Weekly Notes: legal news from ICLR – 13 February 2015
Posted on 13th Feb 2015 in Weekly Notes
This week’s selection of legal news and views from home and abroad includes a survey of grumpy judges, internet hate crime, prisoner voting wrongs and freedom of speech under fire.
UPDATED 17 February 2015
Je Suis… So Confused
Supine appeasement or sensible caution?
“Offence is no offence” is a maxim often cited in response to calls for censorship or self-censhorship to avoid the kind of unlawful but sadly predictable violence perpetrated by those who routinely claim to have been offended. (See, for example, Nick Cohen’s You Can’t Read This Book.)
Freedom of speech should be subject to reasonable restraints, of course, like not shouting “fire” in a crowded theatre; but is avoiding a breach of the peace at all costs, and to all extents, really more important than being allowed to exercise a core freedom to speak your mind? Or is it simply a question of some rights being more right, some freedoms more free, than others?
These reflections have been sparked by two items of interest this last week, both arising out of last month’s Charlie Hebdo outrage .
’Ebdo, ’ebdo, ’ebdo…
First, it appears that the police in some parts of the country have been somewhat heavy-footedly going round to those newsagents who have been selling the memorial edition of the Paris-based satirical magazine and asking them for the names and addresses of those exercising their perfectly lawful freedom to buy it.
It began with a story from Corsham, a sleepy market town in Wiltshire, where the risk of a fundamentalist riot may be said to be remote. According to The Independent, the officers told the newsagent there to hand over the names of four people “in the name of community cohesion” during an “assessment of community tensions”. Wiltshire police later apologised and said it had deleted the names from its system. A local councillor was quoted as saying of Corsham
“Life plods on but not very exciting things happen”.
Well, the “plods” bit seems quite accurate, although one of the “Corsham four” referred to the officers as “jobsworth”. (One hopes Postman Pat isn’t also steaming open everyone’s letters to report on their contents to GCHQ.)
It later transpired that the Wiltshire Police were not the only culprits in the fit of snoopworthy zeal: according to The Guardian,
Several British police forces have questioned newsagents in an attempt to monitor sales of [the] special edition… The case in Corsham, Wiltshire, was thought to be an isolated incident but it has since emerged that Cheshire constabulary and Dyfed-Powys police have also approached newsagents over the sale of Charlie Hebdo.
Jodie Ginsberg, chief executive of Index on Censhorship was duly sought for a quote, and said:
“This is so ridiculous as to be almost laughable. And it would be funny if it didn’t reflect a more general worrying increase in abuse of police powers in invading privacy and stifling free speech in Britain,”
Former Lord Chief Justice counsels caution
Later in the week it was headlined, in The Times (£) that Lord Woolf, former Lord Chief Justice, had said in a speech that “Cartoonists should not offend Muslims”. It turned out that he had been speaking to the Oxford Centre for Islamic Studies, on the topic of ‘The Rule of Law as the Foundation of Good Inter-Faith Relations‘. It was the inaugural lecture in a series sponsored by The Sultan Azlan Shah Fellowship, named after Malaysia’s first Chief Justice, and Sultan of Perak, who established a lecture series, by distinguished English lawyers, in Malaysia. While acknowledging that the events in Paris had been “horrendous” and the worldwide reaction “wholly understandable”, he nevertheless argued that:
“By now it must surely be appreciated that depicting the prophet in a derogatory way will case grave offence among many Muslims and can lead to an explosive reaction with dreadful consequences,” he said. “Despite the importance of the right to free speech, you are not intended to exercise it regardless of the rights of others.”
He also said rights “should be exercised reasonably and in a manner that does not impinge disproportionately on the rights of others.”
The speech as a whole has not been published (yet) but we sincerely hope it will be, if only to put the reported remarks into their proper context and dispel the impression given by necessarily partial coverage (and commentary) in the media that Lord Woolf was being a bit sheep-like in his appeasement of the hotheaded.
This would be unlike his Lordship, whose reputation for speaking truth to purported or wrongly exercise power was reinforced this week by the reminder (hat tip to Jack of Kent) that he long ago predicted catastrophe that might result from reorganisation of the various functions now administered by the Ministry of Justice.
UPDATE 14-15 February: Copenhagen killings
Free speech came under fire again the day after this blog was posted, when a gunman in Copenhagen attempted to shoot his way into a café (called Krudttønden, which apparently means Powder Keg) where a debate was being held about Art, Blasphemy and the Freedom of Expression. It was organised by Swedish artist Lars Vilks, who had depicted the prophet Muhammad in cartoons, and who was presumed to have been the target of the attacks, but survived unharmed. Later the same evening a Jewish man was shot outside a Synogogue in another part of the city, apparently by the same gunman – who was himself subsequently cornered by police and, when he opened fire, shot dead. He was apparently already “known” to the authorities. For more, see Guardian, Copenhagen shootings suspect was ‘known to police’
What do judges think?
A survey released this week revealed what judges in England and Wales think about their jobs and their position in society. The UK Judicial Attitude Survey (JAS) 2014 was prepared by Professor Cheryl Thomas Co-Director, UCL Judicial Institute.
The key findings of the listed in the report (pdf) included:
- Two thirds of judges say the judiciary are less respected by society than they were ten years ago
- Judges feel valued by their colleagues, by lawyers, by litigants and court staff (to extents of 73% to 90%) but NOT by the government (2%) or the media (4%).
- Most judges think their working conditions have deteriorated (often significantly) over the last 5 years
- No judicial resources were rated as “good” or “excellent” by a majority of judges, particularly IT equipment, which 50% rated as “poor”.
- Most judges felt their career progression and flexible working opportunities were poor.
- Though they relished the challenge and variety of their work, many thought their job had changed and their work was not adequately reflected in their pay and pensions.
- A third of judges were considering leaving the judiciary before reaching retirement age, the critical deciding factor being remuneration.
- Key future challenges identified included reduction in support staff, dealing with litigants in person and loss of judicial independence.
While this is interesting, it might also be worth gathering some information about what people think of judges – people like the legal practitioners who appear before them, and the litigants whose lives, relationships and fortunes they rearrange. It would be surprising if something of the sort had not already been done, in an academic context if nowhere else, and we would welcome citation of any relevant papers.
A question that might be asked, in this age of multi-layered regulatory oversight, is:
Who regulates judges?
The answer, if you didn’t already know it, is the Judicial Conduct Investigations Office (formerly the Office for Judicial Complaints) which, according to its website, “supports the Lord Chancellor and the Lord Chief Justice in their joint responsibility for judicial discipline.” It is headed by Judith Anckorn, and has 15 full time members of staff, who aim to acknowledge 95% of complaints within two days of receipt and send out first substantive responses within 15 days.
The JCIO Annual Report 2013-2014 (pdf) shows that, during the reporting period, the office received 2,018 complaints and 574 written enquiries, plus telephone queries. Out of these, only 58 cases actually required any disciplinary action, and nearly half of all complaints were dismissed or rejected as containing no allegation of misconduct. Of those that did, the main categories were for “inappropriate behaviour or comments” (these are sometimes flagged up by the Court of Appeal), and “judicial decision or case management”. There were just 4 complaints of “conflict of interest”.
Since judges, unlike arbitrators, do not supply services directly to the public, there seems to have been no suggestion from the LSB that they should submit themselves to some sort of QASJ, or Quality Assurance Scheme for Judges, in the same way that barristers and solicitor advocates must do under QASA. In the case of the latter, it is judges who assess their performance. Might the same courtesy not be extended the other way? Informally, of course, most counsel who regularly appear before particular judges exchange “reviews” of the Wig Advisor variety in the robing room, warning (or deliberately not warning) other counsel of their lordships’ peculiar ticks and foibles. (It must be true: I read it in BabyBarista.)
Prisoner voting wrongs
Strasbourg courts upholds complaints but denies compensation
This week the European Court of Human Rights upheld the complaint of more than a thousand UK prisoners that the UK’s denial of their right to vote had breached their human rights. In McHugh and Others v. the United Kingdom (no. 51987/08 and 1,014 others), which is final, the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 of Protocol No 1 (right to free elections) to the European Convention on Human Rights. The decision went the same way as earlier prisoner voting decisions, in which a breach of the right to vote had been found, since the relevant legislation had not in the interim been amended. However, as before, the court rejected the applicants’ claim for compensation and legal costs. Not even a grain of salt to put on their porridge, for the cooling of which they might as well have saved their breath for all the good it’s done them.
Regarded as a lightning rod issue, or litmus test, or some such blather, the question whether prisoners should be allowed to vote has seemingly divided those who support human rights for all from those who only support them for the deserving few. At the end of the day, depriving prisoners of books seemed more controversial, even if it wasn’t actually what happened; but there must be a perfectly respectable argument that giving prisoners, or some of them, the vote (for example if they are likely to be released during the currency of the voted-for Parliament) would help make them better citizens. And isn’t that the essence of Lord Chancellor Grayling’s “rehabilitation revolution”?
Commenting on the ruling in his Head of Legal blog, Carl Gardner takes a slightly different tack, as encapsulated in his title, Britain’s got it way its way on prisoners’ votes – so why withdraw from the ECHR? He points out that, partly thanks to the persuasive representations of former Attorney General Dominic Grieve, the Strasbourg court had adopted a more accommodating approach of late, of which this case may be an example. The battle has been won, so Conservative plans to rearrange the jurisdictional furniture are
yesterday’s solution to yesterday’s problem, with nothing to support them save the odd grumble about deporting a foreign criminal – and the hot air generated by UKIP.
The trouble is, with an election coming up, some Tories want to look as though they’re getting up tough to knock down the door, as in a macho movie, even though it’s already been quietly opened from within.
Grayling: Conservative Home rule
Lord Chancellor gets right of rejoinder after stinging indictment on pro-Tory website
After getting a somewhat easy ride with his interview by Andrew Gimson last month on the Conservative Home website, Lord Chancellor Chris Grayling may have been somewhat taken aback to find himself the subject of enraged criticism by another contributor, Simon Richards, on 8 February. In Grayling’s reforms to legal aid are damaging and unfair, Richards, whose parents are both solicitors, let rip on the subject of Grayling’s cutting of legal aid and “decimation” of the provision for duty solicitor contracts, saying “these changes will bring chaos to the justice system”.
If the number of doctors was being slashed almost immeasurably, you can be sure we would have had protest after demonstration after strikes. There’s certainly been no eyelid batted at this – one or two eye lashes at most.
Perhaps he’s been a little unfair to describe the various walk-outs, go-slows, “no-returns policy” and other hitherto unheard-of manifestations of industrial action by lawyers under the #saveukjustice banner as little more than eye-lashings, but for all the effect they’ve had on Grayling’s determination to beat down his budget, perhaps he’s right.
Nothing daunted, Grayling was given another bite of the cherry by Conservative Home, this time unmediated even by the sly wit of Andrew Gimson. The very next day, he was allowed to post his rejoinder, entitled Chris Grayling MP: The truth about our legal aid reforms
Accusing Richards’ rant of containing “some obvious misunderstandings”, Grayling asserted that he had, in fact, consulted widely over the changes and that he did not expect them to be popular. He made a point of reminding us that his predecessor
“Ken Clarke made the biggest cuts, taking more than £300m from the legal aid budget through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 …
I have had to take similar tough decisions – taking another £200m from the legal aid budget. Not surprisingly, it’s made me unpopular with the legal profession. But as Conservatives know, you can’t reduce budgets without cutting costs – something we are doing across the whole Ministry.
The impression you might get is that Grayling is a little miffed that, having made smaller cuts than Clarke, he seems to have ended up taking all the flack. Clever Clarke got out while the going was good, evidently, and goody-boy Grayling has had to shoulder the blame for all of it. Still, he seems to relish playing the tough man. One wonders who he identifies with, if and when he watches Wolf Hall on telly. Not his predecessor(s), one suspects.
Trolls on trial: dealing with online hate crime
In the search for appropriate ways of dealing with internet trolls who cause misery to lawful users of social media, no single solution seems to have hit the spot. One idea recently launched involves something called an Internet ASBO. Lyndon Harris discusses this on Halsbury’s Law Exchange, after first pointing out that the ASBO (a civil injunction which carries penal sanction for breach) has had its day (the relevant law was repealed last year). The new version would work by preventing the subject of the order from accessing the internet or using social media. However, the main difficulty would be in the police, who are already poorly equipped and trained to deal with online offences, being able to monitor and collect evidence of any breach.
A better solution must be for the social media platforms to police their own traffic more effectively, and in this respect Twitter seems (finally) to be taking the matter a bit more seriously. Its CEO, Dick Costolo, admitted in a leaked memo quoted by WebProNews this week, that
“We suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years. … There’s no excuse for it. I take full responsibility for not being more aggressive on this front. It’s nobody else’s fault but mine, and it’s embarrassing.”
In the leaked memo, Costolo promises to get rid of “these people” at all costs, saying that everyone in Twitter leadership knows how “vital” it is.
“We’re going to start kicking these people off right and left and making sure that when they issue their ridiculous attacks, nobody hears them,” says Costolo.
Please note, also, how Costolo fesses up manfully to his company’s failings – not something we see a lot of big shots doing these days.
The play’s the thing
The Middle Temple or Which Is My Son?
A Farce in one Act by Richard Brinsley Peake with music by G.H.B.Rodwell.
A Rare Opportunity to see this Portrayal of the Life and Loves of Mr. BRIEFLESS, an Impecunious Barrister from Fig Tree Court, and his Servant BRUTUS HAIRBRAIN, first performed at the English Opera House in July 1828.
Sunday 22 February 2015 3.30pm (Doors at 3.00pm)
Tickets cost £20 each, with proceeds in aid of the Middle Temple Scholarship Fund. Followed by refreshments.
Law (and injustice) around the world
An alphabetical tour d’horizon
Tougher financial regulation
China has toughened up its financial regulation to combat tax avoidance through offshore dealings, reports the South China Morning Post (New China law targets tax avoidance offshore), saying:
The law would affect investment companies, analysts said, adding it would also have a significant impact on Hong Kong, a major hub for cross-border deals involving the mainland.
But maybe China should concentrate more on regulation of banks on the mainland, where one of the most extraordinary stories of the week emerged, adding to the already impressive record of Chinese ingenuity for inventive fakery. In Nanjing, a fake bank which was set up to look just like a real one has swindled Chinese savers out of 200m yuan ($32m; £21m), the BBC reported in its New From Elsewhere blog. (If you can read simplified Chinese, the original story is here: 南京惊现“假银行” 装修正规非法吸储2亿元, in the Southern Metropolis Daily).
The interior looked like any other state-owned bank, with uniformed clerks working behind the counters… Almost 200 people deposited their cash, including a businessman who handed over 12m yuan ($1.9m; £1.3m) in 2014. But he grew suspicious when he wasn’t paid the promised interest on his money, and went to the police.
Apparently the bank was offering 2% interest PER WEEK, and for over a year no one got suspicious, not even the local authorities who were supposed to be monitoring it. “Fake bank, fake local government” one comment said on the Weibo social network. But this is the communist state where fraudulent inventiveness has come up with a fake Apple store, a fake edition of a Harry Potter novel, fake eggs, fake milk, fake rice and, as imposed on Hong Kong, fake democracy.
Alleged homosexuals deny any wrongdoing
The Point reports that three Gambians alleged to have been engaged in homosexual acts appeared at the High Court in Banjul before Justice Abi. They were charged with six counts of unnatural offences and conspiracy, which they all denied.
Gambia’s national Criminal Code, which punishes anyone who identifies as – or is accused of identifying as – gay or lesbian violates Gambia’s own constitution, which says that all people must be equal and free from discrimination before the law, says Amnesty International. Nevertheless, last October Gambia passed an amendment to the country’s Criminal Code which toughened existing laws punishing people for the ‘crime’ of homosexuality in Gambia and lengthened the criminal sentences for those found guilty.
Opposition leader loses appeal against sodomy conviction
In the latest setback in a long running saga in which Anwar Ibrahim, opposition leader in Malaysia, has been hounded by allegations which are widely seen as politically motivated, the Federal Court dismissed his appeal against a conviction for sodomy, finding, in the words of Justice Arifin Zakat, there was “overwhelming evidence” to support the conviction. Anwar was acquitted by the High Court in 2012 but the Appeals Court overturned the acquittal in March last year and sentenced him to five years in jail. According to CBC News,
The case was widely seen at home and abroad as politically motivated to eliminate any threats to the ruling coalition whose popularity has slowly been eroding since 2008 after more than five decades of unquestioned dominance. Anwar is the most popular, vocal and visible symbol of the opposition’s resurgence and had become a potent political threat to Prime Minister Najib Razak.
Reuters reported, more blandly:
The United States was “deeply disappointed” with Anwar’s conviction, which “raised a number of serious concerns about rule of law and the fairness of the judicial system”, said U.S. National Security Council spokeswoman Bernadette Meehan.
Facts and myths about human rights
In a handy primer about the way human rights are observed and abused in Saudi Arabia, Adam Taylor in the Washington Post attempts to dispel some of the myths and reveal some of the facts.
Interest in human rights is a good thing, but there is also a danger of misinterpretation or exaggeration. So, what does the West get right about human rights in Saudi Arabia — and what does it get wrong?
He explains what the Saudi legal system is based on – ultra-conservative Sharia law – and says quite a lot is left to the discretion of judges to interpret how it should be applied. Restrictions on freedom of expression are notorious, as are the treatment of women and foreigners. Punishments for even minor crimes are severe and often involve corporal or capital punishment, performed in public. In a revealing quote, Taylor nails the paradox:
Over the past few months, observers have noted that these sort of punishments don’t look so different from those used by the Islamic State, an enemy of both Saudi Arabia and the United States. That comparison irks many Saudis. “When we do it in Saudi Arabia, we do it as a decision made by a court,” an Interior Ministry spokesman, Maj. Gen. Mansour al-Turki, told NBC News recently. “The killing is a decision. I mean it is not based on arbitrary choices, to kill this and not to kill this.”
This week President Bashir Al-Assad, whose country has been plunged into vicious civil war for several years, put his side of the story in an interview with Jeremy Bowen for the BBC. He denied that his government was dropping barrel-bombs on civilians in rebel-held areas and hinted that he was still involved, indirectly, in briefings between the allies in the war against Islamic State.
The previous day, Newsweek ran a long story by Janine di Giovanni about the fate of two missing lawyers, one taken by government forces, the other by one of the Islamic militias (but probably not ISIS). it makes for depressing reading.
It is difficult to calculate the number of missing and detained in Syria after four years of conflict. But Bassam al-Ahmad from the VDC [Violation Documentation Center in Syria] says: “Those we can document by name, we believe to be 36,000 held by regime, and around 1,200 by ISIS. But if we are talking about estimated figures, we are sure that the numbers are bigger.”
United States of America
Serial appeal: projecting innocence
Anyone who was listening to the Serial podcast last year, about Adnan Syed, a Baltimore teenager convicted of murdering his ex-girlfriend Hae Min Lee, in 1999, will know by now that the question of Adnan’s guilt has not been resolved – yet. But the criminal justice system under which he was tried certainly has, with a level of transparency that may have surprised some British listeners. We are not used to hearing jurors being interviewed after a trial and giving their reasons for their verdict, because doing so would be unlawful in our jurisdiction.
The case is the subject of a Lawyer 2 Lawyer discussion on the Legal Talk Network, in which a number of legal experts discuss the case and the way it was investigated by Sarah Koenig, the presenter of Serial, and her team.
Now the case, which has already been the subject of at least one failed appeal, is to be reopened with a further appeal. The Maryland Court of Special Appeals has permitted a petition to be lodged, based on the argument that Syed’s lawyer, who has since died, failed to investigate a possible alibi, with a witness who has come forward with a fresh affidavit.
One of the agencies involved in the Serial investigation was an Innocence Project, a non-profit organisation which enables law students and pro bono lawyers to work together on cases of alleged miscarriage of justice. Similar projects exist in other states, usually based in law schools, but North Carolina is the only state that has an official public body dedicated to such cases. An article in The Atlantic, Guilty, Then Proven Innocent, examines the work of the North Carolina Innocence Inquiry Commission. It’s worth a read.
Innocence projects are not confined to the USA. There are similar projects in the UK, including one in Cardiff law school, which in December helped obtain the release of Dwaine George, after getting his case taken up by the Criminal Cases Review Commission. This is the subject of a package in last week’s Law in Action, now available as a podcast.
Something to cheer us all up. Remember the MOJ’s much-derided “easy-read” guide for defendants in criminal trials (see Weekly Notes 30 January)? A revised version has now appeared, thanks to Jonathan Black, who tweeted it @jonblackbsb
That’s it folks! Have a great weekend. And don’t forget to vote in our 150 Years of Case Law on Trial poll, currently concentrating on 1865 to 1914.
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.