Archive for November 11th, 2009

Libel reform: Free speech is not for sale…

Jack of Kent – a skeptical and liberal look at law by writer and lawyer Allen Green – considers reform of libel…

A very interesting read.


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Access to Justice – Justice for All?

Around 500 people were present at the Bar Council Conference on Saturday which has been judged a great success. The keynote speech was delivered by Sir Nicolas Bratza, following the opening address by Chairman of the Bar, Desmond Browne QC.

Desmond Browne’s speech, if you haven’t heard it or read it is worth reading.

I do no more…for it is not necessary… than to quote a few choice extracts…it is an excellent speech, meaty, direct and to the point.  Food for thought.

In the past few months the Legal Services Commission has been at great pains to have us “celebrate” legal aid’s sixtieth birthday. But once the candles on the cake had been blown out, it was clearer than ever that we had been left in the dark. In all the party euphoria the Commission generated, it overlooked those fundamental principles which govern a social democracy’s obligations for the welfare of its citizens. These principles were espoused especially strongly by refugees from fascism reaching our shores in the late 1930s. Today, more than ever, at a time of deep economic recession and confronted by laws of ever-increasing complexity, we need to remember those principles – and be sure that we apply them in practice.


Family Legal Aid:

There is wide recognition that effective legal representation is particularly critical in family law cases. Indeed, over 20 years ago in Airey v. Ireland [1979] 2 EHRR 305 the European Court treated as a breach of article 6(1) the refusal of legal aid to a woman seeking judicial separation in the Irish High Court, because of the complexity of the proceedings, the need to examine experts and the emotional involvement of the parties. Obviously these factors will be present in many, many family cases, and they require experienced advocates to deal with them.

Criminal legal Aid:

Turning from family legal aid to criminal legal aid, we can only conclude that this is a government which will never learn. As Disraeli once said: “you can tell a weak government by its willingness to resort to strong measures”. The very omissions for which the LSC was so harshly criticised in relation to family legal aid have been repeated all over again –  this time by the Ministry of Justice in relation to the cuts in criminal defence fees proposed in their Consultation Paper of 20th August.


The betrayal of the ideals of 1949:

There is every reason for the profession to feel betrayed, but what matters is that the public has every right to feel betrayed too. We are now heading for precisely that which the midwives of legal aid wanted to avoid – two standards of access of justice dependent on the ability to pay. When the wolf is at the door, we can no longer be accused of crying wolf.

Desmond Browne then turns to consider Access to Justice and reflects on the future of the profession

In ending, I inevitably return to criminal defence fees. Swingeing cuts can have only one result — quality will be driven down as experienced advocates are driven out, Poor quality advocacy increases the chances of acquittal of the guilty, and (worse to my mind) conviction of the innocent. As the Lord Chief Justice said in his recent Kalisher lecture, “it really is as stark and simple as that.”

The full speech may be read here.

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The Independent reports: Ministry of Justice figures indicate there are 3,808 judges in England and Wales and 205 or 5.4 per cent are Freemasons. There are also 29,702 magistrates, of whom 1,900 or 6.4 per cent are Freemasons.

While I am more than happy to go along with Jack Straw’s statement …“no evidence” of any “unacceptable behaviour by Freemason judges… I am not sure that it is a great idea to cave in to possible legal action by The United Grand Lodge.  If Grand Lodge maintains that Masonry is not a secret society why should they be so concerned that judges – who do occupy a rather important place in the firmament of justice – be required to reveal that they are masons? I would prefer to keep to the former practice where judges have to declare and I would hope that judges who, after all, have nothing to hide in the fact that they are masons, would declare voluntarily, given their importance to the administration of justice.

Birds of a feather flock together, whether we like the practical implications of this or not. It is part of life. The trouble with Freemasonry, it is argued, is the very secret nature of the proceedings.  If you are not a mason, you just don’t know what influences masons bring to bear and what favours are granted to masons between themselves – if any.  They say that they do not favour each other.  I am not so sure about that.  I have had some unusual handshakes and suggestions in my time and frankly, I am almost certain that masons will favour another mason over a non-mason all ‘other things being equal’ – whatever that means. More often than not – that will be perfectly harmless…. but it might be best, when it comes to justice – that we continue to keep a register of such interests?

I cannot, now, recall the case – but some years ago a judge halted a trial, telling the jury that the defendant had just revealed to the judge by a secret distress signal that he was a mason.  The judge was right to disclose this – but it cost the state a fair bit of money to set a new trial. Maybe a reader will recall the exact case and remind me? Maybe this was just ‘urban myth’.

Of course – quite a few police officers, lawyers, prison officers, politicians, business people, magistrates are Masons – a society within a society? Is it a force for good?  Undoubtedly the Masons have done great works of charity. This is a matter of public record.  Is it just another hocus  pocus bit of harmless mumbo jumbery which men, particularly, like to engage in – a chance to dress up, have arcane rituals and generally invent a way of life for themselves?  Probably – it certainly seemed that way to me all those years ago when I was ‘approached’.  Today the mantra seems to be – ‘To be one, you have to ask one’.  They do have a website!

And moving from secrecy to another type of secrecy – Privacy.

Max Mosley, whose private sexual interests were emblazoned all over the News of The World earlier in the year is taking his case to the European Court of Human Rights in Strasbourg to argue that newspaper editors should be obliged to forewarn people if a newspaper is likely to publish a story likely to invade the privacy of an individual.

I think Mosley has a fair point – when it comes to legitimate and lawful private interests, people are entitled to protection of law. The public interest point arises, however,  if an individual’s private interests, personal, financial or otherwise, impact on his or her ability to do a job involving public interest. As the Guardian notes – “The changes he wants might undermine the right to freedom of expression.”

The developing privacy law, not by any means always associated with libel law, is a development we should keep a very close watch on.  On the matter of libel law – here is a proposal From The Libel Reform Campaign which is  worth reading.

And on to dishonest secrecy…  Ofsted hid crucial evidence on Baby P sacking

The Times reports: The childcare watchdog has admitted withholding crucial evidence that could potentially hand Sharon Shoesmith, the former head of children’s services at Haringey Council, hundreds of thousands of pounds in compensation. Ms Shoesmith was sacked after a damning Ofsted report into how her department was run in the aftermath of the Baby P case. A High Court judge has taken the extraordinary step of reopening her case so dozens of pages of handwritten notes, e-mails and draft reports can be examined.”

Putting the clock back?  What?  By our progressive DPP?

The Times reports: “The police may take over responsibility for bringing charges for thousands of minor offences each year under changes to be piloted by the Crown Prosecution Service (CPS). The move — which turns the clock back more than 20 years before the service was set up — would leave CPS lawyers to deal with more serious offences while police handled offences that can only be tried by magistrates.”

And finally….

Infidelity murder defence to go

BBC: Ministers are pushing ahead with plans to end the right of murder suspects to cite the sexual infidelity of their partner as a partial defence in court. In last month’s Lords debate, deputy High Court judge Lord Thomas of Gresford described the plans as “illogical” and “outstandingly obnoxious”.

Well…..good to see that all is going swimmingly in the legal world and world of law.



Public record (“Is it a force for good?  Undoubtedly the Masons have done great works of charity. This is a matter of public record.  Is it just another hocus pocus bit of harmless mumbo jumbery…”)


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Why, when we have bravely and nobly progressed so far in the recent past to create a decent, humane society, must we perpetuate the senseless barbarism of official murder?

Abe Fortas (1910-1982), former U.S. Supreme Court Justice, New York Times.

The DC sniper was executed at 9.00 pm last night. Reports on Twitter reveal the irony of his death being announced at 9.11 pm. A quick trawl through Twitter posts under the #DC Sniper tag on Twitter reveals very mixed responses from the delighted and retributive to responses from those staunchly opposed to the death penalty.  There was even one tweet where a person staunchly opposed to the death penalty appeared to make an exception for this case.

I am opposed to the death penalty. Quite apart from  the very real possibility of human fallibility, the possibility that an innocent man could be put to death by the inherent imperfection of any judicial process – it reduces us to the level of barbarians and there can, for me, be no solace in the fact that such execution is democratically ordained and sanctioned by the State.

The death penalty has been abolished in several states in the USA.  A quick look at death penalty quotations from judges on Google throws up some interesting views. Judges, in the main, appear not to approve of the death penalty.

I recall sitting in the Selangor Club in Kuala Lumpur some 15 years ago, while visiting Malaysia on business, talking to a Malaysian High Court judge who I had known for some time. He had sentenced four people to death that very day – for drug offences.  He had no alternative but to apply the law of Malaysia.  He found the the matter profoundly depressing and quite apart from the fact that the death penalty was clearly not a deterrent in drug (or any other cases) he believed it was contrary to morality for the state to put anyone to death.  He felt it diminished the state.

Ruth Bader Ginsburg, U.S. Supreme Court Justice: “People who are well represented at trial do not get the death penalty … I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”

Arthur J. Goldberg (1908-1990), former Supreme Court Justice: “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”

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