Weekly Notes: legal news from ICLR – 19 September 2014

This week’s collection of law and injustice from home and abroad includes human rights, legal aid, open justice and various forms of separatism, with stories from Scotland, China, Turkey, Iran, New Zealand and South Africa. And we’ll be updating them with more as things develop.

 

Legal Aid (civil) – Rights of Women protest outside RCJ

On Friday 19 September the High Court began to hear a legal challenge brought by the Public Law Project on behalf of Rights of Women against  the domestic violence gateways for family law legal aid.

To mark the hearing within, there was a well supported demonstration without – with encouragement to take “jelfies” (a self-portrait with the slogan “I am for Justice” ) – aiming to highlight the extent to which cuts to legal aid are preventing victims of domestic abuse from getting professional legal representation for family cases, even when it is clear there has been violence, or there is an ongoing risk of violence. The claim is being supported by the Law Society.

According to Emma Scott, Director of Rights of Women:

We know that nearly half of women affected by domestic violence do not have the required forms of evidence to apply for family law legal aid. As a result the majority of those women tell us that they took no legal action as a result, leaving them at risk of further violence and even death. This legal action is taken on behalf of those women in order to hold the government to account on their promise to continue to make family law legal aid available to victims of domestic violence.”

The problem with “required forms of evidence” is this. Many victims of domestic violence are unable or reluctant to obtain even a doctor’s letter or assessment from social services, let alone one of the court orders listed in the MOJ’s criteria for funding (listed here at p 6). For more on this, see Rights of Women legal aid leaflet. Unless they can get and produce one or more of the required pieces of evidence, they can’t get funding for legal aid.

But it’s worth pointing out, perhaps, that without such evidence, it is hard to know how the court is going to be able to make an order even if the women do get legal aid. It is likely to depend on whose evidence, that of the alleged victim, or that of the alleged perpetrator, is believed. Is that something the legal aid authorities should be assessing, or should they provide public money so that it can be properly assessed by the courts? This is one of the issues the High Court will have to decide in this Judicial Review claim, when considering the reasonableness of the MOJ policy.

See also: Gazette, Bid to save legal aid for domestic violence victims

UPDATE: permission for judicial review was granted, according to Family Law Week (with more analysis of the case).

Domestic violence sadly never goes away, but from time to time it rears its ugly head in the news.

In America, a debate has been raging about the response of the National Football League to incidents of domestic violence involving top players. In one case, just this week, the Arizona Cardinals running back Jonathan Dwyer head-butted his wife and broke her nose after she refused his sexual advances, then punched her in the face the next day. In another, Baltimore Ravens running back Ray Rice knocked out his then-fiancee in an Atlantic City, New Jersey, elevator. The incident gained traction when CCTV footage from within the lift was published by celebrity magazine, Closer. This was the then subject of a recent Channel 4 News report, which included the image below, a viral photoshopped image that persuaded advertisers to withdraw their support for NFL. The point is that until the money was threatened, NFL barely shrugged their padded shoulders over the incident. It’s hard to know whether the MOJ can likewise be shamed into relaxing the stringency of the legal aid gateways for domestic violence, though to be fair the cases are hardly in the same, er, league.

 

Legal Aid (criminal) – Cuts decision quashed

Following a claim for judicial review brought by the London Criminal Courts Solicitors Association and Criminal Law Solicitors Association, the decision of the Lord Chancellor and Secretary of State for Justice, Christopher Grayling, to cut the number of Duty Provider Work contracts for solicitors from 1600 to 525 has been quashed.

Giving judgment on Friday, Mr Justice Burnett [2014] EWHC 3020 (Admin) granted permission for the claim, and held that the complained of failure to disclose two reports, on which the Lord Chancellor had relied, to interested parties, “was so unfair as to result in illegality”. It followed that  “The decision of 27 February 2014 that 525 Duty Provider Work contracts would be available under the new arrangements being put in place for criminal legal aid will be quashed.”

For more news and comments, see

• Guardian, Plans to cut criminal legal aid in doubt after court ruling
• Francis FitzGibbon QC on the Nothing Like the Sun blog, It Doesn’t Matter What You Say, We’ve Made Our Minds Up (which suggests that Grayling was trying to shift responsibility for this fiasco onto a civil servant).

FALLOUT – The MOJ press office responded to this setback with a tweeted announcement that took spin to revolutionary lengths, declaring

JR not wholly successful. Challenge to fee cut failed. Judgment raises some technical issues on consultation process which we’re considering

The response on Twitter was entertaining, to say the least. The best of it collected by @DavidAllenGreen.

 

China / Human rights

The Trial  has begun (on 17 September) of the of prominent Uighur scholar, Ilham Tohti, on charges of “separatism”. He is an economics professor at Beijing’s Minzu University of China and the founder of a website focusing on Uighur issues, UighurOnline.

According to Human Rights Watch,

Tohti was taken into police custody in Beijing on January 15. Xinjiang police quickly transferred him to Urumqi, capital of the autonomous region, where he was formally arrested for “separatism” on February 25. He faces between 10 years to life in prison, according to his lawyers.

The report also notes:

Tohti’s case has already been marked by ill-treatment in detention and procedural violations. He was denied access to his lawyers for over five months, from January to June. Under China’s Criminal Procedural Law, suspects charged with terrorism, major corruption, and state security charges can be denied access to counsel, but this provision violates the right to a fair trial. In meetings with lawyers since June, Tohti has described being denied food for 10 days and twice being shackled as punishment for at least a month, contrary to Chinese regulations governing detention centers and the use of restraints.

His trial  is taking place at Urumqi Intermediate People’s Court in Urumqi, capital of Xinjiang Uighur Autonomous Region  (XUAR). Foreign reporters and diplomats are not allowed into the court. The trial only serves to deepen perceptions of discrimination against Uighurs, Human Rights Watch said.

Further reports in New York Times and Guardian.

 

Iran / Lashings of Happiness

Back in May, six youths were arrested by Iranian police after taking part in the viral sensation of singing and dancing to American R&B singer Pharell Williams’ mega-hit “Happy” (see Weekly Notes – 30 May 2014).  Now they have been given sentences, suspended for now, of imprisonment and 90 lashes each.

In the “Happy We are from Tehran” video clip, which was posted online, three young men and three unveiled women are shown dancing to the catchy upbeat tune on the capital’s streets and rooftops. At the time, their arrest and trial (following public “confessions” on TV) caused as much of a sensation – but not in a nice way – as the original video clip; for it seemed to fly in the face of the openness and modernisation programme of newly elected President Hassan Rouhani.

A Tehran court found them guilty of producing a “vulgar” video and conducting “illicit relations”. They will now serve their sentences only if they are found guilty of another crime in the next three years.

However, it seems Rouhani himself was relatively sympathetic to the yongsters, posting a tweet on his official Twitter account saying “Happiness is our people’s right. We shouldn’t be too hard on behaviours caused by joy.”

Full story: The Guardian.

 

Turkey / Freedom of the press

An unrelated picture published alongside a journalist’s article has prompted an unfortunate overreaction from the Turkish authorities. 

The article in question was in the New York Times, by its Turkish correspondent, Ceylan Yeginsu, was about how ISIS Draws a Steady Stream of Recruits From Turkey. It happened to be accompanied by a picture, chosen by one of the newspaper’s picture researchers, of Turkish President Recep Tayyip Erdoğan and Prime Minister Ahmet Davutoğlu leaving a mosque, which was completely unrelated to the story.

President Erdoğan strongly dismissed what he took to be New York Times’ misguided allegations and he said that the attempts to depict Turkey as a supporter of ISIS iwas a cowardly act as Turkey does not and would never buy oil from ISIS.

NYT issued a correction, saying the inclusion of the photo had been an error. Nevertheless, there has been considerable hostility to the article, and to its author Ceylan Yeginsu, from within Turkey. According to a NYT press release:

Despite this published correction, some Turkish authorities and media outlets have mounted a coordinated campaign to intimidate and to impugn the motives of the reporter who wrote the story. She has been sent thousands of messages that threaten her safety. It is unacceptable for one of our journalists to be targeted in this way.

 

New Zealand / Media law

 Are bloggers journalists? If so, can they protect their sources? 

These were the questions facing a judge in the High Court of New Zealand, whose judgment in a libel action, Slater v Blomfield [2014] NZHC 2221, was released on 12 September. The case has been analysed by Jane Johnston, Associate Professor Journalism and Public Relations at Bond University, in The Conversation:Are bloggers ‘journalists’? New Zealand’s High Court says yes .

The case was concerned with section 68 of the (New Zealand) Evidence Act 2006, which provides for the protection of journalistic sources. Under subsection (1), if a journalist has promised not to disclose an informant’s identiy, neither the journalist nor his or her employer can be compelled to reveal it in civil or criminal proceedings. But by subsection (2), that protection is subject to the power of a High Court judge to decide that public interest in the disclosure of evidence in the particular proceedings outweighs the personal interests of the informant or the general public interest in the ability of the news media to access and communicate facts of public interest.

Section 68 is what is known as a “shield law”. But as Johnston notes, such laws are in most jurisdictions subject to a power to order disclosure in the interests of justice.

In the UK, the protection of journalistic sources stems from the common law, a point recently discussed (in passsing) in paragraph 48 of the Laws LJ’s judgment in R (Miranda) v Secretary of State for the Home Department (Liberty intervening) [2014] EWHC 255 (Admin) (free); [2014] 1 WLR 3140 (£), by reference to cases such as Ashworth Hospital Authority v MGN Ltd   [2001]  1   WLR  515 and the recognition of the principle by the European Court of Human Rights in  Financial Times v United Kingdom (2010)  50   EHRR  1153.

The first question in the New Zealand case was whether Cameron Slater, who ran and administered the Whale Oil blog, and who was being sued for defamation by Matthew Blomfield, was a journalist entitled to benefit from the protection of section 68(1) of the Evidence Act. As reported by Johnston, Slater (appearing in person) had argued:

“The rules do not say you have to be this massive corporate. My website has broken numerous stories… I deal with informants and sources and people who want to provide confidential information on a daily basis as reported in the New Zealand Herald”.

The judge, Justice Raynor Asher, agreed. He found, inter alia:

[140] The definition of a journalist in s 68(1) of the Evidence Act 2006 can include a blogger. The definition does not impose quality requirements and does not require the dissemination of news to be in a particular format. The focus is on the medium disseminating new or recent information of public interest.

[142] The Whale Oil website was a news medium in that it was disseminating new and recent stories of public interest. While its style and focus can be criticised, it was breaking news to a significant section of the New Zealand public.

[145] Therefore, Mr Slater was a journalist and Whale Oil a news medium, and he could invoke the protection in s 68(1).

However, the judge went on to hold that, in the circumstances, the exception under subsection (2) should apply, for reasons including:

[149] … (c) There is no wider public interest arising from any public importance of the issues or the persons involved, because (i) this arises from a private dispute, and a requirement to disclose is unlikely to have a chilling effect on other whistleblowers and informants who should not be discouraged from going to the media; (ii) the disclosures are extreme and vindictive and have the hallmarks of a private feud; (iii) the documents disclosed by the sources by providing Mr Blomfield’s hard-drive and other documents appear to have been obtained illegitimately.

[150] On balance the public interest in disclosure outweighs any adverse effects on the informants and the ability of the media to freely receive information and access sources.

Johnston goes on to discuss, as did the judge, equivalent provisions in Australian, United States and Canadian laws, and in one passage, by reference to the Contempt of Court Act 1981, that of the UK. The law on disclosure of sources is pretty well developed. The more interesting question is its application to bloggers and, by extension, one must presume, micro-bloggers such as those who break news stories via Twitter  — though a tweet can really only function journalistically if it is one of a stream or series, of if it provides a link to a more substantive article.

 

Scotland / Legal Independence

The big story this week has been the answer to a simple question: Should Scotland be an independent country?

A different question has already been answered: Should Scotland have a different legal system? It already has.

It was never fused or merged or aligned with that of England and Wales, a common law system exported to and still shared by many other (largely Anglophone) jurisdictions, at various removes around the globe, from Canada, via the USA and the Caribbean, through Nigeria, Uganda, South Africa, India, Singapore and Hong Kong, to Australia and New Zealand.

By no means a complete list. And there are places like Mauritius where the common law miscegenates with a codified Civil Law system.

Something not unlike that has happened in Scotland, where the legal system has a completely different juridical basis, involving a mixture of customary, Roman and common law elements, with a modern admixture of European dilution (think of it as the Perrier in your blended whisky). Scots law recognises four sources of law: legislation, legal precedent, specific academic writings and custom.

However, the presence of Scottish judges in our combined Supreme Court may be helping to diffuse the distinction. And it’s worth recalling that one of the most important cases on the law of tort, Donoghue v Stevenson [1932] AC 562, though decided in the House of Lords, originated in Scotland. (For more on this historic case: The Snail and the Ginger Beer (ICLR Annual Lecture transcript).

This and three other Scottish cases which have influenced English law are discussed by Melanie Davidson in her post on the Justis blog, Four Times When Scottish Cases Have Changed The English Common Law.

As for legislation, there is still a lot of statute law which applies to Scotland as it does to England, Wales and Northern Ireland, but bear in mind when referring to it that for any particular instrument there may be different geographical extents, territorial applications and commencement dates. This is one of the filters you can apply on the excellent (but still developing) Legislation.gov website.

And the answer to that first question, in case you have been marooned without wifi or radio on a desert island or upriver in a tropical jungle, was, by 55%, NO.

Unanswered question: do they use gavels (see pict) in Scotland?

 

South Africa / Open Justice

Following last week’s verdict of culpable homicide (see Weekly Notes – 12 September) in the long-running Oscar Pistorius trial in South Africa, there was an interesting discussion on BBC Sunday Morning about the virtues and vices of publicly broadcasting a criminal trial.

The facts that Oscar Pistorius is a famous (disabled) athlete and that the victim, Reeva Steenkamp, was a celebrated beauty played some part, obviously, in the appeal of the case to public viewing, or prurience; but the point of the discussion was whether it aided public understanding of the trial process. In that regard, the extensiveness of the coverage was important.

The problem with such coverage as has been vouchsafed in our own jurisdiction (I do not include Scotland, which has been more liberal in this regard) is that, apart from the Supreme Court, it has hitherto been confined to a few sentencing remarks and some appeal hearings. In the latter case, so much has been taken for granted, or taken as read, that openness has not been matched by transparency or clarity of understanding. For more on this, see our earlier post, on Cameras in Court: The Lex Factor.

Issues of openness and transparency, particularly in regard to family justice, are the subject of ongoing discussion on the Transparency Project website, to which the present author is a contributor. The point is that openness, per se, is not enough; transparency requires, among other things, that judges make their judgments intelligible to the parties themselves, not just their lawyers. This is especially important where one or more parties don’t have lawyers. A really good example of a judgment designed to be read by someone other than a clever lawyer is this one, by District Judge Hickman, in Milton Keynes Council v A [2014] EWFC B102 ( hat tip to @suesspiciousmin ).

I think we owe something of the same duty in regard to law reports. They must be concise and accurate, yes; but they don’t have to be obscurely couched in technical language, where simpler terms are available. However, law reports must reflect the content on which they are based, namely the judgment(s) of the court. It is here that judges, particularly in those areas of law where ordinary lay people are engaged in the case, such as family law, housing, judicial review etc, need to bear in mind that the readership of their ruminations is not confined to clever chaps and chapesses with first class degrees from top universities.

Family barrister Lucy Reed comments on this in her latest blog for Transparency Project: Accessible judgments.

As does family law lecturer  Julie Doughty in her blog, Is ‘transparency’ the same as ‘openness’?

 

Who’s Afraid of Fiona Woolf?

No one, actually. They just question her suitability to chair an inquiry.
Fiona Woolf CBE, JP, currently Lord Mayor of the City of London, has been appointed (as reported in Weekly Notes – 5 September ) to chair the inquiry into historic child abuse. The challenge to her suitability rests, mainly, on the fact that she knows Lord (Leon) Brittan, who may well be a respondent to the inquiry, or in some other way subject to its scrutiny, and perhaps criticism. Can her knowledge of Brittan not fail to arouse in some minds the perception of apparent bias, however rigorously and vigorously Mrs Woolf should pursue the inquiry?

There has been some fairly indefatigable discussion of the issues around this inquiry by David Burrows on his DB Family Law blog, here, and here.

UPDATE: Fiona Woolf faces calls to declare links with Leon Brittan fully

 

Parish news

The Bar Council’s 2013/14 annual report is out. Glossy and beautifully illustrated, it sets out the key strategic aims for 2013/14, and reports on its progress in achieving its objectives. These aims were:

• Develop and promote the specialist advocacy and advisory services of barristers and the values which underpin the Bar at home and overseas. Enhance quality and frequency of communications within the organisation, with the profession and external stakeholders.
• Promote the Bar’s views on matters affecting the profession and the administration of justice, including the future of the publicly funded Bar, law reform and the maintenance of the Rule of Law, with the government, relevant EU institutions, professional bodies, international Bar associations and other organisations with common interests.
• Enhance the existence and unity of the Bar, employed and self–employed, privately or publicly funded, in the face of external change, by effective liaison with all stakeholders, particularly the Inns of Court.
• Provide services to individual members of the Bar, Specialist Bar Associations (SBAs) and Circuits, including fees collection, publications and conferences, as well as access to appropriate products and services at discounted prices through the Member Services Department.
• Provide guidance to barristers, including on ethical issues, equality and diversity, practice management and the development and use of information technology.
• Develop and provide high quality training and training materials for all barristers to equip them to respond to changes in legal practice.
• Ensure that the profession, the public and others have confidence in the Bar Council’s representative organisation and in its governance. Identify performance standards, monitor progress and report transparently.
• Value our staff and raise our resources responsibly. Deploy resources and staff efficiently and effectively and account for our pending
  decisions
• In its role as the Approved Regulator, support the BSB in providing effective, independent regulation of the profession.
• Work for the efficient and cost–effective administration of justice and ensure access to justice on terms that endeavour to be fair both to the public and to practitioners.
• Promote the highest standards of practice and ethical behaviour.
• Encourage access to, and diversity within, the profession, so that it is open to all of ability, regardless of their background.

You can read the PDF version of the report here.

 

That’s it for now. Enjoy the rest of the weekend and look out for updates early next week!