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Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.
Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?
Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.
And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.
The Ministry of Justice for England and Wales (MoJ) wants to make money out of the punishment system of Saudi Arabia.
It has a “commercial” proposal — made with the apparent blessing of the UK secretary of state for justice Chris Grayling — whereby it will charge £5.9m for providing scarce UK civil service resources funded by the UK taxpayer to one of the most brutal legal systems in the world.
How has this happened?
Our story starts with Saudi Arabia and the sheer nastiness of its legal system. In the last two weeks this regime has had worldwide attention.
This is in part because of the case of Raif Badawi, a writer who was sentenced to be flogged 1,000 times in batches of 50 lashes — because he created and wrote for a liberal website, the Saudi Free Liberals Forum. His first official beating was two weeks ago in front of a mosque in Jeddah; the one scheduled for last week did not go ahead, it is said, for medical reasons. International horror at the punishment appears to have now prompted the case’s referral to the country’s supreme court.
But the Badawi case is not the only one to have received publicity. Last week Layla Bint Abdul Mutaleb Basim was dragged through a street in Mecca and beheaded. She died screaming her innocence. The execution was not done smoothly: a video shows her head was hacked off with three blows, with no anaesthetic. Again this procedure was a formal punishment — an example of the Saudi legal system in action. Read more
A French national flag at the Paris statue "Le triomphe de la Republique" © Joel Saget/AFP/Getty Images
What should be the legal response to terrorism?
This question needs asking, for whatever the security problem, the political solution seems invariably to be more law. Something dreadful happens, and the response of many UK politicians and officials is “tougher powers” and another bill on the statute book.
It is almost as if the passing of a law is seen as a kind of solution in and of itself. Something must be done, and therefore something will be done.
And so in the UK over the last 15 years, we have had a Terrorism Act, then an Anti-terrorism Act, then a Prevention of Terrorism Act, another Terrorism Act, then a Counter-Terrorism Act, and most recently a Terrorism Prevention Act. Currently there is a Counter-Terrorism and Security Bill before parliament.
If statutes were weapons in the war against terror, the UK would be armed to its hilt. And inevitably, the atrocities last week in Paris have prompted the prime minister and home secretary to call for even more laws to combat terrorism.
Part of the reason for this glut of legislation is, of course, the relative impotence of UK politicians. There is, in fact, very little they can be seen to be doing in response to any crisis other than to promote additional laws. Policy making is hard, and good policy making and its implementation is not showy. Sometimes policy making will not need any new laws at all. But for the busy and media-conscious politician, it is easier to ban something, or to create a new legal power, than to actually think through what one is doing. Read more
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A couple of months ago I raised the issue of whether police in the UK were using the Regulation of Investigatory Powers Act (RIPA) to obtain information which is legally privileged.
Legal privilege is important. In simple terms it means that your dealings with your lawyer are strictly confidential, both in respect of the content of the advice you are given (“legal professional privilege”) and also anything done to assist you in preparing a claim or a defence (“litigation privilege”). In essence, when information is under legal privilege then no court order can oblige you to disclose it to the court or other party, including the police.
It seemed obvious to me that there must be some possibility that police could be using RIPA to obtain information which would be covered by legal privilege. There are about half a million public authority requests for “communications data” every year (that is, information public authorities can get from a telecoms or internet service provider other than the actual content of your communication). Also it is now known that the Metropolitan Police have used RIPA to obtain details of calls made and received by journalists. So, if the police are using RIPA to circumvent the usual protection given to journalists’ sources, there seemed no reason, in principle, why the police would not use the same means to get information which would otherwise be legally privileged.
But what was lacking was evidence: to say something could be happening is not the same as saying that it is happening. Read more
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The current difficulties of the UK government in setting up an inquiry into historic child abuse raise a more general point: there seems to be an increasing — but unfortunate — reliance on “inquiries” in British politics.
The pattern is familiar: a dreadful state of affairs comes to light, something must be done, lessons must be learned, and it must never happen again.
Responsibility for determining the thing to be done, working out the lessons to be learned, and ensuring that the “it” never happens again is then handed to a specially appointed inquiry. Such an inquiry will usually be “independent” and not connected to the institutions of the state which have presumably allowed the bad thing to happen in the first place.
And this approach suits a lot of people.
As there is the appearance of immediate action, those aggrieved at the bad thing that has happened can be satisfied that “progress is being made” and those in the media who want something to report and comment on have all they need. Read more
Another day, another case before the English courts where the issue is whether someone should face criminal liability not for something they did, or intended to do, but for something they said.
In this particular instance, the case was an appeal from a local criminal court to the High Court in London. The facts of the case are unpleasant, and the vile speech act in question was not one which any civilized person would find acceptable. However, a two judge panel at the High Court granted the defendant’s appeal. And in his concurring judgment, Lord Justice Laws (an example of nominative determinism seemingly rife in the senior English judiciary – Lord Chief Justice Lord Judge is another example) made the following emphatic statement:
the words were…certainly offensive: a nasty, malicious antisemitic comment of which the appellant should be thoroughly ashamed, but they were not menacing.
The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive.
It is not the task of the criminal law to censor offensive utterances.
This is a rousing declaration: the sort of judicial exclamation which makes you want to nod your head as you read it. It is sensible and liberal, even if the speech act in question being defended is disgusting. Read more
Yesterday, in response to the sharing on the internet of horrific and sickening footage of the apparent execution of journalist James Foley, the UK’s Metropolitan Police Service (MPS) provided the following statement to news reporters:
The MPS Counter Terrorism Command (SO15) is investigating the contents of the video that was posted online in relation to the alleged murder of James Foley.
We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.
What was eye-catching about this statement was that “viewing” the material could, by itself, be a criminal offence under “terrorism legislation”. By the time the statement was issued, thousands of people had viewed the video. Was the MPS really saying that each UK viewer faced, at least in principle, a conviction under terrorism law for doing so? Read more
An ape takes a selfie: but who owns the copyright in the photograph?
This question is in the news because of a decision contained in the recent Wikimedia Foundation Transparency Report:
A photographer left his camera unattended in a national park in North Sulawesi, Indonesia.
A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits.
The pictures were featured in an online newspaper article and eventually posted to Commons.
We received a takedown request from the photographer, claiming that he owned the copyright to the photographs.
We didn’t agree, so we denied the request.
The UK government is pushing through emergency legislation.
The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. Read more
What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights. Read more
Last weekend the Sunday Mirror reported, almost in passing, that Chris Grayling may be sacked from the UK cabinet:
So Justice Secretary Chris Grayling is expected to get the chop and be replaced by Northern Ireland Secretary Theresa Villiers.
This would be welcome news. Mr Grayling has not been a success as justice secretary and lord chancellor, in respect of either policy making or political leadership. Indeed, it is difficult to imagine a worse ministerial performance. Read more
Earlier this month, a UK government department told senior judges something rather extraordinary: that the department was resorting to an “emergency measure”.
But this was not the Home Office dealing with the aftermath of widespread riots, or the Department for Food, Environment and Rural Affairs coping with sudden flooding of villages and towns. Read more
A fortnight ago the UK government had a disaster in a London criminal court.
It was a disaster which had been one year in the making – and one which was widely predicted. And it was a disaster the impact of which will become even more serious – unless government policy now changes.
In essence, the calamity was that a prosecution for complex fraud – the Operation Cotton case – was stayed (that is, terminated) by a judge on the application of the defendants. This was, of course, unwelcome in itself: it meant alleged fraudsters could walk free without trial. Read more
A number of people in England are, it seems, now routinely searching bins for discarded food so that they and others can eat.
And if this was not sufficiently concerning, the state appears to be seeking to criminalise these people for doing so. Read more
“The cause of everyone’s misfortunes is their inability to sit quietly in a room.” Blaise Pascal
Dawn arrests and long bail are two extreme examples of how the coercive power of the state can be applied to individuals.
The first is short and dramatic: a loud knock on the door in the early hours followed by your arrest and removal to a police station, whilst your is home is invaded and thoroughly turned over by a team of uniformed police officers. And the second is painful and ongoing: after the arrest and release on bail, then weeks or months – or even years – will go by without you knowing whether you will be charged or not.
In both situations, there has been a lot of attention by reason of the various police operations connected to the conduct of the tabloid media. Of course, this publicity is not surprising: many of those arrested are, by definition, professional communicators.
But neither dawn arrests nor long terms of bail are particularly a journalists’ problem. Both go wider; it is merely because they have happened to media folk that what has happened and its impact on those involved is clearer for others to see.
Are there any good reasons for these dawn arrests and the long bail? Is there, as a reporter would ask, another side to the story? Or are there wider problems here, which the current media-related cases are acting to bring to light? Read more
Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise?
The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer.
A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions. Read more
Lady Justice does not always have her eyes covered: for example, contrary to popular belief, she does not wear a blindfold on top of the Old Bailey.
Sometimes she is depicted by artists as being blindfolded, and sometimes she is not. (Perhaps wisely, those statues and paintings which have Lady Justice blindfolded tend to have her with the sword safely lowered; and whether someone brandishing a sword whilst wearing a blindfold is an appropriate image for any system of justice is a matter of opinion.) But there is no consensus among painters and sculptors as to whether Lady Justice should be wearing a blindfold or not.
There is similar inconsistency in what parts of the justice system we are allowed to see, as members of the public or even as jurors or parties to a claim or prosecution. Some parts of our legal process are open, whilst other aspects are hidden from our view. This is because there is no general principle of open justice in the jurisdiction of England and Wales: it is often a game of pass the blindfold as any court case continues. Read more
Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.
It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more