Weekly Notes: legal news from ICLR – 11 July 2014
Posted on 11th Jul 2014 in Weekly Notes
This week’s stories concern threats to privacy, security and freedom of expression around the world, as well as other topics of legal and ethical interest. As always we keep a close eye on the legal professions and their conduct.
A question has arisen as to the suitability of Baroness Butler-Sloss (pictured left, with The Law Reports) to head an inquiry into matters including an alleged “establishment cover-up” of child abuse, possibly involving persons in positions of power, by or during the term of Mrs Thatcher’s government in the 1980s.
Headline story in The Guardian: ‘Conflict of interest’ raised over Butler-Sloss role in child abuse inquiry
Leaving aside the obvious complaint that there is no such thing as “The Establishment” (other than the satirical club of that name which flourished briefly in the early 1960s), it is merely a conspiracy theorist’s assumption that there is a group of insiders who all know each other and are hell bent on helping themselves and each other at the expense of excluded outsiders, and about as coherent a body as the more benignly described “the great and the good’ – leaving, as I say, all that aside, the questions that arise are: (a) Do we really need to hold an inquiry at all? And (b) If so, who, if not the good Baroness, should head it?
These questions are addressed in various measure by the many commentators who have latched onto this in the last couple of days.
The problem with Baroness Butler-Sloss is that, although she has sterling form on child abuse inquiries, having chaired the Cleveland Inquiry of 1988 (Report of the Inquiry into Child Abuse in Cleveland 1987 by Elizabeth Butler-Sloss, HMSO, 336 pp, £14.50, July 1988, ISBN 0 10 104122 5 – link to review in the London Review of Books), she is also the sister of the late Sir Michael Havers, who, as Attorney General (he was later Lord Chancellor) in Mrs Thatcher’s government, might just conceivably come in for some criticism in the course of such an inquiry (one need put it no higher). This connection gives rise to a risk of apparent bias, or an apparent risk of bias – the point is, no one is suggesting actual bias, but for the benefit of the victims, if no one else, it is important that such an inquiry should not only be objective and impartial, but have every appearance of being objective and impartial. It is a matter of common sense and not something that requires elaborate rules or codes of conduct or, say, a further inquiry into the ethical issues arising in the holding of inquiries etc etc.
And then again, if we are going to hold an inquiry every time something goes wrong with the government of this country, why, we’d be at it for ever. One may as well set up a permanent Court of Inquiry, and publish a daily cause list of miscarriages of politics, health, financial fiddling, law and order, etc etc. One could populate the tribunal with a cadre of Lords (or Ladies) of Inquiry in Ordinary, and they could all recuse themselves on a daily basis for being members of the same race, class, colour, creed or blood group as someone inevitably coming within the scope of their work.
With that somewhat divagatious introduction, here are the commentators, in no particular order. They are all worth reading (we wouldn’t link otherwise):
- Richard Moorhead, on his LawyerWatch blog, A Few Thoughts on the Butler-Sloss controversy
- Nick Cohen, writing in the Spectator blog, Lady Butler-Sloss should not lead the child abuse inquiry
- Matthew Scott, writing as Barrister Blogger: Butler-Sloss Was A Superb Judge But She Should Stand Down Immediately
- Tom Pride, on his blog Pride’s Purge: Head of paedophile inquiry’s own brother accused of protecting VIP paedophiles
- Mary Dejevsky in The Guardian: Elizabeth Butler-Sloss is too close to the establishment to lead this abuse inquiry (but her alternative suggestion (few have dared make any) of Baroness Helena Kennedy is a good one. Not even someone who rationally believed in the existence of an establishment could accuse her of belonging to it.
- The Guardian have rather gone to town on this one. It began with Clare Dyer, on 8 July, singing Baroness Butler-Sloss’s praises, and (perhaps too soon) recommending her eminent suitability, in Elizabeth Butler-Sloss is natural choice to lead child abuse inquiry.
- Both Mary Dejevsky and, now, Joshua Rozenberg, in Scales of justice still unbalanced for female judges appear to disagree.
Indeed, the only people now supporting Butler-Sloss appear to be her actor nephew Nigel Havers, the BBC, and the Home Office whose minister, Theresa May, was the person who made the appointment.
The affair has now given rise to a petition.
A DRIP feed of growing Big Brother-hood
The slow, steady #DRIP, drip, drip of personal privacy ebbing away in the face of totalitarian government surveillance was being hashtagged to server capacity on twitter yesterday as Parliament debated the enactment of an emergency measure designed (it says) to combat the growing threat of terrorism. The intended enactment is called the Data Retention and Investigatory Powers Bill. (Hence DRIP.)
The recommended comment on this comes from David Meyer on GigaOm: UK fast-tracks communications data retention law in attempt to expand powers overseas
Now the Law Society has weighed in with its pennyworth: Stark warning on emergency surveillance legislation.
VHCC stand-off: deal on the cards, but is it win, lose or draw?
The long-running saga over VHCCs (very high cost cases), the threatened collapse of major fraud trials such as R v Crawley, and the miraculous resuscitation of the Public Defender Service (see, inter alia, PDS, PDQ! Operation Cotton and Operation (saving the MOJ’s) Bacon) has apparently been resolved at last, by an agreement, the precise terms of which are still a bit hazy, between the Ministry of Justice and the Criminal Bar.
The “truce” (as the Guardian described it) generated a good deal of activity on twitter, and a spate of official statements, with both parties hailing it as a victory for justice.
Under the agreement, revised fixed fees, to be determined on a case-by-case basis, will be paid to advocates undertaking those seven VHCCs currently listed for trial in which advocates had refused to work. As part of the deal, the government will not seek to expand the Public Defender Service (PDS) now that ‘normal working relationships have been restored’, and it will pay barristers bigger, faster interim fees to help defray their overheads during long trials.
The deal was reported in the Law Society Gazette, which later published a further story saying the “backroom deal” with the Bar had been sharply criticised for not including criminal solicitors also working on complex fraud cases. Nicola Hill, president of the London Criminal Courts Solicitors’ Association, was said to have called the agreement an “exercise in face-saving for the government”.
It was also pointed out, in a further Gazette piece (all three were by the indefatigable Catherine Baksi) that the deal only applied to 1% of criminal casework and does nothing to help barristers doing the vast bulk of criminal cases, let alone solicitors.
This aspect of the deal is also the subject of a comment by “a criminal barrister” writing the View from the North blog, entitled Another Step.
Yesterday we posted a piece on lawyers using social media, and the approach of their regulators in ensuring that this was done properly and professionally. See: Principles on social media conduct for lawyers.
Now it seems the House of Lords Communications Committee will conduct a short inquiry into the legal and regulatory framework around social media and communications offences, such as ‘trolling’. According to the announcement
The Committee will be holding two evidence sessions, which will look at whether the legislation on the issue of social media and communications offences is appropriate and fit for purpose or would benefit from clarification; whether the line between free speech and protection of victims is clear; and more generally, whether the steps which have already been taken to deal with these problems are sufficient, or whether further action is necessary.
Social media offences have been in the news recently, particularly in relation to the jailing of two defendants for saying nasty things about the teacher, Anne Maguire, who was stabbed to death by a school student recently. See Weekly Notes – 6 June 2014.
Role of Juries in internet age
Still on the subject of social media, to some extent, the attorneys general of the UK, US, Canada, Australia and New Zealand have been meeting in London this week to discuss how to preserve the jury system in the internet age.
According to the Guardian,
The annual conference of the most senior government lawyers from the five nations will also look at ways of improving the international fight against cybercrime and may consider the legal fallout from the Edward Snowden affair. Reviews of contempt of court procedures and the impact of social media are under way in several countries, including the UK.
(Picture via @AGO_UK twitter feed.)
Legal news from around the world
At an African Union summit last week in Equatorial Guinea, a number of African heads of state and officials voted to grant sitting leaders and senior officials immunity from prosecution in the African court of justice and human rights.
The irony and absurdity of this act of self-immunisation, according to the Guardian, is that the whole point of the court was to provide an alternative to the International Criminal Court, which was seen as unfairly targeting African leaders.
According to Kenyan activist Njonjo Mue, programme director at the Nairobi-based Kenyans for Peace With Truth and Justice, the move is no better than a bad joke:
“The [African] court has been cited as an African solution to African problems, but by granting themselves immunity they put themselves out of reach of the institution. Ninety per cent of the crimes [the court investigates] will be by senior officials in power … It’s an own goal because it means victims have no choice but to turn to the ICC for justice.”
Full story: The Guardian.
Hundreds of Egyptian writers and academics have signed an open statement demanding the abrogation of a law that heavily restricts street protests and that has led to the jailing of hundreds, including pro-democracy activists who were at the forefront of the 2011 uprising, according to Ahram Online.
Meanwhile, President Sisi, effectively installed by military coup (rubberstamped by an election afterwards), says he wishes the three Al Jazeera journalists who were jailed for seven years last week had, instead, been deported (even though two of them are Egyptian). It seems the fuss it’s created is generating a “negative effect”. (Well, one is tempted to remark, try restoring democratic feedoms and the rule of law: that generally has a *positive* effect.)
Last week’s “Burqua Ban” decision (France’s banning of facial-hiding fashions found acceptable by European Court of Human Rights) was the subject of further comment this week, by:
- Ronan McCrea, Senior Lecturer in Law, University College London: The French ban on public face-veiling: enlarging the margin of appreciation
- Umbereen Ghazi on Halsbury’s Law Exchange: French niqab ban upheld: the implications
The Supreme Court in New Delhi ruled on Monday that Islamic courts in India have no legal authority and edicts passed by them are not legally binding on individuals. Muslims may abide by a Shariah court ruling if they wish, but individuals cannot be legally forced to recognize the decision. Source: Associated Press via Yahoo News.
In other news from India, it seems the shocking incidence of rape and other forms of violence against women is getting worse. According to the Thomson Reuters Foundation in Delhi, reports of crimes against women in India such as rape, dowry deaths, abduction and molestation increased by 26.7 per cent in 2013 compared to the previous year, as recorded in government statistics released last week.
However, it is possible that the increase in reporting has occurred in response to the publicity and widespread outrage expressed in the wake of recent cases such as the rape and murder of a medical student on a bus in December 2012. For more on this, on this blog: Fair Trial or Foul.
Culture journalist Marzieh Rasouli has been sentenced to 50 lashes and two years in prison over charges of spreading anti-government propaganda in the latest incident of Iran‘s crackdown on the independent media. Her arrest followed the detention in recent months of a number of other Iranian journalists, including Saba Azarpeik , who was being held incommunicado, and Reyhaneh Tabatabaei.
Full story: The Guardian
New guidelines issued last month to regulate the media in the current “war on terror” are apparently so vague as to give rise to widespread abuse and are effectively silencing the media, according to Human Rights Watch.
The guidelines demand that media avoid making information about insurgent forces public and requires them to report on government forces only in favorable terms. Article 1 forbids media from broadcasting or publishing material that “may be interpreted as being against the security forces” and instead insists that they “focus on the security achievements of the armed forces, by repetition throughout the day.” This includes “praising the heroic acts of security personnel.”
In other words, you can publish what you like, so long as it’s propaganda, not reportage.
Although it more usually appears in the Judicial Committee of the Privy Council as the location of the grisly murders for which those convicted (rightly or wrongly) seek to avoid the death penalty under a variety of last ditch constitutional and human rights arguments (often successfully, it has to be said), the Caribbean island has recently appeared in the refreshingly different context of a patents suit, based on the interpretation of the the Jamaican Patent Act 1857, which bears some similarities to the United Kingdom Patent Law Amendment Act 1852.
Pfizer Ltd v Medimpex Jamaica Ltd  UKPC 20;  CN 1223, PC has so far only been reported (for the benefit of ICLR Online subscribers) as a case note, but you can link to the judgment on BAILII via the neutral citation. However, for a more entertaining account of the case, read the guest post of Glyn Truscott, of patent attorneys, Carpmaels & Ransford, on the enthusiastically informative IPKat blog.
A prominent Saudi lawyer and reform advocate, Waleed Abulkhair (or Abu al-Khair), has been sentenced to 15 years in prison, followed by a 15-year travel ban for various offences including “inciting public opinion against the government” and “insulting the country’s leaders and judiciary,” according to human rights activists in Saudi Arabia. According to his wife, Samar Badawi, he does not accept the verdict, nor will he appeal it, as he refuses to recognize the legitimacy of the court or its ruling. She told CNN:
“This verdict was far from just. Waleed was tried and sentenced simply for his work as a human rights activist.”
This follows the conviction in May this year of Abulkhair’s client, the liberal activist Raif Badawi, who was sentenced 10 years imprisonment and 1000 lashes for setting up a liberal website and allegedly insulting Islam and religious authorities. For more on this, see Human Rights Watch, who are suggesting that these arrests are part of a concerted clampdown on human rights and free expression in the kingdom.
Spain – or rather, Google Spain
Though there’s not much chance of Rolf Harris exercising any right to be forgotten, the Google Spain ruling (Google Spain SL v Agencia Española de Protección de Datos (Case C-131/12);  WLR (D) 202, ECJ ) cropped up again this week with a story via Robert Peston at the BBC, who complained in his blog (Why has google cast me into oblivion?) that links to an earlier piece he’d written had been suppressed on google – apparently by reason of something said in the comments added by readers. (This seems a good opportunity to point out that the practice of encouraging often ill-informed and prejudiced readers to add ill-informed and prejudicial comments on the end of otherwise well researched pieces of journalism is a bit of a hostage to legal fortune, but there we go. If people want to comment, they can use social media, which expands the range of exposure to the subject medium and isolates any poison from third party pens. But don’t quote me, I’m not an *expert*.)
Paul Bernal, author of Internet Privacy Rights, wondered in his blog, Are Google intentionally overreacting to the Right to be Forgotten?
His thesis is that google are deliberately making a hash of the takedown requests to make the ruling look “unworkable” when in fact they coud manage it perfectly well, as they already do for, say, copyright takedown requests.
Further comment: Leo Mirani, on Quartz, Is google trying to sabotage the “right to be forgotten”?
A magazine editor, Thanapol Eawsakul, was arrested on 5 July after posting comments critical of the military on his Facebook page.
Thanapol, who edits Fah Diew Khan(Same Sky) magazine, posted a Facebook message at 3:30 p.m. on 4 July indicating that the military junta, the National Council for Peace and Order (NCPO), had ordered him to stop making critical comments about the military authorities.
Since a military coup in May this year, the authorities have severely restricted the rights to freedom of expression, association, and assembly, according to Human Rights Watch.
A dream job, you may think: Dean of the Faculty of Law, Oxford. Apply early to avoid disappointment.
And finally …
There’s been quite a bit of what people are calling “Magna Carta balls” in a Private Eye-ish sort of way. This involves yoking the 13th century charter in some rather bogus sense to a current news story or political point. Typical of the genre is this story, MPs call for anniversary debate on ‘new Magna Carta‘ which concerns calls for a new, written constitution. No doubt there are other examples. To mark the phenomenon, here is a cartoon demonstrating a certain kind of political wishful thinking, taken from, er, Private Eye (with grateful apologies).
Enjoy the weekend. Team ICLR are even now on their way to, or at, the annual conference of the American Association of Law Libraries in San Antonio, Texas. Full story to follow: watch this blog.