 2025

There can be no good reason now for the substantial terms of the court order to be hidden (subject to redactions)

*SEE UPDATE AT END*

Now, here is a puzzle.

A couple of days ago, a raft of materials was published by the United Kingdom judiciary office in respect of what we can now call the Afghan super-injunction.

(A super-injunction is when the court order forbids even any public disclosure that the injunction exists.)

These materials were published on the judiciary.uk website – and one can tell care and attention was put into their publication.

There is even a prepared, four-page press summary.

But there is something which is not there, which perhaps should be there.

What is missing is the actual super-injunction court order itself.

There is a court order – the one which finally discharged the super-injunction – but not the super-injunction itself.

In the circumstances, this is a striking omission.

Indeed, it is so striking an omission given the other materials published, that the decision not to publish its terms (subject to any necessary redactions) must have been a deliberate decision by somebody.

There is a strong public interest in the actual terms of any super-injunction being published after it is discharged.

This is because the terms of such orders are so onerous – and the impact on other rights and freedoms so drastic – that once it is no longer in force then the public should be able to see the terms of such an order.

But in this case, there is an even stronger public interest.

It would appear that it was felt that the existence of this order meant parliamentarians could not even be told of the hidden data breach and subsequent policy-making and implementation.

It is also apparent that the original judge went further than even the government wanted in making this order a “super” injunction.

The judiciary press office has now been asked for a copy of the original order.

This request is being considered – and the request has not been rejected outright.

Of course, there may be details which should be redacted – but this was also the case with the published documents. Such redactions caused no practical problem.

But there cannot be any good reason why the substantial terms cannot be published, subject to redactions.

If the courts grant such super-injunctions – especially when the government (or other applicant) does not even ask for the injunction to be made a super-injunction – then it must be beholden on the courts to publish the substance of such orders once they are no longer in force.

UPDATE

The original ‘super-injunction’ court order has now been published by a media organisation, though it has not been published by the judiciary office. In these circumstances, I will await the judiciary office decision before linking to it.

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A super-injunction has been revealed

16th July 2025

A curious sequence of court judgments have just been published

Yesterday a raft of court judgments and other legal materials were published in respect of an extra-ordinary super-injunction.

And this was not just a super-injunction, it was also one against the world – contra-mundum.

This is heady stuff.

You can read the materials here.

I do not offer any quick hot-take as these things should be read properly, but at first glance they are fascinating.

More to come soon.

The Sotomayor dissent that is for the ages

2nd July 2025

A re-statement of the rule of law in Trump v Casa – the universal injunctions case

Some dissents are for the ages. In the United Kingdom, one such momentous dissent from a judge in the minority was that of Lord Atkin in the wartime case of Liversidge v Anderson.

In the recent – and horrible – case of Trump vs Casa there is another such dissent, this time from Justice Sotomayor.

This blog has already introduced the case (here) and set out why the majority opinion is shoddy even on its own terms (here).

Instead of summarising and paraphrasing her dissent, there are passages which need to be read in the original. Some people are deterred from reading formal(-looking) documents like judgments, and so in this post I am setting out what she said. Please read what is set out below (which I have broken up into smaller paragraphs).

“Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then.

“This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens.

“To remedy that grievous error, Congress passed in 1866 and the States ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution.

“There it has remained, accepted and respected by Congress, by the Executive, and by this Court.

“Until today.

“It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship.

“Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it.

Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship. […]

“The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court.

“Why?

The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.

“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone.

“Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.

“The gamesmanship in this request is apparent and the Government makes no attempt to hide it.

“Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to nonparties.

“No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship.

“The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.

“Because I will not be complicit in so grave an attack on our system of law, I dissent.

[…]

“The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.

Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a “solemn mockery” of our Constitution. Peters, 5 Cranch, at 136.

“Rather than stand firm, the Court gives way.

“Because such complicity should know no place in our system of law, I dissent.”

Justice Jackson concurs (again broken into shorter paragraphs, and emphasis added):

“I agree with every word of Justice Sotomayor’s s dissent. I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.

“It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior.

“When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation.

“With its ruling today, the majority largely grants the Government’s wish.

Like Atkin’s famous war-time speech, these dissents should endure.

These dissents have got the fundamental issue right, and they have said the right things about that fundamental issue.

What is currently happening in the United States is nothing other than a polity voluntarily sabotaging itself.

Congress and the courts could stop it. Yes, there is Trump – but there are always Trumps. But instead of checking and balancing Trump, Congress and the courts are nodding and clapping instead.

The next post in this series will be an overall assessment of this unfortunate case.

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The US Supreme Court judgment on injunctions – what Justice Barrett said

1st July 2025

On a curiously unconvincing exercise in judicial reasoning

This week this blog is looking at the United States Supreme Court case of Trump vs Casa. You can read the judgment here.

This is the judgment where the court held by a majority that federal courts could not grant “universal” injunctions against the federal government, but instead could only grant injunctions as between the parties to that particular law suit.

The main reason for this case warranting a good hard look is that, on the face of it, the judgment is highly significant.

As this blog averred yesterday, it seems that while onlookers were (mis-)directed into worrying about what would happen if the Trump administration ignored court orders, the conservative majority on the US Supreme Court, with more subtlety and artistry, has now robbed federal judges from making many of the most unwelcome court orders in first place.

This sequence of blogposts is an exercise in testing whether this adverse impression is correct.

United States Supreme Court judgments are structured in a particular way. This one has first a syllabus, effectively a summary of the decision of the court and a record of the court’s decision.

Next, on pages 7 to 32 of the pdf, is the Opinion of the (majority of the) court as given by Justice Barrett. It is with this Opinion that this blogpost is concerned.

Barrett is one of more junior members of the court and is the most junior on the conservative side of the court. From time to time she shows flashes of independent thinking, though that independent thinking often still leads to conservative conclusions. That said, it is often worth while reading her opinions, as opposed to those of some of her colleagues.

But this is not one of her more impressive judgments.

Here we can quickly go from the United States of the 2020s to the English courts of the 1960s, and in particular to the hallowed and seminal 1963 case of Ridge v Baldwin.

In that judgment, which is one of the founding cases of modern English administrative law (that is the special area of law dealing with public administration), Lord Reid said:

“We do not have a developed system of administrative law – perhaps because until fairly recently we did not need it.”

In other words: there had been changes in the role and configuration of the state – and the courts now had to keep up, and so develop both the substantive law and the remedies available to the court.

(To adapt Philip Larkin: English administrative law began in 1963, between the end of the Chatterley ban and the Beatles’ first LP.)

Now if we go back the the Barrett opinion, we read her setting out the increase in universal injunctions granted by federal courts against the federal administration (references and citations removed):

“[…] universal injunctions were not a feature of federal court litigation until sometime in the 20th century. […] The D. C. Circuit issued what some regard as the first universal injunction in 1963. […] Yet such injunctions remained rare until the turn of the 21st century, when their use gradually accelerated. […] One study identified approximately 127 universal injunctions issued between 1963 and 2023. […] Ninety-six of them—over three quarters—were issued during the administrations of President George W. Bush, President Obama, President Trump, and President Biden. […] The bottom line? The universal injunction was conspicuously nonexistent for most of our Nation’s history.”

Now, why would this be the case?

Why would the growth of such injunctions have accelerated in recent years?

Why, as Barrett states in another part of her Opinion, would it be that “[d]uring the first 100 days of the second Trump administration, [federal] district courts issued approximately 25 universal injunctions”?

If you read only Barrett’s Opinion, you would think that this increase of the use of such remedies against public bodies was solely because of the courts.

But courts do not exist in a vacuum.

Following Lord Reid in Ridge v Baldwin, one explanation is that perhaps until recently the federal courts did not need to use such injunctions.

The increasing use of executive orders under Trump to do thing for which he has no legal basis – including in respect of matters which are really for Congress or other agencies – is left unremarked.

To adapt an economics phrase, Barrett looks at the use of such injunctions entirely as a “supply side” issue.

For her, the courts have gone off on a frolic of their own and developed this jurisdiction to grant such injunctions.

By ignoring this context of the changing nature of the state, Barrett shows that whatever she is as a judge, she is no Lord Reid.

Of course, this context by itself would not give the courts a jurisdiction that they would not otherwise have.

But by ignoring this context Barrett provides a one-sided and misleading view of why these injunctions have been applied for and why they have been granted.

And the reason context here is especially important is because we are dealing with what lawyers call “equity”. Equity is, in general terms, about the courts ensuring things are done which should be done.

There are a number of equitable remedies, but the most famous of which is the injunction: an order of a court to stop someone doing something until further order of the court. Injunctions can be permanent, but they also can be on an interim basis – to “hold the ring” so to speak.

And courts develop equitable remedies over time. In England for example, the courts have developed all sorts of orders so as to ensure things are done which should be done – for example here, here, and recently by the United Kingdom Supreme Court with “contra mundum” injunctions against persons unknown.

As the United Kingdom Supreme Court set out in that last decision:

“the court will be guided by principles of justice and equity and, in particular:

(a) that equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue;

(b) That equity looks to the substance rather than to the form;

(c) That equity takes an essentially flexible approach to the formulation of a remedy; and

(d) That equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances.

These principles may be discerned in action in the remarkable development of the injunction as a remedy during the last 50 years.”

But instead of setting out the development of universal injunctions in the United States, Barrett insists that there should have been no development at all.

Although she mentions the need for equity to be flexible, Barrett says that flexibility has to be exercised within inflexible limits:

“Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies “traditionally accorded by courts of equity” at our country’s inception.”

And:

“The issue before us is one of remedy: whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.”

This reads both strangely and unconvincingly. Even without reading the dissent, the Opinion of Barrett is not compelling.

Sometimes you can read one judge and then only after reading another judge can you work out who has the stronger position. Even conservative judges can make out a convincing position: that is the nature of judicial rhetoric.

But here you have a weak judgment on its own terms, which ignores both context and the nature of equity.

And given the United Supreme Court has not previously ruled against such injunctions even though the remedies have been around since about 1963, such a ruling needed not a weak judgment but a strong one – both for looking back and looking forward.

Looking back: there have been, according to Barrett quoting a study, 127 universal injunctions since 1963 – and the import of this judgment is that each and every one of those would seem to have been outwith the jurisdiction of the federal court. That is a big step.

(Universal injunctions seemingly also began in 1963, between the end of the Chatterley ban and the Beatles’ first LP.)

Looking forward: federal courts now have been robbed it seems of the most effective remedy in dealing with presidential Executive Orders that are outwith any legal or constitutional basis. That also is a big step.

And so this required a similarly big judgment, not this little one.

These, however, are initial views on an important judgment. It may be that a more considered view will reveal nuances and meanings that were not obvious on first readings.

But even a more developed view will not generate within the majority Opinion context which is not there, and nor will it remove the inflexibility of insisting equity cannot have significantly developed since 1789.

The last word should perhaps go to Barrett, and here you can form your own views:

“No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.”

The last word there being the “But”.

Next in this series of posts I will look at the dissents in this case.

***

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The significant Supreme Court judgment on universal injunctions

30th June 2025

Now the federal government does not have to comply with certain irksome court orders because the federal courts can no longer make them

This week I will be looking closely at what seems at a highly significant judgment of the United States Supreme Court. It is 119 pages and you can read it here.

At first glance it seems that while onlookers were (mis)directed into worrying about what happens if the Trump administration ignores court orders, the conservative majority on the US Supreme Court, with more subtlety and artistry, has now robbed federal judges from making many of the most unwelcome court orders in first place.

If so, the problem of the federal government disobeying many irksome court orders in large part goes away, because federal judges cannot now even make the most effective court orders!

Such a judgment does not require just a hot-take, but a considered view. I will post more shortly.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Explaining a 31-month sentence for a tweet

27th May 2025

How a mixture of court process, law and sentencing policy led to the lengthy imprisonment of Lucy Connolly

For some a prison sentence – or indeed any criminal sanction – for a speech act needs an explanation.

An offence for a speech act can seem different to, say, where there is tangible damage to the person or to property.

You say [x] aloud, or you type and publish [y], and you go from not having criminal liability to having criminal liability, because of the words that you used.

But there are many offences which come down to speech acts: many forms of fraud, breaches of the Official Secrets Act, planning or inciting crimes, obscene publications, terrorism offences, and various forms of threatening behaviour.

All are about just words, and all are offences.

In fact there are more criminal offences about speech acts than many realise.

There are all sorts of crimes that one commit by saying the wrong thing at the wrong time in the wrong way.

There was media disquiet about the 31-month sentence for Lucy Connolly in respect of a tweet which was online for about three and a half hours. Some have criticised the judges for the sentence.

I have written about this case at Prospect – please click and read here.

Here I just want to add some further comments, as I have a longstanding interest in social media and criminal liability (and I was once the successful appeal solicitor in a leading case in this area).

There were three key decisions which led to this sentence – none of which were taken by any judge in this case. Indeed, these three decisions taken together left the court with little choice as to the range of sentences.

The first decision was that of Parliament.

In 2001 the maximum sentence for relevant offence under the Public Order Act was increased from two years to seven years:

This meant that anyone convicted under the offence at the Crown Court would necessarily have a starting point for their sentence higher than before. This is a form of sentencing inflation which governments of all parties do again and again, for their regular ritual of being “tough on crime”.

And the seven year range is reflected in the sentencing guidelines:

Sentencing guidelines, to adapt Parkinson’s law, tend to expand to fill the maximum sentence available.

The second decision was that of the Crown Prosecution Service in electing to charge Connolly under section 19 of the Public Order Act 1986:

This is quite a serious offence. The CPS could have elected to charge her under a lesser offence, such as under section 127 of the Communications Act 2003, which has a maximum sentence of six months.

But the CPS chose not do this, no doubt because of the violent disorder that happened following the tweet.

You will see that the offence charged has two elements.

First, person has to publish or distribute “written material which is threatening, abusive or insulting”. This is a question of fact.

Second, if a person has published or distributed such written material, that the person “intends thereby to stir up racial hatred, or […] having regard to all the circumstances racial hatred is likely to be stirred up thereby.”

Here we come to the intention of the person – or to the circumstances of the publication.

In this case, the CPS adopted the position that Connolly (a) published or distributed “written material which is threatening, abusive or insulting” and (b) she intended to stir up racial hatred. The CPS did not rely on “all the circumstances”. They insisted she had intent.

The third decision was that of Lucy Connolly herself.

She decided to plead guilty.

At her appeal against sentence, her barrister said the tweet was hyperbole:

However, if this was actually the case and Connolly had intended only to vent and that she had not published anything that was “threatening, abusive or insulting” to be taken seriously, then she should have considered pleading not guilty.

But once she pleaded guilty without disputing the CPS position on intent, she necessarily admitted that (a) the words were “threatening, abusive or insulting” and that (b) she intended to stir up racial hatred.

She could have pleaded guilty but disputed intent, but if the CPS did not accept this she would have faced a “Newton Hearing” mini-trial, and if the judge went against her, she could lose any discount on sentence.

All these decisions were made by others and not the judge at first instance or the judges on appeal.

Connolly decided to plead guilty, to a serious charge decided by the CPS, under an offence which parliament decided had a maximum sentence of seven years.

If any of these decisions had been different then there could have been a different sentence – or, if Connolly had been found not guilty, no sentence at all.

Connolly was advised that the wording of her tweet made it likely that a court would convict:

She was advised that it was likely that a jury would decide that (a) the words were “threatening, abusive or insulting” and that (b) she intended to stir up racial hatred.

Faced with that advice, she had to decide whether to plead guilty and get a discount on sentence or plead not guilty and risk a longer sentence.

As it was the Crown Court judge imposed a 42-month sentence discounted to 31 months – that is two years and seven months discounted from three and a half years.

Given that she accepted she had intent, and given the sentencing guidelines, there was little the court could have done otherwise.

Personally I think the court could have put more weight on the practical mitigation that she took the post down herself within hours. That is something to be encouraged when otherwise offending things are published, however vile. (I don’t think the personal mitigation was relevant, for the reasons given by the court of appeal.)

But even taken this practical mitigation at its highest, it would not have much reduced the sentence.

If you think the seven year maximum sentence is too high (thereby meaning that the starting points for sentences are also high) then your complaint is with parliament.

If you think the CPS over-charged and should have gone with a lesser offence then your complaint is with the CPS.

And if you think that Connolly’s tweet was not “threatening, abusive or insulting”, and that she did not intend to stir up racial hatred, then this means you think Connolly should not have pleaded guilty to the charge brought.

For it was these three decisions, and not any decision of the court of any judge, that explain the sentence imposed on Connolly.

***

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A close reading of the “AI” fake cases judgment

9 May 2025

Why it is the very plausibility of AI-generated case law that should put lawyers on their guard

Consider five cases recently cited in a High Court housing judicial review in London:

R (on the application of Ibrahim) v Waltham Forest LBC [2019] EWHC 1873 (Admin)

R (on the application of KN) v Barnet LBC [2020] EWHC 1066 (Admin)

R (on the application of El Gendi) v Camden London Borough Council [2020] EWHC 2435 (Admin)

R (on the application of H) v Ealing London Borough Council [2021] EWHC 939 (Admin)

R (on the application of Balogun) v London Borough of Lambeth [2020] EWCA Civ 1442

On the face of it, what can we say about these five cases?

Well, first, they have mundane – indeed boring – names. The sort of case names that one would expect to exist in everyday cases. These are case names to which one would not give a second glance.

Second: you can also see that each case is against a London council, with that council status set out in three different ways – “LBC”, “London Borough of [x]” and “[y] London Borough Council”. Such variation is common on case names. And as housing judicial review cases, the defendant being a local council is what one would expect.

Third: they are in the correct case style – in four cases the “R (on the application of [x]” bit at the beginning of the case name matches the “(Admin)” bit at the end – for is the usual way for the names of judicial review cases in the Administrative Court to be set out. And this form often survives when a case goes to the Court of Appeal – so that fifth case does not look unusual either.

Had the cases been placed in the, say, family court or patent court then those case names and citations would look odd – but here, all so normal, all so unexceptional.

Fourth: even the case numbering is plausible and within the range for the year in question – eg, the Administrative Court had at least 3562 numbered cases in 2020 – and so a 2020 case numbered 2435 would not seem strange.

And fifth: they are all recent (2020 onwards) cases against local authorities – again, exactly what one would expect to see in a legal submission in a case about local councils in a well-litigated, always-moving area like housing. You would expect to see a bias towards recent cases to illustrate legal points in this context.

So all the cases not only look look normal, but they are plausible names and citations for housing judicial review cases.

The cases are not only superficially plausible, they are deeply plausible and on many levels.

There is nothing inherent in that list of case names and citations that would make any experienced lawyer doubt that they exist.

Now lets move on to how these five cases were used in the High Court case submissions by the claimant’s lawyers, so as to illustrate legal points (case names emphasised):

“Moreover, in R (on the application of Ibrahim) v Waltham Forest LBC [2019] EWHC 1873 (Admin), the court quashed the local authority decision due to its failure to properly consider the applicant’s medical needs, underscoring for necessity the careful evaluation of such evidence in homelessness determinations. The respondent’s failure to consider the appellant’s medical conditions in their entirety, despite being presented with comprehensive medical documentation, renders their decision procedurally improper and irrational”.

“The respondent’s failure to provide a timely response and its refusal to offer interim accommodation have denied the appellant a fair opportunity to secure his rights under the homelessness legislation. This breach is further highlighted in R (on the application of KN) v Barnet LBC [2020] EWHC 1066 (Admin) where the court held that procedural fairness includes timely decision-making and the provision of necessary accommodation during the review process. The respondent’s failure to adhere to these principles constitutes a breach of the duty to act fairly.”

“In R (on the application of El Gendi) v Camden London Borough Council [2020] EWHC 2435 (Admin), the High Court emphasised that failing to provide interim accommodation during the review process undermines the protective purposes of homelessness legislation. The court found that such a failure not only constitutes a breach of statutory duty but also creates unnecessary hardship for vulnerable individuals. The respondent’s similar failure in the present case demonstrates a procedural impropriety warranting judicial review.”

“The appellant’s situation mirrors the facts in R (on the application of H) v Ealing London Borough Council [2021] EWHC 939 (Admin) where the court found the local authority’s failure to provide interim accommodation irrational in light of the appellant’s vulnerability and the potential consequences of homelessness. The respondent’s conduct in this case similarly lacks a rational basis and demonstrates a failure to properly exercise its discretion.”

“The appellant’s case further aligns with the principles set out in R (on the application of Balogun) v London Borough of Lambeth [2020] EWCA Civ 1442 — where the Court of Appeal emphasise that local authorities must ensure fair treatment of applicants in the homelessness review process. The respondent’s conduct in failing to provide interim accommodation or a timely decision breaches the standard of fairness”.

Again there is nothing glaringly untoward on the face of these passages.

For example, a case with a High Court citation is placed in the High Court, the case with the Court of Appeal citation is placed in the Court of Appeal.

These are the sort of passages which are set out in hundreds of legal submissions every day – where case law used to demonstrate or show legal points.

Indeed the language employed – “further highlighted in”, “mirrors the facts”, “aligns with the principles set out in” – even shows a pleasing variation in style in using cases to support legal points.

So not only are the case names and citations mundane and plausible, so are the uses to which the cases are put in the submission.

There is nothing on the face of the case names, their citations and the way they are deployed in the submissions which would alert anyone but a deep specialist (who would simply not recognise the cases in their specialised heavily litigated area of law) that something was not right.

But.

None of these five cases exist.

All five cases are fake.

All five cases are fabricated.

Notwithstanding the plausibility of the case names, and the citations, and the legal points they are attractively used to support – all are mere inventions.

It would take a skilled human forger to come up with such plausible names and citations and legal points.

Or it would take something else.

The five cases – non-cases – referred to above are, of course, from the unhappy recent case of Ayinde, R (On the Application Of) v The London Borough of Haringey [2025] EWHC 1040 (Admin) – a case which (unfortunately for some of those involved) certainly does exist, though the facts of the case are such that one would think it was invented.

I have written about this case over at Prospect this week – please click and read here – and it is an extraordinary case.

But first, here are the ordinary – that is, not extraordinary – features of the case.

The claimant was a homeless man challenging his local authority so that he can be housed. One good thing about this case was that he was housed during the litigation, and so for him (at least) the case worked out well. Justice was served from his perspective, and he suffered no prejudice (and gained no advantage) because of what else happened in this case.

The defendant local authority were dire – at least in the litigation – and were so woeful in the conduct of the case they even managed to be disbarred from defending the claim. Nothing in this case is to the credit of the local authority. Quite rightly the costs of the claim were made against the local authority. Again, such conduct by a local council in a case like this is not surprising.

Furthermore the merits of the case were to the advantage of the claimant, including the medical evidence.

This was thereby a case where the claimant was in a strong position, regardless of the haplessness of the local authority.

And it is now the case becomes odd.

The claimant’s lawyers put in legal submissions which rested on various cited cases – and these cited cases included the five fake cases above.

The legal points these cases were used for by the claimant’s lawyers – see the passages above – were mainly for illustration, rather than to assert and rely on a binding precedent – and one suspects real cases were available to illustrate those very same points.

In other words: there was probably no need to invent any case for the purposes of the submissions. Genuine cases, no doubt, could have been available to illustrate the same points.

And so there is no obvious benefit from inventing cases – it was not as if any of the fabricated cases were a game-changer which would turn the claim from losing to winning. Indeed, it looked as if the claim would have succeeded anyway.

As the judge in this matter says at one point in the judgment:

“The submission was a good one. The medical evidence was strong. The ground was potentially good. Why put a fake case in?”

Why indeed?

We do not know with absolute certainty how this situation arose.

The judge in this case did not need to probe that deeply – it was for him enough for him that the cited cases were fake, and that there was no good reason for the fake cases to be cited.

The judge therefore used the rare “wasted costs jurisdiction” to award costs against the claimant’s lawyers personally.

The judge also ordered that his judgment be published, which means it is now a signal to all legal practitioners of what is at stake if fake cases are relied upon.

Of course – if you think about it – there will be a limit to what wasted costs can be awarded in respect of fake cases, for the other side can hardly charge for time reading cases that do not exist – but wasted costs orders are something which all lawyers should and do take seriously.

Of course, there is a plausible explanation for what happened – and it is indeed also the most charitable explanation for what happened.

And that explanation is that the claimant lawyers used some form of Artificial Intelligence (AI) – in particular a large language model (LLM – and not Master of Laws!) like ChatGPT, which superficially is like a search engine.

The judge in this case mentioned that such AI was a possibility, but he did not make a finding.

But the AI/LLM explanation makes sense.

The sheer boringness and plausibility of the case names and citations and the ways the cases were employed suggest either a master human forger or a well-stocked/well-educated LLM. It would otherwise be hard to come up with things that, well, normal-sounding.

There is also the singular fact that the claimant lawyers gained no advantage from the fake cases – they had a strong case anyway, where the defendant was not even able to put in a defence, and with strong medical evidence. None of the five fake cases seemed to be determinative of the case, and they were such that real cases probably would have been done.

The claimant lawyers themselves probably did not realise to a late stage that the cases were fake.

The lack of any advantage gained, and the plausibility of the cases, point to a LLM search engine generating legal hallucinations.

There is no other explanation which fits the available information.

(And readers of this blog will recall the Christmas story where AI came up with a superficially plausible but false author and book.)

This case is now being used as morality story – to warn lawyers not to rely on AI in their legal research.

Over at his blog Richard Moorhead protests that that this is not actually an AI case – and in one sense he is right, as there was no finding of fact that AI was used.

But that is perhaps like saying that the hallowed negligence case of Donoghue v Stevenson was not about a snail in a bottle of ginger ale because it seems that allegation was never actually proved at trial. Yet it is still known as the snail in the ginger ale bottle case.

And this is destined to be known as the “AI” fake cases judgment – used to warn and terrify generations of lawyers to come.

For this is very much a case about AI – in that even if AI was somehow (implausibly) not used to invent those five cases, then the effects of those fabrications are very much what would happen if the lawyers had used AI.

And the sheer plausibility of the cases and their citations and the legal points they were used to illustrate are very much what lawyers should be on their guard against with AI LLMs.

The results of queries given to LLMs can be very plausible indeed.

They were not scarily outlandish, but scarily normal.

Finally, this post will make three further observations and points about this case.

First, the fake cases only really came to light because on the eve of the hearing, the defendant lawyers made an application for wasted costs (even though they were disbarred from mounting a defence).

This application for wasted costs was such that it was intended – mischievously – to offset the costs that would be awarded against the council for their own woeful conduct of the case.

In other words, the fakery came to light because it was tactically useful to a party to a case for it to do so.

The fake cases were in a document dated August 2024 but were not spotted as problematic until February 2025. Until then they had not been checked by anybody.

This suggests that such fake cases may be more widespread – but just not noticed.

Second: the conduct of the claimant lawyers when challenged – a remarkable letter and evasions in court, doubling-down – made things far worse. Had the lawyers promptly said there had been a fundamental error because of the searches/queries made, and provided alternative authorities, and apologised, then a court may have been less harsh.

Under-resourced parties to litigation can make errors: the important thing is to correct them promptly.

Third: you may also have noticed I have not named the lawyers or the parties – that is because I did not need to do so for the purposes of this blog, and I usually shy away from personalising thing in blogposts generally (at least lower than Cabinet level).

Here the import of this case is not just about lawyers in a particular case – the exceptional way in which this instance came to light indicates there may be a more widespread problem, where plausible looking things do not get a second look.

My own view is that AI/LLMs can do certain simple law-related tasks, but legal research is something which always requires a human mind, and it is something fundamental to being a lawyer.

Some would say using AI/LLMs for legal research is fine, as long as you check the results before relying on them.

My view is that, given the current state of AI/LLMs, that even doing this is dangerous, as the results can looks so plausible you may think they don’t need checking.

You will not notice anything wrong.

For further reading on this case, see this by David Burrows and also this by Gordon Exall at the estimable Civil Litigation blog.

How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful

22nd April 2025

The US government is on the back-foot in its own courts because it is not thinking strategically

Over at his Substack the great historian of strategy Lawrence Freedman has provided a magisterial account of why the economic strategy of President Trump is in such a mess.

From Freedman’s conclusion:

“Some bad strategies are the result of incompetence, miscalculation, and inattention. Most fail to consider how other key actors will behave. But the worst are the result of bad theories, so detached from reality that efforts are directed towards achieving goals that are unattainable, employing methods that are bound to fail. To extricate a country or an organisation from a bad strategy it is essential to acknowledge its wrongness and retreat, but with a truly bad theory that requires abandoning an embedded world view.

“In this case a bad theory, nurtured over decades, has led to calamitous policies devised in haste and enacted impetuously in defiance of all received wisdom on the impact of tariffs on the national and international economy. The severity of the impact was accentuated by the chaotic and contradictory nature of the implementation. Much of what has been lost over the past month, in trading rules and economic trust, may never be recovered.”

Much of Freedman’s conclusion, and indeed much of the content of his detailed and insightful post, can be transferred from economic policy to Trump’s use and misuse (and abuse) of law and the courts.

Same problem, different context.

It must have seemed so clever and – for the instigators – fun.

They would invoke an ancient law and then, in a show of brute power, they would deport human beings to another country to be held indefinitely in a terrifying super-prison. The human beings would not have any access to due process, and indeed there may even be no evidence against them.

The instigators would then clap and cheer at their public display of cruelty.

And when it seemed a court order had come too late, the president of the receiving country tweeted “Oopsie” and this, in turn was re-tweeted, by the actual Secretary of State from his personal account.

What larks: they must have found it hilarious.

And as this blog has set out, this a point where it became clear there was a constitutional crisis in the United States.

Not only were the orders of the courts not being taking seriously, the courts were being mocked openly by senior members of the administration.

It is now becoming apparent that not only was this policy nasty, but it was also not thought-through legally.

There was a rush on 15 March to put in place this shock-and-awe policy, but there was no underlying legal or litigation strategy.

And that lack of a legal or litigation strategy explains the frustrations the administration is now having with pushing on with this policy.

Indeed, the policy now is blocked by an extraordinary order of the supreme court of the United States, issued at just after midnight on Good Friday.

All but two of the justices of the supreme court – including all three of Trump’s appointees from his first term – supported this order. The only dissents were from justices Thomas and Alito.

(“Justice Alito dissents” is a welcome legal phrase in any supreme court judgment, and it perhaps should be set to music to the tune of “Miss Otis Regrets”.)

The sheer extraordinariness of this emergency supreme court order can be seen from Alito’s dissenting statement (which significantly the court did not wait for before issuing the order).

So incensed is Alito you will see that he loses all power of normal judicial prose and is reduced to listing his grievances in bullet points.

Alito was not a happy Easter bunny.

And in his bullet points he makes what would otherwise be some sound points: the majority of supreme court did act of its own volition, and at speed, and in highly unusual circumstances.

But what his bullet points miss is why the majority of the supreme court – including four usually conservative judges, including three Trump appointees – felt the need to do this remarkable judicial act.

Why did the majority of the supreme court feel there was no alternative?

Earlier on Good Friday, the official White House Twitter account published this remarkable tweet.

Back on 15 March the Secretary of State was (perhaps) careful to re-tweet the sarcasm of the El Salvador president from his personal and not official Twitter account.

Now the official White House Twitter account was itself stating that an order of the court will not be taken seriously.

You will recall that the supreme court – unanimously – ordered the United States government to “facilitate” the return of Abrego Garcia.

Whatever the meaning of the Good Friday tweet, it shows that the United States government is not taking seriously that they must “facilitate” the return of Abrego Garcia.

He is, according to the White House, “never coming back”.

The Good Friday tweet was unpleasant and crass and infantile – but crucially from a litigation perspective, it was also unwise.

And here we go back to Freedman’s post, and to the importance of strategic thinking.

In litigation a properly thought-through strategy means that one should not close down options and, in particular, one should not alienate the courts. The courts are the source of most useful options in serious litigation – courts can make orders, impose stays, strike cases out.

But the US government here advertised that they are not taking court orders seriously – and not just from a sly re-tweet from a personal account, but from the official White House account itself.

And the tweet does not stand in isolation – it is in the context of the ongoing failure of the United States government to properly provide requested and required information to the courts about the deportation cases.

In essence: the courts simply do not believe what the government is telling them.

And in litigation, there is no worse situation for any party to that litigation to be in than to lose the confidence of the judges.

Generally it means that at each round of litigation – each interim hearing, each application, each appeal – the judges will go against you.

And at its extreme, the courts will, of their own volition, make orders against you.

For the supreme court of the United States to make that midnight order was an absolute rebuttal of whatever litigation “strategy” the United States government was following with these cases.

Perhaps those at the US government thought the conservative majority of the Supreme Court meant that favourable decisions were in the bag.

But all they have now been left with are Alito’s worthless bullet points instead.

And this brings us to another point about litigation strategy.

You do not really need a litigation strategy for when things go well straight away.

You need a strategy for when things go badly: to work out what you do in various foreseeable unwelcome situations that may flow from your initial decisions.

But the evidence of the deportation cases indicates that there was no thought put into what would happen – other than a vague notion of weaponising a clash with the court – if the policy had setbacks.

Take the case of Abrego Garcia.

Taking the government’s position seriously for a moment, what should have happened when it was obvious a mistake was made and someone had been deported in breach of an order, was for that mistake to be rectified.

The government could then have used rectifying that mistake to show that its general policy had safeguards, and so should not be legally challenged.

But instead the government doubled-down, thereby indicating the whole policy scheme had no safeguards.

There had been no contingent thinking about what to do if a mistake was made.

If Abrego Garcia had been returned promptly and safely, it would have perhaps made the rest of the scheme harder for critics to discredit as being unfair.

Of course, the whole scheme is nasty and inhumane – but here we are looking at what strategic options could have been open to a supporter of this evil scheme.

Again, it seemed that the US government had not thought this through beyond the 15 March flights.

As with the tariffs, no thought was put into what could happen next.

A similar lack of strategic thinking is apparent in the attempts to bully Harvard University.

Those attacking the university seem to have not thought about what would happen if the university rejected the demands and sued instead.

But Harvard seem to be putting serious thought into their strategy, as this post indicates.

Overall, Trump and his government appear to have three general impulses:

– to demonise and monster in the media and the courts those who can be demonised and monstered and thereby humiliated;

– to intimidate those who are capable of being intimidated, such as law firms and universities with weak leaderships; and

– to manipulate and gain leverage over those who cannot be demonised or intimidated, such as foreign trading states, so as to do “deals”.

None of these bullying impulses add up to a strategy – or even to a tactic. They lead only to first-move antics, which may or may not work depending to the Trump government’s cynical assessment of those involved.

And this is true not only of their approach to law and litigation – but also, as Freedman avers, to economic strategy.

This is not say that that the bullying impulses set out above will fail – many rulers have managed to keep power a long time with such an approach, for it is based on unwelcome truths about human nature.

But such an approach will tend to fail with complex processes such as litigation and trade negotiations, where the confidence of other parties is essential to keep options open, and where contingent planning is required for when things do not go as originally intended.

Shock-and-awe can work – and keep working – in certain limited contexts, but in complex matters, the shock-and-awe approach can soon become shockingly awful.

How the United States constitutional crisis is intensifying

Maundy Thursday, 2025

And what the US government should realise about a cavalier approach to obligations

At the beginning of the current constitutional crisis in the United States there was a word, and that word was “Oopsie”.

This was a word in the social media post of the El Salvador president when the first deportations took place from the United States.

This was then re-posted by the actual United States Secretary of State from his personal account.

This re-post signified that at the top of the United States executive there was not only a lack of seriousness about court orders but a willingness to show that lack of seriousness publicly.

And it was that moment that it became plain that there was not only a tension but a contradiction between the attitudes of the executive and the judges.

Others may date or time the crisis from another starting point – there is no great science in this, and different people can have different views. Just like different people can have a view on when a storm starts, though there will be a point where most people would agree when a storm is happening.

Most people, who have an opinion about such things, would probably accept there is now a crisis in the constitutional arrangements of the United States.

Of course, the United States government has not publicly said “we are not acting constitutionally”.

As the eminent jurist Mandy Rice-Davies might have put it: they wouldn’t do, would they.

It is instead for those involved and looking on to assess whether certain conduct is constitutional, or not – and whether there is a constitutional crisis, or not.

And from the perspective of this English constitutional law blog there is now not only a crisis, but a crisis which is intensifying.

There are broadly two strands to the current crisis in respect of the deportations to El Salvador. In general terms they can be seen as the internal and external strands.

The internal strand is about the compliance of the United States government with the order of the federal court that the planes should have turned round at the time of the initial restraining orders.

Although the government has successfully appealed whether those orders were appropriate – and that a different legal remedy should have been used – the temporary restraining orders still should have been complied with.

In the United States as in the United Kingdom the orders of the court are to be complied with, regardless of whether the party affected thinks they are wrong or unlawful.

The judge dealing with this case has now stated that there is probable cause to show that the United States government was in contempt of the court in refusing to turn the planes around.

The executive must now either “purge” (wonderful word) their contempt or provide information, which may in turn lead to sanctions.

At this stage it does not seem clear whether any sanction – if it is for criminal contempt – is within the scope of things that can be pardoned by a president.

Few if any have a good idea of what will happen next.

And as this blog has averred before, that is in the nature of crises: if one can forecast what will happen next then it is not a crisis.

The second strand is about the case of one particular individual, Abrego Garcia, who was wrongly and unlawfully deported to El Salvador.

He is now in the infamous mega-prison.

The United States say that it is not within its power to order his return, as he is now outwith the jurisdiction.

El Salvador say that they do not have the legal power to insist that the United States accept his return.

In a strict, narrow technical sense, both these propositions are probably correct – and, if so, that is intentional.

It seems the whole arrangement has been engineered – indeed gamed – so that the unfortunate individuals fall between two jurisdictional stools.

But a federal court has ordered that the United States “facilitate” his return, and this order has been unanimously approved by the Supreme Court.

This blog has already explored the issues about such injunctions generally – and what the word “facilitate” would mean in particular.

Yet whatever the word means in this context, it must mean something.

The United States government, however, ain’t doing nothing.

Even if (somehow) there is no formal mechanism in the agreement with El Salvador for the return of individuals (and the government are refusing to disclose this “classified” agreement), few would doubt that a formal request could be made and an offer of assistance made.

But the government is instead coming up with increasingly implausible definitions of “facilitate”.

Again, as with the internal strand, it is not clear what will now happen and how this matter will now unfold.

And again, that is because the United States is in a constitutional crisis.

Crises – constitutional or otherwise – are not necessarily dramatic, at least not immediately.

The effects of a crisis can be profound but quiet: a general dislocation leading to unpleasant ongoing consequences.

So there may not be grand gestures and civil unrest and conflict (though there can be). But there will be destabilisation, of one kind or another.

And that destabilisation may not be that which the government is hoping for.

The United States government should bear in mind one thing about being cavalier in its attitude to the constitution.

Such an attitude did not end well for the cavaliers.

***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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A note about injunctions in the context of the Abrego Garcia case

14th April 2025

What courts can and cannot order – and what those injuncted can and should do

In the United States the constitutional crisis seems to have intensified overnight, with the US government appearing to flout an injunctive order of the federal court to facilitate a deportee’s return – an order which has been upheld 9-0 by the US supreme court.

The case is that of Kilmar Abrego Garcia (as you can see from that Wiki page, his name has various versions, and this is the version which is preferred on that site, and it is there shortened to Abrego Garcia, which is also how the courts refer to him).

On 15 March 2025 he was unlawfully removed from the United States by the US government and deported to El Salvador.

The removal was unlawful as it was contrary to a court withholding order – and the US government has openly admitted that the removal was a mistake.

Abrego Garcia is now in the notorious Center for Terrorism Confinement (CECOT) in El Salvador, despite him not having any criminal record or other determination against him. He has not even been charged with anything.

On 7 April 2025 a federal court ordered that the US government “facilitate and effectuate” his return.

On 10 April 2025 the US Supreme Court unanimously upheld this order in respect of facilitating his return – though the court also held the term “effectuate” was unclear and required clarification.

Pausing at this point, why did the federal court in Marlyand not simply order the US government to return Abrego Garcia?

Why even add the words “facilitate and effectuate”?

Why not just say that the US government is ordered to ~~facilitate and effectuate the~~ return of Abrego Garcia?

Here we have to look at what injunctions can and cannot do.

Injunctions are powerful orders of any court.

An injunction typically fixes upon person [x] and if that person does not comply with the order, then [x] is in contempt and can be punished by the court.

The historical roots of the injunction in England go back to the old days of equity where the court, on behalf of the crown, would order that a person act in accordance with their (supposed) conscience – to do what was conscionable.

Of course, like a lot of equity, it was a fiction – those injuncted may or may not have any conscience about doing or not doing something – but that was the legal theory.

It is an order to ensure a person does what the court considers they should be doing.

In simple cases, an injunction will be along the lines of [x] should or should not do something.

The assumptions here are that [x] is subject to the jurisdiction of the court and what [x] is being ordered to do (or not do) is within the control of [x].

But sometimes things can get more complicated.

What if [x] is not subject to the jurisdiction of the court?

What if [x] is being ordered to do something outside of their control?

Consider the following situation:

[x] is in control of another person [y]

[x] removes [y] from the jurisdiction of the court by deporting [y] to country [z]

[x] no longer has control of [y]

[z] now has control of [y]

In this situation the court cannot order [x] to return [y] because [x] no longer has control of [y]. Returning [y] is no longer within the power of [x].

But the court also cannot order country [z] to return [y] because [z] is outwith the jurisdiction of the court.

Therefore the court cannot simply order [x] to return [y].

But what happens if [x] has acted unconscionably? Is the court impotent?

Well, the court can order [x] to do what they can to return [y].

In England, for example, a court may order [x] to use their best endeavours to procure the return of [y]. [x] may not be capable of being ordered to return [y] but they can be ordered to do everything they can do.

Going back to the Abrego Garcia case, the federal court was no doubt aware that they could not simply order his return.

That is why the court ordered the US government to facilitate his return. The court also ordered the US government to “effectuate” his return, though for many this is a less clear word, though it is not absolutely unclear.

But the word “facilitate” was probably enough – anything covered by the one word would generally be covered by the other.

If the US government, for example, had contractual or other powers to insist to El Salvador that Abrego Garcia be returned, then that should be done.

The fact that he is outside the jurisdiction of the federal court does not mean the US government can now just shrug and not do anything.

The US government is required to do what they can.

And by further order of the court, the US government is now also required to give progress reports on what they are (not) doing to facilitate the return of Abrego Garcia.

The US government does not want to do this.

As reported overnight by Aaron Reichlin-Melnick:

It would appear from the news reports that the US government is not taking the court orders in this case seriously – that they are flatly refusing to facilitate the return of Abrego Garcia.

The US government submission is here.

You will see they are not saying that they are breaching the order – but one would expect that.

You will see that they are quibbling about what the word “facilitate” means.

Formally, at least, the government claims it is not in breach – they say that the order has no application.

The US government also do not seem to be giving the updates required by the court – at least not in any meaningful way.

The impression conveyed is that the US is flouting the order – and that, even if it were within their power to “facilitate” the return of Abrego Garcia that they will not do so.

What will happen next?

If the US government is flouting the order, which appears to be the case, then the constitutional crisis in the United States is intensifying.

Perhaps the US government will successfully appeal to the Supreme Court and that court construes the order and the word “facilitate” to mean something other than the ordinary meaning of the order and indeed the word “facilitate”.

Perhaps the court will punish those responsible at the US government for contempt.

Perhaps even Abrego Garcia will be returned.

It is in the nature of a constitutional crisis that one cannot predict the next events to unfold – for if one could predict what will happen next then it would not be a crisis.

Perhaps nothing dramatic will happen at all – and this will be another quiet tug on the fabric of the constitution the effects of which will worsen over time.

But it is hard to see anything good coming of this.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.