Weekly Notes: legal news from ICLR – 4 September 2015
Posted on 5th Sep 2015 in Weekly Notes
We resume our weekly survey of legal news and events with a catchup of what’s been happening over the vacation, both at home and abroad.
Red Queen redux
What does acquitted phonehacking defendant Rebekah Brooks’ reinstallation as chief executive at News Corp UK say about money, Murdoch and management?
Reading Beyond Contempt, Peter Jukes’ eyewitness account of the phonehacking trial, one was struck by his guarded admiration for the alleged queen of misrule, Rebekah Brooks, who was supposedly in charge of the News of the World at the time when some of the worst of the phonehacking was going on. By turns imperious, coquettish, comical and fearful, she exhibited many of those characteristics which historians have attributed to the woman known to her courtiers as Gloriana. And in the words attributed to Queen Elizabeth I, she showed, both in court and in her working life, that while she might have the body of a woman, she had the heart and stomach of a king. Faced with an armada of criticism, complaint and criminal charges, Brooks deftly turned them all aside. Jukes does not say so in so many words, of course, but from his description of her bearing and conduct in his mesmerising account, that is certainly the impression that might be given to anyone with more than a passing knowledge of sixteenth century history.
Putting my lute aside, and taking up my quill, the question that must now be asked is, given that Brooks was acquitted largely (it seems) on the basis that she did not know that phonehacking was going on in the organisation of which she was in charge, and at the world famous newspaper whose closure it led to, how competent could she have been in the post to which, having been sent packing (a large sum of money in her pocket), she is now apparently to be restored?
Sorry, that was a rather long sentence. (We lawyers!) I said Brooks seems to have been acquitted on the basis she did not know it was going on (under her nose or otherwise), because of course we cannot know precisely why she was acquitted. Only the jurors know that, and some of them may not even know the full reasons consciously, since all jurors inevitably act on subconscious reasons as well as those they admit to themselves or discuss in their withdrawing room. (No, it’s true. I’ve sat on a jury, and there’s something instinctive in one’s reactions to witnesses, to the conduct of the police, to the demeanour of the defendant, and a general sense of whether justice is being done or not.) But assuming she was acquitted on the basis of her defence, then she did not know. That raises a question about her management style, which is either very laisser-faire or a bit chaotic. Given the levels of institutional sexism in tabloid journalism, for Brooks to have reached the position she did, having started out scribbling fluffy fillers in a pullout section, says a good deal about those Gloriana qualities. But it is perfectly possible that the qualities that recommended her for promotion, ie impressed her bosses, notably Rupert Murdoch himself, were not entirely compatible with transparent fully accountable management. I don’t know. The newspaper folded, many reporters lost their jobs, quite a few of them were prosecuted, some were convicted, and Brooks herself was let go. Now, it seems, that was just the end of Act I. After a suitable interval, she is back on stage, cheered by some of the suits in the circle, and booed by the moralities in the gods. It’s a terrific story. And it hasn’t ended yet.
For more critical commentary: The Guardian says Rebekah Brooks’s return hints at Murdoch’s hatred of establishment and Hacked Off responded with a statement from its chief executive, Dr Evan Harris, who said, inter alia:
“Mrs Brooks’ successful defence at trial was that she was such an incompetent executive that she was unaware of industrial-scale criminal wrongdoing in intercepting voicemails and bribing public officials, and unaware of the vast conspiracy to cover it up, despite her admitting to destroying millions of emails and putting the company’s reputation before co-operation with the police. Her failure has so far cost the company £300 million, hundreds of jobs and then there is the £16m pay off she received while scores of her newspapers’ confidential sources have gone to jail.
Brooks’ reappointment is a major misjudgement of the national mood by a company still ethically out of control.”
Hers is not the only controversial appointment. The newly appointed editor of the Sun is Tony Gallagher, who was until last year editor of the Telegraph, and was blamed by many for his shedding of most of its decent reporters, and for presiding over (in this former reader’s opinion – I stopped buying it) a depressing collapse of editorial and reporting standards, driving the paper downmarket to drive up sales. Not for nothing is it known to readers of Private Eye as the Daily Trashograph. He is probably well suited to the Sun.
Exodus and influx
Governments ill prepared for migrant crisis
This has been a summer of sorrow for the ordinary people attempting to escape the chaos, barbarity and persecution of civil war and religious exterminationism in sub-Mediterranean countries both near and far. First there were those who perished at sea, as they tried in ever greater numbers to cross from north African shores to southern Italy; then, closer to home, there was the crisis at Calais, exacerbated by a ferry workers’ strike on the French side, which provided an opportunity for migrants, economic or refuge-seeking, to attempt to make the crossing in the back of freight container trucks held up by the blockade; and finally there have been scenes in Hungary as the government there has attempted to impose restrictions on the influx from the east.
Responses from the UK have included sending a naval vessel to the southern Mediterranean to help rescue shipwrecked migrants; Operation Stack – intended to manage the disruption and migrant activity round freight traffic queues; and most recently an undertaking to admit a slightly larger number of refugees to the UK than previously – though in nothing like the same numbers as some other European countries, notably Germany.
What can you do to help?
First of all, you can sign a petition to ensure the matter is debated in Parliament.
Secondly, you can donate a billable hour in fees or an equivalent bite out of your salary to Save the Children via a justgiving page set up by Sean Jones QC, which in 24 hours had already exceeded its fundraising target by several hundred percent. (The sum raised is now approaching – may already by now have exceeded – £100,000.)
BSB Annual Report
The Bar Standards Board, the regulator for barristers in England and Wales, has issued its latest annual report. The Introduction, by Sir Andrew Burns, chair, and Dr Vanessa Davies, director general, is littered with the usual management-speak – “three-year strategic plan… risk-based approach … evidence-based regulatory tools … “ and pays tribute to outgoing chair, Baroness Ruth Deech, who was made a QC ex honoris causa, but says nothing about the disastrous non-implementation of the BSB’s flagship regulatory tool, QASA (the Quality Assurance Scheme for Advocates). Instead, buried deep in the report (at p 12) is this rather shoegazing excuse:
QASA was originally scheduled to be operational by now, but due to the legal challenges that continued throughout 2014/15, no implementation work could be undertaken during the year.
The scheme has now been approved by the Supreme Court – or to be more accurate, the Supreme Court declined to judge its merits but agreed that there was nothing unlawful or judicially reviewable in the decision to implement it: see R (Lumsdon) v Legal Services Board  UKSC 41;  3 WLR 121;  WLR (D) 270.
On a more positive note, was the launch of the Future Bar Training (FBT) programme last autumn, “a major review of everything to do with the way in which a barrister first qualifies and how practising barristers ensure their training and skills remain relevant and up-to-date” which was “geared to gather pace significantly during 2015/16”. This has already resulted in a relaxation of approach towards CPD (Continuing Professional Development) points, which is perhaps less welcome to those (like ICLR) who provide CPD products than it may be to the practitioners who used to need to chalk up a rigid minimum of points each year.
Inner Temple library closure plan
The Executive Committee of the Inner Temple have proposed a programme of redevelopment works which, if followed, will result in what has been described as a “drastic mutilation” of one of the finest law libraries in the world (right). This is vehemently opposed by some members of the Inn, led by Guy Tritton, who has set up a petition to oppose the plan.
As he explains in the petition, the committee went for the more radical of two options. Option 2 will involve the library’s entire upper floor and gallery being converted into meeting rooms, offices and an auditorium for education and training. Half of the Library’s main floor will be lost to storage, equipment, lifts and stairs to a new fourth floor extension. It means 58% of the floor space and 50% of reader spaces will be lost (leaving only 49 reader places); and 25,000 books from the main part of the Library and in everyday use will be displaced. The Library will be closed entirely for a year and a half for the works to be carried out.
The rejected Option 1, which would be significantly cheaper, would still provide a whole new floor including a lecture theatre, training rooms and meeting rooms above the existing Treasury Building. This would have minimal impact on the Library.
The British and Irish Association of Law Librarians (BIALL) LinkedIn group have raised awareness of the petition via a post by Inner Temple member Daniel Hoadley (of ICLR) which is continuing to provoke a storm of outrage in comments from BIALL members, though some are less nimby about it than others.
Human Rights awards 2015
Liberty has announced its shortlist for the Liberty Human Rights Awards. They include the Cardiff Law School Innocence Project, Adam Wagner, barrister (for launching his RightsInfo project) and the Joint Enterprise Not Guilty by Association campaign. Winners will be revealed on Monday 7 September as part of an evening of uplifting stories and entertainment hosted by critically acclaimed writer, actor and comedian Jo Brand at London’s Southbank Centre.
Law reporting awards 2015
Sadly not for law reporting properly so called, but rather for news reporting, with prizes of £1,000 for winners in two categories: broadcast (TV and Radio) and print (including, paradoxically, online). The awards are made by the Bar Council and the deadline is 10 September 2015.
For details and entry form, see Bar Council website.
Law (and injustice) from around the world
With weary predictability, the retrial of Peter Greste, Mohamed Fahmy and Baher Mohamed, the three Al Jazeera journalists arrested in 2013 and originally tried in Egypt in 2014, has resulted yet again in harsh sentences of three years in prison (Greste in absentia) after being found guilty of broadcasting false news and operating without a press licence, despite each having already spent over 400 days in prison. Greste has already been returned to Australia, but the other two remained in Egypt while the case was considered and a retrial ordered by the Supreme Court. According to Fair Trials
The case has highlighted, yet again, the way that the Egyptian government’s disrespect for free speech and contempt for a fair and effective criminal justice system continues to undermine the legitimacy of its rule.”
Woman wins damages for electromagnetic field disability
In the first case of its kind in France, a court in Toulouse has recognised a 39-year-old woman’s disability claim for “hypersensitivity to electromagnetic waves”, reports The Register. Martine Richard will get €800 ($900) a month for three years for injury said to be caused by exposure to electromagnetic fields such as those generated by WiFi and mobile phones.
In consequence of her condition the former playwright and radio documentary director from Marseille says she is now forced to live in a remote part of the Pyrenees, without electricity, to escape from electromagnetic fields. (With no distractions, she should soon be able to get some writing done. So long as she doesn’t get repetitive strain injury from her manual typewriter.)
Attempts to staunch flow of migrants eventually fails
In the last few days, Hungary has reluctantly given in to the swelling mass of migrants wishing to pass through its borders on the way to more receptive and welcoming countries like Austria and Germany. It has been trying to corral them into camps and process them bureaucratically before they leave, or even prevent them from moving through its borders at all by building a massive barbed-wire topped fence on the border with Serbia to keep out the ever-increasing flow of refugees to Europe.
Croatia and Romania are EU member states. Serbia is not. Under the “Dublin Regulation,” the legal framework for processing asylum claims in the EU, the member state where asylum-seekers first enter the EU bears responsibility for them until their claims are processed. If Hungary diverts migrants so that they enter the EU first through other member states, then Hungary evades Dublin obligations.
But that was last month: since then history and the migrants have moved on. Tonight’s news showed them walking along a motorway towards Austria. The problem with this crisis is that history is unfolding so rapidly it is hard to report legal aspects with any meaningful contemporaneity.
UPDATE: 5 Sept.
The Jurist (Hungary lawmakers approve emergency laws to address migration crisis) reports that the Hungarian National Assembly has just passed new laws imposing restrictions on the migrants in the country (including criminal sanctions for damaging or attempting to breach the new fence) and declaring a state of emergency. The stated aim is to protect European borders and culture.
Sentenced to be raped: two innocent sisters condemned to abuse by vindictive old village elders
But who are to be the righteous executioners of this order? The Times reports that Meenakshi Kuwari, 23, and her 15-year-old sister (both of the so-called Dalit or “untouchable” caste) have fled their home in the district of Baghpat, Uttar Pradesh, north of Delhi, after village elders ordered that they be stripped naked and paraded, with their faces blackened, before being raped to atone for their brother’s “crime” in falling in love with a woman of a higher caste.
The case is the latest example of rape being used as a punishment by unelected village leaders or councils in rural India. The Supreme Court has ruled the judgments illegal, but the practice persists in remote areas.
India already has an atrocious reputation for rape and sexual assault offences, which are often unreported or unsolved, particularly in the wake of the 2013 case of a medical student gang-raped and murdered on a bus (reported here). These “kangaroo courts”, as the Supreme Court has called them, consisting of a panel of self-appointed elders, purport to determine issues arising out of local disputes and mete out justice consisting of often barbarous retributional punishments suggestive of a belief that two wrongs really do make a right. In this case, the girls’ brother committed the crime of falling in love with someone he wasn’t supposed to fall in love with: he eloped with her, and in consequence his family has to be shamed by his sisters being raped and paraded in disgrace round the village.
So the question is, who is going to carry out the onerous task of raping them? Is this something for which an official job description is assigned? Do they attend for interview and answer questions about their enthusiasm for the practice of raping innocent young girls as a fine way to uphold the deeply moral traditions of the village? Do they act alone or in concert, according to the fine tradition of gang-rape for which the drafters of the Indian Criminal Code back in Victorian times (led by Thomas Babington Macaulay) had to make special provision (the offence is not specifically catered for in any English statute currently in force)? If the women are supposedly of the “untouchable” caste, won’t raping them involve, er, touching them?
Time and again (see Al Jazeera report) the proper courts in India condemn this kind of retributive justice, yet neither the courts nor the politicians seem able to sweep its medievalisms away.
For a full report on this disgusting case: Amnesty International (PDF).
Journalist arrested (another one, again)
According to Sunday’s Zaman, a Dutch journalist, Frederike Geerdink, who has been working in Turkey since 2006 and has lived in Diyarbakır since 2012, has been detained by the Turkish authorities for the second time. The report (via Dutch news agency ANP) said that Geerdink was detained at around 2 a.m. on Sunday morning by the Turkish police, after being with a “human shield group”. Geerdink was previously detained in January of this year on charges of terrorism propaganda and released in April after the Diyarbakır 6th High Criminal Court stressed that freedom of expression for the press must be interpreted in its broadest form. Sadly, this is not the first time a journalist has been detained in Turkey in recent days.
United States of America
Ethical requirement to be IT savvy
According to a recent post on 3 Geeks and a Law Blog, from which this extract is taken:
On June 30, 2015, the State Bar of California finalized a formal opinion holding that insufficient understanding of electronic discovery can violate the rules of professional conduct. Interestingly, California is not among the 14 states that has followed the ABA in adding “technology” to the ethical rules on competence. The lack of verbiage did not, however, stop the Standing Committee from finding a direct nexus between technology and a lawyer’s ethical duty of competence: “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”
You have been warned. (Perhaps this is something the BSB should look into?)
That’s it for now. Enjoy the week ahead, and check for any updates in the next day or two.
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.