Weekly Notes: Legal news from ICLR – 20 June 2014
Posted on 20th Jun 2014 in Weekly Notes
A selection of topical legal news from the UK and around the world, including Magna Carta’s legacy, the pros and cons of the European Court of Human Rights, and trials fair and foul.
Other recent posts from ICLR:
- BIALL conference 2014: The Curious Case of the Judgment Enhancers, text of a talk by Daniel Hoadley of ICLR all about the difference between judgments and law reports
- Test of Resolve, by Peter Murphy book review by Paul Magrath of ICLR
NB. This post updated with new links as at 23 June 2014.
Magna Carta Day
Sounds like a good name for a firm of solicitors – but is actually 15 June, which this week marked the 799th anniversary of the signing by King John at Runnymede of the great charter of rights and obligations best known by its Latin name.
Though its continued effect may be more symbolic than real, as a constitutional instrument Magna Carta certainly has more than the “mythical relevance” that some debunkers have suggested.
What if it had never happened?
(This is what His Honour Nick Chambers QC, retired judge and former ICLR chairman, imagines in one of his Missed Moments in Legal History (right) when “King John and the Barons decide they don’t need anything in writing”.)
Back in the real world, as Lord Dyson MR, speaking at the Magna Carta, Religion and the Rule of Law event at Middle Temple on 7 June pointed out:
“it enshrined the rule of law in English society. It limited the power of authoritarian rule. The king was to be subject to the law. It defined limits on taxation. For centuries, it has influenced constitutional thinking worldwide. … In 1965, Lord Denning, then Master of the Rolls, described Magna Carta as “the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”.
That said, it is fair to point out (as David Allen Green explains in his debunking essay on the FT blog, The Myth of Magna Carta) that the original charter of 1215 whose 800th anniversary we are all going to celebrate next year, was only valid only for a few months, and it was not called Magna Carta. That dates from 1297, when parts of the 1215 charter were reinstated, but since then all but three of its provisions have been repealed from the statute book. The surviving clauses include, of course, cl 29, which is the one everyone goes on about:
No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
This is powerful stuff and has inspired bills of rights, constitutions, charters and conventions ever since, as Lord Dyson and other enthusiasts maintain.
Among those queueing up to lay claim to its iconic symbolism is David Cameron and his cabinet, not least the Lord Chancellor, Chris Grayling, whose ministry of justice has done quite a lot to limit the very access to justice which clause 29 promised.
Other conservatives are less sanguine about the Magna Carta’s magical properties, such as Mark Wallace, writing in Conservative Home, in a piece entitled “The Government praises Magna Carta, while ignoring its essential values”. These include, he argues, no taxation without (legal) representation to dispute the matter, a right he says is being trampled underfoot:
HMRC is set to gain a raft of new powers to take money which it deems to be owed directly from individuals’ bank accounts, and to demand disputed tax payments from alleged aggressive avoiders up-front with little to no opportunity to appeal.
He complains in essence that alleged tax-dodgers are to be denied that chance of a fair trial which would be accorded to the “most blatantly guilty mugger” – blatancy being a flexible quality having more to do with the economic ambition of the accused, or the whiteness or otherwise of his collar, perhaps. (I was waiting for him to accuse the mugger’s brief of being a fat cat, but he managed to restrain himself.)
Among the debunkers, David Allen Green pops up again in his alter ego on the Jack of Kent blog, with A Magna Carta Challenge, in which he wonders “what has Article 29 of Magna Carta ever done for us?” contending that it has never made the slightest difference to any actual case in court.
More strident still, in his debunkery, is Dominic Selwood in the Telegraph, with his article The Cult of Magna Carta is historical nonsense. No wonder Oliver Cromwell called it Magna Farta.
Other commentators have more positively championed Magna Carta’s magic, while pointing out the extent to which its spirit has been eroded or frustrated by recent curtailments to the right of access to justice, notably by cutting off public funding for legal representation. Among these are Adam Wagner, with Whose Magna Carta is it anyway?, who begins “There will be much celebration in the coming year, and rightly so” but questions “whether this government truly values judges and lawyers as protectors of basic values”.
More starkly, The Lawyer asks, in an article by Jonathan Black, of London Criminal Courts Solicitors’ Association and BSB Solicitors, Magna Carta – what is there left to celebrate?: “There is now a two-tier justice system, those who can pay, and those who can’t”.
And in the same vein, on The Justice Gap, Oliver Carter asks Does Magna Carta mean nothing to you? He reminds us that the previous Lord Chancellor, Kenneth Clark, pointed out that the words of his oath of office, to
‘respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible…
resonate with the promise of Magna Carta that no one shall be denied right or justice. His successor is urged to take note.
Reporting restrictions and secret trials
The key extant provision of Magna Carta, of course, is the right of everyone subject to the law to a fair trial. And as the Court of Appeal has reiterated only last week in Guardian News And Media Ltd v AB & CD  EWCA Crim (B1) para 2, this requires not only that justice be done, but that it be seen to be done:
The Rule of Law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law – both a hallmark and a safeguard – is open justice, which includes criminal trials being held in public and the publication of the names of defendants. Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system…
This case has since been the subject of two further comments on the Halsbury’s Law Exchange blog, both by Dan Bunting:
- Secret trials – a threat to justice?
- Selected journalists to attend secret terror trial – the end of press freedom?
Nevertheless, reporting restrictions do sometimes need to be imposed, and the judiciary have now released an updated guide, Reporting Restrictions in the Criminal Courts (June 2014). Lord Thomas of Cwmgiedd, Lord Chief Justice explains in the introduction that the guide, now in its third edition, is a “practical guide for judges and the media on the statutory and common law principles which should be applied” and that it has been adopted by the Judicial College, the Media Lawyers’ Association, the Society of Editors and the Newspaper Society.
Bloggers take note: it also applies to you (although, curiously enough, no reference to the word “blog” can be found in it. This is an omission which future editions should rectify.)
European Human Rights – A force for good?
This was the question answered (positively) by Lord Phillips of Worth Matravers, giving the Centre of European Law Lecture at the Dickson Poon School of Law, King’s College on 17 June.
The full question in the title was “A force for Good or a Threat to Democracy?”, and the latter suggestion was unhesitatingly rejected. In fact the real subject of the lecture was not the Human Rights Convention as such, but the way it has been interpreted and applied by the European Court of Human Rights at Strasbourg. Article 19 of the Convention made provision for a supranational court to police the convention, and in R (Ullah) v Special Adjudicator  UKHL 26;  2 AC 323, para 20, Lord Bingham of Cornhill said:
The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
Lord Dyson went on to discuss three principle of Strasbourg jurisprudence: the doctrine that the convention is a “living instrument” in so far as the scope of human rights changes over time in the light of what Lord Bingham calledthe “evolving standards of decency that mark the progress of a maturing society” (see Reyes v The Queen  UKPC 11;  2 AC 235, para 26) ; the “margin of appreciation” given to national courts in applying it; and the “proportionality” to be used in doing so.
You can read the lecture here (PDF).
For comment on the discussion see Adam Wagner’s post the UK Human Rights Blog: Europe needs the Convention and Europe needs the Court
Compensation for miscarriage of justice
What happens when a trial turns out not to have been fair? The announcement by the MOJ that it would not be paying compensation to a man following his release after 17 years’ imprisonment after an appeal court decided he had been wrongly convicted has provoked commentary.
Victor Nealon was convicted in January 1997 of attempted rape of a woman leaving a nightclub in Redditch, Worcestershire, and was not paroled because he consistently denied the offence . The Criminal Cases Review Commission referred the case to the Court of Appeal in 2013 and last December they allowed an appeal on the grounds that DNA evidence of another potential attacker and weaknesses in the identification evidence could have led to his acquittal at the time, and the conviction was unsafe.
However, the Justice Secretary Chris Grayling, having reviewed the case, has ruled that the requirements for compensation in section 133 of the Criminal Justice Act 1988 were not made out. The burden on the claimant for compensation is a high one (to the criminal standard, in fact), ie “that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”.
Full story: The Guardian
Domestic violence, Rape and Sexual Violence
- Last month, the Crown Prosecution Service (CPS) launched a consultation on the prosecution of offences of domestic violence. This week, the UK Criminal Law blog discussed and commented on the consultation and its proposals.
- This month, the CPS and Police have issued a Joint Action Plan on Rape. It promises “offender centric investigations while ensuring an effective response to victims”, plus new guidance, clarification, investigation protocols and evidence-gathering. There is to be national conference on rape by the end of the year, and “continuous improvement” is promised.
- Amnesty International has launched a petition to urge the Algerian, Tunisian and Moroccan authorities to end discriminatory rape laws and protect survivors of sexual violence in the region. It cited examples of rape victims being forced to marry their assailants and rapists escaping justice by such unions, and the failure of the laws of those countries to protect the victims in such cases. All three countries urgently need to make comprehensive legal reforms, in consultation with women’s rights groups, to address sexual violence against women and girls, it says.
From around the world…
An attempt by Argentina to appeal to the US Supreme Court against decisions of US courts upholding claims by bondholders, refusing to accept reduced payments after Argentina’s 2001 default, has failed. NML Capital (no stranger to the English law reports) was one of the bondholders, among a group of “holdouts” who had not participated in debt restructuring deals in 2005 and 2010, and who now required to be paid. They won the right to issue subpoenas to banks in an effort to trace Argentina’s assets abroad. The US Court of Appeals for the Second Circuit, in New York, ruled last August that Argentina had violated a contractual promise to treat all bondholders equally. Argentina has said that it would try to comply. Full story in New York Times.
In a development that seems to parallel that of the “right to be forgotten” in the Google Spain decision (see generally, Weekly Notes, 13 June 2014 and links back from there) the Supreme Court of Canada last week ruled that anonymity was vital to personal privacy in the digital era. More controversially, this meant that the police needed a judge’s permission before asking internet providers for basic information that would identify their customers – such as a suspected child pornographer at the heart of a 2007 Saskatchewan investigation, according to The Globe and Mail (Canadians have right to online anonymity, Supreme Court rules)
As the article explains:
Friday’s ruling came after a 2007 child pornography investigation in which Saskatoon police, acting without a warrant, asked Shaw Communications for information on a user, and Shaw complied. That request led ultimately to the arrest and conviction of Matthew Spencer for possession of child pornography. The Supreme Court allowed that conviction to stand, saying police believed they were acting lawfully, and throwing the child-porn evidence out would harm the justice system’s reputation.
An Egyptian court has confirmed the death sentences imposed on 183 members of the Muslim Brotherhood, including its leader, though there is apparently some possibility of the ruling being overturned on appeal. Nevertheless, it is the largest mass death sentence to be confirmed in Egypt in recent memory. The charges range from sabotage and terrorism to murder, arising out of civil unrest which followed an army coup ousting the then president, Mohamed Morsi. Full story in The Guardian.
The “cursory and one-sided trial” is said to have “severely violated the defendants’ due process rights” according to Human Rights Watch.
Morsi (or Mursi) was democratically elected, but then tried to change the constitution by decree so as to place himself above the law. The judges went on strike. Now it seems, the pendulum has swung the other way.
Previously on this blog: [Egyptian] Judges on Strike – Could it happen here?
The Bombay High Court in Mumbai, India has ruled that a wife’s post-marital weight gain did not justify the husband getting a divorce. Seems he got more than he bargained for. The weight gain was apparently blamed on surgery undergone by the wife before the marriage, but not declared by her (she said there was no space on the marriage bureau form).
In April this year, the Republic of the Marshall Islands, in the Pacific, filed lawsuits against all nine Nuclear Weapon States in the International Court of Justice in the Hague, suing all nine nuclear weapons possessors for failing to eliminate their nuclear arsenals. According to the Bulletin of the Atomic Scientists,
The legal basis of the case is derived from Article VI of the Nuclear Non-Proliferation Treaty (NPT), which obligates the five nuclear weapons states under the treaty (the United States, the Russian Federation, the United Kingdom, France, and the People’s Republic of China) “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament.”
The claim is now the subject of a discussion by Ivonna Beches, on the Keep Calm, Talk Law blog, entitled The Loophole in the Nuclear Disarmament Process, which also contains links to further reading.
Georgia carried out the first US execution since a botched Oklahoma execution in April which caused worldwide condemnation of the practice. Nine executions had been stayed, following that incident, but after the Georgia one, two more were scheduled to be carried out within 24 hours in a resumed splurge of capital punishment.
The subject of the Georgia execution was Marcus Wellons, who had been sentenced to death for raping and murdering India Roberts, 15, in 1989. He was found guilty and sentenced in 1993. In the 20 years since then his various appeals have been denied. He was killed by lethal injection. As reported by Alan Blinder on Twitter, it took more than an hour for him to die.
His execution was followed by that of John Winfield in Missouri, who was similarly killed by lethal injection after numerous court actions and the Supreme Court ultimately declining to stay his execution.
Full story: Washington Post.
And for a useful background piece: Everything you need to know about executions in the United States
According to Laura Pitter of Human Rights Watch,
It’s been more than two years since the five men accused of plotting the 9/11 attacks were arraigned before military commissions at Guantanamo Bay, Cuba, and still the case is not even close to trial, stymied by novel and often bizarre issues unlikely to come up in federal court. One such issue was on the docket at a pre-trial hearing at Guantanamo yesterday: Did the fact that the Federal Bureau of Investigation (FBI) secretly questioned and enlisted the help of defense team members create a conflict of interest so detrimental to the defense that they can no longer represent their clients?
Full story: Dispatches: Guantanamo Justice Bogged Down Again
Legal aid protests (timed to coincide with the Magna Carta penultiversary) took place in London and elsewhere on 16 June, declared as yet another “Grayling day”, in which the puppet minister for justice made appearance, and the real one presumably felt he had better things to do. See picture (right) via Simon Israel’s twitter feed.
Another protest last week was by London’s Black Cabs, over a mobile phone app called Uber, which they say breaches regulatory distinctions between black cabs and minicabs. The cabbies were alleging that the app is in effect a meter, not a pre-booking device. What has this got to do with law? Well, it’s about technology disrupting existing business models, and in a way also about a subject of great fascination to solicitors, ie billing: a perfect excuse for a piece by Dana Denis-Smith entitled The beginning, not the end, on The Future of Law blog.
End of term reports
The Bar Council and BSB have jointly prepared a survey of life at the Bar and, unsurprisngly, it is not a bed of roses for all. We will be writing in more detail about this next week: see Life at the Bar: A North-South Divide?
Solicitors Journal this week highlighted the results of the SRA (Solicitors Regulation Authority) report on Diversity in the legal profession: Workforce data for solicitors’ firms 2013/14
The report shows, among other things, that “A third of partners and a quarter of lawyers are privately educated”, according to the Solicitors Journal.
As reported by Legal Cheek, “Workload and client expectations are by far the biggest causes of stress for lawyers” according to a Law Society survey. This is probably a bit like affirming the Pope’s doctrinal orthodoxy, but the key message is that solicitors can get help: see links to resources at the bottom of LC’s story.
Some recent blogs
Two recent posts on legal ethics, by Richard Moorhead on his Lawyer Watch blog, are worth reading:
- Moral banks and moral lawyers: US regulator singles out the ethics of lawyers…
- Is sustainability improving corporate and professional ethics?
On Liberal Democrat Voice, Julian Huppert MP suggests We need a new law to criminalise “revenge porn”, which he says
is the growing practice of vengeful ex’s sharing intimate images or videos of their previous partners with the clear aims of hurting, shaming and humiliating. What may have been a fun photo when times are good, which you’d rather was just deleted, becomes a cruel instrument of abuse.
Lives can be ruined, personal relationships destroyed and jobs lost. Some women have been forced to move homes and change their names and suicide is not unheard of. But there is no legal sanction in the majority of these cases. The photos were originally consensual, so there’s no offence for taking them, or for possessing them. Harassment law requires repeated actions – but once photos have been put online, they are out there and can spread.
This sounds like another example of the “right to be forgotten” – a kind of rehabilitation of the self. But it is more than that, because the change in the relationship between formerly consensual partners has changed the context in which the images were posted, and enabled them to be abused as an instrument of harm. However, it does also raise issues about the extent to which we should be allowed to benefit from inhibitions not felt at the time but applied long after the event. Or the extent to which others, or technology, should help us by default when we can’t or won’t anticipate for ourselves. Should there perhaps be a renewable limitation period after which certain kinds of intimate image self-delete? Should that be site-specific, or user-determined? Thinking about something like that in advance is a bit like preparing a pre-nup with lawyers. It’s being hard-headed in a soft-headed situation.
This week’s slightly silly story
What is the law on killing rabbits in your garden?
Jeanette Winterson, lady novelist, found a rabbit eating parsley in her country garden. So she trapped it, killed it, cooked it (in cider with, er, parsley) and ate it. And attracted a variety of responses on twitter, where she has 34.3k followers and a few rather self-defeating trolls.
This became a news item and prompted the BBC to ask itself whether Ms Winterson had broken any laws. Apparently not. In fact, it seems she was only obeying orders: rabbits in England and Wales have been designated a pest, and under the Pests Act 1954 all occupiers of land have a continuing obligation to kill or take any wild rabbits living on it.
“The occupier of any land in a rabbit clearance area shall take such steps as may from time to time be necessary for the killing or taking of wild rabbits living on or resorting to the land” – section 1(2).
Next week: Are owners of ancient woodland under a duty to pick up ursine poo? Or does it merely give rise to a bear trust?
… for fans of copyright infringement notices and all the good they do in the world, consider this possible explanation for the absence of unicorns.
(Cartoon from 1111 Comics)
That’s it folks! If we think of any more, we’ll add, update, insert links, etc and retweet in days to come.
Have a great weekend.