Category Archives: Legal

Britain, Government, Human Rights, Legal, Media, Society

More transparency needed for the Court of Protection…

COURT OF PROTECTION

Intro: A court which has the power to jail people and make life and death decisions in secret could be made more transparent

The highly sensitive work of the Court of Protection often sits uneasily with the notions of freedom and transparency upon which the state rests. Judges sometimes make decisions on behalf of those individuals incapable of running their own affairs. The right to a dignified private life for society’s most vulnerable must certainly be protected, but the default position in which hearings are conducted behind closed doors and in secret does not reconcile with the central tenet of the law in Britain being based upon open justice.

The Court of Protection has made advances in recent years. Successive presidents of the Court have, for example, acknowledged the need for a special register in which nominated journalists become more acquainted with the workings and decisions of the Court – decisions which range from care arrangements to family access and to the disposal of assets.

The test case for others to campaign was in 2010, when the Court of Appeal ruled in favour of the media to have access to hearings about whether a blind and profoundly autistic pianist, Derek Paravicini, should continue to perform. That case set legal precedent, and since then access has been granted in a handful of other cases. However, it is still only in instances involving invasive medical treatment or a life-and-death decision that the presumption applies. Even then, the press and public are often not acquainted with the case until the hearing has already been heard.

Last May, the case of Wanda Maddocks sparked a national debate about transparency after she was sent to prison for five months after she tried to remove her 80-year-old father from the care of Stoke on Trent city council. Ms Maddocks had not been present or even represented in court.

She was thought to be the first person to be imprisoned by the court, which settles the affairs and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare.

The current Court of Protection president, Sir James Munby (Lord Justice Munby), has been working tirelessly to resolve the issue. During the summer of 2013, he issued draft published guidance for judges in which he explicitly stressed the need for ‘greater transparency in order to improve public understanding and confidence’. Sir James also resolved that, as far as is possible, the Court of protection should be governed by the same rules that apply to the family courts (of which he is also president). In a written ruling on a long running case last week, Sir James put the theory into practice; he said the judgement would become public, but the family would not be named.

Despite the welcome steps forward that have been made, there is still much to be done. Sir James is due to release a second tranche of guidance, expected imminently, and it can only be hoped this will go further, by giving accredited reporters automatic access to the Court of Protection as they have in the family courts. If permitted, the usual proviso of cases being aired publicly being subject to negotiation with the presiding judge would apply.

There are wider issues, too. Leading lawyers, for instance, are warning of a ‘marked variation’ in the willingness of judges to talk directly to those who are the subject of proceedings as well as to the appointed solicitor representing their interests. This not only raises concerns over the possibility of human-rights violations, but questions of judicial consistency also arise.

The Court of Protection delivers rulings on some of the most difficult, sensitive and contested questions of modern life, and makes decisions that may define the course and circumstances of a person’s life. Public confidence is needed in such a powerful institution, and to ensure that happens the procedures and practices must be standardised and applied with uniformity and better consistency. The justice the Court dispenses must be as open as it can be.

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Government, Legal, Scotland

Abolishing the law of corroboration in Scotland?

CORROBORATION

Corroboration has been a central tenet of Scots Law for centuries. This invokes the necessity that evidence in criminal trials from one source must be backed by evidence from another source.

Just because the legal principle is old, should not necessarily mean that it no longer serves a modern purpose or, indeed, that it must be preserved. What matters more is whether changing the requirement for evidence in criminal trials would produce more benefit than loss to the judicial process.

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On this criterion alone, the debate on abolishing the corroboration requirement in Scotland looks less clear cut the more it continues. The contribution put forward by Professor Peter Duff of Aberdeen University is timely – and also well known – when he says that abandoning the need for corroboration may well yield much more information in criminal cases, but may also, less helpfully, muddy the waters.

For instance, in rape and sexual assault cases there are usually only two witnesses – the victim and perpetrator of the crime. Finding and bringing forward a corroborating witness is, therefore, often not possible. Because of that, it is argued, many potential prosecutions do not get to court – to the great anguish of the victim who is denied seeing justice being served. Abolishing the corroboration requirement would likely see more prosecutions.

But Professor Duff questions whether more convictions would be the result of changes to the law. A problem with sexual assault cases, he says, is that many victims at the time of the alleged assault may have been drinking, or have taken drugs, or have mental health problems. And, as is frequently common in criminal trials of this nature, the alleged perpetrator’s usual defence is that the supposed victim consented to sexual activity. Assuming that the corroboration requirement had been abolished, then the credibility of the victim and their denial of consent is pretty much all that is left to the jury as the basis for reaching a verdict. Prof Duff describes this as a ‘he said, she said’ scenario in which, he suggests, juries are reluctant to convict.

For some legal practitioners and advocates, the insertion of the drink, drugs and mental illness circumstances will be a misnomer. Women in these conditions may be more vulnerable to being sexually assaulted, but why should that make them less credible in their evidence, especially when the accused may also have been under the influence of drink or drugs?

Prosecutions in England are not based on the need for corroboration, and proceed on the basis of there being a reasonable chance of a conviction. Whilst this is a relevant point borne out by Prof Duff, the anecdotal evidence suggests that the conviction rate is no higher than in Scotland.

Abandoning the corroboration requirement, which the Scottish Government seeks to do, will simply shift the chances of a successful prosecution on to another equally intractable problem, that of the complainant’s credibility. This might offer the victim an opportunity in court in bringing to light the alleged crimes of the assailant more openly, but this is not the purpose of the Scottish Government’s proposed legislation, which is to increase the rape conviction rate.

Abandonment of a centuries-old legal principle in Scotland that has otherwise served the ends of justice well should only be done when the potential gain is overwhelming. It is extremely doubtful whether this will ever be the case.

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Britain, Government, Iraq, Legal, Military, Society

Iraq: ‘Single inquiry called for over British abuse allegations’…

Intro: On February 8, 2010, the writer penned an article that was visited several thousand times over by interested readers. That article is reproduced here:

ABUSE CLAIMS

A SENIOR JUDGE has told ministers to consider opening an independent inquiry into all allegations of abuse made by Iraqi civilians against the British Army. The move could lead to the biggest investigation into military malpractice ever heard in Britain.

Mr Justice Silbert, in a note written to counsel acting for Bob Ainsworth, the Defence Secretary, has told the Government:

… ‘My provisional view is that I am uncertain what is to be gained by the Secretary of State continuing to contest these claims for investigation.’

The judge, who is responsible for the management of claims before the court, says he is concerned about the cost to the taxpayer of hearing 46 outstanding individual cases, and the likely impact this would have on the resources of the High Court. It is estimated that the cases will take a decade to go through the courts at a cost of tens of millions of pounds to the taxpayer and warns that not holding an independent single inquiry could lead to a “further waste of valuable court time”.

Mr Justice Silber says the Ministry of Defence has already shown itself to be “unable to give proper disclosure” in the case of the Battle of Danny Boy in 2004 in southern Iraq, where it is alleged that British soldiers murdered Iraqi civilians.

The judge’s note emerged at the same time as the Government was served with the first claim of abuse brought by an Iraqi woman.

Samahir Abbas Hashim, (32), six months pregnant at the time of the alleged assault, claims she was so badly beaten by British soldiers that she lost her baby.

At 2am, on 21 June 2006, Mrs Hashim says she was sleeping with her children on the roof of her home in Al-Zubayr, Basra. Her husband was sleeping downstairs.

She alleges she awoke to the sound of a large explosion which blasted open the front door of her house and heard British soldiers running inside, shortly after. Some of them pinned her husband to the ground while others rushed to the roof top where she had been sleeping. Mrs Hashim says she was frightened and rushed to protect her youngest child. At this point, she declares, a female British soldier kicked her in the back. As a result, she says, she suffered a miscarriage the next day.

Lawyers acting for Mrs Hashim have written to the Ministry of Defence claiming that her case is clear evidence of “systematic and gratuitous abuse and degradation of Iraqi women by British forces”. Further allegations have been made in eight other cases brought by husbands and relatives of women who say they have been assaulted. The allegations include claims that British troops subjected Iraqi prisoners to rape, sexual humiliation and torture.

Public Interest Lawyers, a firm which is representing 66 Iraqis in 46 separate cases, argues that the Government must hold a single inquiry into the UK’s detention policy in south-eastern Iraq.

…’There are so many cases and so many have so much in common – similar allegations at similar facilities, often involving the same people. We can’t have these dragged out over 10 or 15 years. This is the only rational option.’

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TWO public inquiries have already been launched. The first, into the death of hotel worker, Baha Mousa, (26), in British military custody in September 2003, began hearing evidence last July. It is looking specifically at how ‘prisoner-handling techniques’ banned by the Government in 1972 – including hooding, food and water deprivation and painful “stress positions” – came to be used in Iraq.

And, in November, the Ministry of Defence announced details of a second inquiry into allegations that Hamid Al-Sweady, (19), and up to 19 other Iraqis were unlawfully killed and others ill-treated at a British base in May 2004 after the Battle of Danny Boy.

Bill Rammell, the Armed Forces Minister, has so far resisted calls for a public inquiry into the treatment of detainees by British forces. However, an MoD spokesperson said that Government lawyers were actively looking at complying with the wishes of the Iraqis.

On the claim being made by Mrs Hashim, Mr Rammell said:

… ‘The MoD recently received a letter alleging the abuse of an Iraqi woman, but has not yet been given any evidence. Abuse allegations are thoroughly investigated, as this one will be, and – where proven – those responsible are punished. However, these are allegations and must not be taken as fact.’

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