Weekly Notes: legal news from ICLR – 23 May 2014
Posted on 23rd May 2014 in Weekly Notes
A weekly roundup of topical legal news from the UK and around the world, including Afghanistan, Pakistan, South Africa, Spain and the USA.
The appeal of a British marine, initially tried by court martial as “Marine A” but later revealed to be Sgt Alexander Blackman, against his conviction for murder was dismissed by the Court of Appeal in a judgment given yesterday: R v Blackman (Secretary of State for Defence intervening)  EWCA Civ 1029.
The case arose out of an incident in 2011 in Helman Province in southern Afghanistan, where British forces were quelling an insurgency, which had been captured on video via a camera mounted on another marine’s helment, in which the appellant shot a wounded prisoner and then told his comrades: “Obviously this doesn’t go anywhere, fellas. I just broke the Geneva Convention.”
The Court of Appeal observed that the crime of murder by a British citizen was an offence against the law of England and Wales wherever committed. So the appellant could have been tried in a civilian court or under the court martial system. They rejected the contention that the appellant should have been tried by jury and that a finding of guilt by simple majority under the court martial system deprived him of a fair trial under article 6 of the European Convention on Human Rights. Citing R v Twaite  EWCA Crim 2973;  1 WLR 1125 as binding authority their Lordships concluded that there was no breach either of article 6 or of the right not to be discriminated against under article 14 of the Convention.
However, the appeal against sentence was allowed to the limited extent of reducing, from 10 years to 8, the minimum term of the sentence of life imprisonment to be served before being considered for parole, after taking into account, inter alia, the mitigating effect of combat stress.
For case comment and links, see UK Criminal Law Blog.
Pakistani lawyer Rashid Rehman believed that every defendant deserved a lawyer, even – or perhaps especially – someone facing perhaps the most serious allegation that can be levelled at you in Pakistan, namely blasphemy.
Earlier this month, he was killed by two unidentified gunmen in his office in Multan, Punjab province, Pakistan. According to a report by Human Rights Watch Rehman had been threatened several weeks earlier with “dire consequences” for defending Junaid Hafeez, a lecturer at Bahauddin Zakariya University who was facing prosecution under Pakistan’s blasphemy law, for allegedly disseminating blasphemous statements via his Facebook account.
Last week, Human Rights Watch called for an investigation into the killing, and criticised the law, section 295-C of Pakistan’s penal code, which it said was vaguely worded and had been used as the pretext for a spate of recent prosecutions. Brad Adams, Asia director said:
Pakistan’s vaguely worded blasphemy law has led to discrimination, persecution, and murder since its imposition almost three decades ago. It should be reformed or repealed immediately. It is appalling that lawyers who defend the rights of people charged with blasphemy should themselves become the targets of deadly violence.
More on this from The Independent, and from the Guardian, who reported that the week after Rehman’s shooting, a teenager had walked into a Pakistani police station and shot dead a 65-year-old man from a minority sect accused of blasphemy. In another incident soon afterwards, 68 lawyers were charged with blasphemy at the instigation of a leader of a sectarian group that has been banned for militant violence.
The trial, televised around the world, of Olympic and Paralympic track star Oscar Pistorius in South Africa was adjourned till 30 June pending psychiatric tests ordered by the judge.
According to the BBC, Judge Thokozile Masipa told Pistorius to attend Weskoppies psychiatric hospital in Pretoria as an outpatient for a month, after a defence witness said he was suffering from Generalised Anxiety Disorder (Gad). Pistorius denies intentionally killing his girlfriend Reeva Steenkamp on Valentine’s Day last year.
Judge Masipa said on Tuesday that four appointed psychiatrists would “inquire into whether the accused by reason of mental illness or mental defect was at the time of the commission of the offence criminally responsible for the offence as charged.”
She said the team would decide whether he was “capable of appreciating the wrongfulness of his act”.
The “unforgettable” Google Spain ruling (see Weekly Notes – 16 May 2014) has been the subject of further comment.
Of particular interest was a piece by Julia Powles for Wired, What we can salvage from “right to be forgotten” ruling, in which she rejected knee-jerk suggestions that the policing and removal of embarrassing or incorrect search engine results would open the floodgates and prove unworkable in practice.
Individuals were the underdogs of the net, she said, and their reputations were worthy of protection. And if anyone could devise a system to protect the genuine interests of the individual and their digital rights, while respecting the freedom of the internet, it was google.
To test that proposition, she proposed some creative solutions, including a mock-up of a “right of reply” mechanism. This would appear as a hyperlinked tag in the search results indicating that the person affected by the data displayed had exercised a right to reply. A register of such entries could be kept by the EU, pending resolution of issues about the accuracy of data held on the individual concerned.
Other commentators were less positive about the ruling and less imaginative in how it might be implemented, notably Mark Stephens whose comment in the Guardian, Only the powerful will benefit from the ‘right to be forgotten’ sums up his pessimism about it:
Since the ruling an ex-politician seeking re-election, a man convicted of possessing child abuse images and a doctor seeking to remove negative reviews from patients, are reported to be among the first to send takedown notices to Google. Privacy is a universal right that must be protected, but this overreaching judgment is far more likely to aid the powerful in attempts to rewrite history, than afford individuals more influence over their online identities.”
There was a helpful summary of the main points of the judgment by David Smith, Deputy Commissioner and Director of Data Protection, on the Information Commissioner’s blog, Four Things We’ve Learned from the EU Google Judgment.
Kevin Poulter, Editor-at-Large of the Solicitors Journal, wondered out loud how it would affect lawyers in practice, and Julia Powles returned to the subject in The Guardian with a survey of the media fallout from the ruling, and how it had been both understood and misunderstood in some quarters: What did the media miss with the “right to be forgotten” coverage?
Also well worth reading on this subject is Paul Bernal’s blog post A week not to be forgotten, which catalogues his expert media commentary on the case since the ruling.
For anyone following this story, there’s an extremely useful log of academic commentary care of Cambridge Code.
There was, generally speaking, rejoicing and relief over the conviction, in a New York court, of the radical Islamist “preacher of hate” and alleged terrorist, Abu Hamza, after a 10 year battle by the US authorities to get him extradited from Britain and brought to trial.
According to the Guardian report
Egyptian-born cleric, 56, who was an imam at the Finsbury Park mosque in north London in the 1990s, was found guilty by a jury in a Manhattan federal court near the scene of the 9/11 terror attacks on the World Trade Center. The jury of eight men and four women took just 11 hours over two days to reach their verdict on the complex case.
Dan Bunting, on Halsbury’s Law Exchange, explores the case in more detail and provides an overview of the various earlier proceedings with links. “The path to getting Mr Hamza to face a New Yorkjury was not a smooth one, “ he notes wrily, before discussing the two important legal judgments which he has left to posterity.
Returning home there were some interesting judicial appointments this week.
Lord Justice Moore-Bick has been appointed as Vice-President of the Court of Appeal (Civil).
His Honour Judge James Richard William Goss QC, is to be a Justice of the High Court with effect from 1 October 2014 on the retirement of Mr Justice Royce on 27 August 2014.
And leading media silk Mark Warby QC, currently joint head of chambers at 5 Raymond Buildings, is also to become a High Court judge, with effect from 10 June 2014, on the retirement of Mr Justice Tugendhat.
And in a break with tradition, Alison Russell QC, having been appointed to the High Court Bench, shall be referred to as Ms Justice Russell, the first female High Court judge to enjoy that designation according to the Guardian.
One wonders what Rumpole of the Bailey would have said. Actually, he’d have taken it in his stride, as he did for Mizz Liz Probert, or Mz Lz Probert, the Amazon in Equity Court chambers, back in the day. But it calls to mind the way The Times Law Reports used to refer to “Lord Justice Hale” because that was what the relevant statute said was the correct designation. (She is now, of course, The Baroness Hale of Richmond and Deputy President of the UK Supreme Court.)
Flower power for lawyers
With typical brilliance, Alex Steuart Williams celebrates the Chelsea Flower Show with Queen’s Counsel, the official cartoon of the legal profession, in The (no longer quite so stuffy) Times.