Weekly Notes: legal news from ICLR – 29 August 2014
Posted on 29th Aug 2014 in Weekly Notes
This week’s roundup looks at open justice, transparency, the independence of a sometimes outspoken judiciary, and the risk of removing special canteens in the criminal court. Plus the usual survey of law and injustice in foreign parts.
Also on the blog this week: Terror makes tyrants of us all: Boris and the Reverse Burden proposal
Judges, Journalists and Open Justice
This was the sub-title of a speech given by Lord Neuberger of Abbotsbury, President of the UK Supreme Court (right, with Law Reports), at the Hong Kong Foreign Correspondents’ Club this week.
Lord Neuberger is also a Non-Permanent Judge of the Hong Kong Court of Final Appeal. But the subject of his talk was universal. The speech is worth reading in full, and can even be listened to on the HKFCC’s website. But a few aspects of it are worth highlighting here because of their relevance to our own work, and to that of an excellent new project launched this week (about which more below).
Lord Neuberger began with the rule of law, and identified some of its essential elements, one of which was judicial independence.
[A] judge has no more important function than to protect citizens against abuses of power of an increasingly mighty executive branch of government.”
He cited the memorable dictum that “the price of liberty is eternal vigilance”, and said “any threat to judicial independence has to be headed off at the pass”.
Another essential feature of the rule of law was open justice.
In its most basic form, it means that court hearings take place in public and judges’ decisions are available to the public. … Sometimes cases, or aspects of cases, have to be kept secret, eg to protect children or confidential information, but, as has been emphasised time and again by judges, in such cases secrecy should only be permitted if it is absolutely necessary, and even then it should be kept to a minimum.”
This echoes what Sir James Munby, President of the Family Division (and the new Family Court) has recently been striving to achieve with his Transparency agenda, opening the workings of the family courts to a proper public scrutiny from which they have often been excessively shielded. This was the subject of a Consultation Paper issued on 15 August.
Returning to Lord Neuberger, his next point was about judgments, a subject close to the heart of what we do, and something on which he has commented and lectured before, eg in the first BAILII Lecture, No Justice, No Judgment. He now said:
It is not just trials and hearings which must be accessible: it’s also our decisions. …
We judges owe it to the public, at least in cases which are important or have excited wide interest, to ensure that our decisions and essential reasoning are as comprehensible as possible to the public.
He then addressed the role of the media, another vital channel in the public’s access to information about the administration of justice.
Open justice involves the public and media understanding what goes on in court and what judges have decided. But open justice also requires that there should be healthy and informed discussion about the judicial process and judicial decisions. …
The media therefore have the right to report fearlessly on what the courts are doing and deciding, uncomfortable though that may be for us judges from time to time.
In enjoying this right, however, the media also had an important responsibility.
But just as judges must not abuse their privileges which are accorded to them because of the importance of judicial independence, so should journalists and other communicators not abuse the privileges accorded to them because of the importance of freedom of expression. So, in accurate and unfair reporting of a judge’s decision in order to make a good story is an abuse of the freedom of expression accorded to the press and it undermines the rule of law.
Any criticism of judges should therefore be “based on accuracy and truth rather than misreporting and propaganda”.
A new development: The Transparency Project
Unfortunately, as demonstrated in cases such as In the matter of P (A Child)  EWHC 1146 (Fam) (more notoriously known as the Italian C-section Case) the press have in the past sometimes presented a garbled, misleading or even hysterically inaccurate version of court proceedings, particularly in family cases. This is the problem which the Presidents of both the Supreme Court and the Family Division are seeking to address with their promotion of open justice.
But now we, as legal commentators, must do our bit to help.
This is the thinking behind The Transparency Project, the brainchild of Lucy Reed, barrister and author of the Pink Tape family law blog, which aims to shed some light on the workings of the Family Courts, and to make the process and the cases understandable for people without law degrees. It will also be a repository of information which can be resorted to by journalists should they wish to check their facts or get an expert opinion.
It will be staffed by a panel of legal writers, practitioners and teachers with experience of commenting on and explaining to a lay audience the workings of the courts and the law, with particular emphasis on family law.
A circuit judge, on retiring after 18 years service, has caused something of a storm with her comments on the depressingly low conviction rate for offences of rape.
Judge Mary Jane Mowat said the national rape conviction rate of only 60 per cent after trial was partly an “inevitable” result of the lack of corroborative evidence, and the fact that complainants had often drunk far too much to be able to give coherent evidence of the lack of consent in cases where this was disputed by the accused. If women drank less, the conviction rape would improve.
She made it quite clear that she wasn’t (as her critics immediately assumed) blaming the rapes on the victim’s lack of sobriety; merely pointing out that their drunkenness made it much harder to secure a conviction based on the evidence they were later able to give.
Nevertheless Rape Crisis England described the comments as “potentially very harmful”.
Fay Maxted, CEO of The Survivors Trust, labelled Judge Mowat’s attitude as “medieval” and said it could prevent terrified victims from coming forward.
UPDATE: Of course, women drinking less may not reduce the number of rapes: and the suggestion that their drinking is a partial cause of their victimhood does send the wrong message, ie that women are partly to blame. The people who are to blame are the men who rape them. With this in mind, Julianne Ross on Identities.Mic has listed all the advice commonly given to women as though, instead, it were given to men. If you think it looks ridiculous, then you’re probably a man. Here’s what she wrote: If We Gave Men the Same Rape Advice We Give Women, Here’s How Absurd It Would Sound
Catering for all eventualities
The contract for the provision of on-site catering in the criminal courts is about to expire, according to the Gazette
Some practitioners have expressed alarm at the risk that, if canteens are closed to save money, the separation of jurors, witnesses (including victims) and defendants and their families may be jeopardised.
However, it is just this sort of risk that TV courtroom dramas often depend on for their plots. An example is the recent drama Common (which was about joint enterprise murder) and featured an altercation in a courtroom canteen between the victim’s family and that of one of the defendants.
The script, by Jimmy McGovern, was a good one: even-handed about both the justification for, and the potential unfairness of, the joint enterprise rule (under which someone who has been involved in wrongdoing with one or more others, in the course of which a murder is carried out, can be jointly indicted for that murder).
It was reviewed by the UK Criminal Law blog, with plot summary and legal issues and errors varioiusly identified. (Including: “The families of the victim and the defendants would not be wandering around the same cafe together, certainly not in a murder case”.)
Of course, barristers appearing in criminal cases never eat lunch – with judges, jurors, defendants or anyone else. According to the MOJ, all the fat cats need is a big dish of cream. (Seriously, they are more likely down the cells with clients or eating a sandwich over their papers in the robing room – if there is a robing room.)
This week’s slightly silly story…
Judge in Wales gives advocate a ‘dressing down’
Solicitor Alan Blacker appeared in Cardiff Crown Court calling himself Lord Harley, claiming to have inherited the Irish peerage from his father, and wearing the robes and wig of a barrister, with St John Ambulance medals and ribbons on his breast.
He was defending a minibus driver on a charge of causing the death of a cyclist by dangerous driving. After the defendant had been convicted, Judge David Wynn Morgan told Blacker he had been unimpressed by his appearance, which he said looked like something out of Harry Potter, adding:
I have been practising in these courts since 1978 and I have never seen a barrister or solicitor appear before these courts wearing a medal or with badges sewn onto his gown.
Here in south Wales we had a barrister, who later became a judge, who had won during the Battle of Normandy the highest order of gallantry in a Victoria Cross. Did you ever see him wearing a medal? He would have considered it the height of vulgarity for such a thing to be done.
If you ever appear before this court again dressed as you are I shall exercise my right to decline to hear you.”
Blacker said afterwards he was upset and shocked that his credentials and appearance had been questioned and was taking advice on the matter. The best advice he could get would be to dress appropriately as an advocate. (To be fair to Mr Blacker, though the conventions are well known, specific rules are not easy to find in regulators’ websites or publications.)
Full story and pictures: BBC.
And (with more quotes) Gazette.
And now, a somewhat aggrieved post by Matthew Scott on Barrister Blogger: If Lord Harley Of Counsel Wants To Be Taken Seriously He Should Be More Polite
POSTSCRIPT: Richard Harwood QC on Twitter remarked: “Won’t comment on court dress code but the Victoria Cross winning judge was Tasker Watkins” and provided a link to Watkins LJ’s obituary.
(I recall him well, having reported his judgments as a junior law reporter. He was a sweet man who had something of the look of Captain Pugwash in the TV cartoon.)
Law and injustice around the world
German regulator decides not to pursue Google over publishers’ complaint
The Cartel Office, a German regulator, has decided not to pursue a complaint against Google by news and other publishers who don’t like it extracting more than small excerpts from articles. That’s because of a lack of clarity about the scope of the new legislation (see Weekly Notes – 4 August) enabling publishers to prohibit search engines and similar services from using their news articles beyond very short excerpts, unless they pay a fee or royalty for doing so.
Several publishers including Axel Springer SE and Burda had banded together in a group called VG Media to demand Google pay them for making their online articles available to the public, relying on the new law. A similar law in Spain has been dubbed the “google tax”.
Full story: Reuters
Dozens Unlawfully Held in City’s Prisons
According to Human Rights Watch, citing a recent report , “Locked Up in Karaj: Spotlight on Political Prisoners in One Iranian City, some 63 prisoners had been arrested, tried and convicted, solely for trying to exercise their basic human rights, such as free speech and rights to peaceful assembly or association. A further 35 prisoners were sentenced to death on death row for terrorism-related offences. Human Rights Watch suspects egregious due process violations that may have tainted the judicial process.
Joe Stork, deputy Middle East and North Africa director of HRW said:
The election of a new, avowedly moderate president a year ago raised hopes that many of Iran’s political prisoners would soon walk free, but many remain behind bars. The lion’s share of responsibility for releasing these prisoners rests with the judiciary, but President Hassan Rouhani and his cabinet should be doing more to press for their release.
Return to death penalty dismays reformers
The execution of two men in Japan this morning is dismal news and part of a grim pattern of a return to the death penalty in Japan under Prime Minister Abe, Amnesty International said last week.
Mitsuhiro Kobayashi, 56, and Tsutomu Takamizawa, 59, were hanged early this morning, with Kobayashi executed at Sendai detention centre and Takamizawa at Tokyo detention centre. Both had been convicted of murder.
What’s worrying is not just the apparent reintroduction of the death penalty for murder, but the fact that it is occurring in the context of a criminal justice system where, somewhat incredibly, the conviction rate is 99 per cent. According to an episode of BBC Radio 4’s Crossing Continents, Forced Confessions in Japan, broadcast last year (but still available to listen again on the BBC website) , this improbable success rate has only been achieved by forcing confessions from suspects and tampering with other evidence. Prosecutors in Japan can keep people in detention for 23 days, giving them ample opportunity to break down the suspect. But how reliable can a confession be if it has been obtained only after 23 days of psychological pressure?
If the conviction is unsafe, the penalty can hardly be less so.
New law against human trafficking
Kenya has passed a law that will make it easier to secure convictions for human trafficking by providing greater support to victims, encouraging them to give evidence, campaigners said.
According to the Guardian, the victim protection bill approved by the country’s parliament on Wednesday aims to improve support to victims of crime, including provision of a place of safety, food, medical treatment, psychosocial care and police protection. It also establishes a fund to assist victims.
Judges issued with pepper spray
Swiss judges have been given pepper spray, LED torches and instructions on how to avoid stalkers, after one of their number was attacked and beaten in court by a disgruntled claimant.
According to The Times
The judge was whacked in his courtroom in Lucerne last December – the only recorded incident of an assault on a judge in Swiss history – and suffered a broken tooth, a facial cut requiring stitches and a bruised right hand.
Recently there has been a “worrying” spike in threats to judges. Federal criminal judge Roy Garré, president of the Swiss Association of Judges, was quoted as saying:
“This has long been a problem and increasingly, several times a year, judges are having to turn to police for protection of themselves, their families and property.”
One thinks of Switzerland as a relatively peaceful place but its famous external neutrality is not necessarily replicated at home. The place is awash with weapons because army reservists are allowed to take their firearms home.
Arizona gun instructor accidentally shot and killed by nine-year-old girl being trained to use automatic weapon
A nine-year old girl from New Jersey was with her parents at the “Bullets and Burgers” gun range at Arizona Last Stop, when she lost control of the Uzi automatic machine gun which she was being allowed to use under guidance from a trained instructor. The gun recoiled and at least one bullet entered the instructor’s brain. He died soon after.
Apparently no laws were broken and no legal action is expected to be taken against anyone involved. The parents had signed waivers saying they understood the rules, and they were standing nearby, recording their daughter, when the accident occurred. You can view the video they took – up till the point the gun recoils. The little girl is wearing pink shorts and a ponytail. She probably didn’t sign a waiver herself. She’s going to need counselling – and who knows what psychological damage this will do?
But, nevertheless, there were apparently no laws in place which were breached in this incident.
Political activists jailed after “bogus trial”
A Vietnam court has jailed three activists after a one-day trial conducted under strict security and with numerous supporters being beaten and detained by police, according to AFP.
One of the three was a prominent anti-China activist. The trial followed angry protests earlier this year when China moved oil rigs into disputed waters. Vietnam and China are currently in talks to ease the tension. According to AFP:
Bui Thi Minh Hang, a high-profile anti-China activist and the most prominent of the three, was given a three-year jail term by the court in the southern Mekong Delta province of Dong Thap. She was found guilty of “causing public disorder”, her lawyer Tran Thu Nam told AFP.
Rights activist Nguyen Thi Thuy Quynh, 28, was jailed for two years. Nguyen Van Minh, 34, who is an independent Hoa Hao Buddhist practitioner, received a two-and a-half year jail term. All faced the same charges.
Further background facts were provided by Human Rights Watch. It appears the public order offences related to creating “serious obstruction to traffic”. According to HRW’s report (predating the sentences):
On February 11, a group of 21 bloggers and Hoa Hao Buddhist activists rode motorbikes from Ho Chi Minh City to Lap Vo district in Dong Thap province to visit former political prisoner Nguyen Bac Truyen and his fiancé, Bui Thi Kim Phuong, an independent Hoa Hao Buddhist practitioner, whom police had harassed, detained and interrogated the previous day. As the group neared their destination, police stopped them for an alleged traffic violation, and then stood by while unidentified thugs in civilian clothes beat up several group members. The police then arrested all the activists, but only charged prominent blogger Bui Thi Minh Hang, 50, rights activist Nguyen Thi Thuy Quynh, 28, and independent Hoa Hao Buddhist practitioner Nguyen Van Minh, 34.
Phil Robertson, deputy Asia Director of HRW, commented:
“The Vietnamese government is now resorting to bogus traffic offenses to criminally prosecute activists. The authorities should recognize this case is not worth the international ridicule it will cause and drop the charges immediately.”
Here’s a picture that’s been doing the rounds on Twitter recently. A very literal lawyer’s approach to signage, which says it all: