Weekly Notes: legal news from ICLR – 17 April 2015
Posted on 19th Apr 2015 in Weekly Notes
A bumper crop of legal news and events from home and abroad as Weekly Notes returns after a break for the Easter law vacation.
Manifestoes for Justice
The major political parties have finally published their manifestoes for the forthcoming General Election. Given that the Fixed Term Parliaments Act 2011 provided by section 1(2) that
“The polling day for the next parliamentary general election after the passing of this Act is to be 7 May 2015…”
you’d think the parties would have had sufficient notice to get their policies into publishable form long before now. But no, it’s good old British brinkmanship, or Thick Of It muddle and confusion, all the way. So although we have examined some parties’ promises in relation to law and justice in the last few weeks, we’ll now be able to pin down exactly what, if anything, they really plan to do. Hopefully by next week we’ll have some kind of survey.
Meanwhile, the legal professions have been dropping some sizeable hints in their wish-lists, with the aptly named Manifesto for Justice. This was launched just before we broke for Easter by a consortium including the Bar Council, the Chartered Institute of Legal Executives, Legal Action Group, JUSTICE, the Law Centres Foundation, Legal Aid Practitioners Group, and Liberty. They say:
This new Manifesto for Justice seeks to make a clear, strong case for the role of a good justice system in contributing to a healthy society.
We need justice and the rule of law to underpin a democratic society, if all of its people are to be able to share its freedoms and prosperity. We therefore ask for three principles of justice:
- good governance and the rule of law
- respect for human rights and civil liberties
- access to justice
Though it doesn’t seem to have joined the others, the Law Society has its own Manifesto for Justice, promoting access to justice, the role of law, and the contribution of legal services to the economy.
It will be interesting to see how far these desiderata are reflected in the promises and claims of the political parties’ manifestoes. More to the point, whether they will actually deliver them. And what happens if they don’t?
This is the subject of a brilliant article by David Allen Green in the Financial Times: If a politician breaks a promise should a voter have a legal remedy?
Keys to coalition
And given the likelihood of another coalition, a question that has taxed, if not vexed, constitutional lawyers is whether a party like the SNP (or UKIP) can really hold the balance of power, or play “kingmaker”, if one of the major parties fails to gain an outright majority of seats. What if the major party is Labour: would it need a guarantee of support from, say, the SNP, before it could be asked to form a government?
This is the subject of a brilliant piece by Carl Gardner on his Head of Legal blog, Ed can enter No. 10 without Nicola’s keys
Rally for justice
Claiming that there has recently been “a sea change in public awareness on this issue” (of justice), the Criminal Law Solicitors’ Association (CLSA) is holding a Vote For Justice Rally at Central Hall, Westminster 23 April at 2pm. They say:
It is to show the media and the politicians that the attacks upon legal aid are an election issue that matters. Of course people vote for all sorts of reasons for different parties. But what we are saying is that access to justice is crucial to our wellbeing as a society and should be discussed. It goes to the heart of what sort of Society we wish to be. One in which we enable people to defend themselves and to seek justice or one where only the powerful and wealthy will prevail in courts?
Veil of confusion
Judicial remarks misconstrued
Lord Neuberger, President of the Supreme Court, recently gave a speech to the Criminal Justice Alliance. Entitled Fairness in the courts: the best we can do, it addressed a number of issues about cultural perceptions of the court process and the intimidating nature of it to non lawyers. In passing, he happened to allude to the controversial subject of the wearing of the full face veil or niqab by witnesses or defendants at trial.
His remarks on this topic were widely reported in the media, eg by the BBC, (Top judge calls for respect for veiled women in court) and Guardian (Respect women’s right to wear veil in court, says Britain’s most senior judge) as suggesting or implying that previous judicial decisions restricting or banning the wearing of such veils had been wrong, and that it should be permitted.
In fact, he said no such thing. A clarification had to be issued by the UK Supreme Court press office, whose spokesman said:
“Following various media reports based on a lecture he gave last week, Lord Neuberger would like to emphasise that he did not say that Muslim women should be allowed to wear a full-face veil while giving evidence in court.
“His lecture was aimed at encouraging judges to develop a greater understanding of the perspectives of those less experienced in the criminal justice system, especially when faced with having to give evidence or face cross-examination.
“Lord Neuberger mentioned a number of examples of cultural and religious views and practices which might lead some people to find such an experience intimidating, but made it clear that the court’s primary duty is to establish the truth and determine cases fairly.”
Lord Neuberger’s speech addressed the sense of alienation many non-lawyers feel on their first encounter with the justice system, and urged judges to be mindful of the need to help non-lawyers understand what was going on and what was expected of them, particularly now that many litigants were no longer able to get funding for legal representation and were having to represent themselves. He also called for judges to demonstrate their neutrality, particularly in view of the likelihood that their privileged background might lead to a suspicion of unconscious bias; and to respect and understand different cultural traditions and how they might affect people’s attitudes to and experience of court proceedings.
The critical paragraph is para 22 which seems to have been misinterpreted by the news media. What he actually says (and this is all he actually says) is
22. This is where neutrality shades into the second requirement, respect. Judges have to show, and have to be seen to show, respect to everybody equally, and that requires an understanding of different cultural and social habits. It is necessary to have some understanding as to how people from different cultural, social, religious or other backgrounds think and behave and how they expect others to behave. Well known examples include how some religions consider it inappropriate to take the oath, how some people consider it rude to look other people in the eye, how some women find it inappropriate to appear in public with their face uncovered, and how some people deem it inappropriate to confront others or to be confronted – for instance with an outright denial. More broadly, judges should be courteous and, generally, good-humoured; and, while they should be firm, they should never, however great the temptation, lose their temper.
It must have been galling for Lord Neuberger to feel himself so misunderstood, in a speech that was all about reaching out to the non-legal public and making things easier for them to understand.
Regrets? I’ve had a few… well, one.
Wailing Grayling says he never wanted to cut legal aid
Visiting Walsall College on 15 April, Chris Grayling, the Lord Chancellor and Secretary of State for Justice, told an audience of law students that
“I would not wish to cut legal aid.”
Nevertheless, he has done so, to the tune of £700m. But, he said:
“When we came into government the country was borrowing £1 of every £4 it was spending. That clearly could not continue. We still have the most expensive legal aid system in the world with by far the most expensive per person. It was never realistic for it to carry on at that level. We were spending £2.2bn a year and that has gone down to £1.5bn.
“People arrested and charged with a crime will always have access to a lawyer to defend them. That has always been the case and always will. What we cannot afford to do is to fund as many parts of the civil system.”
According to the Express and Star, from which this story was culled, one of the local Labour hopefuls, Walsall North candidate David Winnick, said:
“Whenever the Government sends Cabinet members to my constituency my popularity seems to go up so I very much welcome the Lord Chancellor to Walsall.”
Law (and injustice) from around the world
Neighbours’ dispute provokes judicial wit storm
It’s not often one reads a judgment for the sheer delight of its content, but this one is a gem. Unfortunately, the subject matter of the case is as depressing as you could wish for, though one’s sympathy for the litigants is less than overflowing.
The judgment in Morland-Jones v. Taerk, 2014 ONSC 3061 was given by Justice EM Morgan in the Superior Court of Ontario last April, so it is not brand new. It was drawn to our attention by the indefatigable David Allen Green, via Twitter, and repays reading in full. It is published on CanLII, the Canadian equivalent of BAILII.
The case was a neighbours’ dispute between two couples who frankly despised each other and resented having to occupy the same planet, let alone the immediate proximity of their dwellings on opposite sides of the same road in Ontario. They antagonised each other by doing things like pretending to take photographs of the other’s house with a mobile phone, or depositing their dog’s faeces in the other’s dustbins.
Justice Morgan recounts at para 16:
In what is perhaps the piece de resistance of the claim, the Plaintiffs allege that the Defendants – again focusing primarily on Ms. Taerk – sometimes stand in their own driveway or elsewhere on their property and look at the Plaintiffs’ house. One of the video exhibits shows Ms. Taerk doing just that, casting her gaze from her own property across the street and resting her eyes on the Plaintiffs’ abode for a full 25 seconds. There is no denying that Ms. Taerk is guilty as charged. The camera doesn’t lie.
At para 23 the judge says:
In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher.
And at para 24:
As I explained to Plaintiffs’ counsel at the hearing, a court cannot order the Defendants to be nice to the Plaintiffs. Litigation must focus on legal wrongs and legal rights – commodities which are in remarkably short supply in this action.
Critical journalist jailed
Gao Yu, described as a veteran journalist (he is 71 years old), was jailed for 7 years by a Chinese court on charges of leaking a document detailing the Communist Party leadership’s resolve to aggressively target civil society and press freedom as a threat to its monopoly on power. The arrest and detention of Gao has been interpreted as both proof of the authenticity of the leaked document and of the government’s keenness to crack down on human rights and freedoms. Gao’s lawyers said he intended to appeal.
Full story: New York Times
Legal victory for abducted pastor’s family
Fifteen years ago Kim Dong-shik, a South Korean pastor with permanent resident status in the United States, was abducted in northeastern China in what his family suspected was an illegal action by North Korean agents seeking to suppress the activities of Christian proselytisers.
But now they have the evidence to back up their suspicion, following the trial in Seoul, South Korea, of a Chinese man who had confessed to having helped in the abduction of Mr Kim and others on behalf of North Korea’s secret police agency.
Last week, armed in part with that evidence, Mr. Kim’s son and brother, both American citizens, won a $330 million judgment against the North Korean government in a United States court for the pastor’s abduction and presumed torture and killing. The question now is how they are going to enforce it.
Full story: New York Times
Blasphemy law reform
Lawmakers in the provincial government of Pakistan’s southern Sindh province have taken a small step to limit the injustice of Pakistan’s “blasphemy” law. They recently passed an amendment to Sindh Mental Health Act, 2013, which requires a mandatory psychological examination of any person accused of blasphemy. The amendment allows courts the discretion to reduce the sentences of individuals convicted of blasphemy whose medical evaluations produce a diagnosis of a “mental disorder.”
Pakistan’s “Blasphemy Law,” as section 295-C of the penal code is known, makes the death penalty mandatory for those convicted o f blasphemy. Hundreds are jailed every year for various blasphemy offenses, including 295-C. To date, none have been executed, but at least 19 people in the country are on death row for blasphemy.
The law is largely used against members of religious minorities. In many instances, those charged become the targets of mob violence.
Indeed, it is not just the accused who may be attacked, but even their lawyers. Last year, (as reported in Weekly Notes – 23 May 2014) Rashid Rehman, a lawyer acting for a university lecturer whose Facebook account was said to contain blasphemous statements, was killed by two unidentified gunmen in his office in Multan, Punjab Province.
Full story: Human Rights Watch
Activist marks year behind bars
The prominent Saudi activist and lawyer Waleed Abu al-Khair has completed a year of a 15-year prison term that stems solely from his peaceful criticism of the Saudi government and human rights advocacy.
Meanwhile, the new king, Salman, has marked his accession by issuing an amnesty pardoning real criminals while turning a blind eye to his country’s abuse of human rights and suppression of fundamental freedoms. As readers of Weekly Notes will be aware, this is hardly an isolated case of a critic of the regime being disproportionately punished for daring to speak his mind or exercise his freedom of conscience.
Sarah Leah Whitson, Middle East and North Africa director for Human Rights Watch, commented:
It speaks volumes that Saudi authorities were willing to pardon and release convicted criminals yet they continue to imprison more than a dozen peaceful activists whose only offense was to highlight abuse and push for reform. King Salman should free Abu al-Khair and other activists jailed for peaceful human rights work.
Full story: Human Rights Watch
Hair match evidence overstated
The Federal Bureau of Investigations (FBI) and the Justice Department in America have formally acknowledged that for two decades, in the 1980s and 1990s, most FBI forensic examiners gave flawed testimony as to hair matches in almost all the criminal cases in which they were called to give evidence. The evidence given tended to favour prosecution cases, which raises the prospect of a large number of mistrials having occurred, in some cases after the death penalty had been executed. The errors came to light as a result of investigations by the Innocence Project.
Full story: Washington Post
That’s it for now. Enjoy the week ahead, and don’t forget to vote in our 150 Years of Case Law on Trial poll, currently in its third period, from 1946 to 1970.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.