Weekly Notes: legal news from ICLR – 30 October 2015

Posted on 31st Oct 2015 in Weekly Notes

This week’s legal tricks and illegal treats include a trial of witches, a woman imprisoned in a man’s body, a rapid (but not rushed) review of parliamentary convention, a thin veil of intimidation and a bonfire of other vanities. But first, here’s a seasonal picture of a well seasoned judge: 

10_20_11_ipso4

Ipso Facto beer: drunk as a judge – or merely pie-eyed?

Salem witch trial latest

Witch vexed by warlock wins anti-hex injunction (sort of)

In a tale worthy of Boston Legal at its most surreal, a Salem witch told a judge last week that a warlock, whom she “once treated like a son”, has turned on her and spent years using the Internet and placing phone calls to harass her, according to a report by @lauracrimaldi in the Boston Globe.

Lori Bruno-Sforza took the stand in Salem District Court, seeking an order to bar Christian Day from engaging in what she called acts of harassment, including the creation of a fake Facebook page that mocked her, and incessant phone calls that have persisted for the past three years.

Day declined to testify, but Judge Robert Brennan seems to have been satisfied that he was harassing her every which way, and issued a  civil protection order barring Day from continuing to do so.

A backstory piece explains that Day (who prefers the term “warlock” to “male witch”) has divided opinions amongst the Salem witching community (yes, there is such a thing) by merchandising wands and stuff to non-serious customers, like Harry Potter fans.

Day has [built]  a business empire that includes two witch shops, Hex and Omen; a tour company; a popular book; an elaborate Witches Ball; and The Festival of the Dead, an October-long event that includes speakers and séances and a pop-up psychic parlor set up inside the mall.

If he also ran a pub, he could sell the tempting looking beverage depicted above. Please note, the judge on the bottle is not intended to bear any relation to Judge Brennan, to whom we send our best regards, and wish him well in his lists for the season.

We now turn to some more serious stories.

 

Sentencing

Imprisoned in the wrong body  

A transgender woman who admitted assault has been sentenced to 12 weeks – in a men’s prison. The problem is that Tara Hudson, who has been living as a female since the age of five, has undergone six years of gender reconstruction operations and now has the appearance (according to her mother, interviewed on the radio) of a “busty blonde”, was born male and retains some male sexual attributes. Surgery to complete the transition has yet to be performed. Although an appeal against her sentence is pending, she has been sent to the all-male HMP Bristol, according to the BBC.

Now it is alleged that she is being sexuall harassed by fellow male prisoners. The case has caused an outcry and over 55,000 signatures have been added to a petition to have her moved to a different (presumably female) prison. But that may not be the answer. When interviewed on the radio her mother admitted it could just as easily be a problem if her daughter were sent to a women’s prison, where she might be treated as “not belonging”.

This is obviously a difficult matter which the Prison Service ought to be able to cope with by now. Although a spokesperson responded to the BBC by stating that it was “a longstanding policy to place offenders according to their legally recognised gender” (which sounds like a rather woodenly binary approach), they do have “strict rules to ensure transsexual prisoners are managed safely and in accordance with the law”.

Rules is rules (but can you find them?)

Investigating what those “strict rules” might be, I tried to find the answer on Gov.uk – the new one-stop shop for government information. It was a trying experience. You have to search the entire haystack for your needle, but you can filter results by “organisation”, thus giving the illusion of a smaller haystack. There were no hits under Ministry of Justice for “transsexual prisoner” and only 3 hits for “transgender prisoner”. All three were about tougher sentences for crimes against transgender victims. Even trying under Home Office there was nothing about transgender or transsexual prisoners as such.

There is a section under “Crime, Justice and the Law” called “Prisons and Probationbut this has nothing in it about transgender prisoners, and the bit about vulnerable prisoners is too vague to be on point. Nor can I get any sort of link to the Prison Rules, which I know exist. Why is Gov.uk so expletive-deletedly useless?

Muddling on, I tried Google, which found a PDF entitled Prison Rules immediately. However, this appears to be part of or appended to a longer document, given that it starts on page 83. From the URL is appears to be published by the Prison Reform Trust. This version of the Prison Rules appears to contain no reference to “transgender” or “transsexual”. The main PRT website has a search function, but it found no results for either word.

So we’re still on the hunt for those “strict rules”. Back on the Google hits page, there is one for Legislation.gov.uk. Of course! Silly me. The Prison Rules have been made as or are scheduled to a piece of legislation, probably a statutory instrument. (As a lawyer, I ought to know these things. As a lay journalist or member of the public, I might not.)

But sadly the search of all Prison Rules (both the main Prison Rules 1999 (SI 1999/728) [replacing the earlier Prison Rules 1964 (SI 1964/388)] and the countless (about 70) amending instruments since 1999 make NO MENTION of “transsexual” or “transgender” prisoners.

So where the heck are those strict rules about their treatment? I am sure the spokesperson whom the BBC spoke to was not simply making it up as they went along. It would just be nice to know to what they were referring. At this rate, I might have to file a Freedom of Information Request ( only former Lord Chancellor Chris Grayling has said journalists using FOI to generate news stories is a Bad Thing. You wonder what FOI might be for, if not to allow journalists to check and investigate their stories.)

Finally, via a helpful reference in the Independent news report of the case, I find the title of a document, The Care and Management of Transsexual Prisoners on a site called UK Trans Info. Good for them! They provide a link to the document, which is a Word document, apparently hosted on an MOJ site (but impossible to find, of course), and categorised as a PSI (which I’m guessing stands for Prison Service Information or Instruction?). It is dated 2 March 2011 and has an expiry date of 14 March 2015. So it’s out of date. It provides in section D:

D1. In most cases, prisoners should be located according to their gender as recognised under UK law. This will usually be the prisoner’s birth gender. However, UK law recognises that transsexual people with gender recognition certificates have a gender opposite to the one assigned at birth.
D5. Transsexual prisoners who obtain a gender recognition certificate while located in a prison appropriate to their birth gender should in most cases be transferred to the estate of their acquired gender…

However, in para 4.3 it says:

A male to female transsexual person with a gender recognition certificate may be refused location in the female estate only on security grounds – in other words, only when it can be demonstrated that other women with an equivalent security profile would also be held in the male estate. In such circumstances she will be considered a female prisoner in the male estate and must be managed according to PSO 4800 Women Prisoners.

As for treatment, wherever detained, the guidance provides at para 3.5

“Establishments must put in place measures to manage the risk of transphobic harassment and transphobic hate crime. “

In The Guardian, Tara’s mum expressed the following hope for the future:

“I just hope that the laws are changed, that transgender people can live their life as they want and go to the appropriate prison.”

Yes, and maybe not commit crimes that require them to be sent there in the first place (said no one at all.)

 

Net Neutrality

Concern over loopholes and limitations

Net neutrality is the principle that internet service providers should treat all online content equally without blocking or slowing down specific websites on purpose or allowing companies to pay for preferential treatment. (As defined by The Guardian.)

In April, the US Federal Communications Commission introduced new rules to promote the ideal of net neutrality, taking on the practices of broadband providers. Both service providers and content generators claim they support an internet free from interference. This battle is far from straightforward, and already heading to court. In an article on the International Bar Association (IBA) website, Arthur Piper, a freelance journalist, explains the background to the problem and what he thinks may go wrong. He says:

Both sides support the concept that the internet should be free from interference from outside agencies: the broadband companies point to the regulators as the interferers; the content providers point to those that own the broadband infrastructure as the culprits. That’s why each can paradoxically argue that they are the defenders of an open internet.

Link to the article

More recently, the European parliament voted through new rules intended to enshrine the principle of net neutrality in law, but critics say they are fatally undermined by a number of loopholes which “open the door to an end to net neutrality”, reports the Guardian this week. Exceptions appear to  countenance some services being given priority access to data flow. The question is whether they represent the thin end of a wedge of non-neutrality.

See also: Out-Law.com, the Pinsent Masons blog, New EU net neutrality rules and reforms to mobile roaming charges move closer following vote

 

Family courts

Policy document proposes (yet more) transparency

Criticism of the family justice system and its alleged lack of transparency has come from a slightly unexpected source this week. Not the tinfoil hatted legions on Facebook, or certain well known axe-grinders writing / renting quotes to the Dailies Telegraph and Mail, but instead that punch-above-its-weight political party, UKIP. The MP Douglas Carswell launched a new Policy Document calling for “greater sensitivity in legal process to avoid breakup of families and forced adoptions”, according to a report in The Guardian.

Readers may recall from our survey of party political manifestos before the general election that UKIP promised, if it achieved the power to do so, to

“Review the Family Court system, with the intention of implementing independent lay oversight of Family Courts”

and assured voters that:

UKIP is committed to bringing forward a full, open review of all childcare and child protection services in Britain, with a view to initiating wholesale reform of a system that is clearly failing.

Link here for the policy document, written by Duncan Simpson, entitled “Opening Up the Family Courts

As with a lot of political drives of this sort, it seems to be based on a combination of peddling certain well-worn (and largely untrue) cliches about “secret courts” and wronged parents (whose cases always turn out to be rather more complicated than appears in the media), with a wildly-semaphored process of pushing at an open door (the President of the Family Division has already got there in spades, with his widely publicised Transparency Agenda).

Typical of its level of academic rigour is to cite guidelines introduced by Michael Gove, a government minister, and then provide a link, not to the guidelines themselves, but to an article in the Daily Telegraph discussing them. (See footnote 7 on page 4.)

For a more expert view by barrister Sarah Phillimore, see Child Protection Resource, “The woeful state of the debate about child protection, Part III” 

 

Constitutional crisis – what crisis?

Rapid review not rushed or anything

The loss by the government of a vote in the House of Lords over tax credit cuts has prompted David Cameron to propose a “rapid review” of constitutional conventions to ensure that the House of Commons always has supremacy on financial matters, the Guardian reportedLabour argued that it had a free hand in the Lords because the tax credits were being introduced through a statutory instrument and had not been declared as a formal financial measure. (Were they in fact a welfare measure?)

It then seems to have fallen to Chris Grayling, as Leader of the Commons, to defend the idea. John Crace, also in the Guardian, made short (and amusing) work of his attempts to do so in a piece entitled, ”A bad day for Chris Grayling and David Cameron on tax credits”. 

“The rapid review definitely won’t be rushed,” Grayling (who used to be Lord Chancellor) is reported as saying. Crace goes on:

“Tasked with trying to explain why the cuts to tax credits were really a financial rather than a welfare issue, he put forward an argument for why they weren’t that was so compelling, he even managed to convince MPs on his own side that the Lords had acted properly.”

See also, by Robin Lustig on his Lustig’s Letter blog, “A question of incompetence”. 

 

Terror-bytes

Journalist’s laptop seized

Police use anti-terror powers to seize the laptop of a Newsnight journalist. Secunder Kermani joined the BBC show early last year and has produced a series of reports on British-born jihadis, according to The Independent. A BBC spokesman said:

“Police obtained an order under the Terrorism Act [2000] requiring the BBC to hand over communication between a Newsnight journalist and a man in Syria who had publicly identified himself as an IS member. The man had featured in Newsnight reports and was not a confidential source”.

Snowdon sanctuary

In a sensational follow up to the judgment of the European Court in the Schrems case which depended so heavily on his revelations (see Weekly Notes – 16 October)  the EU Parliament this week voted by a narrow margin of 285-281 to protect NSA whistleblower Edward Snowden from extradition to the USA, if he were to reside in Europe. This marks, said Wire magazine, “a step toward allowing the NSA leaker to leave Moscow and safely live or travel on the continent”. 

Prior to finding a semi-permanent haven in Russia, Snowden had applied for asylum in 21 countries. The new approach by the EU is a recognition of his role in uncovering the wholesale ineffectiveness of the Safe Harbour agreement on which the EU Commission based its data protection decision. Wire notes that

“the resolution against extradition was passed alongside another, more broadly approved call to better protect EU citizens’ personal data from surveillance.”

Incidentally, it is sobering to reflect that in the Irish High Court the defendant data protection commissioner described Schrems’s proceedings (which have been remitted by the ECJ for a proper hearing) as “frivolous and vexatious”: see Schrems -v- Data Protection Commissioner [2014] IEHC 310 

Meanwhile, in other computer security news, The Onion reports “China Unable To Recruit Hackers Fast Enough To Keep Up With Vulnerabilities In U.S. Security Systems”

(It’s satire, by the way. But still frightening.)

 

Parish news

Risk based supervision at Bar

Oliver Hanmer, director of supervision at the Bar Standards Board, has an article posted on Legal Futures about the recent survey of High Impact chambers and the risks they face. In 2014, all chambers were assessed for “impact” and rated as either “high”, “medium” or “low”. This week the BSB published its report on chambers assessed as high impact. On the whole, he concludes that “the vast majority of barristers are doing a great job”, adding:

The supervision process is all about facilitating a constructive relationship between chambers and the regulator. It is in everyone’s best interests that chambers are managed competently; barristers’ and chambers’ operations should run smoothly, meaning we will be able to protect and promote consumer interests, with less need to take enforcement action on chambers.

For more information, via the BSB website, “Report on High Impact Supervision Returns October 2015

 

Dates and deadlines

Middle Temple: Open Meeting in Hall – 2 November 2015 at 17.30 

“The purpose of the meeting is to enable Master Treasurer to explain some of the key strategic issues facing the Inn, and how we are seeking to address them.” Followed by drinks reception.

Law Society event: Is regulation killing pro bono?  2 November 2015  08:30 – 11:00

“Join us for the official opening of National Pro Bono Week 2015 with a panel discussion on the regulatory barriers to pro bono, chaired by the Attorney General’s pro bono envoy, Mike Napier CBE, QC.”

The Law Society, 113 Chancery Lane, London WC2A 1PL (free, carries CPD)

Reading brief

 

Law (and injustice) around the world

Africa

South Africa and the ICC

In an article in AllAfrica entitled “How Africa Can Fix the International Criminal CourtProfessor John Dugard, South Africa’s pre-eminent expert on international law, who also sits as a judge on the International Court of Justice, responds to the recent suggestion by the ANC that South Africa should pull out of the ICC. He argues instead that African states have largely themselves to blame for the fact that the continent has been singled out by the ICC, and they should use their political muscle to ensure that prosecutions are brought against non-African leaders:

“There is little doubt that European states have used their influence in the ICC to block prosecutions of which they disapprove, such as the prosecution of Israeli officials for crimes committed in Gaza. Why then have the African states not brought pressure in the Assembly of States Parties of the ICC to ensure that prosecutions are initiated against non-African states? “

Saudi Arabia

Ambassador defends kingdom’s human rights record

In an ill-judged move likely to attract even more of the scrutiny and criticism it seeks to ward off, the Saudi ambassador to the UK wrote a letter to the Daily Telegraph warning against criticising his nation’s record on human rights lest it jeopardise the existing cooperation between the two kingdoms on intelligence and anti-terror protection.“Over the past few weeks,” begins Mohammed bin Nawaf bin Abdulaziz, 

“there has been an alarming change in the way Saudi Arabia is discussed in Britain…. Just as we respect the local traditions, customs, laws and religion of Britain, we expect Britain to grant us this same respect.”

As David Allen Green points out in his Jack of Kent blog, “The thinly veiled threats of the Saudi Ambassador”, the the use of barbaric punishments such as flogging, beheading and crucifixion is hardly equivalent to what one might regard as “traditions” or “customs” local to Britain or indeed most civilised societies that respect the rule of law; and the rule of law, whether pegged to any particular religion or not, ought not decently to allow them. They are as barbaric and they are medieval. For as long as Saudi Arabia and Iran and other countries continue to use such practices on their own citizens, people in more civilised countries will continue to criticise them for it.

The question of cooperation on security matters is, presumably, a matter of mutual benefit. So to withdraw such cooperation would be as damaging to Saudi Arabia’s interests as it would be to those of the United Kingdom. It would be cutting off (or beheading) its nose to spite its face.

Still, we have been here before. Threats like this have been heeded, and by our own government, which preferred to keep in with the Saudis for the benefit of their intelligence cooperation (and not, though one might be tempted to think otherwise*, by the promise of yet more lucrative defence contracts), and accordingly silenced court proceedings (a fraud investigation into BAe that might have proved embarrassing to this helpful ally: see R (Corner House Research) v Serious Fraud Office  [2008] UKHL 60[2009] 1 AC 756

[*The reason I say one might be tempted to think otherwise is the very specific reference in the ambassador’s letter to this very matter: “Saudi Arabia ultimately provides over 50,000 British families in the UK and the Kingdom with livelihoods, thanks to commercial contracts worth tens of billions of pounds.”]

It must have annoyed the ambassador (if anyone has dared tell him) that his letter appeared on the Telegraph website next to a link to a “promoted story” in The Week listing “Eleven things women in Saudi Arabia cannot do”. But those who use the media to influence public opinion do so at their own risk.

 

Sweden

“World’s first” men’s rape clinic opened

In “Dispatches: Sweden’s Inclusive Rape Care Model”, Human Rights Watch researcher Kyle Knight reports on the welcome development of a clinic dealing with rape and sexual offence against men and boys while also recognising and acknowledging the risks of such crimes faced by transgender people.

Sweden’s move to make rape care inclusive across the gender spectrum should stand as a model. Violence affects everyone regardless of sexual orientation or gender identity; and no one should be excluded from prevention and care.

Turkey

International editors demand protection of press

More than 50 leading international media editors have written an open letter to President Recep Tayyip Erdoğan raising profound concerns about the deteriorating conditions for press freedom in Turkey in the run up to the elections this weekend, reports PEN, the writers’ rights group.

The editors list a series of attacks on journalists and media publications over the past two months that include: two attacks on the offices of the newspaper Hurriyet; the physical assault of leading journalist Ahmet Hakan Coskun; the seizure of Koza Ipek Media this week; the detention of three journalists working for Vice News (including Mohammed Ismael Rasool who is still in prison), as well as prosecutions and further arrests. The letter says:

‘We urge you to use your influence to ensure that journalists, whether Turkish citizens or members of the international press, are protected and allowed to do their work without hindrance…’

 

And finally… a not quite so serious story:

Ukraine

Vader-statue-2-618x413Darth to capitalism!

In the city of Odessa, artist Alexander Milov has redesigned the statue of Lenin into Darth Vader.

According to Jordan Sims on Wow (a news medium new to me, I have to confess) the Ukrainian government recently passed a law to make all communist propaganda illegal but factory workers employed close to the statue of Vladimir Lenin requested the infamous communist revolutionary be adapted, as opposed to being destroyed as the new law demanded. And so he has become the much loved (surely feared?) villain of Star Wars. 

Wow: “Ukraine artist turns Lenin statue into Darth Vader

 

 

That’s it for now. Enjoy Halloween and Bonfire Night. We’ll be back next weekend with some more legal news and comment.

 

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent the opinions of ICLR as an organisation.