“Hell on earth” Gaza acquittal a miscarriage of justice?

16 July 2010 by

Updated – 6/8/10

Five activists were recently acquitted for causing £180,000 damage to an arms factory after successfully deploying the defence of lawful excuse. But did the judge’s politically coloured summing up of the evidence to the jury render the trial a miscarriage of justice?

Article 6 of the European Convention on Human Rights guarantee a “fair and impartial tribunal”, and it is sometimes claimed in courts that a judge or judicial panel are biased and therefore cannot preside over a fair trial. While not often successful, the complaints are always taken seriously. As any law student knows, justice must not only be done but also be seen to be done.

To this end, judicial impartiality has been much in the news of late. Cherie Booth QC, an observant Christian, was apparently rapped by the Office for Judicial Complaints for reducing a defendant’s sentence on the grounds that he was a “religious man” who knew what he did was wrong. Meanwhile, in a less successful challenge to a judicial decision, Lord Carey failed to convince the Court of Appeal that a judicial panel of special religious expertise was needed in the case of a Christian marriage councilor sacked for refusing to counsel gay couples.

But a recent case in the Lewes Crown Court has raised the important question of when a judge’s political views, or what appear to be his political views, can render a trial unfair, and, if the views can be said to be reasonable, whether it matters in any event.

Gaza conflict a “lawful excuse”

In R v 
Ornella Saibene, Robert Nicholls, Thomas Woodhead, Christopher 
Osmond, Harvey Tadman, Elijah Smith and Simon Levin, seven defendants were accused of causing criminal damage to a factory, owned by EDO MBM, which they believed was supplying arms to the Israeli Government during the 2008/9 war in Gaza. The defendants admitted to having caused the damage but claimed that they had a lawful excuse for doing so. Ultimately five of the defendants were acquitted by the jury.

Section 4 of the Criminal Damage Act 1971 provides that a defence to a charge of criminal damage is if the person in order to “protect property belonging to himself or another“. As the Judge, His Honour Justice Brathurst-Norman, told the jury in his summing up, “the purpose of the defendants in damaging MBM’s property has to be to prevent the destruction by the Israeli Air Force of property in Gaza.

Uphill struggle

The defence was always going to be a difficult one to bring home. It is one thing to destroy the weapon of a man you reasonably believed was about to attack your house, but it is quite another to destroy a factory in order to prevent an international conflict thousands of miles away.

As Lord Hoffmann said in the case of R v Jones [2006] UKHL 16, which involved defendants causing various forms of damage to military infrastructure in order to prevent the war in Iraq in 2003:

… when Parliament speaks of a person being entitled to use such force as is reasonable in the circumstances, the court must, in judging what is reasonable, take into account the reason why the state claims the monopoly of the legitimate use of physical force. A tight control of the use of force is necessary to prevent society from sliding into anarchy, what Hobbes … called the state of nature.

Lord Hoffmann went on to put the principle even more forcefully, stating that

The right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own person or property but simply wishes to see the law enforced in the interests of the community at large. The law will not tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act … then he must use democratic methods to persuade the government or legislature to intervene.

What of situations where all democratic avenues have been exhausted, as was apparently the case with the Gaza protesters? This is still, Lord Hoffmann argued, not a justification to take violent action:

Often the reason why the sovereign power will not intervene is because it takes the view that the threatened action is not a crime. In such a case too, the citizen is not entitled to take the law into his own hands.

Another recent case demonstrated the problems which a court will face in being asked to rule on the legality or otherwise of an international conflict. In Al-Haq, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2009] EWHC 1910 (Admin), the High Court was asked to condemn the 2008/9 Gaza conflict, effectively ruling it unlawful. Lord Justice Pill said this was simply not within the competence of a court, nor should it be:

For the courts of England and Wales to decide whether Israel is in breach of its international obligations and, if so, the extent and nature of the breach or breaches, is beyond their competence… That is so whether or not Israel were to decide to contest the allegations before the court. Indeed, the dilemma in which Israel, a sovereign state, would be placed demonstrates the unacceptability of the claimant’s proposition.

Hell on earth

So the “lawful excuse” defence was always going to be an uphill struggle for the defendants. But then came the summing up of the judge to the jury (reproduced here), which presented the evidence of the activists in unusually colourful terms. HHJ Bathurst-Norman said:

Now you have to look at the evidence coldly and 
dispassionately. It may be as you went through what I can only describe as horrific scenes, scenes of devastation to civilian population, scenes which one would rather have hoped to have disappeared with the Nazi regimes of the last war, you may have felt anger and been absolutely appalled by them, but you must put that emotion aside.

Equally, you must put aside any feelings of being 
thoroughly ashamed of our Government, of the American
 Government and the United Nations and the EU in doing nothing
 about what was happening.

The judge went on to suggest to the jury: “You may think that
 perhaps “Hell on Earth” would be an understatement of what the
 Gazans endured at that time.”

As Joshua Rozenberg put it on his Standpoint blog, “ask yourself these questions. Is this judge merely summing up the evidence as given by the witnesses? Or is he giving his own view of events? If the latter, is it a fair, dispassionate view of what happened? Or is it a one-sided, tendentious, inaccurate account designed to produce an acquittal?”

Actual or apparent bias

Article 6 of the European Convention on Human Rights (the right to a fair trial) affords guarantees to an “independent and impartial tribunal”. In this regard, English law permits parties to any form of dispute to challenge the tribunal on the grounds of actual or apparent bias. The crucial principle, as any law student knows, is that justice is not only done, but that is also seen to be done.

The legal test of bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Lawal v Northern Spirit [14], R v Abdroikov, 14-17 Bingham).

It was always likely, with the proliferation of human rights challenges and judicial reviews involving sensitive social issues, that the views and personal beliefs of judges would be more keenly scrutinised. In the United States, the confirmation of Supreme Court justices – who decide constitutional issues which often mirror human rights questions addressed in our own courts – entails them being cross-examined less on their judicial skills and more on their personal beliefs.

Unchecked bias and vigilante justice

In order to avoid the appearance of bias, the justice system has been sensitive, in varying degrees, to ensuring that personal beliefs cannot be seen to be colouring judicial decisions. In light of the principle that justice must be seen to be done, any appearance of bias has rightly been quashed. But on the basis of the recent Gaza activists case, it appears that the same cannot be said for judges who have expressed (or at least could be seen to have expressed) flagrantly political views.

A keen sensitivity to bias is crucial to maintaining an impartial judicial system, untainted by ideological views of any form. Of course, there will always be difficult cases, where one section of the population may consider that a judicial decision is biased but another does not. Recent cases involving religious issues highlighted this difficulty; often the questions asked are ones which philosophers, not just judges, find troubling.

But in cases where judges are expressing controversial and what appear to be politically weighted opinions to a jury, it is hard to see how a court can be seen to be truly impartial. Some might say HHJ Brathurst-Norman’s views are simply the objective truth; but there is a large enough section of the public who would reject this in order to call into question his impartiality.

Unchecked bias in the courts is a problem for all, not just for the owners of arms factories. Moreover, as Lord Hoffmann warned, the more dangerous outcome in cases such as that of the Gaza activists is to encourage vigilante justice; surely even those with strongly held views on international issues will see the danger in that.

Update 6/8/10: Joshua Rozenberg has written a very thorough article on this issue on his Standpoint Blog.

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