This week’s dance round the legal maypole includes news and commentary about the historic fresh inquest verdicts from Hillsborough, a Home Secretarial salvo against Strasbourg, three tiers of judicial recruitment, and problems with fair trials.

Inquests

Hillsborough verdicts

A second set of inquests into the deaths of 96 football fans killed at the Hillsborough football stadium in April 1989 has concluded, after hearings lasting two years, that the deceased were unlawfully killed. Under the direction of the coroner, Sir John Goldring, the jury of six women and three men answered 14 questions relating to the causes of the tragedy and found a catalogue of failings by police and the ambulance services contributed to the deaths. They rejected the previously accepted explanation that drunken fans who surged into the stadium through a gateway had caused the crush that led to the deaths, and dispelled a number of other assertions about the conduct of fans on the day. Their conclusions were “comprehensively damning” of South Yorkshire police’s planning and handling of the match, according to The Guardian

As well as the failings of the South Yorkshire police, the jury criticised the South Yorkshire ambulance service, Sheffield Wednesday football club and its engineers, Eastwood and Partners. They concluded that there were safety deficiencies on the part of Hillsborough itself, Sheffield city council and other authorities whose duty it was to license the ground for safety, and that the 96 died by gross negligence manslaughter.

May Day!

Convexit? HRexit? What do you call it?

The idea that Britain could exit from the Council of Europe / ECHR but remain in the EU seems like one of those “hold the tomatoes, substitute slaw” menu choices in American diners, or some crazy kind of treaty sweetshop pick-n-mix – but it’s what the Home Secretary, Theresa May has plumped for in a bid to position herself in distinction from other future Tory leadership candidates, and perhaps politicians generally.

May’s speech, or positioning statement, can now be read on the Conservative Home blog here.

In it, having stated that membership of things like Nato, the UN and the WTO pass the test which she sets – basically a tripartite one involving “influence”, “prosperity” and “security”, plus a tie-breaker based on whether it “ties the hand of Parliament” – she goes on to decide that the ECHR does not.

the case for remaining a signatory of the European Convention on Human Rights – which means Britain is subject to the jurisdiction of the European Court of Human Rights – is not clear. Because, despite what people sometimes think, it wasn’t the European Union that delayed for years the extradition of Abu Hamza, almost stopped the deportation of Abu Qatada, and tried to tell Parliament that – however we voted – we could not deprive prisoners of the vote. It was the European Convention on Human Rights.

Her use of the phrase “despite what people sometimes think” is interesting, particularly in view of her own responsibility for causing people to think something wildly inaccurate, such as that the Convention prevented a person being deported as they had a cat! She also said:

The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.

May’s argument was described as”politically astute” but “legally specious” by Prof Mark Elliott on his Public Law for Everyone blog.

Liberty responded by accusing May of “playing fast and loose with Churchill’s legacy to bolster her tough credentials”.

David Allen Green pointed out in the FT (£) that, while May had been quick to hail the victory of the Hillsborough families, she conveniently overlooked the fact that they had only got the chance of fresh inquests because of the ECHR.

The Attorney General steps in

Michael Wright QC, the Attorney General, was then obliged to answer an urgent question in Parliament, which is reported and discussed on the Rights Info blog here So What Does The Government Want To Do About The European Convention Now?

There’s also a handy little table to show where leading cabinet figures stand on both the EU and ECHR (because “despite what people sometimes think” they are not the same, of course).

Judiciary

High Court

The question of judicial recruitment came up again when the House of Lords Constitution Committee took evidence from Lord Thomas of Cwmgiedd, the Lord Chief Justice in a session on 27 April (video). Alluding to the problems, particularly, of recruiting good quality candidates for the High Court bench, his Lordship blamed recent changes in pension tax allowances as well as the weakness of the pay package generally when compared with what senior lawyers of appropriate calibre could earn in private practice.

Lord Thomas was also asked about diversity and said although the situation was far from satisfactory it was getting better.

Court of Appeal

Meanwhile, for those who are already High Court judges, there is now an opportunity for promotion. The Judicial Appointments Commission has announced that they are looking for six judges of outstanding ability to replace members of the Court of Appeal who are retiring between September 2016 and March 2017. The salary for these posts is £204,695.

According to the JAC:

The three criteria for appointment, against which candidates will be assessed, are:

To be outstanding lawyers;

To be able to work efficiently and effectively in and out of court and write excellent judgments expeditiously;

To be able to work well with colleagues and court staff.

Some candidates [why not all?] will additionally be expected to show an ability to take on leadership roles.

European Court of Human Rights

They’re also looking for a UK judge for the ECtHR in Strasbourg. According to this week’s announcement, three candidates have been nominated for the next position:

Tim Eicke QC, a UK barrister
Murray Hunt, Legal Adviser to the Joint Committee on Human Rights
Jessica Simor QC, a UK barrister

One of these candidates will be elected by the Parliamentary Assembly of the Council of Europe (PACE) during its plenary session 20-24 June 2016 for a 9 year term. People have spoken highly of these candidates on Twitter. We await the appointment with interest.

Crime / Fair Trials

1: Unrepresented defendants

The problems associated with defendants in criminal trials not being represented by lawyers are explored in a new report published last week by the charity Transform Justice.

Justice denied? The experience of unrepresented defendants in the criminal courts (PDF), written by Penelope Gibbs, notes that while the scale of the problem in the Crown Court is relatively measurable, there seem to be no official figures for the number of unrepresented defendants in Magistrates’ Courts. Nor is this the only obstacle her team of researchers have encountered. They did not have permission to interview CPS staff or legal advisers and were unsuccessful in trying to interview unrepresented defendants themselves. But they did manage to interview judges, magistrates and prosecutors in private practice.

Although it is not unusual for people accused of, say, traffic offences to represent themselves, there are serious problems associated with those who, for want of legal aid, or other problems, cannot get the representation they want and end up “going it alone”. Lacking the training and skills necessary to examine or cross-examine witnesses, or mount a convincing plea in mitigation, they often end up being convicted where they might have had a defence, and more heavily sentenced than they might have been. Lack of legal assistance also tends to increase the work of courts, judges and prosecution lawyers.

Many of the problems stem from the shortage of legal aid and the obstacles to obtaining representation; and the solution (such as a court appointed lawyer to handle cross-examination of vulnerable witnesses) end up costing far more than a legal aid defence lawyer would have done. Moreover, cases involved unrepresented defendants tend to take longer, adding to the costs of everyone involved. So, as in other areas, the cuts have proved poor value and counterproductive.

The report concludes by recommending that there should either be more legal assistance or a simpler court process suitable for the unrepresented (as, indeed, is being contemplated for low level civil claims, though not without opposition).

2: Prejudice and social media

The Attorney General’s office has released an infographic about the risks of prejudicial comment on social media. It explains why it is important to refrain from commenting on a case before or during a trial, because of the risk of prejudicing the fairness of the hearing and verdict. It’s evidently designed for a broad readership including the young and poorly educated.

Interestingly, given that it was released in a week in which the Hillsborough inquest verdicts prompted calls for a number of police officers and others to face trial (or fresh trial) over the events, without anyone apparently being particularly concerned about prejudice, it points out that “Commenting on the results of an inquest could prevent a future criminal trial as the defendant may not be able to get a fair trial.”

One other comment is worth making. This sort of guidance would be VERY USEFUL in the context of family cases involving children, which are usually the subject of reporting restriction orders, despite which many parents and others (such as those with axes to grind about adoption, social workers and the care system) will often upload identifying content on social media. Preventing this kind of thing may not be within the AG’s remit, but I think it should be given serious consideration.

Dates and deadlines

Have We Any Idea What Will Happen ? The Possible Criminal Law Consequences of a Bremain or a Brexit

Seminar at the Institute of Advanced Legal Studies, University of London, 17 Russell Square, London WC1B 5DR

Date 9 May 2016 – 14:00 – 18:00

Will there be a Treaty vacuum? How will day to day Police and other Justice and Home Affairs relationships be conducted? Under what legal provisions ? What rights will UK travellers have, once they are no longer civis europeae? Will anyone on either side of the Referendum debate be adequately informed before they vote?

Chair: Professor A T H Smith, University of Cambridge

For a copy of the poster and information about the speakers, please click here

This event is FREE but prior booking is requested. Please click here to register via the IALS Eventbrite page

Law (and injustice) from around the world

China

Diplomats barred from visiting prizewinning lawyer

The lawyer and activist Ni Yulan was awarded the [US] State Department’s International Women of Courage Award for her work defending people forcibly evicted from their homes. But she says she was unable to attend the ceremony in Washington last month because authorities refused her a new passport. Five Western diplomats, representing the European Union, Germany, Canada, France and Switzerland, then tried to visit her rented house in Beijing on Saturday afternoon who were trying to visit her in Beijing earlier this month, but plain clothed agents outside her home prevented them seeing her.

Full story: AP The Big Story: China police stop Western diplomats from visiting dissident

Search engine agrees to reduce IP infringement

China’s biggest search engine, Baidu, has signed a memorandum of understanding (MOU) on Copyright Protection Collaboration with the International Publishers Copyright Coalition (IPCC).

Dr Ros Lynch, Director of Copyright and Enforcement at the UK Intellectual Property Office, is visiting Beijing, Hangzhou, Shenzhen and Guangzhou for a week of cooperation activities on copyright protection and IP enforcement. Discussions for UK-China Copyright week will include:

exchanging IP enforcement best-practice, including online copyright initiatives such as the Infringing Website List and cross-border joint operations to tackle counterfeit goods
policy topics related to China’s ongoing Copyright Law revisions including on collective licensing, artist resale right, exceptions and limitations to copyright and music/audiovisual rights
a UK-China IP Salon event on Women in Intellectual Property as part of the British Embassy Beijing Be Yourself women’s empowerment campaign

Egypt

Criminal complaint against journalists

Reuters and its Cairo bureau chief have been accused of spreading false news and harming Egypt’s image after publishing an article last week connecting the police to the disappearance of the Italian student, Giulio Regeni, who was found tortured and murdered (see Weekly Notes – 12 February) Prosecutors are said to be investigating the complaint. It was the most prominent legal action against a foreign media organization since the prosecution in 2014 of three journalists working for Al Jazeera English.

This month, Italy recalled its ambassador to Egypt to protest what the Italian government said was a lack of Egyptian cooperation in a joint investigation into Mr. Regeni’s death.

Full story: New York Times Egyptian Police Official Files Complaint Against Reuters

Pakistan

Hanging reprieve expires

The stay of execution (literally)for Abdul Basit, convicted for murder in 2009, who became paralysed from the waist down after contracting meningitis on death row, has now expired and (reports the Guardian) the authorities are now saying that they plan to hang him. He was originally granted a stay of execution by reason of the risk of hanging a man in a wheelchair going wrong. A six-year moratorium on hangings came to an end last year, and Pakistan is now one of the countries responsible for a global surge in use of the death penalty, along with Iran and Saudi Arabia, though the country that executes the most is still China.

See Guardian: Iran and Pakistan fuel surge in executions to 25-year high

For more on this, see Amnesty International, Death Penalty reports.

Somalia

Piracy resurgent

According to the Maritime Executive, piracy in Somalia is on the increase again, following a spate of attacks in 2015.

Oceans Beyond Piracy a project of the privately funded non-profit org One Earth Future Foundation, said in a statement:

“While these incidents may serve as an indication that Somali pirates retain the capability and intent to return to piracy, it is not clear what that might look like. Though it is unknown if a return of Somali piracy would resemble the same pattern as in years past, Somali pirates remain a serious threat to the wellbeing of seafarers.”

An interesting case on questions of law thrown up by piracy cases is Masefield AG v Amlin Corporate Member Ltd [2011] Bus LR 1082, which is the subject of a case comment on this blog: Piracy in the Gulf between law and morality.

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

Weekly Notes: legal news from ICLR – 29 April 2016