More developments under Schedule 7

img_6780706_340Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin)read judgment

In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.

The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.

Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.

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“Law is no trade, briefs no merchandise”

supreem-court1In Re Rameshwar Prasad Goyal, Advocate, Supreme Court of India, 22 August 2013, read judgment

For the moment, at least, the idea of Stobart-law, supermarket-law, or call-centre-law as the solution to the increasing cost of criminal justice seems to be on hold. But this broadside from the Indian Supreme Court (including my title) helpfully reminds us that the relationship between judges, advocates and their clients fits with difficulty into the bilateral model of most of the entirely commercialised world. The advocate owes a more complex set of duties to the court as well as to his or her client than are typically found in a haulage contract.

Shri Rameshwar Prasad Goyal, Advocate-on-Record or AOR in this case, is, according to Indian court statistics, a very busy man. He was acting  in 1678 cases in 2010, 1423 cases in 2011, and 1489 cases in 2012. But he has never actually appeared in court on behalf of his clients. Indeed a request from the Court in the present case for him to appear to explain himself was refused – try that in the High Court in the UK. It did not go down well in New Delhi either. The Court, having chucked out his hapless client’s application, declared that Goyal was guilty of conduct unbecoming an advocate, and told him that if he did not do better over the next year (i.e. turn up to court for his clients) he would get struck off.

The underlying facts show the dangers of allowing all of law to be run completely on business lines. Goyal had found an excellent and cost-efficient business niche. But as the Court explained

In a system, as revealed in the instant case, a half baked lawyer accepts the brief from a client coming from a far distance, prepares the petition and asks an AOR , having no liability towards the case, to lend his signatures for a petty amount. The AOR happily accepts this unholy advance and obliges the lawyer who has approached him without any further responsibility. The AOR does not know the client, has no attachment to the case and no emotional sentiments towards the poor cheated clients. Such an attitude tantamounts [sic] to cruelty in the most crude form towards the innocent litigant.

What is it about law that gives rise to this imbalance? If I go into the bread shop, and am asked £10 for my loaf, I walk out, because I know the price of bread. If I go to my lawyer about a case, which as an individual, I may do (if I am unlucky) once in my life, I have little idea of the standard of the service which I might receive. Even if it were Stobart- or Tesco- law, I might hope that they do things reasonably well, but in truth most people would not really know. Indeed most of us expect never to be arrested in our lives, so we don’t know what can be done by our lawyers if we end up there.

That said, turning up to court is normally expected of an advocate. Indeed, a little more than that, as the Court cuttingly observed

Thus, not only is his physical presence but effective assistance in the court is also required. He is not a guest artist nor is his job of a service provider nor is he in a professional business nor can he claim to be a law tourist agent for taking litigants for a tour of the court premises.

“Service provider”, now there is a phrase beloved of those designing our new criminal justice system – necessary, but not sufficient, for justice.

The Court continued by pointing out that in the present era, the legal profession, once known as a “noble profession”,

has been converted into a commercial undertaking. Litigation has become so expensive that it has gone beyond the reach and means of a poor man. For a longtime, the people of the nation have been convinced that a case would not culminate during the lifetime of the litigant and is beyond the ability of astrologer to anticipate his fate.

The  UK system still has to crack the costs of litigation, given the  conflicting difficulties of litigating properly and cost-efficiently for clients, but it is at least working on that hard, But we do seem to have sorted the time it takes to get to answer problems which we set our judges. Timing has been ruthlessly policed by our courts in recent years, so that you need a pretty good excuse for doing something late or slowly. So, unlike the gloomy picture presented by the Indian Supreme Court, most people know whether they have won or lost before they die – so astrologers are not generally necessary.

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Miranda case shows we need more secrecy laws… or does it?

David MirandaAs the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.

The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.

Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:

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David Miranda Special Edition – The Human Rights Roundup

TrollWelcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.

Picturing a dystopian world and totalitarian government, it is perhaps fitting that Aldous Huxley takes the title of Brave New World from lines uttered in The Tempest by the character named Miranda.  It is a different Miranda who dominates this week’s news, opening the debate on Schedule 7 of the Terrorism Act 2000.

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They paved Plantagenet ‘n put up a parking lot

p180vajuda12ijjc57ac1qhh37s1The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 15 August 2013  read judgment

I spent long hot summers in the 1970s digging up the remains of Saxons and prehistoric Greeks. In Greece, skeletons were good time-consuming cannon-fodder for incompetent interns, whilst real archaeologists got on with the serious stuff of looking for walls and post-holes. So I can understand the impulse which took the Plantagenet Alliance to court about the bones of Richard III with its diagnostic severe scoliosis. 

The judge gave the Allliance permission to seek judicial review of the Secretary of State’s decision about re-burial. But I question the result –  does the Alliance really have a legal right to be consulted about where Richard III is to be re-buried?

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David Miranda – Remember his name.

David MirandaOur attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.

But we know , somewhere in the back of our minds, that we are being fooled.

As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.

That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.

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High Court upholds autonomy over fatherhood for learning disabled man

sterilisationNHS Trust v DE [2013] EWHC 2562 (Fam) 16 August 2013 – read judgment

For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.

The NHS Foundation Trust  made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability.  After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.

But things changed dramatically for the worst in 2009, when PQ became pregnant and  had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.” Continue reading