Operation Cotton: the legal profession v the executive

Scott Crawley and seven others were accused last year of committing fraud by the Financial Conduct Authority (FCA). It is alleged that their companies, Plott UK Ltd, European Property Investments Ltd and Stirling Alexander Ltd, received in excess of £5m from investors in a series of land and property scams between 2008 and 2011. Called Operation Cotton, the men were arrested, and charged with various counts of fraud

 

It was when the eight men were committed to trial that the problems with Operation Cotton really started. Fraud (despite being supposedly simplified by the 2006 Fraud Act) is an inherently complicated area of criminal law. Fraud cases are rarely (if ever) handled by only skilled and specialist barristers, due to the complexity of the crimes, and how difficult it can be to get a jury to understand the facts of the case, let alone come to a coherent opinion about the case.

 

The prosecution for such cases is considered a “Very High Cost Case” (VHCC), which requires special funding from legal aid to provide the defence with adequate and specialist lawyers. VHCC’s are very lengthy, time consuming and complex criminal proceedings, and cover such areas as fraud, drug trafficking, and terrorism. VHCC’s are also very costly. According to official figures, in 2012- 13, £600m was spent on legal aid for criminal cases for around 128,000 defendants. Nearly 10% of that funding was spent on just 20 VHCC’s. Although a small fraction of the cases heard by judges- they are easily the most expensive cases.

 

Under recent cuts and alterations to public legal funding, VHCC’s were a prime target due to their cost. As such, barristers publicly funded to take on VHCC’s were paid up to 30% under the new rules (a 30% cut was actually quite generous, given that in many areas legal aid all but disappeared). However, in protests at the cuts to both VHCC funding, and to the Criminal bar overall, not a single barrister signed up to the new scheme.

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Solicitors in Operation Cotton approached 70 barristers’ chambers- in vain. Turning to a special governmental team of lawyers, the Public Defender Service (PDS), the solicitors again drew a blank. The subsequent Southwark Crown Court proceedings earlier this year were rather bizarre. The prosecution was ready to prosecute, the witnesses were ready to testify, the evidence was all gathered- but the defence had no defence. Despite their being a “complex and substantial case” against the accused fraudsters, over 46,000 pages of evidence, and nearly a million lines of spreadsheet data- the defence still had no defence.

 

In a dramatic twist to the proceedings, Alex Cameron QC (brother to the Prime Minister), taking the case to throw out the case pro bono, argued before the judge that the interests of justice could not be served as the defendants did not have adequate defence. In a democracy, and a part of the principles and ethics underpinning the UK legal system is the concept that those accused of a crime have the right to an adequate defence in court. Without adequate defence (however that is interpreted), justice cannot be done.

 

Forced to apply such a ruling, Judge Anthony Leonard QC reluctantly threw out the case. Whilst acknowledging the efforts made to secure adequate legal representation for the defence, Judge Leonard stated that the PDS was “not in a position to provide sufficient representation.” In his ruling, Judge Leonard was “compelled to conclude that, to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court.” Furthermore, the judge found that there was “no realistic prospect” of securing a sufficiently expert barrister to take on the case before early 2015- at which point it would be unjust for the prosecution to continue.

 

Although a victory for the due process of the law, it was a hollow victory, The CPS and FCA appealed the dismissal of the case. Heard a few weeks later, the stakes were very high in the Court of Appeal. Judge Sir Brian Levenson, the head of the three judge hearing, had the unenviable task of balancing the needs justice to be done, the needs of the two governmental agencies represented, and the opposing concerns of the legal profession, and the inherent right of fair representation. An unenviable task; but Sir Brian rose to the challenge admirably.

 

In his succinct and fairly critical verdict, he overturned Mr Justice Leonard’s decision, and ordered that the Operation Cotton case be relisted for a further hearing. According to Sir Brian, it is quite possible for a barrister to be secured for the defendants; “there [is] a sufficient prospect of a sufficient number of PDS advocates who were then available who would enable a trial to proceed in January 2015 [including] a sufficient number of advocates of the rank of QC.”

 

A major concern of Judge Levenson, President of the Queen’s Bench Division, was that the matter over funding and representation was standing in the way of justice, and the row between government and the legal profession (long time antagonists over various matters for many hundreds of years) was to the detriment of justice. His carefully worded, but damning, verdict urged both government and the legal profession to work together to resolve their impasse over funding and defence. Whilst admitting that a time could come where a trial has to be halted due to a lack of representation- that time was not now. The Court of Appeal was anxious to avoid such a situation to ever coming to pass.

 

Although resolved in the Court of Appeal, and the prosecution resumed, the dispute is far from over. Lawyers still need to be found for the defendants. Of greater importance is that the struggle between the lawyers and government over funding and legal aid is far from over. For barristers, the case was never one of whether the defendants had adequate representation; it was a statement and stalemate over public funding of criminal barristers (which is at an all time low, at a grave detriment to criminal justice). For the Ministry of Justice (MoJ), the case was simply one of whether they could get justice done paying the least possible money, under an unfair system (which is not possible, as the proceedings at Southwark Crown Court showed).

 

With around eight of so similar fraud cases stayed with similar issues over representation, the Court of Appeal ruling was significant. In his ruling, though, Judge Levenson was careful not to be seen to take sides (characteristic of the Levenson Report). He made it clear that the Court of Appeal found that both sides needed to work together, and that what had happened was a failure of the due process of the law, and a breakdown of relations between the MoJ and the legal profession- a very embarrassing state of affairs. Like a headmaster chiding naughty children, Judge Levenson urged both sides to try set aside their differences, and to find a resolution in this matter.

 

The UK has an enviable track record in legal matters, and a criminal justice system, that, although archaic, is rooted in a sense of natural justice, fairness, equality, and openness. Maintaining and upholding such traditions are of paramount importance. According to Sir Brian Leveson, retaining and upholding a “criminal justice system of which we can be proud, depends on a sensible resolution [in this case]“. Setting aside issues of natural justice, and funding, that sense of British legal tradition is essentially what is at the centre of the Operation Cotton dispute.

 

 

From Brazil to Qatar: same sport, different ethical issues

As the Football World Cup is about to get underway in Brazil, it is only now that serious allegations are emerging as regards a future World Cup. Before the first whistle has even been blown, whistle-blowers have revealed serious irregularities concerning the bid for the 2022 Qatar World Cup.

Allegations centre around one man, Mohamed Bin Hammam. Formerly the Qatari Fifa Vice President, and one of the most powerful men globally in football, Bin Hammam, 65, was kicked out of Fifa in 2011 after being found guilty of bribing football officials; he had offered bribes to Caribbean football officials in his attempts to oust Sepp Blatter as Fifa President. Bin Hammam was also given a lifetime ban from football. Despite that ban, he was still very active as regards Qatar’s successful bid to host the 2022 World Cup. Mr Bin Hammam is alleged to have a run a carefully orchestrated campaign to gain a groundswell of support for Qatar’s bid. He is said to have paid bribes of up to £3m to football officials in Africa, Australasia and the Caribbean to gain the support and votes necessary to secure the success of Qatar’s bid, using a construction company as a front.

Such bribery and corruption is against democratic principles of open government (of both public and private organisations). Matters such as voting should be open and transparent, and such public and international organisations such as Fifa should be open and transparent in their workings. Although not a human rights matter, bribery and corruption are contrary to accepted principles of governance, and in national governments or large corporations are unacceptable ways of doing business, or conducting internal affairs.

The allegations against Mr Bin Hammam show a very clever and sophisticated attempt to use the Fifa management structure and system to manipulate the outcome of the voting for the 2022 World Cup. Instead of overt lobbying and campaigning, Mr Bin Hammam was much more subtle.

It is alleged that he provided the necessary £250,000 in legal fees for another Fifa executive committee member, Reynald Temarii. From Oceania, Mr Temarii had been suspended from Fifa following a Sunday Times sting over bribery. Mr Bin Hammam provided Mr Temarii with the money to appeal against his suspension from Fifa. This delayed Mr Temarii’s removal from the Fifa executive committee, so that he was able to vote in the 2022 bids, and preventing his deputy, David Chung, from voting (who would probably have voted in favour of Australia).

Another matter raided is the relationship between Mr Bin Hammam and Jack Warner, from Trinidad. Following the exposure surrounding the bribing of Caribbean football officials, it was revealed that Mr Warner had been a part of the bribery, in that he had assisted Mr Bin Hammam. Mr Warner himself was forced to resign from Fifa following the scandal. Evidence has emerged that suggests that more than $1.6m was paid by Mr Bin Hamman to Mr Warner, including $450,000 in the period leading up to the 2022 World Cup vote.

Any action lobbying or in support of Qatar by Mr Bin Hammam would have been highly irregular. At the time he was president of Asian football, and as such had to remain impartial and neutral as regards Qatyarta’s bid. Indeed, the other competing countries were Japan, South Korea and Australia, all of which came under Mr Bib Hammam’s area of responsibility.

Mr Bin Hammam maintains that he did nothing to further or assist Qatar’s bid, with Qatar football also denying his involvement with their successful bid. However, according to information received by the London Sunday Times, Mr Bin Hammam was actively lobbying on behalf of Qatar, and bribing various officials. The Sunday Times claims that it has a vast collection of emails, correspondence, bank accounts and money transfers that prove that Mr Bin Hammam was bribing officials to support a Qatari bid to host the World Cup. Some of the documents have been released to Fifa and the media. So far, there is no conclusive evidence that Mr Bin Hammam was actively involved in such activities himself, but the information and correspondence implicates him.

Fifa President Sepp Blatter awarding the 2022 World Cup: Fifa 0, Corruption 1

Fifa President Sepp Blatter awarding the 2022 World Cup: Fifa 0, Corruption 1

Currently, Fifa is investigating the allegations. Amidst suggestions of corruption, the inquiry into the 2022 vote is long standing, led by New York lawyer and Fifa’s chief investigator Michael Garcia. The issues surrounding the voting for the 2022 World cup have led for many to call for another set of votes; these new allegations add to the calls for a fresh round of voting.

There are current calls from football officials, from FIFA sponsors, and interested parties for a full and independent investigation of the alleged corruption, and vote fixing. Indeed, there are also great calls from all sides for a rerun of the voting for the 2022 World Cup, or to take the games away from Qatar. Fifa has come under a great deal of criticism in the last few months over the scandal- and has reponded with great hostility. The decision as regards any further investigation or action is currently ingoing. Over the next few weeks and months, no doubt Fifa will be moved to take decisive action in response to such calls from concerned parties.The internal Fifa investigation is ongoing into corruption and into the activities of Mr Bin Hammam. Mr Garcia is expected to deliver the results of his investigation later this month.

It is very unfortunate that the scandal is breaking as players take their places at stadia across Brazil for kick off in the 2014 World Cup. In many sports, there is sometimes irregularity or similar corruption found at the highest level; the Mohamed Bin Hamman scandal shows that football is not immune from such corruption, whatever its supporters might think. Such corruption is an unacceptable way of conducting affairs, contrary to accepted business morality, and Mr Bin Hammam should be made an example of.

The bribery and corruption scandal has also side lined, and brought into contrast, the human rights issues surrounding the Brazil World Cup. Allegations as to how Brazil has handled the World Cup preparations, excessive security precautions, and human rights issues in the country itself, have once again highlighted the fact that sport can be a useful way of bringing such human rights issues out into the open (e.g. Bejing 2008, Sochi 2014), for the world to see. It is unfortunate that the sport highlighting such issues is itself involved in an internal scandal involving bribery and corruption.

 

La droits de l’homme- according to French nationalism

Recent local and town elections in France gave the French a chance to show their views and opinions on President Hollande and the Socialist government in France, formerly led by Prime Minister Jean Marc Ayrault.

The result was unsurprising. President Hollande currently enjoys very low approval ratings and support from the French, and is extremely unpopular. Indeed, many in France remember fondly the days of Nicolas Sarkozy, who was never the most popular of French leaders himself.

The results were quite telling, and will give the political commentators and political parties much to think about. Many Socialist towns fell to other parties- in particular the right wing Union pour un Movemement Populaire (UMP). Amidst the cities and towns captured by the UMP were key areas such as Toulouse, Quimper, Limoges, Saint- Etienne, Reims, Toulouse and several districts in Marseilles. Paris remained in Socialist control; but Paris is a case apart, similar to London. Indeed, while London has the colourful Boris Johnson as its Mayor, Paris will now see its first female Mayor in Socialist Anne Hildago.

The biggest winner overall, though, was the Front National (National Front, or FN). Although not a numerical victory- that clearly went to the UMP- the FN won a decisive victory in other ways. For a party who is to France what the United Kingdom Independence Party (UKIP; a right wing political group) is to the UK, to suddenly win local towns shows just how powerful and influential they have become, and that the FN is now a front line force in French politics. The scattered nature of the 14 FN controlled towns, from Henin- Beaumont in the north, Beziers in the southwest and Frejus on the Riviera, shows just how varied the FN’s supporters are, and how their supporters cross demographics.

Victorious FN leader Marine Le Pin

Victorious FN leader Marine Le Pin

Led since 2011 by Marine le Pin, carrying on her father Jean Marie le Pin’s political legacy, the FN is strictly protectionist and right wing. Amidst their stated manifesto goals is a zero tolerance approach to law and order and increased economic protectionism. Among their ambitions and goals is to tackle and address rising immigration numbers in France; this is a goal shared by UKIP in the UK. The Front National is very much the greatest political force when it comes to right wing French nationalism.

 

It is the matter of the FN’s immigration policies that cause human rights concerns. Like many right wing or nationalist parties across Europe, the FN is critical of the amount of foreigners arriving in France each year, both legally and illegally. If not totally anti-immigration, many of the FN’s policies are against immigration, or concerned with controlling immigration closely, and actively reducing the numbers of immigrants and asylum seekers to France. The same can also be said of UKIP’s policies regarding immigration here in the UK.

In immigration and human rights arenas, questions are being asked as regards France’s treatment of asylum seekers. The spotlight is slowly being brought to bear on existing French immigration policies and procedures.

Asylum seekers, under conventions such as Dublin II, the 1951 UN Refugee Convention, the EU Convention on Human Rights, and the UN Convention on the Rights of the Child, have the right to have their case heard, and have undoubted legal rights and standing. Indeed, in any democracy that operates and champions the rule of law (as France does), and embodies a sense of fairness and equal treatment for all, morally asylum seekers have rights, and the chance to state their case, and to have their story heard and judged upon. Whilst that is on-going, they have the right, both morally and at law, to certain standards of treatment.

It must be admitted that any shortcomings in the French system are not deliberate. Given the troubles in North Africa and the Middle East, many thousands are making their way to Northern Europe in search of a better life. Many are descending on France, and demanding fair treatment, rights, and the opportunity to start afresh. It is impossible to treat such a volume of asylum seekers with the same high standards of dignity and decency. The perception of such refugees in the popular press and amongst ordinary citizens is also often coloured by prejudice and a lack of understanding. It must be emphasised that unfortunately this attitude is becoming widespread across Europe. Italy has been roundly condemned for its mistreatment of asylum seekers, as has Greece. Even in stable Austria, similar issues are beginning to arise. In the UK, immigration policies and policy makers have also been regularly criticised.

 

It is not just the policy makers. Quite often it is the enforcers of immigration policy, the police, the border agency guards, the immigration officials and caseworkers, who, by accident or design, allow certain abuses to happen, or do not do what is expected and required for the asylum seekers in detention.

In a country which already has a degree of popular prejudice against immigrants, and a system which is being exposed as flawed, having the Front National gain in power, influence and popularity is hardly an advancement in human rights.

 

That in itself is a great shame. In the 1700′s, the people of France rose up against an unpopular Bourbon monarchy, and installed a revolutionary, socialist government of the people, for the people (to borrow from the United States). The ‘droits de l’homme’ (the rights of man) was the rallying call of the French Revolution, and was enshrined in the ‘déclaration des droits de l’homme et du citoyen’ (the rights of man and the citizen, the French Bill of Rights). Indeed, human rights and the creation of the ECHR in the 20th century can be greatly attributed to French efforts.

With France having contributed so much to the advancement of human rights, it would be a shame for the Front National, if they continue to gain in power and influence, to deny some the very human rights which is part of France’s heritage which they seek to restore.

 

The irony is that part of those human rights involves the citizen body being able to freely choose and elect who is to govern and rule them. As such, it the absolute right of the French people to show their criticism of and Gallic disdain for Mr. Hollande and Mr. Ayrault (who was replaced after the elcetion losses by popular Interior Minister Manuel Valls) by voting for the right wing UMP and FN to govern their towns and cities instead.

 

EM (Eritrea): a missed opportunity for human rights

In a long awaited judgement, the Supreme Court, after months of deliberation, finally gave their verdict in the conjoined cases of EM (Eritrea) (2014) only a few weeks ago.

The case in question was an immigration case; the key of the matter was human rights. The question before Lord Neuberger was whether removing four asylum seekers back to Italy would be in breach of their human rights.

Four asylum seekers (three from Eritrea, one from Iran) had made their way to Italy. After suffering abuse and inhumane conditions there, they made their independent ways to the UK, where they claimed asylum. If their asylum claims failed, they would be deported back to Italy, where they first entered the wider EU. However, questions were being asked as to how Italy was treating their asylum seekers, especially after the abuses at Lampedusa came to light.

The issue raised was whether deporting them back to Italy (sic) would be in breach of their human rights under the European Convention of Human Rights, as they would probably suffer inhuman treatment and abuse, as they had done in Italy previously.

The conjoined litigation made its convoluted way through the courts, eventually arriving at the Court of Appeal. There, Judge Sir Stephen Sedley decided on legal grounds that their deportation to Italy could go ahead. The effect of that verdict would have been to expose the four asylum seekers to human rights abuses in Italy- and a failure of the UK to uphold and protect their human rights.

The Appeal Court verdict was appealed- and the matter was referred to the Supreme Court, where it was heard last November, with the verdict handed down a few weeks ago. For immigration lawyers and caseworkers who had similar cases pending, as well as the Home Office and the UKBA who had similar deportations pending, the verdict was eagerly awaited.

Lord Neuberger gave the leading speech, and had the agreement of three other law lords. The first 25 paragraphs summarise, in depth, the facts of the various cases, and their progress through the courts. Subsequently, there is lengthy reference to, and application of, the leading Court of Justice of the European Union (CJEU) cases of MSS v Belgium and Greece (2011), and NS (Afghanistan) v Secretary of State for the Home Department [2013]. The third case in that ‘trilogy’, KRS v United Kingdom (2008), is also briefly mentioned. Being CJEU cases, and therefore binding upon UK law, Sir Stephen Sedley preferred to apply those cases as opposed to alternative European Court of Human Rights (ECtHR) rulings that only a breach of Dublin II was required for there to be a breach of human rights, not a systematic breach.

Neuberger analyses the Court of Appeal proceedings at length too. His approach is very methodical and careful, seeking to be certain of his ground, of the events that have gone on previously that have led up to this hearing, before coming to a decision. An admirable approach- but from a Supreme Court judgement, more assertiveness and decisiveness would be welcome.

Lord Neuberger of Abbotsbury; seemingly uncertain and indecisive in EM (Eritrea)

Lord Neuberger of Abbotsbury; seemingly uncertain and indecisive in EM (Eritrea)

A good example of his cautious approach is illustrated in paragraph 31, which itself raises a legal point which puzzles Neuberger for the next few pages; namely, the exact meaning and definition of ‘systematic abuse’. The Court of Appeal had decided that a systematic abuse and operational failure of an EU member state in not complying with the protections and regulations set out by the Dublin II agreement (a trans- European agreement that set out the rights of asylum seekers, afforded them protection from abuse and discrimination, and protected their human rights amongst other provisions) would be required before any removal of asylum seekers back to that member state would be stayed on grounds that their human rights would be breached. One or more acts of a member state in breach of Dublin II would not be sufficient to be considered a breach of human rights legislation.

Following the CJEU verdicts and their legal reasoning, with no systematic breach found, the appeals against removal to Italy were overturned- and the matter ended up before Lord Neuberger.

It is only at around paragraph 50ff that Lord Neuberger gets down to applying the law, and coming to his own decisions. In that decision making process, however, he is remarkably convoluted.

Quoting from paragraph 80 and 81 of NS, the key of the matter for Lord Neuberger is whether a breach of Dublin II needs to be systematic or not, stating at 52 that “the circumstance that the general system may experience major operational problems in specific settings is not the same as the system having intrinsic deficiencies.”

“The Court of Appeal… suggested that CJEU had taken care to distinguish “a true systemic deficiency” from “operational problems”.” Lord Neuberger here respectfully disagrees with his Appeal Court colleagues- before finally setting out his line of thought, and approaching making a decision.

(53) “I do not believe that “the system”… was the system in a particular member state. I consider that the words “that system” in para 81 are a reference back to the system of “treatment of asylum seekers in all member states” in para 80. Secondly, I am of the view that the source of the risk of asylum seekers being treated in a manner incompatible with their fundamental rights, which CJEU identified in these paras, is not a deficiency in the overall system but operational problems experienced in “a given member state”.

After much in depth consideration of that matter, he is suddenly clear:

(58) I consider that the Court of Appeal’s conclusion that only systemic deficiencies… will constitute a basis for resisting transfer to the listed country cannot be upheld.

With that established, the rest of the judgement should be fairly obvious. If a deficiency in the asylum and refugee system currently operational in Italy is established (such a breach is well documented, and was established early on in the EM Eritrea litigation), then any return of the four appellants to Italy would be a breach of human rights. To avoid such a breach, the removals must be stayed. If there was no such breach, then the deportations can take place, as per the Court of Appeal ruling.

Despite such an obvious chain of legal reasoning, over the next few pages, Lord Neuberger is still seemingly undecided in this regard. Ultimately, the decision of the President of the Supreme Court is not to make a decision. He allows the appeals, overturning the Court of Appeal decision, but remits the matter to the Administrative Court to establish whether such a breach of Dublin II did indeed take place.

The verdict is rather simplistic, very unclear despite extraordinary legal insight and analysis, and (in places) rather obvious. Aside from the key factor of systematic abuse, the whole matter is relatively simple, with the law referred to and applied by the judge relatively simplistic (after all, this immigration case is not a matter of unjust enrichment, or other inherently complicated principle of equity). It is as if Lord Neuberger does not want to make a decision -even though the law which he uses is quite clear and obvious.

After waiting a long time for this key judgement, many immigration caseworkers and similar feel slightly confused, perhaps let down. The case history of EM (Eritrea) has been very complicated and convoluted throughout, and the verdict now given inconclusive. There was a lot of expectancy and hype surrounding this decision- for nothing. Essentially, Lord Neuberger handed down a (characteristically) cautious verdict, hedging his bets, and not saying much. A decision in the matter is arrived at that is neither clear, conclusive nor decisive.

Whether due to political significance behind judicial criticism of Italy, or matters of legal interpretation and application, Lord Neuberger remains remarkably cautious, and seemingly tries to sit on the fence. EM (Eritrea) must also be read in context.

Cracks and abuses across Europe as regards asylum and immigration are being discovered and brought to light. Several countries (such as Greece, France and Austria) have now been found in breach of human rights as regards asylum seekers and refuges. Such breaches are also contrary to the Dublin II agreement, and the principles set out by the European Convention on Human Rights, and he ECtHR.

In EM (Eritrea), Lord Neuberger had an opportunity to stand up for human rights on what is admittedly a very divisive issue. Regretfully, he does not take the opportunity given, instead referring a hesitant and rather inconclusive decision in favour of further decision making.

Whole life sentences; a judicial solution, or itself a crime against human rights?

Whole life sentences: reasonable punishment for serious crimes, or a breach of human rights? That is the question that EU and UK courts have been debating over the last year.

With 49 criminals (such as Moors Murderer Ian Brady and Dale Creggan, who killed two police officers ) currently in British prisons under whole life terms, last year the European Court of Human Rights (ECHR) ruled that such sentences are a breach of human rights. The ECHR ruled that, while such sentences when not contrary to human rights in principal, the fact that prisoners often had no chance of parole was a violation of their human rights. The UK government was naturally dismayed and angry at this- and with another interference from the EU. Indeed, Home Secretary Theresa May reiterated that she has not ruled out withdrawing from the Convention altogether- but this would only be considered after the next election (conveniently).

Despite some legal experts, lawyers and commentators agree with the Strasbourg ruling, the British courts and government naturally disagreed, considering that whole life sentences are morally right for some crimes and criminals.

The Strasbourg ruling came about after three whole life prisoners, Jeremy Bamber, Peter Moore (both convicted of murder) and double murderer Douglas Vinter, started legal proceedings, alleging that the government was in breach of their Article 3 rights. Being denied the prospect of release or parole was considered to be inhuman and degrading treatment, in violation of Article 3 of the European Human Rights Convention. Strasbourg agreed with this legal line of reasoning, and declared whole life terms, with no or limited scope for release or parole, to be contrary to human rights law. Previously, whole life terms were reviewed after the prisoner spent 25 years in prison, but that was stopped in 2003.

The matter has now been taken up by the UK courts. Recently, the matter was brought before the Court of Appeal, with three cases concerning whole life terms being heard together. No one disagrees that whole life terms are morally and legally justified and necessary. It is the matter of parole that is the issue. It is also the matter of compatibility with the ECHR. On that point, however, there is a history of EU member states declaring incompatibility with EU rulings or judgements. It is the first issue which is proving hard for the legal academics.

 

The matter is still be decided by the Court of Appeal. Hopefully the conjoined hearings will provide an answer to a puzzling legal question, applying legal principles and not emotion or morality. After all, what is morally right and legally right are often parallel lines.

 

They never meet.

 

The Court of Appeal is currently deciding the matter of whole life sentences

The Court of Appeal is currently deciding the matter of whole life sentences

 

 

This article was written earlier this month. In a bizarre coincidence, on the day of publishing, the Court of Appeal delivered its verdict in the matter. Lord Justice Thomas ruled that whole life sentences were not a breach of human rights, and can continue to be imposed for serious and heinous crimes. Although the verdict (and clarity and guidance in this issue) has been welcomed by government and the legal profession, it is clear that the controversy over whole life sentences will not end here and today.

Sochi 2014; sport meets human rights

Once again, the Olympics have managed to venture outside sport, and to raise human rights concerns.

 

Beijing 2008 saw huge concerns raised beforehand over China’s human rights standing. Indeed, the run up to tbe opening ceremony and the torch relay was more concerned with nations and statesmen boycotting the Games or threatening to make speeches or symbolic gestures in protests at China’s (lack of) human rights.

 

The 2010 Vancouver (Winter) Olympics saw no such controversy- but Canada is hardly known for human rights abuses, eh? London 2012 attracted the controversy of a budget overspend (a seeming usual occurrence for large UK governmental projects, recession or no recession), a security arrangement that left he Games with no security until the military was drafted in- and Boris Johnson stuck on a zipline. Few Mayors could pull  that off and still retain their dignity and credibility like Boris did. The greatest controversy of the Games was the lack of any follow up efforts to best utilise the Olympic spirit and (now empty) stadia, but that is another matter entirely.

As the Olympic flame nears Sochi and the 2014 Winter Olympics, once again human rights is interfering with workd class sport. Once again, the presence of the Games, and all eyes being turned on Russia has highlighted Russia’s human rights issues. From the treatment of gays, to  the suppression of opposition, all has been brought sharply into focus as the athletes and the media arrive. Similar to Beijing 2008, many want the Games to be an opportunity to express to Russia human rights concerns, be it in not attending, or in speeches.

Russia, in recent months, has seemingly wanted to take the opportunity to show that such human rights concerns are unfounded. Recently, after much global criticism,  the Pussy Riot singers and opposition protesters were released.  After arresting and imprisoning 30 Greenpeace protesters late last year for climbing an oil rig in the Arctic, Russia vowed that that the Greenpeace 30 could expect the full weight of Russian law to fall upon them. A few months later saw nany of them being released on bail. One or two have actually been freed and allowed to return home, showing that Russia might be having a slight change of attitude in this matter.

Most recently, and perhaps surprisingly, the end of 2013 saw former oil oligarch Mikhail  Khodorkovsky released. The former head of Russian oil giant Yukos gad been imprisoned for ten tears in what many saw as a politically motivated arrest of the opposition leader. He has now flown to Germany, a free man at last.

All of the above quite dramatically show that Russia is actively addressing human rights concerns, and correcting its wrongdoings in this area. However, many commentators feel that recent releases and change of position is window dressing. After all, despite what progress has been made currently, this is no indication or guarantee of future actions as regards human rights in Russia. It is as if the Russian leadership is trying to tidy up its human rights act in order to put on a good image and front (what host does not?) for the visitors, athletes, leaders and journalists at the Sochi Olympics. There is a sense in these actions concerning human rights thst there is little long term commitment to advancing human rights; indeed, such a sudden concern to correct such wrings seems to many observers (although both very welcome and positive) to lack credibility both domestically and internationally.

After the Olympic flag  has been hauled down and handed over, all eyes and attention must stay on Russia and its leadership to ensure that they carry on adhering to human rights after this bold start by President Putin (an ex-KGB agent not famous for his commitment to human rights). It is unlikely Russia will become a paragon of human rights virtue any time soon. After a bold and positive start to address some human rights issues, great effort must be made, by Russians, the Russian government and judiciary, and by international observers, governments and pressure groups.

In the short term, though, the Olympic spirit has once again highlighted human rights issues, and drawn attention to matters in the host country. Clearly, the flame does not only stand for sporting excellence. Despite that unintentional action of the Olympics, let the spotlight remain on world class sporting achievement, winter sports excellence, and an amazing spectacle as opposed to the host’s questionable human rights agenda.

Miracle on Oxford Circus

The classic, traditional Christmas film that is Miracle on 34th Street sees Santa Claus up in the dock in a New York court, trying to prove that he is who he says he is.

It just goes to prove the legal point that is well known on both on both sides of the Atlantic; that many and varied legal claims can be made in court. This is especially the case in personal injury law, where a vast array of accidents and injuries can be, and have been, taken to court. Many of those result in pre-trial settlements, or in successful compensation claims for the litigants.

In an example of the type of claims that can be made, it was revealed earlier this year that a police officer picked up an injury requiring a hospital visit by tripping over a pavement by a gas station in Norfolk in the course of their duties. They made a claim for compensation, which went to court- and was successful. The owners of the gas station were found to be negligent in giving adequate warning as regard a high area of kerb that the PC tripped over, amongst other legal issues.

The accident happened in the course of the constable’s duties- therefore, the local police force considered it a workplace injury, and afforded the injured constable and the subsequent legal proceedings as much support as they could.

This case was unusual- not just because of the facts of the case, or the fact that the constable received compensation. It was also one of the rare times that the police were making a claim, instead of being the other side of a compensation claim.

As the cannon of UK case law shows, the police have often been sued, or investigated, or taken to court. Indeed, in a stable democracy it is only positive that law enforcement can themselves be subjected to such legal scrutiny, and can themselves be called to account legally.

One notable case brought against the police was Austin v Commissioner of Police of the Metropolis (2009). The issue brought to court was that the police had imposed an absolute cordon around a group of (uncooperative and allegedly violent) protesters several thousand strong on May Day 2001 in the Oxford Circus area. The protesters had not been allowed to leave the area for several hours by the police. The litigants invoked Article 5 of the European Charter of Human Rights, namely that what the police had done resulted in an effective deprivation of ‘liberty and security of person’. By been kept isolated and confined in the area surrounding Oxford Circus, the litigants had been deprived of their liberty. The police argued against that, claiming that the cordon had not been pre- planned, but was a rather a rapid response to the sudden, unannounced arrival of the protesters. The police also stated that cordon had been imposed with public safety in mind, and to protest the protesters. It had been established to aid an orderly and peaceful exit of the multitude of protesters, and was not imposed for am moment longer than was necessary. This satisfied the first instance judge- but the protesters appealed.

The case made it way through the labyrinthine passage that is the UK legal system, and ended up as one of the last cases heard by the House of Lords in 2009. In the House of Lords, a ruling was definitively given in favour of the police. It was established that the police response and the cordon was not a deprivation of liberty and security. Article 5 had therefor not been breached- and the police were exonerated.

Such tactics used by on that May Day (the cordon, the isolation, the slow orderly dispersal) are used effectively by the police in such situations. The draconian cordon and isolation of large groups in crowd by the police, whatever reservations there may be about it, is an effective means of crowd control, and can be useful tactic to control an emotive and large protest or demonstration for the public safety. Although admittedly heavy handed, it is a useful police tactic if necessary.

In a great many instances, the law can be morally ambiguous. In countless cases, a judgement can be handed down that is legally justice, but morally wrong. However, in this instance it seemed to many commentators (but obviously not to the litigants or some other concerned parties) that the judgement gave both legal and moral justice.  The police were found not be at fault for doing their duty in protecting the public, and were still able to use their (admittedly controversial and draconian) crowd control tactics to keep the peace during demonstrations.

To expect the police to keep law and order, especially when confronted with a large crowd of violent protesters, but to forbid them from using certain reliable crowd control tactics, creates a moral absurdity. Almost as morally absurd as Santa Claus being up in the dock in a New York courthouse having to prove that he is who he says he is.

Miracle on 34th St

Miracle on 34th St

 

 

Tooks Chambers Announces its Closure after Years of Human Rights Advocacy

In early October, Tooks Chambers announced their dissolution.

Formed in 1984, and co- led by the colourful Michael Mansfield QC, Tooks Chambers had been a leading human rights set of barristers. Founded amidst the miners’ strike, much of the chambers’ early work focussed on the litigation arising from the strikes.

Following on from that, the last few decades has seen Tooks standing up for the rights of the under privileged and miscarriages of justices, with its barristers appearing in cases such as for the families of the Bloody Sunday victims, representing the Birmingham Six, Stephen Lawrence, representing Mohamed al Fayed during the inquest over Princess Diana’s death. Further cases involving Tooks Chambers have included the Hillsborough enquiry, the AKH judicial review, more recently, barristers have been involved in the leading family case of Re BS (Children), and the on-going litigation surrounding the shooting of Mark Duggan. Indeed, one of Tooks’ barristers, Maureen Obi-Ezekpazu was nominated for the 2013 Sydney Elland Goldsmith Bar Pro Bono Award.

Colurful, radical barrister Michael Mansfield QC

Colurful, radical barrister Michael Mansfield QC

With such a track record in human rights, and holding the state to account, the news of the dissolution is very regrettable.

In its statement announcing its closure, Tooks stated clearly that its dissolution is due solely to the heavily criticised Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO), in which legal aid was cut significantly:

“The dissolution of Chambers is the direct result of government policies on Legal Aid. The public service we provide is dependent on public funding. 90% of our work is publicly funded. The government policies led by Justice Secretary Chris Grayling are cumulatively devastating the provision of legal services and threatening the rule of law.”

Whatever the economics and benefits of such cuts, the legal profession and related fields remains fiercely critical of it (including this writer). Given the nature of human rights cases, most such cases were funded by legal aid. The withdrawal of funding meant that it was no longer financially viable for the Chambers to continue, as regrettable as that was.

For the barristers, pupils and clerks of Tooks, there is some hope. A second announcement a few days after the dissolution stated that Michael Mansfield was forming a new chambers.  Mansfield Chambers chambers will be based quite close by, and will rely on sharing office space, the latest IT and office infrastructure to minimise costs and staffing. 15 of the former Tooks barristers and several clerks will be joining Mr Mansfield in the new chambers. As such, their work, and their defence of human rights, will carry on.

It was not just human rights cases that were affected by LASPO. Family law, immigration and civil cases were the hardest hit. Legal companies working in those areas are now suffering under an impossible financial strain and burden. Since the cuts came into force in April, many such companies have either gone bust, or have merged to survive.

Despite such advances to the legal industry such as ABS’s, LASPO takes the whole sector a step back. Tooks Chambers is the first high profile casualty of the legal aid cuts- but it is only the first of many. As the effect of the cuts becomes more evident, more legal businesses will close.

Although legally this will not be a breach of human rights under the terms of human rights legislation, such denial of justice to claimants as firms close their doors will end up in breaches and abuses of human rights going unchecked as claimants of all types, such as those seeking injury compensation, will be unable to get justice. That in itself could be considered morally to be a grave breach of human rights- especially in a democracy that has championed the rule and accessibility of law and justice for all for several centuries.

 

 

How Germany’s Federal Elections could be Beneficial for Human Rights

The election results for Germany in September saw the current Bundeskanzkerin (Chancellor) Angela Merkel remain in power. This will be her third four year term- meaning that she has been in power longer than a two- term US President, or long enough to rival some Russian and Italian leaders.

The political party she leads, the Christlich Demokratische Union Deutschlands (Christian Democratic Union, or CDU) and its coalition partners and sister party the Christlich Soziale Union in Bayern (Christian Social Union in Bavaria, or CSU) has had its share of ups and downs, has had its fair share of  both public praise and public criticism. However, Merkel herself remains incredibly popular.

Her leadership style has won a great many supporters throughout Germany. Indeed, German newspaper Die Welt sardonically quipped prior to the election that Germans could vote for any party with their first vote, but ‘mit dem zweiten Stimmen  immer Merkel’ (with the second [vote] always Merkel’). This refers to the idiosyncrasies of the German electoral system, where voters actually vote twice, once for a party and once for a candidate.

The results were both positive and disappointing for the CDU. Although they won a comfortable 255 majority of seats in the German Bundestag (Parliament), the CDU/CSU bloc between them only gained 41.5% of the votes. A super majority and decisive victory for Merkel and the CDU, such results overall meant that there was no outright majority in the Bundestag.

The election results meant that there was need for a new coalition government, similar as in the UK in 2010. Unlike the UK, unused to Coalition politics, a Coalition is a relatively usual part of German politics. Negotiations are ongoing as regards forming potentially a grand coalition between the CDU and their former opponents, the Sozialdemokratische Partei Deutschlands (Social Democratic Party of Germany, or SPD). Despite losses in its share of voters recently (from 34.2% to 23%), Germany’s oldest political party ended up with 193 seats, giving the socialist party the second largest share of the votes.  An alternate option is to form a majority government   with another party who between them would end up with a Bundestag majority, such as as the Greens.

For a country that has supported, protected, and even bailed out nations where necessary in support of the Euro, the Euro was hardly a big campaign issue. However, dealing with Eurozone finances will be a headache for Frau Merkel now. Although such matters are only part of a larger set of economic issues for German politicians, and must be placed in perspective with longer term national issues such as energy and defence, an inevitably major part of Merkel’s new government will be concerned with supporting the EU.

Eurosceptics gave up a collective groan as Europe’s most dedicated pro- EU politician was re- elected as Chancellor. However, it is potentially not all gloomy for Eurosceptics; Chancellor Merkel wants to reconsider aspects of the EU, and above all to reinforce and strengthen the Eurozone. As such, Germany’s role and relations concerning the EU will be scrutinized; it is likely, however, that in proud political tradition, nothing much will be done except a series of reports produced after several years  recommending a few subtle changes, if anything. It must be noted, though, that her EU policies and agenda have also gained her critics, both domestically and in the wider EU.

This can only be good news for British Prime Minister David Cameron, who has vowed to hold a referendum on Britain and the EU if the Conservatives are returned to power in 2015.  For both leaders and administrations, it is a case of much the same policies and politics- but also much different. The Conservatives, for example, have been talking heatedly about European integration and referendums for a great many years; this is the first time that a party leader has been firm and decisive in this particular issue. As with many long term politicians and democratic governments-in reality, little actually changes over several terms in power.

Although any alterations in the EU, either in the short term or long term, whether resulting from increasing economic crisis or stability whether from the UK’s desire to leave the EU, or Germany’s desire to reinforce the Union, what will  such a change do to other aspects of the EU? For example, what about human rights? 

Human rights are clearly set out in the European Conventions on Human Rights (ECHR). All of the (mostly European) nation state signatories have worked towards upholding the principles behind ECHR over the last few decades, and in promoting human rights in accordance with the Convention. For many European nations, human rights is now in national legislation (such as the UK’s 1998 Human Rights Act), and part of international treaty, such as ECHR itself.

National governments’ local administrations, employers, etc, across the continent now have to abide by such legislation, and to act in accordance with human rights (e.g. employers have to consider anti- discrimination regulations).  Admittedly, sometimes the rules and restrictions imposed can be overly excessive, or abused (such as asylum seekers using the principle of a ‘right to a home and family life’ to make a claim for asylum), but those protections concerning human rights are now firmly in place, where they were not before.

A lot of those protected human rights are largely attributable to the EU. Nor only because of the ECHR, but because the central European courts and legal system has been able to promote, impose and enforce such principles across the EU. Whereas previously there was great human rights abuses in the 19th and 20th Century European past, and great tension and conflict, and great oppression (the former Soviet satellite states are good examples), the now politically unified European continent prevents such abuses happening, and enables both the central EU apparatus and other member states to enforce such principles of peace and freedom. Indeed, the EU itself strengthens the cause of universal human rights as it brings together a whole continent in a political, legal and economic union that prevents conflict and human rights abuses.

Consequently, in the long term, a Germany determined to strengthen and advance the EU can work towards repairing the damage (not just practical and physical damage) of previous conflicts and human and reinforce message of human rights by a stronger Europe, both economically, and politically. A stronger Europe means a greater adherence and greater store set on human rights- and a triumph over past continental conflicts.

The re-elected Chancellor Merkel, in seeking to strengthen the European Union, is standing up (admittedly indirectly) for human rights by preventing tension and conflict throughout the region.  Being re-elected allows Frau Merkel, who herself witnessed the lack of human rights in the former East Germany, to ensure that peace remains throughout Europe, and to carry on her ceaseless endeavours to promote the EU, despite economic crisis and considerable opposition to the EU throughout the member states (notably in the UK).

 

Re-elected Bundeskanzkerin Angela Merkel

Re-elected Bundeskanzkerin Angela Merkel

 

 

Bo Xilai: When open justice can potentially be a denial of human rights

After a series of events including bribery, corruption, embezzlement, an attempted defection, and even murder, a Chinese court ended several years of proceedings last month. In the course of that, the career of a wealthy, colourful, charismatic, popular and rising politician was swiftly ended.

Formerly the Communist party leader in the sprawling and vast Chongqing metropolis, Bo Xilai’s trial for corruption and related offences was a widely publicised and followed case, in contrast to previous trials in this matter. The trials of his wife, Gu Kailai, for murder, and of former police chief and associate Wang Lijun, in related hearings, were held in secret. The very open and public trial of such a high profile politician for corruption related offences is indeed a great step forwards for human rights in China.

However, despite being so public and publicised, and indeed open, there was a sense of irony in the legal proceedings.

The irony was the actions of the Chinese state. 19 journalists were allowed into the court itself. Images, transcripts and similar were put up by the court officials on a micro-blogging site, Weibo (the Chinese equivalent of Twitter). As Mr. Bo arrived in the early morning on the start of his trial, supporters had gathered, carrying pictures of Chairman Mao, and demanding a just and fair trial. It seemed like the Chinese state was finally becoming more open and transparent, and showing the world that China too appreciated the democratic value of an unbiased and transparent trial.

However, was that actually the case? Underneath the facade of open and democratic justice seen in the Jinan courtroom, the autocratic Chinese dragon lurked. The protesters, for example, were swiftly (but peacefully) dispersed. The 19 (carefully picked) journalists aside, leaked memos published by the China Digital Times shows that Chinese media was told to rely on official government news agency Xinhua for information and updates on the trial- hardly the open court reporting of an open democracy.

As for the regular updates on Weibo, the Chinese state was most proud of this, and used that as an example of how open and transparent Chinese justice was becoming. The same officials failed to mention that the posts and images were redacted, censored, and carefully chosen and presented to send a certain message-or as Western politicians would say, to put a certain spin on things (in that respect, both Chinese and Western politics are exactly the same!). All  this goes to show that things are often not quite what they seem; what looks like an open and fair trial actually bears the hallmarks of the Communist Chinese state.

In hearings reminiscent of Soviet-era Russia, and a China going through a revolution, this seemed little more than a show trial, merely going through the motions to give the image of a fair, free and unbiased trial. In fact, the only surprise at the trial was Mr. Bo himself.

Smartly turned out, and flanked at all times by two guards, the 64 year old defended himself with great vigour and spirit, raising doubt on some aspects of the prosecution’s case. Indeed, many commentators and social media users were moved to comment on his lack of guilt, due to the spirited exchanges in court. Under Chinese law, Mr. Bo was allowed to question witnesses; his examination of lead prosecution witnesses raised questions as to prosecution’s case, and showed that perhaps this was not such an open and shut case of abuse of power, bribery and corruption after all. Indeed, even his original handwritten cinfession, and the testimony of his wufe, Gu Kialai (herself in prison for the murder of British businessman Neil Heywood), was brought into question.

Bo Xilai cross examining witnesses at his trial

Bo Xilai cross examining witnesses at his trial

Although other disgraced Chinese politicians (such as Chen Xitong, former Mayor of Beijing, and Chen Liangyu, the former Party Secretary of Shanghai) have defended themselves in the past, it is unusual. Many know that the verdict has probably already been decided, and accept the court proceedings. Mr. Bo’s vigourous defence exposing flaws in the prosecution’s case only serves to cast doubt upon whether this was the course of natural, open and unbiased justice as the Chinese authorities claim that it was.

If the trial of Bo Xilai was a truly fair, impartial and open trial as the Chinese state claims- then why does it seem so controlled when looked at further? If China is to celebrate and point out human rights advances, and open justice- then at least make sure that such human rights advances are real and open, and not just an illusion.

Presiding Judge Wang Xuguang’s guilty verdict was perhaps inevitable. In Bo Xilai’s trial, seemingly only the severity of his sentence was ever at doubt.