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Archive for May, 2014

Chilcot Inquiry

Chilcot Inquiry

Before this Inquiry started its hearings, Public Interest Lawyers commented that the key issues should include the following:

  • Examination of the role of legal advice on the legality of the      invasion and the UK’s international human rights obligations.
  • The misleading of the public over prior commitment to regime      change.
  • The use of indiscriminate weaponry and tactics, including the      targeting of infrastructure, the use of cluster bombs, fuel-air explosives      and depleted uranium shells.
  • War crimes.
  • At least 650,000 deaths, four million refugees and the devastation      of Iraq.
  • A victim-centred approach must be fundamental.

The Inquiry hearings have been held without taking evidence under oath and have expressly excluded legal consequences. Its function was not to apportion blame.

Matters emerging during the Chilcot Inquiry hearings have included the following:

On November 29, 2009 the Mail on Sunday reported that in July 2002 the Attorney-General wrote to Blair stating that to depose Saddam Hussein would be a blatant breach of international law.

In March 2003 he gave legal backing to the War. The newspaper report suggested duress.

The letter of July 2002 is reported to have contained the following points:

  • The War could not be      justified purely on the grounds of regime change
  • It was not self-defence:      there was no threat from Iraq
  • Humanitarian intervention      was not relevant
  • It was very hard to rely      on earlier UN Resolutions.

Elizabeth Wilmshurst, a senior legal adviser at the Foreign Office, told the Inquiry that it was the unanimous view of Foreign Office lawyers that the Iraq War was illegal. She resigned in protest against the invasion. Wilmshurst stated that the invasion was illegal. The rules of international law on the use of force by states are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the UN Charter. The advice of the FO lawyers was ignored by Ministers.

The Attorney-General changed his opinion after a secret briefing with American government lawyers in February 2003. The Americans told him that “the French” had told them that a second UN Resolution was not needed to sanction the War. This has been denied by “the French”. Britain’s decision to go to war was based on a series of private conversations and anecdotes.

Documents relating to the Attorney-General’s advice on the legality of the war are not to be declassified.

Sir Michael Wood, the chief legal adviser at the Foreign Office, stated that he considered that the use of force against Iraq in March 2003 was contrary to international law. That use of force had not been authorised by the UN Security Council and had no other basis in international law.

The Attorney-General was finally consulted only at the very last minute as the troops were ready to go in.

John Prescott is reported to have commented that intelligence reports at the time were “tittle-tattle” and that his role was to support Blair and the Cabinet.

The inquiry has finished its public hearings and is currently analysing the evidence brought before it and is preparing a draft report.

 


First Pathogens Prosecution: Pirbright Institute

Health and Safety Executive v Pirbright Institute (2014) City of London magistrates’ court, April 30.

Significant points of the case

  • In November 20912 and January 2013 a ventilation system at the Pirbright Institute in Surrey, designed to create a negative pressure, was operated in a different configuration from normal.
  • Such a facility would normally be maintained at differential negative pressures to ensure that air containing foot and mouth disease virus (FMDV) would be drawn from clean into dirty areas before being filter cleaned.
  • Neither incident resulted in the release of FMDV to the outside environment. The HSE considered that the shortcomings in control, and non-compliance with licence conditions, were serious enough for legal action to be taken.
  • Changes to operating procedures at the Institute must be properly planned, assessed and agreed in advance with the HSE and with DEFRA. This was not done. The Institute is required to maintain high levels of controls because of the highly contagious nature of FMDV if released.
  • There was no effective alarm system to warn workers about the loss of negative air pressure.

The Pirbright Institute was fined £22,350 plus £50,000 costs for eight breaches of the Specified Animals Pathogens Order 2008. This was the first ever prosecution under the Order.

A Principal Specialist Inspector from the HSE’s Biological Agents Unit commented after the case that at facilities where research is undertaken with foot and mouth disease virus, it is imperative that control measures are applied in a rigorous way. In common with other sites which pose major hazards, either to people or to the environment, there must be protection in depth. This involves having a number of protective measures, with each measure providing some degree of assurance in the event of other failures.


Gerber Juice Health And Safety Prosecution

Crushing death: £80,000 fine

Health and Safety Executive v Gerber Juice Company Ltd (2014) Newport Crown Court, May 16

Gerber Juice Company Ltd has been fined after an engineer was killed by falling pipework.

Significant points of the case

  • In June 2010 Gavin Bedford was dismantling pipework at the company’s premises in Llantrisant, South Wales. The company had closed its factory in Llantrisant. The deceased was one of a small team temporarily employed to work with specialist contractors in stripping the factory of its plant.
  • The factory had become a construction site. The company planned, managed and monitored the project itself instead of appointing a competent principal contractor. The company had overlooked a number of hazardous jibs, including the removal of overhead industrial pipes and their supporting structures.
  • The deceased’s work had not been adequately planned, risk assessed, communicated or monitored by management. The safety systems which the company used to manage its specialist contractors had not been used to manage its own staff.
  • No written plan had been provided to the deceased and his colleagues explaining how the structure was to be safely taken apart. Bolts and structural elements were removed in an unsafe sequence.
  • A structure which weighed 300 kg fell on Bedford, causing fatal head injuries.
  • The site’s production manager was in charge of the decommissioning project despite never having received formal training, nor having done this type of work before.

The company was fined £80,000 plus £75,000 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.

A spokesperson for the HSE is reported to have commented after the case that any demolition or dismantling work must be set down in writing and strictly monitored.


McDonalds: Examples Of Prosecutions

In May 2008 McDonalds was fined £17,000  after a young worker was scalded by hot oil.

In February 2005 a seventeen-year old employee was working at the McDonald’s restaurant in Eastgates, Leicester.She slipped and plunged the whole of her arm into a fryer full of scalding hot oil. She suffered partial thickness and superficial burns to her left arm and forearm. She had to have plastic surgery and missed five months at college because of her injuries.

The filtering machine and fryer vat extension pipe had been leaking oil onto the floor. Employees had placed cardboard underneath to soak it up. This made the slip hazard worse because of the floor’s inadequate slip resistance.

McDonald’s pleaded guilty to not having a safe system of work for preventing spillages and cleaning the floor. Cardboard did not count as a suitable means of removing oil and employees had not been properly trained in their cleaning duties. The maintenance history card on the leaking machine had not been completed for more than a year.

The restaurant’s risk assessment failed to identify suitable control measures for the contamination of floors, the condition of the flooring and employee footwear. Records showed that the branch had not investigated the causes of more than half of all reported accidents in the year before the scalding incident. McDonalds had failed to follow its own accident investigation procedure.

 

McDonalds was fined £12,400 in August 2001 after pleading guilty to 20 charges of illegally employing children. The children were working late at night in the Camberley branch of the company’s restaurant on school days in the restaurant. One 15 year old girl worked for 16 hours on a Saturday. Another worked from 5 p.m. to 2 a.m. on a school day. McDonalds placed the blame on the franchisee.


Old Law 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.

 


Supreme Court Hold LLP Members Are “Workers”

Yesterday (21st May 2014), the Supreme Court ruled that partners of a solicitors’ firm were protected by the whistle-blowing legislation, marking the start of a new era for the first whistle-blowing case against LLP’s.

The Court held that partners were a “worker” for the purposes of employment law legislation. The implications can therefore extend into finance, accounting and legal services due to the LLP structure favoured in these industries.

The decision enables a former Clydes partner to continue pursuing her unfair dismissal case, alongside her sex discrimination by reason of pregnancy claim. This case will now be remitted to the employment tribunal to consider both claims.

It is hoped that the decision will mean that LLPs ensure proper whistle-blowing procedures are in place, which will in turn create greater transparency in the corporate world. We wait to see whether a later Court will extend the definition to “employee”, thereby heightening LLP duties towards their members further.


Health And Safety And Class Justice

The common law gave no health and safety protection for employees. The first Act intended to protect the welfare of people at work was passed in 1802. This followed revelations of the abuse of children in textile mills. The Act was widely evaded and rarely enforced. Further legislation in 1819, 1825 and 1841 was also largely ineffective. By the end of the nineteenth century, an ad hoc patchwork of statutes and regulations was in place.

These Factories Acts have been described as having been wrung step by step from masters after a civil war of half a century.

Frederick Engels, who toured England during the 1840s, gives a detailed description of working class life, including employment in  mines and factories with non-existent safety measures. In general terms, Engels made the following comment:

If one individual inflicts a bodily injury upon another which leads to the death of the person attacked we call it manslaughter. On the other hand, if the attacker knows beforehand that the blow will be fatal we call it murder. Murder has also been committed if society places hundreds of workers in such a position that they inevitably come to premature and unnatural ends. Their death is as violent as if they had been stabbed or shot… murder is committed if thousands of workers have been deprived of the necessities of life or if they have been forced into a situation in which it is impossible for them to survive… murder has been committed if society knows perfectly well that thousands of workers cannot avoid being sacrificed so long as these conditions are allowed to continue. Murder of this sort is just as culpable as the murder committed by an individual. At first sight it does not appear to be murder at all because responsibility for the death of the victim cannot be pinned on any individual assailant. Everyone is responsible and yet no-one is responsible, because it appears as if the victim has died from natural causes. If a worker dies no-one places the responsibility for his death on society, though some would realise that society has failed to take steps to prevent the victim from dying. But it is murder all the same.

 

Engels’ description of working-class life in England in the 1840s includes the following:

Condemned to mass starvation during periods of recession, employed in mines and factories with non-existent measures, housed in disease-ridden slums. What is true of London, is true of Manchester, Birmingham, Leeds, is true of all great towns. Everywhere barbarous indifference, hard egotism on one hand, and nameless misery on the other, everywhere social warfare, every man’s house in a state of siege, everywhere reciprocal plundering under the protection of the law, and all so shameless, so openly avowed that one shrinks before the consequences of our social state as they manifest themselves here undisguised, and can only wonder that the whole crazy fabric still hangs together.

 

  • including the use of cleaning chemicals at the wings, use of acids in the boiler house, and exposure to wood dusts and paints in woodworking, resulting in two prisoners being exposed to chlorine gas.

 

The origins and significance of health and safety law

Health and safety law is of crucial significance to any analysis of English law. It is different from most other aspects of law in that it expressly protects the interests of the working class.

Health and safety in its widest sense, includes statutory rules and regulations, common law negligence and aspects of employment law. Health and safety suffers from not being taken seriously and from its enforcement being seriously underfunded in comparison with other areas of criminal law.

 

The historical context of health and safety law

The industrial revolution of the early nineteenth century resulted in a massive, rapid and uncontrolled increase in the number of workers employed in factories. Workplace conditions were observed and described by a number of contemporary reformers.

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.


Constance Briscoe, Barrister, Jailed For Perverting Course Of Justice

Earlier this Ms Briscoe, barrister and Crown Court Recorder (i.e. a part-time judge) was jailed for 16 months for lying to police in Chris Huhne’s speed point case. Her conviction follows the finding that she deliberately lied to the police during their investigation into the former MP, Mr Huhne.

Ms Briscoe was one of the first black female Crown Court Recorders, and had previously published memoirs regarding her rise through the Bar following a tough upbringing. She successfully defended a libel case brought by her mother in 2008 in relation to these memoirs. However, she is now facing further criminal investigation into allegations that she fraudulently obtained medical documents from Southwark Council to support her defence. Further, as formal proceedings to remove her from the judiciary have begun, defendants could raise concerns over their convictions.

It is a startling fall from grace for the eminent lawyer. Perhaps, the case could be seen as a victory for the law. As Detective Chief Inspector John McDermott commented after Ms Briscoe’s sentence, “today shows that no-one is above the law and perverting the course of justice is a serious offence”.

However, it is a worrying fact that a guardian of the law was found to have such little respect for the very principles she was seeking to uphold.

 

In light of the above, Polly will be running a seminar on 6th June 2014, on the following topic:

Has the course of justice been perverted? An analysis of the current state of the English Legal System


Law Reform: Pointless?

Some lawyers who have made a reasonable living from the practice of English law have not embraced the legal system as a saviour or a benefactor. They have always been critical. They aim to continue to be critical. They will not forget the circumstances in which their families struggled to survive and the role of English law in the preservation of a social and economic system which condemned their parents and grandparents to lives of unceasing toil and hardship.

Some lawyers do not love the law. They do not find it particularly fascinating. They do not like putting on fancy dress or enjoying the sound of their own voices.

They do feel passionate about the denial of justice to the poor.

These lawyers do not find themselves under any obligation to put forward positive suggestions for the reform of the system other than to call for a national network of properly-funded Law Centres. Those who did not create the English legal system  have no responsibility for its rescue.

Law reformers are thick on the ground in England, beavering away for years in committees which produce vast reports which are then often forgotten, or sweating over their chances of academic promotion by producing books and articles advocating the reform of  specific areas of law.

When law reform is carried through, more often than not it creates more complexities and obscurities than it resolves. The conditional fee system, for example, imported from America despite decades of principled opposition from those who reacted with revulsion against ambulance chasing, sounds deceptively simple. Some claimants have an almost childlike faith in “no-win no fee”, which on the face of it is a clear concept. The reality is different.

The conditional fee system is overlaid with a mass of detail related to insurance. Insurance companies have profited massively since the evisceration of legal aid.

The system of conditional and/or contingency fees is so complex that it has become a new area of specialism. It may soon be a specialist subject in its own right, on law degree syllabuses. Non-experts have very little chance of understanding, let alone explaining, its bewildering complexities. There is plenty of money to be made from specialising in conditional fee law without ever taking on a no-win no-fee client.

The reality is that lawyers will not generally take on no-win no-fee cases unless they are virtually unloseable.

Another example of a failed reform was the introduction of the employment dispute regulations. This reform was money-based with the overall intention of cutting down the number of employment tribunal claims. The new regulations were generally accepted to be disastrous and have now been repealed


Lawyers and the Iraq War

I don’t give a shit about international law.

(Thomas Foley, appointed in 2003 as head of private sector development in Iraq)

 

At the heart of the British nation is still the horrible, exploitative, violent, colonial past. We’ve never got rid of it. So we go into Iraq and think “these Iraqis, they’re savages. Forget about Iraq being the cradle of civilisation. As a nation, we don’t really care”.

(Phil Shiner, Public Interest Lawyers)

 

Any resort to war – any kind of war – is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequences of the treaties making aggressive war illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave the war-makers subject to judgment by the usually accepted principles of the law of crimes. (Justice Robert H Jackson)

 

George Monbiot

In May 2008 Monbiot attempted a citizen’s arrest of John Bolton, former Under-Secretary of State in the US State Department, for the crime of aggression. The international criminal law background to this action was that:

  • Principle VI of the Nuremberg Principles states that crimes against peace are punishable as crimes under international law. This includes:
  • Planning, preparation, initiation or waging a war of aggression or a war in violation of international treaties, agreements or assurances.
  • Participation in a common plan or conspiracy for the accomplishment of any of these acts.
  • Principle VII states that complicity in the commission of a crime against peace, a war crime, or a crime against humanity is a crime under international law.

Monbiot alleged the following:

  • Bolton had orchestrated the dismissal of the head of the Organisation for the Prohibition of Chemical Weapons, who had offered to resolve the dispute over Iraq’s alleged weapons of mass destruction and avoid the war.
  • Bolton had helped to promote the false claim that Saddam Hussein had been seeking to procure uranium from Niger as part of a plan to initiate war.

Monbiot’s attempt to arrest Bolton was unsuccessful. He made the following points:

  • His attempt was the most serious action which could be taken by someone who was neither a Law Lord nor a legislator.
  • The British state was prepared to punish petty misdemeanours with vindictive ferocity but it would not legislate against the greatest crime of all.

 

Monbiot’s case against Blair

A Downing Street memo in July 2002 revealed that the decision to attack Iraq had already been taken by the US.

There were three possible legal bases for the War: self-defence, humanitarian intervention or authorisation by the UN Security Council.

The conditions for a lawful war are:

  • An armed attack upon the state or an imminent attack.
  • The use of force must be necessary and other means to reverse or avert the attack must be unavailable.
  • Acts in self-defence must be proportionate and strictly confined to the object of stopping the attack.

In January 2010 Monbiot launched a fund to reward people who attempted to arrest Blair. If the War was illegal, a question which Monbiot regards as the only one which counts, then the War becomes a criminal matter. Monbiot made the following points:

  • Those who commissioned it should be committed for trial.
  • An inquiry in the Netherlands found that the invasion of Iraq had no sound mandate in international law.
  • Without legal justification, the Iraq War was an act of mass murder.
  • The International Criminal Court should be allowed to prosecute the crime of aggression.
  • There must be no hiding place for those who have committed crimes against peace.
  • No civilised country can allow mass murderers to move on.

Monbiot has launched a website, www.arrestblair.org, whose purpose is to raise money as a reward for people who attempt a citizen’s arrest of the former prime minister.