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Archive for May, 2012

Employment of Children:Beecroft

Employment of children

In 1815 Robert Owen toured the main factories of Britain. He observed that “in some large factories from one-fourth to one-fifth of the children were either cripples or otherwise deformed, or permanently injured by excessive toil, sometimes by brutal abuse”.

EP Thompson has described working conditions in Manchester in 1832 as including eight-year old children being forced to work a fourteen-hour day. Thompson concluded that the exploitation of little children, on this scale and with this intensity, was one of the most shameful events in our history.

Adrian Beecroft is described as a “venture capitalist” and a prominent donor to the Conservative party. It has been reported that his investments include Wonga, the high-interest moneylending company.He was commissioned by the government to prepare a report reviewing employment law reforms.

It was reported in the press that key recommendations in the report, completed in October 2011, were supressed. These related to delaying plans to introduce flexible working for parents, to abandoning proposals for all workers to request flexible working and to remove regulations surrounding the employment of children.

Proposals in the Beecroft report which have been published include:

  • No fault dismissal. Beecroft has been reported as commenting that workers could end up being sacked simply because their employer did not like them. This was sad but was a price worth paying.
  • Small companies should be exempted from a range of employment protection rules including forced pension contributions, flexible parental leave and equal pay audits.
  • Changes to the transfer of undertakings rules. This would probably breach European law.

Frederick Place Chambers takes the opposite view. It asserts socialist principles of employment law and calls for employment protection to be extended rather than diluted. In our opinion, calls to reverse advances made by working people should be strongly and consistently resisted.


Sam Hallam

Miscarriages of justice

The quashing of the conviction of Sam Hallam may remind readers of the following:

Guildford Four. In summary, a group of three men and one woman who were convicted for the Guildford pub bombings in 1975. All four confessed. They were sentenced to life imprisonment. The trial judge is reported to have commented that he regretted that they had not been charged with treason, which carried the death penalty. Their convictions were quashed in 1989. They stated that their confessions had been obtained by intimidation and torture. Alibi evidence was not shown to the police. There was evidence of police collusion in fabricating evidence.

 Maguire Seven. Seven persons who were convicted of handling explosives and were sentenced to terms ranging from 4 to 14 years. The convictions were quashed in 1991. The court stated that police officers had beaten some of them into confessing and had withheld information. Forensic evidence was discredited.

 Judith Ward. A woman who confessed to a number of bombings. She was convicted despite retracting the confessions and spent 18 years in prison before her conviction was quashed. Her confession had resulted from a mental illness. Forensic evidence was unreliable.

Birmingham Six. Six men sentenced to life imprisonment in 1975 for the Birmingham pub bombings. Their convictions were overturned in 1991. They had been forced to sign statements and there was evidence that the police had fabricated evidence.

 Bridgwater Four. Four men convicted of murder in 1978. In 1997 they were released on the basis that their trial had been unfair. Allegations of serious, substantial and widespread police malpractice.

Tottenham Three. Three men convicted of murder following the Broadwater Farm riots in 1985. Their convictions were quasghed four years later when it was shown that police notes of interrogations had been tampered with.

Stefan Kiszko. Kiszko spent 17 years in prison for a murder to which he confessed. Forensic evidence had been suppressed by the police. He was released in 1992. The Kiszko case has been described as the worst miscarriage of justice of all time.

 Cardiff Three. Three men who were sentenced to life imprisonment for murder. Their convictions were quashed by the Court of Appeal. Police evidence was described as almost entirely a fabrication and largely the product of the imagination. The court stated that it was hard to conceive of a more hostile and intimidatory approach by police officers.

Sally Clark. A solicitor, wrongly convicted of the murder of her two sons. She was released after serving three years of her sentence. Statistical evidence was deeply flawed. Clark was unable to recover from the effects of her conviction and imprisonment.
These are some of the most extreme and well-publicised examples of the wrongful conviction and imprisonment of the innocent. The list goes on and on but never seems to affect the constant myth that English justice is the finest in the world, that all foreign systems are in some way inferior.

In McIlkenny v Chief Constable of West Midlands Police Force (1980), where the Birmingham Six, later to be released on appeal, brought civil proceedings against the police. Lord Denning struck out the action and commented:
If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, and that the confessions were involuntary and were improperly admitted in evidence and that the convictions were erroneous. That would mean that the Home Secretary would either have to recommend that they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go further.


Law Reform Proposals

Reform proposals

In 1986 Lord Gifford QC published proposals for the reform of the justice system, described as a realisable manifesto for a complete overhaul of the legal system. This included the following:

     

  • The position of Queen’s Counsel to be abolished. It is better, in Gifford’s opinion, for lawyers to be assessed by their talents and reputation rather than by the secret bestowal of honours by the state.
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  • Wigs and gowns no longer to be worn. The wig and gown are intended to convey a message: that we, judges and barristers, are different and superior; that we have more in common with each other than with you, the litigants; that we practice a craft which you can never understand.
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  • Judges to be appointed from a wide range of people, including younger people, solicitors and academics.
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  • Magistrates to be selected from across the whole community.
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  • Extension of the right to trial by jury.
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  • Court procedures to be reformed to meet the needs of the public.
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  • Extension of the legal aid scheme.
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  • The creation and proper funding of a network of community law centres across the country. The Legal Aid and Advice Act 1949 was based on the principle that no-one should be prevented from obtaining the services of a lawyer through lack of means. State funds were made available through a means test. In 1950 an estimated 80 per cent of the population was covered by legal aid.
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  • The abolition of the monopoly of advocacy. This was a very interesting proposal. Gifford argued that non-lawyers should have the right to represent people in court and that all qualified lawyers should have rights of audience before all courts. This would move towards the democratisation of the legal system. If implemented, it would strike a serious blow at the power of the legal profession.
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Gifford also made the following points:

     

  • Comprehensive legal services should be provided in a similar way to health services.
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  • Socially and culturally, the Bar is a privileged profession which is structured to exclude those who do not fit in.
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  • The role of judges should be to uphold the law equally and impartially. But when they have no conception of what it is to be, for example, a worker facing redundancy, they are incapable of discharging that role.
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This programme of reforms was adopted as part of the election manifesto of the Labour party and then forgotten.

In reality, we have moved backwards since 1986.

It is significant that Gifford’s proposals are similar, in some respects, to those put forward by the Levellers in the Seventeenth Century.

The Levellers’ proposed reforms included:

     

  • Codification and simplification of the law
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  • Prison reform
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  • Decentralisation of the legal system
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  • The abolition of the lawyers’ monopoly on representation and advocacy.
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Compensation Awards

The Ogden Tables

These Tables took their name from Michael Ogden QC who was the chair of the working party which first drew them up. They involve the calculation of multipliers for future financial loss in personal injury cases based on actuarial principles. They are of crucial significance in personal injury cases.

The multiplier takes a claimant’s life expectancy and multiplies it by a rate of annual loss. The age of the claimant is a key factor. The Tables do not refer at all to a claimant who does not know his or her age.

The assessment of compensation is a highly-paid branch of law on its own. It is practically impossible for a successful claimant to accurately calculate his amount of compensation himself. Money can thus be made by lawyers from deciding on an amount of money.

The assessment of amounts of compensation for civil wrongs depends, as a starting point, on the age of the claimant. Legal textbooks dealing with civil procedure state, without further explanation, that formulas for future loss of earnings and other aspects of compensation depend upon the claimant’s age. The assumption of knowledge of age is the basis of the entire system of assessing amounts of compensation. Did the compilers of the Ogden Tables realise that some citizens have no birth certificates? Those of us who have worked with deprived persons from the Afro-Caribbean community know that, for a number of the middle aged and elderly, their date of birth is unknown. They know that they were born in the Caribbean fifty or sixty years ago but they have no record of their date of birth. The absence of proper certification systems in the colonial or post-colonial territories, with the implication of a legacy of slavery, means that such persons are at a huge disadvantage in their dealings with the legal system. On top of their weakness on financial and educational grounds, they face the added disadvantage of a third-world registration system up against a first-world legal system. How can you assess compensation if the client does not know his or her age? The unthinking assumption that all potential claimants know their dates of birth can be characterised as a form of unintentional racism in that it places certain ethnic groups at a disadvantage.

The issue of those who do not know, or cannot prove their age, is significant in the context of asylum and immigration cases, where “age dispute” is a recognised area of law. The Ogden Tables are untouched by this reality.