Weekly Notes: legal news from ICLR — 16 January 2017

Posted on 16th Jan 2017 in Weekly Notes

This opening salvo of our regular termtime bombardment of recent legal news and comment includes a war law jaw,  a mailmash on lawyers’ earnings, a mismatch on hate speech, and a ban on abusive cross examination. Plus legal snippets from foreign climes.

International law

AG: it’s war! But not as we know it

The Attorney General, Jeremy Wright QC MP, set out the limits of the modern law of (state) self-defence in a speech at the International Institute for Strategic Studies on 11 January 2017. The main aim of the speech (judging by the accompanying press release) was to set out the legal basis for British military strikes against terror targets overseas, particularly those involving unmanned drones against non-state actors, since these have been the subject of recent controversy. He said:

The UK should and will only use armed force, and will only act in self-defence, where it is consistent with international law to do so.”

“Like many other states, the long-standing UK view is that Article 51 of the UN Charter does not require a state passively to await an attack, but includes the ‘inherent right’ – as it’s described in Article 51 – to use force in self-defence against an ‘imminent’ armed attack, referring back to customary international law.”

He cited a series of factors which Sir Daniel Bethlehem, former Legal Adviser to the Foreign and Commonwealth Office, had set out in 2013, which he argued should be taken into account when assessing whether an attack was “imminent”. These included:

  • The nature and immediacy of the threat;
  • the probability of an attack;
  • whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • the likely scale of the attack and the injury,
  • loss or damage likely to result therefrom in the absence of mitigating action; and
  • the likelihood that there will be other opportunities to undertake effective action in self-defence that may be expected to cause less serious collateral injury, loss or damage.

Wright AG said the UK government endorsed this approach, adding:

In a world where a small number of committed plotters may be seeking to inspire, enable and direct attacks around the world, and indeed have a proven track record of doing so, we will not always know where and when an attack will take place, or the precise nature of the attack.

But where the evidence supports an assessment that an attack is imminent it cannot be right that a state is prevented from meeting its first duty of protecting its citizens without nailing down the specific target and timing of an attack. Apart from anything else, our enemies will not always have fixed plans. They are often opportunists. To be clear, this approach does not, however, in any way dispense with the concept of imminence.”

Crime

Named but not shamed: Rudd remarks recorded as “non-crime hate incident”

It seems somewhat ironic that the Home Secretary should be investigated by the police for an incident which her department encouraged them to record even though it did not amount to a crime.

The incident in question was a speech on immigration given by the Secretary of State for the Home Department, Amber Rudd at last year’s Conservative Party conference. This got a lot of publicity at the time for a suggestion that UK employers would be required to record the number of foreign workers they employed, and would be “named and shamed” for, in effect, overlooking the opportunity of employing home-grown labour.

In fact this ominously totalitarian-sounding suggestion was not explicitly set out in the published speech (I checked at the time), but seems to have emerged in the briefing given to journalists. It was picked up in an interview on BBC Radio 4’s Today programme, when Rudd was asked if she was prepared to “name and shame” companies which did not comply by publishing a breakdown of the nationality of their workforce, and — instead of saying “no, no, that sounds horrible, we’ll be making them arm badges next” — what she actually said was that it was “not something we are definitely going to do” but it was “one of the tools” under review “as a way of nudging people into better behaviour”.

Her words prompted a good deal of criticism, not least from businesses. Angered by her anti-immigrant message, an Oxford professor, Joshua Silver, complained to West Midlands Police, leading the police to investigate whether the speech amounted to a “hate crime”. They decided that it did not. However, it was still recorded as a “non-crime hate incident”, according to various puzzled and/or indignant newspaper reports, such as this one in the Daily Telegraph: Amber Rudd’s hardline speech to Conservative party conference recorded by police as ‘non-crime hate incident’ after academic’s complaint.

Tim Loughton, the senior Tory MP on the House of Commons Home Affairs select committee which has oversight of the work of the police, said: “It is really come to something when the Home Secretary, who has done more than most to clamp down on hate crimes, is then accused of the very same charges.”

He suggested Prof Silver should be prosecuted himself, for wasting police time. No doubt if Mr Loughton made a complaint to that effect, the police would need to waste even more time investigating it and recording it as a “non-crime time-wasting incident” or something.

According to West Midlands Police’s own advice:

Hate crime is any criminal offence committed against a person or property that is motivated by hostility towards someone based on their actual or perceived disability, race, religion, gender identity or sexual orientation.

Hate Incident

Any non-crime incident, which is perceived by the victim or any other person to be motivated by a hostility or prejudice based on a person’s actual or perceived race, religion, sexual orientation, disability or whether they are transgender.

All hate crimes are hate incidents. However some hate incidents, such as inappropriate name calling in a non-confrontational situation, may not constitute a criminal offence and therefore will not be recorded as a hate crime.”

Once a complaint has been made to police, they have to record it somehow. It may be an incident or it may be a crime. But if it turns out to have been the subject of a hate crime complaint and it turns out not to have involved any actual crime, the police are left with something they can only record as a “non-crime hate incident”.

You can read here the Home Office rules for recording crime: National Crime Recording Standard (NCRS).

For a more comprehensive explainer, see FullFact: Hate incidents aren’t the same as hate crimes.

 

Family

Ban on cross-examination of vulnerable witnesses by alleged abusers

It seems to have begun with an article in the Guardian by Sandra Laville on 22 December 2016, entitled Revealed: how family courts allow abusers to torment their victims, in which she pointed out that :

Violent and abusive men are being allowed to confront and cross-examine their former partners in secretive court hearings that fail to protect women who are victims of abuse, a Guardian investigation has found.

Mothers involved in family court hearings have given graphic descriptions of the “torture” of being questioned by abusive men – a practice still allowed in civil cases but banned in criminal courts.

The article seems to have been prompted in part by research by Women’s Aid into domestic violence, and the problem said to have resulted in large part from the legal aid cuts which prevent alleged abusers being able to employ lawyers to cross-examine complainants on their behalf in the family courts. This is in contrast to the criminal courts where the practice is not permitted and provision is made for legal representation even in cases where the alleged perpetrator does not have a lawyer.

The article prompted a lively response on the letters page, and was followed next day by another, in which Laville revealed that the President of the Family Division, Sir James Munby, was planning to increase transparency by initiating a trial in which some family hearings would be held in public (instead of in private with access to accredited journalists and publication of judgments in redacted form): Certain family court hearings to take place in public in radical trial.

Family lawyers reacted with surprise, since no official announcement had been made: see Transparency Project, Guardian report that a ‘radical trial’ of family court hearings in public is about to be announced.

It turned out that Laville had been informed unofficially. However, its relevance to her other piece was that some contributors to the research had suggested that abusive cross-examination would be minimised if it took place in public. (This is arguable, but then so is the opposite, the larger audience encouraging more theatrical abuse.)

Then on 30 December Sir James issued a statement in which he said he would “welcome a bar” on alleged perpetrators being able to cross-examine their alleged victims, “something that, as family judges have been pointing out for many years, would not be permitted in a criminal court”, and that he would be reviewing the situation early in the new year.

In response to that statement, Bob Neill MP, chair of the Justice Select Committee, told Solicitors Journal that he hoped to invite Sir James to a special session to discuss the issue, and the Lord Chancellor, Liz Truss MP, in an unwonted fit of proactivity, commissioned an emergency review to find the quickest way to introduce a ban on perpetrators directly cross-examining victims. (An obvious answer, of course, would be to repeal a lot of the legal aid cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012… )

Then, on 9 January, there was a debate in Parliament following a statement by Sir Oliver Heald, Minister for Courts and Justice, that the Government was now considering how to change the law “to prevent alleged perpetrators from cross-examining their alleged victims”. Primary law would be necessary to ban cross-examination, he said.

Family practitioner and ace blogger Lucy Reed then wrote a helpful explainer on her Pink Tape blog (later picked up by i news) , partly to dispel the myth that the problem was all about abusers using the court process to torture their victims when in fact the whole point of the court process was to test and prove allegations of abuse and victimhood by the parties. It was just as unjust for a wrongly accused person to be denied the legal aid necessary to disprove a false allegation and be forced to manage on their own against legally aided and represented opponent. There was a risk that the government, needled by a hot issue, would simply rush into a quick fix that failed to take account of all the subtle variants of the problem.

Meanwhile, the question remained whether legislation was, in fact, necessary as both Sir James and Sir Oliver seemed to assume. David Burrows, in a piece for this blog, thinks otherwise: see Family law no island (4): A metwand for family proceedings — common law and vulnerable witnesses.

 

Legal professions

Are lawyers really “raking it in”?

The Daily Mail excelled itself by welcoming lawyers back to the office after the New Year break with a half-baked mashed-up survey of their wealth and prosperity, according to which they were all “raking it in” in ways that presumably tabloid hacks are not (Lawyers raked in £32.2bn in just ONE year: Figure goes up by a quarter in just five years):

The money that lawyers make has shot up by nearly a quarter in just five years, it was revealed yesterday.
Despite strikes by barristers over their pay levels and protests from senior lawyers who demand greater taxpayer subsidies, the legal profession has been booming, according to official figures.
They show that last year lawyers across Britain achieved a turnover of £32.2 billion – almost 24 per cent more than the £26.0 billion they earned in 2011.”

The conflation of “turnover” and “earned” reveals a good deal. What lawyers charge and what they get to keep, and pay income tax on, are very different sums. Moreover, the official figures of the legal profession that is said to be “booming” and to have “shot up” by 25% in “just five years” (ie about 5% a year, quite modest actually) do not relate to the legal aid or “taxpayer subsidies” paid to those working at the poorer end of the profession, typically in crime, human rights and family law, whose pay levels have steeply decreased in the last few years. It is their private client and commercial brethren whose gains have increased.

All in all it’s a bit like saying newspaper hacks are all raking it in, because a few star writers happen to be stupidly overpaid for what they do. One doubts the Daily Mail Reporter, whose name did not even appear on the article (no byline, poor lamb!) was paid much to write it, and given how the Mail screams about “secret justice” you’d think they could be a bit more transparent about themselves.

As Barbara Rich, The Daily Mail and the Lawyers: a leftovers sandwich (TwitDoc) pointed out:

its gist was to suggest that lawyers and leaders of the English legal professions had wrongly complained about financial pressures at a time when lawyers’ incomes were in fact rising with a level of tidal greed.”

Such a suggestion was, of course, wholly misleading. Moreover, it could hardly be described as proper journalism. Rather,

It is a confection of spin on turnover figures published as part of a regulator’s evaluation six months ago, and an apparent response to those figures which repeats and promotes an argument about one aspect of legal costs in civil claims, articulated in a book published nine months ago.”

The article prompted a good deal of other criticism, including a comprehensive Twitter thread from The Secret Barrister, and and a blog post from the barrister who writes A View from the North, Raking it in. There is also a patient, if not weary, explainer from FullFact: Not all of Britain’s lawyers are “raking it in”.

And here’s a rude cartoon that’s been doing the rounds on Twitter:

 

Law (and injustice) around the world

Russia

Doom and Duma: moves to decriminalise domestic violence

The State Duma voted last week in favour of a measure which would make assaults that cause less serious injuries “administrative offences” rather than criminal ones, reported the Marilyn Stowe blog.

The MP who introduced the bill, Yelena Mizulina, said that people should not be deemed a criminal just “for a slap”. Although she chairs a committee on family and women’s affairs, Mizulina proposed the bill to have “battery within families” taken out of Russia’s criminal code, removing the right of victims to press charges.

She had said earlier that domestic violence was “a normal way of life” in Russia. “You don’t want people to be imprisoned for two years and labelled a criminal for the rest of their lives for a slap.”

However, her bill has been condemned by women’s rights activists, who say “decriminalisation will worsen the situation”. Forty per cent of all violent crimes in Russia take place within families, according to official statistics.

See also, Independent, Russia to decriminalise domestic violence to preserve ‘tradition of parental authority’

 

Saudi Arabia

Jail for man who called for end of “guardianship” of women

An unnamed Saudi man has been jailed for one year for calling for an end to the kingdom’s repressive “guardianship” system, under which women’s freedom of movement is curtailed and made subject to the control of a husband or male family member. The Daily Telegraph, citing local media, reported that

The man, who was also fined 30,000 riyals (£6,500) by a court in the eastern city of Dammam, was convicted of “inciting to end guardianship of women” in statements he posted on Twitter and in public posters…

The defendant admitted pinning up the posters in several mosques, saying he solely launched an “awareness campaign” after finding that some “female relatives were facing injustice at the hands of their families,” the Okaz daily said.

For more about the Saudi system of guardianship, see the Human Rights Watch report, Boxed In: Woman and Saudi Arabia’s Male Guardianship System:

In Saudi Arabia, a woman’s life is controlled by a man from birth until death. Every Saudi woman must have a male guardian, normally a father or husband, but in some cases a brother or even a son, who has the power to make a range of critical decisions on her behalf.

As dozens of Saudi women told Human Rights Watch, the male guardianship system is the most significant impediment to realizing women’s rights in the country, effectively rendering adult women legal minors who cannot make key decisions for themselves.

Turkey

Brutal crackdown continues

Turkey has ordered the arrest of hundreds of businessmen and detained an executive at one of the country’s conglomerates as part of the government’s sweeping crackdown on people suspected of supporting last July’s failed coup, reports the Financial Times.

Police detained Erem Turgut Yucel, chief legal officer at Dogan Holding, which owns the Hürriyet newpspaper, CNN-Turk television network and Istanbul’s “Trump Towers”, and, in a fit of petty-minded official pique they have also arrested the cafeteria manager of the opposition Cumhuriyet newspaper, apparently for insulting the president, Recep Tayyip Erdoğan by saying he “would not serve tea to him”, according to the Guardian.

Insulting the president is a crime punishable by up to four years in prison in Turkey. Lawyers for Erdoğan, who has dominated Turkish politics for more than a decade, have filed more than 1,800 cases against people including cartoonists, a former Miss Turkey winner and schoolchildren on accusations of insulting him.

Since an attempted coup last July, more than 110,000 people have been sacked or suspended and 40,000 jailed pending trial.

 

Tweet of the Week

And finally… as we look forward to the looming awesomeness of the impending inauguration of a new President in America, here is our Tweet of the Week:

 

 

That’s it for now.  Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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