Weekly Notes: legal news from ICLR – 30 May 2014

Posted on 30th May 2014 in Weekly Notes

A selection of topical legal news from the UK and around the world, including the historic dispute over the mortal remains of the last Plantagenet king, a consultation over hate crime, the continuing saga of legal aid cuts and the criminal justice system, and tales of justice (or injustice) in foreign parts.

Other recent posts from ICLR:

Speed dealing: Flash Boys and the world of high frequency trading, a review of Michael Lewis’s expose of the sharks in the “dark pools” of US stock exchanges

CALLing Winnipeg: ICLR at the Canadian Association of Law Libraries annual conference, a report of the culinary and sensory delights of Winnipeg, where team ICLR attended the CALL conference which it sponsors

Bones of contention: a skeleton argument

grateful_dead_poster

Richard III – a kingdom for my hearse

A dispute over what turned out to be the mortal remains of Richard III, who died at the Battle of Bosworth Field in 1485, which archaeologists had found under a car park in Leicester, was concluded by the judgment of the Queen’s Bench Divisional Court on 23 May.

In Regina (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (QB)  the court rejected a claim by the Plantagenet Alliance Ltd for judicial review of a decision by the Secretary of State to grant a licence under section 25 of the Burial Act 1857 for the disinterment of the bones and their subsequent reburial, on grounds including that there should have been some consultation of interested parties over the dead king’s final resting place. Pursuant to that licence, the royal skeleton will now be reburied in Leicester Cathedral.

Leave for judicial review was granted by Mr Justice Haddon- Cave [2013] EWHC B13 (Admin) in August last year notwithstanding the well publicised objection of the first defendant, the Secretary of State for Justice (aka Chris Grayling), to what he regards as “frivolous” claims for judicial review. The judge found there was a genuine public interest in the disinterred remains of an English king after 500 years and it was arguable that there should be a duty to consult widely as to how they should be reburied. The University of Leicester, whose archaeological team, inspired by meticulous work by the Richard III Society  (notably Ms Phillipa Langley), had found the remains, was added as a defendant; and the governing bodies of the cathedrals of Leicester and York were added as interested parties.

The judgment of the Divisional Court contains a detailed history of the king, his cadaver and this case, and is well worth reading. No doubt it will be the subject of discussion among academic historians as well as among lawyers.

There is a case comment from the UK Human Rights blog, entitled Richard III: fairness and public interest litigation.

There’s also this discussion on the Keep Calm Talk Law blog, Richard III – Finally Laid to Rest.

As Shakespeare said (about a different king, in Henry IV part II), “Uneasy lies the head that wears a crown.”

Whether or not the ghost of Richard is grateful for all this fuss, this Grateful Dead poster from the Easton School of Rock tribute page, in which he seems (ahistorically straight-backed) to be ensnared by the red roses of the victorious House of Lancaster, seemed weirdly appropriate.

Hate Crime

(Yes, well, don’t we all?) But when talking about the compound noun “hate crime”: should the law be extended? A consultation process by Law Commission has now closed and its final report was issued on 28 May.

Hate crime is defined as a crime motivated by hostility based on the victim’s personal characteristics including  (1) disability; (2) transgender identity; (3) race; (4) religion; and (5) sexual orientation. The law currently responds to hate crime by allowing alleged perpetrators to be charged with an aggravated form of certain types of offence under the Crime and Disorder Act 1998, by charging them with offences under the Public Order Act 1986, and by imposing enhanced sentences under sections 145-146 Criminal Justice Act 2003. Following the consultation the Commission recommended two reforms:

  1. New guidance from the Sentencing Council on the sentencing approach in hate crime cases; and
  2. Every time enhanced sentencing is applied, this should be recorded on the offender’s criminal record in the Police National Computer (PNC) so that the record will show the offence was aggravated by hostility, just as it would show a conviction for an aggravated offence.

The full consultation papers and reports are all available online via the Law Commission website here. For more details:  Link to a PDF of the report summary here.

From around the world…

Burma

A draft law on religious conversions should be scrapped, says Human Rights Watch. The draft law, published in the state-run media on 27 May 27 2014, would impose unlawful restrictions on Burmese citizens wishing to change their religion. It is generally assumed that the law is aimed at the Muslim minority.

Under the draft law, any Burmese citizen who plans to change religion must seek a series of permissions from local representatives of government departments, including the Ministries of Religion, Education, Immigration and Population, and Women’s Affairs, and wait 90 days for permission to be granted. Penalties for failing to obtain government permission to change one’s religion are not stated. Proselytizing, forcing someone to convert, or insulting another religion would become punishable by up to one year in prison.

“Burma’s government is stoking communal tensions by considering a draft law that will politicize religion and permit government intrusion on decisions of faith,” said Brad Adams, HRW’s Asia director. “Following more than two years of anti-Muslim violence, this law would put Muslims and other religious minorities in an even more precarious situation.”

Congo

The International Criminal Court has sentenced ex-Congolese militia leader Germain Katanga to 12 years in prison for aiding and abetting war crimes. He was behind the 2003 massacre of hundreds of villagers in the north-east of the Democratic Republic of Congo. Congolese government spokesman Lambert Mende said the sentence sent “a very positive signal to all criminal elements that are destabilising our country”.

Full story from the BBC. ICC gives Congo warlord Germain Katanga 12-year jail term

For furrther information, follow links via ICC website.

India

An Indian court has been asked to rule on whether a revered Hindu guru is dead or alive. According to his family, His Holiness Shri Ashutosh Maharaj, founder of the Divya Jyoti Jagrati Sansthan religious order, died in January. However, his disciples at his Ashram, who are keeping the body in a deep freezer, have refused to release it for cremation because they claim he is still alive.

Punjab Police initially confirmed his death, but the Punjab High Court later dismissed its status report, and local governmental officials said it was a spiritual matter and that the guru’s followers cannot be forced to believe he is dead.

Now his wife and son have filed a court application calling for an investigation into the circumstances of his death and for his body to be released for cremation.

Full story in the Daily Telegraph.

Iran

The Iranian government has executed a billionaire businessman at the heart of a £1.5bn state bank scam, according to The Times. Mahafarid Amir Khosravi, also known as Amir Mansour Aria, was hanged at Evin prison, north of the capital Tehran, after Iran’s supreme court upheld his death sentence. According to the Times report:

The trials raised questions about corruption at senior levels in Iran’s tightly controlled economy during the administration of the former President Mahmoud Ahmadinejad.

Khosravi’s lawyer, Gholam Ali Riahi, was quoted as saying that his client had been put to death without any notice.

He said: “I had not been informed about execution of my client. All the assets of my client are at the disposal of the prosecutor’s office.”

Unhappy about “Happy”

Also in Iran, AFP reported that earlier this month Iranian police arrested six youths for taking part in the viral sensation of singing and dancing to American R&B singer Pharell Williams’ mega-hit “Happy”. The singer’s video of his harmless upbeat ditty has been tributed all round the world, and a bunch of youngsters in Iran decided to do the same. In the “Happy We are from Tehran” clip, which was posted online, three young men and three unveiled women are shown dancing to the tune on the capital’s streets and rooftops. It’s all perfectly charming and delightful – so naturally the puritans want it banned.

There have been calls for the judiciary to drop the case against these happy young people and to end any further legal proceedings or harassment against them and their families. Authorities released them on bail on 21 May 2014, the day after authorities showed the suspects on television “confessing” and expressing remorse for their roles in the video.

According to Human Rights Watch, Iranian authorities have previously relied on various morality and cybercrimes laws to punish those engaged in activities considered immoral or prohibited under Sharia, or Islamic law. Sentences for violating these laws can include fines, imprisonment, and lashings.

Netherlands

The UK is by no means the only country whose justice system is threatened by legal aid cuts. Nine out of ten Dutch lawyers responded critically to a survey on their Government’s cuts to funding. According to a report in Global Legal Post, the head of lawyers association NOvA, Walter Hendriksen said that the cuts are the biggest worry for the legal system as 36 per cent of the population depends on legal aid. The country recently saw protests on the streets over the cuts. 

Pakistan

The High Court in Lahore was the scene of a particularly egregious example of an “honor killing”, when a pregnant woman, Farzana Parveen, was stoned to death by her own family. Her lawyer, Mustafa Kharal, said her father had filed an abduction case against her husband, Mohammad Iqbal, which the couple were contesting.

As the couple were making their way to the court, some 20 members of her family attacked them with sticks and bricks in broad daylight before a crowd of onlookers. Zia Awan, a prominent lawyer and human rights activist, described the incident as “shameful”.

“I have not heard of any such case in which a woman was stoned to death, and the most shameful and worrying thing is that this woman was killed outside a courthouse.”

Full report in The Independent. 

Sudan

A Sudanese woman who was sentenced to death for ‘apostasy’ after marrying a Christian man has given birth in prison.

Meriam Yahya Ibrahim, 27, is a doctor. Her father is a Muslim but she was raised by her mother as a Christian. She was arrested after a Muslim relative claimed her marriage to a US citizen was invalid, and thus adulterous, because he is a Christian. She has now been convicted of apostasy and adultery and sentenced to death after refusing to renounce her Christian faith during a four day ‘grace period’ while she was eight months pregnant. She has since given birth to a baby girl, while held in captivity.

The court in the Sudanese capital of Khartoum had also ordered that Ms Ibrahim be given 100 lashes for committing zena — meaning illegitimate sex in Arabic — for having sexual relations with a non-Muslim man. Her lawyers have lodged an appeal against the sentence. Meanwhile she is being held in captivity and was kept shackled by her legs even while giving birth. Foreign Office minister Mark Simmonds said:

“This barbaric sentence highlights the stark divide between the practices of the Sudanese courts and the country’s international human rights obligations … The Sudanese government must respect the right to freedom of religion or belief.

Sources: The Independent and the Guardian.

UPDATE: Although there have been reports that Meriam is to be freed, partly in response to the worldwide condemnation her case has aroused (though her husband, as a US citizen, complains the US Embassy have not stirred themselves into much in the way of action on their behalf) – the brief candle of hope has all but been snuffed out again with more gloomy reports, such as this from the Guardian, to the effect that she must await the decision of an appeal court. Her lawyer, Elshareef Ali Mohammed, said the announcement by a government spokesman was a political response to the international campaign. Ultimately it is a matter for the judiciary, whatever the government says, or indeed the Constitution (which guarantees freedom of religion).

Turkey

A recent government ban on the video-sharing site YouTube was unconstitutional and a violation of freedom of expression, ruled the country’s Constitutional Court on 29 May. According to a brief report in the New York Times,

Last month, the government removed a ban on Twitter a day after the court issued a similar ruling. YouTube was blocked in Turkey on March 27 after recordings from a secret meeting between Foreign Ministry officials detailing plans for possible military intervention against Syria were leaked to the site.

USA

In a rather extraordinary case, four rabbis have been indicted in a New Jersey federal court on charges of conspiring to kidnap and torture Jewish men to force them to grant religious divorces to their wives. According to the indictment, the ring was organized to force reluctant husbands to grant their wives a get, or a Jewish divorce, in exchange for fees running to tens of thousands of dollars. The ring operated between 2009 and 2013 and employed methods such as beating the victims and shocking them in their genitals with electric cattle prods, the indictment said.

The comments to the story in the Jewish Daily Forward were critical of the men’s actions, but also made the point that “the get has to go”. As one commentator put it:

The practice of needing a get goes back to ancient times, when women were the property of men. It has no place in today’s modern society, or in modern Jewish practice. The get has to go.

Finality … up to a point

A story in the New York Times raised serious questions about the certainty on which the rule of law is based, and an issue of some relevance to law reporters. Apparently, the US Supreme Court has been quietly revising its decisions – sometimes substantially – years after they were issued, thereby altering the law of the land without public notice. According to the NYT:

 the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Although revised versions are made available to some publishers, they are not universally available, even on the SC’s own website. In some cases, professors have been teaching law based on a subsequently revised ruling in which the relevant material no longer appear or has been altered.

This raises important questions about the reliability of raw law (unreported judgment transcripts, for example) on the internet. In the UK, the British and Irish Legal Information Institute (BAILII) on which the majority of publicly available judgment transcripts are freely accessible, a notice is attached to any judgment which has been substantively revised by the court. An example, indeed, is one of the judgments in the Wars of the Roses litigation discussed above, which is listed in the results with the words “Rev 1” in the title`.

Bailii results

See also the addendum at the end of this judgment in the case of Masri v Consolidated Contractors International [2008] EWCA Civ 303, as shown in BAILII, and included (as you’d expect) in the Law Report (Queen’s Bench) from ICLR:  [2009] QB 450, p 499. (With thanks to Justin Leslie for locating this.)

This is a subject to which we will be returning more fully in the blog.

Legal aid wars: OpCotton reels on

The ongoing saga of the battle of wills between criminal lawyers and the Ministry of Justice over legal aid fees payable for big complex fraud trials has now reached the foreign news media, in particular this report from the Wall Street Journal (U.K. Legal Brawl Puts Spotlight on Public-Defense Office).

The lawyers, including both QCs and experienced junior barristers, have refused to take a 30% pay cut for undertaking Very High Cost Cases (VHCC) and the Ministry of Justice, in order to salvage major fraud trials which would otherwise have collapsed, have resorted to resuscitating (and recruiting barristers to work for) a largely dormant Public Defender Service (PDS) – at potentially rather greater cost to the taxpayer than the sums saved by imposing the fee-cut. We covered the story in some detail in a post last week (now updated) entitled PDS, PDQ! Operation Cotton and Operation (saving the MOJ’s) Bacon.

There has also been a comprehensive review of the whole story in the Financial Times by David Allen Green, Three threads of Cotton – and the tangle that remains over legal aid.

The current state of play is that the Court of Appeal (in R v Crawley  [2014] EWCA Crim 1028) has lifted a stay on a major fraud trial arising out of the Operation Cotton investigation into a major land banking scam, partly on the basis that the development of the PDS will enable the defendants to be represented and so have the fair trial which the judge had considered impossible after all their lawyers returned their briefs because of the fee cut. The judgment ended with an urgent plea for the warring parties to “resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases”.

Lithman wlrCriminal Bar Association’s chairman, Nigel Lithman QC has responded in a message last Monday, including a vow not to co-operate with any expansion of the PDS as a rival to the independent criminal Bar:

Having accepted the assurances of the Lord Chancellor in good faith, the Criminal Bar does not regard the threat to expand the PDS either as the way forward, a “sensible resolution of the issues” or the sort of “effort by both sides” the Court of Appeal envisages in the concerns expressed above; that way will inflict a mortal wound on the future of the Criminal Bar and we cannot stand idly by and see that happen. These sentiments were agreed by the CBA Executive this week who resolved that any further expansion of the PDS, by stealth or contract, should be met by determined action on our part.”

Meanwhile, The Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association are arguing that the consultation process behind the government’s Transforming legal aid cuts programme was flawed and unlawful, and they are seeking judicial review of the decision. The CLSA has also published a national ‘protocol’ for the withdrawal of good will in both the Crown and Magistrates’ courts where (in the group’s words) areas were ‘starting to suffer serious delays due to unrepresented defendants clogging up the system. Full story: Legal Voice: Defence lawyers begin JR against MoJ and withdraw good will.

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