Weekly Notes: legal news from ICLR – 31 October 2014

Posted on 31st Oct 2014 in Weekly Notes

In this week’s selection of legal stories and “snippets” from home and abroad, the Home Secretary loses a chair, the Justice Secretary loses a vote, the Bar gains another training programme and human rights protection is linked to written-constitutionalism via a Tory think tank discussion. And despite its being Halloween, some ghoulish bad guys get their just deserts overseas.

 

Other recent items of interest:

 

House of Lords slaps down JR restrictions

Lord Chancellor’s attempts to limit access to judicial review voted down by peers

After five hours of debate in the House of Lords, on 27 October, the restrictions on the bringing of judicial review claims proposed by the Lord Chancellor and Secretary of State for Justice, Christopher Grayling, in Part 4 of the Criminal Justice and Courts Bill were roundly defeated by a majority of peers drawn from parties across the political spectrum who supported amendments led by the cross-bench peer (and peerless advocate) Lord Pannick QC.

The defeat for the government came after a campaign by the Bar Council, Law Society and Chartered Institute of Legal Executives and a host of charities, calling for the restrictions to be dropped and seeking to dispel certain “myths” about judicial review (see image).

JR image

According to a briefing paper by the Public Law Project:

The proposals in the Bill, if enacted, will impede access to the courts. Whilst they purport to address unmeritorious claims, red tape, and economic inefficiency, they will in fact have little, if any, impact on these alleged problems. …

Their effect:

will be to suppress legitimate challenge, and insulate unlawful executive action from judicial scrutiny. What is more, these proposals are only the latest in a series which have sought to weaken and dilute the constitutional protection provided by judicial review.

These concerns were echoed in the debate in the Lords. In the debate Liberal Democrat peer, Lord Marks of Henley-on-Thames said:

“Part 4 is a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the courts and thus, frankly, as an assault on the rule of law. This part of the Bill aims to choke off challenges to unlawful action by the Executive. I fear that, if enacted, it will achieve precisely that.”

According to a report in the Solicitors Journal:

Peers voted by 219 to 186, a majority of 33, in favour of an amendment which reversed the government’s plans to create a presumption that those applying to intervene in a judicial review will have to pay their own costs.

Peers also voted by 247 to 181, a majority of 66, to ensure judges retained their discretion over whether to hear judicial review applications. The justice secretary lost yet another vote of 228 to 195, again a majority of 33, over the issue of requiring applicants for judicial review to provide information on the financing of the application.

Shadow justice secretary Sadiq Khan MP said:

“This is a humiliating slap down for the government.”

The Bill will now go back to the Commons for further debate.

 

Historic CSA Inquiry – May could not keep Woolf from the door

Fiona Woolf steps down as inquiry chairperson citing lack of victim support

Puns aside, this inquiry is historic not just in the sense that the child sex abuse being investigated took place year and often decades ago, but also because it has now lost its second chairperson – Mrs Fiona Woolf, who resigned earlier today. Her departure must have disappointed the Home Secretary, Theresa May, who appointed her last month after losing her initial choice of chair, Baroness Butler-Sloss, who also resigned. In both cases, there had been allegations that the person appointed was too close to persons whose conduct while in office might reasonably be the subject of investigation and criticism in the course of the inquiry. Full story (on this blog): CSA Inquiry – will chair be shown the door?

Mrs Woolf resigned, in the end, not because of her alleged links (via a small number of shared dinner parties and an address in the same street) to Lord Brittan, a former Home Secretary, but because, as she put it,

It’s become clear that the inquiry as chaired by me will not have widespread victim support. 

There is a full report of today’s developments on the Channel 4 News website. See also The Independent.

The question now is who will take her place. There was speculation on Twitter that a foreign figure might be invited, someone from Ireland say, or even New Zealand. At any rate, it looks likely that whoever is chosen will have been vetted (or not vetoed) by the House of Commons Select Committee, chaired by Keith Vaz MP, who grilled Mrs Woolf last week. In my view, victim organisations and/or legal representatives should also be given a say. Since this is an inquiry, it should be conducted in an open, accessible, consultative way.

In fact, there has been a suggestion that it should be widened into a Royal Commission: see this post by Andrew Watt, who asks: Is a Royal Commission the solution to conducting a credible child abuse inquiry? 

 

Tory Human Rights and constitutionalism

An interesting brace of blog posts from Head of Legal (per @carlgardner) reporting on a meeting of the Tory think-tank Politeia on 28 October, which gives some insight into the gestation of the idea of a British Bill of Rights proposal.

The meeting heard a lecture by Dinah Rose QC on “What’s the Point of the Human Rights Act?

In the discussion following the lecture, Rose described the Tory plans to replace the Human Rights Act 1998 with a Bill of Rights as “rubbish” and “damn stupid”. The MP David Davis said he had started the argument at a meeting with David Cameron and Dominic Grieve in 2005 or 6, when Davis was shadow Home Secretary. Davis saw the idea of the Bill of Rights as the building block for a British written constitution. This second post is entitled: David Davis: Cameron in opposition “really wanted to leave the Convention”.

Both posts are worth reading, and there is more coverage of Dinah Rose QC’s speech on John van der Luit-Drummond’s report in Solicitors Journal.

 

Embedding does not breach copyright

The European Court of Justice ruled this week that embedding copyrighted videos on another site without the owner’s permission does not of itself infringe the copyright in the embedded video.

According to TorrentFreak (“where news and filesharing collide”):

The case in question was referred to EU’s Court of Justice by a German court. It deals with a dispute between the water filtering company BestWater International and two men who work as independent commercial agents for a competitor.

Bestwater accused the men of embedding one of their promotional videos, which was available on YouTube without the company’s permission. The video was embedded on the personal website of the two through a frame, as is usual with YouTube videos.

While EU law is clear on most piracy issues, the copyright directive says very little about embedding copyrighted works. The Court of Justice, however, now argues that embedding is not copyright infringement.

The full decision has yet to be published officially by the Court’s website but TorrentFreak has received a copy (in German) from the defendants’ lawyer Dr. Bernhard Knies, who describes it as a landmark victory.

The key point in the ruling is that the embedding “is not a breach of creator’s copyrights under European law, as long as it’s not altered or communicated to a new public”.In the current case, the video was already available on YouTube so embedding it is not seen as a new communication. The Court based its verdict on an earlier decision in Svensson v Retriever Sverige AB  (Case C‑466/12) where it found that hyperlinking to a previously published work is not copyright infringement.

Compare this with the news that the Spanish parliament has now passed the so-called Google-tax law which requires news aggregators to pay newspapers and media organisations for “snippets” of copyright content quoted in links and stories. (We do this all the time here, but always with the intention of flagging up and enabling the reader to link back to the original (main) story.) 

According to the Guardian (typical example of a snippet follows):

The new intellectual property law, known popularly as the “Google Tax” or by its initials LPI, requires services which post links and excerpts of news articles to pay a fee to the organisation representing Spanish newspapers, the Association of Editors of Spanish Dailies (known by its Spanish-language abbreviation AEDE). Failure to pay up can lead to a fine of up to €600,000.

 

 

Parish News

Bar Standards Board launches new training programme that “aims to reshape legal education and training for future generations of barristers”.

Entitled “Future Bar Training”, the “ambitious’ programme sets out a string of high level aims, including:

  • focusing training regulation on what is demonstrably required for professional practice;
  • ensuring that the regulatory structure does not stand in the way of candidates for the Bar from the fullest range of backgrounds;
  • aligning the regulation of education and training with our wider targeted and proportionate approach; and
  • maintaining standards for authorisation to practise as a barrister in a changing market.

This programme, according to the BSB, “is underpinned by a fully consultative approach”. However, Steven Vaughan, writing a guest post on Richard Moorhead’s Lawyer Watch blog, said there was no BSB consultation open and the narrowness of the call of participation was disappointing. It did not seem to want to engage with or consult legal academics or members of other professions.

 

Law in the world

Argentina

Former minister and police chief convicted of torture 

Jaime Lamont Smart, who was Argentina’s interior minister at the time of the military dictatorship in the 1970s, and Miguel Etchecolatz, an ex-police chief in Buenos Aires, were among 15 people found guilty of presiding over a death camp, known as La Cancha, in the city of La Plata, where kidnapped dissidents were murdered.

According to The Times:

Judges in La Plata heard that 128 prisoners were tortured and murdered there by the military dictatorship that ran the country from 1976 to 1983. The prison was named after a cartoon witch who snatched small children. … The jail was set up in an old radio station, where witnesses told the court that they were held hooded and naked and subjected to electric shocks.

The report adds:

Around 250 former officials have been convicted so far in what was called Argentina’s Dirty War, including the former junta leader Jorge Rafael Videla, a general who overthrew president Isabel Peron in 1976 and who died in jail last year.

Bangladesh

Protests over sentencing to death of “genocidal Islamist”

Militants called a strike yesterday after Motiur Rahman Nizami, the 71 -year-old chief of the Jamaat-e-Islaami party, Bangladesh’s leading Islamist party, was sentenced by a court in Dhaka to hang for crimes committed more than 40 years ago.

According to the Times report:

He was sentenced for crimes against humanity, including rape, torture and genocide, that took place during the country’s bloody war of independence from Pakistan in 1971. Mr Nizami, who had served as a minister in an earlier government that served from 2001-2006, was accused of overseeing a genocidal campaign of killings and torture against Bangladeshi nationalists and of personally killing or ordering the deaths of 600 people.

The report added:

Mr Nizami and his party have repeatedly denied the allegations which they claim are false. If executed, he will become the second Jamaat-e-Islami leader to be hanged for his crimes.

 

Burma

Constitutional reform may remove bar on opposition leader being president

Burma’s parliament is to consider amending the rules in the constitution which currently bar Aung San Suu Kyi, the leader of the opposition party, the National League for Democracy (NLD) from becoming president if she wins an election due to take place next year.

According to the Guardian report:

The move to moot constitutional reform was discussed during unprecedented talks between President Thein Sein and his political rivals, including Suu Kyi, as well as top army brass and election officials.

The report also said:

The NLD has focused on altering a provision in the constitution that ensures the military in the former junta-ruled nation has a veto on any amendment to the charter. It believes that revising the clause will open the way for further changes to other constitutional provisions, including the ring-fenced proportion of soldiers in parliament and the effective bar on Suu Kyi leading the country.

 

China

Legal reforms will not introduce democracy 

China has embarked on a process of legal reforms to improve its record in dealing with corruption and financial crime. But there is no suggestion (bearing in mind the events in Hong Kong) that Beijing plans to permit any deviation from a one-party state with full control over the courts.

According to Reuters,

China’s Communist Party pledged on Tuesday to speed up legislation to fight corruption and make it tougher for officials to exert control over the judiciary, even as it stressed full (state) control over the courts.

The party said it would “prevent extorting confessions by torture” and prevent miscarriages of justice with a “timely correction mechanism” following a series of corruption investigations involving torture that have outraged the public.

The plan to prevent forced confessions, which had been flagged last year, is aimed at preventing abuses under the party’s anti-corruption watchdog, the Central Commission for Discipline Inspection.

The party also said it would promote pilot programs aimed at judicial independence and the separation of powers. This sounds good, but respect for the rule of law must begin at the top, and be practised at all levels. As Reuters points out, “Laws are often not enforced and can be abused by the police.” The proof of the changes will be when ordinary citizens feel their voice is heard and their grievances answered. That’s harder to achieve when the accountability which democracy brings is not provided for.

 

Colombia / Ireland

Lawyers urge government to turn down trade deal with Colombia

A group of Irish solicitors and barristers are to ask the Government to delay ratifying an EU trade deal with Colombia because of continued violence against the country’s lawyers and judges, according to the Irish Times.

A wide-ranging free trade deal between Europe and Colombia has been ratified by every EU country except Ireland. A group of Irish barristers and solicitors are urging the government to delay ratification as a way of exerting some pressure on Colombia to improve the enforcement of his human rights laws and better protect lawyers and the judiciary in the country. The lawyers are members of The Colombian Caravana, a 70-strong international team of lawyers and judges who visited the south American country this summer to investigate violence against human rights lawyers at the hands of armed groups.

Colombia is a hugely dangerous place to practise law, particularly in the area of human rights. Since 1991 more than 400 lawyers have been murdered, the equivalent of one a month. In 2013 alone 15 were killed. As quoted in the Irish Times report:

“We don’t say that lawyers have a better right to protection than anyone else in Colombia,” said [the leader of the lawyers’ delegation, Sean T] O’Reilly, a Dundalk solicitor. “What we say is that if lawyers are targeted and not protected you get a disproportionate effect on the community because the poor can’t go to anyone else.”

Judges are not immune either. Dozens have been murdered over the years after presiding over cases against paramilitaries and landowners.

 

Egypt

New law extending reach of military courts

Egypt passed a new law last Monday giving the Armed Forces more authority to protect public and state facilities and broadening the jurisdiction of Egypt’s military courts.

According to a report in The Times, 

Under the new legislation anyone accused of damaging state infrastructure such as roads, bridges and electricity pylons can face a military court, known for issuing harsh judgments, in trials that often bar defendants from legal representation.

Meanwhile the heads of 17 state and private newspapers announced a “unified media strategy”, under which they will not publish articles critical of the country’s police, military and judiciary, to stop the authorities being undermined.

Egyptian security forces have been fighting a rising insurgency anchored in the restive Sinai Peninsula that escalated after the Muslim Brotherhood president Mohamed Morsi was toppled in July last year. More than 500 members of the security forces have been killed since the coup.

Mada Masr quotes Diana al-Tahawy, director of the Criminal Justice Unit at the Egyptian Initiative for Personal Rights (EIPR), as saying that the new law is “disastrous,” and will expand the jurisdiction of military courts to try civilians.

If a civilian has an altercation with a military officer, or is accused of attacking military installations, they are brought before military courts, she explained. “The new law expands this to include all public facilities that the military considers ‘vital’, which is quite broad.”

Tahawy asserted that the new law contradicts Article 204 in the constitution, which limits the trial of civilians in military courts.

“The concern is that due process, which has already been compromised by regular courts, will come under greater threat,” Tahawy said, explaining that military prosecutors and judges are appointed by the Ministry of Defense and are not considered to be civilian.

 

Panama / USA

Court rejects former dictator’s claim for damage to reputation from video game

The Superior Court of California has thrown out a claim by Manuel Noriega that his unflattering depiction as a character in the computer game Call of Duty: Black Ops II, published by the defendant Activision Blizzard, has caused him actionable damage to his reputation.

In the game, according to The Times report:

He shoots members of the Panamanian army at random, helps the CIA to capture a Nicaraguan drug lord and then turns on his allies. His adversaries, meanwhile, insult him as “a piece of s***” and “old pineapple face”.

Nevertheless, the court held that

Activision’s evidence showed “conclusively” that Noriega was a “notorious public figure, perhaps one of the more notable historical figures of the 1980s”. The former dictator’s rights, the court ruled, did not outweigh the protection of free speech afforded by the first amendment.

If this kind of thing really hurts, it could set an interesting (factual) precedent. The universal infamy of being caricatured in a popular video game may prove a more effective deterrent for tyrannical dictators and genocidal warlords than a call to appear before the International Criminal Court or a War Crimes Tribunal.

 

United States of America

Courthouse in lockdown after shooting

The American Bar Association journal reported this week that two suspects were being held after a shooting at a North Carolina courthouse. The shots were fired outside Nash County Courthouse in Nashville, North Carolina, wounding two people.The courthouse was placed on lockdown after the shooting and was closed for the day. Nearby schools and the county administration building were also placed on lockdown immediately after the shooting, and nearby roads were blocked.

 

And finally…

A humorous look at Homer J nodding, via the Queen’s Counsel cartoon by Alex Williams:

Nap Time

 

Have a great weekend!