Archive for October, 2013

B-52 Two

B-52 Two

In May 2007 Phil Pritchard & Toby Olditch, known as the B-52 Two, were acquitted of conspiracy to cause criminal damage. They had broken into RAF Fairford shortly before the invasion of Iraq with the aim of immobilising B-52 bombers to prevent them from bombing Iraq.

The two men were arrested inside the perimeter fences at RAF Fairford in the early morning of 18 March 2003, two days before the bombing of Iraq started. They carried with them tools to damage the planes, nuts and bolts to jam the aircrafts’ engines, pictures of ordinary Iraqi civilians and paint symbolizing blood and oil. They also carried warning signs for attaching to any damaged planes which would help alert aircrew to their action. The two men acted nonviolently in a way which would not result in harm to anyone, including the military personnel at Fairford. They intended to stay with the aircraft and tell the operators what they had done.

The jury at Bristol Crown Court accepted their defence that they were acting to prevent the US Airforce committing war crimes and causing damage to life and property in Iraq. The two argued that their action was reasonable because other means of protest had failed. They were acting to prevent a crime: potential war crimes against Iraqi civilians and to prevent criminal damage to Iraqi property.

The B-52 Two stated that they were nonviolent and accountable, attempting to prevent the deaths of innocent Iraqis in an illegal war. They were careful to ensure that no harm would come to anyone from their action.
They maintained that war crimes were committed in the bombing as cluster bombs, which spread unexploded bomblets that kill and maim civilians (like mines) were used, as were ‘bunker busting’ bombs tipped with depleted uranium which broke into fragments, spreading radioactive toxins which are harmful to civilians.
During the trial the prosecution accepted that even delaying the bombers would have prevented civilian casualties, as it would have allowed those fleeing cities more time to escape. In his summing up the judge explained the legal tests that must be met for the prosecution to succeed. A document ‘steps to verdict’ had been provided to assist the jury.
Toby Olditch commented after the case that he and Pritchard were overjoyed, and thankful for the good sense of the jurors, for the wonderful support they had received, and for the commitment and expertise of their legal representatives. But hundreds of thousands of Iraqi people had still suffered as a result of the Government’s actions. It shouldn’t have come to the point that people had to take direct action to try to check the abuse of executive power.
Phil Pritchard stated that he was delighted that the jury had returned a unanimous not-guilty verdict. Their action in trying to prevent illegal attacks on the people of Iraq in 2003 had been vindicated. He hoped that war of this kind never happened again.

Old Books For The Third World

Pro bono initiatives

Old books for the third world

The organised distribution of secondhand law books to sub-Saharan Africa, the poorer parts of Asia and the Caribbean has been hailed as a contribution to the underpinning of individual liberty and democratic government. The organisers do not seem to have realised the contradictions inherent in this scheme.

First, an old law book is more like out-of-date food than like an old overcoat. Old overcoats can keep you warm, but old law books, like food which is past its sell-by date, are worse than useless – they are dangerous. If it were to be suggested to a successful British lawyer that he or she might rely on old editions of legal textbooks donated by inhabitants of former colonies, this would rightly be regarded as an insult. Developing countries deserve more than our castoffs, just as poor people deserve more than our old clothes.

No decent British lawyer would use an out of date textbook. If she did, she would risk liability for negligence. Old law books are simply wrong, and valueless, because they contain out of date material. If you are involved in litigation and your opponent has a new book, while you have an old one, you are suffering a tremendous disadvantage.

Second, the distribution of such useless material to the deserving poor is one of the clearest examples of the pro bono movement not thinking its actions through. If law books are essential for democracy in “the poorer parts of Asia”, then why should those who thirst for democracy not have access to up to date material? Are we seriously expected to believe that a poverty-stricken Asian lawyer will give heartfelt thanks when he receives an old edition of Archbold? The attitude seems to be that old law books are no use to us, but the colonies will be grateful for them.

Third, it has been reported that the major law publishers are involved in this patronising exercise. But it seems clear that their largesse stops short of giving new law books away, even though they are essential for democracy. Law publishing is known to be a highly profitable business, and the cost of new editions of law books makes them unavailable to anyone other than the very rich or those with access to a law library. The distribution of  new editions of law books to the deserving colonies would carry more weight if useful texts, rather than useless castoffs, were given away. Lawyers in developing countries will have a long wait if they expect deliveries of new law books from multinational publishers.

One of the organisers of the distribution of unwanted old law books is reported to have said that all of those who work on the project feel that what they are doing is in tune with the times.











Class Justice and Magistrates’ Courts

The realities of class justice can be seen in the magistrates’ court on any day when it is in session.

A visit to a magistrates’ court in any city will show class justice at its clearest. At the top of the class, the haves: magistrates, lawyers, probation officers, social workers, well-educated, well-dressed, well-fed, articulate, self- confident, secure and in control. The courts are their realm. They have the knowledge and the power.

At the bottom of the class, the have-nots, defendants and witnesses, poorly-educated, confused, inarticulate, out of control. The weak, vulnerable, inarticulate, inadequate, excluded. They wait to be processed by a system which excludes them except as victims.
There is never the slightest doubt as to which class they belong. It is impossible to confuse a twenty-year old charged with burglary with a twenty-year old trainee solicitor, or a fifty-year old woman accused of petty theft with a magistrate of the same age.

You may see the odd radical lawyer or the unusual white-collar accused.

You are unlikely to spot a tax evader, a weapons salesman, a loan shark, a polluter or an employer who negligently kills or injures workers. You will never see a war criminal. You are more likely to see an obese young single mother in handcuffs, waiting to be sent to prison for shoplifting. The prisons fill up with the have-nots, while the war criminals excuse themselves from responsibility. But the machine of the criminal courts grinds on, processing the alienated and excluded.

Crown Censures: Class Justice?

The shadowy issue of Crown immunity arises in the context of both criminal and civil proceedings. Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The concept is inextricably bound up with the development of the unwritten British Constitution and the relationship between the monarch, central government, legislation and the enforcement of criminal law.

Criminal proceedings
The following points may help with an understanding of Crown immunity:
• The literal meaning of “Crown” is “an ornamental badge of regal power worn on the head of sovereign princes”. In general terms, it means the monarch. This involves a consideration of the constitutional position of the monarchy as the head of state.
• In strict legal and constitutional theory, legislation cannot come into force until it has received the Royal Assent, that is, consent by the monarch.
• The “Crown” now applies to the collective structure of central government in the United Kingdom.
• The monarch is personally immune from prosecution or criminal proceedings. This is one reason why the execution of Charles I was deemed to be illegal after the restoration of the monarchy.
• In constitutional law, the King (or Queen) can do no wrong. He/she is never a minor and never dies.
• Crown immunity also applies, by implication, to the ruling sovereigns of other states. This does not extend to deposed or exiled sovereigns who happen to be within the jurisdiction. The authority for this is cited by Archbold (the barristers’ bible) as R v Mary, Queen of Scots (1586).
• Criminal prosecutions are conducted on behalf of the Crown and generally brought in the name of the Queen. Criminal cases are cited as “R v …” which is an abbreviation of “Regina v…”.
• The general principle is that the Crown is not bound by any statute. This principle may be displaced where there is an intention stated in the statute that the Crown should be bound.
• The principle extends to Crown servants acting in the course of their official duties, Crown property and property occupied by the Crown for public purposes. It covers, for example, the Ministry of Defence, the Prison Service and the Royal Mint.
• Section 48 of the Health and Safety at Work, etc., Act 1974 states, in summary, that sections 1 to 54 of the Act, except for sections 21 to 25 and 33 to 42, shall bind the Crown. But this does not mean that criminal proceedings may be brought against the Crown. It should also be noted that liability under the 1974 Act cannot, in itself, give rise to civil liability.
• It is also significant that the Working Time Regulations 1998, regulation 37, states in summary that the regulations have effect in relation to Crown employment. No act or omission by the Crown shall make the Crown criminally liable, but the High Court or the Court of Session in Scotland may make a declaration that such act or omission is unlawful. There appear to be no reported examples of such declarations.
Crown Censure proceedings are brought by the Health and Safety Executive as an alternative to criminal prosecutions. These proceedings have no formal legal basis and it is difficult to find information about them through standard sources. It is thought that the HSE has reached agreement with the government that the proceedings will be used in appropriate circumstances. The proceedings have been used in a number of reported cases, mostly involving the prison service and the Ministry of Defence.
The proceedings are not open to the public. Trade union representatives may be invited to attend. The procedure is not a trial and it is chaired by a senior HSE inspector. The procedure has no statutory basis but is set out in a Cabinet Office Personnel Information Note. The aim of a Crown Censure hearing is to seek acknowledgment of the problem and to improve standards of health and safety. The absence of an agreed and documented procedure led to “some difficulties”. This resulted to the issue of the Cabinet Office note.

Human Rights: Individual Or Collective?

It has also been commented that if you look globally today and want to talk about human rights, for the vast majority of the world’s population they don’t mean very much. To talk about freedom of expression to a man who can’t read the newspaper, to talk about the right to work to someone who has no job: “human rights” means nothing to them unless it brings some change on these particular issues.
Western countries have not given economic, cultural and social rights the same priority as individual political and civil rights. The view of many Asian countries is that Western human rights elevate the individual above his community.
For example, in 1991 the Singapore government identified the core values of Asian society as placing society above self, upholding the family as the building block of society and the obligations of the community towards the welfare of less advantaged persons.
Some Asian countries also take the view that individual human rights are Western ideas imposed upon Asia as a form of neo-colonialism.
Chronic underdevelopment, grinding poverty, mass unemployment, homelessness, widespread illiteracy, systematic inequalities of income and opportunities and lack of healthcare can be seen as gross violations of human rights. Poverty is not simply a matter of material deprivation. It is a matter of human dignity, justice, fundamental freedoms and basic human rights.
Economic, social and cultural rights have no less priority than political and civil rights. They should be acknowledged as full legal rights which must be taken as seriously as civil and political rights. People whose economic rights are infringed are the majority. More children die of lack of food or water than people who are killed by torture or the death penalty.
In Western countries economic and social rights are treated as welfare state or socialist programmes, not as fundamental human rights. There has been academic discussion as to whether socio-economic rights can qualify as human rights. Cranston, for example, takes the view that social and economic rights are not true human rights because they do not meet the test of practicability, universality and of being of practical importance.

In The Olden Days…

In the early nineteen-seventies, it was a rule of professional practice, but not of law, that where a QC was instructed, a junior barrister also had to be hired, normally for two-thirds of the QC’s fee. The client therefore had to pay three times for legal advice and representation: once for the solicitor, once for the QC and again for the junior.

The role of the junior was vague. He or she often just sat next to the QC, known as a leader, perhaps taking notes, asking the occasional question or looking up points of law.

In one case, the client was involved in a messy divorce. The custody of his children had been contested and was granted to his ex-wife as mother of the children. The client was determined to take the case to the Court of Appeal despite being advised that he had little chance of success. A QC was hired for £1000 a day, financed by the client’s father. The father also paid the costs of the solicitor and the junior. The case lasted two days in the Court of Appeal. The custody decision was confirmed on appeal, as seemed to be inevitable. The client was emotionally devastated. His father had to sell his house to pay the legal costs. He also had to pay the costs of the other side.

Before the Divorce Reform Act 1968 came into force, the undefended divorce case was an easy source of income for barristers. Where the divorce was not contested, and the facts were agreed, the contents of the divorce petition still had to be read out in court. The barrister simply had to take the client through the petition point by point, often bringing out the most harrowing details of cruelty or sexual perversion. For this technical exercise in public humiliation, the barrister normally picked up 25 guineas.

Specimen Opening Statement For An Unrepresented Client

• Ask the court or tribunal for permission to make a brief opening statement.
• Explain one’s own position so far as any or all of the following apply: limited financial means, no legal training or background, inability to obtain representation because of lack of money. Employment, medical and family status. Legal aid not available. No legal expenses insurance. Not a member of a trade union. Unable to obtain conditional fee. Have approached local Law Centre and charitable bodies for example the Bar Pro Bono Unit, without success.
• Draw the attention of the court or tribunal to the overriding objective of the Civil Procedure Rules. The overriding objective of the Rules is to enable the court to deal with cases justly. This includes ensuring that the parties are on an equal footing.
• Submit that the parties are not on an equal footing because the defendant has legal representation which he can afford, whereas claimant does not.
• Draw the attention of court or tribunal to Article 6 of the European Convention on Human Rights: in summary, everyone is entitled to a fair trial. Submit that there is a danger of this principle being breached where one party can afford representation and the other side cannot.
• Draw the attention of the court or tribunal to the decision of the European Court of Human Rights in the case of Airey v Ireland (1979) 2 E.H.R.R. 305, where that court ruled that there had been violations of Article 6 because Mrs Airey did not enjoy an effective right of access to the Ireland High Court to seek a decree of judicial separation. Legal aid was not available for the purpose of seeking judicial separation and Mrs Airey had insufficient means to pay the cost of proceedings herself. The court made the following points:
The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.
The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.
It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.
• Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
• Point out to the court or tribunal the decision in Bertuzzi v France (2003)In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.
The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:
The relevant authorities should have arranged for a replacement who would provide B with proper assistance.
Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.
The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
• State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.

Albert Camus on Lawyers’ Charity

Camus, The Fall

This is the story of a successful barrister who appears to be the epitome of good citizenship and decent behaviour. Circumstances explode his sleek self-esteem. He sees through the deep-seated hypocrisy of his existence to the condescension which motivates his every action.

The feeling of the law, the satisfaction of being right, the joy of self-esteem… I loved to help blind people cross streets. From as far away as I could see a cane hesitating on the edge of a pavement, I would rush forward, sometimes only a second ahead of another charitable hand outstretched, snatch the blind person from any solicitude but mine, and lead him gently but firmly over the pedestrian crossing amidst the hazards of the traffic towards the quiet haven of the other pavement, where we would separate with a mutual emotion… I always enjoyed telling people the way in the street, giving a light, lending a hand with heavy barrows, pushing a stranded car, buying a paper from the Salvation Army girl.

Being stopped in the corridor of the law courts by the wife of a defendant you represented for the sake of justice or pity alone – without charging a fee – hearing that woman whisper that nothing could ever repay what you had done for them, replying that it was quite natural, that anyone would have done as much, even offering some financial help to tide over the bad days ahead, then – in order to cut the effusions short and preserve their proper resonance – kissing the hand of a poor woman and breaking away…

In 1957, Camus was awarded the Nobel Prize for literature, with a prize of $42,000. He deposited the cheque in a bank in Stockholm and forgot about it until some months later, when he was asked by the bank what he wanted them to do with the funds.
Camus’ attitude to prizes and honours forms an interesting contrast with the ethos of lawyers’ charitable work. For example, in November 2009 it was reported that more than 50 “pro bono heroes” attended a Parliamentary reception hosted by the Attorney-General. She is reported to have commented that it was not in the nature of lawyers who acted pro bono to seek recognition or praise for their efforts. The reception was a way of celebrating the work of pro bono heroes. The glaring contradictions of this statement were not recognised.