Lawyer SocialistMagazine of the Haldane Society of Socialist Lawyers n Number 58 l June 2011 £3

Inside: DEFEND INTERVIEW LEGAL AID: ‘T-PIMS’ – CONSCIENTIOUS THE WITH WOMEN CONTROL OBJECTORS RIGHT TO GARETH DEMAND ORDERS AND THE UK PROTEST PEIRCE RIGHTS LITE? MILITARYand more... Haldane Society PO Box 64195, London WC1A 9FD Website: www.haldane.org Contents Number 58 June 2011 ISSN 09 54 3635

News & comment ...... 4 Haldane talks, EDL in Luton, TUC in March, Blair’s legacy, Sedley’s send-off and more

Inquiringly like-minded ...... 11 Regular column from the Young Legal Aid Lawyers, with Connor Johnston

Kettling and criminalising protest ...... 12 Kat Craig on the use of increasingly violent and oppressive tactics by the police

Defending the right to protest ...... 16 Fiona McPhail on the recent rebirth of protest and the legal clampdown

The Haldane Society was founded in 1930. It provides a forum for the discussion and analysis of law and the legal system, both nationally and internationally, from a socialist perspective. It holds frequent public meetings and conducts educational programmes. The Haldane Society is independent of any political party. Membership comprises lawyers, academics, students and legal workers as well as trade union and labour movement affiliates. President: Michael Mansfield QC Vice Presidents: Kader Asmal, Louise Christian, Tony Gifford QC, Tess Gill, John Hendy QC, Helena Kennedy QC, Imran Khan, Kate Markus, Gareth Peirce,

Michael Seifert, David Turner-Samuels, Frances / reportdigital.co.uk Jess Hurd Picture: Webber and Professor Lord Wedderburn QC. Chair: Liz Davies ([email protected]) Interview: Gareth Peirce ...... 18 Vice-Chairs: Kat Craig (katherinec@ Majida Bashir andYasin Patel talk to one of the Haldane Society’s Vice-Presidents christiankhan.co.uk) and Anna Morris ([email protected]) US flops after leaks show ...... 23 Secretary: Chris Loxton Pablo Navarrete on WikiLeaks and the added strains on US-Latin America relations ([email protected]) Socialist Lawyer Editor: Tim Potter Tunisia in revolt ...... 24 ([email protected]) Russell Fraser reports from a delegation to meet groups at the heart of the revolution Treasurer: Declan Owens ([email protected]) Legal aid: women demand rights ...... 26 Membership Secretary (job-share): Catherine Briddick on an important new research report from Rights of Women David Renton ([email protected]) with Deborah Smith ([email protected]) ‘T-pims’: control orders lite? ...... 31 International Secretary: Bill Bowring Russell Fraser analyses the Government’s review of counter-terrorism ([email protected]) Executive Committee: Conscious decision ...... 34 Hannah Rought-Brooks, John Hobson, Lois S. Bibbings looks at the rights of conscientious objectors within the UK military Richard Harvey, Azam Zia, Rheian Davies, Margaret Gordon, Mike Goold, Owen Greenhall, ...... Carlos Orjuela, Ripon Ray, Kezia Tobin, Film and book reviews 37 Marcela Navarette, Brian Richardson, Lula, the Son of Brazil, Ricin!, Claims of Innocence, and Abuse of Process Russell Fraser, Marina Sergides, Simon Behrman, Dirghayu Patel, Sophie Khan, Editor: Tim Potter Printed by: The Russell Press Majida Bashir, Yoshihiro Bartlett-Imadegawa, Assisted by: Russell Fraser, Liz Davies, Joanna Gilmore, Robert Atkins, Anna Morris, Mike Goold and Kat Craig Martha Jean Baker, Charlie Dobson, Cover picture: Jess Hurd (Report Digital) Angus King, Omar Khan, William Dooley, Stephen Knight, Saleh Mamon. Many thanks to all our other contributors, readers and members who have helped with this issue.

2 Socialist Lawyer June 2011 from the chair Pictures: Ripon Ray Pictures:

March together, strike together

he 26th March 2011 ‘March for an alternative’ demonstration Mrs Whitehouse got a cheer as she told us that the best thing about was so big that many of us failed to find The Haldane Soci- her winning her appeal (which meant that she could stay in her home) ety’s banner. We still marched, and I was struck by how many was that the landlord had had to pay her legal costs, so that the public lawyers turned out. It’s new to see lawyers defining them- was not out of pocket. They were also clear that their problems – selves as public sector workers. which were often complex and required dealing with numerous statu- TThere’s also a new feel to the campaigns to save legal aid. Outside tory bodies – could not have been resolved without legal aid. Public the right-wing world of The Daily Mail, the ‘fat cat lawyer’ jibes are be- bodies – local authorities, schools, the Home Office – all benefit from ginning to disappear. Justice 4 All and The Law Society’s Sound Off legal advice. Unlike recipients of legal aid, those public bodies don’t for Justice are getting the message across that defending legal aid is get blamed for briefing expensive lawyers or creating litigation. not about defending lawyers, but about access to justice. The phrase Cutting legal aid makes the playing field even more unequal. ‘fourth pillar of the welfare state’ has resonance. Other public sector workers – teachers, civil servants and (most im- There were over 5,000 responses to the Green Paper ‘Proposals for portantly for us) Court staff – are being balloted for strike action on the Reform of Legal Aid in England and Wales’ – we can presume 30th June 2011 in defence of public sector pensions as I write. We the responses were overwhelmingly opposed to the proposals. Those hope that Haldane members will be able to support the strike and not who responded included Judges, MPs, the legal profession, advice cross picket lines. It’s tricky to balance our duties to our clients with our agencies, voluntary sector groups and individuals. At the time of writ- solidarity with Court staff and other public sector workers, but it’s one ing, the Government’s response is due to be published in early June that health professionals, teachers and other public servants have to and then the Parliamentary fight begins. We need to remain geared make all the time. up to lobby and campaign against the proposed £350 million cuts. Away from the main demonstration on 26th March, 200 demon- Haldane’s Commission of Inquiry into Legal Aid is due to report on strators peaceably occupied Fortnum and Mason and other retailers 14th June 2011. We hope that the report is well-timed. The Commission accused of tax dodging. The police seemed all sweetness and light: was organised jointly with our friends Young Legal Aid Lawyers. As set telling them they just had to wait until it was safe to leave. As the pro- out in Connor Johnston’s YLAL column on page 11, it comprised three testers left, they were surrounded, contained and arrested. Many of independent panelists: Dr Evan Harris, former Liberal Democrat MP, them spent over 24 hours in custody. The Court cases are on-going Diana Holland, Assistant General Secretary of Unite the Union, and but their treatment highlights the need for committed legal observers. Canon Nicholas Sagovsky, former canon at Westminster Abbey. They The Haldane Society provides legal observers for demonstrations, at have heard from practitioners, campaigning organisations and, most the request of the organisers. We are there to monitor police behaviour importantly, people who have benefited from legal aid and have also and ensure police accountability. We’re not there to police the demon- studied the case for cutting legal aid. strators: they are already being policed. We’re there to ensure that, At the Commission’s public session on 2nd February 2011, the where lawful rights of legitimate protesters are infringed, there is a record personal testimony from individuals who had been helped with family, and the police are held accountable. Anyone who is interested in vol- housing, education and debt advice, and with representation at an in- unteering, please contact [email protected] quest, was profoundly moving. Beneficiaries of legal aid acknowl- l Liz Davies, chair of the Haldane Society of Socialist Lawyers edged the responsibilities involved in spending public money: [email protected]

Socialist Lawyer l June 2011 3 News&Comment

Will the Lib Dems save the Anti-EDL protest in Luton Human Rights Act? raises wider questions

n 19th January, Conor Expression prior to the enactment he English Defence Right from the outset it was Gearty delivered the of the Human Rights Act. Conor League (EDL) returned clear that anti-fascists would not first of The Haldane suggested that the press have been to Luton, the location of be allowed to exercise their OSociety’s Human adversely affected by rich people Tits founding, on 5th freedom to protest unhindered. A Rights lecture series for 2011. The seeking to protect their privacy. February, to protest against what heavy police presence, including lecture offered up much food for These are stories which the press it claims to be Islamic Extremism. dogs and horses, surrounded the thought. The topic up for need to sell more papers and Previous EDL demos have railway station well before any discussion was ‘the Coalition cannot do without. descended into violence, with UAF protesters arrived. Government, civil liberties and Conor queried future Liberal minority communities being When they did arrive, UAF the law’, a subject addressed by Democrat commitment to targeted by marauding gangs of demonstrators managed to block Conor in Socialist Lawyer 57. maintaining the Human Rights football hooligans and assorted the arrival of EDL members by Conor’s lecture was a robust Act, citing the lack of Liberal fascists intent on causing as much train for over an hour. When the defence of the Human Rights Act Democrat indignation when it damage as possible. police decided to clear the station, 1998 against myths propagated came to the policing of the student When counter-demonstrations they crushed demonstrators by the popular and right-wing protests in autumn 2010 and the against the EDL have taken place in against walls and ticket gates, and press and Conservative proposals, dilution of their previously firm the past, the danger to anti-fascists then, once outside the station, driven by libertarian elements position against Control Orders. has tended to come not just from corralled them with horses into within the Tory party, for a so Recalling his own experience the EDL, but also from the police. Park Square. On two occasions a called British Bill of Rights. Conor of the interplay between the press, Despite their claim to be neutral large number of people left the relayed an anecdote of a former terrorism scares and the enacting peacekeepers, the police have acted main demonstration in Park child soldier who had been invited of counter-terrorism legislation in in a consistently heavy-handed and Square. Each time the police along to meet David Cameron at Ireland, Conor predicted that intimidating manner. It was in this response involved kettling – ‘for the launch of the Conservative before Christmas 2011 we should context that The Haldane Society your own safety’ – and Party’s human rights report. watch out for an Olympic and the Legal Defence & indiscriminate assaults. Having seemingly not been terrorism story which would serve Monitoring Group sent legal The treatment meted out to briefed by Tory press aides, the to exert further pressure on any observers to monitor the policing legal observers was varied. former child soldier unwittingly Liberal Democrat stance against of the Unite Against Fascism (UAF) Although legal observers were able caused embarrassment to David far-reaching counter-terrorism counter-demonstration in Luton’s to pass through police lines, some Cameron and Tory party policy legislation. Those who saw the Park Square. officers acted in an aggressive by thanking the Prime Minister front page of the Evening manner, at times attempting to and the meeting profusely, saying Standard on 31st March The EDL – intimidate with the use of that he would not be here in the 2011 would have noticed hooligans and ‘evidence gathering’ video UK were it not for the Human that this Olympics scare fascists. cameras, and using Rights Act 1998. story arrived somewhat physical force to Focussing on the press, Conor earlier than Conor had prevent the expressed his view that it is best predicted. observation of not to underestimate the l Tim Potter assaults on commercial interests sections of protesters. the press have in bringing down One redeeming the Human Rights Act. The press feature of the had not seemingly been aware of police’s conduct was Article 8 ECHR and had placed that it never fell to much of their attention on Article the level that 10 ECHR and Freedom of protesters have come February 9: Charles Taylor, the former Liberian 9: Lord Phillips of Worth Matravers, 10: MPs vote to continue the ban on 14: The Government’s consultation on President, boycotts his war crimes trial President of the Supreme Court, prisoner voting. The vote came after its green paper on legal aid funding in The Hague for a second day. The expresses concerns in a speech at the the European Court of Human Rights closes. In the hours before the day before his defence lawyer, University College London Constitution ruled that the UK Government had to deadline for responses closed, the Courtney Griffiths QC, had walked out Unit about judicial independence. Lord revisit the policy. A backbench motion Ministry of Justice website crashed of court after the Special Court for Phillips believes the funding of the triggered the ballot and, as such, the under the weight of submissions. The Sierra Leone refused to accept the Supreme Court by the Ministry of Justice result is not binding. The Government Government received over 5,000 defence’s final case summary as it had could compromise its independence. has until August to amend the ban. which the Labour MP Jeremy Corbyn been submitted nearly three weeks Justice Secretary Kenneth Clarke later described in Parliament as almost after the deadline. dismissed the suggestion. unprecedented.

4 Socialist Lawyer June 2011 News&Comment

to expect from certain other police mainstreaming of ‘alternative’ forces, particularly the Met. To Sedley’s rousing send-off law and lawyers – the law centre some extent this can be attributed movement (Sir Geoffrey to the different attitude of senior Bindman reminded us of his role officers in the Bedfordshire he farewell to Sedley defer to executive claims or to be in the founding of Camden Law Constabulary. Despite numerous which he described as corrupted by ambition or Centre), poverty, welfare, human assaults by police officers, and the an ‘interlocutory political influence, his intellectual rights and civil liberties lawyers. illegal detention of hundreds of Tfuneral oration’, on his honesty, and his determination to If the rule of law remains robust protesters and passers-by for hours last working day, 30th March ensure that unpopular minorities today, it is in large measure on end in Park Square, it did at 2011, was a great occasion, – whether defined by race, through his efforts. Sir Stephen, least appear that many officers although it could hardly do gender, class or way of life – are together with Lawrence Kaplan, accepted that the EDL should not justice to a judge of such stature. accorded respect and procedural compiled and edited Leveller be permitted to terrorise By 9.30, all the benches in the and substantive justice – make John Warr’s work A Spark in the communities unresisted. Lord Chief Justice’s court, Court him irreplaceable on the bench. Ashes. Both in practice and on On the same day as the EDL 4, were packed, mostly with fully He has been an enormously the bench, he has sought to live marched through Luton, David robed barristers. At 9.45, dozens creative judge, using the common out, and to make good, the title Cameron made a speech of judges trooped in, bare-headed law to protect fundamental rights of Leveller John Warr’s condemning multiculturalism. The but wearing their colour-coded before the Human Rights Act and pamphlet: The Corruption and EDL asserted that Cameron had designer bands, yellow for Court using administrative law Deficiency of the Laws of come round to their way of of Appeal, red for puisne judges. principles to ensure obedience to England Soberly Discovered. In thinking. This casual appeasement Then, the Lord Chief came in, principles of common humanity. doing so, he has inspired of racism underlines the need to flanked by other senior judicial We have Sir Stephen, among generations of lawyers. respond to fascists such as the figures, with Lord Justice Sedley others, to thank for the l Frances Webber EDL, both on the streets, but also at his side. politically. Whereas the response The Lord Chief kicked off by the UAF to this rising tide of with some of Sedley’s ‘laws of Sedley’s laws of documents casual racism and fascism has been documents’ (reproduced right), (1) Documents may be assembled in any order, provided it is not to simply refute the claims of before paying tribute to Sir chronological, numerical or alphabetical. fascism, such an approach does a Stephen’s passion for justice and (2) Documents shall in no circumstances be paginated continuously. disservice to the anti-fascist cause his contribution to the rule of (3) No two copies of any bundle shall have the same pagination. by failing to put forward an law. Michael Beloff QC, Sir (4) Every document shall carry at least three numbers in different places. alternative to the political status Geoffrey Bindman and I spoke on (5) Any important documents shall be omitted. quo. Disillusionment with the behalf of the senior and junior (6) At least 10 percent of the documents shall appear more than once in present political consensus and the bar and solicitors respectively, the bundle. failure of an anti-fascist movement and Sir Stephen made a typically (7) As many photocopies as practicable shall be illegible, truncated or to speak to those members of the amusing and self-deprecating cropped. working class who are angry about reply. He recalled that the route (8) (a) At least 80 percent of the documents shall be irrelevant. spiralling unemployment, attacks of his first Aldermaston march, (b) Counsel shall refer in court to no more than 10 percent of the on their public services, the when he was 19, took him past a documents, but these may include as many irrelevant ones as counsel inability to find council homes, lovely cottage with roses round or solicitor deems appropriate. and the fact that their wages buy the door. ‘Over 50 years later’, he (9) Only one side of any double-sided document shall be reproduced. less and less each month leaves a observed, ‘the bombs are still (10) Transcriptions of manuscript documents shall bear as little relation political vacuum that can be filled there but I live in the cottage’. as reasonably practicable to the original. by the scapegoating beloved of the Sir Stephen’s retirement leaves (11) Documents shall be held together, in the absolute discretion of the extreme right. a huge, gaping hole in the higher solicitor assembling them, by: In this atmosphere, it is more judiciary. His combination of * a steel pin sharp enough to injure the reader, important than ever to build a courtesy, dry wit, ferocious * a staple too short to penetrate the full thickness of the bundle. genuine working class response to intelligence and humanity, his * tape binding so stitched that the bundle cannot be fully opened, or fascism as socialists. courage in frequently standing * a ring or arch-binder, so damaged that the two arcs do not meet. l Stephen Knight alone as a dissenter, his refusal to

24: Julian Assange, the founder of 24: The Home Office releases figures 24: Public Interest Lawyers launches a WikiLeaks, loses a hearing against which reveal a sharp drop in stops and legal challenge against Gloucestershire his extradition to Sweden. searches under counter-terrorism law. and Somerset councils about their Immediately after the hearing at In July 2010, the Home Secretary planned library cutback. The councils Belmarsh Magistrates’ Court, discontinued the use of Section 44 of were informed that an application for Assange said he would appeal. the Terrorism Act 2000 for individuals. judicial review would be lodged. The ‘I call on you to make this bigger than In the year ending September 2010 Public Libraries and Museums Act 1964 me. Take this case and bring it back there were 45,932 stops using the obliges local authorities to provide a home. Make it your case and your power. In the previous 12 months there ‘comprehensive and efficient library own virtue’, he told reporters. had been 200,775. service for everyone wanting to use it’.

Socialist Lawyer June 2011 5 News&Comment

quest to remove Saddam, assured him repeatedly of his unequivocal statement of support, ignored the Blair’s law, and deprived the cabinet and Parliament of key information. In short, Mr Blair managed to skilfully lead the entire machinery legacy of Government – Attorney General, cabinet, Parliament – into a place from which British involvement in the war became inevitable. by Phillipe Sands QC Mr Blair has paid a big price for delivering his commitment to he questions sent by the President Bush: his legacy is an Chilcot Inquiry to Tony unlawful and disastrous conflict Blair make crystal clear that continues to cause misery Tthe key issues on which and claim lives, shredding public the report will focus. trust in Government, diminishing In the run up to the war these Britain’s role in the world, and include: the timing, nature and undermining the rule of law. To extent of commitments given to the Chilcot Inquiry falls the task President Bush; the preparation of picking up the pieces. and presentation of intelligence; the circumstances of the decision l Phillipe Sands QC is to return to the United Nations; Tony Blair: “His legacy is an unlawful and disastrous conflict” says Sands professor of law at University Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: the role of the Attorney General College London and a barrister and the effect of his legal advice at Mr Blair’s responses to those written answers and the totality of at Matrix Chambers. This article various stages; the role of the questions are, to put it charitably, the evidence before the tribunal first appeared in The Guardian cabinet; and the presentation of elusive and less than complete. points to a simple story: the Prime on 21st January 2011 and is information to Parliament and the But once the fluff is stripped away, Minister took an early decision to reprinted here with the author’s public. [his] defensive testimony, the support President Bush in the permission. British forces in Iraq must be fully accountable for deaths and

n 17th February 2011, Two short videos were played a major public inquiry, which will treatment banned by the UK The Haldane Society showing torture techniques used publish is due to publish its Government in the 1970s, namely hosted a powerfully which showed British soldiers findings in May 2011. hooding, stressing, sleep Odelivered lecture by utilising methods such as hooding Phil was clear that the excuses deprivation, food and water Phil Shiner of Public Interest and making references to food and of ‘just a few bad apples’ or ‘the deprivation and the use of noise. Lawyers titled ‘Human rights water deprivation. One of the heat of battle’ cannot be relied He further highlighted that violations by UK forces in Iraq’. videos showed the treatment of upon to defend the actions of knowledge of this torture reached The lecture provided numerous Baha Mousa, who sustained 93 those involved. He relayed how medics, padres and the Royal examples of some of the abuses injuries while in the custody of the the methods of interrogation were Military Police. Yet nothing was suffered by the Iraqis in the 1st Battalion the Queen’s taught, trained and were standard resolved, even after the death of custody of UK forces and some of Lancashire Regiment in Basra in procedure for those in custody. Baha Mousa. The families the riveting legal issues Phil Shiner 2003. His death and the abuses of Such techniques used against Iraqi represented by Shiner are searching and his team came across. nine other Iraqi men are subject to detainees are reminiscent of for accountability for the abuse March 2: The US Supreme Court rules that the First 3: The International Criminal Court (ICC) will 3: The Sun and The Daily Mail are Amendment protects hateful protests at military investigate Muammar Gadaffi and his closest found guilty of contempt of court after funerals. Chief Justice John G Roberts Jnr said associates for possible war crimes. The ICC they published pictures of a murder that the national commitment to free speech prosecutor, Luis Moreno-Ocampo, alleges defendant posing with a gun on their extended to ‘even hurtful speech on public that Libyan security forces have attacked websites. The ruling was described issues to ensure that we do not stifle public peaceful demonstrators in several towns and as a landmark for internet publishing debate.’ The case was brought after members of cities since trouble began on 15 February. in which the High Court said the the Westboro Baptist Church in Kansas attended Moreno-Ocampo said he was putting the pictures had created a ‘substantial military funerals with signs with messages like Libyan command ‘on notice’. risk’ of prejudicing the trial of Ryan ‘America is Doomed’ and ‘God Hates Fags’. Ward in November 2009.

6 Socialist Lawyer June 2011 News&Comment

The Coalition has axed Zimbabwe Coalition takes important parts of the Act. The part aimed at addressing socio- economic inequalities is gone. The trials protest unequal stance provision on dual discrimination has been axed. This provided n June of this year, six protection for the person who had Zimbabwean activists, he Equality Act was one of some minority groups and the more than one ‘protected Munyaradze Gwisai, of the last measures to overall lack of fairness and characteristic’ and was ITafadzwa Antonater Choto, be enacted under the opportunity for some who have a discriminated against because of Tatenda Mombeyarara, Edson TLabour Government. ‘protected characteristic’. In both of them, i.e. black women, Chakuma, Hopewell Gumbo and The Act sought to harmonise opposition the Conservatives had who may have not been subjected Welcome Zimuto are due to stand existing legislation and clarify the opposed some of the more to a detriment because of one of trial on treason charges. definitions of discrimination, transforming aspects of the those things alone. The specific Under the Zimbabwean harassment and victimisation. legislation and for anybody who duties under the public sector Criminal Code, treason carries It seeks to provide a uniform cares about fairness there is a lot equalities duties were seen as the either the death penalty or life approach to providing protection to worry about now. mechanisms which would give imprisonment. The allegation is for nine ‘protected At the time of its proposal the real teeth to the aims of that the activists watched videos of characteristics’. They are: age; Act received a predictable but eliminating discrimination and protests in Egypt and Tunisia taken disability; gender reassignment; particularly alarmist and frosty advancing equality. But these have from the Al-Jazeera channel as a marriage and civil partnership; reception from the right. There been delayed in their prelude to discussing plans to pregnancy and maternity; race; was particular concern voiced implementation as the subvert the constitutionally elected religion or belief; sex and sexual about positive action measures. In Government espouses its wish to Government. Originally, 45 people orientation. The Act also sought reality the measures under the Act ‘minimise bureaucracy’. were arrested, although charges to provide some more go no further than that already The public sector equality duty have been dropped against 39 of transformative powers: powers provided for. Positive action is which could provide for the most the defendants. Demonstrations in that can actually help realise allowed in only three transformative measures is Johannesburg, Durban, London equality for a person with a circumstances: weakened by the proposed and Chicago have called for the protected characteristic. For (1) Where it is a proportionate watering down of the specific charges to be dropped. example, positive action and means of achieving a relevant aim; duties. It is clear that this l David Renton stronger provisions on public (2) As a ‘tie- break’ in recruitment Government is seeking to shrink sector equality duties. Part 1 of and promotion; and the public sector in a way not the act also provided for a public (3) In the selection of candidates witnessed for decades. The sector duty regarding socio- by political parties for public stronger parts of the Act will have torture claims economic inequalities. It had been elections. a limited effect in creating actual described as, ‘a major landmark There was really no need for the equality for people regardless of in the long struggle for equal Midsomer Murders viewers in the having a ‘protected suffered whilst their relatives were rights,’ by Bob Hepple in Equality Tory party to feel alarmed. The characteristic’. It is a great shame in the custody of UK forces. The New Legal Framework. reality is that there has always been that this Government chose to Such accountability is yet to I need not rehearse here the positive action – unwritten – for demolish steps aimed at achieving be found. The difficulties in dire need for effective and centuries for those with the shared actual fairness rather than jurisdiction, the convenient ‘loss’ stronger equalities legislation. We characteristics of going to embracing them fully. of evidence and the apparent all know the dismal statistics that Oxbridge, the right school and The people who need the Act difficulty the British public has in continue more than three decades being white. Although opposed by most will be the people with the accepting that UK forces are to after the UK’s first major equality the Conservatives in opposition, least ability to enforce it as the blame in this instance, make the laws, the impact of race on sections 158 and 159, which Government is cutting legal aid for task taken on by Phil Shiner to sentencing, the lack of diversity provide for optional positive employment cases and the funding expose these abuses a within a legal system that plays action, have been brought into and remit of the Equalities and challenging one. such an essential role in society, force. However, being ‘optional’, Human Rights Commission. l William Dooley the lack of entry into professions their impact is likely to be minimal. l Rebekah Wilson

9: A hunt saboteur wins a claim for 15: The Government announces its 26: Crowds of around 500,000 30: The House of Commons unfair dismissal after a court found his plans for reform of libel law which it said march from Embankment to Hyde justice select committee warns anti-hunting beliefs should be would bring to an end so-called ‘libel Park to protest against the coalition against the impact of proposed protected from discrimination in the tourism’. The new bill includes a public Government’s programme of cuts. cuts to legal aid. It criticised the same way as religion. Joe Hashman interest defence and requirement that The march organised by the TUC Government’s plans to restrict said he had been sacked from his job claimants show substantial harm attracted people from across the financial support in family disputes as a landscape gardener after his before they can sue. The Libel Reform public sector and beyond. The to only those in which physical bosses realised his views. The judge Campaign welcomed the bill but said Haldane Society and Young Legal violence was alleged. It also said said Hashman’s stance was akin to a the Government needed to go much Aid Lawyers both joined the poorer and more vulnerable ‘philosophical belief’. further. demonstration. groups would be hit hardest.

Socialist Lawyer June 2011 7 News&Comment

service requirement before Unison activists’ victory – employees can bring complaints of unfair dismissal. As in all other areas of law, against their own union litigation is becoming more expensive, and this is of particular n spring 2009, Socialist would understand the cartoon to concern to trade unions in Lawyer reported the complaint be saying that the Standing Orders particular, as members are often of four shop stewards of the Committee was out of touch and recruited on the belief that the Ipublic sector workers’ union closing its mind to and ignoring union will provide free legal advice Unison – Glen Kelly, Onay Kasab, issues that concerned the and representation for them. Given Brian Debus and Suzanne Muna – membership. The cartoon was not that a typical union member will that they had been unjustifiably a pictorial depiction of the contribute something like £10 of disciplined by their union. The four members of the Committee but a their membership fees per year to were banned for between two and representation of the Committee’s the union’s legal budget and given three years each from holding attitude towards motions that that a typical member might positions within the union, after were submitted to it. remain with the union for 20 they criticised the Standing Orders Employment Judge Muna years; it is obvious that every Committee at their union’s 2007 described the evidence from Tribunal claimant already takes National Conference for Unison as inconsistent and more from the union’s collective prohibiting the discussion of incredible. Unison argued that the resource than they can expect to motions that called for strike action members had to be disciplined as it contribute over a lifetime’s or the election of union officials or was important to combat not just membership. With the were critical of New Labour’s racism but the possible perception Government’s proposals, this public services reforms. of racism. Yet before taking action imbalance is likely to get worse. Unison’s ostensible reason for the union had failed to discuss the All unions are becoming more disciplining its members was that a matter with its Black Members’ restrictive in the cases they fund. In cartoon in the stewards’ leaflet Committee. these circumstances it is criticising the Standing Orders Unison has since announced particularly important that unions Committee and comparing that that it will appeal the decision. are seen not to operate double Committee to three wise monkeys The case is interesting for the standards. If for example the union who neither see, hear nor speak light it sheds on union attitudes will only fund meritorious claims, evil, was racist. towards the Employment the merits threshold should be the After a seven-day hearing at the Tribunal. The context, as has been same whether the union is the end of 2010 the reported in previous claimant or the respondent. Tribunal has found issues of Socialist On the face of it, the Tribunal’s for the stewards Lawyer, is that the judgment is a resolutely factual and against Government has decision which discloses no obvious Unison. been consulting on error of law. An appeal would Employment changes to the presumably be on grounds of Judge Muna held Tribunal rules perversity, which would appear to that: all four which will make it have relatively low prospects of claimants were harder for workers success. In these circumstances, the committed anti- to bring complaints to Unison stewards are quite racists who had the Tribunal. These understandably asking; would the fought against changes include the union be funding an appeal, of racism. The stewards introduction of issuing equal merits, where the losing party quite reasonably fees for Tribunal was a union member rather than the assumed that anyone claims and a two union itself?

Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures: who saw their leaflet year minimum l David Renton April May 5: Four survivors of Kenyan 9: A study of judicial rulings in Israel 2: Osama Bin Laden is killed by US detention camps operated in the finds that judges are more lenient Navy Seals after they tracked him to a 1950s by colonial authorities bring a after taking a break. Jonathan hideout in Pakistan. President Obama’s case to the High Court. Documents Levav of Columbia University who announcement was followed by detailing repression used by the contributed to the study said: ‘You conflicting accounts of what actually took British army against Mau Mau rebels are anywhere between two and six place in the compound. Some have are to be revealed, including times as likely to be released if called for an inquiry amid fears the allegations of systematic torture. The you're one of the first three prisoners operation amounted to a targeted four are seeking compensation from considered versus the last three assassination, illegal under international the UK Government. prisoners considered.’ law.

8 Socialist Lawyer June 2011 News&Comment

Accountability needed for private security firms

n the wake of the student The license system is designed to in a shop can forcibly remove protests and more recently the check the background of guards anyone they ask to leave for any aftermath of both the TUC and to ensure they are trained to reason. The onus is then on the IMarch for the Alternative and deal with conflict situations. member of public to demonstrate the anti-Tesco rioting in Bristol, However, during his trial, the the force used was unreasonable if many questions have rightly been guard accused of killing Mr they wish to challenge their raised about police powers and Bishop testified that he had not treatment. tactics. These questions are timely been trained in restraint This is particularly worrying and important. However, while techniques despite being as, unlike the police, private we consider them we should also authorised to use them on the security guards have no question the powers of private public. accountability. Guards are not security guards. Private security guards do not subject to codes of practice and do Last year saw the deaths of have the same range of powers as not have any central governing Aaron Bishop, who was killed in a the police, but can employ body or complaints mechanism. struggle with Debenhams’ security Police in action in Bristol ‘reasonable force’ to protect Further, guards are not required to guards, and Jimmy Mubenga, an property or members of the provide any form of identification Angolan asylum seeker who died needed hospital attention after public. This appears innocuous when challenged. www.TaphousePhotography.com/news Jonathan Taphouse Picture: after he was forcibly restrained by being escorted onto a flight by enough but in practice it means Such unchecked authority is G4S guards employed by the UK G4S guards. employers or individual guards very dangerous and ought to be Border Agency. A few days after The Private Security Industry can forcibly implement any policy thoughtfully reviewed, especially Mr Mubenga’s death, The Act 2001 requires guards to be they see fit regardless of how in the light of the increasing Guardian reported that José licensed, but beyond this there is unreasonable or discriminatory it privatisation of public spaces. Gutiérrez, another asylum seeker, little regulation of the industry. is. For example, guards working l Kerenza Davis New campaign launched to fight legal aid cuts

ustice for All is a coalition All templates. At the time of on vulnerable groups. It also campaign is the ‘Day of Action’ on of charities, legal and writing this, we are currently requests the Government Friday 3rd June 2011. This is an advice agencies, trade waiting for the Government’s reconsider ways in which money opportunity to continue Junions and community response which they have can be saved and better evaluate campaigning against the legal cuts, groups. The group has been indicated will be published the impact of the cuts before especially since we are eagerly created to campaign against the sometime in May 2011. implementing them. awaiting the response to the Green proposed cuts to legal aid. Justice The Justice Select Committee Justice For All members Paper. Ideas include having a For All has over 3,000 members of scrutinises the work of the formed part of the Trade Union demonstration at the Supreme which The Haldane Society is one. Ministry of Justice and the Congress organised Court or Royal Courts of Justice The Government received over Government should respond to demonstration on 26th March and one regional campaign. For 5,000 responses to the their reports and recommendation 2011, in London, against the more information and to consultation on the Ministry of within 60 days. The Justice Select Government cuts. Over half a participate in the campaign by Justice Green Paper on cuts and Committee have published a million attended, and Justice for using Justice For All’s material, to reform of the legal aid system, report on the Green Paper All members participated to stand show it is a national movement, which closed on 14th February proposing legal aid reforms. The up for free legal advice as a vital please visit www.justice-for-all. 2011. Approximately 1,000 of the report raises several concerns public service. org.uk/Take-part responses followed the Justice For about the impact of the changes Justice for All’s next big l Majida Bashir

3: The jury in the inquest into the death of Ian ‘Calm down, dear’ 5: Brazil’s Supreme Court reaches a unanimous decision ‘If you go to the pub and Tomlinson concludes that he died of internal David Cameron’s that partnerships between same-sex couples must be order a pint of John Smith’s bleeding in the abdomen after being hit with a sexist and patronising recognised as being equal in every legal aspect to but they are out of Smith’s baton and pushed to the ground. Walking comment to Labour partnerships between unmarried heterosexual couples. and you choose a pint of home through the G20 protests in 2009, he MP Angela Eagle, ‘Those who opt for a homosexual union cannot be treated Guinness instead, you’ve was attacked by PC Simon Harwood. The which he said six times less than equally as citizens,’ Justice Carmen Lucia said. still only had one pint’ Director of Public Prosecutions, Keir Starmer President Dilma Rousseff's Attorney General Roberto Labour’s Will Straw tries to explain QC, said he would review his decision not to Gurgel had backed the plan granting gays and lesbians AV but seems to have had one too prosecute Harwood. Reports suggest the the right to form civil unions, and on guaranteeing them many officer could face a manslaughter charge. the same legal rights as other couples.

Socialist Lawyer June 2011 9 News&Comment

On the march for an alternative

t its annual congress in number of feeder marches joined September 2010, the the main body including students Trades Union Congress whose own high profile protests A(TUC) called a national last Autumn had given confidence demonstration for 26th March to the emerging anti-cuts 2011, in response to the Coalition movement. Others marched Government’s comprehensive together from their own spending review and its attendant communities such as Camden and implications for public sector jobs Lambeth. and services. The Haldane Society had The TUC’s leadership called for arranged to meet up with the a broad campaign involving Public and Commercial Services’ workplace branches working Union (PCS) whose members are alongside community groups and among those facing the loss of their service providers. At the same time jobs as a result of court closures, local anti-cuts groups had been with Young Legal Aid Lawyers springing up across the country. and Access to Justice campaigners. The TUC represents some 6.2 Mike Mansfield QC gave a speech million workers in 58 affiliated outside the Royal Courts of Justice unions and in the weeks running during the morning, highlighting, up to the 26th March, it became amongst other things, the impact apparent that the ‘March for the on the justice system as a result of Alternative – for growth jobs and cutting public funding. justice’ would be huge. Many members however Trade unions were encouraged simply couldn’t find the banner to organise transport on behalf of due to the sheer numbers their members and hundreds of assembling around the Temple. coaches and many trains were Sections of the media inevitably fully booked weeks in advance. focussed on direct action taken Furthermore, accessibility was during the day elsewhere but it was prioritised with careful plans abundantly clear that this was the made to enable disabled people – largest union demonstration the one of the many groups to be country has seen in a generation. acutely affected by the cuts – to be Indeed, the sheer potential that able to join the march. the trade union apparatus has to The march was indeed huge, mobilise, energise and facilitate the conservative estimates by the expression of ordinary people’s organisers, confirmed by the anger at what is being police, were that 250,000 were implemented by the Coalition and present, while others were clear which was given no mandate at that the numbers were more in the last May’s general election will region of up to 500,000. remain of key importance as the The Embankment was packed cuts begin to bite. and awash with banners and a l John Hobson Getting the message loud and clear... May 12 : The High Court granted an 12: A court in Germany finds John 13: Network Rail is fined £3 million by a court over application for contempt of Demjanjuk guilty of being an accessory safety failings which caused the death of seven court proceedings brought by to mass murder for his role as a guard at people in the Potters Bar train crash. The company the Attorney General, Dominic the Sobibór concentration camp in admitted breaching safety regulations that led to Grieve QC, against The Sun occupied Poland during the Second the train derailing in May 2002. Louise Christian, and Daily Mirror for their World War. Demjanjuk, a Ukranian, was one of the lawyers representing the victims’ reporting on the arrest of Chris alleged to have been a member of the families was critical of the proceedings: ‘They Jefferies, the man wrongly Red Army who was captured by deliver no accountability. The only person paying arrested in the early days of the German forces and sent to work at the fine is the taxpayer... It could be a substantial Joanna Yeates murder enquiry. Sobibór. fine but you need to ask what the point is.’

10 Socialist Lawyer June 2011 Young Legal Aid Lawyers This regular column is written by YLAL members. If you are interested in joining or supporting their work, please visit their website www.younglegalaidlawyers.org

a large body of written evidence Inquiringly like-minded both for and against the current legal aid system, with a view to producing a report very soon. ne of the difficulties Centre when her local authority In the meantime these stories when campaigning for refused to house her and her 12 year clearly illustrate the devastating legal aid is trying to old sister. She was one of five people effect of the Government’s Opersuade people of its who gave oral evidence to the proposed cuts to legal aid. Stephen value. As legal aid lawyers we Commission of Inquiry in a packed would certainly not get legal aid frequently make the task harder room in the House of Commons. for his divorce case and would for ourselves, with talk of ‘scope’, The others included a young likely still be separated from his ‘eligibility’, ‘matter starts’ and ‘best woman (‘EP’) who, with the children. Mrs Whitehouse, whose value tendering’: dry, impersonal assistance of counsel to the inquiry landlord offered her a lesser jargon that distances legal aid from Michael Mansfield QC, spoke of property in a different community, everyday experience. how legal aid helped her escape would not be eligible as she would It was with this in mind, nearly from her abusive husband. In turn, not have been homeless. The a year ago, that The Haldane Zoe Kealey told the story of her exceptional funding criteria are to Society and Young Legal Aid brother Darwin who was found be made more stringent, with the Lawyers started making plans to dead in his cell in Wormwood possibility that legal aid will not be convene a Commission of Inquiry Scrubs a little over 48 hours after he available for inquests such as that into the case for legal aid. The was taken into police custody. The of Darwin Kealey’s. EP would not centrepiece of the Inquiry was an result, the inquest found, of the get legal aid as she did not have the oral evidence session, open to the repeated failings of Serco, the Police right type of ‘objective evidence’ public, which took place in and the Primary Care Trust. He was that her husband was abusing her. Parliament on 2nd February 2011. aged only 28. A young man called Of the five, it is only Subera who Testimony, as to the importance of Stephen spoke of how legal aid could be sure of getting legal aid if legal aid, was presented to an helped him gain contact with his the proposals are implemented, independent panel consisting of children after an acrimonious split and this of course will only be former Liberal Democrat MP with his wife. Finally, doughty possible if Law Centres such as Evan Harris, the canon of pensioner Patricia Whitehouse that in Tower Hamlets are Westminster Abbey, the Reverend described how, with the help of somehow able to subsist. Professor Nicholas Sagovsky and legal aid, the Court of Appeal ended The Government’s response to Diana Holland, assistant general her unscrupulous landlord’s the legal aid consultation is secretary of Unite. This testimony attempts to evict her from the house expected over Easter with a draft comprised of stories from ordinary she had lived in since the 1950s. bill to follow. As the bill begins its people who had benefited from The panel is now considering passage through legal aid. Stories accessible to the this testimony together with Parliament it is vital that public, free from civil service- these stories are told. speak. Stories like that of 18 year l Connor Johnston is old Subera: a paralegal at the Howard ‘My mother told me that she League for Penal Reform had become so sick that she could and an executive not care for my sister any more. committee member of There were no other family Young Legal Aid members who could take my sister Lawyers in and already some family members were talking of marrying my sister off… My mother asked me if I would care for my sister and

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: I said that I would. At first I tried to hide the fact that my sister was living with me… In the end I had to tell the people at the housing 15: Iran authorities postpone the scheme about my situation. They sentence of a man who threw acid in told me that if I wanted to live with the face of a woman who spurned his my sister I would have to leave. marriage proposals. Majid Movahedi There was no way I could abandon was due to be anaesthetised so that my sister, so I was given one week his victim, Ameneh Bahrami, could drop acid into his eyes rendering him to leave my home.’ blind. Human rights groups had called Subera is a young Bangladeshi Miaow: on the Iran Government to intervene girl from East London. She was spot the

following the court ruling. helped by Tower Hamlets Law fat cat! / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer June 2011 11 Kettling and the criminalisation of protest

12 Socialist Lawyer June 2011 Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures:

Protest is back! From student anger against tuition fees to the half a million marching against the ConDem cuts, people are back on the streets. But the police and the courts are responding, as Kat Craig and Fiona McPhail report...

Socialist Lawyer June 2011 13 by Kat Craig

rotest has been a counterweight to oppression throughout history and has been a crucial method by which the voiceless have expressed their opposition, leading to some of the most significant developments in society. In this context, it comes as no surprise that protest has always been met with draconian re- Ppression by governments, gripped with the fear of popular up- risings and intent on retaining their wealth and position. In the

current climate of all-pervasive funding cuts, opposition has in- / reportdigital.co.uk Jess Hurd Pictures: creasingly been voiced in terms of a broader campaign for wider social justice, rather than individual struggles. This escalating and, most importantly, collective nature of the recent protests is what those in power fear and repress most. Whilst not new, perhaps the most controversial police tactic used to quash dissent is the widespread use of the containment of protesters, popularly known as ‘kettling’. The law as it stands allows the police to kettle protesters in specific circumstances. In 2009, the House of Lords, in Austin v The Commissioner of Police of the Metropolis Austin [2009] 1 AC 564 , found that the cordon imposed around protesters in Oxford Circus for ap- proximately seven hours on May Day 2001 was lawful. The Court held that ‘crowd control measures’ would be permitted in law if they were resorted to in good faith, were proportionate and were enforced for no longer than was reasonably necessary. The specific issue before the Lords was, first, whether Ar- ticle 5 of the Convention, which protects the right to liberty, was engaged, and, second, if so, whether the interference with this right could be justified. The Lords did not specifically ad- dress the issue of whether the containment was lawful at common law, because it was accepted by the parties that if Ms Austin’s detention was an unlawful deprivation of liberty con- trary to article 5(1) of the Convention, the Court of Appeal’s finding that this was a lawful exercise of breach of the peace powers at common law could not stand, and vice versa. However, the Lords found that Article 5 was not engaged, thereby conveniently obviating the need to consider the second question of whether any interference was justified. The question was circumvented by the Court concluding that the kettle imposed was a restriction of movement and not a deprivation of liberty. For the purposes of this case, the cru- cial difference between the two is that Article 2 Protocol 4 of the Convention, which defines the restriction of movement, has not been ratified by the United Kingdom, nor are the rights that it sets out among the Convention rights within the meaning of the Human Rights Act 1998. By looking at paradigm cases the Court identified a list of factors which should be taken into account when distin- guishing between a restriction on freedom of movement and

Boiling point. Police kettle in Piccadilly Circus on the day of the massive march for the alternative, organised by the TUC.

14 Socialist Lawyer June 2011 a deprivation of liberty. These factors include the duration, ef- fects and manner of implementation of the measure in ques- tion. The police’s case was that, in addition, the purpose of a measure could also be taken into consideration when deter- mining whether Article 5 was engaged. Ms Austin argued that the question of purpose only became relevant when considering the exhaustive list of per- mitted restrictions on liberty set out in Article 5(1)(a) to (f), not at the initial stage of assessing whether or not Article 5 was engaged. Ms Austin was unsuccessful, and the Court found that the purpose of containment was relevant to whether Article 5 is engaged. In this case, the purported pur- pose was to prevent personal injury and damage to property. The question of whether or not the purported purpose of the imposition of a kettle can be taken into consideration when determining the applicability of Article 5 is currently being challenged in the European Court of Human Rights, and a hearing has been listed in the Grand Chamber in Sep- tember this year. If Strasbourg does accept Ms Austin’s arguments regard- ing the ‘purpose’ point, it is difficult to see how they will find in the UK’s favour overall. The list in Article 5(1) (a) to (f) of the cases where deprivations of liberty are permitted is ex- haustive and is to be narrowly interpreted (as the European Court of Human Rights has repeatedly emphasised). No ref- erence is made in Article 5 to the interests of public safety or the protection of public order as one of the circumstances in which a person may be deprived of his liberty. This is in sharp contrast to, for example, Article 10(2), which expressly qual- ifies the right to freedom of expression in these respects. In the interim the police appear to have misconstrued the restrictions imposed on the use of kettling, treating the judg- ment as a carte blanche to deploy kettles more broadly than ever before. Her Majesty’s Inspectorate of Constabulary’s report of July 2009, commissioned in response to widespread criticism of kettles imposed during the G20 protests, noted that the tactical plan for containment failed to ‘explicitly ad- dress the legal criteria set out in the [House of Lords judg- ment] regarding the use of containment as a crowd control measure, and it is not apparent (...) that all commanders were familiar with the criteria that had to be met.’ The ‘stringent requirements’ set out in Austin were re-em- phasised in the recent case of R on the application of Moos and another [2011] EWHC 957 (Admin) where the High Court found that the police acted unlawfully in the way they kettled protesters participating in the Climate Camp at the G20 demonstrations in 2009, because there was no risk of imminent breaches of the peace sufficient to justify full con- tainment at the Climate Camp. Whilst the judgment does not prohibit the use of kettling per se, it demonstrates that the courts are prepared, in certain circumstances, to hold the s “The question of whether or not the purported purpose of a kettle can be taken into consideration when determining the applicability of article 5 is currently being challenged in the European Court of Human Rights, and a hearing has been listed in the Grand Chamber in September this year.” Socialist Lawyer June 2011 15 s police to account for unjustified containment of protesters and this may force the police to reconsider their tactics. Yet the Moos judgment remains very fact sensitive, and may be appealed. In the meantime, we must maintain public pressure on the police to change their tactics. In particular, the concerning development of kettling children as young as twelve years old in the freezing cold, without access to food, water or toilet facilities, sometimes for more than five hours cannot continue. Similarly, kettles imposed pre-emptively, in anticipation of disruption but without clear evidence of an imminent risk of serious disorder can no longer be consid- ered lawful. Even prior to the Moos judgment, many kettles appear to have fallen foul of the Austin requirement that they be imposed for a legitimate purpose. The most obvious ex- ample of this is the extensive use of kettling to obtain intelli- gence, during which protesters have been contained for hours whilst being photographed by police intelligence teams. In many cases police also relied on the extensive powers con- ferred upon them under anti-social behaviour laws, refusing to release protesters until they provided their details. Kettling is but one of the problems protesters face. In more general terms, the use of increasingly violent and oppressive tactics means that the police are not only unwilling but also incapable of facilitating peaceful protest. And whilst the state points towards violence amongst protesters, it ignores the fact by Fiona McPhail that kettling and the excessive use of force by police provokes, rather than prevents, violent protest. Further, kettles, and the police aggression and force that invariably accompany them, place protesters at risk of significant harm as illustrated by the case of Alfie Meadows who sustained a brain injury as a result of a baton strike. In addition, current police tactics criminalise peaceful protest: young people participating in the democratic process Defending are being treated as trouble-makers, when in fact their en- gagement with social issues should be applauded, particularly where their participation has overwhelmingly manifested rotest is on the agenda again. From the revolu- itself in peaceful civil disobedience. tions in the Middle East, to the student protests No doubt, occupations, marches and sit-ins cause others against tuition fees in late 2010, the TUC-organ- some minor inconvenience. However these are the methods ised ‘March for an Alternative’ and most recently being used to try to safeguard fundamental aspects of the wel- the riots in Stokes Croft in Bristol against Tesco, fare state. Not only do we now risk losing essential public crowds of people are taking to the streets in order services, but treating legitimate opposition as criminal dissent Pto express their anger against a general sense of injustice, dilapidates the tradition of protest and threatens the right to whether that be the cuts to jobs and services or repression by participation of everyday people in society which was so hard tyrannical regimes. gained by our predecessors. While these protests are incredibly inspiring, they have been followed by heightened State repression. The recent Kat Craig is Co-Vice Chair of The Haldane Society and a waves of student demonstrations against the increase in tu- solicitor at Christian Khan Solicitors. The firm represents Lois ition fees and the abolition of the EMA have led to the arrest Austin in Austin v the UK as well as numerous children and of many students and school pupils. Those students arrested young people, including Alfie Meadows, challenging police and charged have faced allegations including Breach of the conduct during the recent student protests. Peace, Violent Disorder and Criminal Damage. Some of these offences carry lengthy sentences. In the case of Crim- Above: Heavy- inal Damage it can be up to ten years’ imprisonment. Many handed police in of those involved in the student demonstrations had never riot gear in Stokes been on a demonstration, let alone witnessed hostile police Croft, Bristol. tactics. The events which unfolded during the autumn student Left: Students vent protests and more recently at Trafalgar Square on 26th their spleen on a March 2011 have seen the resurgence of the debate on what police van last constitutes legitimate protest, and conversely what powers November. the police should have to control public protest. The em- phasis in the media and amongst the political elite has been on the criminal damage caused and the ‘violence of a mi- nority’. The challenge is now for lawyers to protect the right to protest and where possible question the legitimacy of the powers used to undermine it. In the UK the right to protest has traditionally been de-

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: fined as a negative liberty. In other words protest was per-

16 Socialist Lawyer June 2011 Picture: Jonathan Taphouse www.TaphousePhotography.com/news www.TaphousePhotography.com/news Jonathan Taphouse Picture: the right to protest

mitted insofar as it was not prohibited by law. This inevitably of the Gaza demonstrators following demonstrations in led to competing interests such as property rights or the pre- London against the Israeli bombing of Gaza in December vention of crime trumping protest rights. 2009, six of the known seven cases where the accused The right to protest remains weakened in three key re- pleaded not guilty were found not guilty by the jury or their spects. First, as a result of legislation passed under the guise cases were dropped. However, 35 of those who pleaded of combating terror, anti-social behaviour and other criminal guilty were given sentences of between ten and 24 months. activity. Secondly, it is undermined by the way in which the In 2000, a jury found Greenpeace director Lord Melchett police exercise their statutory powers and finally, it is un- and 27 activists not guilty of causing criminal damage to a dermined by the inconsistency of the case law emanating field of genetically modified (GM) crops. More recently from the courts. juries found seven anti-war activists not guilty in the EDO An area of great concern facing protesters is the ambigu- case in Brighton and environmental activists not guilty in ous nature of many of the terms used to criminalise their ac- the Kingsnorth Six case. tivities. The rule of law requires protesters to know whether These cases highlight the importance of wider issues such their actions or words would incur criminal liability and it is as trial by jury, and the need for good legal advice and rep- arguable whether terms commonly found in charges that resentation. Protest cases are invariably more political in protesters face such as ‘disorderly’, ‘disruptive’, ‘anti-social’ nature and often have the added burden of negative media or even ‘violent’ satisfy this requirement. coverage. Given all of this, the protester who is made to ‘face At the same time this ambiguity gives greater deference to the full force of the law’, as David Cameron proclaimed fol- the police. So, for example, we saw the stop and search lowing the occupation of Millbank Tower on the 10th No- powers under Section 44 of the Terrorism Act 2000 (since re- vember 2010, is in a rather precarious legal position. pealed), the use of which did not require police officers to Lawyers will be crucial in developing a culture more con- have reasonable suspicion before deciding to search, used to ducive to public protest as a form of political expression stop, search and limit the movement of protesters and Public worth protecting rather than something worth penalising or Order legislation used to justify the practice of ‘kettling’. Oc- repressing. Defence campaigns will also play a vital role in casionally such practices are successfully challenged in the doing this. In times like these it is important that people are courts, but the harsh reality is that the majority of people not deterred from protesting by negative media coverage and stopped, searched, arrested or kettled will neither know their repressive police tactics. rights nor have the opportunity to exercise them. The criminal courts have recently had the opportunity to Fiona McPhail is a trainee solicitor in Scotland at the Legal consider the lawfulness of police actions in the context of Services Agency Law Centre. For more information on the demonstrations. In the criminal courts, some of the most in- campaign to Defend the Right to Protest and to sign the teresting and telling factors have been the pleas which have petition see: www.defendtherighttoprotest.org and been made by those accused and the use of juries. In the cases www.defendbryansimpson.org

Socialist Lawyer June 2011 17 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture:

18 Socialist Lawyer June 2011 Socialist Lawyer interview MAJIDA BASHIR and YASIN PATEL talk to Haldane Vice-President GARETH PEIRCE

‘We had no parliamentary debate to discuss the fact we were effectively abolishing trial by jury’

‘War on terror’: how has this changed be accused of a serious crime and be simulta- the legal landscape? neously told he would not have a jury trial and This is a very diffuse and undefined term. The would never know what the allegation was. It concept of there being a war has been used to was a breath-taking innovation which the destroy entirely important certainties in the House of Lords ultimately declared unlawful, law, and infected and contaminated the law so but no sooner did the accused men, succeed in that the law is no longer applied as we under- their challenge after three and a half a years in stand it. This is what in many ways has hap- prison, then something new was attempted. pened. The Torture Convention, the Refugee This time Control Orders, no longer im- Convention, the Geneva Convention, many of prisonment as such but a form of house arrest, the international treaties we are bound by in imprisoning you at home and within geo- this country have been side stepped. As well / reportdigital.co.uk Jess Hurd Picture: graphical boundaries, restricting what you did, as a significant number of aspects of what we restricting who you saw and again on the same call due process have been jettisoned. We had GARETH PEIRCE joined the firm of the radical secret evidence. Thus a further destruction of no parliamentary debate to discuss the fact solicitor Benedict Birnberg as a trainee, and was due process. In terms of what we thought fit to that what we were doing was effectively abol- admitted as a solicitor in December 1978. For the do and what we still think fit to do: exchang- ishing trial by jury. What we had rushed past 30 years she has been involved in the ing information too with countries that use through Parliament was internment, locking defence of successive suspect communities. torture to obtain information, knowing that is people up indefinitely without a trial, accus- During her career she has represented Judith what we are doing and yet pretending we have Ward, a woman falsely accused of several IRA ing them of the most serious of criminal of- related bombings in 1974; Gerry Conlon of the clean hands. This is what we have moved to. fences, of involvement in international Guildford Four; Moazzam Begg, who was held in An utter destruction of our obligations under terrorism, but then at the same time saying al- extrajudicial detention in Guantánamo by the US the Torture Convention as well when we try to though there was evidence, the accused person Government; and the Bradford 12. The family of deport people to torturing regimes, a destruc- wasn’t to see it and the evidence was to be con- Jean Charles de Menezes instructed her firm in tion of our obligations under the Refugee Con- sidered in secret court and secret session. the inquiry into his death. She is a partner at vention when we consciously co-operated with Birnberg Peirce and Partners. s In one fell swoop an individual could now British citizens being sent to Guantánamo

Socialist Lawyer June 2011 19 s Bay as we did and our ministers did. What did that have to do with the rights of those in- dividuals under the Geneva Convention if cap- tured as the Americans claimed? If ‘enemy combatants’ they should have been treated ac- cordingly, with the minimal rights and digni- ties accorded by international conventions. But they were not, and that they were not was with this country’s endorsement.

Many Muslim communities believe they have been unfairly targeted and prejudiced. What do you think of this? If you target a community en bloc then the very essence of that is that it is making the whole community suspect and making every member of that community certain that that is how they are regarded and how they are to be treated, and further effectively requiring members of that community to actively protest their innocence. Because of the stigma, the prejudice, and the consequences, the commu- nity as a whole is frightened. Recurrent ques- tions spoken or unspoken are posed to members of the Muslim community who are not running for public office, nor wanting a political post, nor applying for a job depen- dent on religious or political beliefs. ‘Where do you stand on this issue? What do you think about this issue? What grounds of Islamic belief do you adhere to or not adhere to?’ It is no business of the state to demand of its citizens that they articulate responses to such questions or be interrogated by what is after all a largely secular state albeit nominally Christian, about their faith. Nevertheless across the board this is a situation we have im- posed on Muslims in this country. Individuals from the Muslim community do not anticipate if they travel they will travel freely; members of the Muslim community believe if they travel they will be subject to arbitrary stops and questioning. Regardless of their law abiding status, absolutely regardless of that, they are all suspects. And thus it has always been in the Pictured at a Jean past with other suspect communities. The ex- Charles de Menezes perience for the recipients is real and not imag- Family campaign inary, but is erected upon a basis of falsehoods meeting at the LSE in reinforced by repetition of the danger an entire London in 2005 (Gareth was the family’s lawyer).

community is said to constitute, intended to / reportdigital.co.uk Jess Hurd Picture: justify the robbing of those suspect communi- ties in turn of full basic rights, dignities and re- ingly we never learn from world history, we spect that belong to all. “We don’t learn how simply do not learn. the folklore of injustice We don’t learn about the hideous mistakes Are there any parallels between current of history nor from them, nor do we learn the experiences in the Muslim Community comes to be known causes and the effects. We don’t learn how in- and those of the Irish Community in the justice provokes reaction. We don’t learn how 1970s and 1980s? and understood by the the folklore of injustice comes to be known and Worldwide, populations, communities and understood by the affected community as a groups who have suffered historically identical affected community as whole, and not just in one country but world- experiences understand in a way that nobody wide, comprehensively. Yet in this country the else does, the parallels. Now it is the Muslim a whole, and not just in population at large continues to know nothing experience as opposed to the Irish experience of one country but of the experience nor does it want to know, only a few years ago, but it is in no way con- doesn’t care to know, it’s indifferent and then fined to those two experiences. The history of worldwide” wakes with a shock of comprehension only the black community in Britain, of the miners when it is somehow beyond embarrassment not during the miners’ strike, of the Asian commu- to comprehend, when it has to comprehend. nity throughout the 1970s and 1980s – all con- But meanwhile decades of injustice and suffer- tinually under attack whether by fascists or ing have gone by and simply cannot be re- police and all criminalised generally but in par- paired. If and when they come to end through ticular when they defended themselves. ‘The political solutions or deals or at the conclusion enemy within’ as Thatcher called them. of war or through civil confrontation, if they The history of parallel struggles informs us come to an end, nonetheless generations will and enlightens and inspires us but frighten- continue to remain scarred by the experience.

20 Socialist Lawyer June 2011 house during the night claiming the individual concerned must have left the house because the electronic monitor was recording some- thing, the electronic monitors regularly mal- functioned. The experience came to affect every member of the family personally, physi- cally, mentally, psychologically. The men had to respond to telephone mon- itoring using voice recognition systems, on American machines which failed to recognise non-American accents. The machines triggered alarms, suggesting the person concerned had breached the conditions of the Control Order and therefore should be arrested. Police would again arrive at the house; the children would be crying; the family would be terrified and constant fear of arrest and return to prison was always upon them. Children would fail at school who couldn’t do homework which required the internet be- cause the household couldn’t have a computer. Why? Because that would link up the individ- ual with something or someone suspicious of which he could be told nothing for unspecified reasons of national security. One little boy took to wearing a watch around his ankle, he saw his father with an electronic tag and he thought that is what men did. How do you deal with year after year after year with the knowledge that you are not like other families? Nobody could visit, unless they were cleared and given permission by the Home Office. The individual concerned could- n’t meet people outside without permission of the Home Office either. All of this has an effect too on the Govern- ment and Civil Service who administer the scheme, and the Security Service who provide secret information. It produces the confidence that they can continue, open endedly, to do it. Secret Courts and secret hearings are a very useful weapon in the arsenal of the executive who are unanswerable in the way police are answerable. Nobody knows what the case is. It is heard in secret, but yet courts have al- lowed the expansion and thus the appetite to increase their use. Both parties in what is meant to be an ad- versarial system become cynical, the individ- ual involved, and the wider community in which he lives become cynical that you can’t Control Orders: what impact do these countries. It would be returning to torture or win; if you do, the Government simply moves measures have or have they had upon death: or accepting and then fighting the new the goal posts to introduce another different the detainees? ‘internment’. measure. The Government, equally cynically, Over nine years ago, on 19th December 2001, Although they won in the end the legal considers it doesn’t really matter if in the end approximately a dozen foreign nationals were battle, it took years, and equally importantly, it loses in the courts, because after all it will suddenly arrested in their homes. They were it broke families, individuals, communities. have had the individual concerned imprisoned not taken to a police station for questioning, Initially, there were a dozen individuals and or under house arrest year after year after year despite the massive powers the police possess more later. Of those detained, two thirds while interminable legal cases wind their way to question people suspected of involvement became mentally ill. Psychologists and psychi- through the courts at a snail’s pace. And it is in terrorism. They were locked up potentially atrists who pooled their knowledge found that bad, destructive and dangerous for it to be forever without trial and without being given indefinitely detaining people without trial car- thought that we can’t apply the law to benefit reasons and so it was that we had re-intro- ried the high risk of producing long term dam- the whole of society equally. It’s a dangerous duced a measure forbidden in this country for aging effects. The helplessness and the despair recipe. decades: internment. The UK in 2001 no of being imprisoned without being told why longer called it ‘internment’ since that carried and never knowing if you would ever escape What is your view of PACE and in par- with it echoes of years of illegality and the de- from the nightmare. ticular, the amendments to the Act struction of rights of the Irish in Northern Ire- The Control Orders imposed as a substi- since its introduction? land where we had done exactly the same tute on their release were not liberating. The Solicitors must now be present with suspects in thing in the late 1960s and 1970s. men concerned returned to their homes if they police stations and importantly present in all The Government claimed it wasn’t intern- were married or to isolation if they were not, police interviews. It is an essential element in ment now, because people were free to leave. but now families too became subject to the the protection of individuals and their rights. Even though the people concerned were crippling restrictions imposed upon the house- Although police can and still to a limited extent refugees who couldn’t return to their own hold as a whole. Police would storm into the interfere with people’s access to lawyers, in s

Socialist Lawyer June 2011 21 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: s comparison with the absolute prevention of against self incrimination has been ‘balanced’ lawyers being present at all three decades ago, “The absolute right to out by the State itself to appease the State’s it is a very different circumstance. The practice protection against self own endless appetite for yet greater powers. of extracting false confessions by police brutal- Legislation has continued to ensure that the ity has been in large part eradicated. incrimination has been State is in control of due process rights; the However, the legislative reaction to those right to silence diminished, the ability to detain changes with which I disagree was that two ‘balanced’ out by the for questioning, increased from 48 hours to things in consequence became acceptable. seven days if the allegation relates to terrorism, One, that it is deemed lawful to detain some- State itself to appease then seven jumped to 14, then 14 jumped to one for the purpose of questioning whereas 28. But underneath it all a new and different previously it had been said to be illegal to the State’s own confidence has been generating namely that the detain someone for that purpose. And second, endless appetite for ordinary processes of investigation and prose- further and yet further extensions of periods of cution can be avoided altogether. Where we are detention for the purposes of questioning yet greater powers” now, far from being an era of great protections, which previously were not lawful. In parallel has become the most dangerous of all in which the right to silence came to be severely dimin- the rights of the individual have eroded to the ished so that an inference could be drawn from most basic level and the powers of the State failure to answer questions at the police sta- grown stronger and greater. tion. That was an appalling quantum change. It is a constant battle to attain any degree of It was rationalised on the basis that the person protection at all. Many guarantees have gone detained was getting considerably greater pro- now that we regarded as enviable in the past. tection than before by the guarantee of a lawyer’s presence and by the tape recording of Majida Bashir is a paralegal at Sonn Macmillan interviews and the state, in return, could Walker solicitors and a member of the demand a ‘balance’. I regard that as entirely Haldane’s Executive Committee. Yasin Patel is wrong. The absolute right to protection a barrister at 25 Bedford Row

22 Socialist Lawyer June 2011 US flops after leaks show

he most recent scandal to have emerged from the release by Wik- US diplomatic cables released by the WikiLeaks iLeaks of the US cables occurred in early April 2011 when the Ecuado- whistle-blower website have increased the rian Government announced that US Ambassador Heather Hodges strains on already troubled US-Latin America Twas a persona non grata and must leave Pablo Navarrete Ecuador as soon as possible. relations, says The Ecuadorian Government’s announcement was made in reaction to comments attributed to Hodges is the second US ambassador forced know how to have normal diplomatic relations Ambassador Hodges in a 2009 US diplomatic to leave their post in a Latin American country with democratic, left-of-centre Governments in cable where she described ‘widespread and well- because of scandals resulting from the disclo- the hemisphere.’ known’ corruption among the Ecuadorian Na- sure of cables from WikiLeaks, which has re- He added that there was a trend – well doc- tional Police (ENP), and made specific allegations leased more than 6,300 US State Department umented through US Government cables, fund- against a former ENP commander. cables since November 2010 through the inter- ing disclosures, and other information – of The Associated Press reported that Ecuado- national news media. attempts to undermine Governments in Bolivia, rian foreign minister, Ricardo Patiño, said the am- In March 2011, the US Ambassador to Brazil, Honduras, Venezuela, and other coun- bassador, Heather Hodges, had not ‘adequately Mexico Carlos Pascual resigned following Mex- tries. ‘They still haven’t restored ambassadorial explained the presumptions she expressed in the ican Government outrage over cables released relations with Bolivia, and can’t seem to find an cables’ that Ecuador’s leftist president, Rafael by WikiLeaks describing friction between ambassador for Venezuela,’ Weisbrot noted. Correa, was aware of the ‘supposed acts of cor- Mexico’s army and navy, and in which the am- ‘Despite a much better media image, they don’t ruption by members of the police leadership and bassador complained about inefficiency and in- seem be doing any better than the Bush admin- more specifically the former commander of the fighting among Mexican security forces. istration in the region.’ institution, Jaime Hurtado Vaca.’ The resignation and expulsion of the US am- Weisbrot also noted that Ecuador would also Hodges is the third US diplomat to be ex- bassadors in Mexico and Ecuador form part of have cause to be concerned about a cable from pelled by President Correa since he took office a wider trend of recent setbacks in US-Latin Bogotá, that was shared with the US Embassy in in 2007. Correa’s presidency has come to be as- American relations. Quito, revealing that ‘the [Government of Colom- sociated with the ‘pink tide’ of leftist govern- In March 2011, at the beginning of US mil- bia] GOC plans to selectively leak information ments in the region, and Correa is a close ally of itary air strikes on Libya, former Brazilian pres- from FARC computers connecting Presidents presidents Hugo Chávez of Venezuela and Evo ident Luiz Inácio ‘Lula’ da Silva declined to Chávez and Correa and their Governments to the Morales of Bolivia. attend a meeting between President Obama and FARC over the next 4-6 weeks…’ The cable notes The US Government supported a brief coup former presidents of Brazil. Brazil’s Govern- that the Colombian Government was providing against Chávez in 2002 and was accused of sup- ment, like many in Latin America, has been an the US with the hard drives, but ‘on the condition porting Bolivian groups and individuals impli- outspoken opponent of using foreign military that we not release any information without first cated in a coup attempt against the Morales force in the Libyan conflict. consulting with the GOC.’ government in 2008. The new expulsion will The increased tensions in US-Latin Ameri- The cable described how ‘the GOC plans to leave all three of those countries without US can relations also follow recent revelations in selectively provide intelligence from the com- ambassadors. cables released by Wikileaks that describe US puters to carefully chosen North American, Responding to Ambassador Hodges’ expul- Government co-ordination with Colombia over Colombian, Spanish, and Latin media tied to sion from Ecuador, the US State Department, a public relations strategy to attempt to link specific themes’, with one of the proposed said in a statement that it considered the deci- Ecuadorian President Rafael Correa to a main themes being ‘the FARC and President Correa’. sion ‘unjustified, and we deeply regret that the Colombian guerrilla group, the FARC. There is no indication of US Government Ecuadorian government took it. The depart- Commenting on the scandals affecting US- concern over the validity of these claims, which ment will examine its options to respond to this Latin American relations resulting from disclo- were based solely on information provided by Ecuadorian action.’ sures from the US Government cables released the Colombian Government. Two days after Ambassador Hodges’ expul- by WikiLeaks, Mark Weisbrot, Co-Director of sion the US State Department ordered the the Washington DC based think tank, the Pablo Navarrete edits www.alborada.net –a Ecuadorian ambassador, Luis Gallegos, be ex- Center for Economic and Policy Research, said: website covering Latin America related issues pelled from the US, in a diplomatic tit for tat. ‘The Obama Administration doesn’t seem to such as politics, media and culture

Socialist Lawyer June 2011 23 In March 2011 three members of the Haldane’s executive committee joined colleagues from the American National Lawyers’ Guild and the Turkish human TUN rights organisation Mazlumder in a delegation to Tunisia to meet with various groups at the heart of the revolution. Russell Fraser was one of them... IN R

could document in our report. We asked to know how the Government would provide for the compensation and rehabilitation of ur base for the delegation former political prisoners; whether Tunisian was a hotel in central Tunis ex-Guantánamo detainees could return to on the Avenue de Habib their country; and what sanctions could Bourghiba, named after the those who tortured and abused under Ben last dictator but one to rule Ali expect to receive. In response, Mr Essebsi the country. The street bore was rehearsed, calculated and non-commit- Oall the hallmarks of French colonial history. brought together a number of newly released tal. He told us that the interim Government Across the street from our hotel stood the and former political prisoners. Over one could not apologise for crimes of the previ- hugely imposing building of the Ministry of thousand people crammed into a former ous Government and that his role was noth- the Interior – protected by tanks, soldiers Government building which only weeks ing more than one of holding the fort until and razor-wire – which was known as a cen- before had hosted a conference of an entirely the elections in July. After the elections, he tre for torture and repression under the different character and had been addressed said, former ministers and Government offi- regime of Zine El Abidine Ben Ali, by Ben Ali and his fellow fallen despot, cials would stand aside, ensuring credibility Bourghiba’s successor. It was outside here Hosni Mubarak. Musicians played music for the new administration. However, during that throughout the revolution Tunisians and songs previously banned under the Ben our visit we learned from others that mem- would gather chanting ‘degage’ (‘leave’) the Ali regime along with compositions penned bers of Ben Ali’s Government were still cry which became the unifying call for an after the revolution which narrated the involved with politics or were involved in uprising. Indeed, during our stay the street events which had passed. The crowd sang creating new political parties. Mr Essebsi hosted a number of protests and demonstra- along while waving the flags of Tunisia, told the delegation that there were no longer tions, as people continued to show their Egypt and the adopted colours of the Libyan political prisoners in the country and all had opposition to vestiges of the Ben Ali era. rebels. The mood was one of overwhelming been released under an amnesty following When Hilary Clinton came to the country solidarity as we heard from speakers across Ben Ali’s departure. This was also challenged during our visit protesters took to the street the political spectrum, all of whom had suf- by many of the democracy campaigners we and she too was greeted with the chant of fered at the hands of the Ben Ali state. spoke with later. ‘degage’ rather than the As-Salamu Alaykum The following day we met with the Mr Essebsi’s attitude was typical of the for which she might have hoped. Tunisian interim Prime Minister, Beji Caid members of the interim Government with Our schedule began with the L’Associa- Essebsi. We went to the meeting intent on whom we spoke. That it was a transitional tion Internationale de Soutien aux Prison- asking Mr Essebsi difficult questions and in phase for the country was not in dispute. Yet niers Politiques (AISPP) conference which the hope of receiving assurances which we those who could begin the painful process of

24 Socialist Lawyer June 2011 NISIA EVOLT

agreed to work together in opposition to Ben Ali. It was this coalition, according to Ennahda, which gave confidence to the young and raised resistance when it became clear Ben Ali was preparing to stand aside in favour of his son. They believed this social movement was ahead of the political parties victim of intimidation and harassment, the when the protests began in Sidi Bouzid and rejoinder came: ‘A better question is “Have other towns. This had been a revolution you ever practised your profession in a nor- truth and reconciliation seemed more intent against corruption and dictatorship. mal way, even for a day?”’ on using this transition as a reason for doing In other meetings, bloggers told us of their It would have been inappropriate for any nothing. mission to evade censorship and publish delegation to Tunisia to have concluded with- The views of those who will participate in details and pictures of torture while trying to out visiting the town of Sidi Bouzid, where, in the elections of 24th July 2011 were illumi- remain anonymous and unknown to the desperation at his poverty and humiliation, nating. We discussed the political climate authorities. One interesting detail of their Mohammed Bouazizi carried out his act of with representatives of the Tunisian Com- struggle concerned the use of Facebook. self-immolation. In Sidi Bouzid and neigh- munist Party (POCT) and the main Islamist When a number of Tunisian youth wrote to bouring Kasserine the people’s concerns were party Ennahda (‘Renaissance’ in Arabic). Facebook detailing instances in which they characterised by a mistrust of the distant Hamma Hammami POCT’s leader who had believed their accounts had been hacked by Government in Tunis and anger and frustra- only recently returned from exile was clear state agents, Facebook created a new secure tion at levels of unemployment. that the planned elections were being held site for Tunisia impregnable to the hacking of The course Tunisia has taken is yet to too soon. The date, he said, coincided with a the Government. Facebook has never pub- become clear. Elections for an interim Gov- number of important cultural and economic licly commented on the truth of this claim. ernment will take place on 24th July 2011. It occasions in Tunisia and there were simply A retired judge, who had spent his career must be hoped that Mr Essebsi’s words will too many other preoccupations to be dealt resisting pressure to decide cases in favour of bear fruition and the old order will disappear with before elections should be contem- those with power and influence, told us from public view. But doubt lingers as to the plated. He wanted to see strict rules in place details of the form the intimidation against veracity of his claims to be working in the governing the conduct of elections, especially him took with visits from heads of court or people’s interest and at the time of writing concerning party funding since it was the threats from police in courtroom corridors. more unrest has come to the streets of Tunis. enemies of the revolution who had the finan- ‘In Tunisia’, he told us ‘first we put people in Indeed, since January 2011, each time the cial power. prison, then we find a reason’. The account Government has made a nepotistic or The representatives of Ennahda spoke of was similar to that of Samir Ben Amor, a unpopular appointment, crowds have the history of repression their members had lawyer who has worked with Tunisian demonstrated against it until the decision suffered under Ben Ali. Corruption and Guantánamo detainees and other political was reversed. There can be no rest for the old autocracy, they told us, reached every Gov- prisoners. He told us of criminal damage car- regime. The people are watching. n ernment department. Ennahda had been ried out against his offices and car, false part of the 18th October coalition, a group charges of tax irregularities and facing Russell Fraser is a paralegal at Birnberg of political and civil society organisations obstruction when trying to visit clients in Peirce & Partners and a member of which included POCT and which in 2005 prison. When I asked him if he had been the Haldane’s Executive Committee

Socialist Lawyer June 2011 25 Women’s Access to Justice is an important new research report from Rights of Women. Catherine Briddick outlines their findings on legal aid and access to justice

Legal advice and violence against women professionals who work on violence against women such as Over the past 35 years Rights of Women has been providing social workers and police officers; and legal professionals. In women with free legal advice and information on a range of total just under 1,000 people responded to our surveys. legal issues, including: family law and domestic violence; What emerges from our research is a system of legal aid that criminal law and sexual violence; and immigration and is meeting the needs of some of the most vulnerable people asylum law. Throughout that time the women who have con- in our society, as one of the individual women who re- tacted us have described a range of encounters with the civil sponded said: ‘...legal aid is not only a necessary tool for vic- and criminal justice systems. Central to those experiences has tims of domestic violence, it is also a life saving tool both been legal aid. for women and children.’ We know that legal aid is a vital, lifesaving resource. Women’s ability to obtain and benefit from their legal rights Gender-based violence and remedies is dependent upon their ability to access legal in- Fifty-eight per cent of the individual women who responded formation, advice and representation. Women experiencing to the survey had experienced violence. This ranged from violence may need advice on how they can protect themselves domestic violence and harassment to childhood sexual from violence by seeking non-molestation or occupation abuse. Fifty-four per cent of these women did not report this orders; how to divide joint assets and debts following rela- violence to the police or apply to the courts for a protection tionship breakdown; deal with the family home; make order. arrangements for child contact and organise child mainte- Seventy-nine per cent of professionals responding to vio- nance. Women at risk of specific forms of violence that dis- lence against women thought that the women they supported proportionately affect black and minority ethnic and refugee did not routinely report that violence to the police or seek the and asylum-seeking women (such as forced marriage, dowry- protection of the courts. related violence and female genital mutilation) may need ad- Women experiencing violence had a range of legal prob- ditional specialist legal advice on these issues. lems in a variety of areas of law, including in relation to chil- The provision of legal advice is a fundamental part of the dren (24 per cent), divorce (33 per cent) and housing (24 per right to a fair trial under Article 6 of the European Conven- cent). Victims of gender-based violence, including domestic vi- tion on Human Rights (ECHR). The UK has also committed olence, need advice and representation on a range of legal to the provision of free or low-cost legal aid when it signed the issues if they are to obtain protection, not just domestic vio- Beijing Declaration, adopting the Beijing Platform for Action, lence injunctions which accounted for just 14 per cent of re- at the Fourth World Conference on Women in 1995. As vio- spondents’ legal problems. lence against women is both a cause and a consequence of The MOJ’s consultation document proposes that legal aid women’s inequality, the ability to access free or low cost legal to resolve family law matters, other than to obtain domestic advice is particularly important for women who are more violence injunctions, will only be available in domestic vio- likely to experience economic disadvantage and be less likely lence cases where the victim meets one of the following re- to be able to pay for legal advice. quirements: l Where the Legal Services Commission (LSC) is funding Our research ongoing domestic violence or forced marriage proceedings Following the opening of the Ministry of Justice (MOJ)’s brought by the applicant, for example an application for an consultation on the ‘reform’ of legal aid, Rights of Women injunction, or has funded such proceedings within the last 12 decided to undertake research into the operation of the cur- months and an order was made, arising from the same rela- rent legal aid scheme and the proposals to ensure that our re- tionship; sponse to the consultation was evidence-based and that our l Where there are ongoing privately-funded or self-repre- conclusions represented the views of the individual women sented domestic violence (or forced marriage) proceedings, and the professionals we work with. To do this we created for example, an application for a protection order, or where three surveys on legal aid and access to justice which were there have been such proceedings in the last 12 months and available to complete on our website between 17th Decem- an order was made, arising from the same relationship; ber 2010 and 31st January 2011. We developed specific sur- l Where there is a non-molestation order, forced marriage veys to capture the experiences of individual women; protection order or other protective injunction in place s Legal aid: women demand their rights

26 Socialist Lawyer June 2011 Picture: Tim Picture: Hetherington

Socialist Lawyer June 2011 27 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: s against the applicant’s ex-partner (or, in the case of forced “It is clear from our ability to understand proceedings, while legal professionals marriage, against any other person); research that the expressed concern about the complexity of proceedings and l Where the applicant’s partner has been convicted of a crim- evidential the ability of litigants in person to advocate for themselves ad- inal offence concerning violence or abuse towards their family requirements equately. proposed would unless the conviction is spent. leave the majority One professional who responded to the violence against It is clear from our research that the evidential require- of women women issue gave the following account of a woman who ments proposed would leave the majority of women experi- experiencing was unable to function when she saw the perpetrator of vio- encing violence without protection as victims or survivors of violence without lence in court. This example is particularly interesting as it il- domestic violence simply do not routinely report that vio- protection as lustrates how the court process can be used to facilitate lence to the police or apply to the civil courts for a protection victims or survivors further abuse: order. The following case-study, provided by a legal profes- of domestic violence ‘A woman was and still is being persecuted by her hus- sional who responded to our survey, exemplifies this: simply do not band. He is representing himself and continually takes her to ‘One recent example was a young mother of two who had routinely report court and fires questions at her, the case has been going on for that violence to the two years. She is an ethnic minority, living in vulnerable hous- been brought through marriage from Pakistan to the UK. She police or apply to was subject to frequent and extreme abuse from all members the civil courts for a ing until the case is settled with a five year old daughter. She of the father’s family and the father, including verbal degra- protection order.” is highly intelligent and generally able to represent herself dation, being hit, made to stay up all night as a punishment well, but in front of the perpetrator she becomes a wreck and and burnt with hot oil. Her children were removed from her is unable to string two coherent words together. I don’t believe care by the family if she displeased them. Eventually she was under any circumstances she could represent herself and could made to live with the father’s sister, who orchestrated a gang certainly not afford to pay for representation.’ rape of her. She eventually fled to a refuge. The family issued residence and contact applications. Ultimately the court ac- Mediation cepted all of her allegations. There had been, however, no Mediation is also being presented by the MOJ as an alterna- preceding injunction or criminal convictions.’ tive to litigation in most family disputes; however, our research highlighted real problems with this approach: Self representation l 66 per cent of individual women thought that mediation The consultation proposes that where legal aid is no longer was not appropriate in domestic violence cases, in compari- available, for example, in immigration or family cases that son with 70 per cent of legal professionals and 80 per cent of are removed from the scope of legal aid, individuals with legal professionals who respond to violence against women. These problems should be able to represent themselves. However, in figures suggest that the more that a person knows about vio- our research we found that: lence against women, the less likely they are to believe medi- l 89 per cent of individual women and 97 per cent of legal ation appropriate in domestic violence cases; representatives thought that women experiencing violence l All respondents raised concerns about safety and the re-vic- would be unable to represent themselves; timisation of the women concerned. l Individual women were concerned about their safety and One legal professional shared an account of a case that

28 Socialist Lawyer June 2011 exemplifies many of the problems of using mediation in cases women experiencing violence are able to get face-to-face, spe- involving domestic violence: cialist, legal advice. ‘The mother had felt bullied in mediation and agreed to The majority of those who commented on this proposal in contact with her violent ex-partner and daughter. With legal our surveys were concerned about the ability of women to aid she was able to fight the case, prove the violence and disclose violence and other discrimination to someone un- obtain a domestic violence report and a Cafcass report which known and possibly untrained, over the phone. As one re- showed that the ex-partner posed a significant risk of physi- sponse said: ‘Difficult to trust someone on phone with highly cal and emotional harm to her and that indirect contact was personal details such as sexual abuse.’ appropriate. Without legal aid she would still be at risk of The ability of women to be able to use the helpline was physical harm. She would now be sent to mediation and that also questioned by one individual woman respondent who would not be appropriate. She was a victim of domestic abuse said: ‘I maybe wouldn’t explain my situation properly and she was not able to discuss the abuse for some time.’ whereas a solicitor asks you specific questions in order to assess your situation.’ Areas of law removed from scope of legal aid All respondents to our surveys were concerned about the re- Other sources of advice moval from the scope of legal aid of areas of law such as pri- Respondents who were unable to get legally aided advice and vate family law, immigration law and welfare benefits and representation would either go, or refer their service-user to housing law. a law centre (60 per cent), Citizens Advice Bureaux (85 per l 97 per cent of professionals who respond to violence cent), specialist organisations working against violence (70 against women and 97.5 per cent of legal professionals per cent) or Rights of Women (56 per cent). thought that women experiencing violence would not be able However, these sources of support are unlikely to be able to represent themselves if they had legal problems in areas to cope with increased demand for their services. Indeed, that are proposed to be removed from the scope of legal aid; given the dependence on legal aid of Citizens Advice Bureaux l Of most concern to these respondents was the removal of and law centres and given the current financial situation, it is family, welfare benefits and immigration law from the scope of questionable whether these sources of advice and support will legal aid as these areas were identified as particularly complex. continue to be available at all. This will leave many with The vulnerability of women experiencing domestic vio- nowhere to go to get life-saving legal advice and representa- lence and their inability to represent themselves was summed tion. up by one legal professional who gave this example of a woman who had been helped by legal aid in relation to an im- Legal aid, access to justice and international migration law problem: human rights law ‘I recently represented an Iranian woman who was in the The right to a fair trial is set out in Article 6 of the ECHR UK on a spousal visa. She was a victim of domestic violence which is incorporated into UK law through the Human and her marriage broke down. As a result she suffered Post Rights Act 1998 (HRA). The right to a fair trial and the abil- Traumatic Stress Disorder, depression and anxiety. She was ity of an individual to access a court and the protection of the completely alone in the UK, save for her abusive husband. law are fundamental human rights which are inextricably She called the police following an attack by her husband and linked with the protection of other fundamental human was referred to the Citizens Advice Bureau for advice. CAB rights, such as the right not to be subject to inhuman and de- then referred her to a solicitor for assistance with her divorce grading treatment under Article 3 ECHR and to respect for proceedings. She was granted legal aid and they helped her “Mediation is also private and family life under Article 8 ECHR. gain access to her home and financial support while her di- being presented by Often discussions about Article 6 and legal aid focus on vorce was going through. The same solicitors also dealt with the Ministry of the criminal law. However, the right to a fair trial and legal aid her immigration appeal through legal aid when her husband Justice as an also apply to civil law issues, including areas such as family informed the Home Office that the marriage had broken alternative to law. The European Court of Human Rights has determined litigation in most down and curtailed her leave. She was severely depressed and family disputes; that the ability to access legal aid is central to this right. found it difficult to assist her lawyers prepare the appeal. She however, our In the case of Airey v Ireland [1979] ECHR 3, the ECHR regularly broke down in tears and found the whole process research held that a failure to provide legal aid to enable a victim of do- extremely tiring and hopeless. If she was dealing with the highlighted real mestic violence to get a judicial separation from her husband matter herself, I am sure she would have given up.’ problems with this violated Article 6(1) of the ECHR. Importantly, in this case approach” the European Court of Human Rights (ECtHR) articulated The telephone helpline the important principle that the ECHR is not about ‘theoret- The consultation suggests that many applicants would prefer ical or illusory’ rights, but rather these rights must be ‘prac- to get advice over the telephone rather than in person and tical and effective’. In relation to Article 6, the Court said this proposes setting up a telephone helpline as a single gateway principle ‘is particularly so of the right of access to the courts for all civil legally aided advice. This proposal was roundly re- in view of the prominent place held in a democratic society by jected by all respondents to our surveys: the right to a fair trial’. l 68 per cent of individuals said that they would not feel The Court recognised that while Article 6 does not require confident speaking to an operator on a helpline about their blanket access to legal aid for all civil cases, legal aid may legal problem; 93 per cent said they would prefer to speak to nonetheless be required in certain circumstances to ensure the a solicitor or advisor in person; fairness of proceedings: l 77 per cent of professionals who respond to violence ‘Article 6 para. 1... may sometimes compel the State to against women and 93 per cent of legal professionals thought provide for the assistance of a lawyer when such assistance that an operator on a helpline would not be able to identify proves indispensable for an effective access to court either be- and respond to violence against women; cause legal representation is rendered compulsory, as is done l 79 per cent of professionals who respond to violence by the domestic law of certain Contracting States for various against women thought that the women they supported types of litigation, or by reason of the complexity of the pro- would not be able to fully understand and act on advice they cedure or of the case.’ received by telephone; Interestingly, the ECtHR rejected self-representation as a l 91 per cent of legal professionals thought that it was ex- sufficient guarantee of Mrs Airey’s human rights: tremely important that vulnerable clients, such as those ex- ‘The Government contend that the application does enjoy periencing violence or those with disabilities, are able to get access to the High Court since she is free to go before that face-to-face, specialist, legal advice; court without the assistance of a lawyer. The Court does not l 94 per cent of professionals who respond to violence regard this possibility, of itself, as conclusive of the matter. against women thought that it was extremely important that The Convention is intended to guarantee not rights that s

Socialist Lawyer June 2011 29 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: s are theoretical or illusory but rights that are practical and “Rights of Women aid to the applicants deprived them of the opportunity to pre- effective... It must therefore be ascertained whether Mrs believes that the sent their case effectively and contributed to an unacceptable Airey’s appearance before the High Court without the assis- Ministry of Justice’s inequality of arms which violated Article 6 ECHR. tance of a lawyer would be effective, in the sense of whether proposed changes Rights of Women believes that it is clear from the case-law are contrary to the she would be able to present her case properly and satisfac- UK’s domestic and discussed that the right to a fair trial in civil cases requires torily.’ international legal aid be provided in complex cases that engage Conven- The Court went on to examine the proceedings and their human rights tion rights. While the Court makes clear that that ability of complexity and concluded that it was ‘most improbable’ that obligations” an individual to represent themselves in simple and straight- someone in Mrs Airey’s position could effectively present her forward proceedings is sufficient to prevent a breach of their own case. Therefore in this case it was held that access to Article 6 rights, it is also clear that legal aid must be pro- legal aid was required to ensure that Mrs Airey’s right to a fair vided in cases that are complex, where legal aid is necessary trial was not infringed. to enable effective access to a court. In determining com- In Steel and Morris v UK [2005] ECHR 103, the Court ac- plexity, consideration has to be given not just to the relevant knowledged that restrictions can be placed on the right of law and procedure, but also to the capacity of the individual access to the courts, provided that these are pursuing a legit- concerned. imate aim and are proportionate. It therefore, may ‘be ac- ceptable to impose conditions on the grant of legal aid based, Conclusions inter alia, on the financial situation of the litigant or his or her Rights of Women believes that the MOJ’s proposed changes prospects of success in the proceedings’. However, the Court are contrary to the UK’s domestic and international human also noted that legal aid was not required ‘as long as each rights obligations. In terms of our research, we believe that it side is afforded a reasonable opportunity to present his or is striking that these proposals commanded absolutely no sup- her case under conditions that do not place him or her at a port from any of our respondents. It is perhaps unsurprising substantial disadvantage vis-à-vis the adversary’ . The Court that individual women and legal professionals would have set out several factors for determining whether a civil case re- concerns about proposals which would, if implemented, have quires legal aid in order to meet the standard of a fair trial set significant negative consequences for them. What is interest- out in Article 6: ing is that the proposals are rejected as unworkable by those ‘The question whether the provision of legal aid is neces- who have no personal or professional interest in legal aid but sary for a fair hearing must be determined on the basis of the who have unparalleled knowledge of legal aid as a tool for particular facts and circumstances of each case and will victims of violence: professionals who work on violence depend inter alia upon the importance of what is at stake for against women issues. n the applicant in the proceedings, the complexity of the rele- – vant law and procedure and the applicant’s capacity represent Catherine Briddick is the Senior Legal Officer for the him or herself effectively.’ organisation Rights of Women. The full research report, The Court went on to examine the complexity of the rel- Women’s Access to Justice, can be downloaded free of evant proceedings before concluding that the denial of legal charge from their website www.rightsofwomen.org.uk

30 Socialist Lawyer June 2011 Counter-terrorism review ‘T-PIMS’: CONTROL ORDERS LITE?

The Government’s review of counter-terrorism includes the abolition of a host of measures enacted during the New Labour years. Russell Fraser analyses the proposals, which includes a new regime of ‘Terrorism Prevention and Investigation Measures’ (‘T-pims’) >>> Original picture: Jess Hurd / reportdigital.co.uk Jess Hurd Original picture:

Socialist Lawyer June 2011 31 >>>

ome say, satirically, that after his evades the question of whether it is right and first national security briefing “[Any] positive proper for a country such as the UK, which Barack Obama asked if he could advances are purports to abhor torture and human rights have a recount, such was the cata- violations, to enter into any such agreements logue of threats, real or presumed, undermined by the with countries who not only torture but dis- against America. But the joke re- play little remorse about doing so. The recent Sveals a more serious truth about the nature of findings of the review upheaval in Libya darkly demonstrates that pre-election promises. In matters of national these agreements, if they have any value at all, security, it can be expedient for new adminis- concerning control are bankrupted when the first bullet is fired on trations to abandon commitments to the rule a disgruntled crowd. of law by solemnly lamenting that they did not orders and the The UK claims to set itself high standards in know how bad things really were. After the deportation of foreign human rights and so it should. But those stan- conclusion of the Government’s counter-ter- dards do not survive deals in which we shake rorism review in January 2011, the impression nationals accused of the hand of a foreign despot who dutifully might be formed that the coalition will rely on guarantees that he will not harm one deportee, the cry of retreat, the one which snivels: ‘we being engaged in while at the same time his free hand is tortur- didn’t know the whole story’. The coalition ing oppositionists with impunity. Yet Lord agreement, remember, contained the following terrorism” Macdonald of River Glaven QC, the person pledge: ‘We will implement a full programme charged with providing independent oversight of measures to reverse the substantial erosion of the review, endorses this finding. Lord Mac- of civil liberties and roll back intrusion.’ donald, too, has seen no evidence of deported Anyone reading the review document persons having been mistreated on their return might be forgiven for believing that on this oc- were taking usually innocuous pictures in to the countries in question. Nor does he casion a new administration had not aban- public spaces around the country. accept the suggestion that by entering into as- doned its promises at the mere whispered However, these positive advances are un- surances, the UK ‘gives succour to regimes that warning of the police or MI5. The abolition dermined by the findings of the review con- torture’ and instead favours the analysis that of a host of measures enacted during the New cerning control orders and the deportation of by entering into negotiations with other coun- Labour years is recommended. The news that foreign nationals accused of being engaged in tries on the issue of treatment of prisoners it ‘is 28 days’ pre-charge detention for terrorist sus- terrorism. On the latter, the main point of con- likely to have a positive effect upon the pects is to be reduced to 14 days, along with a tention which the review considered was the regimes in question.’ This is a vulnerable Government statement that it ‘can see no sce- practice of deportation with assurances. The group of people with which to enter into an nario that would ever require the use of 42 review explains: ‘When seeking to deport for- experiment in testing the honour of politicians days’ is particularly welcome. Though The eign national terrorist suspects the Govern- who order torture. But the price of these agree- Haldane Society maintains its position that ter- ment may seek assurances from the receiving ments failing is small and few votes are lost rorism should be treated as any other crime state about the person’s treatment on return, banishing people branded terrorists without and so 96 hours’ detention should be the max- so ensuring that the deportation is consistent ever having faced a jury. imum. Following judgment in the European with our human rights obligations.’ At present Appeals against decisions of the Home Sec- Court of Human Rights, the review confirms the UK has generic arrangements with five retary to deport individuals on national secu- that section 44 of the Terrorism Act 2000, countries: Algeria, Jordan, Lebanon, Libya rity grounds are heard before the Special which enabled the police to stop and search (though the Government has not succeeded in Immigration Appeals Commission (Siac). A pedestrians without reasonable suspicion in persuading the Courts to return a single feature of Siac cases is that they are heard in certain prescribed circumstances, will be re- Libyan it has sought to deport) and Ethiopia both open and closed sessions. In the closed pealed. The review recommends its replace- all of which are countries which are known to session the appellant has to leave the Court ment with new legislation which only allows use torture. Many oppose these agreements on along with his nominated legal representatives. such searches in exceptional circumstances. A the grounds that they are unreliable and im- Instead he is represented by a special advocate related recommendation suggests changes to possible to supervise or monitored by agencies who is not permitted to take further instruc- the guidance given to officers regarding mem- which lack independence or the skills and re- tions from the appellant when this stage of the bers of the public taking photographs. This sources needed. However, the review con- proceedings is reached. These hearings contain follows the targeting by police of members of cluded that it was satisfied that these evidence which the Government says cannot the public and photographic journalists who agreements have been honoured. The review be revealed to the appellant for fear that it

32 Socialist Lawyer June 2011 Original picture: Jess Hurd / reportdigital.co.uk Jess Hurd Original picture:

would compromise national security. Yet, in full gamut of conditions available under the the three pages of the review concerned with “...the proposed new present legislation, they would be living deportation, there is no discussion of fairness regime of Terrorism amongst us still…’ of these hearings. Crucially, the review is also The review recommends the ending of silent on the bail conditions of individuals ex- Prevention and some of these measures. To order a T-pim, the hausting their legal remedies challenging na- Home Secretary will be required to have a tional security deportation. This is perhaps Investigation ‘reasonable belief’ that an individual is in- best discussed in the context of control orders. volved in terrorism, rather than the lower As the review states, control orders were in- Measures (T-pims) threshold of ‘reasonable grounds to suspect’. troduced in 2005 as emergency legislation. But curfews will still exist in the form of Nonetheless, six years later individuals are still has already been overnight residence requirements and elec- being made subject to control orders and a labelled as a ‘control- tronic tagging will remain. Neither would total of 48 people have been served with one deter a committed terrorist. The review speaks since their introduction. The review rightly ac- order lite’ by the civil of imposing ‘only limited restrictions’ on using knowledges that control orders have been crit- telephones and the internet, freedom of asso- icised because they are applied in the absence liberties campaign ciation, and geographical bans but gives no in- of charges or convictions, because the Home dication of what in practice this would mean. Secretary relies on closed evidence in obtaining organisation Liberty” In his conclusion Lord Macdonald says fur- them, and because of the onerous and intru- ther explanation is required and will only then sive obligations they impose. If the coalition reveal the extent to which the coalition is com- Government were to remain true to its agree- mitted to the ‘re-balancing of public policy in ment document then control orders would favour of liberty.’ have to be abolished, perhaps even in the face prosecute, no British citizen should be told by However, the Government has decided to of the recommendations of the review. the Government where he may or may not continue the control order regime at least However, the proposed new regime of Ter- live. The review is clearly right to recommend until the end of the year. That means that con- rorism Prevention and Investigation Measures the abolition of this thoroughly offensive prac- trol orders are still being issued and the full (T-pims) has already been labelled as a ‘con- tice. It is disproportionate and there is no jus- range of measures is still available to the trol-order lite’ by the civil liberties campaign tification for its retention.’ Incredibly, the full Home Secretary and even the worst aspects organisation Liberty. The review identifies the range of these conditions can also be imposed of control orders, including relocation, are difficulties of prosecuting people suspected of on appellants on bail to Siac and in the past still being imposed on those accused of ter- involvement in terrorism but whose activities some of the appellants have been subject to rorist activity. have been disrupted long before being allowed curfews for periods between 20 and 24 hours, For civil liberties lawyers and campaigners to come to fruition. It argues that this can lead exceeding that available in control orders. Yet, the review can only be considered a disap- to the Crown Prosecution Service (CPS) de- there is no discussion of Siac bail in the review pointment and a failure. The full extent of the ciding there is insufficient evidence to prose- at all, nor a justification for the dissonance be- recommendations is not properly outlined, cute and the suspect is released. The review tween Siac bail conditions and the new pro- though are likely to be debated later in the argues that there must be powers to deal with posals for control orders. year. To that extent, there may still be an op- them and, for example, foreign nationals who Furthermore, Lord Macdonald also criti- portunity to prevent the transparent rebrand- cannot be deported. At present, the types of cises many of the measures as anathema to ef- ing of control orders. The Government, which obligations imposed on those subject to con- ficient evidence gathering. If prosecution is to previously said ‘We didn’t know the whole trol orders include lengthy curfews, electronic remain a priority in these cases then it can be story’, will now tell Parliament ‘Only we know tagging, bans on associating with certain said with certainty that obtaining evidence the whole story: trust us’. It will require brave people, geographic boundaries from which necessary to that end is likely to be frustrated and honest politicians to refuse to be black- they cannot stray and in some cases relocation in preventing suspects associating, using tele- mailed with fear of the unknown and appeals to another part of the country. phones and the internet and going to certain to specious and unspecified security service de- In his report of the review, Lord Macdon- locations. Lord Macdonald says as much mands. ald criticised the practice of relocation, calling when he writes ‘[w]e may safely assume that if it ‘[a] form of internal exile, which is utterly in- the Operation Overt (airline) plotters had, in Russell Fraser is a paralegal at Birnberg Peirce imical to traditional British norms. In the ab- the earliest stages of their conspiracy, been & Partners and a member of Haldane’s sence of any intention to charge, still less to placed on control orders and subjected to the Executive Committee

Socialist Lawyer June 2011 33 ast year Naval Leading Medical As- tors within the military. However, the rejection sistant Michael Lyons received a of Lyons’s appeal arguably also forms part of draft order to deploy to a longer history of the failure to implement Afghanistan. Lyons had become in- legal provisions which allow for the recogni- creasingly concerned about the UK’s tion of military conscientious objectors. Along- military involvement in Afghanistan. side this, both his experiences of poor treat- LWorried about the level of civilian casualties, ment within the military and his likely he researched the political reasons for the war punishment for refusing to violate his con- and was dissatisfied. Then a large number of science are also by no means unprecedented. military documents released by WikiLeaks, At the moment, although there are measures along with general concerns about his role as allowing for the release of military conscien- a military medic, led him to the conclusion tious objectors, they, along with the procedures that on moral grounds he could no longer for assessing claims of conscience, are flawed serve in the Forces. He, therefore, requested to and are apparently sometimes bypassed. Their leave the military on grounds of conscientious existence is also veiled in secrecy, with few Ser- objection. Having been turned down by the vice personnel aware of their existence. As a Navy, he appealed. On 17th December 2010 result, some objectors take matters into their Lyons was rejected by the Advisory Commit- own hands, choosing to go absent without tee on Conscientious Objectors. In accordance leave and suffer the consequences rather than with the Committee’s practice, no reasons act contrary to their beliefs. were given for their decision. Since making his Since 1970 regulars and reservists who conscience known, Lyons has experienced develop a conscientious objection have been mockery and ridicule from his fellows and at- able to ask to leave the Services. There is sepa- tempts were made to pressurise him into rate provision for this within the Queen’s Reg- changing his mind. Indeed, his family describe ulations for each branch of the Armed Forces. the Navy as having put him through ‘hell’. If refused by the Army, Navy or Air Force, a Lyons remains in the military and has been Serviceman or woman can appeal to the Advi- charged with wilful disobedience because of sory Committee and hope for a favourable rec- his refusal to undertake rifle training in prepa- ommendation to the Secretary of State. How- ration for deployment in Afghanistan. ever, the measures, along with the procedures In asking for an honourable discharge on for making a claim and the information we grounds of conscientious objection, Lyons was have about how objectors are treated in prac-

using a long established procedure for objec- tice, raise serious concerns. / reportdigital.co.uk Jess Hurd Pictures: CONSCIOUS DECISION Under the Queen’s Regulations, conscientious objectors within the military can apply to leave the Forces but, as Lois S. Bibbings argues, the reality can be very different

34 Socialist Lawyer June 2011 Perhaps most fundamentally the regulations include no clear definition of conscientious objection, leading to potential confusion and inconsistency. It is generally assumed that an objection should be to ‘military service’ rather than to taking part in a specific operation but this is not entirely clear. In addition, there is not always a precise line between general and selec- tive objection. Lyons, for instance, started with an objection to involvement in Afghanistan but his stance appears to have become one of more general objection. In the light of this, it is pos- sible that Lyons’s application was rejected because his objection was interpreted as relat- ing to involvement in Afghanistan alone. But as neither the military nor the Advisory Commit- tee gives reasons for their decisions, this is just This is the uniform of speculation. In contrast, there is at least a clear George Sullivan (also statement from the Ministry of Defence pictured above right) – a conscientious objector (MOD) that objections can be religious, moral who refused to fight in or political – although it is unclear whether this Iraq for the British is applied in practice. Army – on a Stop the There is little information about how the War Coalition Bring the conscience provisions are implemented. MOD troops Home figures, released in response to freedom of demonstration in 2005, information requests, merely reveal that 59 calling for an end to the women and men have been recorded as having occupation of Iraq. applied for release from the military on Top left: Protest at the Royal Courts of Justice grounds of conscience since 1970, 43 of these in London last year, in requests were granted by the relevant branch of support of Joe Glenton, the Armed Forces, 14 (including Lyons) then a soldier who refused to went on to appeal to the Advisory Committee, return to Afghanistan. of whom three were successful. However, there are good reasons for thinking that these figures are not an accurate representation of the num- ber of claims of conscience within the military. Indeed, the MOD itself acknowledges that the records of conscientious objector applications may not be complete. For example, the Royal Air Force (RAF) holds no information on this subject for 1970-2000 and no information is available about the sole application recorded as originating in the Army. The fact that 55 of the 59 objector applicants were in the Royal Navy also suggests that different branches of the Forces might be responding to claims of con- science differently, which is perhaps not sur- prising given that each have their own separate conscience provisions. There is also some evidence to suggest that informal rather than formal legal means are sometimes employed to deal with objectors. s

Socialist Lawyer June 2011 35 Right: Ray Hewitt, reservist in the British Army and conscientious objector, speaking at a ‘Bring the troops home’ demonstration in 2005, calling for an end to the occupation of Iraq. Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: s Personnel who wish to leave the military are apparently sometimes discharged on other grounds, whilst reservists who resist recall are rejected by similar means. In addition, informal means are apparently often used to deal with selective conscientious objectors – with an alternative role or deployment being offered as a solution. If this is indeed the case then not only is the formal legal provision for objectors often being bypassed but also the official fig- ures are cast in even more doubt. The provision for objectors has been and remains a well kept secret. A number of per- sonnel have maintained that they felt themselves forced into disobedience rather than acting against their consciences. In 1990 Victor Williams, then a Lance Corporal in the Royal Artillery, felt unable to serve in the First Gulf War. Unaware of any possibility of claiming conscience, he went absent without leave and was tried by court martial and sentenced to 14 months’ incarceration. At his trial he explained that had he known of the provision for consci- entious objection he would not have acted as he did. In 2003 Mohisin Khan, a Muslim and a reservist medical assistant in the RAF, refused to respond to a recall to service, in part, because of which the men could have used. Had they apply for exemption or release. However, the his objection to military involvement in Iraq. He known this and done so, of course, there is no tendency towards non-recognition and poor was court-martialled for being absent without guarantee either that their case would have treatment continued through this period. leave, convicted and sentenced to seven days’ been dealt with through the formal legal route The more recent concerns about military loss of privileges. His defence, that he did not or that they would have been successful. conscientious objectors have been the subject know about and was not given information This gap between the existence of legal mea- of criticism from various quarters for some concerning conscientious objection, was unsuc- sures to accord recognition for military consci- years now. Currently, calls are being made for cessful. In 2007 Joe Glenton, a Lance Corporal entious objectors and the reality of non-recog- the Armed Forces Bill 2010-11 to address some in the Royal Logistic Corps, went absent with- nition, alongside ill treatment and punishment, of these problems. ForcesWatch, for example, out leave when he found he was to be deployed urgently needs to be addressed. It is, however, argues that accessible and transparent provi- to Afghanistan for a second tour. Glenton main- by no means a new problem. For example, sion for objectors in all branches of the Armed tained that he had gone absent because he had nearly a century ago the 1916 Military Service Services should be included in primary legisla- conscience-based concerns about the UK’s Act, which introduced conscription in Britain, tion rather than within regulations. More needs involvement in Afghanistan and that he would provided a procedure for the exemption of con- to be done in order to ensure that the rhetorical have applied to leave the Forces had he known scientious objectors to the military. There was, recognition of military conscientious objection that this was possible. He too was convicted though, much evidence that the measure was becomes a reality. Indeed, further thought and and sentenced – this time to nine months’ mili- not always being implemented and many research might usefully be invested in what tary detention and he was reduced to the ranks. undoubtedly genuine objectors suffered harsh exactly we mean by conscience in the context In each of these cases the question of treatment and punishments within the military of the Forces and what form the recognition of whether selective as well as general conscien- as a consequence of continuing to abide by conscientious objection should take. The latter tious objection is provided for by the regula- their beliefs. It was not until the Second World are important issues, not least for serving (and tions remained unresolved – as did the question War that the principle of allowing for the recog- former) military personnel, lawyers and, of of the possible foundations of a legitimate nition of conscientious objection within the course, the MOD itself. objection. But in all three of these cases the mil- military was established. As a result, up until itary confirmed that there was a well estab- the end of National Service in the early 1960s, Lois S Bibbings is a Senior Lecturer in Law at lished procedure for conscientious objectors objectors to and within the military could the University of Bristol

36 Socialist Lawyer June 2011 Reviews Rising son

Lula, the Son of Brazil (2009) Aristides and Dona Lindu. His Directors – Fábio Barreto & Marcelo rise to become President of Santiago, 130 mins, Costa Films & Brazil is in itself an astounding Globo Filmes story given the gross inequalities of wealth which pervade in lauber Rocha’s 1964 film Brazilian society. In 1952 his Black God, White Devil mother took the family on the Gstunningly captured the well trodden migration route arid unforgiving scrubland of away from the North-East as Brazil’s North-East otherwise they followed Lula’s father to known as the sertão. It is from São Paulo’s port of Santos in the this impoverished landscape that industrialised south of Brazil. It Fábio Barreto’s film starts. Sadly is here that the young Lula in the Lula, the Son of Brazil lacks the film first works in the street as a artistic verve of Rocha’s shoe shine and selling oranges. depiction of religion, violence Much to his alcoholic father’s and the last days of the disgust Lula and his siblings are cangaceiros, the bandits who enrolled by their mother in roamed the sertão. The film primary school where he instead adopts a more formulaic flourishes. She later ensures that path as it charts the birth of he trains as a metal worker. Brazil’s first working class This is very much a film President from his poor origins about the influential in rural Pernambuco state relationship between the young through to the pivotal role he Lula, portrayed in the later parts played in the mass strikes of the of the film by Rui Ricardo Diaz, metal workers in São Paulo and his mother, played by the during the 1970s. veteran Brazilian actress Glória Lula, the Son of Brazil is an Pires. We are taken as far as adaptation of the book of the 1980 in the film’s narrative same name by Denise Paraná. during which time Lula endures Luis Inácio Lula da Silva was personal tragedy and in 1975 is born in 1945. He was the elected as president of the 1964 to 1985. his urban struggle to survive, the seventh child of his parents Metalworkers Union of São The best parts of this metal workshops and the Bernardo do Campo and uncritical biopic are where rarely dangers of taking a highly visible Below: The actor Rui Ricardo Dias plays Diadema. The backdrop to this seen clips of documentary role in the trade union President Luiz Inácio period is the dark days of footage of the mass strikes and movement in the face of a Lula da Silva in Brazil’s military dictatorship protests led by Lula are repressive military dictatorship, Fábio Barreto’s film. which remained in power from interspersed with the film itself. all of which proved so formative Lula himself was arrested and in Lula’s later political imprisoned for his role as an emergence. influential union leader. Lula’s two terms in office as As with Glauber Rocha’s President of Brazil began in Black God, White Devil, this 2002. The documentary film does not offer up a depiction Entreatos by João Moreira of those Brazilian tropical clichés Salles offered up an insightful of football, carnival and beaches. backstage depiction of Lula’s The only glimpse of the exotic is 2002 campaign for presidency. when the young Lula goes to the This is not to be found in this cinema in São Paulo where he film. Lula left office at the end of catches a brief sight of some 2010 with approval ratings of newsreel showing the cable cars 80 per cent having been credited on the Sugar Loaf and a couple with lifting at least 20 million

playing on a beach in Rio de Brazilians out of absolute s Janeiro. It is a world away from poverty owing to social

Socialist Lawyer June 2011 37 Reviews s welfare initiatives such as the Bolsa Família. He has been succeeded in office by the former Poisonous Marxist guerrilla Dilma Rousseff who is forging her own style of Presidency. headlines The record of Lula’s Workers’ Party in government during his Ricin! The time in office was by no means Inside Story of perfect. The Workers’ Party, or the Terror Plot Partido dos Trabalhadores as it That Never is called in Portuguese, was Was rocked by the mensalão by Lawrence corruption scandal in 2005 Archer & when opposition votes were Fiona Bawdon found to be being bought in Pluto Press, Congress. There is also the 2010, ISBN-10: criticism that high levels of 9780745329277, £14.99 income inequality did not decline sufficiently under Lula. he ‘war on terror’ Many of the demands of the orchestrated by the Bush Landless Movement, Tadministration to justify Movimento Sem Terra, were regime change in Iraq was sadly also not met. One of the the reason why five Algerian men surprises of Brazil’s 2010 were prosecuted in this country for Presidential election was the a conspiracy named the Wood emergence of the Greens who Green ‘ricin plot’. Had the five were fronted by Lula’s former men been found guilty by the jury Environment Minister Marina at the Old Bailey on 8th April Silva. She polled 19 per cent of 2005 we would no doubt have the vote in the first round. seen an immediate shift by the However, as Sue Branford Blair Government to bring in observes in her October 2010 draconian measures to crackdown article for Red Pepper on Lula’s on our freedoms and permanently legacy, ‘it would be mistaken to change the landscape of our civil see Lula’s programme as the liberties. Fortunately, the truth The day before news of the The book goes into some detail mere continuation, with a more prevailed and the misguided ricin find made the headlines, to highlight the fictional reporting humane face, of the neoliberal prosecution of these Algerians government scientists had that took place both at the time of policies implemented by his based on seeds, recipes and established definitively that the police raids in September 2002 no poison had been found! predecessor, Fernando Henrique photocopies delivered what could and January 2003 and the lack of Cardoso. Credit must be given only be said as an attempt by the reporting during the trial when to Lula and his foreign minister, Government to meddle with due without trial later in the same inconveniently to the media the Celso Amorim, for their fierce process and create a false year, it should not be forgotten conspiracy started to unravel. The opposition to the US attempt to perception of a risk to public safety that controversial Control Orders book also gives an in depth turn the whole of the Americas for their own benefit. However if were introduced in March 2005, account of the impact that wider into a single free trade area – the you were to read the news while the Old Bailey jury events had before and after the Free Trade Area of the Americas headlines after the trial you may be deliberated. The same evidence trial on the men at the centre of (FTAA) – by 2005.’ Branford mistaken for thinking that there that had just been tried and tested this case and a chronology of the further notes that without Lula’s actually was a ‘ricin plot’, was then used to invoke the events that led to their arrests. support for Venezuela’s Hugo especially as the Government Control Orders against all those These were not to be found in Chávez, ‘the US would probably made no attempt to rectify this who would be subjected to this newspaper articles. This unique have dared to intervene more misconception. Instead story upon pseudo-imprisonment, even collaboration also demonstrates openly to overthrow Chávez.’ story were propagated about the though the jury came back with the importance of the jury system Brazil has changed a great continued risk to the public and the verdicts that found no which is able to stand up to the deal in many ways under Lula. both Government and police network of North African might of the Government in order This film does not look at Lula’s spokesmen fuelled this further by extremists directly involved in to protect the fundamental time as President. It is a film stressing an urgency in the change planning to use toxic chemicals in cornerstone of due process and the about the power to change of the law to allow for longer the UK. Regardless of that, those spirit of those who look beyond society through trade union periods of detention. were the grounds of each of the the headlines for the real story. struggle and about a man’s Although the Blair ten Control Orders that were This is the real story and one relationship with his mother. Government lost the vote on issued by the Home Secretary in that needs to be read. l Tim Potter proposals for 90 days detention March 2005. l Sophie Khan

38 Socialist Lawyer June 2011 Reviews

legal framework of appeals which However, its main purpose is not is not strictly concerned with to campaign on their behalf, but Righting wrongs factual innocence but simply instead to offer guidance on how whether a conviction is safe. to challenge wrongful Claims of allowance the justice system Naughton dedicates a chapter convictions. There is a Innocence by makes for the possibility that to the fact that those who have comprehensive overview of the Michael innocent people can get caught up successfully had their convictions appeals process and relevant law, Naughton with in it seem fair. He argues that overturned still face stigma. He advice on how to gather evidence Gabe Tan 2010, innocence projects have a better argues that we must restore the to challenge a wrongful University of approach to reviewing cases than presumption of innocence. The conviction and even pragmatic Bristol, ISBN 978- the CCRC or Court of Appeal chapter in question does not offer advice such as how to launch a 0-9561001-3-9 because they focus on proving any advice on how this is to be media campaign. In that respect, ‘factual innocence’ and looking at done per se, but lists cases of practitioners are clearly not the r Michael Naughton can the whole of a case, rather than people who have successfully intended target of this book as justifiably claim to be a simply searching for a procedural overturned their convictions but they are likely to be familiar with Dleading expert on the anomaly that may have made a have continued to face criticism in much of the legal guidance. For subject of wrongful convictions. conviction ‘unsafe’. Ultimately the media. the wrongfully convicted and In January 2005 he established though, to clear someone’s name This booklet highlights the their families and friends who the UK’s first Innocence Project at a central goal of an innocence problems faced by the wrongfully want to challenge their Bristol University where he is also project must still be overturning convicted who are stuck within a convictions, this book will be of a Senior Lecturer in Law. His their conviction. They must system which cannot great assistance. work, and that of his colleagues at therefore also work within the accommodate innocence. l Michael Goold the Innocence Project, has been instrumental in a number of decisions by the Criminal Cases Review Commission (CCRC) to Protecting due process refer cases back to the Court of Appeal. Naughton, well Abuse of that particular forum; respected The other considerable strength acquainted with the fallibility of Process by Solicitor Nev Niyazi deals with of this book is the breadth of its our justice system, is the perfect Colin Wells the police station and leading research. As one of the most candidate to draft this booklet. Jordans counsel such as Paul Hynes QC sparingly used jurisdictions Most readers will be familiar Publishing, 2011, contribute to the Court chapters. exercised by the Courts, it is with the more famous cases of ISBN 978 1 84661 The book deals not only with all difficult to find contemporary and wrongful convictions, such as the 229 9, paperback, the areas in which a ‘classic’ abuse reported cases. However, the Birmingham Six and Guildford £55 of process can arise, for example authors have collated both first Four. One of the purposes of this unfair conduct, non-disclosure, instance transcripts and book, though, is to challenge the he second edition of this destruction of evidence. A whole unreported cases in order to perception that such cases are accessible practitioners’ chapter is dedicated to the potential demonstrate the development of confined to a murky past of Thandbook, updated five to stay proceedings where the fertile areas for abuse of process corrupt police officers and a years after its first print run, still defendant is not able to effectively arguments; for example the complicit judiciary. They continue stands out as one of the leading participate in his own trial either increasing number of complex to occur for a variety of reasons; texts. Although the core principle through mental disability or fraud cases suffering from a false confessions, incompetent of when a Court should stay through their age in the case of prejudicial lack of disclosure. police or defence work and police proceedings as an abuse of process children. Since the case of V and T Finally, the text’s clear layout misconduct to name but a few. is relatively straightforward, i.e. v UK, involving the two young and indexing, improved from the Naughton argues that the where a defendant can not receive defendants in the Jamie Bulger last edition, means that it is easy procedural limitations of the a fair trial or, where it would be murder, the Courts have grappled to reference and navigate. It also appeals process and the CCRC – unfair to try the defendant, the with what steps to take in order to contains within its appendices particularly the general main difficulty practitioners face is ensure that an individual can core statutory instruments requirement that new evidence knowing how, when and in what effectively participate in their own including the Attorney General’s can only be considered if it was forum to raise a successful trial in order to be compliant with Guidelines on Disclosure as well not available at the original trial – argument. the fair trial standards enshrined in as sample skeleton arguments and means that those who have been Dealing with these pragmatic Article 6 of the European a short insight on tactical and wrongfully convicted are not issues is the very strength of this Convention on Human Rights. practical considerations. This always able to overturn a verdict text. It comprehensively covers in This book covers the ground from really is a book that is not meant on appeal. They also face individual chapters the arenas in V and T to discussions about to sit on the bookshelf gathering significant disadvantages within which the practitioner can various techniques the Court has dust; it is meant to be used and the prison system as continued consider and raise an argument, adopted for assisting vulnerable provides an invaluable tool to any claims of innocence can result in from the police station, the defendants and is essential reading lawyer or law student who is alive longer custody and lack of access Magistrates’ Court through to the for anyone who represents children to protecting due process and the to rehabilitation programmes. Crown Court. Each of these or vulnerable adults in the criminal right of their client to a fair trial. His criticisms of how little chapters is covered by an expert in courts. l Anna Morris

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