Weekly Notes: legal news from ICLR – 30 January 2015

Posted on 30th Jan 2015 in Weekly Notes

This week’s buffet of legal news from home and abroad includes a reversal of policy from Labour and  reversals of the burden of proof from the government and the media (both mistaken), as well as a ditching of the dock by the LCJ and some more comical capers via the Clooneys. So stay tuned for your weekend roundup.

UPDATED 4 February 2015.

 

Easy read is easy mislead

MOJ withdraws pictorial guide for “review” after burden of proof howler

No doubt with the best of intentions, the MoJ released an Easy Read guide for a Defendant going to a Crown Court. The leaflet aimed to show, with some admittedly rather bizarre illustrations, what a person accused of a crime could expect in terms of their experience with the police, legal advisers (if any) and the court staff. The problem was that in simplifying the facts for the benefit of someone with learning difficulties, the leaflet actually misrepresented the law, most notably in relation to the burden of proof, as this extract demonstrates:

Not guilty

Within hours the leaflet was being ridiculed and lampooned by indignant lawyers all over Twitter. Given the savagery with which the MoJ has cut back the livelihood of legal aid lawyers, and reduced the access of many vulnerable people to the law, it could hardly expect much mercy. Moreover, coming so soon before the Global Law Summit by which the MoJ and the government seem to be wanting to turn the 800th anniversary of the sealing of Magna Carta into a marketing opportunity for London’s commercial courts, the apparent reversal of the burden of proof was taken as a cynical attempt to slip a fundamental change in the law beneath the radar.

To suggest that what was obviously just a rather badly supervised cock-up was actually some sort of devious conspiracy would, I think, be to fall into the same trap as some of the shriller elements in the print media when they get on their high horses about “secret” family courts and the like (see, for example, The curious case of the judge with no name on the Transparency Project blog). Even so, it was poorly managed and suggests that the MoJ has itself fallen victim to the savage cuts imposed by the Coalition’s austerity-plus agenda.

UPDATE See also: Jack of Kent blog, The Ministry of Justice is telling people with learning difficulties that they are guilty unless they can prove themselves innocent.

 

Ditch the dock?

Lord Chief questions need for “expensive” dock

Lord Thomas of Cwmgiedd told an audience at the Royal Courts of Justice, during the recent launch of a book by Birkbeck College’s Institute for Criminal Policy Research on the way crown court hearings are conducted, that there was a question as to whether the dock — which has been a central feature of British courts for centuries — was “really necessary” in the modern age. He suggested that defendants could instead sit with lawyers and others in the main part of the courtroom.

According to the report in the Evening Standard, Lord Thomas asked:

“Do you really need the dock? Are they really necessary? I do think these sort of radical ideas need considering,” he said. “They are terribly expensive. Particularly in magistrates’ courts.”

This chimes to some extent with research conducted recently into how juries respond to the presence of an accused in a dock, as happens here, compared with seeing an accused sitting with lawyers, as is done routinely in the United States. The study by Professor David Tait, based at the University of Western Sydney, also compared the jury’s perceptions of docks with glass enclosures, as used in the UK and some other jurisdictions, with those of the sort of metal cage of prison bars used widely in former Soviet countries.

The findings from a mock trial exercise with jurors were surprising. Of those who saw the accused at the bar table, 36% found him guilty. Of those who saw him sitting in an open dock, 47% found him guilty. And of those who saw him sitting in a glass dock, 60% found him guilty.

The research concluded that that not just the glass dock but the open dock violates the presumption of innocence and therefore right to a fair trial.

The study was discussed on the Law Report podcast on ABC: Are docks fair on an accused?

However, the Chief’s suggestion that the dock was the “expensive” option because of the costs of security needs to be examined more carefully. If you don’t have a dock, the security of court personnel, legal teams and the public present in the court, as well as the need to guard against the risk of escape, all point to the need for more, not fewer, security staff.

As Prof Tait explained, in the programme:

No, the real reason why people don’t follow the American example I think is you need more staff in court, so you probably need two or three security people there, whereas Australian courts try to minimise the number of security people to often one, so for that reason they want to lock everything down and basically fix the furniture rather than improve the human relationships.

If you abolished the dock, any precaution to secure a dangerous or flight-happy defendant would need to be fairly discreet so as not to replace one form of visible and prejudicial restraint with another. But if the Americans have solved this problem, there’s no reason why we shouldn’t do so here.

Among those interviewed in the programme was London barrister (from Doughty Street chambers) Joe Stone QC, who has vowed to challenge the dock in the next suitable criminal case he has. But if he appears to argue the point before the Lord Chief Justice, it seems be may be pushing against an open door.

UPDATE: see also, Matthew Scott, Barrister Blogger, Docks Are Nasty Relics Of Eighteenth Century Injustice. It Is Time To Dismantle Them

 

Labour to reverse some cuts

Duty solicitor reductions rethink

Sadiq for justice 2Labour in government would reverse coalition plans to slash the number of on-call, legal aid solicitors attending police stations and magistrates’ courts, according to The Guardian.

The shadow Justice Secretary, Sadiq Khan (right) told the Guardian:

 “If Labour wins in May, we won’t implement the government’s current proposals for two-tier contracting … I will stop the absurdity of the two-tier contract straight away. Everybody knows that the current legal aid market is in need of reform and that the number of providers is in need of rationalisation but the way the government has gone about its procurement plans risks depriving people of access to justice.”

Although he could not undertake to reverse the £600m cuts already made by the Coalition, Khan’s three promises if Labour get in are to “abandon immediately the planned implementation of the current government’s two-tier contracts for criminal legal aid”, review the second 8.75% fee cut due this summer and “undertake an immediate review of how criminal legal aid is procured, working closely with the legal profession”.

This seems good news, but I will continue to scrutinise all the parties’ election promises and manifesti as we get closer to the election.

 

Human rights and media wrongs

Launch of Human Rights Information Project

Adam Wagner, human rights barrister, blogger (at the UK Human Rights Blog) and tweeter, announced this week the launch of a new initiative, the Human Rights Information Project. As with the family courts (for which the Transparency Project was set up last year), the subject of human rights law badly needs an independent source of reliable information and explanation to correct public misunderstanding and media misrepresentation. This is all the more essential at a time when even politicians, who ought to know (or be advised) better, seem to get the wrong end of the human rights stick (or, for some, carrot).

Typical of the variety of newspaper bias has been coverage of statistics from the European Court of Human Rights in Strasbourg, particularly in the headlines used. For a fairly balanced view, read the Guardian, which this week announced UK broke law in fewer than 1% of European human rights cases in 2014. Some months ago The Sun had screamed in its headline:  Euro judges go against UK in 3 out of 5 cases. It explained how it reached this figure by saying

HUMAN rights judges in Strasbourg rule against Britain once every 47 days on average, a Sun on Sunday investigation reveals.

The relationship between days in the year when rulings are made, and the number of positive or negative findings seems, at best, a disingenuous comparison. But in any case, as Wagner explained in his blog at the time:

The percentage which The Sun has obviously fixated on is the number of full judgments from 1959-2013 which have been negative. There have been 499 full judgments involving the UK with 297 resulting in a violation – roughly 3 in 5.

But the absolutely key point missing from their figures is that cases which proceed to full judicial consideration represent only a very small minority of the total number of applications [most of which are rejected by the court].

Now consider, on the same topic, this week’s Express headline: Scandal of Britain’s £2.1billion wasted on European Court of Human Rights cases. How did we get there?

THE rampant wastefulness of the European Court of Human Rights has been exposed by figures showing that 99 per cent of claims against the Government are thrown out.

It would be unfair to quote too much more of the article, which demonstrates a breathtaking ignorance of the law, but suffice it to say the figure of £2.1bn did not come from official figures but was estimated by someone from whom a quote was sought.

You might think this level of screaming hyperbole was confined to the red top ‘bloids, but it even afflicts the Daily Telegraph (which to be fair is rapidly becoming little better than a larger format clone of the Daily Mail, to whom lots of its best writers have already been transferred), with its latest headline declaring: Human Rights Act has helped 28 terrorists to stay in UK.

Another problem, apart from bias, is the narrowness of the coverage in these reports. Only the Guardian bothers to set the figures in the context of other member states’ rulings from Strasbourg:

Compared with the other 46 countries who are members of the Council of Europe, the UK was the subject of very few judgments – just four cases – that found it had violated its citizens’ rights.

The states with the largest number of judgments involving at least one breach of the European convention on human rights were Russia (122 judgments), Turkey (94), Romania (74), Greece (50) and Hungary (49).

The Sun’s stories on human rights are frequently the subject of later, somewhat less prominent, corrections, as monitored by Full FactBut the fact remains that the media do not seem to trust official sources to clarify and explain human rights issues, and with the Conservatives planning (threatening) to renegotiate our relationship with Strasbourg, the need for something like the Human Rights Information Project has never been greater. As Wagner explains on his blog,

HRIP will:

  • Radically rethink the way we talk about and present human rights;
  • Use social media to explain why human rights matter;
  • Build the tools to defend human rights against misrepresentations;
  • Make information about human rights accessible and even beautiful.

The project is supported by Global Dialogue, a charity registered in England and Wales with a wide-ranging purpose to support human rights in Britain and internationally.

National Rape Conference

Another wrongly reported reversal of burden of proof

At their first joint National Rape Conference, held this week, the Crown Prosecution Service and the Police focused on the issue of consent, and announced new “toolkits” to clarify for investigators what to look for in ascertaining whether consent was obtained or whether there were circumstances in which it could not reasonably be considered to have been given.

Unfortunately, this was misrepresented in some press reports as a proposal to impose on the accused some sort of evidential burden to show consent had been obtained, rather than it being for the prosecution to show, in the circumstances, it was not or could not have been given. Thus, the Daily Telegraph headlined its story, dated 29 January: “Men must prove a woman said Yes under tough new rape rules”.

In fact, as Full Fact pointed out:

New advice for prosecutors has been published by the Crown Prosecution Service, aimed at improving how rape cases are handled. It does not in any way change the law on rape, which says that prosecutors have to prove that the alleged victim (of either gender) didn’t consent to sex. Someone accused of rape doesn’t have to “prove” anything—despite today’s headline in the Telegraph. (emphasis added)

The BBC reported it rather more accurately, under the title: Police given new guidance to combat rape ‘myths’ 

But do the guidelines go far enough, wonders Natasha Phillips on her Researching Reform blog, Rape: New Guidelines To Protect Women Further – But What About Men?:

Controversially, the guidelines do not seem to touch upon male-on-male rape, or female-on-male rape, still perceived as taboos and forms of rape which have yet to be treated, at least from a cultural perspective, as on a par with male-on-female rape. Consequently, the current guidance seems only to require men to prove that a woman said ‘yes’ in rape cases, despite the Sexual Offences Act 2003 clearly encompassing, albeit implicitly, other forms of rape.

I am not sure about that phrase “require men to prove” but this seems a valid observation otherwise.

The purpose of the new CPS toolkits was, in part, to help reverse the popular prejudice among victims of rape that it is futile to report it. This was what, in a spectacularly badly edited piece of journalism, the Telegraph tried to explain with this paragraph:

The most recent figures showed that just 15,670 women reported rapes to the police, often because they thought it would be impossible to prove the offence, or because they did not have any confidence in the police’s ability to help them, with only 1,070 convictions resulting from the 2,910 cases that got to court.

Those were presumably the reasons why the remaining 70,000 or so of the estimated total of 85,000 women per year alleged to be victims of rape in the UK didn’t report it, not the reasons for doing so of those who did.

 

Victims review

Victims’ Commissioner publishes first annual report

The Victims’ Commissioner, Baroness Newlove of Warrington, launched the first Annual Review of Complaints and Resolutions for Victims of Crime this week, looking at compliance with the Code of Practice for Victims of Crime (the Victims’ Code). Although positive about achievements so far, she said:

It has become very clear there is a long way to go before we can be confident that the scales of justice truly put victims at the heart of the criminal justice system.

She added:

I welcome the Government’s commitment to introduce a Victims’ Law, but I have been clear that improvements should be made now. All agencies should be ensuring victims are getting what they are entitled to under the existing Victims’ Code, and if things go wrong, they are entitled to ask why, and to have it put right.

Her key finding was:

There is a gap between the handling of complaints as described by criminal justice agencies, and how victims feel they have been treated.

One of the ways in which victims can now get better information about their cases is via a new Track My Crime website set up by Avon and Somerset Constabulary and now features a number of other police forces. As it explains:

As part of our commitment to finding innovative new ways to communicate with the public, we have developed an online service called TrackMyCrime. If your force has signed up, this service will be offered to victims of crime in your area, to allow them track the investigation of their crime as it happens.

For victims of domestic violence, the success of “Clare’s law”, which allows police to divulge details about an individual’s previous history of domestic violence or violent acts, if requested by their partner, is good news. The Independent reported how ‘Clare’s Law’ saves 1,300 women from violent partners in first year. It said:

Using Freedom of Information laws, the Press Association discovered at least 1,335 disclosures have been made across England and Wales under the law following 3,760 applications for disclosure.

 

Law (and injustice) from around the world

An alphabetical tour d’horizon

 

Azerbaijan

Journalist at risk of jail

On 29 January a court here convicted Seymur Haziyev, a leading columnist with the opposition paper Azadlig (Liberty) and an anchor for the Turkey-based pro-opposition television channel Azerbaijan Saati (Azerbaijan Hour), on trumped-up hooliganism charges and sentenced him to five years in prison. In its comment on the case, Human Rights Watch says

The conviction is not surprising, as Haziyev is one of 11 independent or opposition journalists, bloggers, and social media activists arrested or convicted last year on spurious charges in apparent retaliation for critical and investigative journalism.

 

Egypt

Al-Jazeera journalist freed

Peter Greste, one of three Al-Jazeera journalists imprisoned last year on charges including “spreading false news” following his coverage of Egypt’s current crackdown on dissent following a military coup, has now been deported, according to the BBC. Two fellow AJ journalists, Baher Mohamed and Mohamed Fahmy, remain in prison in Egypt, though it is suggested that Mr Fahmy would be deported to Canada after his dual Egyptian nationality was dropped. The trio was represented during earlier court hearings by human rights barrister Amal Alamuddin (now, of course, Mrs Clooney: see below). It is currently not clear whether the deportion arrangements require them to complete their sentences in their home countries.

 

France

This week’s slightly nutty story

NutellaA court in France has banned parents from naming their child Nutella, the brand name of a hazel nutty chocolate spread, because (giving the interests of the child a welcome priority) the little mite might later be teased, according to La Voix du Nord.

See also, report (in English) on BBC website.

So the official registration name was shortened to Ella. Given that this is essentially a suffix, she can prefix it with anything she likes when she gets older, unlike her English cousin Marmite (poor little ‘Mite) and her American cousin Jello. (Hello, Jello!) Still, there are worse first names out there, many of them children of the late Frank Zappa, the alternative rock composer and bandleader of the Mothers of Invention, who called his daughter Moon Unit and his son Dweezil. Nor is he the only rock star to have given his kids odd names. Zowie Bowie (son of David) is now called plain Duncan Jones and is a talented film director, his first feature film, Moon, being nominated for seven British Independent film awards and winning two. I saw the film, which covers the same sort of territory as Intergalactic and, earlier, 2001: A Space Odyssey, viz the alienation of humans in space. Let’s not go there, or we’ll go nuts (like the chocolate spread with which I began this divagation.)

 

Saudi Arabia – Bahrain

IOC rejects joint Olympics bid

AP reports that the IOC has dismissed a suggestion by a Saudi Arabian official that the ultraconservative nation could seek to co-host the Olympics with neighbouring Bahrain and hold men’s and women’s events in separate countries. “A commitment to ‘non-discrimination’ will be mandatory for all countries hoping to bid for the Olympics in the future,” said Thomas Bach, President of the International Olympic Committee.

This idea seems so ludicrous in its own right, that any obvious incompatibility with the Olympian ideals of sporting amity, equality and pacific (albeit often fierce) competition seems almost irrelevant.

Moreover, the abysmal human rights record of at least one of the bidders leaves a good deal that a more satirical commentator could say. Suffice it to say that the bid is itself a pretty poor joke, and the IOC rightly slapped it down, as the Telegraph reported.

 

USA

Florida judge to face book being thrown at her for social media policy breach

A judge in Florida’s been recused from a divorce case after attempting unsuccessfully to befriend one of the litigating parties (the wife) on Facebook. The matter was considered by the District Court of Appeal of the State of Florida, Fifth District, which upheld the wife’s petition and assigned the matter to a different judge, concluding that the wife had a “well-founded fear of not receiving a fair and impartial trial” from Judge Linda D. Schoonover.

As Cohen J giving judgment in Chace v Loisel, 24 January 2015 (pdf) explained:

Prior to entry of final judgment, the trial judge reached out to Petitioner, ex parte, in the form of a Facebook “friend” request. Upon advice of counsel, Petitioner decided not to respond to that invitation. Thereafter, the trial court entered a final judgment of dissolution, allegedly attributing most of the marital debt to Petitioner and providing Respondent with a disproportionately excessive alimony award. Following entry of the final judgment, Petitioner filed a formal complaint against the trial judge, alleging that the judge sent her a Facebook “friend” request and then retaliated against Petitioner after she did not accept the request.

Sources: ABA JournalWall Street Journal Law Blog .

 

San Francisco police detain public defender outside court

A San Francisco deputy public defender was handcuffed and arrested at the Hall of Justice after she objected to city police officers questioning her client outside a courtroom, an incident that her office called outrageous and police officials defended as appropriate. According to SF Gate,

The Tuesday afternoon arrest of attorney Jami Tillotson as she denied police officers’ attempts to take photos of her client without explanation raised questions about police intimidation and harassment, Public Defender Jeff Adachi said at a Wednesday news conference.

“I was arrested for what we do as public defenders every day,” Tillotson said of the encounter, which was captured in a video that the public defender’s office posted on YouTube. “I asked questions. I talked to my client and explained to him his rights. At that point, I was told I was interfering and taken into custody.”

You can see the event on video via YouTube. It’s frankly pretty outrageous.

 

 

And finally… New *Celebrity Section*

I’m sorry I haven’t a Clooney – Oh yes, you have too

As readers are well aware, there are now two famous Clooneys in the world. There is the actor George Clooney, who is remembered, inter alia, for his caffeine-fuelled tirelessness in promoting Nespresso capsule coffee machines. And now there is also his wife, London human rights barrister, Amal (nee Alamuddin) Clooney who practices from Doughty Street chambers. Both have been in the news yet again this week.

 

Clooney Mrs in court

Mrs has been the subject of scrutiny from the fashion police, asking “who” on earth was she wearing for her appearance (above) before the Grand Chamber of the European Court of Human Rights this week. The answer was “Ede & Ravenscroft”. As one fashion commentator crowed:

Oh dear! We can’t begin to tell Amal just how much is wrong with this outfit.. The solid black colouring of the material, combined with the baggy shapelessness of the whole ensemble… to make matters worse, her gorgeous Lebanese skin tones are washed out by that ghastly white collar and bow. [surey “bands”?]

Under the title Oh Amal! Mrs. Clooneys 5 Worst Fashion Disasters, Waterford Whispers News went on to catalogue another four such faux pas, including the fact that when she appeared in court on another occasion, it was in the same Ede & Ravenscroft outfit.

The only thing worse than being spotted wearing a ghastly outfit, is being spotted wearing the SAME ghastly ouftit more than once!

If you think this is a knock-off, you’re right; but it’s nicer than the genuine article, as this link to US Weekly (warning: not very flashy photography) will attest.

Clooney lookalike

Not the real deal

Mr, meanwhile, has been the target of a lookalike ad campaign in Israel, of all places. Now a court in Tel Aviv has allowed Espresso Club, a coffee competitor, to continue running its ads against Nespresso, using the lookalike (right) to make fun of George Clooney, according to Primary Opinion, where Erwin Haüer, of Knijff Trademark Attorneys, writes:

Espresso Club is aiming at a different clientele, one looking to save money and not impressed by the “high status” image of Nespresso and Clooney, the court says.

Another remarkable thing: the court also ruled that Clooney’s image is not protected by intellectual property law. Otherwise his image would belong solely to the company and he would be unable to advertise any other products. Well, that’s something we can debate about for a few days.

Hmm. In London one might still have been able to mount a passing-off action, a la Rihanna  (see Weekly Notes – 23 January)

But that would probably only have worked if Clooney himself had claimed.

 

A note about sources: I have identified sources for almost all the above stories by providing links within the stories themselves, usually from the name of the publication or title of the source material used. However, I would not have picked up most of these stories in the first place but for various followees on Twitter to whom I am inordinately grateful for keeping us all informed about what it really happening in the legal (and illegal) world.

 

That’s it folks! Enjoy the weekend, and don’t forget to sign up for weekly Case Law Updates. Click here for last week’s alert.

 

And look out for news in a day or two of our CELEBRATING 150 YEARS OF CASE LAW ON TRIAL campaign, in which YOU get to choose the TOP CASES for our special Anniversary Edition, to be published later this year.

 

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.