Weekly Notes: legal news from ICLR – 5 June 2015
Posted on 5th Jun 2015 in Weekly Notes
This week’s lineup of recent legal news and events includes the prevention of pleasure, LIP service for lawyers, and the protection of children. And, for the sake of amusement, a rivalry of rubber ducks.
Psychoactive Substances Bill
Will it trip the law fantastic or just tread clumsily on our freedoms?
The Government would like to ban “legal highs” because, like those recreational drugs that have already been outlawed under the Misuse of Drugs Act 1971, they can be dangerous, their sale is not properly regulated and therefore encourages other forms of lawbreaking, fraud, adulteration etc; and they’re only “legal” because new ones keep cropping up too quickly to be able to ban them one by one. Instead, the proposed Psychoactive Substances Bill bans anything that might fall into the category of something they might want to ban, even if it hasn’t been invented or cultivated or distributed yet, unless and until said substance, having psychoactive properties, is expressly excluded from the ban.
As Carl Gardner explains, on his Head of Legal blog (What’s wrong with the Psychoactive Substances Bill?)
The idea is to clamp down for instance on new sorts of cannabinoids (which mimic the effect of cannabis) and cathinones (a type of stimulant which can mimic the effect of ecstasy) even before they’re invented, so the law doesn’t have to keep playing catch-up.
This is a tricky, not to say illiberal, approach to legislation, but it’s not unheard of. Although there’s no statute which says as much, killing another human being is basically unlawful unless it falls within a number of well defined categories (self defence, warfare, medical necessity, death penalty imposed by law, etc.) The same goes for deliberate and non-consensual physical assault, although this has been more comprehensively adumbrated under statute. But on the whole, jurists take the view that law as a system of rules governing people should operate on the basis that anything is permitted unless expressly, or by necessary implication, forbidden.
So it calls for exceptional circumstances to justify a reversal of that presumption of lawfulness. Has this been made out in the case of “legal highs”? And even if it has, does the proposed legislation actually achieve what it sets out to do? And if it does, could the same thing not have been achieved simply by amending the existing Misuse of Drugs Act 1971?
The first question should be answered by the proponents of the Bill, ie the Home Office or minister, in this case Lord Bates, who sponsored its first reading in the House of Lords, where it was introduced on 28 May. The first draft of the Bill can be read here.The explanation of the policy behind the bill is contained in the accompanying Explanatory Notes, which may be viewed here. These do provide quite a detailed explanation, with stats and research, and citing the earlier (apparently successful) introduction of similar legislation in Ireland in 2010.
They also answer, to some extent, the third question, by explaining, under “Legal background”, how previous efforts have been made by the use of Temporary Drugs Class Orders (TDCOs) under an amendment of the 1971 Act by the Police Reform and Social Responsibility Act 2011. As Carl Gardner explains (above), this amounted to a sort of “playing catch-up”. This part of the explanatory notes points out that “the Bill is not a replacement for the 1971 Act”. The 1971 Act deals with known evils, or supposed evils; the Bill is attempting to deal with “unknown unknowns” in the Rumsfeldian expression.
So, question two, does it work? This is where most of the commentary has been directed. Matthew Scott, in the Telegraph (Theresa May wants to ban pleasure) suggests the new law could criminalise nuts, scented pillows and (citing a tweet by @JackofKent) the smell of flowers. He doesn’t mince his words:
Of all the many idiotic, ill thought out and pointless laws ever passed, this would be the one of the silliest. And its draftsmanship would make the asinine Dangerous Dogs Act look like the magisterial 1925 Law of Property Act.
Ian Dunt in Politics.co.uk (Things you own which the legal highs bill is going to make illegal) Is another who suggests that the ambit of the Bill is far wider than intended, and includes things like air freshener, incense and even flowers, because the ingestion of their aromas can make you feel emotion via the activity of the central nervous system, and this fits within the definition of “psychoactive” substance in the Bill.
In fact what the Bill says, in clause 2, is
“by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state” (emphasis added)
Carl Gardner defends the drafting of the bill, pointing out that things that smell nice may affect people’s emotions but that it because of their sense of smell and the psychology of smell, not because they stimulate or depress the person’s central nervous system, even if this may also occur. My own way of looking at it is to think of the central nervous system as a radio amplifier. A nice sound may reach the listener’s ear via the radio. But the enjoyment or otherwise of the music could be magnified or distorted by stimulating the amplifier, ie turning up the volume. It’s the substance that turns up the volume which is problematic, not the music itself. (But if this is hopelessly unscientific and wrong, I am, like Gardner, willing to be corrected.)
In a further post, And another thing … (about the Psychoactive Substances Bill) Gardner also defends the Bill against the charge, levelled on Twitter, of “self-contradictory exemptions”.
Litigants in Person
Guidance for lawyers, their clients, and LIPs
The Bar Council, Law Society and Chartered Institute of Legal Executives (CILEx) have issued joint guidance to deal with the “surge in DIY justice”. The move was welcomed by Lord Dyson, Master of the Rolls:
An increasing number of litigants in person are coming before courts and tribunals in all jurisdictions, and the challenge for all of us in the justice system is to make sure that everyone is treated equally, fairly and impartially and according to the law.
‘This presents particular challenges for practitioners, with the interests of the client and the duty to the court seemingly coming into conflict. However, ultimately, a client is best served by a fair and transparent system.’
Primarily, the guidance is aimed at lawyers, advising them how to cope with the competing demands of representing their own clients and treating other parties without lawyers in a fair and courteous way. Given that they are basically just required to treat their unrepresented opponents with courtesy and respect, not confuse them or mislead them, and fulfil their own duties to the court, it seems a bit over the top to produce a 28-page document. But it does collect together a lot of information. And it also deals with the slightly thornier issue of McKenzie Friends, and defines what they can and can’t do.
More interestingly, there are also notes for litigants in person, outlining what they can (and cannot) expect from the lawyers for the other side in court. This is only 2 pages long and I think could have been longer. But the Bar Council and probably the other bodies have already produced documents aimed at assisting LIPs deal with court proceedings. So this is just to deal with the relationship with the lawyers for the other side(s).
Finally, there is another 2-page document aimed at lawyers’ clients, helping to explain to them how and why the lawyer they have paid for might need to provide assistance or communicate with the client’s unrepresented opponent.
Incidentally, I’ve gained quite a lot (for me) of Twitter traction for the following remark, which I think highlights something frequently overlooked:
Litigants in person know what they want. What they often don't know is what they should be prepared to settle for. #advice is key.
— Paul Magrath (@Maggotlaw) June 8, 2015
Is the child protection system fit for purpose?
Transparency Project hosts one day muti-disciplinary conference
On Monday 1 June the Transparency Project hosted a one-day conference entitled “Is the child protection system fit for purpose?”, at the NCVO centre, overlooking the Regent’s Canal near King’s Cross. The delegates included lawyers, academics, social workers, parents and adoptive parents, and care-leavers who shared their knowledge and experiences of the child protection system with a view to discussing how it might be improved from everyone’s perspective.
Sir Mark Hedley, a retired family court judge, introduced the proceedings. He commented that before we could ask ourselves if the child protection system was fit for purpose, we needed to ask ourselves what exactly was that purpose? What emerged in the course of the day was that the original purpose of the Children Act 1989, or part of it, namely to support families in order to help them look after their own children (see section 17 in particular), had been all but hijacked by a risk-obsessed “rescue culture”, so that those parts of the 1989 Act which did permit and require non-consensual intervention (such as section 47) seemed to be dominating policy.
This change in culture seemed to have been forced on social services by the publicity surrounding a small number of egregious cases, such as those of Victoria Climbie and Peter Connolly, and compounded by financial constraints and a tendency among professionals to adopt a box-ticking safety-first approach. What seemed notable was that the threshold for intervention by the authorities was low, but the hurdle for children and families to be reunited was very high.
It was particularly affecting to hear the experiences of parents, frustrated at the lack of support, and from care-leavers, who felt in many ways “set up to fail” by the system. But there was a very encouraging positive message. Those who focused on trying to cooperate with other parties in the system, rather than fighting them point for point, were more likely to achieve what they wanted. And all the professionals agreed that, ideally, the system would be better if we could only go back to the Children Act 1989 and implement it properly as it had been intended.
For a more detailed account of the day, by one of its organisers, see Sarah Phillimore, on the Transparency Project blog: #CPConf2015 – How did it go?
One of the parent participants has her own blog, which is highly regarded: Surviving Safeguarding, and particularly these posts:
CPD points rethink
The current system of professional regulation has required barristers and solicitors to chalk up a regular number of CPD points (continuing professional development) each year, without any very specific requirement as to the content. This was a boon to anyone who wanted to put on an event, record a podcast, or even publish a journal, because they could register for CPD points and award them to those signing up for the event, the download or the subscription. Nor is this necessarily a bad thing, because it was a way of helping to fund events and publications that might otherwise find their profitability marginalised. To declare an interest, ICLR is able to clock up CPD credits for some events and presentations it does, such as the Annual Lectures and ICLR Encounters, which quite evidently are work-related and promote continuing development of a professional’s knowledge and skills. But no doubt some of the products were a bit of a try-on.
“the Bar Standards Board proposes replacing the CPD scheme for barristers who have practised for more than three years, ending the requirement to complete 12 hours training per year. The BSB said the current scheme has a ‘tendency to operate as a tick-box exercise’, with barristers taking courses just to satisfy the required number of hours.
Instead the BSB plans to move towards an outcomes-focused approach, which will involve barristers managing their own training according to their own needs, the Gazette reported. Under the new scheme barristers will have to maintain an up-to-date annual record of their CPD activities, and abuses will be monitored and dealt with as a disciplinary matter.
Having heard that CPD were to be “abolished”, we are relieved that this is not the case, and that ICLR events will continue to be eligible for providing professional development. But the fact that professionals will be left to manage their own development, and be relieved of the burden to chalking up a minimum level of points, may impact adversely on some providers.
Law (and injustice) around the world
Darker side of speedy justice
The brutal mob murder of a woman named Farkhunda sparked an outcry — and a fast trial. But was it fair? asks Tim Craig of The Washington Post, in the Toronto Star. Four men were tried and convicted in what seems to have been a fairly rushed process, for participating in the mob slaying of a woman wrongly reputed to have set fire to the Koran. Four of them face the death penalty, while eight were each sentenced to 16 years in prison. The rush to justice seems symptomatic of the mob activity for which it is supposedly the solution, which rather begs the question.
“Unfortunately, our justice system has been, in most cases, dysfunctional, corrupt and unable to deliver fair justice,” said Nader Nadery, a former commissioner of the Afghan Independent Human Rights Commission. “And though it’s been very slow most of the time, when it comes to some of these heinous crimes, which attract huge public attention, they want to move fast. But in moving faster, they undermine due process.”
Darker side of slow or non-existent justice
Compare the case of Afghanistan with that of Bangladesh, where perpetrators of the hideous slaying of Avijit Roy, founder of the Mukto-Mona (Free-mind) blog site, remain at large and the authorities seem to be dragging their feet over pursuing them. The Guardian reported on the case back in February (American atheist blogger hacked to death in Bangladesh), and this month the Literary Review “Silenced Voices” page carries a special item calling for readers to write to the Bangladeshi authorities to complain. (Details to follow. watch this space.)
Previous attacks on atheist bloggers have prompted the supposedly secular government to clampdown on other atheist bloggers, rather than the Islamists calling for their death. Last month a third blogger was murdered: Bangladesh blogger Ananta Bijoy Das hacked to death (BBC).
Human rights court allows France to take tetraplegic man off life support
A Grand Chamber of the European Court of Human Rights at Strasbourg has ruled, in the case of Lambert v France (Appn no 46043/14) that doctors can switch off the life-support system of a man who has been in a coma for seven years. According to The Guardian,
Lambert’s parents argued that withdrawing nutrition and hydration would be in breach article 2 of the European convention on human rights, which guarantees the right to life. Depriving him of nutrition and hydration would also constitute ill-treatment amounting to torture within the meaning of article 3 of the convention, they maintained.
By acknowledging that the decision was primarily for the domestic authorities, the Strasbourg court reinforced the principle that member states have a wide “margin of appreciation” as to how to decide such complex issues according to their own national laws and traditions.
The decision was opposed by the patient’s parents, who are devout Catholics.They took the case to Strasbourg after France’s highest court ruled last year in favour of ending Mr Lambert’s life support.
The case is many ways similar to the English case of Airedale NHS Trust v Bland  AC 789, which involved ceasing to provide artificial feeding for a patient in a persistent vegetative state. That was decided by the House of Lords before the enactment of the Human Rights Act 1998 enabled domestic courts to apply Convention law directly, and without reference to the Convention or the right to life. Had that case been decided again today, it is likely, in the light of Lambert, that it would have gone the same way, but the Convention would have central to the discussion in the case.
The case is discussed by reference to other kinds of “right to die” case, by the Jurist blog here. But I am hoping we might get a characteristically thoughtful blog post on the case from the excellent UK Human Rights Blog, who so far have only covered it in a roundup.
Silenced Voices – Jason Rezaian
Lucy Popescu, in her blog, who also writes the Literary Review Silenced Voices column, highlights the plight of Jason Rezaian, a 38-year-old American-Iranian dual national, who worked as a freelance journalist, based in Tehran, for publications such as the San Francisco Chronicle, GlobalPost, Slate and Monocle. Rezaian was reportedly charged in January 2015 with national security offences. Since then, Rezaian’s lawyer, Leila Ahsan, told Iranian state media that her client had been charged with “espionage, collaboration with hostile governments, gathering classified information and disseminating propaganda against” Iran. Popescu gives details of whom to write to, to persuade the authorities in Iran to respect freedom of expression and other human rights, and appeal for Rezaian’s release.
Day of action for Raif Badawi
Readers will no doubt recall the plight of blogger, Raif Badawi, who was sentenced to 10 years’ detention and 1,000 lashes in May 2014 for insulting Islam and founding a liberal website (see, eg Weekly Notes – 6 March). Meanwhile, his lawyer and brother-in-law Waleed Abulkhair, is serving 15 years in prison, for his peaceful activism.
Now English PEN and other campaigners are calling for a day of action on 17 June calling for their immediate release. There will be a letter delivered to the Prime Minister in Downing Street at 2 pm. Meanwhile, writes PEN:
We have been holding weekly vigils outside the Saudi Embassy here in London, and PEN staff are in regular contact with Badawi’s wife, Ensaf Haidar, who remains gravely concerned for his well-being. She is extremely grateful for PEN’s ongoing support and has urged us to keep fighting.
And finally: this week’s slightly silly story…
Duplicated duck tales
The Dutch artist Florentijn Hofman made quite a splash last year with his giant inflatable bathtime duck, bobbing about in the ocean in various ports around the world, including Hong Kong, where this picture was taken. But it travelled all round the world – a sort of world wide webbed feat.
Now, according to the (new to me) Dangerous Minds blog, Hofman is complaining that someone has re-used his drawings, upon which the original duck was manufactured, to render a duplicate duck. There’s also a suggestion that the Tall Ships Festival, which ordered his plans last year and then reused them this year, had not paid a bill as quack as they should have done. Presumably Hofman’s complaint would be that the client, by re-using his design, was infringing his reproducktion rights as author.
More pics (via CNN) Hong Kong’s giant rubber duck
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.