Qatar Law Forum

I enjoyed the privilege over the weekend of attending the 2012 Qatar Law Forum, held in Doha. The theme of the conference was “The rule of law in a time of change”. The conference was attended by over 400 delegates from approximately 60 jurisdictions, including many leading figures from the legal profession in this country. Here are a few thoughts on some of the sessions I attended and the conference in general.

The first Qatari Law Forum, held in 2009, had focussed largely on the international financial crisis. Needless to say that crisis has still not been resolved, but a second international event gained much of the attention on this occasion, namely the Arab Spring. Delegates were present from many of the affected countries, including Egypt, Bahrain and Libya. Almost all took the revolutionary bull squarely by the horns. A robust consensus held that the causes of the Spring were corruption and an absence of human rights, including – but not limited to – the ability of ordinary citizens to participate in the political process. There was also a consensus that removing dictators was only a means to an end, and unless fundamental changes were made those who led and participated in the revolutions would resume their civil unrest.

As to the ongoing financial crisis, a specialist session on Islamic Finance suggested that Islamic banking offered an alternative model which had the attraction of being based firmly on ethics. It was countered that the Western banking system was not value-neutral, being based on notions such as freedom of contract, freedom of property and social responsibility, including liability for negligence and breach of contract. At this point in time, however, even the strongest defenders of Western law (of whom I count myself one) have to concede that one of the central factors behind the financial crisis was failure of regulation, and it behoves Western law makers to think laterally – and look to alternative models – when trying to formulate a system which might avoid a repeat. Whether that be Sharia law or something else is another question, but reshuffling the deck chairs on the vessel of old regulatory models may not suffice. On the other hand, the Islamic financial experts expressed a wish to find a way of creating more exotic banking products in a Sharia-compliant fashion.

Of course one of the most significant regulatory changes in the UK of late has been the new Bribery Act. This was discussed in the first session of the conference, chaired by Baroness Scotland, under the theme of international corruption and how it damages the rule of law. Here a stark obstacle was identified: how to find an internationally acceptable definition of the term “corruption”. From the floor Lord Scott was blunt and unequivocal: one man’s corruption is another man’s standard business practice, and it is hopeless to think that different business cultures can ever be reconciled on that point. I have to say I fear he is correct, though other delegates were more optimistic and most seemed to think the nettle of an international definition had to be grasped however difficult.

Staying with the theme of corruption, the panellists were not so idealistic – or legalistic – as to assume that any form of corruption would be fatal to the rule of law. Low level instances of bribes here and there will probably not bring the system down. What is certainly damaging, however, is when the guardians of the rule of law are themselves corrupt. The obvious example is that of the judiciary: if judges are not conspicuously independent and fair-minded, there will be no confidence in their decisions and hence the legal system as a whole. The executive too is a key player in this regard: it has to respect and enforce judgments; an order without enforcement is building a castle not so much on sand as thin air.

Here too a note of realism was sounded. It is all very well demanding that the judiciary be independent and set the highest standards. But one delegate told of a Chief Justice in a developing country whose salary was roughly $35 per month. Another spoke of a senior judge who was a single mother of three but whose failed state had not paid her for nine months. Is it really so easy to criticise people in those conditions for taking money placed in front of them? Others told of judges whose personal details, and those of their families, were published in the press, with the clear inference that their enemies would know where to find them. Again, pious principles of legal philosophy might dissipate somewhat in those circumstances. It follows that integrity and independence are not enough. Proper remuneration and protection are required as well, along with ongoing training and resources.

At the Chief Justices’ panel it was asked what those holding such office could do to promote the rule of law internationally. Quite properly it was suggested that travelling, giving speeches and otherwise lending expertise should all be encouraged. My own modest contribution at this point was to argue that the best method was by the day job. The best contribution any Chief Justice can set is to try cases – and equally importantly be seen to be trying cases – fairly and openly, irrespective of the wealth, political connections or other importance of the defendant. By that means judges promote public respect for the legal profession and the rule of law.

 To that end I tried to stress the importance of free speech and open justice. The former was the subject of the final plenary session, which was headed “Freedom of communication and expression in times of change”, and included Halsbury’s Law Exchange’s chairman, Joshua Rozenberg, on the panel. The panel rehearsed the familiar points about limits to free expression, the need for the media to act responsibly, and the debate in the UK presently taking place in the form of the Leveson inquiry. In the ensuing discussion Sir David Keene pointed out from the floor that in the age of the internet it may prove impossible to prevent publication of anything, even if a consensus exists that something should be suppressed (the identity of a victim of abuse, for example).

That is a point which I have made before, and I remain of the same view now. The very weapon identified by earlier speakers as an important part of the overthrow of dictators during the Arab Spring (who could not suppress evidence of better political systems elsewhere, nor communication between dissidents) might undo legitimate constraints on freedom of expression in a free and democratic society.

In this regard, however, no-one could disagree with Lord Judge LCJ, who observed as a concluding remark in the Chief Justices’ session that no-one in the room was in a position to predict what would happen even five years hence in terms of technology.

A short summary of the conference can be found in the LexisNexis newsletter which was produced each day, and otherwise on the Conference website.

OJO Images/Rex Features

By Charles Foster

The Mental Capacity Act 2005 contains detailed provision for advance decisions – otherwise known as advance directives: see ss 24, 25 and 26. These are statements made by a person when capacitous, which may apply when the person loses capacity. If they are “valid and applicable” they have the same effect as if made by that person capacitously. A competent patient has the right to refuse even life-sustaining treatment.

An advance decision in relation to the withdrawal of life-sustaining treatment will not be “applicable” to the relevant treatment unless it complies with certain formalities: see s 25(5).

There has been little judicial consideration of ss 24-26. That makes the decision of Theis J in Re XB (Court of Protection:  judgment 1 May 2012), particularly welcome.

The patient, XB, suffered from Motor Neurone Disease. He was cared for at home. He had a tracheotomy and a PEG tube. These made him less likely than other MND patients to die from aspiration or other respiratory complications.

When he was still able to communicate by way of eye movements he made an advance decision indicating that ventilation and artificial feeding should be stopped when he lost mental capacity. It complied with the s 25 formalities. It provided for review on 2 May 2012, and a box headed “Valid Until” was filled in with “2 May”. This raised the possibility that it was intended to be, or should be regarded as, a time-limited decision.

He lost all ability to communicate, and thus became legally incapacitous. Expert evidence indicated that the incapacity was permanent.

What should be done? Was the decision binding on the clinicians? And what, in particular, was the status of the “Valid Until” box?

The case turned on the evidence from the XB’s GP and the MHS co-ordinator, both  of whom had witnessed the making of the advance decision and were clear that he had not changed his mind. The review, they said, was the GP’s, the MHS co-ordinator’s and the wife’s idea.  The “Review” and “Valid Until” boxes had been filled in after the patient’s decision had been made. They were clear that XB himself did not intend the decision to lapse on 2 May.

The judge found that the decision was valid and applicable. The references to 2 May did not form part of it.

This case breaks no new legal ground, but the care with which the court examined the validity and applicability of the advance decision should give some comfort to those who worry that advance decisions will be waved blithely and followed with slavish and deadly literalism.

The judge also made two incidental but important practical points.

First: if there’s an actual or possible dispute about an advance decision, all relevant matters should be raised and investigated as soon as possible to avoid, if at all possible, last minute recourse to the court.

Second: the documentation used to record advance decisions is extremely important. Organisations (and there are many), which provide pro forma advance decisions, might want to review those pro formas. Lord Rix, in the Second Reading of the Mental Capacity Bill, 10 January 2005: Hansard Col. 50), suggested that a detailed pro forma should be inserted into the Code of Practice which accompanies the Act.  The suggestion hasn’t yet been adopted. The comments of Theis J may cause the suggestion to be revisited.       

[Many thanks to Mark Mullins, also of Outer Temple Chambers, for his helpful comments on the case].

Monkey Business Images/Rex Features

In the week that many parents will have to explain why a stripper was put through on Britain’s Got Talent  (BGT) rather than a female impressionist, there has been much publicity on the idea of opt in pornography and whether this would be an effective way of protecting children from accessing indecent images online.

Aside from the issues surrounding how this would be implemented, the main question is whether internet regulation is necessary at all.

Most parents and carers will have had their fair share of discussions regarding the downloading of inappropriate images. Sexual development is normal and every modern parent will have to deal with this at some point. For the child, sex education is not just about learning through play but involves developing an understanding of what is acceptable and what is not. This will sometimes involve a lecture about criminal conduct, paedophile activity and appropriate use of the home computer.

The question that is being asked on a more regular basis is should there be greater regulation of the media, or will children learn appropriate sexual conduct under their own steam with guidance from parents, carers and teachers. It is a laudable parental concern which carries the risk of censorship on a worldwide level.

The latest suggestion is that internet service providers should supply a “clean” broadband feed to customers as standard with the choice to opt in to receive adult content.

The parliamentary inquiry into online child safety released its findings and recommendations in April. The cross party inquiry worked together with the Mothers’ Union who carried out research that resulted in a report entitled Letting Children be Children – Report of an Independent Review of the Commercialisation and Sexualisation of Childhood. The conclusion was that network-level filtering should be mandatory. Wired reported that the Prime Minister was “consulting” on such a “default option” but added that nothing was “ruled in or out at the moment”.

The inquiry accepted that “the global economic benefits delivered by the internet are incalculable. The scope, connectivity and accessibility of this global database and communications highway have revolutionised business models and created undreamt-of ways for people to communicate, work and play”. It is the freedom to use the technology for seemingly limitless information and content that has made it so swiftly an international obsession. It is “an always-on, always-accessible backdrop to our lives”. However, the report also recognises that “the whole history of human sexual perversion is only a few clicks away” and “unfortunately, our children, with their natural curiosity and superior technological skills, are finding and viewing these images”. So while we enjoy the positives that come with revolutionary technology, we have to accept and deal with the downside – that baddies use it too.

There is no central point of management or control of the internet at global, regional or national level. Child abuse has been tackled in the UK by creating the Internet Watch Foundation (IWF) in 1996 and then working together later with the IWF to block sites known to contain illegal abuse images.

Internet service providers do filter illegal content at network level, where possible. It doesn’t stop people of any age watching legal sexual material or exchanging indecent images of themselves. For the latter activity, many are caught and admonished by parents and friends. Some are dealt with in the criminal justice system. I am aware of at least one case where a boy explored his sexuality by viewing images of other boys and girls and was arrested rather than counselled. Such is how regulatory laws can treat the given situation badly.

Whatever your view of the industry, porn kings across the world have assisted in the development of principles of freedom of information. In the modern world, freedom of information includes the opportunity to view adult pornography as and when one would wish to do so. The consequence is that pornographic material is routinely available in magazines, in other media and across the internet.

However, particularly since Jon Venables pleaded guilty to file sharing indecent images of children, there is growing concern that this freedom is coming into conflict with child protection and questions are being asked as to whether the law should be changed to provide for greater control of the media and internet service providers. It’s the essential conflict that arises when information is freely available. To take a social media example; with the advent of Twitter we have never been so well informed but the porn bots inevitably follow.

For some young people, pornography is part of their culture. They engage in sexual activity across the webcam on their computers and phones, generally without the knowledge of their parents but also without realising they are breaking the law and putting themselves at risk of online grooming. This is now a worrying issue for parents who have a hard enough time controlling their teenagers without having to police criminal activity. Of course, this is not a new issue. As far back as 1989 in the film Parenthood, the young boy played by Joaquin Phoenix was masturbating to adult videos he kept in a paper bag. One reason that historic sex cases are now so prolific is that we are dealing with cases from an era where there was no open discussion about such matters.

In relation to the mainstream media, the availability of pornography is already regulated by criminal laws on obscenity, extreme and indecent images and performances that outrage public decency. There are other controls such as the thinly observed watershed and certain channels being limited to certain content. This regulation seems to work in the sense that offenders are prosecuted and parents can block content. In relation to sexual images which are not unlawful, people have different views about what is acceptable and what is not and when such material should be broadcast. See my previous article here.

The potential regulation of conduct for the future could mean that networks will decide what we watch and what they consider unacceptable. How dangerous is that? Isn’t it better that we all learn from the evil of others? I have watched Reservoir Dogs and enjoyed it but it doesn’t mean I’m going to chop a policeman’s ear off whilst dancing to the song Stuck in the Middle with You, and I certainly wouldn’t want someone else to decide whether I am allowed to watch it. Nor would I want to have to click an opt in button that would allow someone else to make assumptions about me.

The IT lecturer Paul Bernal writes, “the idea of opt-in porn is based on two fallacies:

1. That it’s possible to make a place – even virtual ‘places’ like areas of the internet – ‘safe’; and
2. That the best way to help kids is to ‘protect’ them”

For him, “neither of these are true – ultimately, both are actually harmful. The first idea promotes complacency – because if you believe an environment is ‘safe’, you don’t have to take care, you don’t have to equip kids with the tools that they need, you can just leave them to it and forget about it. The second idea magnifies this problem, by encouraging a form of dependency – kids will ‘expect’ everything to be safe for them, and they won’t be as creative, as critical, as analytical as they should be, first of all because their sanitised and controlled environment won’t allow it, and secondly because they’ll just get used to being wrapped in cotton wool”.

Mr Bernal is right: the internet is not “safe”; society is not “safe”. Children have sex and encounter paedophiles online and in the real world – most commonly in their homes.

Modern policing has sought to push understanding of abuse out in the open because that is the best way to encourage complaints and identify the perpetrators. Children have a huge advantage over those of us who have lived through the internet revolution: they have access to information quickly and easily in a way that teachers can never provide. Who would want to deny them that opportunity? Surely it is better to tell them to report damaging material rather than have it blocked thus allowing them to judge for themselves? The reality is that most teenagers can fairly easily get round controls on a computer anyway.

Why suggest regulation that is unlikely to work and will only be an instrument to allow for the suppression of information? Here, good policing and sensible moral and sexual education is starting to work. Children are aware that paedophiles are bad and criminal and that adults having sex with a child is wrong. Searching for porn to understand their own development is just the same for a teenager as playing war games. You always know who the baddies are but you need help and guidance not to be duped or become obsessed. Sexual behaviour involves an understanding of what is acceptable and what is not. In my view, access to pornography is a matter for informed self regulation. The key is to explain to children what is suitable and what is not, what the consequences and risks are of not listening to advice, and reminding them that you will be checking their Google history.

In addition to being savvy about their use of the internet, children will soon learn that Simon Cowell has a propensity to choose a stripper over an impressionist but the impressionist is more fun.

Parts of this article appeared in February 2011 in The Times  and The Barrister Magazine

John Edward Linden / Arcaid/Rex Features

Two interesting articles on the UK Human Rights Blog recently raised once again the question of the legitimacy of the European Court of Human Rights (ECHR).

Both are thoughtful contributions and therefore welcome relief from a debate which at times descends into variations on Godwin’s law.  On the one side, argument often reduces to xenophobic insults about the impudence of Europe telling anyone else what to do.  On the other side, some lawyers seem to respond to criticism of the ECHR with the sort of arrogance that one associates with Latin American military dictatorships of years past, who insisted that they had specialist knowledge and experience that justified their undemocratic hold on power.

To begin with, it is worth reiterating that the Convention was drafted by English lawyers

and that by and large it reflects the values of the common law as they had evolved over centuries. Moreover, for all the tabloid fodder, not all of Strasbourg’s decisions (or domestic decisions made pursuant to the Convention) offend majority public opinion by any means. In fact, almost all applications from Britain fail to get past the admissibility stage, and of those which do only a handful attract media interest (raising a separate issue about the advice and funding behind the multitude of failed applications – perhaps a similar provision to the requirement of permission to appeal to the Court of Appeal could be introduced at the domestic level).

It might also be argued that incurring some uncertainty in our domestic law and living with the odd derisory decision is a price worth paying for all of Europe ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­– including former Communist countries with a shocking history of governance in the past century – to be subject to a regime of rights and freedoms based substantially on British values. If Britain considers itself above decisions with which it happens to disagree, then the entire institution of Strasbourg will be weakened and other countries with less regard for the rule of law will follow suit.

Yet there remains an objection which needs to be confronted, and which, incidentally, will not be answered (merely replicated) by a British Bill of Rights.  Fundamental questions involving freedom of speech, freedom of religion, the right to life, the right to vote and so forth have come before the courts in recent years.  Until the Convention was brought into domestic law, most of those arguments would have been held before and settled by Parliament. In those days the true guarantee of freedom in Westminster countries was usually said to be the regular ballot box rather than the judiciary.

Two questions follow: first, whether the Convention and the Strasbourg court have sufficient democratic legitimacy, and secondly, more generally, whether the courts are a better forum to determine hotly contested ethical, moral and religious questions.

As to the first question, the democratic authorisation of the European Court comes from the fact that it was Parliament who passed the Human Rights Act 1998 and thereby brought the Convention within the jurisdiction of the domestic courts. Parliament always retains the option of withdrawing, though there would be turbulent international and domestic political fallout if it ever did so.

It should also be remembered that tyrannous regimes have sometimes come to power through elections. Further, the rights of the majority are rarely threatened: Convention rights, it can be argued, are needed to protect the unpopular minority.

As to the second question, irrespective of whether one agrees with the answers they come up with, courts can only flesh out the broad detail of Convention rights slowly, as and when cases come before them, which leaves much uncertainty (uncertainty being an obvious and damaging blow to the rule of law) as well as handing significant power to the judges (“government of the people by the judges for the lawyers” went a saying when I was at law school).

Moreover, the Strasbourg court is seriously in need of reform. It is severely overburdened, with many thousands of applications outstanding. It is composed of one judge from each member state – meaning that tiny political enclaves make the same contribution as countries with enormous legal resources such as Germany and Britain. The appointment process of some member states’ judges is also questionable, as (consequently) are the qualifications of some judges. These points exist whether or not one supports the court all, and I would add that logically Strasbourg’s supporters should also be the strongest advocates for its reform.

There were other possibilities for bringing British law into line with the Convention whenever it fell short. A cross-party committee primarily composed of legal experts could have studied Strasbourg decisions and advised whenever domestic law needed to be altered, for example. This would have answered any question about democratic legitimacy since any substantive change would have had to go through Parliament.

In this regard readers might consider the Australian position. That country does not have a Bill of Rights, though in a series of five cases in the 1990s the Australian High Court controversially found an implied constitutional protection of freedom of political discourse, despite no precedent for any such right being found in the 90 years of the Constitution’s history to that point.  Moreover, the Constitutional Committee of 1898 had specifically rejected a proposal to incorporate a US-style Bill of Rights in the constitution. 

A national human rights consultation took place in Australia in 2008-2009, and recommended the introduction of a Human Rights Act. The government rejected the recommendation, but did introduce a “human rights framework”, which among other things changed the way in which legislation in the Commonwealth Parliament was scrutinised by reference to international human rights instruments. 

Australia is anything but a tyranny compared with the vast majority of states past and present, so its experience merits consideration. But it may be – and it remains my own view – that the best step would be for Britain to remain subject to the ECHR, but advocate strongly for its reform to clear its backlog and improve the standard of appointments.

Note: see also this interesting contribution on the UK Constitutional Law Blog.

Rex Features

In 2009, Zoe Pemberton, then aged ten, put her grandmother up for auction on eBay ostensibly as a joke.  As part of the description she described her grandmother as “annoying and moaning a lot”. She also said that she was “cuddly” and “likes word searches”. The public bid up to £20,000 until the lot was taken down. If you believe that our criminal justice system is the grandma of every common law system of the world then it seems that she is about to be auctioned off. News is that the Government intends to consult on a new plea bargaining system after big business suggested that the UK should copy the US. At the same time, amongst lawyers and commentators, opinion of the US plea bargaining system is at an all time low.

The suggestion here is that plea bargaining would benefit “UKplc” allowing businesses and the prosecution to negotiate punishments for criminal activity. This summer the Ministry of Justice will propose the introduction of a system of deferred prosecution agreements (DPAs). Solicitor General Edward Garnier has said that a new framework for DPAs would give courts the power to approve penalty and compensatory payments agreed between businesses and prosecutors. One law firm reported this as a welcome development in relation to bribery and internal investigations as far as businesses are concerned as it would allow them to AVOID criminal sanctions for previous unlawful behaviour. It said: “The lack of a DPA regime in the UK places UK PLC at a significant disadvantage with no ability to stave off the possibility of debarment by way of a ‘Deferred Prosecution’ if a corporation changes its ways.” Apparently a spokesman for the Serious Fraud Office has indicated that DPAs could reduce the need for lengthy fraud investigations in some cases and would encourage businesses to come forward with information about unlawful practices.

The idea is that judicially approved “settlements” could involve businesses paying fines and agreeing to make changes to policies, practices and structures. A form of probation would follow where criminal prosecutions could still be brought for non-compliance. To be fair, the suggestion at present seems to limit the proposed system to financial crime – a costly and complex process. The idea is that it would save the cost of difficult white collar crime cases and allow businesses to keep trading but under judicial supervision. At no stage in anything I have read has a note been sounded, firstly for the victims of these frauds, and secondly for the risk that there will be a knock on effect to other areas of crime. Experience shows that a full confession leading to a plea of guilty is rare. Plea bargains are nearly always a compromise on both sides for numerous different reasons. One can quickly see how what might be good for a fraudulent business can only be a disaster for individuals.

Plea bargaining to be introduced in Czech Republic this August will be possible for crimes punishable with less than ten years in prison. It has been promoted on the basis that it helps the police investigate organised crime and corruption in exchange for a lower or no sentence thus immediately demonstrating that financial crime is never separate from crimes involving individuals.

According to Wikipedia, plea bargaining in the US is common:

“The vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency – they rose from 84% of Federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules”. The argument is that “plea agreements merely reflect the outcome that would have transpired had the case gone to trial. E.g., if the accused faces 10 years and has a 50% chance of losing in court, then an agreement will result in a 5 years sentence, less some amount deducted for saving the government the cost of trial… The benefits of plea-bargaining are said to be obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value.”

However, apparently in some States plea bargaining has been terminated in order to encourage better investigation and case preparation, to avoid coercion in weak cases and allow for greater scrutiny of lawyer error which is harder to pick up on a guilty plea than it is in a public hearing.  It appears that as we are asked to copy the US, parts of the US are railing against the injustice that their plea bargaining system creates.

On the blog for Texas Criminal Appeals Law Firm based in Waco, Walter Reaves writes;

“Most people who have never been involved in the criminal justice are shocked when they learn how the system actually operates. They have heard – or been taught – that the system is designed to achieve justice. Once they are in it they soon discover that justice is something people only talk about. The harsh reality is that the system is more concerned with expediency – which means disposing of cases… Since the outcome of any trial is never guaranteed, both sides have an interest in limiting their risk. Unfortunately, that is true even for defendants who are innocent. The choice they have to make is whether to go to a trial and risk a conviction and lengthy sentence, or work out a deal to limit their exposure. It’s not surprising that process results in convicting innocent people… Prosecutors know this, and offer deals ‘too good to refuse’, especially in cases where the evidence appears to be weak… I can’t estimate the number of clients who have made the statement that they thought the criminal justice system was concerned about justice. It’s hard not to laugh, but I know they sincerely believe that. Unfortunately, they have to learn the hard way that justice is only an ideal.”

The dangers for individuals were highlighted this year in the US Supreme Court’s decision in two cases Missouri v Fyfe, No 10-444, and Lafler v Cooper, No 10-209, which demonstrated the failure of a system where 95% of criminal prosecutions arise from guilty pleas. Justice Anthony M Kennedy wrote for the majority: “Criminal justice today is for the most part a system of pleas, not a system of trials.” Poor advice led to the possibility of reopening cases involving rejected pleas that were followed by convictions but he said: “the realities of American criminal justice required the court to take action.”

The New York Times reported that Mr Frye was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence. The offer expired, Mr Frye pleaded guilty without a deal in place and a judge sentenced him to three years. Mr Cooper shot a woman in Detroit in 2003; based on poor advice, he rejected a plea bargain that called for a sentence of four to seven years. He was convicted and is serving 15 to 30 years. Both of these cases involved failings by lawyers but the essential problem is the system that allows for such dramatic and ridiculous differences in penalty without regard to the issues or the victims.

Recently on Twitter, @MH4JUSTICE posted an affidavit from a retired attorney who made an agreement on behalf of his client that led to a guilty plea on a promise of no action on his deportation which was then categorically ignored by the State. The tweet read: “Plea bargaining is a trap. They don’t fulfil the terms. See for yourself, need I say more.” (Document one/ Document two).

Of course, much of the above relates to individuals. Some say that the situation is different for businesses. Ken LaMance is the Corporate Counsel at LegalMatch. The online client-lawyer matching company based out of San Francisco, California takes the view that:

“Plea bargaining is often a good option. However, some attorneys would suggest that the defendant take the case to trial if they feel that the outcome is close or there is too much risk. Plea bargaining is best considered as a tool of the judiciary system that allows defendants to bypass much of the court process. This means the decision to plea bargain is in the hands of the defendant, and they should not feel that they are being coerced at any point in the proceedings”.

Risk is the language of big business. The proposed DPAs will be approached by UKplc in a way that gives priority to the risk for any company / corporation rather than the justice of the given situation. It has to be remembered that under the current system the judge does not receive the unused material allowing business and prosecutors to secure a deal when the person overseeing the agreement lacks the full information. Let’s not be deceived; the purpose of DPAs is to keep costs down and AVOID justice. The idea of saving money in the current climate is attractive but the reality is that it will not necessarily save money.

Take, for example, a case where, on the evidence, a prosecutor will struggle to prove the case and therefore makes a plea agreement for a much reduced penalty; if plea bargaining is unavailable, the case may be discontinued which should be cheaper and may well be more just. The loss of scrutiny that the trial process provides will inevitably crush the way in which our current system works to protect the victims of financial crime, to prevent improper pursuit of unmeritorious cases and to expose poor representation.

A book review of The Collapse of American Criminal Justice by William J. Stuntz this week said it all:

“This scholarly work is truly an inflammatory condemnation of the existing criminal justice system in America. If only the public policy makers would absorb the facts and take action to replace cheap justice with true justice… The time honored role of a jury of one’s peers is for all practical purposes defunct. The prosecutor now dominates the entire process from the outset. The arraignment involves multiple and overlapping charges in order to create escalated penalties affording the prosecutor with maximum leverage for the ultimate disposition of the case by means of a plea bargain. Any question regarding guilt or innocence and appropriate penalties is decided by a Hobson’s Choice awaiting the defendant in a plea bargain offer fashioned by the prosecutor. Juries have been removed from their time honored role as finders of fact, guilt, and a just penalty based on the unique circumstances of the case and charges. ‘The Collapse of American Criminal Justice’ describes the injustice of the current process and the unequivocal need for reform… The overwhelming power and discretion of prosecutors and the emasculation of judges and juries in the pursuit of cheap justice will demand much more from the Justices”.

The idea that a plea system that allows business to AVOID prosecution is appalling – just as the rectification system for vehicles means that drivers avoid repairing cars in the hope of not getting caught, so will businesses cut corners then negotiate a deal to their own advantage taking business risk as a priority rather than proof of criminal conduct. The knock on effect of the introduction of a plea bargaining system (recognised across the water as wholly ineffective) in the name of business is a frightening nonsense plainly designed to save money at the expense of proper justice. Like Zoe’s grandma, you might argue that our trial system is “annoying” but when properly done it is recognised as the best system of justice in the world. It follows that the MOJ and those advocating the new DPAs need to understand that a genuine and good quality item is not always available on eBay.

Rex Features

The past few months have seen a great many column inches dedicated to the issue of extradition. The dismissal of the extradition challenges by Abu Hamza and others has led to many commentators heaping praise on the ECtHR for making the correct choice in granting the extradition of these men to the US. The attempt by the Home Secretary to deport Abu Qatada to Jordan continues to stimulate debate and raise erudite procedural issues.

With so much focus on the extradition of alleged terrorists, one could be forgiven for forgetting some of the less-publicised but equally important instances of the use of the Extradition Act 2003.

The cases of Gary McKinnon, Richard O’Dwyer, Christopher Tappin, and the Natwest Three raise significant questions about the architecture of the 2003 Act and the level of protection it offers British citizens.

Committed at home, wanted abroad

The cases I am discussing relate to the alleged conduct of individuals whilst within the UK jurisdiction and as such have led to the question of: “why, if the offence is committed in the UK, is the prosecution not carried out by the UK authorities?”

In the case of Richard O’Dwyer, Counsel acting for Mr O’Dwyer resisted extradition to the US on the grounds that the hosting of the website TV Shack did not constitute an offence in this jurisdiction (s 137(2)(b) setting out the requirement of dual criminality for extradition to category 2 territories). Upon hearing submissions from both sides it was held that the offence was comparable to s 107(2A) Copyright, Designs and Patents Act 1988; although it was decided not to pursue a conviction in the UK.

The case of the NatWest Three included a request for judicial review of the decision by the Serious Fraud Office not to prosecute them for the wire-fraud committed in the UK.

Debates as to the proper forum for a prosecution give strength to arguments for the enactment of s 83A of the Extradition Act 2003. Section 83A would allow for a “forum bar” if:

(a)        a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and
(b)        in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.

Such a provision would give the defendant the opportunity to put his case in open court as to the proper forum for any trial and would allow a decision to be made as to the proper forum for the prosecution. This would also place a requirement on the UK authorities to disclose the reason as to their decision not to pursue a conviction whilst demanding greater disclosure of the evidence against the accused held by the territory requesting extradition.

Evidential hurdle

A central focus of the Home Affairs Committee report into US-UK Extradition was the difference in the evidential test applied for US-UK extradition (probable cause) as opposed to the test for UK-US extradition (reasonable suspicion). Although the report confirmed the conclusion of the Baker report that the difference was largely semantic, the Committee heard evidence from David Bermingham, one of the NatWest Three, that the imbalance in the system arose not because the two tests were different but because a person who was sought for extradition from the UK had no opportunity to test the information establishing a “reasonable suspicion” against them in court, whereas a person who was sought for extradition from the US was entitled to a hearing to test the “probable cause” information.

Any criminal practitioner in the UK will be more than aware of the evidential burden on the prosecution to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that such issue or issues should be left before the tribunal of fact. The range of exclusionary powers conferred on the judge by statute and at common law ensure a heightened awareness as to the importance of the evidential foundation of a case. Section 78 of the Police and Criminal Evidence Act 1984 offers the defence the power to apply for the exclusion of any prosecution evidence in recognition of the importance of the defendant’s right to ensure a fair trial based on properly obtained and admissible evidence.

In light of the degree of scrutiny in the UK courts, it is startling that the Extradition Act 2003 places no evidential burden on the territory seeking extradition as to the strength of the case and the level and type of evidence they have secured against the accused. The level of information required to pass the reasonable suspicion test—which may include information that would not be admissible as evidence in a trial— would be wholly unsatisfactory for a prosecution in the British courts and stands contrary to the rule of law.

A footnote on the treatment of British citizens abroad

Extradition to category 2 territories (non-signatories to the ECHR) is said to be based on a long-standing implicit trust that the territory would respect fundamental rights. However, this implicit trust is placed in sharp focus in light of the recent UN special rapporteur on torture’s finding that the treatment of Bradley Manning (a British citizen by descent) was cruel and inhuman.

By James Wilson

Last night Halsbury’s Law Exchange, in partnership with the international law firm Eversheds, hosted its first panel discussion.  The subject was “Law Reporting in the New Media Age”.

It was chaired by HLE chairman Joshua Rozenberg, with the panel comprising Siobhain Butterworth of the Guardian, Katy Dowell of The Lawyer, David Allen Green of the Jack of Kent Blog, Andrew Sharpe of LexisNexis and Adam Wagner of the UK Human Rights Blog. 

The panel discussed how blogging and tweeting are changing the way law is presented to the public.  The event was opened by Neil Mohring, head of Eversheds’ Media Group, who observed that while new media presents significant opportunities, the legal profession is traditionally conservative, which leads to questions about how it can and will adapt. 

Interesting accounts were given about how some of the panellists’ blogs began.  David Allen Green’s readership, for example, took off after he drew attention to the Simon Singh libel trial and, modelling himself on science bloggers he admired, began to explain to the general public how and why it was the trial had come about.  Adam Wagner, for his part, began by modifying an updater service his chambers was already running, and a short time later his blog has attracted over one million visitors. 

One of the first questions was why lawyers blog, when blogging doesn’t pay.  Years ago a similar question was asked as to why such a high proportion of letters to the Times came from the clergy, which prompted the reply “vanity and an excess of spare time”. In the case of the lawyers the former might often be present but the second is generally not.  For example, despite the considerable popularity of his Jack of Kent blog, David Allen Green disclosed that it is largely unremunerative, to put it mildly.  Andrew Sharpe observed that a blog he ran whilst he was in private practice was successful in terms of numbers of followers, and raised the firm’s profile accordingly, but there was no way of measuring the effect in a tangible fashion such as increased billable hours.

No blog, therefore, seems likely to displace the day job of a barrister or solicitor.  It follows that legal blogs show another side of lawyers somewhat contrary to the public stereotype: doing something of public benefit, and fulfilling the lawyer’s natural desire to set the world to rights.  Indeed, the reason LexisNexis established and continues to support Halsbury’s Law Exchange itself (which is a non-profit, independent thinktank) is part of a commitment as a business to supporting the rule of law.

Further questions included whether blogs and tweets can or should be regulated so that the public are not misled.  It was quickly pointed out that most blogs contain a disclaimer that they do not offer legal advice!  It was then observed that well-known legal bloggers operate a sort of informal peer-reviewing group, who are quick to correct each other.  Also, any blog found to be making egregious errors will quickly lose credibility and readership along with it.  Moreover, as Adam Wagner observed, blogs written by practising barristers will fall within the jurisdiction of the Bar Council. 

A related question was whether jurors can or should be shielded from the internet and restricted only to what is said in court.  The consensus seemed to be that it is simply not realistic in the age of smartphones and near-universal internet access.  We therefore may as well face up to adopting the American model where jurors are subject to far fewer restrictions, and are instead urged to exercise their own judgement.

Another can of worms concerns who might be liable for blogs, tweets and retweets that are libellous or in contempt of court.  The last word is yet to come on that, one suspects.  Siobhain Butterworth opined that even bad mistakes should not attract prosecution if they are quickly withdrawn.

Katy Dowell, speaking from the perspective of a trade magazine, pointed out that the internet has rendered breaking news the exclusive preserve of online media, and in particular twitter, due to the speed of publication.  This leads to scoops being given away for free, on the simple pragmatic basis that if one person does not tweet a story, then chances are someone else will. 

The debate was fortunate to attract a distinguished audience as well as a distinguished panel.  Simon Bucks from Sky News, for example, spoke about his campaign for cameras to be allowed in court, which attracted almost unanimous support, though possible difficulties were acknowledged (for a related post see here).

Many other interesting points were made, and we hope to continue the discussion on this site and in future events.

All of us at Halsbury’s Law Exchange would like to thank Joshua Rozenberg for chairing the event, the panel for lending their expertise, the audience for attending and Eversheds for supporting HLE by kindly hosting the event.

Rex Features

On 29 February 2005, Saajid Badat pleaded guilty to a terrorist conspiracy to destroy, damage or endanger the safety of an aircraft. Badat admitted that in 2001 he had conspired with “the shoe bomber” Richard Reid and a Tunisian, Nizar Trabelsi, in a plot simultaneously to act as suicide bombers in order to blow up two airliners bound for the US. For two months following his plea, Badat assisted UK investigators; however, he held back on a good deal of information.

On 21 April 2005, Mr Justice Fulford sentenced Badat to 13 years’ imprisonment to reflect all of his mitigation (which, whilst not stated in open court, included a generous discount for his co-operation). This meant that Badat had to serve a minimum term of six years and six months before being eligible for release on licence. Fulford J reminded himself of the case of R v Hindawi (1988) 10 Cr.App.R.(S.) 104 when he said that, but for Badat’s mitigation, the sentence would have been in the region of 50 years’ imprisonment. Thus, Badat received a discount of three quarters on the “Hindawi sentence”.

The Serious Organised Crime and Police Act 2005 (SOCPA) came into force on 1 April 2006. SOCPA provides that a defendant falling to be sentenced (s 73) or following his sentence (s 74), who has, pursuant to a written agreement, assisted or offered to assist the prosecution may have his sentence discounted to reflect the extent and nature of the assistance given or offered.

Badat entered into a written SOCPA agreement with the Crown Prosecution Service (‘CPS’) that he would provide additional assistance and further would co-operate with US investigators and give evidence in April 2012 at a terrorism trial in New York of a Bosnian, Adis Medunjanin.

Terrorism sentences were subsequently to rise considerably. In May 2007, the Court of Appeal in R v Barot [2008] 1 Cr. App. R. (S.) 31 said that a minimum term of 40 years should, save in quite exceptional circumstances, represent the maximum sentence for an unsuccessful terrorist plan to commit mass murder. Barot had pleaded guilty to a non-suicide bombing conspiracy and received a minimum term of 30 years. Since Barot, minimum terms of 40 years were imposed in the cases of the failed “21/7” London bombers and the airline liquid bomb conspirators.

In 2009, under s 74(3) of SOCPA, the CPS referred Badat’s 13-year sentence back to court for reconsideration. The matter came before Mr Justice Calvert-Smith (Fulford J being unavailable) on 13 November 2009. Pursuant to s 75 of SOCPA, the hearing was conducted in secret and a reporting restriction imposed until the commencement of Mudujanin’s trial. Calvert-Smith J reduced Badat’s sentence by a further two years to 11 years’ imprisonment, which now meant he would serve a minimum term of five years and six months. Badat was released from prison in March 2010. On 16 April 2012, the reporting restriction on Badat’s referred sentence was lifted and the CPS disclosed a transcript of the 2009 hearing.

The first point of interest in the Badat case is the fact that the sentence was reduced to 11 years’ imprisonment principally because of Badat’s agreement to give evidence not in a domestic matter but in relation to a trial in the US. It is hard to see why Badat should receive a further sentence discount in the UK for belated assistance in another jurisdiction, in particular since Badat is likely to be expecting to benefit from his co-operation with the US authorities in relation to an outstanding indictment against him in Boston alleging a terrorist conspiracy with Richard Reid.

The second point is the remarkable extent of Badat’s sentence discount. The Court of Appeal in R v P; R v Blackburn [2008] Cr.App.R.(S.) 5 said that the normal discount for assistance should be between one-half and two-thirds of the total sentence which would otherwise have been passed and only in the most exceptional case would the reduction exceed three-quarters. Badat ended up with a little over three-quarters discount on the Hindawi 50-year sentence and an 86% discount on the Barot 80-year sentence. The point was not lost on Calvert-Smith J, who, in re-sentencing Badat, observed that the public would be “appalled” if his sentence were reduced any further.

The US sentencing model is characterised by a number of features: formal plea bargaining, the prosecution having a say in the sentence that is imposed, extraordinarily lenient sentences for those who co-operate and crushingly long sentences (not infrequently, life imprisonment without the possibility of parole) for those who do not. The referral by the CPS in 2009 of Badat’s already generous sentence to the court and the imposition of an exceptionally lenient minimum term of five years and six months as compared to the very severe minimum terms of 30-40 years imposed for similar offences on other terrorism defendants have inched the UK ever closer to the US model.

A massive discrepancy in sentences imposed for those who co-operate with the authorities and those who do not carries with it a number of risks, not least a manipulation of the system by desperate and/or dishonest defendants. Whether or not it proves to have been the right policy in terrorism cases, only time will tell.

Heathcliff O'Malley/Rex Features

Last week was a pretty eventful one for politics and politicians, especially on the human rights front. A brief stock take might be as follows:

• Although it seems to be common ground that Abu Qatada represents a threat to the UK and deserves to be deported, he has not been convicted or even charged with an offence here. One might surmise that if and when the obstacles to the deployment of intercept evidence are finally overcome, this kind of anomaly will less frequently arise.
• Given that the European Court of Human Rights on 17 January 2012 decided several points adversely to Abu Qatada, it was always on the cards that he would seek to take his case to the Grand Chamber.
• The weight of opinion clearly suggests that his request for his case to be heard by the Grand Chamber was made within time, and that the Home Secretary was wrong, or at least unwise, to imply that this was no longer possible. On the other hand, had she delayed the decision to re-arrest Abu Qatada by 24 hours, it seems highly likely that he would nonetheless had made his application to the court so that the immediate outcome may have been little different.
• It is important that in the collective anxiety to export the Abu Qatada problem, politicians do not end up undermining confidence in the legal system generally and in human rights processes in particular. This would be to give the terrorists a victory that they could not otherwise obtain.
• The Brighton Declaration on the Future of the European Court of Human Rights, also agreed last week, reaffirms that “all laws and policies should be formulated, and all state officials should discharge their responsibilities, in a way that gives full effect to the (Human Rights) Convention”. It follows that if the last Government had not had the foresight to enact the Human Rights Act 1998, the present one would now be embarking on that very task.