Weekly Notes: legal news from ICLR – 24 October 2014
Posted on 24th Oct 2014 in Weekly Notes
This week’s selection of legal stories from home and abroad includes ideas for putting more cameras in court and fewer lawyers, and some really terrible tales about injustice under legal systems less benign than our own. Please note that puns cost nothing extra and are employed solely to grab attention for a worthy topic.
Other recent posts of interest:
- Review (on this blog) of Afternoon Drama: “Beyond Contempt” by Peter Jukes
- Mary-Rachel McCabe on The Justice Gap: Victims’ rights: a pendulum swing too far?
- Richard Moorhead on Lawyer Watch blog: We abolished the Cab Rank Rule by mistake
MoJ pays LiP service to needs of unaided litigants
Litigants in person to be helped by unpaid volunteers under scheme funded by Ministry of Justice in lieu of qualified, regulated, publicly funded lawyers
It’s tempting to suggest that the left hand does not know what the right is up to; but it’s more a case of robbing Peter (quite a lot) to pay Paul (rather little). So, on the one hand, the MoJ slashes legal aid with the result that many litigants cannot get access to a lawyer, or Parliament (under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO) excludes them from the categories of those who can access what little might still be available; then, on the other, up pops family justice minister Simon Hughes MP with news this week of a wizard scheme to help “litigants in person” (ie those representing themselves in court, mainly through want of access to a pubicly funded lawyer) by providing in-court advice centres populated by law students and retired volunteers.
There will be a £600,000 set-up cost, and the scheme will be funded annually to the tune of £1.4m, which is a drop in the ocean compared to the £279m cuts planned to result from the coming into force, from April 2013, of LASPO.
- Annual amount of planned civil legal cuts under LASPO: £279m.
- Annual amount now pledged for in-court advice centres: £1.4m.
Aside from the meagreness of the funding, will it actually help? Family lawyer Marilyn Stowe on her blog thinks not only that it won’t help but it will actually make things worse:
Since the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was passed last year, legal aid for private family law cases has all but disappeared. The idea was to encourage more people to resolve their disputes outside of the courts but, in practice, it has caused a significant rise in the number of litigants in person.
Mr Hughes’ solution is a network of advice centres which will be staffed by student volunteers. How is that helpful? What skills or experience do young graduates have in law, negotiation, practice and procedure?
Students are in no position to give legal advice. This is especially true in divorce cases. What kind of reassurance will they be able to offer sometimes much more mature adults who are going through one of the most traumatic periods in their life?
I wonder if Mr Hughes has considered what impact this will this have on the volunteers. Are they really equipped to deal with the kinds of emotional outbursts that are common in these kinds of cases?
Quite frankly, the whole thing is a recipe for pandemonium.
A serious question that needs to be asked is how such an ad-hoc volunteer-based system can be regulated. The Legal Services Board has a mandate to supervise the regulation of all the legal professions in a customer-centric outcomes-focused sort of way (I’m para-jargoning here) and this has resulted in some very stringent regulation by the individual regulators (BSB, SRA, CILex) down whose necks the LSB breathes. Typical of this is the Quality Assurance Scheme for (criminal) Advocates (QASA), which has had a bumpy ride but recently passed its judicial review re-sit. But then the LSB by way of its Consumer Panel gave a green light to the somewhat oxymoronic idea of professional McKenzie friends, who may belong to an association but will not be formally regulated, have in most cases no qualifications, or for some reason cannot or will not practice the profession for which they’ve been trained, and may at the judge’s discretion even be given a right of audience. So there’s a glaring contradiction, to put it politely, which bodes ill both for the professions and for the public who need timely, reliable legal advice from people properly qualified to give it.
NB I say this without in any way denigrating the good will and integrity of the volunteers who selflessly give up their time and what expertise they have to help those unfortunate enough not to be able to fund their own legal advice and representation. (ICLR does support some pro bono organisations.)
Cameras in Court: the Lex Factor (contd.)
Judges disagree over benefits but DPP in favour
Alison Saunders, the Director of Public Prosecutions, has added her voice to those calling for more televising of court proceedings, while senior judiciary remain divided over the idea. Speaking at an event held by the Howard League for Penal Reform at the offices of the law firm Clifford Chance, Saunders was quoted by The Times as having said:
Open justice is about letting the public see justice being done and I can see real benefits of trialling cameras in criminal courts, as long as the right protections and safeguards are in place. The CPS has done a lot in recent years to make criminal trials more accessible to the public, releasing material through the media where we can, while of course giving paramount consideration to the victims and witnesses involved, and I think a similar approach would be needed here.
Discussion has been fuelled by the intense attention on the trial of Oscar Pistorius in South Africa (see below), which resumed again in the last fortnight to determine the issue of sentencing.
According to the Times,
Lord Dyson MR, head of civil justice in England and Wales, has said that he was “not opposed” provided judges retained a discretion in appropriate cases to “say no”… Lord Neuberger of Abbotsbury, president of the UK Supreme Court, has come out in favour; but the lord chief justice, Lord Thomas of Cwmgiedd, has expressed strong concerns and ordered a report on the broadcasting of the Pistorius trial.
Speaking before a Lords Constitution Committee in May, he said:
Before we go too much farther down the line, the Pistorius trial has troubled me and I would like to think and see where we are going before I would agree to go much farther.”
Law and injustice around the globe
How baad can it get?
The practice known as baad, in which young girls are traded between families to resolve disputes, though illegal, is still widely practiced, especially in remote areas of Afghanistan.
A video entitled To Kill a Sparrow, presented by the New York Times, tells the story of one such bride, Soheila, now 24, who was bartered away at the age of 5 to settle a family feud started when her half-brother eloped with a woman who had been betrothed to his cousin. Once of legal age, 16, Soheila was to become the fourth wife of the aggrieved cousin, by now an elderly man.
“To Kill a Sparrow,” is a half-hour documentary by the Iranian filmmaker Zohreh Soleimani that shows Soheila’s long struggle to escape the destiny her father had intended for her. Much of it shows her life in a women’s shelter run in Kabul by Women for Afghan Women, where she effecively grew up after running away, with the help of her half-brother, who, nevertheless, has apparently sold his own daughter (at three days old) into the same kind of sexual slavery. She, too, has run away.
As the film-maker comments, “in some ways [this] is the story of all women in Afghanistan”.
Source and link to the video: To Kill a Sparrow.
Journalists and students still being detained
It’s been 300 days since three Al-Jazeera journalists, Peter Greste, Mohamed Fahmy and Baher Mohammed, were jailed in Egypt, just for doing their job. An appeal is due to be heard early next year.
They were convicted on charges of airing false news and coordinating with the Muslim Brotherhood, but if these charges have a trumped-up sound that’s echoed in the fate of others subjected to what seems to be a highly partial and repressive legal system.
Human Rights Watch reports that more than 110 university students have been arrested since the start of the school year on October 11, 2014. The arrests and subsequent action appear to be solely directed at the students’ peaceful exercise of the right to free assembly.
Most of those arrested apparently had participated in protests calling for academic freedom and the release of previously detained students, as well as expressing opposition to president Abdel Fattah al-Sisi, the former defense minister who supplanted the elected president Mohammed Morsi in a military coup in 2013.
Here is a satirical take (right) on the latest Egyptian board games craze:
French journalists jailed
Egypt is by no means the only jurisdiction in which journalists appear to be being jailed just for doing their jobs. In Indonesia, two French journalists, Thomas Dandois and Valentine Bourrat, have been tried in the easternmost province of Papua, for offences of “abusive use of entry visas.” Though they will be freed on Monday, having been detained since 6 August, their arrest and conviction reflects the Indonesian government’s willingness to steamroll journalists’ rights in order to keep foreign media from reporting from Papua, says Human Rights Watch.
Human rights lawyer barred from practice
Middle East Eye reports that Award-winning Iranian human rights lawyer Nasrin Sotoudeh has been barred from practising for three years and will hold a protest against the decision this week.
Sotoudeh was released from jail last year when halfway through a six-year sentence for “actions against national security and committing propaganda against the regime”. Her release came shortly before Iran’s then newly elected President Hassan Rouhani attended the UN General Assembly in New York.
The Iranian court’s ruling (apparently contradicting an earlier ruling permitting her to resume practice following her release) is seen as opening the way for the disqualification of other rights lawyers amid mounting criticism of the county’s judiciary.
Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague
But in a breathtaking deployment of realpolitikal precedent, Kenyatta cites Tory HRA-bashers’ reliance on UK sovereignty to escape the constraints of the European Human Rights Convention in support of his own argument that the war crime tribunal is interfering with his own country’s sovereignty.This is the subject of Adam Wagner’s post on the UK Human Rights blog: Kenyan President uses Tory human rights plans to defend war crimes charges. He points out that
the international legal system relies in the most part on the willing cooperation of states, even if that means some loss of sovereignty”.
Pistorius trial returns to court and TV screens for sentencing
Just when you thought you’d seen and heard the last of the Oscar Pistorius trial, which concluded in September with a verdict of guilty of culpable homicide in relation to the shooting of Reeva Steenkamp ( see Weekly Notes – 12 Sept)
The case returned to our TV screens for a hearing about the sentence. This turned out to be a substantive hearing in its own right, chiefly focusing on the question whether and to what extent the defendant would be affected by a spell in chokey. It prompted widespread discussion about the state of South Africa’s jails, according to The Independent.
In the end , Judge Thokozile Matilda Masipa sentenced Pistorius to a five-year sentence, which may result in a prison term of only 10 months, followed by house arrest. He was also given a suspended three-year term on separate firearms charges.
After the decision, the Sowetan reported that prosecuting counsel, Gerrie Nel, had asked for advice on whether the State should appeal, presumably on grounds of excessive leniency. According to the report, The judgment in the Oscar Pistorius trial is not well reasoned and can be appealed on a question of law, a legal expert said on Friday.
Judiciary to clear backlog by December
Actually, what they said was they would clear 88% of the cases that have been waiting for more than 10 years by December. The acting director of case management for the judiciary told a news conference in the city of Dar es Salaam that
“We have taken a deliberate decision to ensure these cases do not remain in court registries. We have established special sessions…”
It seems that 2,807 old cases remain undetermined for a period of between 5 and 10 years, with some 575 cases remaining unsolved after more than 10 years. Judges’ caseloads have been increased and target dates introduced. More judges will also be appointed.
Source: Daily News
Václav Havel Prize for Creative Dissent
The Russian punk protest band Pussy Riot, the Turkish performance artist Erdem Gunduz and the Tibetan filmmaker Dhondup Wangchen were the laureates for the 2014 Vaclav Havel Award, announced by The Human Rights Foundation (HRF) in May this year, and awarded at a ceremony in Oslo on 22 October.
According to the announcement from HRF,
“The Prize celebrates those who, with bravery and ingenuity, unmask the lie of dictatorship by living in truth.”
Frequently this involves less than pleasant brushes with oppressive laws and/or law enforcers and legal systems. For example, Maria Alyokhina, of Pussy Riot, served 21 months in a Russian prison camp for performing a protest song in the Cathedral of Christ the Savior in Moscow, after a trial that could hardly have been categorised as fair. Pussy Riot took the case to the Court of Human Rights in Strasbourg, as reported by Bloomberg news.
Incidentally, when searching for this story on google, I included the word “pussy riot” and was told some results had been filtered out for the word “pussy” because Safe Search was on. This seems a tad, well, prissy. Another example of google going over the top to semaphore its compliance with tiresome regulation?
This week’s slightly silly story…
Breeches of public propriety
A serial “flasher” (or frequent-open-flyer) has been told by a judge in the Crown Court at St Albans not only to keep his penis out of sight, but that he must wear underpants under his trousers whenever he goes out and about.
Judge John Plumstead made the order when sentencing the defendant, Terry Emberson, to an 18-month jail term suspended for 18 months with supervision, for four offences of indecent exposure committed in July this year. He will also be placed on the sex offenders register.
Full story, Hertfordshire Mercury.