LawyerI G SocialistMagazine of the Haldane Society of Socialist Lawyers Number 46 July 2007 £2.50

The battle for Legal Aid Special 12-page report

Plus: ISRAEL & MOAZZAM BAE, SFO TURKISH Plus all THE COURTS BEGG speaks AND THE LAWYERS the latest by Daniel Machover at Haldane SAUDIS by TAKE STAND news & & Kate Maynard lecture Jamie Beagent by Azam Zia comment Haldane Society PO Box 57055 London EC1P 1AF Website: www.haldane.org Contents Number 47 July 2007 ISBN 09 54 3635

News & comment ...... 4 From Pakistan to Guantànamo, from International Women’s Day to Britain’s prisons

Carter’s dumb idea...... 11 Laura Janes writes the regular Young Legal Aid Lawyers column

Israel and the courts...... 12 Daniel Machover and Kate Maynard ask how justice can be legally won The Haldane Society was founded in 1930. It provides a forum for the discussion and Tom Hurndall: murdered ...... 17 analysis of law and the legal system, both Chris Williams looks at the death and inquest of a young British activist in Israel nationally and internationally, from a socialist perspective. It holds frequent public meetings Moazzam Begg speaks ...... 20 and conducts educational programmes. Former Guantànamo prisoner spoke at the Haldane lecture on human rights The Haldane Society is independent of any political party. Membership comprises lawyers, The battle for Legal Aid ...... 22 academics, students and legal workers as well Special report by Carol Storer, Piers Mostyn, Sonia Routledge, Damien Hanley, as trade union and labour movement affiliates. Kathy Meade, Clara Connolly, Penny Mackinder and Angus King President: Michael Mansfield QC Vice Presidents: Kader Asmal; Louise Christian; Tess Gill; Helena Kennedy QC; Dr. Paul O’Higgins; Michael Seifert; David Turner-Samuels; Professor Lord Wedderburn QC Chair: Liz Davies ([email protected]) Vice-Chair: Richard Harvey ([email protected]) Secretary: Marcus Joyce ([email protected]) Socialist Lawyer Editor: Hannah Rought-Brooks ([email protected]) Treasurer: Declan Owens ([email protected]) International Secretary: Bill Bowring ([email protected]) Membership Secretary: Azam Zia ([email protected]) Executive Committee: John Beckley; Adrian Berry; Tom Bradford; Cate Briddick; Hannah Brooks; Justine Compton; Kat Craig; Fiona Harvey; John Hobson; Ashok Kanani; Catrin Lewis; Stephen Marsh; Anna Morris; Monika Pirani; Alex Gask; Adam Straw; Hannah Uglow; Chris Williams. / reportdigital.co.uk Jess Hurd Picture: Regional Contacts: West Midlands: Brian Nott, Flat 3, BAE and the Saudi corruption case.... 34 64 Prospect Road, Mosley, Birmingham Jamie Beagent reports on the perplexing tale of arms trade wrongdoing B13 9TD Manchester: John Hobson Turkish lawyers taking a stand ...... 38 ([email protected]) Azam Zia reports on a Haldane delegation to Turkey International contact: Bill Bowring ([email protected]) Editor: Hannah Rought-Brooks Assisted by: Liz Davies, Catrin Lewis, Immigration and asylum contact: Farah Wise, Marcus Joyce, Adrian Berry and Declan Owens Adrian Berry ([email protected]) Design & Production: Smith+Bell Design ([email protected]) Printed by: The Russell Press Cover picture: Jess Hurd Many thanks to all our contributors and members who have helped with this issue

2 I Socialist Lawyer G July 2007 from the chair Haldane AGM

with Shami Chakrabarti The College of Law, 7pm, Tues 9th October 2007 14 Store St, London WC1

Weighted against Carter hat unites the Haldane Society with the Law Society, Bar Council, (usually Haldane Society members) found new ways of using legal aid: Civil Justice Council, the Master of the Rolls, the President of the expanding its scope to housing, domestic violence, welfare benefits, WFamily Division and other Lords Justices? Along with thousands immigration law and developing those areas of the law at the same time; of legal aid practitioners, and their umbrella groups, we’re all opposed to delivering legal services through law centres and other not-for-profit organ- the government’s and Legal Services Commission’s proposals for fixed isations; seeing litigation as a tool alongside industrial action and other fees, and competitive tendering. Far from being “a fairer deal for legal aid”, forms of protest or campaigning; developing specialist legal aid firms; the very real possibility is that implementation of these proposals could diversifying the legal profession. kill the legal aid system stone-dead. The House of Commons This government intends to turn the clock back. The CAC warns “the Constitutional Affairs Committee (CAC) commented that the reaction of the most vulnerable clients – those most in need of legal aid assistance – are proposals from the legal profession and other commentators was “over- likely to suffer”. The response from the Law Society, whilst officially on the whelmingly hostile”, it had received the largest number of submissions of side of its legal aid practitioners, has been disappointing. That of the Bar any of its inquiries so far, and “almost all legal aid practitioners informed us Council is even worse. We need the whole of the legal profession, not that they were contemplating leaving the legal aid market or that they just the legal aid practitioners, to resist these proposals, not out of self-inter- had already done so”. est, but in the interests of present and future clients. The crisis is severe for individual practitioners. Nobody can accuse Meanwhile, we’re pleased to report some legal victories. Daniel legal aid lawyers of being “fat cats”. The immigration, housing, family, and Machover and Kate Maynard write on the use of international law to issue criminal practitioners featured on these pages work long hours, in private arrest warrants against war criminals in the Israeli government. Azam Zia practice or not-for-profit agencies, to keep a roof over their clients’ home, reports on Turkish lawyer Behic Asci’s successful hunger strike, forcing the keep them safe from persecution, force the state to provide subsistence, Turkish government to relax some its isolation measures in Turkey F-type keep their families together, and keep them out of jail. They do that prisons. Chris Williams and Mike Mansfield QC represented the Hurndall because they are committed to the clients, not for personal riches. As the family at the inquest of their son, Tom, murdered by Israeli soldiers. Tony squeeze gets worse, all of us in the legal aid world are looking over our Blair and Peter Goldsmith may have let British Aerospace off the hook by shoulders at how we will personally survive. stopping the Serious Fraud Office inquiry into the payment of bribes, but But the real crisis is whether the clients will sur- they can’t stop the voluntary sector litigating to get BAE in the vive. As advice deserts spread, as even the new dock. Few of the domestic victories would have been CLACs and CLANs are under-funded, as private possible without legal aid, and none of them would practitioners abandon legal aid for work that allows have been possible without the expertise of legal them to pay their own housing costs, who is going aid lawyers. to fight for Ms N, fleeing domestic violence, living The Society concluded our series of human in a foreign country, having a nervous breakdown rights lectures for this year with an inspirational and disbelieved by the Home Office? Who will be talk by Moazzam Begg on his three-year incar- on hand to prevent police officers from reverting to ceration in Guantanamo Bay and Bagram. the bad old days of fabricating evidence, before Sadat Sayeed led us through the tortuous legal advice at police stations became free and path of litigation trying to force the US gov- accessible? Who will provide the drop-in services ernment to accept due process. The story is and telephone advice lines run by Law Centres to one of brave lawyers, but a reluctant Supreme those who (just) fail to qualify for legal aid? Who is Court and an aggressive government that legis- going to spend the time with a mentally ill client, lates to legalise whatever the Supreme Court has building up trust so that she can make an declared unlawful. Sarah Burton from Amnesty informed decision? Who is going to sort International spoke on the campaign to Close out the nightmarish tangle of housing ben- Down Guantanamo Bay – and the efit decisions? Haldane Society is proud to support it. Carol Storer, Piers Mostyn, Sonia Having heard Moazzam speak, we are Routledge, Damian Hanley, Kathy Meade, even more determined that all of the Clara Connolly, Penny Mackinder, and Angus inmates should be released. King all paint a grim, but accurate, future of Thanks go to Rebekah Wilson for edit- the devastation of publicly-funded legal ing Socialist Lawyer so ably for the last two services under Carter. years, and now participating in the As Jamie Ritchie points out, there Haldane Society from Nepal. Hannah never was a golden era of legal aid. Rought-Brooks has stepped into her shoes, sup- When it was first introduced, in the ported by a collective, and so Socialist Lawyer goes 1940s, it was simply a way of ensuring from strength to strength. that people with very low incomes did- G Liz Davies, chair, Haldane Society [email protected] n’t go unrepresented in criminal, mat- See http://web.amnesty.org/pages/guantanamobay-index-eng, rimonial or personal injury proceed- www.haldane.org/news/guantanamo.php and www.guantanamo.

ings. In the 1970s, radical lawyers org.uk for the Close Down Guantanamo Bay Campaign / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer G July 2007 I 3 News&Comment

Guantánamo: even

n February 2007 the US prosecutions before the military military announced that it commissions given that all of the had prepared fresh charges detainees at the detention facility Iagainst three Guantánamo have been assessed as ‘enemy detainees: David Hicks of combatants’ before the coming Australia, Salim Hamdan of into force of the MCA. The ruling Yemen, and Omar Khadr of may mean that all the detainees Canada. Salim Hamdan was held at Guantánamo will have to accused of acting as Osama bin be redesignated as ‘unlawful Laden’s driver in Afghanistan and enemy combatants’, which would Day to remember of transporting weapons for al- require separate hearings for all of Qaeda. Omar Khadr faced them before the CSRT. Following ooks Chambers several women’s organisations charges of murder in violation of the decisions to throw out the achieved another first including Camden Women’s Aid, the law of war, attempted murder cases against Hamdan and Khadr, for a set of barristers’ Rights of Women and Southall in violation of the law of war, the Pentagon’s lawyers filed a Tchambers, by organis- Black Sisters, introduced their spying, conspiracy and also motion for reconsideration asking ing with women’s organisations, work and current campaigns. providing material support for the military judges to reconsider a series of events to celebrate The surprise event of the evening terrorism. their decision. The Pentagon International Women’s Day. was a performance of the Vagina David Hicks pleaded guilty to submits that there is no material On 8th March over 100 Monologues by Tooks’ members the charge of providing material difference between ‘enemy women and a sprinkling of men, Dora Belford, Rebekah Wilson support for terrorism. In May combatant’ and ‘unlawful crowded into the glass and and Elizabeth Woodcraft, and 2007 he was transferred back to enemy combatant’. Whilst this chrome building which is now actor and some-time barristers’ Australia to serve his nine month is an embarassing setback for home to Tooks Chambers. This clerk, Troy Titus-Adams – the sentence. June 2007, however, the administration, it first event was the launch of the initial bemusement of the audi- witnessed a rather unusual twist, remains to be seen whether photographic exhibition, Dis- ence rapidly turning to delight. with US Military judges throwing it will bring the detainees arrange, curated by photographer The number of people attend- out the cases against Salim any closer to release from Sarah Booker and displayed in the ing the event, viewing the photo- Hamdan and Omar Khadr on the Guantánamo. Tooks Chambers atrium. The graphs and listening to the basis that the military had failed to powerful black and white pictures words of the women’s organisa- designate both men as ‘unlawful Death in custody included images of Greenham tions, with no prospect of CPD enemy combatants’. They had On May 31st 2007, a women peace campaigners, both points, was a reminder to many previously been designated as Saudi man named as at Greenham Common and at of us how iconic the date of 8th ‘enemy combatants’, but the word Abd al-Rahman al- court, in the UK and in Sicily; March has become. ‘unlawful’ was missing from their Amiri, was found not London women protesting the Later events included semi- designation and hence the judges breathing in his cell at closure of South London Women’s nars on Human Trafficking, Do- of the new Military Commission Guantánamo, and Hospital; and Nicaraguan women mestic Violence and Access to Act 2006 (MCA) military guards could not revive freedom fighters and the defiant Justice. The season came to a commission held that the court him. This is the fourth slogan painted on a wall ‘Sin la close on 10th May with an auc- had no jurisdiction. This has such death at the camp, participacion de la mujer non hay tion of photographs helped by thrown the administration’s after two Saudis and a revolucion.’ Dora Belford, raising funds for efforts to prosecute various Yemeni prisoner were Head of chambers, Michael the women’s organisations spon- individuals at Guantánamo into found hanged in an Mansfield QC, opened proceed- soring the seminars. disarray, and may well have apparent suicide at ings and then representatives of G Liz Woodcraft consequences for future Guantánamo in June last April 10: People in prison: 80,309. 10: The first time a Serbian 15: Three senior magistrates 16: Undercover reporter 18: Research commissioned Prison Governors’ Association court has put suspects on resign over surcharges on working as a prison officer in by the UK Drug Policy warns that an overuse of trial in connection with the fines for offenders Rye Hill – a private jail strongly Commission shows that the “indeterminate” sentences is massacre of almost 8,000 (government’s £15 “victims’ criticised over the murder of courts hand out three times creating chaos, and inflexible Bosnian Muslims at surcharge” which JPs are one inmate and the as much prison time for drug “breach” procedures that see Srebrenica, sees four required to impose on any “avoidable” suicides of offences as a decade ago released offenders back in members of a Serbian death offender thet fine). The vulnerable inmates – exposes but tough sentencing has custody for a non-show or squad receive prison Magistates Association has conditions where inmates have done little to stem the flow of being late for appointments is sentences between five and condemned the scheme as easy access to drugs and drugs onto the streets. driving prison numbers up. twenty years. “fundamentally flawed”. subject staff to intimidation.

4 I Socialist Lawyer G July 2007 News&Comment

Powell wants it shut

year. A senior US officer caused nasal tube at the time, outrage at the time by describing Commander Haupt said. The the suicides of three men as an act president of the Center for of asymmetric warfare and a good Constitutional Rights, Michael PR move on the part of terrorist Ratner, told the Associated Press suspects. news agency that the death was The US authorities would not likely an act of desperation. “You reveal how this most recent death have five-and-a-half years of came about, but a spokesman for desperation there with no legal US Southern Command said Mr way out” Mr Ratner said. Amiri’s cell had been “regularly” UK prison shame monitored by guards. Amnesty More calls to close the camp said such harsh and inhumane Former US Secretary of State ur penal system is one increased incarceration across conditions at the camp were Colin Powell added his voice to of the worst in Europe. Rising prison popula- “pushing people to the edge”. the call for the immediate closure Europe. We have a tions; more stringent conditions Commander Rick Haupt said he of the camp at Guantánamo Bay. Ohigher prison popula- for the release of dangerous pris- did not know if Mr Amiri had Speaking on US television, Mr tion per capita than any other oners; and the general use of in- attempted suicide before, but that Powell said that detainees held country in Europe, the lowest age carceration as a response to the his records reportedly show he there should be transferred to of criminal responsibility in ‘terrorist threat’. While Britain had been on a hunger strike in the prisons in the US. He also called Europe (being 10 in England and stands as the leader in Europe past. He had been force-fed with a for the abolition of the military eight in Scotland) and the highest with a prison population at tribunal system, saying terror propensity to lock up our chil- almost 149 per every 100,000 suspects should face trial under dren, not only for the commis- (the next closest is Spain with existing US federal laws. Mr sion of criminal offences, but also 146 per 100,000 capita), the US Powell told NBC’s Meet the Press for breaching civil orders, despite far outstrips us, with around five television programme “I would the UN’s requirement that the in- times as many . simply move them to the United carceration of juveniles should be Immigration detention was States and put them into our a last resort. also an issue, with presenters federal legal system. The concern So it was not without some generally expressing outrage at was, well then they’ll have access anxiety that I agreed to give a its use, even though the length of to lawyers, then they’ll have access paper in April on the state of our detention is restricted to a certain to writs of habeas corpus. So prison system at a seminar in number of days in their coun- what? Let them. Isn’t that what Munich called ‘Prisons in Europe tries. For instance, in Italy, people our system is all about?” He then – zones without rights?’ organ- can only be detained as immi- stated “If it were up to me I would ised by the European Democratic grants for a period of up to 60 close Guantanamo not tomorrow Lawyers. For some reason the as- days. Of course, here we have no but this afternoon….. Essentially, sociation had never had any such long-stop position. we have shaken the belief the input from our island on this However, there were some world had in America’s justice issue. I was therefore to be the clear competitors in the running system by keeping a place like first to set out the position. The for most draconian incarceration Guantanamo open and creating reaction from most countries was policy amongst our counterparts things like the military one of horror, despite the fact in Europe: particularly shocking commission.” that our system appears to fore- G Sadat Sayeed shadow a general trend towards continued >>>

20: Iraq is condemned by 30: Private security staff who 30: The BBC successfully 30: Alan Canfora, a student 30: Corporal Donald Payne, Amnesty International for operate prison vans will keeps an internal report injured at Kent State University the first British soldier to be becoming the world’s fourth decide from today whether about the Middle East out of Ohio in 1970 when troops convicted of a war crime, is highest user of the death young adults awaiting trial in the public domains. The opened fire on Vietnam protesters jailed for a year and penalty behind China, Iran London are mentally strong corporation used a get-out and killed four students, dismissed from the army. He and Pakistan. A rapid enough to survive in the clause that allows it to refuse demands a new investigation. brutally mistreated Iraqi hotel acceleration in executions has toughest of prisons. The requests when information is An old audio recording appears worker Baha Musa, who died occurred since 2004, when decision to hold youngsters in deemed to be held for the to leave no doubt; “Right here. of his injuries, and other the US handed control to the adult jails comes after prison “purposes of journalism, art Get set, point. Fire.” Then came civilians held at a detention newly elected government. numbers hit a new height. or literature”. 13 seconds of gunfire. centre in Basra.

Socialist Lawyer G July 2007 I 5 News&Comment

>>> continued will be insufficient by 2013 – one quarter of all prisoners who crowding and rising populations, even on the lowest scenario. In self-injure and contributed ap- with no signs of brightening, del- was the report from the Nether- addition, the Home Office in- proximately half of all incidents. egates at the conference appeared lands on the Schiphol Airport tends to introduce a range of new These proportions are higher for genuinely concerned at the scope crisis in which eleven detained measures including a four-year young offenders.” of our legislative framework to people were killed and many maximum penalty for carrying a The catalogue of failures and provide for the incarceration of others wounded in a fire that oc- knife, tougher sentences for vio- problems faced by the prison children as young as ten, as well curred there in 2005. Those de- lent offenders and the require- system have led in recent years to as the availability of a custodial tained at this new airport prison, ment for unanimous parole a number of public inquiries, sentence for breaches of civil designed to deal swiftly with board decisions to release prison- ranging from issues such as chil- orders. While we may only have drug trafficking, are often held ers. Such measures will further dren in custody (an independent a small handful of children under without access to legal represen- increase the prison population. inquiry commissioned by the the age of 14 in custody, the tation for periods of up to a week The increased use of custody – Howard League) to racism (the structure of our criminal system after which it may be apparent to both in the UK and internation- Mubarek Inquiry) and women sends a very strong and unpleas- the authorities whether or not ally – presents a range of serious (the recent Corston Report). ant message to our counterparts they have swallowed a ‘drugs problems including increased sui- Each inquiry has resulted in a in Europe about our views on ball’. cide and self harm rates. One clear message to the public and crime and culpability. Combined The Greek representative was issue that would have been inter- government that there is much to with the well known fact that re- able to report a prison popula- esting to explore is whether and be done to remedy a failing cidivism is particularly high tion of just 10,000, but their how data relating to these issues system. amongst young offenders, our prison capacity is in fact only is collected across Europe. In any While the state of prisons approach does not bode well for 5,000. Many prisoners sleep on event both issues are depressingly across Europe is generally bleak the future. the floor in overcrowded cells common in England and Wales. in terms of conditions, over- G Laura Janes with “often up to four inmates The suicide rate in custody is stowed in cells designed for single very high: during 2005, 78 occupancy”. people committed suicide, al- While conditions and over- though this figure fell to 67 in crowding here are not compara- 2006 – a figure that the National Hodge panders to ble, our prison population in Offender Management Service England and Wales is at such a boasts as the “lowest since crisis point that our system is 1996”. Incidents of the deaths of argaret Hodge’s com- ing is for asylum seekers and im- playing host to a range of ancil- children in custody have been of ments in May that migrants” said David Woods, Di- lary problems associated with particular concern with 29 deaths “we should look at rector of Housing. prison overcrowding, many of since 1990. Several cases have M[housing] policies As a matter of fact and law, which have been the subject of been particularly high profile, not where the legitimate sense of en- asylum-seekers are excluded independent- and government-led least because the children con- titlement felt by the indigenous from applying for social housing. inquiries. cerned were flagged up in the family overrides the legitimate So are most recent arrivals into According to a Home Office criminal justice process as having need demonstrated by the new the UK. Refugees, and those statistics bulletin, “the total particular vulnerabilities that migrants” are wrong factually, granted humanitarian protection prison population has increased would be exacerbated in custody. legally and in the analysis of the by the Home Office, are entitled from 51,080 in June 1995 to The prevalence of self-harm problem. Above all she’s propa- to apply precisely because the 76,190 in June 2005.” This will amongst the prison population is gating racism. asylum rules require that people rise to 90,250 by 2013 on the also an enormous problem and Ironically, the MP for Bark- fleeing persecution should be lowest scenario in its forecast one which particularly affects ing’s comments came just two given equal treatment once their based on recent trends. women. The prison service web weeks after Barking & Dagen- refugee status is recognised. Eu- At the same time, government site admits that “[s]ince 2003, ham council had set out its ap- ropean Union nationals who are has announced plans to increase approximately 30% of female proach in completely different not working are excluded from the number of prison places by prisoners self-injured each year terms: “the mythology that we’re social housing. Those who are 8,000 – a figure that on the (compared to 6% of males). trying to fight around here is that working are unlikely to need it. above Home Office projections These prisoners make up roughly government investment in hous- Those who are entitled to apply May 7: The campaign Strangers 10: Anne Owers, the chief 10: The official cost of the 10: David Keogh, a Whitehall 12: The Independent into Citizens is launched. It inspector of prisons, says national identity card system official, and Leo O’Connor, a Labour police Complaints aims to lobby for a “pathway in a report on Norwich has soared in the past six MP’s researcher, are jailed for Commission is to into citizenship” through a prison that more than months by £840m. It means that disclosing the minutes of a meeting investigate allegations two-year work permit for 7,000 inmates have had to the total cost of the project is between Blair and Bush about Iraq. that some off-duty migrants who have been in be put up in police cells at now £5.75bn. This is unlikely to An Old Bailey judge imposed officers attended a Britain for more than four a cost of £23m a month be the final bill as it excludes the gagging orders on the media British National party years so that they can earn a since the crisis in prison costs of the ID card scheme to preventing the publishing of a event to mark St living legally and pay taxes. numbers started in government departments comment made by Keogh, even George’s Day in October. outside the Home Office. though it was said in open court. Manchester.

6 I Socialist Lawyer G July 2007 News&Comment

wider issues relating to Britain’s decision to go to war saying: “I Fairford Two are victorious remind you, you do not have to decide the legality of the decision to go to war.” n 22nd May, Phil Iraqi children to be stuck on the According to their solicitor, Pritchard and Toby payload door. They were held on Mike Schwarz, this is the closest Olditch were found remand for three months and an English court has come to ac- Onot guilty of conspir- told that they could expect a jail cepting that war crimes were ing to cause criminal damage at sentence of up to 10 years. Their committed by Britain and Amer- RAF Fairford in Gloucestershire first trial in October 2006, ended ica in Iraq. “In strict legal terms on the eve of the invasion of Iraq in a hung jury. Their defence the verdict is not significant; what in March 2003. They successfully relied on two points: that they is significant is that you had 12 argued before a jury at Bristol were acting to prevent a crime, jury members who unanimously Crown Court that their actions namely potential war crimes found these defendants not guilty had been reasonable because against Iraqi civilians, and to pre- and that really is a clear barome- other means of legitimate protest vent criminal damage to Iraqi ter of the public’s views of the against the war had failed. property. The protesters argued lawfulness of what the govern- The two men had been ar- that war crimes would be com- ment did. In effect the jury was rested when they broke into Fair- mitted in the bombing as the saying that war crimes were com- ford carrying bolts and screws to B52s carried cluster weapon. mitted. And the Judge allowed be placed inside B52 bombers’ Judge Tom Crowther had told them, which is in some way, a engines and pictures of smiling “Reasonable action”: Phil and Toby the jury that they should ignore judicial endorsement.” the racists on housing in east London have to wait in the same queue as She’s also attacking the con- needy first. Of course, how to ernment should be building everyone else. Their need for cept that council and housing as- prioritise different types of need 20,000 new council and housing social housing is assessed on the sociation tenancies should be is a tricky political issue. Does association homes each year. same basis as everyone else. They allocated solely on the basis of the overcrowded family have pri- If Hodge thinks that pander- don’t queue-jump, on the basis of relative need. Even now, need is ority over the single person living ing to racism will help her re- their immigration status or any- not the sole arbiter of which des- in a hostel? Should a family flee- election, she’s mistaken. First, for thing else. perate household gets which ing racial harassment be re- every racist vote won to Labour, So who is Hodge talking home. Councils may already give housed quickly, leaving another there will be anti-racist votes lost. about? She’s conflating two sepa- some priority to those who have family in damp accommodation Second, she’s gifting votes to the rate issues: the mythology (as her a local connection to the area waiting? Part 6 Housing Act BNP, who can argue on the own Director of Housing puts it) and to existing tenants seeking 1996 is right to identify different doorstep that voters who agree that recent arrivals get priority in transfers (See the recent litigation categories of need, and then leave with Hodge should vote for the the housing queue, and a sense over Barnet’s allocation scheme: it to local elected politicians to unapologetic racists: themselves. that some people might be con- R (Lin) v Barnet LBC [2006] draw up schemes that recognise Hodge’s comments have at- sidered recent arrivals, no doubt EWHC 1041, [2007] EWCA Civ those different needs. tracted near universal condemna- because of the colour of their 132). But quite rightly underlying The problem with social hous- tion and ninety-eight lawyers, skin. Even if it were the case that the statutory basis that governs ing is not the rules governing al- including several prominent asylum seekers were queue-jump- councils’ allocation schemes (Part location, but the diminishing members of the Haldane Society, ing, Hodge should know that 6 Housing Act 1996) is an em- number of homes available for signed a letter published in The “asylum-seeker” is racist code for phasis that generally homes thousands of desperate families. Observer calling for her to resign anyone whose face doesn’t fit. should be allocated to the most Shelter’s estimate is that the gov- or be sacked. G Liz Davies

14: An Algerian, Mouloud Sihali, who was 17: A jury finds that a series 18: The House of Commons 21: An all-party group 21: A report by branded a terror suspect after being of failings by the prison votes to exempt itself from its of MPs urges the Saferworld, an acquitted in the ricin plot trial, is cleared of service contributed to the own Freedom of Information government to independent thinktank, being a threat to British national security. death of Shahid Aziz, who Act, ending the compulsory introduce effective claims the government But the special immigration appeals was stabbed by his violent legal requirement for MPs to controls over US has repeatedly breached commission dismissed appeals against white cellmate, Peter disclose their expenses and rendition flights. its own guidelines on deportation from three other Algerian terror McCann. An assessment of introducing further curbs on Questions have been arms exports by selling suspects, ruling that diplomatic the threat McCann posed the release of already raised about 170 weapons to countries with assurances from the Algerian government relied solely on asking him protected MP’s possible CIA rendition bad human rights were enought to ensure their safety. whether he was dangerous. correspondence. flights through the UK. records.

Socialist Lawyer G July 2007 I 7 News&Comment

Palestine forty years on: enough!

n 9th June 20,000 eral British politicians spoke demonstrators showed calling for an end to the occupa- their support for the tion and Alison Shepherd, Presi- OPalestinians living dent of the Trade Union under occupation in a march and Congress, stated that the TUC rally held to mark the 40th an- had renewed its policy of sup- niversary of the Israeli occupation port to the Palestinian and to of the West Bank, Gaza and East add its voice to the growing call Jerusalem. The rally in Trafalgar for an end to occupation. She Square was organised by the highlighted the worsening eco- Enough! Campaign; a coalition nomic situation, increased of over 50 charities, trade unions, poverty, and the exploitation of faith and other campaign groups. Palestinian workers. Mustafa Barghouti, the Pales- There were demonstrations tinian Authority’s minister of in- around the world. In Tel Aviv Riot police at the G8 summi protestt in Heiligendamm, Rostock, Germany. Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: formation, addressed the rally thousands of people gathered to calling for international support attend a rally organized by to the democratically elected gov- groups including Meretz, Peace ernment. He compared the situa- Now and Anarchists Against the tion to apartheid South Africa Wall. In South Africa, 2,500 Lords’ judgment:he stating that “Israel cannot be people from solidarity groups, changed from within, there needs trade unions and faith-based or- aha Mousa died of 93 in- explore issues arising from what is to be pressure from outside.” His ganisations, gathered in Cape juries inflicted by multi- on the public record in these pro- call for a boycott of Israel was Town and joined a march that ple soldiers none of ceedings (R (Al Skeini) v Secretary echoed by several speakers. walked peacefully through the Bwhom were charged, as of State for Defence [2007] UKHL Bishop Riah Abu El Assal, the Cape Town chanting in unison the judge in the court martial 26). Anglican bishop of Jerusalem, for an end to the occupation and found, “as a result of a more or These issues include: spoke of his belief in the ultimate freedom for all Palestinians. less obvious closing of ranks”. He A policy that led to the dropping victory of peace based on justice. Tragically, the words of had been beaten, subjected to of the 1972 ban on hooding, Bruce Kent, of Pax Christi and Mustafa Barghouti and Ishmael stress techniques and hooded. Re- stressing, sleep deprivation, food CND, spoke of peace and Haniya urging support for the sponsibility for that lies, again in deprivation and white noise; praised Israelis and Jews who unity government, have already the words of the judge, “at brigade a written policy on hooding de- campaign for justice for the been overtaken by events in and beyond”. In the same incident tainees that reflected verbal and Palestinians, and who formed a Gaza. It is essential that the another man was beaten and tor- written NATO policy; that there major part of the coalition. Ne- campaign for a just peace in tured so badly that he nearly died was complete confusion at the tan’l Silverman, an Israeli Palestine and Israel is not dis- of renal failure. Another five men highest level as to what was lawful member of Combatants for tracted by the internal chaos, were seriously injured. or not; that when the head of Peace, a group of Palestinian and and that we stand in solidarity This successful House of Lords Army Legal Services blew the Israeli ex-combatants that works with ordinary Palestinians suf- judgment in June means there whistle on hooding and stressing to encourage dialogue between fering under the occupation and must be a full, public and inde- he was told that the attorney gen- the two sides, addressed the rally those Israelis working for peace pendent inquiry into what went eral had advised that the Human about his group’s vital work. Sev- and justice alongside them. wrong. This inquiry will have to Rights Act did not apply, and ac- June 1: A coroner calls for an urgent 4: A military judge throws out all 5: Ministers announce 5: The Home Office is to 8: An inquiry by the Council of review of the use of restraint on charges against a Guantánamo their intent to introduce a ask Parliament to Europe concludes that the CIA young offenders after a jury detainee on a technicality that national British day, and approve changes to operated secret prisons in returned a suicide verdict on Adam appears to apply to all 385 plans to toughen rules for police and immigration Europe where terrorism Rickwood, a vulnerable 14-year-old prisoners. Omar Khadr had migrants. they would only counter-terrorism powers suspects could be interogated who hanged himself with his been designated an “enemy be able to become to question and detain and were allegedly tortured. shoelaces ata privately-run secure combatent”, not an “unlawful British citizens if they for up to nine hours poland and Romania were unit. Adam is the youngest person enemy combatent”, the term could demonstrate good anyone travelling used to hold prisoners and to die in custody in Briatain for more used by Congress to authorise behaviour and a through a British airport, none of the prisoners had than 50 years. the tribunals. willingness to integrate. port or railway station. access to the Red Cross.

8 I Socialist Lawyer G July 2007 News&Comment

‘We will go on pursuing them…’

n 27th April the German federal prose- cutor dismissed the Ocomplaint filed in Ger- many against former US secretary of defence Donald Rumsfeld and other US officials, for torture and war crimes. The prosecutor based her decision on three main points: the absence of any suspects in Germany; the unlikelihood of any suspects visiting Germany in the future; and the impossibility of a successful investigation. The 400-page complaint was filed on 14th November 2006 by Donald Rumsfeld: war criminal the Berlin attorney Wolfgang Kaleck on behalf of the Center for and because the US has refused Constitutional Rights (CCR) to join the International Criminal was victim of torture based in New York, the Interna- Court, it is the legal obligation of tional Federation for Human states such as Germany to take cordingly lower legal standards had been reintroduced, including a Rights (FIDH), the Republican up cases under their universal ju- were followed; that interrogators written policy on hooding? Attorneys’ Association (RAV), risdiction laws. were trained to hood, stress and • How is it that at the highest more than 40 other international “Fundamentally, this is a po- use sleep deprivation. levels, even after Mousa had died, and national human rights groups litical and not a legal decision,” The family of Baha Mousa, the there was ignorance of the fact of including ELDH, 12 Iraqi citizens said the CCR President, Michael victims of all these incidents and the 1972 ban? who were held in Abu Ghraib, Ratner. “We will continue to the public are entitled to know the • On what basis did the attorney- and one Saudi citizen still held at pursue Rumsfeld, Gonzales, and answers to some pressing ques- general advise and did he say un- Guantánamo. I was one of the the others – they should not feel tions: equivocally that hooding, stressing individual plaintiffs, and filed an they can travel outside the US • In the Mousa incident, were all and other banned techniques were affidavit on the question of tor- without risk. Our goal is no safe the right people charged with the absolutely prohibited, and that the ture committed at Abu Ghraib. haven for torturers.” right offences? Convention against Torture ap- The complaint states that be- The German law of universal • Bearing in mind the noise of the plied? cause of the failure of authorities jurisdiction expressly states that soldiers shouting abuse, the It is imperative that the govern- in the United States and Iraq to it is a universal duty to fight tor- screaming of the prisoners and the ment and military face up to these launch any independent investiga- ture and other serious crimes, no scale of the site, who in command issues. Further efforts to suppress tion into the responsibility of matter where they occur or what knew what was going on in the material and legitimate debate high-level US officials for torture, the nationality of the perpetra- crucial 36 hours before Mousa must stop. despite a documented paper trail tors and victims are. Kaleck and died? G Public Interest Lawyers and government memos implicat- his colleagues have Haldane’s full • Who knew or ought to have Solicitors for the Mousa family, ing them in direct as well as com- support in their important action. known, that the banned techniques www.publicinterestlawyers.co.uk mand responsibility for torture, G Bill Bowring

12: The Commission for residence after four years. 14: The law lords dismiss 16: Ministers 18: The law lords agree to hear an Racial Equality believes the But IT specialists, scientists arguments by the Ministry of announce a policy appeal by the mothers of two soldiers government breached anti- and others have been Defence and Lord Goldsmith, review of the legal killed in Iraq, who argue that the discrimination laws after affected by the retrospective the Attorney General that the clause which allows government violated their sons’ right to changing its immigration application of new rules that Human Rights Act does not parents to inflict life by rushing into war on inadequate programme for highly skilled prioritise age, education and apply to UK forces detaining “reasonable legal grounds. This could force the workers. They had previously previous earnings and no foreign prisoners, in particular chastisement” on government to hold an independent been allowed to pledge to longer take into account Baha Mousa, a Basra hotel their children, so inquiry into the way the attorney make Britain their main home previous work experience or receptionist who died while in long as they don’t general reached his conclusion that and claim permanent professional achievement. British custody in 2003. leave a mark. the war in Iraq would be lawful.

Socialist Lawyer G July 2007 I 9 News&Comment

What is Tony Pakistan dictator takes on his Blair’s real he suspension of the On 9th March, Musharraf Pakistan’s largest city, controlled legacy? chief justice of the called Chaudhry personally to his by the Muttahida Qaumi Move- supreme court of Pak- residence and told him to resign. ment (MQM), supporters of ony Blair is obsessed Tistan, Iftikhar Chaudhry, When Chaudhry refused, he was Musharraf. The MQM disrupted with how he will be by President Musharraf, has un- kept under house arrest, declared the rally with armed force. Roads viewed by history. One leashed a torrent of protests, met “non-functional”, accused of were blocked, cars were Tword will suffice: Iraq. with escalating repression. “corrupt misuse of office”and an burned, hundreds of people But from his time as shadow Chaudhry presided over a acting chief justice was appointed. were injured and over 40 home secretary right through to supreme court that has recently There is no basis in the Constitu- Chaudhry supporters were prime minister, he also pursued a taken decisions that have dis- tion of Pakistan for this kind of killed. The police were said to ‘zero tolerance’ policy on crime. mayed Musharraf’s government. government intervention. be complicit, arresting over 800 New Labour has been commit- It ruled against a sale of Pakistan Within days of Chaudhry’s sus- Chaudhry supporters. ted to a strong state, reflected both Steel Mills to a friend of Mushar- pension, lawyers across Pakistan Television offices were fired on in the money poured into law and raf’s, declared a bill giving the launched unprecedented protests. by MQM gunmen. order and the number of new laws police power to enforce obser- They boycotted court proceedings Since March, Chaudhry and that have been passed; Britain now vance of Islamic practices and and held large rallies, supported the government have been bat- spends more on the criminal jus- values to be unconstitutional, and by the NGO movement and Be- tling it out in court. The gov- tice system and policing than has directed the government to nazir Bhutto’s People’s Party ernment argued that the France, Germany or the US and answer questions about those who (PPP). Chaudhry was released court has no jurisdiction has placed 2,685 new laws on the have ‘disappeared’ (often at the from house arrest in May. He was to hear Chaudhry’s com- statute books since 1997, an in- behest of the US) in recent years. due to address a rally in Karachi, plaint that his suspension The West’s fave crease of 22% in the decade from 1987-1996. Hence, prison num- bers have grown at an astonishing rate from 60,000 to over 80,000 Why Haldane should go on the ATTAC in ten years, with those figures set to continue to rise into the next aldane’s participation of our sister association the Euro- ECOFIN” held in Berlin in April decade. The criminalisation of in European develop- pean Democratic Lawyers. I was 2007; and the conference youths has been particularly close ments is intensifying. re-elected president of ELDH. “Labour and Justice in a Glob- to Blair’s heart, leading to almost HThis is shown by two It was splendid to see partici- alised World” held in Freiburg in 12,000 of those incarcerated being events which took place in Han- pation in ELDH events by Hal- May 2007. We also attended the under the age of 21. Social prob- nover on 22-24th June 2007. dane members. Tim Potter took Arab Lawyers Union conference lems caused by economic inequal- The European Lawyers for part in trial observations of cases in Damascus in January 2006, ity are now acts of anti-social Democracy and Human Rights against Basques in Madrid; and and joined many protest actions, behaviour, dealt with by the impo- (ELDH) – see www.eldh.eu – of Laura Janes participated in the as well as participating in the ac- sition of anti-social behaviour which Haldane is a founder, held ELDH/EDL seminar “Prisons in tivities of the European Network orders. Over four million its annual general assembly Europe”, held in Munich in Octo- Against Racism (ENAR) of which CCTV cameras currently on 22nd June, with represen- ber 2006. Highlights of the past ELDH is a member. operate in Britain and tatives from the Basque coun- year included: the conference ELDH was also one of the with the introduction of try, Bulgaria, England, France, “Social Rights in Europe” in sponsors, with ATTAC (“the ID cards the erosion of Germany, Italy and Romania. Berlin, in May 2006; the confer- world is not for sale”), of the con- personal privacy is set to There are currently applications ence “Frontiers of Europe: Areas ference “The EU Constitutional continue. As well as Iraq, for membership from Turkey Without Rights” held in Treaty: Criticisms and Alterna- Blair’s legacy is a more and the Netherlands. We were Barcelona in October 2006; the tives”, held on 23-24th June. This

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: unequal, divided society. also joined by Silke Studzinsky, conference “Alternative was attended by over 150 activists. June 27: He’s 18: The Ministry of Justice 20: A ruling by the law lords 22: A senior civil servant 26: No policemen or soldiers gone… confirms that the rules rules that an 84-year-old who drew up the rules on are to be charged in governing the use of restraint woman with Alzheimer’s restraining teenagers in connection with the loyalist techniques based on inflicting disease placed in a private child jails strongly murder of the solicitor Pat pain in privately-run children’s care home by Birmingham city criticises ministers for Finucane. Finucane, a civil jails are to be widened to allow council is not covered by the making changes which rights lawyer who defended staff to use them to enforce Human Rights Act. The ruling will allow private security republican suspects was everyday discipline. Restraint leaves more than 300,000 staff to use “pain- killed by gunmen from the techniques were used on 301 vulnerable elderly people in compliance” physical Ulster defence Association in children as young as 12. private care homes restraint techniques. February 1989.

10 I Socialist Lawyer G July 2007 Young Legal Aid Lawyers Carter’s dumb idea: young legal aid lawyers are feeling the pinch

arter’s ‘dumbing down’ though did consider that our pro- partly because they are not sub- of legal aid will have a posal of making a commitment to ject to the same protections as devastating impact on training part of the contract with trainees. Members desperately Cthe quality of new en- the LSC was one worth consider- seeking training contracts have judiciary trants to the profession, reducing ing. Although we have heard been offered the chance to do free incentives for young lawyers to nothing since the positive noises work experience followed by a work in legal aid. In particular, emanating from the DCA last period of paralegal work for vir- was unconstitutional and that the this will be caused by making year since, we remain convinced tually national minimum wage only investigation should be into training contracts even less attrac- that such a commitment must be with a view in the long run to the allegations of corruption. On tive for providers, who are in- part of the new contract. being able to apply for a training 11th June, the supreme court dis- stead encouraged to make as Currently, finding a training contract. Other members, some- agreed. It is to consider much use as possible of parale- contact is increasingly difficult. In times with extensive casework ex- Chaudhry’s argument that the gals. This will have a direct response to a survey we conducted perience, are being employed as suspension might be unconstitu- impact on the quality of lawyers of 100 YLAL members in autumn paralegals in environments where tional. available to future legal aid 2006, many respondents empha- they are expected to manage a Theoretically, Musharraf is clients. sised that training contract jobs caseload at a level far above that due to face the electorate in Oc- Carter envisages that firms were being axed in favour of re- at a trainee but on a salary some tober. However, Musharraf has practicing in legal aid can be cruiting paralegals. The following ₤4,000 less than a trainee work- promised free elections time profitable, provided they use a response was echoed many times ing in the same firm. There is an and time again. Each time, ‘pyramid structure’ based on through out the survey: “I am extent to which firms have been opponents are banned, or having one partner to every 10 trying to get a paralegal position in encouraged by the new changes the timetable slips. Bush solicitors and 50 paralegals. The a criminal firm in the hope of to do this in order to survive. and Blair’s favourite dic- then Minister for Legal Aid sup- being offered career progression However, if we are to avoid the tator, and their ally in ports this notion advocating the and have been told by firms that next generation of legal aid the “war on terror”, has increased use of paralegals to do they cannot offer me anything due lawyers being an unhappy and, never yet sought a dem- less skilled work such as taking to the uncertainty of their practice more importantly, unqualified ocratic mandate. witness statements. For example, due to Carter. I was very close to bunch unable to practice in the dictator G Liz Davies in a meeting with the minister last being recruited in a firm as a para- best interests of our clients, firm year, a YLAL member who is a legal with a view to becoming a action needs to be taken now! trainee described the difficulties trainee, and then I was told that This action also needs to in- ATTAC was founded in 1998, on working to a fixed fee in deal- due to the proposals they were not clude protection for the junior and its first concrete proposal was ing with a very disturbed victim only not taking on new trainees bar who are finding their work in the taxation of financial transac- of domestic violence. The trainee but also downsizing.” the lower criminal courts hur- tions in order to create a develop- argued that it took a great deal of Although the Solicitor’s Regu- riedly drying up with the advent ment fund and to help curb stock time to establish a relationship of lation Authority has recently an- of solicitors undertaking in- market speculation. Hence its trust following which she was nounced that it will hold out on creased advocacy roles on the name: the Association for the able to extract essential informa- the abolition of the minimum basis of cost. This will inevitably Taxation of Financial Transac- tion required for the full and de- salary for trainees, the salaries for impact on recruitment to the tions to Aid Citizens (see tailed preparation of her case. legal aid trainees are very rarely junior bar, as a knock on result. www.attac.org). The ATTAC net- The then Minister suggested that much above the minimum law While the LSC plans to make work is active on a wide range of this could be done by a paralegal, society wage and the prospects of their sponsored training contract issues: the WTO and interna- yet the trainee objected that this continued employment or a scheme a little more flexible and tional financial institutions; debt; would only add another layer of decent pay rise in the future are accessible for 2007, there will taxation of financial transactions; work and serve to distance her bleak. For the many young legal only be 100 grants available: a tax havens; public services; water; from the client. Further, the aid lawyers searching for a train- mere drop in the ocean when and free-trade zones. It is a key trainee added, she wanted to ing contract, the most obvious al- urgent action is needed now to participant in the European Social spend the time to take detailed in- ternative is of course to seek protect the future of both our Forum. However, although there structions partly so she could feel paralegal work. legal aid lawyers, and in turn and are ATTAC organisations in 18 she had provided a quality service Anecdotal evidence amongst more importantly, our legal aid European countries, there is none and partly so she could learn how our membership suggests that clients. in Britain. to fully prepare a case. The Min- paralegals are the flavour of the G Laura Janes, Chair YLAL G Bill Bowring ister appeared unconvinced al- month (as envisaged by Carter) www.younglegalaidlawyers.org July 27: After nearly 200 28: An inquest jury finds that the 6: Two anti-war protesters who war protesters to be allowed to 6: The Government years the stigmatising death of Gareth Myatt could have broke into an RAF base in the challenge the legality of the war in launches a legal legal term “common been prevented. Gareth was a 15- build-up to the invasion of Iraq are their defence. the appeal court battle to try and prostitute” is to be year-old teenager who died while found guilty of causing criminal said they could argue they acted to persuade the House removed from the being restrained by three guards at a damage to American vehicles prevent war crimes, but could not of Lords that the statute book. The privately-run youth prison. The verdict there. they argued that they ahd contest the legality of the invasion. control order regime announcement came was of accidental death and found acted lawfully by trying to prevent The convictions were the first the does not violate as part of a package that the lack of an adequate safety more serious war crimes being Crown has secured against any of terror suspects’ of criminal justice assessment and staff’s lack of committed by the US. Their trial the “Fairford five’ after six trials, human rights. reforms. knowledge contributed to his death. followed a three-year battle by ant- including two with hung trials.

Socialist Lawyer G July 2007 I 11 If Israel can’t be brought before international criminal courts, Daniel Machover and Kate Maynard ask: what legally can be done? UNIVERSAL JURIS VERSUS ISRAEL: WHOWILL n 2005 Hickman and Rose solicitors worked with lawyers 2. The killing of Noha Shukri Al Makadma on 3rd March Israeli soldiers from the Palestinian Centre for Human Rights (PCHR) on 2003 as the result of a punitive house demolition; detain and files of evidence for use in England and Wales relating to 3. The killing of Mohamad Abd Elrahman on 30th Decem- interrogate a alleged ‘grave breaches’ of the Fourth Geneva Convention ber 2001; Palestinian 1949 (Protection of Civilian Persons in Time of War). 4. The dropping of a one ton bomb on the Al Daraj neigh- These included torture – which is also an international bourhood of Gaza City on 22nd July 2002. Icrime regardless of the existence of a military occupation. Unfortunately, the record shows that most alleged grave Evidence files relating to Gaza cases were handed over to breaches in the OPT are not even investigated as such by the anti-terrorist and war crimes unit of the Metropolitan Israel. They are either ignored or officially sanctioned as legal police on 26th August 2005. in the teeth of international legal opinion to the contrary. Naturally, in such cases, lawyers in England and Wales are reliant to a great extent on the collection of evidence by Punitive house demolitions lawyers and other human rights defenders in the Occupied According to PCHR, between 29th September 2000 and Palestinian Territory (OPT). The cases discussed here there- 31st January 2005, more than 2,702 houses in the Gaza Strip fore have their origins in work carried out by many such were completely demolished by the Israeli occupying forces people, primarily PCHR, led by Raji Sourani, and by a vari- following the outbreak of the (second) intifada, rendering ety of other lawyers, NGOs, academics and researchers work- thousands of Palestinian civilians homeless. B’Tselem put the ing in the OPT. Without this professional, dedicated and often figure of house demolitions in the whole of the OPT from dangerous work, it would simply not have been possible to September 2000 to November 2004, as 4,170. credibly pursue cases in England and Wales. A policy brief by Harvard University to the United Na- Grave breaches are criminalised in England and Wales tions Information System on the Question of Palestine (UNIS- under the Geneva Conventions Act 1957. The 1957 Act was PAL), defined house demolitions as broadly falling within introduced in order to comply with this country’s treaty oblig- three categories: ations to provide domestic laws to enable ‘universal jurisdic- 1. First, houses are demolished by Israeli occupation forces tion’ to be exercised over the grave breaches specified in the because a building permit was not sought prior to their four Geneva Conventions of 1949. Ireland passed a very sim- construction, or for some other technical breach of ap- ilar Act in April 1962, as did many commonwealth countries plicable administrative law; during that period. 2. Second, houses are demolished as part of military opera- There is no rule under international criminal law that al- tions. Such destructions are arguably necessary during leged victims can only seek remedies in third countries after armed hostilities and fall to be judged under the rules re- being denied any remedy through the occupier’s legal system, lating to military necessity; but the legal teams in the OPT and in England and Wales 3. Finally, demolitions occur outside the scope of military agreed that the clients who would invoke universal jurisdic- operations or Israeli administrative power in the OPT. tion would have exhausted all reasonably available local These demolitions are purportedly a response against per- remedies to obtain justice. sons suspected of taking part in – or directly supporting – The allegations looked at here help to demonstrate why criminal or guerrilla activities. These demolitions are re- the battle between universal jurisdiction and Israel is too im- ferred to routinely as “punitive demolitions.” portant to lose. The following cases all identify Major Gen- The distinction in practice is often difficult to determine, eral (reserve) Doron Almog (GOC Southern Command of particularly between the second and third type. the Israel Defence Forces (IDF) from 8th December 2000 to A series of cases in the Supreme Court of Israel confirm 7th July 2003) as a suspect:- that the domestic courts do not regard the policy of punitive 1. The demolition of 59 houses in Rafah, Gaza Strip, on 10th house demolitions as unlawful. For example Almarin v IDF

Picture: EAPPI Picture: January 2002; Commander in Gaza Strip HCJ 2722/92 (the authority of

12 I Socialist Lawyer G July 2007 the commander extends to the destruction of those parts of the property that are owned or used by members of the family of the suspect or by others), Janimat v OC Central Com- mand HCJ 2006/97 (the court refused to interfere with the discretion of the military commander and stop the house de- molition ordered by the military commander of the West Bank). The authority for punitive house demolitions stem from the Defence (Emergency) Regulations 1945 (according to Is- raeli courts that insist the Regulations are still good law). These regulations were introduced into the legal structure of Palestine by Britain, in response to resistance to British rule. ISDICTION Regulation 119(1) states: A Military Commander may by order direct the forfei- ture to the Government of Palestine of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or ex- plosive or incendiary article illegally thrown, or of any house, : structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court of- fence ; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land. Demolitions purportedly required by military necessity must be judged by internationally accepted criteria (i.e. as set LWIN? out in the above policy brief to UNISPAL):- i) The individual house must offer an essential and immedi- ate contribution to the enemy’s military operation and, therefore, endanger the security of the occupation forces; ii) The demolition of the house must, at the time, be an ad- equate response to that specific threat and there must be no less intrusive response possible; iii) The demolition of the house must offer concrete military advantages that outweigh the damage caused to the civil- ian asset and its consequences on the life of Palestinian in- dividuals and families. The facts of each case must meet this relatively high thresh- old, otherwise the house demolition in question is not mili- tarily necessary. In August and September 2005, two cases involving house demolitions were presented to the police and Bow Street Mag- istrates’ Court in relation to Doron Almog, alleging the grave breach of ‘extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly’. One involved the demolition of 59 houses in Rafah by bull- dozer on 10th January 2002. The IDF gave conflicting and inconsistent reasons for these demolitions, including that the operation was a retaliatory measure for the (unrelated) death of two Israeli soldiers, to weaken the fear of the existence of tunnels, and for purported reasons of military necessity. The other case involved the punitive demolition of the house of the family of a suspected suicide bomber by dyna- mite, which partially demolished a neighbouring house killing Noha Shukri Al Makadma who was in her ninth month of pregnancy. In the case of the killing of Noha Shukri Al Makadma, it was alleged that the property destruction was extensive as part of a wider policy of ‘extensive’ punitive house demolitions of the Government of Israel and imple- mented by military commanders. It was further alleged that her death also amounted to the grave breach of wilful killing. The victims in both of these cases claimed that these de- molitions were illegal, but no investigation took place. PCHR attempted to instigate investigations into both of these cases. In relation to the case of the 59 house demolitions, PCHR wrote to the IDF legal advisor requesting a criminal investigation, but no reply was received. In relation to the house demolition that killed Noha Shukri Al Makadma, PCHR wrote to the legal ad- visor of the IDF requesting an inquiry and for disciplinary mea-

sures to be brought against those responsible. In its reply, the L Ministry of Defence expressed regret for the “injuries of guilt-

Socialist Lawyer G July 2007 I 13 UNIVERSAL JURISDICTION VERSUS ISRAEL: WHOWILLWIN? L less people” but rejected the request for an inquiry. Evidence of two other similar punitive house demolitions by dynamite in the Gaza Strip conducted in the four months prior to the death of Noha Shukri Al Makadma and ending in civilian deaths, were also presented to the British police as ‘evidence of similar fact’. In both these cases PCHR wrote to the legal advisor of the IDF requesting criminal investigations and asking for the IDF to change their practices to avoid fur- ther deaths of innocent civilians. In one case no reply was ever received. In the other, without any obvious inquiry, the reply stated that there was “no suspicion of any breach of duty by the IDF to warrant the opening of a criminal inves- tigation”. On 17th February 2005, Defence Minister Shaul Mofaz announced the end to the policy of demolishing the houses of “terrorist’s” families. However, the demolition of Palestinian homes purportedly for reasons of military necessity has not abated.

Targeted assassinations According to PCHR, from 29th September 2000 to 31st Jan- uary 2005, Israeli occupying forces and settlers killed 2,714 Palestinian Civilians in the OPT. Four hundred and eighteen (14%) were killed in assassination operations, and of these, at least 154 were bystanders, of whom 44 were children. Evidence in relation to one of these assassination opera- tions was presented to the British police. This was the well known case of the assassination of Salah Shehadeh. Between 11.30 pm and midnight on 22nd July 2002, an Is- Palestinian which may be a result of attacking Shehadeh.” raeli F16 fighter plane dropped a one ton bomb on the al civilians detained “After the discussion for instance, it had been decided to Daraj neighbourhood of Gaza City (‘the al-Daraj bombing’). by Israeli soldiers carry out the attack in the late hours of the evening (close to The target of the bombing was the house of Shehadeh, and it at a flying midnight), when pedestrians would not be expected to move was a direct hit. However, his house was in one of the most checkpoint in the around the street close to the house of Shehadeh.” West Bank densely populated residential areas on earth. “Also upon such consideration it had been decided to use In total, fifteen people died in the blast. Up to 150 people one bomb of 1000 Kg (which was the quantity of explosives received injuries, some of them serious and permanent. Eight required in order to achieve in reasonable probability the houses in the vicinity of the bombing were completely de- aim of the operation) and not two bombs of 500 Kg each, stroyed and a further nine partially destroyed. A further because the use of two bombs would increase considerably twenty one houses received moderate damage. the risk of missing the target and as a result endangering a The IDF Spokesperson’s Announcement of 23rd July 2002 building close to that of the intended target with a direct hit. stated that: At the end, after receiving precise intelligence information “The IDF attack last night was directed at Salah Shehade about the hiding place of Shehadeh, the execution of the op- and him alone. The strike was accurate, carried out using eration had been decided according to the abovementioned designated technology. The objective is to thwart future and outline. This decision was taken at the highest level, having upcoming terror activities by attacking the source itself, described the importance of stopping the activity of Shehadeh, namely Shehade. There was no intention of harming mem- despite the information and estimates of the damages to other bers of his family or other civilians.” people, which may be caused as a result of the attack.” The ‘Yesh Gvul’ movement in Israel filed a petition in the Is- After the State’s reply, on 3rd March 2004, the court sus- raeli High Court on 30th September 2003, asking the court to pended the case, pending a decision on another petition (filed require the Attorney General and the Military Advocate Gen- by the Public Committee Against Torture in Israel in January eral to mount a criminal investigation with a view to putting 2002) challenging the lawfulness of the assassination policy on trial all those in the command chain of the bombing. of the State of Israel. The State of Israel maintained that the assassination itself On 16th February 2005, a hearing of the ‘assassination was lawful and that the military operation was proportion- policy’ petition was held, and that petition was itself ad- ate to the legitimate aim of killing Shehadeh. It stated in its re- journed indefinitely as a result of Prime Minister Sharon’s sponse on behalf of the State Attorney’s Office that the commitment at the Sharm-el Sheikh summit of 8th February potential for the death of civilians and the destruction of 2005, to suspend the policy of assassinations (“pre-emptive property was considered before going on to take the risk, and liquidations”). ordering the bombing mission: The Yesh Gvul movement wrote to the High Court re- “It is important to emphasize that one of the central con- questing the petition for a criminal investigation into the siderations, which were accounted for throughout all plan- bombing to be re-opened. Yesh Gvul requested a hearing and ning stages of the operation against Shehadeh and its the State was given to 15th June 2005 to respond. A hearing approval was the proportionality consideration – the oblig- took place on 5th September 2005, when the case was ad- ation to make sure that hitting Shehadeh would not lead to journed indefinitely (as in the ‘assassinations policy’ case). hitting the civilian population in his vicinity, disproportion- During the course of September 2005, advocates for the ate to the military aims the operation set out to achieve. The petitioners asked for a hearing on the assassination policy discussions largely dealt with the subject of hitting civilians, case, in response to the public resumption of that policy by

14 I Socialist Lawyer G July 2007 bombed from the air and scores of its residents and passersby are harmed (compare Dinstein, at p. 123; Gross, at p. 621). The hard cases are those which are in the space between the extreme examples” (emphasis added) Despite the above, the separate Yesh Gvul petition requir- ing a criminal investigation into those involved in the al-Daraj bombing remains undecided! Meanwhile, the international view of the al-Daraj bomb- ing was that it was unlawful and disproportionate. This view is certainly held by the British Government. The International Committee of the Red Cross (ICRC) issued a press release of 23rd July 2002, entitled ‘Civilians must not be attacked’. Sev- eral members of the UN Security Council condemned the bombing in those terms, including Jack Straw, then British Foreign Secretary, who was in the chair, at its meeting on 24th July 2002. Before travelling to the UN, Jack Straw had told the House of Commons that he would ensure that Sir Patrick Cormack’s views “which I think the whole house shares, about the unjustified and disproportionate nature of the attack and its consequences are conveyed to the ambassador and, through him, to the Israeli Government.” Similarly, after the assassination of the spiritual leader of Hamas, Sheikh Yassin, by the Government of Israel, Jack Straw confirmed that the British Government considered the policy of “so-called assassinations – straightforward killings” as “unlawful, unjustified and self-defeating, and they damage the case that Israel makes in the world. The fact that the killings led to the deaths of not only those whom Israel holds responsible for terrorism, but entirely innocent bystanders, including children, simply emphasises the unlawful nature of that approach, and it’s counter-productive effect.” Despite the international view taken towards the criminal nature of the acts described above, it is clear that a climate of impunity has taken hold in Israel and its occupying army, that is unchecked by its own criminal or civil justice system. It is EAPPI Picture: the IDF. In November 2005, the State Attorney’s Office doubtful whether the ruling of 13th December 2006 in the as- agreed that both petitions should be restored for a hearing at sassination policy case will have any real impact in this regard the High Court. if in fact criminal investigations into cases such as al-Daraj On 11th December 2005 a hearing of both petitions was simply don’t take place. One of the few ways to combat im- held and the High Court ruled that the Shehadeh petition was punity is the practical application of universal jurisdiction. dependent on the outcome of the assassination petition. A series of delays continued throughout 2006 on both cases, The Almog case but finally a judgment on the case on the assassination policy Mr Almog was due to speak at a synagogue in Solihull, Birm- as a whole was handed down on 13th December 2006, as ingham, on 11th September 2005. The police failed to make part of a series of ‘retirement judgments’ published three a decision whether they would arrest Doron Almog under months following the retirement of Chief Justice Aharon their ‘general arrest’ powers but adopted a neutral stance in Barak. The final paragraph of a concurring judgment of Pres- relation to the application to Bow Street Magistrates’ Court ident Beinisch succinctly summarised the position adopted by for an arrest warrant. This does not require the consent of the the Supreme Court: police, the Director of Public Prosecutions (DPP) or the At- “Thus it is decided that it cannot be determined in advance torney General (s25 Prosecution of Offences Act 1985), that every targeted killing is prohibited according to custom- whereas a prosecution under the 1957 Act in principle re- ary international law, just as it cannot be determined in ad- quires all their involvement, and in practice the Attorney Gen- vance that every targeted killing is permissible according to eral must provide his consent for proceedings to be instituted. customary international law. The law of targeted killing is de- On 10th September 2005, a warrant was issued for the termined in the customary international law, and the legality arrest of Doron Almog in relation to the complaint regarding of each individual such act must be determined in light of it.” the 59 house demolitions. The Senior District Judge indicated Whatever the limitations of its decision, it appears that that the other cases would be more appropriately proceeded even the Israeli High Court regarded an aerial attack such as with by giving the police the opportunity to interview Doron the al-Daraj bombing as being illegal (though of course Mr Almog under caution (The issue of an arrest warrant in a case Shehadeh was not bearing arms or engaged in an attack at the precludes that step.) On 11th September 2005, Doron Almog time of the bombing as in the example provided): evaded arrest at Heathrow airport when he was advised to “The proportionality rule applies in regards to harm to remain on the incoming El-Al airplane, returning to Israel on those innocent civilians (see § 51(5)(b) of The First Protocol). it despite the police officers being in the airport. A complaint The rule is that combatants and terrorists are not to be about the police conduct on the day is, after a long battle, harmed if the damage expected to be caused to nearby in- now the subject of a fully IPCC supervised investigation. nocent civilians is not proportionate to the military advan- The British Government decided to review the law fol- tage in harming the combatants and terrorists (see lowing lobbying by the Government of Israel to try to ensure Henckaerts & Doswald-Beck, at p. 49). Performing that bal- that in future similar arrest warrants cannot be issued at the ance is difficult. Here as well, one must proceed case by case, request of complainants. while narrowing the area of disagreement. Take the usual case of a combatant, or of a terrorist sniper shooting at sol- The law diers or civilians from his porch. Shooting at him is propor- The importance to civilians under occupation of the practical

tionate even if as a result, an innocent civilian neighbor or application of ‘universal jurisdiction’ cannot be underesti- L passerby is harmed. That is not the case if the building is mated. Indeed those who drafted the Fourth Geneva Con-

Socialist Lawyer G July 2007 I 15 UNIVERSAL JURISDICTION the creation of ad hoc international criminal tribunals set up under resolutions of the UN Security Council. There is no VERSUS ISRAEL: chance of such an ad hoc tribunal being established in the foreseeable future in the case of Israel, as the US would veto such a proposal at the UN Security Council. Furthermore, WHOWILLWIN? the International Criminal Court cannot deal with alleged

L Israeli war crimes as Israel has refused to sign up to it. vention were conscious of the vulnerability of civilians under Criminal trials in the domestic courts of third-party states occupation. When the Convention was negotiated the actions might have deterred many war crimes. However, many al- of Germany and Japan as military occupiers were fresh in the leged crimes in, for example, the occupied territories, Kuwait minds of all concerned. Third parties, including those not in- and East Timor have gone unchallenged across the world. Is- volved in a particular conflict, were given legal obligations raelis, Iraqis and Indonesians should have been arrested and so that they might effectively “hold the ring” between the tried in other countries, to ensure legal accountability but also military occupier and the otherwise unrepresented civilians to deter criminality. under occupation. Sadly, individual states have lacked the political will to The Convention defines “grave breaches” in Article 146 as prosecute foreign war criminals. Countries have resisted get- “… wilful killing, torture or inhuman treatment, includ- ting ‘involved’, even though they have a legal duty to ‘seek out ing biological experiments, wilfully causing great suffering or and prosecute alleged war criminals and either prosecute or serious injury to body or health, unlawful deportation or extradite those accused of committing offences contrary to transfer or unlawful confinement of a protected person, com- the UN Convention Against Torture. This is arguably a con- pelling a protected person to serve in the forces of a hostile tinuing failure to comply with (or even accept) the duty to Power, or wilfully depriving a protected person of the rights prosecute or extradite those suspected of committing serious of fair and regular trial prescribed in the present Conven- international crimes. Not only will this frustrate all attempts tion, taking of hostages and extensive destruction and ap- to bring such alleged offenders to justice but it will bolster propriation of property, not justified by military necessity the sense of impunity of such persons. and carried out unlawfully and wantonly.” The British police have discretion as to whether or not to investigate particular criminal allegations. That discretion has Article 147 – duty to search to be exercised lawfully. The law of England and Wales does The authoritative commentary on the Convention published not entitle the police a ‘get out clause’ not to investigate any by the International Committee of the Red Cross says: allegations of such offences, as that would amount to an ab- “As soon as a contracting party realises that there is on solute discretion to ignore the duty to uphold the law. So, its territory a person who has committed....a [grave] breach, which cases should it investigate? What is the future for uni- its duty is to ensure that the person concerned is arrested versal jurisdiction in England and Wales? and prosecuted with all speed. The necessary police action Quite simply, the police in different countries, need to al- should be taken spontaneously, therefore, not merely in pur- locate resources to investigate credible allegations of war suance of a request from another State.” crimes and torture. The ICRC commentary confirms that a High Contracting In the past the police in the UK were given resources specif- Party is not entitled to sit back and do nothing but has an ically to pursue investigations under the War Crimes Act 1991. active obligation to search. It follows that this duty should in- More than £11 million was reportedly spent by the Home clude maintaining border controls that enable a state to Office (the majority of which was allocated to the police) on ensure that known suspects seeking to enter the ju- the investigation of alleged war criminals resident in risdiction are arrested on arrival. In the British Britain, resulting in only two prosecutions and context, common sense dictates that the nec- only one conviction. Such cases of war crimes essary spontaneous police action can only were specifically funded by central Gov- occur where alleged war crimes have been “The British ernment over an extended period. The investigated to the point where the reported cost of investigations to the police are able to decide whether there Government end of 1996 was approximately £6 are reasonable grounds to arrest a sus- decided to review million for the Metropolitan Police HUR pect who arrives in or is discovered in and approximately £2 million for the the jurisdiction. The deterrent value of the law following CPS and the expected cost of investi- this Article hinges largely on this oblig- gations for 1996-97 was about ation. There is certainly no question lobbying by the £630,000. Home Office special fund- under the Convention that the nation- ing for the war crimes unit stopped in ality of the individual concerned or of Government of 1995, but it was stated during a Parlia- any victim is relevant to the exercise of ju- mentary debate in March 1997 that the risdiction. The ICRC Commentary, follow- Israel” Metropolitan police would receive a total ing the passage referred to above, states: of £1.7 billion in 1997-98 for all their polic- “The Court proceedings should be carried out in ing needs, including war crimes investigations. a uniform manner whatever the nationality of the accused. The investigative resources (police officer time and Nationals, friends, enemies, all should be subject to the same rules expenses) required to prepare evidence files for advice from of procedure and judged by the same Courts.” the CPS in some of these cases is relatively modest. For ex- The unequivocal wording of the duty of each High Con- ample, in each of the Gaza cases provided to the police the tracting Party in article 146 of the Convention indicates that suspect has been identified, witnesses identified etc. No great once a suspect is located in the territory of a High Contract- difficulties are posed in obtaining further evidence locally in ing Party, the state has a duty to either prosecute or extradite relation to the cases now with the police. Anyhow, it would the alleged war criminal to enable a prosecution. The duty to be perverse if a State, such as Israel, were to be ‘rewarded’ (i.e. ‘prosecute or extradite’ has been emphasised by the UN on by police inaction) for making it more difficult for the British several occasions. police to investigate alleged crimes committed under military occupation. These will clearly be much cheaper cases to in- Winning the battle against Israeli war crimes vestigate than those previously investigated under the 1991 Where war crimes, genocide and crimes against humanity Act. Indeed, in some cases the investigative burden is minimal are concerned, instead of individual countries doing their and the case will revolve primarily around legal issues. duty, in the few cases where international consensus has been DAC Peter Clarke commented just after what is reported possible, a “pooling of resources” has been achieved through to have been the first conviction under s134 Criminal Justice

16 I Socialist Lawyer G July 2007 Act, the conviction of Mr Zardad, an Afghan warlord: “We had to find witnesses in remote parts of Afghanistan and give them the confidence to come forward to give evi- dence in a British court. The fact that they did so is testament to their courage and to the skill of the police officers who supported them. It was a huge challenge, in the prevailing circumstances in Afghanistan, to investigate and find evi- dence to the standard demanded by the British courts. Today’s verdict shows what can be achieved, and that the UK is not a safe haven for people like Zardad.” This suggests that there will not be impunity in England and Wales for torturers or war criminals, even after the in- vestigative burden placed on the police since the bombings in London of 7th July 2005. Police forces around the world will continue to be given evidence to consider on a case by case basis. The task facing victims and their legal advisers is to persuade police forces across the world to conduct expeditious and robust prelimi- nary investigations so that decisions can be made in each case whether to arrest the suspect on arrival in their jurisdiction. Police forces can then put themselves in a position to arrest and charge arriving suspects, where the evidence permits. If the police engage with these issues in a serious way, the very prospect of alleged war criminals being brought to justice in Britain or any other country is likely to provide a deterrent to future perpetrators of war crimes. Hopefully, a new proto- col agreed between the police and CPS will improve the speed and quality of investigations into such cases. Criminal trials of Israeli suspects would certainly provide genuine deterrence and begin to provide justice for victims, where justice has eluded them at home. The end of impunity would then be in sight. If Israel wins its battle against universal jurisdiction, this will be another disaster for the Palestinians. I

G This article is an abridged and updated version of an article by Daniel Machover and Kate Maynard, Prosecuting Alleged Israeli War Criminals in England and Wales (2006). More information about PCHR can be found on its website at: www.pchrgaza.org. Daniel is a solicitor and partner at Hickman and Rose while Kate is a solicitor at Hickman and Rose. URNDALL INQUEST: JURY SAYS IT WAS INTENTIONAL KILLING om Hurndall was shot in the head by an Israeli sol- dier on the afternoon of the 11th April 2003, in the by Chris Williams Yibnah district of Rafah, in Gaza. Tom remained in a coma, from which he never recovered, following tional Solidarity Movement (ISM) . On the 11th of April Tom the shooting and sadly died on 13th January 2004 and other ISM members had been planning to erect a tent in the in a London Hospital. Yibnah district, to protest at the repeated shooting at civilians TAt the time of the shooting there were no ongoing armed by IDF forces. The protest was initiated by the shooting of two hostilities. Children were playing in the area and he was wear- Palestinian children in Yibnah on the 9th and 10th of April ing a fluorescent orange top to alert the Israel Defence Forces 2003. (IDF) of his presence. Tom was first taken to a Hospital in The organization Human Rights Watch (HRW) interviewed Rafah before being transferred to one in an Israeli settlement separately six witnesses to the incident four days later and they and then Soroka hospital in Israel before being repatriated to gave consistent testimony of the following account: Tom, ten London. foreign ISM members, and two local contacts, were on their Tom was a twenty-one year old student of journalism and way to the place where the tent was to be erected, when they photography at Manchester Metropolitan University. He had came to a T junction on a street which was directly overlooked entered Gaza five days before the incident with the Interna- by an IDF watchtower 150 metres away. There was a mound L

Socialist Lawyer G July 2007 I 17 HURNDALL INQUEST: JURY SAYS IT WAS

L INTENTIONAL KILLING of earth and rubble in the street on which some children were playing. A series of six shots was fired into the wall of a build- ing near to the mound from the direction of the watchtower. The children became frightened and froze. Tom first helped two little girls walk back to a place of safety and then went to fetch a young boy. Witnesses then described him being shot as he went to pick up the child from the earth mound. Israeli radio reported two days later “The IDF says that soldiers spotted a young man wearing camouflage attire moving towards an IDF position while shooting. The Israeli troops returned accurate fire and the man was hit.” Tom’s family flew to Israel immediately after the shooting and arranged through the British embassy to visit the site of the incident. Initial attempts by Tom’s father, Anthony Hurndall, a solicitor, to meet with IDF representatives were met with re- fusals despite it being made clear by the family that they were not seeking to blame but to investigate. The family eventually met with the IDF on 26th May 2003 by which time the IDF had performed its own operational in- quiry into the shooting by soldiers of the Southern Command. This inquiry found the IDF had fired a single bullet at an armed Palestinian man dressed in camouflage who fired three shots into the air with a pistol and two shots toward the observation post. That operational inquiry did not attempt to interview any Tom Hurndall and civilians, would violate the Fourth Geneva Convention of the civilian witnesses nearby and relied upon the testimony (above) was shot in 1949 (GCIV). In June 2005 Sgt Taysir Hayb was found guilty of the commander who shot Tom and another soldier who was the head by an of manslaughter and charges of submitting false testimony. in the watchtower. Israeli soldier on He was sentenced to eight years imprisonment and was the By the time of the meeting Anthony Hurndall had made his the afternoon of the first Israeli soldier to be convicted over the death of a foreign own preliminary inquiries of witnesses in Gaza and he in- 11th April 2003. national during the most recent Israeli – Palestinian violence formed the IDF that their investigation was incorrect. A sig- (The second Intifada, which began in September 2000). nificant discrepancy was the location of the shooting identified in the IDF report. The IDF declined to correct or reopen their The Inquest operational investigation. Likewise the IDF denied the family The inquest before the St. Pancras Coroner, which had been access to CCTV footage from the observation post. opened shortly after Tom’s death, was adjourned pending the An Israeli human rights group, the Public Committee outcome of enquiries and proceedings in Israel. against Torture in Israel (PCATI), formally requested that the The proceedings were resumed and came before a jury on case be investigated. In October 2003 the IDF opened a mili- the 10th April 2006 for one day. The same jury had delivered tary investigation. This was due largely to the strenuous efforts a verdict of unlawful killing, on the 6th April 2006, in the case James Miller of Tom’s parents and siblings and the continuous media inter- (below) was shot of James Miller, a film maker/cameraman who had also been est they attracted. dead by an Israeli shot by the IDF in Gaza, within weeks of the shooting of Tom. Dissatisfied with the IDF’s lack of accuracy Anthony Hurn- soldier on the 2nd Despite being invited to participate as an interested party dall compiled a dossier of information including witness May 2003. the Israeli Government formally declined to attend the inquest. statements of ISM members, photographers and local The family’s legal team argued before the Coroner that the Palestinians present at the time of the shooting. In early case engaged the investigative obligations of Article 2 of the July 2003 the dossier was eventually passed on to the European Convention on Human Rights and Fundamental Israeli Judge Advocate General’s office. The IDF then Freedoms 1951 (the Right to Life) irrespective of the death opened a Military Police investigation and in the final having occurred overseas at the hands of agents of a foreign week of December 2003 the police arrested the soldier state. The application of Article 2 would then allow the inquiry who shot Tom. The soldier in question was Sgt Taysir to be widened in order to identify, during the course of the in- Hayb from the Bedouin Patrol Battalion of the IDF. quest, other person, higher up in the military chain of com- The soldier’s lawyer and the Hurndall family voiced mand to Sgt. Taysir Hayb, responsible for aiding and abetting concerns that he was being used as a scapegoat for a Tom’s killing. This approach bore in mind the strict rule that an wider culture of impunity that existed within the inquest verdict must not seek to name any individual(s) re- IDF. In January 2004 Sgt Taysir Hayb was sponsible for a crime or civil wrong. charged with manslaughter and a trial began in The submission that the inquest engaged Article 2 was December 2004. During the proceedings he ad- based on the following propositions: mitted he had lied about Tom carrying a gun 1) The investigating state does not have to be directly or but said he was under orders to fire even on indirectly involved in causing a death in order to engage unarmed people. He said that after shooting the need for an article 2 compliant investigation. Tom he had reported it to his commander: 2) The Fourth Geneva Convention 1949 (GCIV), I told him that I did what I’m supposed which the UK has ratified, makes the killing of non to: anyone who enters a firing zone must combatant civilians by military personnel unlawful be taken out [the commander] always says under international law. The Geneva Convention Act this. 1957 (GCA) creates criminal offences for breaches of The creation of indiscriminate killing the GCIV and provides the UK domestic criminal zones by occupying military, which did courts with an international jurisdiction to prosecute not differentiate between combatants and punish the perpetrators of GCIV violations wher-

18 I Socialist Lawyer G July 2007 ever they occur in the world. The GCA 1957 thereby fixes that I would probably never know what hit me, but its part the UK state authorities with a duty to punish those re- of the job to be as visible as possible”. sponsible for deaths of British citizens (and victims of other Mrs Hurndall also described what she believed to be her nationalities) wherever they occur in the world when those sons last words. About half an hour before he was shot he had deaths are caused in breach of the GCIV. Thus the words in been talking to a Palestinian man, who had been telling him the Menson decision (Menson v UK App.No. 47916/99, how difficult life was for residents in Rafah, she told the jury: (6/5/2003 admissibility decision) “... the state ... take ap- “Tom put his hands on his shoulder and said ‘We want to propriate steps to safeguard the lives of those within its ju- make a difference.’ Really those were his last words”. risdiction ... Article 2:1 imposes a duty on every state to Mr. Anthony Hurndall told the inquest that his son and secure the right to life by putting in place effective criminal other activists from ISM had gone out to try and block tanks law provisions to deter the commission of offences against that had been shooting into houses at random. Tom had seen the person backed up by law enforcement machinery ‘within a group of ten to 15 children playing on a mound of sand, and its jurisdiction’” means that the territorial jurisdiction of the noticed bullets hitting the ground between them. The children UK criminal courts are extended to anywhere in the world fled but several were overcome with fear and could not move. for the purposes of the GCA. Tom went to take one girl out of the line of fire, which he 3) The GCA 1957 also provides that prosecutions can only did successfully, but when he went back, as he knelt down [to be commenced with the permission of the Attorney General. collect another child], he was shot. Therefore the Attorney General in the UK has the legal Mr. Hurndall also described his efforts to establish the cir- power to use every means at his/her disposal to bring cumstances surrounding Tom’s death. He said that the suspects before the criminal courts when per- Israelis had initially admitted someone had been petrators set foot in the UK. Thus if mili- shot, but claimed it had been a gunman who tary personnel kill civilians, in violation had opened fire first. After photographs of the GCIV, anywhere in the world, of Tom having been shot in the head legal powers exist for them to be “The Tom Hurndall emerged, the Israeli military later ad- prosecuted in the UK courts if mitted that Sgt.Taysir Hayb – a those civilians happen to be case and that of James sentry who won prizes for marks- British citizens. manship – had shot him using 4) The duty to punish created Miller briefly lifted the lid on telescopic sights. He testified by the GCA 1957 carries with that: it a corresponding obligation a situation where the killing “They just lied continu- to investigate and prevent of non combatants by ously ... It was a case of them similar deaths of British citi- shooting civilians and then zens (and other nationalities) soldiers in the Israel making up a story. And they by punishing those responsi- were not used to being chal- ble. Accordingly for an inquest Defence Forces was able lenged”. to be compliant with Article 2 of He also added that there had the ECHR it must “play an effec- to continue with virtual been a “general policy” for soldiers tive role in securing a prosecution to shoot civilians without fear of in respect of any criminal offence impunity” reprisals. Mr Hurndall felt that al- which may have been disclosed” though Hayb had been sentenced the issue 5) The need for an Article 2 compliant in- of the culture of impunity within the Israeli quest was not overcome by the ability of the army had not been addressed and commented family of the deceased to report matters to the Attor- that “this goes much higher up the chain”. ney General to consider a GCA 1957 prosecution because During the course of examining witnesses, counsel for the after reporting matters the family would have no further family identified the names of senior officers in the military part to play in that process and therefore would not dis- chain of command responsible for violations of the Geneva charge the state’s obligations under Article 2. The impor- Convention tance of family participation in the investigation is central for The hearing lasted one day and the jury of 10 returned a the Investigative Obligation to be discharged by the state. verdict of unlawful killing expressed as: The importance of family participation is underlined by the “He was shot intentionally with the intention of killing need for the family to have effective legal representation in him”. the process of death investigation. The narrative went on to say: During the course of the proceedings the jury heard moving “The jury would like to express its dismay with the lack of testimony from Tom’s parents who had expended a large cooperation from the Israeli authorities”. amount of time and money to establish the true facts sur- In concluding the proceedings the Coroner, Dr. Andrew Reid rounding his death. stated that he would write to the Attorney General to see Mrs. Jocelyn Hurndall said she had received an email from whether there was any further legal action that could be taken Tom on the 11th of April just hours before the shooting which in relation to the deaths of Tom Hurndall and James Miller. she read out: The deaths of Tom Hurndall and James Miller occurred in the “April 6 2003. I have been shot at, gassed, chased by sol- context of the most recent intifada which started in 2000. Ac- diers, had sound grenades thrown within metres of me, been cording to B’Tselem an Israeli Human Rights Organisation, hit by falling debris and been in the path of a 10-tonne D-9 1737 Palestinian civilians who had not been participating in [military bulldozer] that didn’t stop. As we approached, I fighting have been killed by the IDF. The army has investigated kept expecting a part of my body to be hit by an ‘invisible’ only 131 cases of wounding and killing which has led to 12 trials. force and shot of pain. It took a huge amount of will to con- The case of Tom Hurndall illustrates that were it not for the tinue. I wondered what it would be like to be shot, and tireless efforts of his family no one would have been held ac- strangely I wasn’t too scared. It is strange to know that each countable for his murder. This case and that of James Miller night people are shot and killed for breaking military curfew, briefly lifted the lid on a deplorable situation where the killing and in the darkness on the north west side there is an Israeli of non combatants by soldiers in the IDF is able to continue settlement and a few hundred metres away with military with virtual impunity. I snipers in between and any one of four us could be being watched through a sniper’s sights at this moment. The cer- G Chris Williams is a barrister at Tooks Chambers, together tainty is that they are watching, and it is the decision of any with Michael Mansfield QC he was instructed by Imran Khan one Israeli soldier or settler that my life depends. I know & Partners to represent Tom’s family at the Inquest.

Socialist Lawyer G July 2007 I 19 “Guantánamo has not ser safer place. It has made t

hat’s the view of Moazzam Begg, guages such as Farsi and Pashto. When Amer- speaking at the Haldane Society’s icans enslaved Africans they enslaved people human rights lecture at the end of who looked different and dehumanised them. May. Moazzam began his talk by Like them, we had no rights, no human rights. stressing that he was not calling We were dressed in orange to mark us out as for the closure of Guantánamo but terrorists, as bad persons. The process of treat- Tfor the release of the remaining detainees. He ing detainees in this way, came from some- recalled that he and others were described where, emanated from something. How can as ‘enemy combatants’ and ‘enemy aliens’. soldiers kick a detainee so hard that the de- He went on to note that there was a connec- tainee screams ‘God help me!’ and then kick tion between the history of slavery, the dehu- him again and again until a bruise develops, until manising of slaves and their lack of rights in the blood clots and he dies? An interpretation the United States and the use of extraordinary of the standard operating procedure permits rendition, involving the denial of rights, whereby this. That order came from the top: Bush, people are kidnapped and detained. Cheney, Rumsfeld and so on. “I was taken to Guantánamo after being de- “It was said that people needed to be captions to go here tained at Kandahar and Bagram. Few of the shackled and hooded in case they bit through captions to go here soldiers who held us captive knew local lan- the cables of an aircraft in an attempt to bring captions to go here captions to go here captions to go here captions to go here captions to go here captions to go here captions to go here captions to go here captions to go here captions to go here captions to go here

Another speaker, Sadat Sayeed, calls for the closure of Guantanamo. See Sadat’s update on Guantanamo in the news pages.

Pictures by Jess Hurd (reportdigital.co.uk)

20 I Socialist Lawyer G July 2007 rved to make the world a the world much less safe”

a threat and keeping them there makes the world a safer place. However, there are children born in London who have not seen their fa- thers who are held in Guantánamo. Many chil- dren have lost their formative years. “When I was brought to Kandahar as a de- tainee, I was taken into the process of US mil- itary custody. I and others were hooded, handcuffed and held with knives. We were subject to flashes as our guards took trophy pic- tures. We were sworn at and dragged through the mud. We were shackled, stripped naked, felt the cold blade of a knife against skin, punched, kicked, were spat at, and forced to shower naked. That was our introduction. “The majority of the detainees were Afghans in Afghanistan. They are a proud people with a history, now invaded by another superpower. It is one of the poorest countries in Asia. Yet they survive all of this. An Afghan is taken into cus- tody, his head is shaved and he is stripped naked. No-one has sworn at him before. In one hour he hears more profanity than in his whole lifetime. He sees the Koran violated, thrown into places of urination and defecation. He says the Soviets did not do this. He is released, goes back to his family and tells his country that this is what they did to me. Then people wonder why there is a resurgence of support for the Tal- iban and al-Qaida. People want them back, just for the security. The fruits of these practices are being paid by US and UK soldiers. In Guan- tánamo I spoke to many soldiers while in soli- tary confinement. Many joined up for college fees and to see the world. They were told that it down. When you were in Guantánamo, they we were the most dangerous people in the said you must have done something to bring world. it on yourself. The rules of the game had al- “There are British residents who are not British ready changed before July 2005. Guantá- citizens who are detained in Guantánamo. No- namo detainees were from every country save one is campaigning for them. Guantánamo has America, nationals of every country bar the 335 detainees but they are the tip of the iceberg. USA. Even though US citizens were captured There are others in Bagram, Diego Garcia and in the war on terror, the lack of US detainees other ghost detention centres. Some new people tells you that they do what they do there be- come to Guantánamo including Khaled Sheikh cause they can. Mohammed. He is an al-Qaida person, one of “In Rasul v Bush the challenge to detention the highest ranking. He is interrogated in a room was brought via an attempt to secure the right by the CIA. I am told that my fate will be the same to habeas corpus. Following that judgment we as his and others. I’ll leave you to figure out why could make an application to be released, or he has disappeared. He was taken to Egypt and for reasons to be shown for continuing deten- tortured. He confessed he was trying to get tion. The US government challenged it and weapons of mass destruction from Saddam kept people in detention while they challenged in 2003. I was told I was to be sent to Egypt. it. No habeas corpus application has ever been Colin Powell said he had received credible ev- brought in circumstances where the detainee idence that al-Qaida was going to get weapons has been present. These people have no rights of mass destruction from Iraq. The CIA now as they are not considered human. Clive accept that the statement was made under Stafford Smith told me a story about what hap- duress. For him the worst thing is not torture but pened when he was on his way to Guantá- that they invaded a nation based on his state- namo. The soldier who escorted him swerved ment. The worst thing for me is not that I could to avoid an iguana. It was ironic that he should have been sent to Egypt. The use of a state- take such care with an iguana. ment as the basis for an invasion is more fright- “The argument for Guantánamo is that the ening to me than being separated from my people there are a danger to America. They are family for the rest of my life.” I

Socialist Lawyer G July 2007 I 21 Far from being a ‘fairer deal for legal aid’, the government’s proposals The battle for fixed fees and competitive tendering could kill the legal aid system stone-dead. for Our contributors to this special report outline the reality today of publicly- Legal Aid funded legal services.

the contracts of others in that bid zone. Fixed fees start in October this year. A survey by the Housing Law Practitioners As- Public funding sociation of its members revealed many of them would not be financially viable to con- tinue delivering work at the rate of £171 plus and re-consultations by the LSC were high- VAT. Solicitors acting for landlords may well by Carol Storer lighted in an LAPG press release on 4th receive that for less than an hour’s work, but March 2007 and this was referred to by the solicitors acting for tenants or the homeless ow is it possible that proposals from Select Committee: “Today I have downloaded will receive £171 for the whole case, funded the Department of Constitutional Af- nineteen pdf files from the Legal Services under the legal help scheme. fairs (DCA) (as it was until 9th May Commission website, including annexes and There has been a decision not to pay any Hthis year) and the Legal Services regulatory impact assessments. This is on top more in London which is of huge concern in Commission (LSC) which were welcomed by of consultations published earlier this month view of the number of black and minority the Law Society and Legal Action (in part at on police station boundaries and the very high ethnic clients advised and represented in least) have now reached such a low point? cost criminal case panel, not to mention the London. The LSC is aware that London prac- The recently published House of Com- negotiations on the new unified contract. I am tices will be under huge financial pressure and mons Constitutional Affairs Committee paid full time to keep on top of the LSC’s ini- are likely to withdraw from legal aid. Its argu- Report summarises the current position: tiatives, and I can barely cope with this bliz- ment is that in a fixed budget it has looked at “There has been a catastrophic deteriora- zard of publications. How on earth can any the effect over the whole country and under- tion in the relationship between suppliers, practitioner who is trying to conduct a sub- funded regions outside London will benefit. their representative organisations, and the stantial caseload to a high standard be ex- The fear with fixed fees is what sort of ser- LSC. Unless the relationship improves, we do pected to do so? The sheer volume, speed and vice will people who have com- not see how implementation of these reforms extent of the changes is liable to destroy the plex cases get? And what about can be successful. We urge all involved in legal legal aid system even if the substance doesn’t.” people whose cases take longer, if aid reform to re-engage in a more construc- English is a second language or if tive dialogue.” (Report, 1st May 2007) Current proposals the client has mental health prob- There are proposals for integrated social wel- lems? While the LSC will point to an Reviews and consultations fare law ‘outlets’ in 125 areas. Whether they will escape mechanism (if cases take three In July 2005, ‘A Fairer Deal for Legal Aid’ was still be called Community Legal Advice Centres times longer than the average the published. This set out a strategic way for- (CLACs) and Community Legal Advice Net- hourly rate will be paid) it will be time ward for legal aid and Lord Carter was ap- works (CLANs) we do not know. The first one consuming to monitor contracts and pointed to review the procurement of legal was announced in May in Gateshead; the law organisations will have to balance pro- aid. He subsequently produced proposals for centre, CAB and three firms have joined to- viding advice and remaining solvent. a competitive market based system for legal gether to bid for and run this CLAC. aid procurement based on quality, capacity What is the aim? To provide a holistic ser- and price. Over 2,300 responses were received vice as people have clusters of problems – they to the consultation on Carter’s Report. should be able to get advice and representa- ‘Legal Aid Reform: the Way Ahead’ was tion under one roof or at least from one or- subsequently published in November 2006. ganisation. It will also reduce the LSC Although it was stressed that responses had administration cost as it will deal with one been taken into account, the direction of travel organisation i.e. one contractor not with remained very firmly set. At the end of Febru- lots of different contractors as at present. ary 2007 the LSC published the proposed uni- What we do know is that for suppliers in fied contract. It had to be signed by the end of an area where there is a tender to run the March 2007 to enable providers to continue social welfare law provision it seems highly with legal aid work from 1st April 2007. unlikely that they will be able to continue car- Some of the detail to go in the specifications to rying out legal aid work if they are unsuccess- that contract is still under negotiation. ful in the bid. There is no new money coming Richard Miller is the Director of the Legal through so the only way a CLAC or a CLAN Aid Practitioners Group (LAPG). His con- can be funded is by putting all the money in cerns about the flurry of plans, consultations that area into that body. And taking away

22 Socialist Lawyer July 2007 The LSC is under pressure to cut £30 mil- is three months. It is possible that more firms be fixed fees and organisations set up to pro- lion of its administrative overheads by 2011. will terminate their contracts. One of the dif- vide advice and representation within a fixed However, organisations fear that they will ficulties faced by providers was when the budget. continue to face micro-management by the terms of the contract were announced, at the The LSC would point to CLS Direct as a LSC and will have to absorb even more ad- end of February 2007. People may well have partial response to the challenges; anyone can ministrative overheads themselves. signed up in March 2007 to buy enough time now access advice by telephone in social wel- (April – September this year) to pull out of fare law. Eligibility checks take place after ini- The Access to Justice Alliance legal aid work or to close down. Dexter Mon- tial advice is given. The Access to Justice Alliance was formed in tague, a firm in Reading committed to legal The LSC would argue that by funding November 2004 and has been campaigning aid work, made the decision to give it up. CLACs and CLANs there will be certainty ever since, focusing on civil issues in particu- What about after round one? It seems un- and there will be cover. lar social welfare law. It is supported by com- likely that organisations will be around to bid New competitors are likely to arrive and it munity groups, national charities, lawyers, three years later when re-tendering takes will look like protectionism to say that that is advisers and others who feel strongly that jus- place. per se a bad thing. The legal services bill going tice should remain accessible to all. (See www. This is a sector where there has been virtu- through parliament means that it is more accesstojusticealliance.org.uk for a full list). ally no increase in rates over the last ten years likely that traditional firms and organisations The Alliance believes that the funding crisis and where already over 8,000 organisations will change. facing legal aid cannot be ignored any longer. have left legal aid work since franchising The Alliance calls on the government to: started in the early 1990s. There is great un- Conclusion 1. Resource the whole legal aid scheme so that certainty over the future. There are at least three judicial review cases both civil and criminal work can operate going through the courts challenging current within a realistic budget. This means pro- Black and ethnic minorities proposals. The Law Society has put consider-

tecting the civil legal aid budget to stop it Lynton Orrett, on behalf of the Black Solici- able resources into the ‘What Price Justice?’ / reportdigital.co.uk Jess Hurd Pictures: being used to cover rising expenditure on tors Network, and Sailesh Mehta gave evi- campaign. Some private practices are pulling criminal legal aid. dence to the Select Committee highlighting the out of legal aid work. The not for profit sector 2. Compensate the legal aid budget for the effect on black and minority ethnic commu- was warned that it would lose up to 50% of costs of new policies and initiatives. nities. Firms that grew up to work with com- its funding. Gateshead CLAC will start oper- 3. Co-ordinate spending by government de- munities expect to have to merge to survive. ating and others will start trading; the first partments and local authorities on inde- But that was not the reason why they grew up CLAN for example may well be in Cornwall. pendent legal and advice services and oblige as they did – mergers would move them fur- At an Access to Justice Alliance meeting re- them to contribute appropriate funding. ther from their client base. Although there cently, Alan Beith MP, Chair of the Select 4. Review and revise the eligibility criteria and were discussions with Carter about funding Committee, stressed that while fixed fees were extend legal aid for representation in tri- costs of mergers, that has not happened. hogging the headlines in fact the bigger threat bunals to ensure that people of limited was competitive tendering. The government means can access justice. Where do we go from here? must be hoping that marketisation can deliver 5. Guarantee quality standards in publicly Are there any positives? Will centrally planned high quality advice and cover the country. And funded legal and advice services. social welfare providers be able to operate suc- that everyone who is expressing concerns are 6. Provide co-ordinated funding for strategic cessfully? Will current providers end up em- wrong. The next few months are crucial. and education legal services (including test ployed and still providing top quality advice cases), social policy, law reform and other and representation? What are the risks on Carol Storer is a solicitor in a not-for-profit non-casework services. quality? There is a quality threshold but it is agency and member of the Steering The Alliance, formed before July 2005, not high. It can be argued that users of legal Committee of the Access to Justice Alliance, might have been expected to welcome the LSC aid face problems now. In the future there will and is writing in a personal capacity. goals but the proposals that month led to an increase in activity not a decrease. The LSC vision is often admirable but huge changes are being proposed at a time when many experi- enced practitioners have given up or are pulling out of legal aid work. Wholesale Criminal change without careful analysis of pilot pro- jects is a huge gamble. Users legal aid What do the reforms mean for users of legal aid? We simply do not know, they This does not simply mean civil legal aid. have not been consulted about the pro- Most criminal legal aid firms operate on the posals. A recent discussion paper from by Piers Mostyn edge of profitability. The profit margins of Legal Action Group ‘Developing the criminal legal aid providers range from -6% Users’ Perspective’, discusses this de- t has said that increases in costs in criminal to 2% according to LECG. mocratic deficit. It argues not only that legal aid are primarily responsible for the The House of Commons Constitutional Af- consulting users is in itself the right growth in the legal aid budget over the past fairs Committee (CAC) published a report in thing to do but that user input im- Idecade from £1.5 to £2.1 billion. £100m May based on a wide range of evidence. Its proves services. (about 5%) is to be slashed off the 2005-6 overall assessment was that the financial posi- level by 2010. Taking into account inflation tion of many criminal legal aid suppliers was Will there be enough this will amount to a real terms reduction in highly fragile, with those in a financially strong suppliers? the region of 15-20%. position “very much in the minority” (para 47). Numbers dropped in April The impact will be devastating. Three in- A Law Society survey of 262 firms con- 2007 as some organisa- dependent financial studies (one by LECG on firmed this. 91% thought they would see a tions decided to stop car- the Carter proposals, commissioned by the drop in criminal legal aid fees, 50% thought rying out legal aid work Law Society, and two by Otterburn Legal this would be a reduction of between 11-25% then rather than wait Consulting commissioned by the Legal Ser- and 42% in of 26% or more. There can be any longer. The notice vices Commission) have concluded that the little doubt that the level of cuts sought will provision for providers legal aid supplier base across the country is threaten the business viability of a significant to terminate contracts generally economically vulnerable. number of solicitors firms.

Socialist Lawyer July 2007 23 The government’s argument – based on of cost increases. But LECG found that the neo-liberal capitalist economics of which number of attendances per case had increased Margaret Thatcher would be proud – is that “There will be a very and whereas the waiting cost per attendance a proliferation of small firms is economically had gone up 4.3% per year, travel had de- inefficient as a method of delivering the ser- substantial loss in clined by 1.3% in the period 2001-5 (CAC vice. But this is fundamentally flawed. Firstly, para 88). Attendances and waiting time are, there has been a 10% decline in the number choice of firms and of course, almost entirely under the control of solicitors’ offices providing criminal legal thousands of solicitors of the police and not solicitors. aid (from 2,925 to 2,608 between 2001 and The impact of the introduction of fixed fees 2006). If anything the problem is ensuring are likely to leave” is likely to be serious. It will deprive solicitors that adequate coverage exists. of the flexibility to adapt the resources re- These changes are not based on serious re- The soaring prison population is much quired to meet the real needs of the client and search analysing what has driven expenditure higher than any other European country per the complexity of the case. An ‘escape clause’, increases in the past decade. Independent aca- head of population (with a 20,000 increase allowing hourly payments, will only kick in demic research by Professor Ed Cape has under New Labour). It seems absurd to sug- where the work required is several times the found that the main areas of increased ex- gest that the cost of criminal defence should standard allowed. The vast majority will not penditure (for instance in serious criminal remain static. The government’s answer to the be able to avail of this. In most cases solicitors cases in the Crown Court) have been due to endless prison over-crowding crisis is not to will have strong financial pressures driving an increase in the volume and number of slash prisoner numbers to the European av- them away from cases that even might involve claims. The increase in cost per case has risen erage – as any rational analysis would sug- more work than standard. Even the uncer- little above inflation. gest – saving billions of pounds, and reducing tainty involved and the difficulties of planning There has been a constant stream of new the re-offending rate. It is to throw cash at a will make them unattractive. legislation – with a plethora of changes to further massive prison building programme Anyone involved in this area will be read- procedure, complex sentencing and hundreds that will line the pockets of the private sector ily familiar with the problems this will create. of new criminal offences. Substantial in- firms that will rake in the profits. The most vulnerable clients will suffer – those creases have been made to the police and Carter estimated that the reforms would with language problems, mental health diffi- prosecution budgets. There is a greater re- cause 400 firms to cease providing legal aid; culties, personality disorders, drug addicts, liance on sophisticated expert and technical the Law Society said 800. LECG said that those with disabilities, the large number who data. Is it any surprise that the cost of crimi- Carter underestimated by 100% the number have real problems managing their daily lives nal legal aid has also risen? In fact it’s strug- of firms that would have to make major – due to childcare, abusive relationships, illit- gling to keep pace with real needs and costs. adaptations in respect of criminal legal aid. eracy or simply poor motivation. Shouldn’t we expect a high level of expen- Whichever way you look at it there will be a These are all clients who need and deserve diture for criminal legal aid in a society with a substantial loss in choice of firms and thou- more time and attention. In many cases they growing inequality, the lowest social mobility sands of solicitors are likely to leave the field. also require additional resources. How many and highest drug addiction rates in Europe The first stage of Carter implementation solicitors who have concerns about their and, according to a UN report, the most de- involves across the board fixed fees. Police clients’ linguistic ability, mental capacity or prived children in the developed world? station attendance is said to be a major cause health will feel as inclined to make represen- Housing by Angus King

n the 13 years that I have been a legal aid local authorities or NASS in regard to their housing solicitor in South London, two support or accommodation. things have remained constant: the rates of In other words, a cross section of the most Ipay (which have risen only once, in 1996) marginalised and vulnerable members of so- and a feeling amongst my fellow practitioners ciety. Any reduction in help to this group is that the end of the civil legal aid system is just likely to have severe consequences for the around the next corner. people most unable to help themselves. So far it hasn’t quite happened; ‘advice In housing, as in other areas of social wel- deserts’ have appeared in other parts of the fare law, Legal Help has long been a loss country, but, in London and the other major maker and has been cross-subsidised either cities, legal aid housing solicitors have clung by other funding or other sources of income. on and kept the system going. But the recent Most private firms have tried to minimise the proposals for civil legal aid funding have pro- amount of legal help work that they do, but duced a palpable sense that this time the it still forms a significant part of a legal aid barrel really is about to go over the waterfall. firm’s income. This is even truer in the not- In housing, legal help typically funds for-profit sector which has traditionally de- advice to amongst others: livered more advice work and less litigation. • The homeless challenging decisions by the Previously legal help work was paid at an local authority that they are not entitled to hourly rate with costs controlled by an audit housing assistance; process. About two years ago, private solici- • Tenants facing eviction for rent arrears and tors (but not the not-for-profit sector) started other problems; to be paid under the tailored fixed fee scheme • Tenants with complex housing benefit (TFFs) under which a supplier is paid the problems; same amount for every case, irrespective of • Tenants harassed by their landlords; length or complexity. The rate is calculated • Asylum seekers challenging decisions by on a supplier’s average costs per case. Vari-

24 Socialist Lawyer July 2007 tations to the custody sergeant and risk a sig- The impact of the changes on black and The CAC heard expert evidence from Pro- nificant further delay for an interpreter, ap- ethnic minority firms and solicitors has been fessor Frank Stephens that where legal aid propriate adult or doctor? well documented. There will be a serious providers in a competitive market (such as There will be an incentive not to give de- knock-on impact on the confidence of the criminal defence work in London) bid for con- tailed advice, not to fight for more disclosure BME communities in the police and the tracts there is a risk that, knowingly or inad- and not to consider all avenues but instead to courts, which is already at rock bottom. This vertently, bids might be set at unsustainably take the easy option of a full and frank early will in turn discourage co-operation – low levels for the three year life of the con- admission of ‘guilt’. Unscrupulous officers, whether in the form of willingness to give ev- tract. The consequence is likely to be a re- aware that legal representatives are on a fixed idence or to plead guilty. A criminal justice duced level of service (para 146). Firms that fee, may be tempted to string out the process system plagued by racism from top to bottom miscalculate their bids or cannot fulfil the con- in the hope of enhancing such ‘incentives’. – on its own official self-assessment – will face tracts may be forced to leave the local legal Similar considerations apply in the magis- less challenge and accountability. aid market with unpredictable consequences trates courts where the loss of waiting time Speaking of the related impact on spe- for clients and local access to legal services. money will, for reasons that are entirely out- cialist or “niche” providers, Michael The idea that lawyers’ professionalism will side the solicitor’s control, result in similar Schwarz of Bindmans has said: “Human be sufficient to maintain standards takes no pressures coming to bear. rights will be at risk – it will be an encour- account of the substantial change in work The incorporation of travel into the fixed agement for negligence or abuse by state of- culture and practices that will result. There fee will drive down quality and choice. A ficials and is a recipe for injustice.” (Law will be a constant incentive to replace more handful of large firms will carve up the work. Gazette, 17th May 2007). with less experienced, more skilled with less With the same few firms constantly re-ap- This prognosis is not simply guesswork. or unskilled staff. Legal skill and experience, pearing in the same police stations and courts, The CAC heard evidence from Scotland – once lost, will not be regained there will be greater pressure to accommo- where fixed fees for criminal work have been The long term will see the development of date without the challenge of competition. in operation since 1999. There has been an re- a two class system of justice. The rich will pay Defendants who are arrested away from duction in client contact and case preparation for top lawyers. The poor (the vast majority home will not be able to retain their solicitor as firms dramatically increased the number of of criminal defendants) will receive a Cin- of choice who may have an essential and cases they undertook. (para 68-71). derella service. Anyone on a moderate wage long-term understanding of their needs. The transition to competitive tendering or above will face intolerable pressure to What happens at these early stages will from October 2008 will exacerbate the plead guilty in circumstances where they have an impact on every subsequent stage in- process by further driving down fees as firms cannot afford the service they need. cluding verdict, sentence and appeal. More seek to outbid each other by lowering unit Rather than fight each other for a margin- miscarriages of justice and a further public costs and increasing throughput. The govern- ally increased share of a disappearing cake, all loss of confidence will be the outcome. It ment’s claims that it will put a ‘floor’ beneath practice sectors and both wings of the profes- would be foolish to accept ministerial pledges which bidding cannot go are worthless. Its po- sion – solicitors and barristers – need to work that maintaining high quality is sacrosanct – sition as monopoly buyer, the over-riding aim together in opposing these reforms. particularly from a government whose leit- of expenditure cuts and the dynamics of such motif has been an incessant assault on civil a market-based system make such reassurance Piers Mostyn is a barrister at Tooks liberties, particularly defendants’ rights. meaningless. Chambers specialising in criminal defence.

ous safeguards have been built into the agency will end up making a loss on it. This scheme to prevent suppliers abusing the is a clear disincentive to switch away from scheme by altering their caseload to shorter cases that are likely to be lengthy, difficult or and hence more profitable cases. complex, such as those involving clients who However following the Carter report, are disabled or whose first language is not from October this year, all housing law sup- English, or those who are just unfortunate pliers will be paid at a fixed rate per case of enough to have problems that take time and £171 (3.1 hours) irrespective of length or effort to resolve. complexity. This fee is the same whether you In housing the clients most likely to be ef- are in Penzance or Newcastle and whether fected are the homeless clients challenging de- your client case needs 20 minutes work or 20 cisions by local authorities that they are not hours; it takes no account of local conditions eligible for housing assistance, and clients or your client’s individual circumstances. with rent arrears arising out of complex ben- Difficult clients and complex cases take efit problems. The law relating to both is more time. Legal aid lawyers could obviously complicated and often not well understood maximise their profits by taking on as many by the local authorities that administer it. short and simple cases as possible. Apart from Such cases inevitably involve extended in- the fact that this is something that many volvement by the advisor and under the new would find distasteful, the new system will scheme will become even more uneconomic apply sanctions to suppliers if more than a to take on. The government and the LSC fixed percentage of their caseload is below the argue that the changes will encourage more fixed rate. To mitigate the effects of the stan- ‘acts of assistance’ and deliver legal help and dard rate, the LSC points to the ‘exceptional advice to more people. If they do, they may cases’ escape mechanism (see Carol Storer not deliver it to the people who need it most, p22-23). However payment for these will not those who are most needy and who most be automatic but subject to audit and ap- need expert advice. proval on a file by file basis by the Legal Ser- Even more dangerously, the reforms are vices Commission. Past experience suggest likely to ineradicably alter the basis of legal that the Commission will do its best to limit aid supply. Housing advice is almost entirely payments for such ‘exceptional’ cases. Cases delivered by small organisations who may that take longer than 3.1 hours but less than find it impossible to achieve the spread of 9.3 will simply incur a loss. cases that the Minister insists will make legal In other words if you take on a case that is help viable. Such advice agencies may face a likely to last more than the standard length bleak choice – do legal help at a loss or not do there is every chance that your firm or advice it all.

Socialist Lawyer July 2007 25 Many private firms are starting to opt maining practitioners still doing housing mons Constitutional Affairs Committee for the latter. In March the LSC took the first work at that stage, is debatable. which reported on the proposed reforms in steps towards implementation of the new Many older practitioners are beginning to May, was scathing in its criticisms. scheme by requiring all organisations deliv- feel that they have had enough, partners in Perhaps the government is right. Maybe in ering legal help work to sign new contracts. smaller firms are taking the view that they five years time the general public will be en- Many legal aid firms initially refused to sign should leave legal aid while they are still sol- joying the benefit of numerous acts of high the contract on the grounds of unfairness but vent and – burdened with debt from their uni- quality assistance brought to them by were forced to back down at the last minute versity courses and their LPC – legal aid slimmed-down efficient lawyers in shining simply to keep themselves in business. In the housing work is not an attractive area for new integrated social welfare centres, funded end 94% of firms and other agencies signed. younger lawyers. by supermarkets or insurance companies. Amongst those that didn’t are three of the Nobody is in favour of these reforms apart But if the government is wrong and the most prominent and respected housing firms from the government and the LSC. A number current supplier base collapses as many have in the London borough of Lambeth, who of organisations have stepped up to criticise warned, then that will be bad news for ten- have simply given up doing legal aid housing the proposals including Shelter, MIND, ants and the homeless. work. This may be the first sign of a much CPAG and Age Concern. Lord Carter him- more extensive flight from legal aid work as self seems to be having second thoughts about Angus King is a housing solicitor working in private firms decide to ditch their legal aid de- some aspects of the scheme and the Com- the not-for-profit sector in South London. partments and rely on private work. Not-for- profit agencies who do not have this option simply find that they cannot stay in business. The culling of all small suppliers dovetails with the government’s longer term objective, Asylum and which is the amalgamation of small providers into larger units, first by competitive tender- ing and then by the establishment of CLACs, CLANs, or their latest variation, Integrated Social Welfare Centres (ISWCs) (see Carol immigration Storer’s article on pages 22-23). ISWCs are a modification of earlier pro- posals for CLACs and CLANs. The original idea was to have one universal supplier of by Sonia Routledge & Damian Hanley legal aid services in each of 72 zones across the UK, funded in part by the LSC and in part by the local authority. They are to be estab- or asylum and immigration clients, the their past in the most intricate detail. Some- lished by withdrawal of funding from other potential consequences of the pro- times this process is so unbearably painful for suppliers. When they were proposed two posed reforms to legal aid could not be them that they are unable to tell us everything years ago, CLACs and CLANs met with Fgraver. It is no exaggeration at all to straight away. It takes time for them to de- almost universal opposition and so they have say that in asylum cases, and in non-asylum velop sufficient trust in their legal representa- been slightly modified, at least for London immigration matters in which human rights tive to be able to disclose the full horror of where they have been replaced by ISWCs. are at issue, what is at stake is often an indi- their experiences and the full extent of their The proposal now is that there will be one vidual’s life. When the stakes are this high, fears for the future. For trafficked young ISWC per borough. Each is to be an individ- the principal risk arising from having no legal women, for example, the shame they feel at ual legal entity and will contract with the representation or poor legal representation is the sexual abuse they have suffered is often LSC. Each centre will then subcontract to very simply that a person at risk of persecu- so profound. It is not possible or accept- provide all the services across the borough. tion and other human rights violations will able for us to put such vulnerable ISWCs are not proposed to come into be forcibly removed from this country and re- people as we represent under pres- force until 2010 at the earliest and if they do, turned to face their persecutors in the country sure to give their accounts as quickly they may be in a heavily modified form. from which they fled. as possible so that efficiency savings The purpose of CLACs and CLANs (and For those of us engaged in providing legal can be achieved for the government. now presumably ISWCs) is to remedy a ‘frag- advice and representation, the people we meet Cases of this kind require time and a great mented system’ where clients go from advice in our daily work are precisely those people deal of care in preparation and presentation. agency to solicitor to advice agency and so who can, through the filter of a television The Courts expect nothing less. In R v Secre- on, eventually succumbing to ‘referral fatigue’ screen, seem so far away as to be almost tary of State for the Home Department, ex p and unable to find the assistance they need. ‘unreal’. But here they are: the victims of Sivakumar the court stated: “It has been said Undoubtedly this happens, but not because human trafficking, the victims of torture who time and again that asylum cases call for con- of fragmentation in the system but because in have dared to express beliefs contrary to the sideration with ‘the most anxious scrutiny’: areas of high deprivation the demand for beliefs of the ruling power in their country, see, for example, R v Secretary of State for the advice far exceeds the supply. There just the victims of homophobic violence which is Home Department, Ex parte Bugdaycay . aren’t enough legal aid housing advisors to accepted and connived at by state authorities, That is not a mantra to which only lip service go round and putting whatever is left of them the young girls who have been forced into should be paid. It recognises the fact that what in three years time all together in one building marriage with men five times their age, the is at stake in these cases is fundamental human is not going to solve the problem. young boys who have been forced to carry rights, including the right to life itself.” CLACs, CLANs and ISWCs are also in- guns and fight in civil wars, the young women There is no point at all in the court insist- tended to achieve economies of scale by amal- fleeing from the prospect of having intimate ing that all decision-makers examine asylum gamating a number of smaller firms and parts of their bodies horribly mutilated in the cases with the most anxious scrutiny if the advice agencies into one large organisation. name of tradition. Here they are, asking only case before the decision-maker has not been It is doubtful whether this will happen. Any for safety, often able and willing to make carefully and thoroughly prepared. But the advantages gained by legal aid hypermarkets whatever contribution they can in what they provision of the specialist advice required by are likely to be outweighed by disadvantages hope will be their country of refuge. asylum seekers and immigrants is now under such as the loss of diversity, geographical iso- The work of preparing and presenting the threat of disappearing altogether as a result of lation and prohibitive start-up costs. cases of asylum seekers can be lengthy, and the reforms to legal aid proposed by the gov- Whether such centres will be attractive to for the individual asylum seeker concerned, ernment and the LSC. Many individual legal either local authorities (who are expected to arduous. When giving their instructions our aid suppliers have earned well-deserved repu- contribute to their funding), or the few re- clients have to relive appalling episodes from tations as specialists in particular categories of

26 Socialist Lawyer July 2007 asylum and immigration work. Some firms consequences for the quality and availability and not-for-profit organisations have emerged of publicly funded legal services across the as specialists in immigration work, others in “In business terms country.” complex asylum and human rights work. The LSC asserts that ‘cherry picking’ Even within individual firms particular areas there is only one simple cases will not be acceptable, and main- of expertise have emerged, and this is surely tains that the case mixes of individual firms something to be welcomed and nurtured. Yet obvious solution: to will be monitored in the run-up to BVT to the proposed reforms posit that, in order to dramatically reduce ensure that firms are not seeking to maintain survive the transitional period of the fixed fee economic viability and competitive advantage regime (which itself is a precursor to Best the number of complex by simply refusing to take on any but the Value Tendering – BVT), all firms will need to most potentially straightforward cases. But take on an ‘appropriate case mix’. It is said asylum and human CAC expressed serious doubts about the that the losses we will take on complex cases extent to which the LSC could identify and will be balanced by the gains we will make rights matters started” therefore address cherry picking. It found: under fixed fees in ‘straightforward’ cases. The “Fee schemes which only provide for rel- LSC’s vision is apparently that efficient firms and roundabouts’ will see us all through. The atively flat fixed fees with very little gradua- with the right case mix will emerge from the basic fixed fees for asylum cases at the appli- tion provide economic disincentives to taking transitional period of fixed fees well-placed cation stage are £450 and for asylum cases at on more complex cases. This is likely to dis- and on an equal footing to go on to compete the appeal stage (cases which go to a full hear- advantage already vulnerable clients.” for contracts to undertake legal aid work ing) £600 for preparation and £320 for rep- There is already a problem with access to when the process of BVT begins. resentation at the hearing itself. The fixed fees quality representation in immigration and We need to pause here. Firstly, the idea for non-asylum immigration are £225 at the asylum. CAC noted that between 2001 – that there can be any such thing as a ‘straight- initial application stage and £480 for prepa- 2006 there had been a 24% decline in the forward’ asylum or human rights case is dan- ration for a full appeal hearing, with repre- number of firms holding a contract to under- gerous in the extreme. Any practitioner who sentation at the hearing this time attracting a take publicly funded immigration and asylum takes a simple checklist approach to taking fee of £250. The ‘escape threshold’ is said to work . In one of the authors’ firms we have to instructions in such a case ought to find an- apply, but our experiences within the current turn away up to 30 potential new clients each other career. Any practitioner who believes system whereby we are required to apply to week because we simply do not have the ca- that the complexities of these cases can the LSC for extensions of funding once we pacity to take on their cases. Often their cases be reduced to a three-page statement reach certain financial limits have already are complex. Sometimes their circumstances is seriously mistaken. Some immi- shown that the LSC does not always under- have changed significantly since an initial ap- gration cases may have the potential stand what work is needed on a case and why. plication to the Home Office was rejected. to be reasonably straightforward, The ‘escape threshold’ therefore provides Sometimes they have suffered from having but even those cases in which it scant comfort. And in any event it is clear that had poor legal representation in the past, in- should be relatively quick and easy to the overall ‘logic’ of the proposals indicates variably at the hands of advisors more con- achieve a just outcome for the client, that those firms which, during the transitional cerned with ‘efficiency’ than with thorough can become unbelievably and un- fixed fee period, frequently apply for hourly work conducted to appropriate professional necessarily complicated, pro- rates under the ‘escape threshold’ will not be standards. Often these people have previously tracted and of course well placed to compete for contracts under been turned away by other firms because of expensive because of poor BVT. lack of capacity. If firms are now placed in a quality decision-making on The proposed fixed fees are simply inade- situation in which their very survival seems the part of the Home quate by any standards. The LSC has admit- to depend on minimising the number of com- Office. The ted that the fees were not calculated on the plex cases they take on, the problem with quality of deci- basis of historical data about average costs access to representation will get even worse. sion-making by per case in asylum and immigration matters. In its conclusions, CAC recognised the exist- entry clearance In business terms there is only one obvious ing problems around access to representation officers at over- solution for firms facing the prospect of sig- and the need to safeguard a quality supplier seas posts and nificant financial losses under the fixed fee base, stating: “Where the Legal Aid supplier case-workers in regime: to dramatically reduce the number of base is generally economically fragile and in the Border and complex asylum and human rights matters continuing, significant decline, reforms to Immigration started, in favour of expanding capacity to Legal Aid remuneration and procurement Agency of the take on what the firm hopes will turn out to must not lead to a further acceleration of this Home Office is be more straightforward immigration cases. decline and reduction of the profitability of not something Moreover the obligation on all solicitors to Legal Aid work.” over which practi- work to adequate professional standards and In his evidence to CAC, the Master of the tioners can exer- to act at all times in clients’ best interests, sug- Rolls, Sir Anthony Clarke also acknowledged cise any control, gests that under the new regime firms would the fragility of the supplier base: “There have but we and our have to turn away complex cases and accept been problems in the past with civil practi- clients certainly only those we could be sure could be properly tioners giving up publicly funded work for have to live with the completed within the time that the fixed fee economic reasons and it is obviously very un- consequences. realistically represents. This represents a great desirable that that should occur.” Secondly, it is danger for clients with complex cases. The government thinks that the best way very clear that on asylum cases, a In its report the House of Commons Con- forward in safeguarding access to representa- big financial loss would be incurred, stitutional Affairs Committee (CAC) ap- tion is to have fewer but larger firms, able to because the proposed fixed fee rep- peared to acknowledge that large firms with achieve efficiencies which smaller practices resents only about 50% of the aver- a high volume of straightforward cases may cannot. This may be so, but CAC expressed age cost per successful case stand to benefit from the ‘swings and round- clear concerns about an increase in the size of calculated on the basis of payment abouts principle but noted: “…not every- providers risks bringing about a decrease in per hour of work undertaken. It’s where is the Legal Aid market suited for the the quality of advice and representation they also clear, and less well-known, that development of large providers. We have provide. Efficiencies would likely be achieved on non-asylum immigration cases a particular doubts with regard to the area of through the recruitment of unqualified and loss would also be taken under fixed social welfare law. The introduction of flat inexperienced caseworkers and through

fees, albeit a loss of a smaller magni- fixed fee schemes in … asylum and immi- always delegating work down to the lowest tude. So it is not the case that ‘swings gration may thus have unintended adverse possible grade. CAC’s most insightful

Socialist Lawyer July 2007 27 critique of the government’s express hope be detained by the Immigration Service in the clients. Take the case of entry clearance ap- for fewer and larger firms appears at page UK without access to a court to challenge peals, where the appellant is overseas, seeking 60 of the report: “The most profitable and their detention. They might be unlawfully re- to challenge the refusal of an entry clearance efficient Legal Aid providers are not neces- moved from the UK to a country in which officer to grant a visa for entry to the UK. In sarily always the one providing clients with they are at risk of persecution and other family reunion cases (e.g. in which a person advice and representation at the highest qual- human rights violations. They might be sep- has established refugee status in the UK and ity…The LSC has a substantial peer review arated from close family members for pro- has the right to have immediate family join programme and the absence of a robust link tracted periods. For victims of trafficking, the them), it has been accepted by the LSC since between quality and efficiency is telling. Sim- most likely consequence of being returned to 2004 that the UK-based sponsor of the ap- ilarly we would have expected the LSC to the country from which they came, is that plication should be able to sign the relevant produce evidence of a link between the size of they will be sent straight back into the hands legal aid (CLR) forms. Under the new terms, a firm and the quality of its work to support of the traffickers. And poor quality repre- only the actual appellant will be allowed to its reform proposals if such evidence were sentation is really no better than having no sign. The appellant might be in a refugee available. It has not.” representation at all. In asylum and human camp or a village in Africa, with no proper CAC acknowledged that there is a real risk rights cases, it is often very difficult for an post facilities and certainly no fax. The Ap- of specialist suppliers being lost to the legal applicant to substantiate the basis of their pellant may be illiterate or may speak no Eng- aid system because under the fixed fee regime claim with evidence from their own country, lish, and so even if we can get the form to it will simply be impossible for them to obtain much turns on the credibility of the appli- them within the deadline for lodging the a reasonable return for their work . The real- cant. Representatives who prepare hurried appeal, they may not have a clue how to com- ity is that the government has no reliable in- statements do a tremendous disservice to plete it. The LSC has given no good reason formation at all about the extent to which the their clients, because once the decision-maker for reverting to the pre-2004 position and the Legal Aid system as a whole will survive the and subsequently the court has assessed that effect of it doing so will be to deny many transitional period of fixed fees, nor does it the account simply does not stack up, it is all people access to justice by effectively denying have any idea of what kind of firms will sur- but impossible for a just outcome to be at- them access to a court. vive or emerge to bid for work under BVT. tained by any subsequent representative, For clients in detention, the LSC will be So much is at stake for our clients. The however much care they might take with conducting a bid round for exclusive con- potential consequences of not getting timely preparation. tracts for providing legal services to immi- access to quality representation are that they Further attention to the detail of the new gration detainees later this year, with won’t understand how the system works, terms and conditions under which legal aid contracts starting on 1st October 2007. Fur- and how the facts of their cases should be for immigration and asylum cases will be ther details have not yet been published by presented to the Home Office. They might available makes very grim reading for our the LSC. The reasonable costs of a bail ap- Family by Penny Mackinder

f I was designing a system to ensure that would be that any licensed legal provider poor people had the same access to jus- had to belong to one of the professional or- tice as rich people, I would do it some- ganisations. Ithing like this. I would ask the poor Oh you poor sweet naïve little thing. people to go somewhere quite near to them You see what has to happen is that in to find out if they were poor enough to be el- order to create a market, the quango has to igible for the legal advice. That might be the prescribe every detail of the management of library, job centre, advice centre, day centre, providers, down to the colour of their socks, doctor’s clinic, church, Post Office (what’s if those providers are highly trained profes- one of them?), courthouse, etc, etc, maybe sionals working in partnership and taking even the pub. If the answer was yes, or “yes, all the risks. If on the other hand the if you contribute”, they would get a voucher providers are corporations owned by share- or unique identifying number. holders, they can do what they like. That’s A Legal Services Board (a Quasi-Au- what creates a market. tonomous Non-Governmental Organisa- The outcry that greeted the fixed and tion) would be set up that oversaw graduated fee tables that emerged with the professional organisations which then li- LSC paper “Legal Aid: a sustainable future” censed any and every business that wanted was probably loudest from family lawyers, to provide legal services on condition that it and particularly from lawyers working in honoured any ‘legal voucher’ presented to public law proceedings. Care cases were it, so long as they had lawyers with the ex- identified along with criminal very high cost pertise to provide that legal service. The cases as escalating in cost in recent years. Legal Services Board would negotiate with Across the country representative organ- the providers’ representatives a rate of pay- isations and grass roots groups protested (in ment at an hourly rate. the face of despairing cries of “ but it’s cost There would be a market in legal services neutral” from the Minister and LSC reps at as organisations competed for business. consultation events round the country) that Government would not interfere in the the proposed fees would represent a cut in running of businesses or quality control, income of between 25% and 45%. which would be the responsibility of profes- Such was the outcry that the lord chan- sional organisations. The only requirement cellor staged a coup de theatre at the Law

28 Socialist Lawyer July 2007 plication, charged at an hourly rate, up to a start to finish, and will claim the fixed fees as As well as the place of safety with which we limit of £500, are to be allowed from 1st Oc- applicable. This fails to take account of the re- are bound to provide them in accordance tober 2007 and are currently outside the ality of clients wishing to transfer from one with our international obligations, our clients graduated fee scheme, to enable the LSC to supplier to another, due to allegations of neg- deserve recognition for their outstanding gather data on ‘average’ costs, before impos- ligence and/or inadequate professional work courage and their refusal, even in the face of ing a fixed fee at some point in the future. It and also of suppliers wishing to transfer a the harshest adversity, to accept the cruelty of is to be hoped that no fixed fee is imposed for client to another advisor due to a conflict of persecution and human rights abuse as some- bail applications, given this may dissuade interest or due to being professionally embar- how being their fate. What they certainly de- suppliers from taking on complicated bail ap- rassed. If there is only one fixed fee for each serve is the very best quality legal advice and plications that take time to prepare and given matter then it is going to be very difficult if representation that we can offer them. Vera that an individual’s liberty is at stake. not impossible for a client to instruct a new Baird has said that “The hallmark of a decent The pilot for providing immigration solicitor under Legal Help/CLR. The scheme society is good legal advice and representa- advice for individuals detained in police sta- would require either that the second supplier tion for the community.” At the same time tions in England and Wales has been rolled will have to do the work at that stage of the the government is seeking to achieve savings over until October, with the LSC yet to make proceedings for free or the first supplier waives in the legal aid budget of £100 million by a decision on whether to continue the service. the fixed fee. Clients who feel they have been 2010, from the spend in 2005 – 06. How has If it is to be continued this will again be poorly represented will have no access to jus- the £15.6 million the DCA spent on consul- awarded to suppliers via exclusive contracts tice or will have to pay for it themselves tants in 2005 – 06 helped to advance the following competitive bids. The main diffi- (which they won’t have the money to do). cause of providing ‘good legal advice and rep- culty with this pilot has been finding a sup- It is not surprising, when one considers the resentation for the community’ (Gazette, 31st plier in the area where the client is detained. magnitude of these risks, that CAC concluded May 2007)? What is certain is that to com- Given the fixed fee proposals set out above its assessment of the government’s proposals promise the provision of good legal advice and the dwindling supplier base, if contracts as follows: “…the DCA/LSC’s intention of a and access to justice to such a vulnerable are awarded, this problem is likely to worsen nationwide imposition of fixed fees followed client group as asylum seekers and immi- in the future. This will make the position rapidly by competitive tendering across the grants would indeed indicate the emergence more common that an advisor tells a detainee entire Legal Aid system is a breathtaking of a much less decent society. he/she has a potential application that can be risk.” made to the bail immigration adjudicator but After years of representing clients who Sonia Routledge is a Solicitor at Birnberg no supplier can be found to help lodge it. have come from, or who are living in situa- Peirce & Partners. Damian Hanley is a Partner It is also clear that the LSC envisages that tions of tremendous adversity, we still often at Wilson & Co Solicitors. With thanks to Sadat one supplier will deal with one matter from find ourselves overwhelmed by their bravery. Sayeed and Smita Bajaria.

Society Conference, a few days after the con- private law children work, and private law sultation closed, announcing that they ancillary relief. Uncontested divorce remains would go “back to the drawing board”. The within the fixed fee scheme for controlled Law Society Gazette even described Caro- work. Domestic violence injunctions are out- line Little, of the Association of Lawyers for side the scheme, and TOL(AT)A, (Trusts of Children, as “briefly dumbstruck” at the an- Land and Appointment of Trustees Act nouncement. 1996), claims are within financial proceed- Far be it from me to suggest that the DC ings until issue and then under an hourly might try to ‘bury bad news’, but the new paid certificate. Advocacy is included in the proposals did emerge in March when every- scheme fees up to final hearing and then ‘es- one was preoccupied with whether or not to capes’ to an hourly basis-(are you with me sign the new contract at all, and certainly so far?). Any suggestion that the skills of slipped under my personal radar, although costs draftspersons might no longer be re- not that of LAPG’s director Richard Miller quired can be put aside for now. (see Carol Storer’s article, pages 22-23). The There are regional variations, and an response period for the consultation closed uplift for membership of Resolution or Law in mid-April. I am concerned about this be- Society expert panels applies in some cir- cause firms will not have had the same op- cumstances. portunity to compare new figures with The proposals in care cases look like this. historical ones to see how they will impact. (see box below). I’m not going to bore you If there was any idea that the scheme with all the tables or your brain like mine would be simpler to operate than the hourly will just lose the will to go on, but there are costing rules, that is quickly dispelled. There similar, if less complex, tables for the other are separate schemes for care proceedings, practice areas.

Level 1 – Initial advice National (excluding VAT) £136 The Commission’s Level 2 – Negotiation National (excluding VAT) £306 example: A solicitor Level 3 – Full representation (excluding VAT) based in Brighton acting for a parent Party Court No. of Midlands North South Wales where the client had Clients sought early advice, Child Other 1 £2,602£2,300 £2,978 £2,818 and the case had Child Other 2+ £3,903£3,451 £4,466 £4,226 then proceeded to Child High 1 £3,460 £3,060 £3,960 £3,747 the county court and Child High 2+ £5,191 £4,589 £5,940£5,620 been resolved Joined Party Other 1 £1,289 £971 £1,719 £1,466 following the case Joined Party High 1 £1,714 £1,292 £2,287 £1,949 management Parent Other 1 £2,465 £1,880 £2,836£2,466 conference, would receive the following Parent Other 2 £3,081 £2,350£3,545 £3,083 fees: £136 + £306 + Parent High 1 £3,278 £2,500 £3,772 £3,280 £2,836 (exclusive of Parent High 2 £4,098 £3,125 £4,715 £4,100 VAT).

Socialist Lawyer July 2007 29 I work as a locum in family work, prin- If access to private law help with children cant number of specialist family legal aid cipally in ancillary relief and private law is not available, frustrated parents are more suppliers will make it increasingly unattrac- children cases. I work in every type of likely to report their ex-partner to social ser- tive to practice in this field of law. It is un- smaller firm and over the past five years or vices or the NSPCC, bringing in an escala- likely that these fee schemes would halt the so have seen the gradual withdrawal from tion of intervention and then cost. In a sense, trend of family lawyers leaving the legal aid public funding at first hand in London and the impact of the failure of the system is too system, let alone reverse it.” the home counties. hard to contemplate. Because that is the risk. According to the LSC’s own figures, be- The House of Commons Constitutional Penny Mackinder is a specialist family law tween April 2001 and September 2006 the Affairs Committee report rightly concludes: locum who is on nthe editorial board of Legal number of solicitor offices (contracts are “Again, we are deeply concerned that the Aid Review, the Journal of the Legal Aid currently allocated by office rather than by effective reduction in case fees for a signifi- Practitioners Group firm) with a general family contract fell by 2/5, from 4,593 to 2,753. It seems as though, to the Commission, that is all to the good; the mantra is “fewer, bigger, better.” Law centres It’s easy to minimise the effect of this on the profession on the basis that firms can continue to provide a service in privately native model of not-for-profit legal services; funded work, but the reality is that families by Clara Connolly accessible, flexible, informal and responsive in trouble can’t necessarily afford legal & Kathy Meade to the needs of their local neighbourhood. advice just because they are just outside There were too few lawyers specialising in CLS eligibility limits. social welfare law and there was no legal aid One thing that fascinates me is the vari- t should have been heartening on 31st May for important areas of work such as em- ety of ways that practitioners work, al- 2007 to hear the then Legal Aid Minister ployment tribunal representation. Many low though of course there are basic similarities Vera Baird hail legal services which “model income people were also excluded from legal of best practice, not least ensuring the client Ithe law around the public and not vice aid by tough means-testing. Even more did is listened to. Solicitor A does all her own versa” at the opening of the new Gateshead not have a law firm locally and even if they advocacy, employing two secretaries to hold CLAC (see Jamie Ritchie article, pages 32-33). did, they did not find them user-friendly. As the fort , do all the typing, take and make This first CLAC, funded jointly by the LSC the thrust of the Community Legal Service’s telephone calls (I’m not sure when she does and Gateshead Council, is meant to spearhead five year strategy ‘Making Legal Rights a Re- her dictation, although I suspect some of it the development of one stop shops for people ality’ sadly confirms, the situation is little is in the car), giving the client continuity of seeking legal advice on housing, debt, welfare changed 30 years on. attention. Practitioner B has no secretary, benefits community care, employment and Free independent legal advice irrespective types all her own statements, briefs counsel family problems all around the country. The of means, accountability to the local com- to go to court, both highly regarded by their law centre and Citizens’ Advice Bureau form munity through management committees, local judiciary and peers. Both bringing skill the backbone of this new organisation with outreach sessions in community centres, tele- and knowledge to the needs of clients. The three local law firms contracted to provide phone advice lines and drop in sessions, cam- hourly rate allows each to fulfill best prac- specialist family, community care and public paigns on issues of social justice, test cases tice, but the new rules limit expense at each law advice and representation. What is more, and educating the community about their stage and thereby limit and circumscribe the CLAC is funded to ‘take action’ on the legal rights became the hallmarks of law what may be done, subjecting professional causes of problems and to empower people to centre public service. The first law centres skill and judgment to arbitrary limits. assert their legal rights. Isn’t this close to what opened in North Kensington, The first practitioner operates under a li- the law centre movement has been advocat- Brent and Cardiff in 1970. By cense-only contract, which will not be al- ing for years? 1974 another 13 were up lowable in the future, organisations will be Shouldn’t it also have been cheering and running. Over the last expected to provide both controlled and li- to hear the LSC arguing the case for decade between 50 and censed work; she will have to chose CLACs on the proven grounds that 60 law centres have been whether to give up altogether, or recruit. civil justice problems lead to further in operation. Since 2001 The Legal Aid Practitioners Group have social welfare problems, that those who seven new law centres responded in detail to the report expressing are socially excluded experience the have been established. profound concerns about the practicality of most problems, that only half of those Law centres the reforms and their ability to produce the who have problems seek advice and that a have always desired outcome. sizeable proportion give up because they “It is not possible to develop a workable can’t find the right person or agency to help and simple scheme. If it is too simple, it is them…? Isn’t this also what law centres not workable. If it is sufficiently workable (amongst others) have been saying for it is highly complex.” years in every funding application, in The impact on firms will be the need to every annual report, in every effort change ways of working, and to spend time to set up new law centres in the in- and money on reorganising working meth- creasing numbers of advice deserts? ods, all to fit a scheme that may only be in So why do many of us feel dispir- effect for a couple of years, even for those ited by the prospects facing most firms whose signing of the contract is not of the 62 law centres in the UK? merely a means to a measured withdrawal As Jane Hickman and Sue Pear- from the system. son point out in Legal Action, For individuals it may mean that if there “the move to reform legal aid is anything non-standard about your di- provisions could….. be viewed as vorce (for example a spouse overseas or a welcome assertion of the role of missing, unco-operative or difficult, a miss- the state in planning public pro- ing marriage certificate...) you will find it vision”. difficult or impossible to find a solicitor. Law centres were the inspi- Either there will be no one, or they will not ration of radical lawyers in the have the skill or experience to help. 1970s who envisaged an alter-

30 Socialist Lawyer July 2007 struggled to survive against financial odds. obtained short term project funding to com- family has made it unthinkable for wives to Charitable trusts and donations got the first pensate for inadequate (or non-existent) local call the police and impossible to gain inde- law centres off the ground. In 1974 local au- authority grants but those sources are subject pendent access to a GP. Ms N has suffered a thority grants first became available and in to severe competition and are available only nervous breakdown; the after effects of the 1975 the Lord Chancellor’s Department pro- for new work and not core services. abuse and also of the difficulty of surviving vided grants to some law centres where local This already precarious position is now without benefits (to which she is not entitled councils refused to assist. Throughout the late under further threat from the Carter reforms because of her immigration status). 1970s and the early 1980s, local government with the focus firmly set on driving down the This is a typical immigration case referred led the way in recognising that access to good legal aid budget through the market forces to a law centre (or dedicated private firm) be- quality legal advice and representation was of fixed fees and competitive tendering. It cause it involves complex and specialist an essential part of any strategy to support seems that only the government is deaf to work, as well as sympathetic and patient poor and disadvantaged communities. But concerns about the changes coming into handling. The time spent on such an appeal since local councils were under no statutory force at breakneck speed over the next 6-18 could be up to 30 hours, in our experience. obligation to fund legal advice, the develop- months. Most recently the House of Com- Traumatised clients with mental health prob- ment of new law centres and the survival of mons Constitutional Affairs Committee said lems have difficulty giving instructions, and existing ones was almost entirely dependent that government’s plan was a “breathtaking evidence has to be sought from informal, on who was in political control. risk” to justice among the most vulnerable non–statutory sources, such as statements The last 10 years have seen a steady ero- in society. from friends/neighbours. The fees would be sion in local authority funding. Not a year The ‘one size fits all’ contract (in opera- higher than normal; to cover expert psychi- has passed without one law centre or another tion since April 2007) ends the ‘not-for- atric evidence on the effects of domestic vio- facing imminent closure because of funding profit’(NfP) arrangements which had been lence on mental health, and expert evidence cuts. In order to survive law centres have had devised by the LSC in recognition of the spe- on the cultural context, as well as inter- to rely more and more on income from the cial position of law centres in the legal aid preters’ fees. It would certainly involve a pre- LSC. This in turn has skewed the focus of market. We were paid quarterly in advance hearing conference of client and witnesses law centres towards casework and threat- so that we did not have to carry a destabilis- with a skilled barrister. Under the current ened their distinctive and unique role in pro- ing burden of debt while awaiting payment regime it would be time-consuming to per- viding outreach and drop in advice, for work done. Within a negotiated yearly suade the LSC to approve the costs and time campaigning and legal education. budget, we could exercise our judgment of such a case plan, but not impossible for a In 2001, Hackney council cut its grant of more independently about expenditure on determined representative. £190,000 to Hackney community law centre medical and expert reports. These small but Under the fixed fees regime: the time al- by 25% with knock-on cuts in the anti-de- significant concessions are now gone. lowed for preparation of such an appeal is re- portation campaign and outreach work pro- Gone too is the one LSC concession to the duced to three hours; the barrister’s fixed fee vided by the law centre. In 2006, Hillingdon law centre ideal of free access to legal advice, would not cover a conference beforehand; law centre were told that its £50,000 grant regardless of means: the ‘level one’ or pre and there is a cap per case for expert’s and in- would go completely. Already in 2007, after specialist slot of free legal advice. At our drop terpreter’s fees. There will be an option to changes in political control of the local coun- ins and on telephone advice lines we have apply for payment under the ‘exceptional’ cat- cil, Camden community law centre faces an been able to offer advice, for example to vic- egory – but only 20% of cases are allowed in 18% cut clawed back from a proposed 40% tims of discrimination at work who are this category, and the LSC has the discretion reduction, and Hammersmith & Fulham law above (often just) the financial threshold for of slashing costs incurred as ‘unreasonable’. centre has lost 60% of its council grant, legal help; or to those facing multiple debts Post-October 2007 it is most likely this threatening four out of the 12 solicitor posts. but are homeowners or have saved money to case would not be fought at all, since the law Other law centres in London like North Kens- subsidise visits of family from abroad, and centre would be under pressure to draw a ington, rely on grants from the As- are therefore deemed ineligible. Under level line on the basis of costs and not on the in- sociation of London Government one we can help persons who are eligible for trinsic merit of the case. Without pursuing which are themselves far from Legal Help and who need one off advice but her right of appeal, Ms N would face re- secure. Short term funding not intensive case work support. Such advice moval to her country of origin where she from successful charity has often taken the place of community legal would probably suffer social ostracism, des- and Lottery Bids for new education. But from October, no such advice titution and complete mental breakdown. innovative work shored can be funded without signing a Legal Help But with the right expert evidence and inten- up Hackney law centre form and checking evidence of his/her means. sive casework, her appeal would have every but provided no long term For Hackney law centre this change alone chance of success. security. Other law centres will mean a £20,000 cut in LSC income. For our housing and other social welfare have similarly The fixed fees regime is supposed to clients there is a similar drive for costs to dic- create a level playing field in advance of com- tate. Under the new regime we will be paid petitive tendering (i.e. iron out any ‘anom- for a fixed number of ‘case matter starts’ per alies’ between NfP and private sectors) and month for a standard fee. In London, where force the smaller or financially weaker the law centres’ average case time for hous- firms/centres to merge or close, regardless of ing cases falls at around 5.4 hours (i.e. well their contribution to meeting local need. above the standard fixed fee but significantly A fixed fee regime is new for the NfP below the exceptional category), quality will sector, although more generous ‘tailored’ suffer under the pressure to complete the re- fixed fees have been common among private quired number of new cases essential for the practitioners for some time. The impact will law centres financial survival. be catastrophic for many of our clients as this The routine case, with standardised example illustrates: advice and case preparation, will be the only • Ms N has been refused permission by the way to fulfil the LSC targets. We know from Home Office to stay under the domestic vi- research conducted by the LSC itself that law olence rule but she has a right of appeal. She centres have more successful outcomes, and has failed to provide the standard evidence take more time per case. The combination is of police intervention, of court involve- not a coincidence. ment or of contemporaneous medical Even if we can devise strategies for sur- evidence of injury. The Home Office vival under the fixed fees regime, we will cer-

has not considered the issue that the tainly not survive the next phase: domestic servitude in the marital competitive tendering. Unless of course

Socialist Lawyer July 2007 31 private practitioners in our areas have been partners could not meet the specification for forced out of social welfare completely, and the amount of cash offered. we are the only ones left… Change is essential to realise access to jus- In this context, the CLAC model her- tice across the country and the vision which alded in Gateshead is simply a mockery of has inspired law centres across three decades. the ideals which the law centres have fought The current government however, while to preserve. It is a creature of the Carter re- paying lip-service to the ideals of public ser- forms and is little more than a reconfigura- vice and access to justice for the socially ex- tion of the money already paid to an under cluded, is writing the epitaph of law centres funded law centre and other not-for-profit with its programme of market reform. The organisations. The project was put out to consequences for the people and communi- competitive tendering on a budget that had ties we try to serve will be disastrous. not changed in 10 years. The Leicester CLAC tender has already foundered because the law Clara Connolly and Kathy Meade currently centre submitted that they and their local work in London law centres. The history by Jamie Ritchie

here was never a golden era of Legal working. Law Centres sprung up all over. anisms – health and safety inspectors, envi- Aid. Set up by Labour in the after- New or unused remedies were tried on ronmental health officers, social workers, math of the Second World War, it was behalf of poor people and some of them tenancy relations officers, planning depart- Tnever a general legal service for those found to work. The ‘green form’ scheme ments, tax inspectors and others. The result who could not afford lawyers. It was simply (now known as Legal Help) was introduced. was a measure of impunity for landlords, a way of ensuring individual representation Legal Action Group magazine, LAG (now speculators, business tycoons, etc. in certain court processes: notably crime, Legal Action), constantly ran articles on the This was accompanied by closer regula- where there always was some kind of service; “imaginative use” of legal aid. Many more tion of the poor and powerless; in employ- divorce (increasing in the aftermath of war); women became lawyers, as did people from ment, housing, immigration, social security, and personal injury, where unions already ethnic minorities and people from working public order, police powers, etc. Snoopers provided legal aid. class backgrounds. Ways of providing legal and investigators, bailiffs, police, employers, At the time the Law Society was a pow- services outside the ‘judicare’ case-by-case landlords, officials, moneylenders and the erful force in the land. It argued that it approach of legal aid were established. like increasingly dominated the lives of the should administer all civil legal aid – to safe- At first the Law Society, mindful of its poor. Democratic accountability of state- guard independence. The government, un- members, dug in its heels and resisted the funded services was reduced through pri- willing to take on the Law Society, conceded. advent of Law Centres. It relied on practice vatisation and quangos. Unemployment was There were few solicitors (under 30,000) rules that were blatantly anti-competitive used to keep down militancy. Institutions on in England and Wales. They were divided be- and it took a beating. After that its hostility which poor people traditionally relied for tween the City lawyers (fabulous fees), in- changed to support as it became apparent protection (trade unions, tenants’ organisa- house lawyers and high street practitioners that the new public interest in legal rights tions, local councillors etc.) were weakened. (conveyancing, probate, small businesses and was creating more work for solicitors. Above all the Tories bore down on public some litigation). These last became the The Thatcher government of the 1980s spending. They were not called ‘neo-liberals’ providers of legal aid; both criminal and civil. promised deregulation for the rich and pow- then, but they aimed to keep the UK com- In practice, legal aid meant no real attempt to erful. It tried (unsuccessfully) to remove sub- petitive for inward investment through low branch out beyond the well-tried areas of stantive legal fetters on big business and taxation (cuts in public services), a compliant crime, matrimonial and personal injury. (more effectively) to cut enforcement mech- labour force and fiscal policies later en- Putting right the injustices of the world shrined in the convergence criteria of the was low on solicitors’ priorities. Their edu- Maastricht Treaty. As a result people were cation, social background and working prac- forced increasingly to individual court action, tice taught them to think like employers, and so to legal aid, to solve problems for landlords and business people. They did not which traditionally they would have found conceive of employees, tenants, social secu- redress elsewhere. The uncapped legal aid rity claimants, immigrants, ethnic minorities, budget simply grew. So, with increasing com- gays and lesbians, disabled people, women plexity of regulation, so did specialisation or anyone out of their social class as having among legal aid lawyers. This development much in the way of rights or even as deserv- of legal services was uneven. It varied from ing them. Solicitors were unapproachable; city to city and outside big conurbations not people to whom such sections of society there still exist what they call ‘advice deserts’. would turn in a crisis. Meanwhile the Law Society, hitherto re- All this changed in the 1970s. Graduates garding the Tories as its friend, was forced came to law school questioning everything. (partly by pressure from ‘consumers’), to give Meanwhile claimants’ unions were cam- up its conveyancing and probate monopolies paigning about social security rights. Coun- and to relax restrictions on advertising and cil tenants were staging rent strikes. Squatters charging. Administration of legal aid was were fighting bailiffs. Suspects were expos- transferred to the Legal Aid Board. Similarly, ing the police for planting drugs. Groups of there was relentless pressure on the Law So- migrant workers joined unions and took in- ciety’s failure to police its members’ shoddy dustrial action. Women’s refuges appeared. work. The reforms caused by this continue Lawyers were forced to question old ways of even now.

32 Socialist Lawyer July 2007 For the Tories the main problem with a stricted to defined categories of problem. faced calls for a boycott enthusiastically ap- demand-led legal aid scheme was that the • The not-for-profit advice sector was fran- plauded at meeting after meeting. But it budget was potentially limitless and ap- chised to provide services. Many law cen- heeded instead claims from the LSC, liber- peared to be getting out of control. They tres had by this time lost their grant ally distributed among all involved, that a grappled with notions of ‘gate-keeping’ but funding and were forced to turn away from boycott would breach competition law. As found no solution. Bureaucratic means were their traditional role as community organ- regulator it advised members that a boycott adopted to control costs; financial eligibility isations into ‘outlets’ of the LSC franchise would breach competition law and breach- rules were tightened, then tweaked a bit and (see Kathy Mead and Clara Connolly on ing competition law was unprofessional con- sometimes, in response to protests, relaxed. previous pages). duct. Thus was lost an opportunity for the There were changes in the scope of services • Providers obtained access to free training Law Society with the support of the whole available. Green form extensions were and specialist support services. legal profession and the public to save legal closely policed. Legal aid (public funding) • Local legal services partnerships were in- aid and recover some of its past respect. became more restricted. troduced without a clear role. Their char- For decades the Law Society’s profes- A corps of reliable and committed private acter and success varied. The LSC has now sional rules and their application have been legal aid practitioners was built up. But far abandoned them. Some survive unsup- attacked as an abuse of monopoly power or too many solicitors’ continued to ‘dabble’. ported by the LSC. as a fetter on free trade. Each time the Law The culture persisted of misdefining legal We are now in the second phase of New Society has retreated (probably correctly). problems of the poor as simple, soluble by Labour ‘modernisation’. Retreat in the face of the magic word ‘com- common sense and not worth the trouble of Research suggests that when you lose petition’ has become a reflex. Unfortunately privately funded work. Increasing demand your house, or your job, or your spouse, it no longer appears capable of sustaining the for legally aided work made it easy to estab- problems amenable to legal solution arise in integrity of solicitors (and the rule of law) lish a practice. On any view of solicitors’ “clusters”. So housing, employment, family against the ideology and greed of the market. conduct rules, the abysmal quality of some law, welfare rights and debt are being reborn The legal profession as a whole and the work was professional misconduct. But users as ‘social welfare law’. It is not clear why Law Society in particular must get a grip on were for the most part in no position to make these clusters of problems are not deemed to the issue of standards. There may have been effective complaints. The Law Society, torn arise in the wake of problems with immigra- an era when qualifying as a solicitor and be- between its representative and regulatory tion, community care, mental health, educa- having as a gentleman were accepted. It may roles, failed to take action to improve stan- tion, criminal charges, personal injury and be that nowadays market forces are sufficient dards. Immigration, an area of legal service complaints about public authorities. for the rich and powerful to get the service in which there was no monopoly and the only form of regulation was by the Law So- “It’s time to stop ciety, was notorious for its poor standards. The Labour government legislated for a apologising for system of regulation in 1999. The Legal Aid Board addressed this with extremely unpop- being lawyers. ular bureaucratic devices (transaction criteria and file reviews in which quality was mea- It’s time to get out sured largely by tidiness of files). With New Labour in 1997 came (in- of the courtroom evitably) a New Vocabulary – Community Legal Service, Legal Services Commission, and onto the Community Legal Service Partnerships, Legal Help, Help at Court, Public Funding, streets” Shami Access to Justice, Social Exclusion, Fat Cat Chakrabarti Lawyers. And not just a New Vocabulary: • The standard of work was tackled through So all access to ‘social welfare law’ is they want. It may also be that the middle file audits. These are essentially market through a CLAC or a CLAN in each area classes will now get the standards they seek mechanisms – purchaser-imposed stan- (see Carol Storer on p22). For those CLACs as a result of new regulatory arrangements. dards. The LSC is no longer buying an ir- or CLANs that consist of several organisa- But the regulation needed in the legal aid reducible minimum standard of service. It tions the LSC wants only one ‘lead contrac- sector, paid as it is at anything between a is bartering standards in a market place. tor’. The other categories of law will be tenth and a third of private sector rates, is This is why the independence of the new covered by separate contracts. Big suppliers mainly of standards of work. The standards peer reviewing process (already identified (who can cut unit costs) will be at an advan- must be set not by the LSC, not by Tescos as too costly) must be defended. tage. The effects on ethnic minority suppliers and Capita (reputedly waiting in the wings • The increasing budget was dealt with at a (and supply) have not been measured.When for opportunities to bid for CLACs and stroke by capping it. This has been the – it is inevitable – the legal aid resources CLANs), but by the legal profession itself. most damaging change. While government available in an area are insufficient, whether The cost of peer reviews must continue to creates ever more criminal offences plus in quality or in quantity, the government will be borne by the Legal Aid Fund. Peer re- new powers and procedures for dealing blame local CLACs and CLANs. viewers should be employed independently with criminal, terrorist and anti-social be- The plans involve competitive forces of the LSC, preferably, if they show them- haviour, criminal legal aid costs more. So which will favour those who provide the selves equal to the task, by the professional similarly does public law children’s work. skimpiest service, with only the exhortation bodies. The whole legal profession should be The rest of civil legal aid has suffered. Par- of peer reviews exerting pressure for im- refusing to allow this travesty. It should not liamentary procedures now exist for evalu- provement; and ever closer designation by simply be left to the judiciary to decide in the ating the effect of legislation on Legal Aid. government and the LSC both of what rights judicial reviews that have started. But there is no guarantee that the resources will be enforced and of the extent to which Even Lord McKay, the Tory lord chancel- will be available to cope. they will be enforced. It is, in fact, a recipe for lor, promised institutional safeguards against • Large practices with specialist ‘casework- executive influence over judicial processes. abuse by government of its position over ers’ supervised by qualified lawyers were The opposition to the plans was unprece- legal aid. If it was good enough for him it encouraged. dented. There was a chance to stop the plans should be good enough for the current sec- • Public funding was removed from personal in March 2007 with calls for a collective re- retary of state for justice. injury claims and where contingency fund- jection of the LSC’s unified contract. The ing was available. Law Society got legal advice which said, in Jamie Ritchie is a solicitor at Brent • Legal Help (and legal aid generally) was re- effect, “don’t sign this dodgy contract” and Community Law Centre.

Socialist Lawyer July 2007 33 THE TOTALITARIAN REGIME Picture: Jess Hurd / reportdigital.co.uk OF CASE THE PERPLEXING 34 O that theSaudithreats hadincreasedfurther. fighter aircraftinAugust2006. further £10billionEurofighter dealfor72 government ofSaudiArabiawas agreedfora standing betweentheUKgovernment andthe Yamamah deals,amemorandum ofunder- rupt paymentsinordertosecurethedeals. spread concernsthatBAEmayhavemadecor- were initiallyenteredintotherehavebeenwide- provided byBAE.Sincethetimethatthesedeals actual hardware,servicingandtrainingisall ernment togovernmentbasis,althoughthe not cash.TheAlYamamah dealsareonagov- associated servicesareandwerepaidforinoil, cluded servicingandtraining.Theaircraft As wellasactualhardware,thepackagein- tively knownas“AlYamamah” (‘thedove’). ground attackaircraft.Thesedealsarecollec- Arabia forthesupplyofTornado fighterand value armsdealswiththegovernmentofSaudi UK taxpayertopickupthebill. under theAlYamamah armsdeal–leavingthe companied bythreatstodiscontinuepayments diplomatic cooperationwereapparentlyac- investigation wascalledoff.Threatstosever UK withvariousconsequencesunlesstheSFO ment leaks,thattheSaudiswerethreatening widely reported,basedonnumerousgovern- running uptotheannouncementithadbeen rage andresignedexpectation.Intheweeks Systems PlcandtheSaudiArabianregime. ruption surroundingthedealingsbetweenBAE

by Jamie Beagent I By 2ndDecember2006,itwasbeing reported Aside fromongoingpaymentsunder theAl In 1985/6and1988,theUKsignedhigh The decisionwasmetwithamixtureofout- H RSMANUFACTURER, ARMS THE Socialist Lawyer AND THEPUBLICINTEREST allegations ofbriberyandcor- continuing itsinvestigationinto Fraud Office(SFO)wasdis- Parliament thattheSerious Attorney Generalannouncedto n 14thDecemberlastyearthe G July 2007 The Daily Telegraph the two-yearinvestigationtoaclose the axein10daysunlessheintervenestobring “Tony Blairhasbeentoldthatthedealfaces lose a£10billionEurofightercontract” vestigation intothecountry’s armstrade–or has givenBritaintendaystohaltafraudin- accounts. preparing toflySwitzerland to inspectthe cember 2006forensicinvestigators were brink ofthebreakthroughitneeded. InDe- vate bankaccounts. tioned aswellthetransferoffunds intopri- air travelforSaudiofficialsandroyals aremen- did of whatwedidn’t spenditonthanwhatwe BAE. Gardinerhadsaid:“ that hehadspent£60milliononbehalfof whistle-blower PeterGardiner, atravelagent, vember 2004followingallegationsmadeby more embarrassinganddamagingrevelations. tion lookedtobeonthevergeofunearthing teetered inthebalanceandSFOinvestiga- the recentlyannouncedEurofighterdeal an attempttohavetheinvestigationhaltedas that BAEthemselveswerelobbyingintenselyin man linkedtotheSaudiroyalfamily. Swiss accountslinkedtoWafic Said,amiddle- ments fromBAESystemshavebeenfoundin ported “legalsources”sayingthatsecretpay- 29th November2006 mission paymentsallegedlymadebyBAE.On would haverevealedthedestinationofcom- to obtainaccessSwissbankaccountswhich sure appearedtobethattheSFOwasabout The investigationnowseemedto beonthe The SFOinvestigationhadbeguninNo- At thesametimeitwaswidelyreported The catalystforthisincreaseinSaudipres- .” Luxurycars,schoolfees,apartmentsand reported that“ The Guardian It’s moreaquestion Saudi Arabia .” had re- and deafening. impact onrelationswithanother statewas statement’s silence onthequestionof significant presscoverageatthis time)butthe losing theEurofightercontract was receiving from thenationaleconomicinterest (theriskof persons involved State ortheidentityofnaturallegal potential effectuponrelationswithanother tions ofnationaleconomicinterest,the tion, fromtakingintoaccount:“… prosecuting instancesofbriberyandcorrup- tory states,whenconsideringinvestigatingor 5 oftheOECDConventionprohibitssigna- on 17thDecember1997.Specifically, Article bribery Convention,whichtheUKhadsigned national obligationsundertheOECDAnti- been takeninaccordancewiththeUK’s inter- have beentointimatethatthedecisionhad interests ortothenationaleconomicinterest. that noweighthadbeengiventocommercial public interest”. maintain theruleoflawagainstwider had been“necessarytobalancetheneed national andinternationalsecuritythatit of theSFOconcerningneedtosafeguard made totheAttorneyGeneralandDirector have beentakenfollowingrepresentations Attorney General.Thedecisionwassaidto vestigation wasannouncedbytheSFOand activity thatthedecisiontodiscontinuein- ing aflurryofdiplomaticandministerial-level The SFOexplicitlydistancedthe decision The reasonforthisstatementappearsto The SFO’s shortannouncementdeclared It wasagainstthisbackgroundandfollow- ”. considera- Tony Blair’s confession that he took full re- sponsibility for the decision seems to fly in the face of the Attorney General’s line that he had invited the views of ministers under the well-es- tablished Shawcross procedure: “I’m afraid, in the end, my role as Prime Minister, is to advise on what’s in the best in- terests of our country. I have absolutely no doubt at all that the right decision was taken in this regard and I take full responsibility.” Blair once again affirmed his position to the House of Commons following the recent em- barrassing revelations in The Guardian and on Panorama that multi-million pound payments had been made to Prince Bandar of Saudi Arabia from a Bank of England account under the joint control of BAE and the MOD. Re- sponding to a question as to why this informa- tion was withheld from the OECD, Blair stated: “If he wants to blame anyone for this he can blame me, and I’m perfectly happy to take responsibility for it.” Picking through these confusing and, in sig- nificant part, contradictory statements seems to lead to only one realistic conclusion: that conclusion at this juncture. however it is dressed-up, this was a decision If there were other factors, beyond the evi- that was taken under extreme duress from dential burden of proof, which the Attorney Saudi Arabia and that effectively the UK had General considered would prevent a success- been blackmailed by one of the more corrupt ful prosecution, then it begs the question as to and backward states in the world (the human why the investigation was not discontinued rights situation in Saudi Arabia is described by earlier before enormous resources were put Amnesty International as ‘dire’ with no politi- into trawling through the evidence. It was not cal parties, trade unions or free press and with as if this was the first time that the Attorney women disenfranchised and widely reported General had considered the question of use of torture and extra judicial killings) into whether the investigation should be continued. discontinuing an investigation into corruption Following lobbying from BAE, the Attor- and that all of this was done in breach of the ney General had apparently conducted a UK’s international obligations. Shawcross exercise and “consulted” ministers, An indication of where the primary concern The Attorney General’s significantly longer including Blair, in January 2006. He concluded of Blair’s may actually lie can perhaps be as- statement to Parliament did make explicit ref- that: “it was not possible at that stage to say certained from his often repeated refrain when erence to the OECD Convention but seemed to whether the evidential test for a prosecution discussing the decision: “[leaving] aside the contradict itself on the key question of whether would ultimately be met but he was satisfied fact that we would have lost thousands of UK considerations of the potential effect upon re- that there were proper and sufficient grounds jobs”. lations with another state had been taken into for the SFO to continue the investigation”. The decision has drawn criticism from account: “…continuation of the investigation What exactly had changed between January amongst others the OECD itself, the govern- would cause serious damage to UK/Saudi se- and December 2006, save for the sudden ad- ment’s of the USA and France, F&C Asset Man- curity, intelligence and diplomatic co-opera- vance in the investigation leading the SFO to agement (one of the UK’s biggest institutional tion…“ then: “Article 5 of the OECD the brink of studying the Swiss bank accounts? investors) and a wide range of national and in- Convention… precludes me and the Serious The Shawcross procedure for determining ternational NGOs. The overwhelming view is Fraud Office from taking into account… the the public interest in proceeding with a prose- that the UK gave in to political pressure and that potential effect upon relations with another cution makes it clear that the Attorney General its capitulation to Saudi Arabia amounted to a state, and we have not done so.” “may consult with any of his colleagues in gov- breach of the OECD Convention. Embarrassingly for the government, the ernment…. The responsibility for the eventual This is certainly the view taken by Corner head of MI6, whose “agreement with the as- decision rests with the Attorney General, and he House Research and Campaign Against Arms sessment” of the Attorney General and (the is not to be put, and is not put under pressure Trade (CAAT), the two campaigning NGOs then Prime Minister) Tony Blair on the ques- by his colleagues in this matter.” presently bringing a judicial review of the deci- tion of national security was expressly referred However, following the formal announce- sion to discontinue the investigation. The two to in Lord Goldsmith’s statement, was subse- ment of the decision to drop the investigation, NGOs acted quickly, sending a letter before quently reported to have refused to sign up to Blair was keen to throw in his two pennies claim on 18th December. the government dossier which had been pre- worth and take full responsibility for the deci- The basis of the legal challenge is that the sented to the SFO. sion. He could not have been clearer that the decision to end the investigation into BAE was In an attempt to do a ‘belt and braces’ job UK’s relations with Saudi Arabia were at the taken in clear breach of the UK’s international in justifying the decision, the Attorney General heart of the decision to drop the investigation obligations under Article 5 of the OECD Con- also made the astonishing statement that it was when he made a statement to the press on 15th vention since it is apparent that it was the de- his view that “there are obstacles to a success- December: “Our relationship with Saudi terioration in relations with another state ful prosecution so that it is likely that it would Arabia is vitally important for our country in (Saudi Arabia) that was the true motivating not in the end go ahead”. This conclusion was terms of counter-terrorism, in terms of the factor behind the decision and not any specific reached before the evidence of the Swiss bank broader Middle East and in terms of helping threat to national security. accounts had been considered and after an in respect of Israel-Palestine – and that strate- It is a well established principle of English enormous amount of time and resources and gic interest comes first. If this prosecution had public law that where a public authority an- been put into securing the disclosure from the gone forward all that would have happened is nounces that it will comply with an international

Swiss banks. It seems entirely irrational that we would have had months, perhaps years, of obligation when making a decision or that it has L the Attorney General could have reached this ill-feeling between us and a key ally.” taken into account such obligations when taking

Socialist Lawyer G July 2007 I 35 L its decision then the Court will review the deci- conduct proved to be obstructive in the ex- sion for compliance (R-v-SSHD, ex parte Laun- treme. They refused to cooperate on any level der [1997] 1 WLR 839). “The decision to end in revealing the source of the email, refusing to The National Security argument itself seems provide unredacted copies of the email with to be purely a smokescreen. It is common the investigation into the routing information, stating that the email ground that bribery and corruption are causes was unsolicited and insisting that CAAT had of international crime and terrorism. In Blair’s BAE was taken in clear no right to any further information. own words at the G8 summit in St Petersburg, breach of the UK’s They clearly expected this to be the end of 2006: “Corruption threatens our shared the matter and, it seems, must have considered agenda on global security… we recognise that international obligations that CAAT did not have the resources or the corrupt practices contribute to the spread of will to pursue the matter. BAE insisted that organised crime and terrorism.” under Article 5 of the CAAT’s demands for this information were The academic commentators on the OECD baseless and that any attempt to bring pro- Convention take the view that there can be no OECD convention” ceedings would be met with an application for national security exemption, or if one must be costs – a not insignificant threat given BAE’s read into the Convention it could only be con- that any clue as to the source and passage of vast resources and the involvement of expen- strued in the most narrow terms. Presumably, the email was removed. sive City solicitors. such a scenario might be where there was a This was a bombshell that threatened to Unfortunately for them, BAE misjudged the bomb ticking under Parliament and the black- derail the judicial review. CAAT’s ability to situation. CAAT’s legal team decided to pursue mailing state concerned had vital information consult freely and openly with their legal team the matter on a no-win, no-fee basis and insti- as to its whereabouts. Although such a real and had apparently been compromised either by a gated injunctive proceedings to compel BAE to present threat to national security ought only mole or moles or by an external spy who had say where they had got the email from. CAAT lead to a temporary exception to the general the ability to hack into the internal emails of invoked the ‘Norwich Pharmacal’ jurisdiction obligation. the NGO. This was particularly distressing and (more commonly used by large businesses to It is also widely acknowledged that the divisive for CAAT which is a non-hierarchical protect their intellectual property) arguing that regime in Saudi Arabia is effectively propped organisation that bases its decision making on they were victims of wrongdoing and that BAE up by the Western powers and needs us more trust and a communal approach. were mixed-up in that wrongdoing and ought than we need it. Is it seriously being suggested It was also not the first time that CAAT had therefore to be compelled to give up any in- by the government that any important security found themselves in this position. In September formation that they had about it. information will not reach us via the US? The 2003, the Sunday Times had published arti- In an important breakthrough, CAAT were government’s embarrassment at the refusal of cles alleging that BAE had paid a company to also successful in arguing that they should be John Scarlett of MI6 to sign up to the dossier infiltrate CAAT and collect information about granted the benefit of a protective costs order apparently presented to the Director of SFO its workings and activities. Following further (PCO) in these private law proceedings be- gives a further hint that the national security investigation by CAAT it had transpired that cause the apparent spying seriously compro- argument may not actually be all that it has one of their most trusted and long-standing mised their ability to run the judicial review been dressed up to appear. staff members was involved in the spying. proceedings which they were bringing in the These are questions which the Court ought CAAT had put these damaging revelations public interest. This PCO meant that CAAT’s to consider – with the aid of a special advocate behind them but once again, and at a critical potential exposure to adverse costs was lim- representing CAAT and Corner House if it is point while bringing the legal challenge to the ited to an affordable level and that BAE’s threat necessary to delve into security sensitive infor- discontinuation of the investigation into BAE, of costs no longer had the chilling effect that mation. it seemed that it had fallen victim to spying and was intended. However, before the government had even that its ability to properly conduct the judicial Having already obtained an injunction en- responded to the letter before claim, events review had been compromised. There was a suring that BAE could not destroy any evi- took a dramatic turn which would shed light real risk that BAE may have access to confi- dence, BAE continued to fight the application on the murky world of international arms deal- dential communications relating to the pro- tooth and nail, turning up at the full hearing ing and the activities of the far right. posed legal proceedings to which they were a with two silks and insisting (though without On 10th January 2007, CAAT’s solicitors party and, of course, had a critical interest in producing any evidence as to how they had received a letter from Allen & Overy, BAE’s so- the outcome. come into possession of the email) that they licitors, enclosing the print out of an internal It was of course perfectly proper behaviour were not mixed-up in any wrong-doing. CAAT email distributed to members of the or- for Allen & Overy, once they became aware Mr Justice King thought otherwise and in ganisation’s steering committee and which con- that their client was in possession of privileged tained sensitive and legally privileged material. material belonging to CAAT, to return the doc- The short accompanying letter stated that BAE ument to them. However, BAE’s subsequent had “recently received electronically [the email]…..This email was not solicited by our client.” The email as returned had also been redacted to remove the routing information so

36 I Socialist Lawyer G July 2007 granting Norwich Pharmacal relief in a judg- BAE at 6.23 am on Tuesday 2nd January, the and submitted to the High Court on 19th April ment dated 26th February 2007, ordered that first working day after the Bank Holiday. 2007. BAE produce an affidavit disclosing all they What Mercer now revealed was that he had Matters have moved on since then and the knew about the receipt of the email and to pro- received the email anonymously by post on an Court has made a preliminary decision on the vide CAAT with full unredacted copies of the otherwise blank CD-Rom. Mercer says that he papers on the question of whether to grant per- email. He characterised BAE’s conduct of the collected the package from his newsagent drop- mission for the judicial review to proceed. In litigation as “obstructing justice”. These pro- off address on the Saturday morning. Therefore, an Order dated 29th May, Mr Justice Collins ceedings are still afoot but there was a further the email must have been burnt onto the CD in took the view that the government’s pleading of significant twist to follow as BAE’s affidavit re- a narrow window between the sending of the national security was a trump card. He did not vealed where the email had come from. email and last post on the Friday and then must accept the academics’ interpretation of Article The affidavit prepared by BAE’s Security have successfully negotiated the Christmas/ 5 of the Convention and refused to be drawn Director revealed that the email was sent onto New Year period post to arrive at Mercer’s drop into permitting the Court to review the pur- them by one Paul Mercer. Mercer was retained off address the following morning. ported compliance with it in accordance with by BAE under a contract to provide them with Further investigations of the CD-Rom the principles in Launder. “media services”. For the tidy sum of £2,500 showed that all of the meta-data (the codes on However disappointing Collins J’s approach per month, he was required to provide BAE the disk which show, for example, the author is, this is not the end of the matter. The Corner with “general information about the activities of a document) had been removed. All that is House and CAAT have renewed the applica- being undertaken by protest groups and about except the time of burning (about 5.50 pm) tion for permission and it will now be consid- any specific threats to [BAE]. “Under the terms which conveniently fitted the small window of ered at an oral hearing in the coming months. of the contract, he was not to provide BAE possibility whereby this delivery of the email They and the legal team behind them are opti- with information that was illegally obtained or could have taken place. mistic that the Court will be persuaded to allow that was not publicly available, but was per- Mercer, for his part, confirmed that the CD- a full hearing of the claim. mitted to use “human sources” to obtain in- Rom was the only item in the envelope deliv- The recent revelations about the potential formation, a polite euphemism for spies or ered to him and that he could not recall what complicity of the highest levels of UK govern- agents. the post-mark on the envelope was. ment in the previously secret multi-million Paul Mercer is an interesting character. Obviously this was a far from satisfactory pound payments to Prince Bandar had not Media reports since his role in the affair conclusion for CAAT as the trail seemed to come to light at the time that Collins J was con- became public, suggest that he was a close have gone cold. However, having established sidering the question of permission. These alle- friend of the Tory shadow defence secretary from Mercer that this was the only occasion gations add further to the shady background Julian Lewis MP. Reports also linked him to a on which he had received confidential infor- to the decision to drop the investigation and the number of extreme right wing organisations mation belonging to CAAT, that he had other- convoluted and often contradictory statements and he has acknowledged that he used to wise only ever supplied publicly available emanating from the key players in the decision. spend a lot of time with campaigning NGOs in information regarding CAAT to BAE and It is time for the Courts to flex their consti- his role as a “journalist” and “photographer”. upon obtaining undertakings from him that he tutional muscles and review one of the most He was certainly extremely hard to locate and would immediately inform CAAT if such in- controversial prosecution decisions of recent contact – his only publicly available address formation came to him again, it was felt that years, a decision which has damaged the UK’s being a mail drop-off at a newsagents. CAAT had done all it could in these circum- international standing and its reputation in the Armed with this information about the role stances to prevent the risk of a future leak of fight against crime, corruption and terrorism. of Mercer in supplying the email to BAE, privileged information to the parties to the ju- CAAT embarked upon a further set of injunc- dicial review. CAAT duly settled the proceed- G Jamie Beagent is a solicitor at Leigh Day & tive proceedings to compel Mercer to reveal ings with Mercer on these terms. Co who act for The Corner House and what he knew about the source of the email. Whilst these ancillary proceedings had been Campaign Against Arms Trade in their judicial An ex parte injunction was obtained and, after pursued the judicial review was necessarily put review of the Serious Fraud Office. some difficulty in tracking him down, he was on hold. Outline proceedings were issued on a Regular updates on the judicial review can be served. holding basis on 23rd February 2007. How- obtained from the following websites: Compelled by a Court order to produce an ever, with resolution of the proceedings against www.leighday.co.uk affidavit himself, Mercer presented a remark- Mercer and with additional securing arrange- www.thecornerhouse.org.uk able story as to how the email came into his ments in place between CAAT and its legal www.caat.org.uk possession. team, the judicial review claim was finalised The email had been sent by CAAT’s parlia- mentary coordinator to an email list managed through an (apparently) secure mail-server, at 17:09 on Friday 29th December shortly before close of business for the New Year bank holi- day. We already knew from the unredacted email that Mercer had sent the email on to

Socialist Lawyer G July 2007 I 37 on a bed dying in March 2006. She was the Last November, a Haldane delegation visited 122nd death in opposition to isolation. Behic Asci went to all 122 funerals. We are shown a Turkish lawyer Behic Asci. Azam Zia reports video of him making a statement after his 75th day on death fast. He lists all the medical defi- ciencies that result from isolation: restriction of vision, hearing damage, viral infection, nerve damage, premature menopause, sleep problems, TAKING hallucinations, extreme emotional problems. At the People’s Law Bureau, where Behic used to work, we meet XXXX (name withheld). She is a gentle lady, with laughing eyes and a A STAND lovely smile. She has severe disfiguring chemi- cal-type burns covering her head, around her eyes and arms and on the back of her hands. She The Turkish government has long faced protests against the inhu- was in Bayram Pasa prison during the December man condition in which many of its prisoners are kept. The voices 2000 crackdown. they most want to silence are the political prisoners, who have “At the time I was staying in a large dormi- been protesting against isolation, assaults, deaths in prison for tory in Bayram Pasa. Early in the morning we many years. In 1999-2000, in an attempt to control and abuse pris- heard bombs going off and the sounds of ma- oners, they built eleven F-type prisons, where prisoners are kept chinery, They were trying to tear the walls isolated, from each other and from the outside world. Since then, down. From the rooftops nearby security prisoners have been starving themselves to death in protest at forces started shooting grenades, gas grenades. these conditions. After watching 122 of his clients die, lawyer Behic We tried as best we could to hide, we put our Asci (right) embarked on his own eight months long hunger strike, heads under the beds to escape the fumes. We ended his fast after the government agreed more relaxed rules. soaked cloth in water to use as masks to assist our breathing. We knew that the state was ca- n 13th November 2006 Kezban On 20th October 2000, hunger strikes pable of anything, from past experience we Bektas went to the press centre began, started by 100 prisoners spread over 25 knew. But on this occasion the state didn’t in Ankara to make a statement prisons around Turkey. On 19th December, even issue a warning. There was a lot of gas, a about Behic Asci to get publicity normal prison guards were removed. Thousands lot of gas. People were truing to get to the win- for his cause. She said very of soldiers were brought in to transfer the pris- dows to breath but the guards would get even simply, “I have to try, I do not oners into the new F-types. 8335 special troops more volatile if they did. The guards were Owant things to be worse for my children”. She were used. Chemical bombs were used unlike shooting at people. Holes were put in the roof was arrested and has been detained since 13th anything anyone had seen. Many prisoners were and these were used to put gas grenades in. It November 2006. No formal charges have been killed by gunshot wounds. Survivors had injuries is hard to describe what gas it was, but people put, but she faces a court appearance, before a ranging from chemical burns and smashed eye were losing control of their reactions. There judge or panel of judges. No hearing date has sockets to paralysis. Soldiers set fire to Bayram were violent convulsions among inmates. At yet been set. She has representation, she has been Pasa Prison while prisoners were still inside. Pris- least 300 of these grenades were thrown in.” visited by her lawyer. He says she has been very oners were forced into the F-type prisons, which, “We tried to get down to the dining hall, we badly beaten. Kezban Bektas is 70 years old. while structurally complete were not yet all were suffering effects from this new type of The first F-type prison was introduced in equipped with utilities like heating. bomb, I am unsure about time. The attack 1996, Eskisehir Prison. Over 70 ‘trial prison- The state declared the protest quashed, but in started at 5am at about 12:00 midday we tried ers’(on remand) accused of membership of 2001 the protest escalated to outside the prison to escape downstairs, we didn’t try before be- banned political parties went on a death fast in in a show of solidarity that was not so easily cen- cause it is near the doors and the hall and it protest. The hunger strike went on for 69 days. sored. Members of Tayyad (Friends and Family would be easier to bomb us from there.” Unlike later death fasts, people did not take vit- of Prisoners) started a hunger strike outside “All this was done by the military police, amins, so deterioration was quicker. There were prison. 12 members died. At the same time, the gendarmes. It was more a military opera- two waves, the second starting when the initial hunger striker Arzu Guler had been released tion. They were making holes in the roof to fasters were on their fortieth day. The first to die from prison on condition that she ceased her throw gas bombs in. These were special troops, was Aygun Ugar (“trial prisoner” on remand) protest. She stayed with members of Tayyad but not normal prison guards.” on the 63rd day. Another died on the 65th day, continued her death fast in protest of the isola- “Then they dropped a second type of gas two more on the 66th day. The last was Hayati tion and torture of her fellow inmates. On 5th bomb in, lowered in a special type of cage. At Can who on the 69th day, died on the way to November 2001 hundreds of military police at- first the gas was grey then it came out as black hospital. It was one of the few times the gov- tacked the house she was staying in. Four people smoke. Then people started to die. Six women ernment ever gave in to prisoner protests. In died, including Arzu Guler. They were beaten died. The place started to fill with smoke, so total, eleven men and one woman had died. unconscious, and executed with a shot to the much we couldn’t see. There was no fire at this Ahmet Sarran, a school teacher, arrested for head. No investigation was ever launched. No point, just smoke. I got to my feet and got to a having five copies of a legal magazine, was im- policeman was ever brought to trial. window. I was looking at my hands, my skin prisoned in Ulucanlar Prison (also known as The hunger strikes have continued since was melting away, it was almost as though it Ankara Central Closed Prison) without trial for 2000. We saw footage of Fatima Koypur, lying was becoming transparent. I could see under over a year. In 1999 following a dispute between my skin. The skin on my head, my hair, my prisoners and prison guards, the normal guards forehead and my face were all affected, it was were withdrawn and special troops were brought burning peoples’ flesh. We tried to go down- in to settle the dispute. By the time they were fin- “They occupy prison stairs, then went back to rescue the people we ished, 10 prisoners had been beaten to death. Of realised were left behind. We couldn’t rescue the survivors many had extensively burnt flesh, cells which are six of our friends, who died as a result of the many had gunshot wounds. Ahmet Sarran was gas. The police burnt the prison to hide the fact one of the prisoners who died. The episode is specially designed so that the women had died from gas. They didn’t known widely as the Ulucanlar Massacre. that other inmates can’t care about the damage because the prisoners During 1999 and 2000 the Turkish Govern- that lived there were going to be relocated ment was considering its lack of control in pris- be seen – the speciality anyway. The injured were taken to hospital, ons. despite the earlier protests, they decided to everyone else was taken to another prison. It build the F-type prisons. of the F-type” was not clear who was dead, who was alive,

38 I Socialist Lawyer G July 2007 bodies were so badly burnt. The guards were torturing pregnant women. Nothing has laughing and taunting us saying, “We made changed. How can you expect justice under a your friends kebab, and we are going to make system like this? What kind of life can you you kebab. Prison staff are employed by Min- expect to live? The DHKP-C is banned be- ister of Justice, they are the normal prison cause we cannot do business with the govern- guards. But when the Gendarmerie came they ment. Mehment Acar, Jemel Gecek. We can were special trained, nothing to do with Min- not shake their hands. We cannot do business istry of Justice. They, like the security staff that with Bush. At the moment PKK would make normally surround the prison, were National deals with the Western governments if it Security Council employed. They got the would weaken Turkish government. This is a normal staff out before they started. When we disgrace. I would only support a Kurdish state came downstairs the fire department came and if there was a referendum with the Kurdish sprayed water on us. Our skin was damaged, people that that is what they want.” they did it to torture us further. I remember the We meet with the Modern Contemporary pain. After that was done they took us by force Lawyers group. and put us in isolation cells in another prison. F- “We are democratic socialist, left wing Types. They were only partially built, and had lawyers. We are part of the political opposi- no heating, even though it was mid-December. tion in Turkey. When Turkey tried to please I was in prison for eight years, suspected of the EU they changed the penal code. We were being a member of DHKP-C, I was never offi- campaigning to close down the state security cially charged, I was on remand all this time. I court, we thought we succeeded. Then they re- was released because there was not enough ev- opened it as the Severe Crimes Court. It’s ex- idence to convict. I was released in 2003.” actly the same. We tried to inform the public, We were shown a DVD of the attack on we wanted to make them aware. We refused to Bayram Pasa prison. There were images of the enter prison or court if we were searched. Our gendarmerie smashing holes in the roofs of pris- papers and clothes used to be checked. Female ons with sledgehammers. As the operation goes The aims of the protest are for the govern- lawyers were forced to change out of wired on inside, protesters outside are attacked. We ment to abolish F-Type prisons all together but bras. When the lawyers refused to go into are shown footage of a vicious attack on mainly it is thought that this needs to be done in stages. court judgement was given in their absence. female relatives of prisoners. We see a woman The first stage is to reduce and eventually abol- Always against the client. 80% of appeal cases on her knees being hit in the face with a rifle butt ish isolation. The Turkish state is denying that are decided before the hearing, no proper ex- while another soldier runs up and brutally kicks isolation exists saying that inspectors are al- planation is given for their decision, sometimes her in the face. We see soldiers stamping on the lowed to go in and inspect any time they want. none at all.” heads of unmoving women. Images of burnt, The government claims that F-Type prisons are The response from the international com- still bodies, pictures of gendarmerie dragging un- up to European standards. munity has been disappointing. Two reports moving women away, still beating them, of a In the house of one of the supporters of the were written by the Commission for the Pre- woman being dragged down the stairs by her death fast we were shown a shrine. There are vention of Torture. The first visit in 2001 said arms and legs a soldier leaning over and punch- many pictures of those that have died in the that F-Type prisons were up to standard. The ing her in the head. struggle, belongings, some as simple as a pen. second visit in 2004 said that isolation was far Once the F-type prisons were established, There is a pair of gloves knitted by one of them. more severe than was considered acceptable. It prisoners were isolated. They occupy prison cells We were shown ornaments of birds in cages, looked at both prisons and police stations, and which are specially designed so that other in- roses in glass and wooden boxes, all made by confirmed that the treatment of prisoners was mates can’t be seen – the speciality of the F-type. inmates. We visited Tayyad, and spoke to one harsh and isolation was extreme. Amnesty In- Prisoners are only allowed out for family or member who was a prisoner for 12 years in ternational tell us that there is currently no pro- lawyers’ visits. Prison abuse can go unwitnessed; Bayram Pasa prison from 1991 until 2000. After ject for the F-type prisons. There are rules they guards are unchecked. the December 2000 attack she was put into have to follow. They can’t work directly against In dormitory prisons, they could defend or Bakirkoy Womans prison. She was released the government. They can’t work directly for the at the very least witness an attack on a prisoner. three years later. She told us how Tayyad was Behic Asci case. Or the Turkish prison cases. In an F-Type it is impossible. They are alone. It mainly a support association for prisoners. After We gave a press conference under the Tayyad is considered worse for a non political prisoner the 1980 military coup, when a large number of banner. Three days after we left Turkey, there because they have no higher purpose to struggle people were imprisoned for their beliefs, families were raids on the Tayyad offices, ten offices of for. In some F-Type prisons, inmates do draw- and friends would gather regularly outside the HOC (a rights and freedoms association), on ings. Some prisons allow craft materials, some gates of the prisons. Routinely abused by prison Yuruyus (a socialist newspaper) and Ozan, who not. Some guards can be bribed, some not. staff, they united and formed Tayyad. They felt print for Yuruyus. Fifteen people were arrested Masala is a political magazine from Kandira it was necessary to take a stand against the bla- including the chairwoman of HOC. Three have Prison. They can be sent by post. Many times tant injustice. When Tayyad started it was rela- been released. they are confiscated, censored, from prison to tives standing by relatives who had been Behic Asci ended his fast in January 2007, prison, month to month, and subject to subject. imprisoned, increasingly as time passed it when the Ministry of Justice released a circular At the moment there are no restrictions for became idealists and activists who disagreed accepting that groups of 10 prisoners can come lawyers, they can visit their clients at any time. with the system. together for 10 hours a week without any con- The lawyers used to be subjected to full body As its reputation grew, the state pressure dition. There are still concerns about whether searches but after 2001, when the lawyers grew. Premises of Tayyad were raided and the government will uphold this circular, and protested about this treatment, the practice was sealed, members were arrested on suspicion of whether they will increase the freedoms of the stopped. There is a glass barrier between lawyer membership to banned political groups. Tayyad prisoners to 20 hours and more. But for now, in and client, and they can just about hear each continued amidst the pressure. honour of the 122 who have died and the hun- other with raised voices but there is no confi- Our guide was in the death fast in 1996 while dreds more who are disabled for life through the dentiality because a guard is always present. in Bayram Pasa. Tortured in prison he constantly death fasts, for the hundreds who are held on Behic protested after guards kept interfering and has pins and needles in his hands and is partially remand awaiting trial, and those who are con- interrupting his conferences with his clients. paralysed from the effects. When he was under- victed for standing for their beliefs, it is seen as There are currently 11 F-Type prisons with going torture they asked for information about a victory. I another opening soon. Women Political prison- his friends, they offered him a house and car. His ers stay in L-Type prisons, high security women’s torture continued because of his refusal. G Azam Zia is Associate Director of the prisons. They will be in solitary confinement. “In the 1990s the Justice Minister was Harvard Negotiation Insight Initiative based at Any one over 15 years old is charged as an adult. Mehmet Acar who was directly involved in Harvard Law School.

Socialist Lawyer G July 2007 I 39 Annual General Meeting

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