SL65_coverpages_print 14/10/2013 09:23 Page 1 SocialistLawyer Magazine of theHaldaneSociety of Socialist Lawyers ■ Number 65 ● October 2013 £3

Justice in the balance

Legal Aid: the fight goes on Brazil: crisis and uprising Kenya: a new constitution The right to protest SL65_pp2-3_contents&editorial_print 14/10/2013 09:24 Page 2

Haldane Society of Socialist Lawyers

PO Box 64195, London WC1A 9FD www.haldane.org The Haldane Society was founded in 1930. It provides a forum for the

discussion and analysis of law and the legal reportdigital.co.uk / Hurd Jess Picture: 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. The list of the current executive, elected at the AGM in November 2012 is as follows: President: Michael Mansfield QC Vice Presidents: Geoffrey Bindman QC, Louise Christian, Tess Gill, Tony Gifford QC, John Hendy QC, News & comment Legal Aid protests; Reborn in the Helena Kennedy QC, Imran Khan, 4 USA; Young Legal Aid lawyers and On The Picket Line Catrin Lewis, Kate Markus, Gareth Peirce, columns; Stop and search; Vadim Kuramshim; Social Michael Seifert, David Turner-Samuels, Estella Schmidt, Phil Shiner, Jeremy Smith security benefits and ELDH news and events and Frances Webber Who is that man in the Lord Chancellor’s seat? Chair: Liz Davies ([email protected]) Clare Sambrook points a finger at Chris Grayling, the Tory Vice-Chairs: Kat Craig and Anna Morris 12 ([email protected]) minister enjoying his job of destroying legal aid Secretary (job-share): New threat to the right to protest Stephen Knight on Russell Fraser & Michael Goold the new arrest tactic to include legal observers and Michael ([email protected]) 14 Socialist Lawyer editor: Tim Potter Goold and Emily Elliott on an important victory in the High ([email protected]) Court against the Met police and its kettling actions Treasurer: Declan Owens Eddie Gilfoyle: miscarriage of justice ([email protected]) Jacob Bindman Membership Secretary: 18 on the tragic suicide which inexplicably became a murder Debbie Smith Kenya: a new constitution Willy Mutunga on the ([email protected]) culmination of almost five decades of struggles International Secretary: Bill Bowring 20 ([email protected]) The poetry of Talha Ahsan who is currently in pre-trial Executive Committee: solitary confinement in a supermax prison since his Kani Areef, Martha Jean Baker, Alex 24 Chandran, Natalie Csengeri, Rheian Davies, extradition to the USA with co-defendant Babar Ahmad Emily Elliott, Elizabeth Forrester, Thomas Ballots or banners? Film maker Pablo Navarrete looks at Gillie, Margaret Gordon, Agnieszka how student protests in Chile have a political dimension Grabianka-Hindley, Owen Greenhall, 26 Rebecca Harvey, Richard Harvey, Paul Extortion, torture, death: price of migration to US Heron, John Hobson, Sophie Khan, Angus Fiona McPhail reports from the preliminary hearing of the King, Stephen Knight, Siobhan Lloyd, 28 Natasha Lloyd-Owen, Chris Loxton, Carlos international Permanent People’s Tribunal in Mexico City Orjuela, Sam Parham, Wendy Pettifer, It started with a bus fare increase... Rio-based Ripon Ray, David Renton, Brian Richardson, Hannah Rought-Brooks, Marina Sergides 30 Damian Platt analyses Brazil’s 2013 mass demonstrations and Adiam Weldensae What lies behind the ‘urban crisis’? Joviano Mayer 34 and William Azalim look at the roots of the anger in Brazil SocialistLawyer Agreement of the people Paul Feldman on the Editor: Tim Potter campaign for a British constitution Special thanks to: Liz Davies, Russell Fraser, 38 Declan Owens, Mike Goold and Rights or wrongs? Bill Bowring replies to David Renton’s Brian Richardson 40 ‘Do socialists still have an alternative concept of rights?’ Cover picture: Jess Hurd Self determination (www.jesshurd.com) Steven Walker looks at what Design: Smith+Bell 43 influenced young Cuban lawyer Fidel Castro (www.smithplusbell.com) Reviews Undercover; A Very British Killing: The Print: The Russell Press Books: (www.russellpress.com) 44 Death of Baha Mousa; Thompsons; The Innocent & the ISSN 09 54 3635 Criminal Justice System and the film Neighbouring Sounds

2 Socialist Lawyer October 2013 SL65_pp2-3_contents&editorial_print 14/10/2013 09:24 Page 3

from the chair

Three and a half years into the coalition Government unprecedented in the UK although not elsewhere: Austerity, and austerity is well and truly with us. Nor for Pakistani lawyers brought their country to a standstill legal aid, everyone: the incomes of the 1,000 wealthiest people when they went on strike after the Chief Justice had in the UK are growing. But in the real world, those been suspended by General Musharraf. We are all and fighting living off benefits have to find money from what is anxious about our clients: if we do not turn up, will back supposed to be basic subsistence money to pay she be unjustly sent to prison? Or landed with a towards council tax, bedroom tax, and ever increasing judgment? Lose her children? Be evicted? Will I fuel and food bills. Everyday in my practice as a receive a wasted costs order? If we all stand together lawyer I see people threatened with on a one-day boycott, Judges just won’t be able to for not being able to find £25 a week – from non- punish either our clients or ourselves. Collective housing related benefits – for the bedroom tax; the action and solidarity is the key. If we don’t take action benefit cap resulting in 42 per cent of income going on now to save legal aid, when will we? rent; and fewer and fewer people able to obtain legal It is poignant that Tooks Chambers, set up by our advice since the LASPO cuts arrived in April 2013. President Mike Mansfield QC during the 1984 – The Government’s latest attack on legal aid is part 1985 miners’ strike, is a prominent casualty of legal of its assault on the welfare state. Its philosophy is that aid cuts. It is important to note that Tooks’ dissolution public services should only be available for the most is the result of the cuts to legal aid that have already desperate and delivered at rock-bottom cost and been implemented: years of attrition, a 10 per cent cut therefore rock-bottom quality. In health, education in civil legal aid payments in October 2011, low rates and criminal defence, the Government wants two-tier of pay for junior criminal barristers, the LASPO cuts structures: the publicly-funded part of the structure to social welfare law. If the Transforming Legal Aid should be so run-down that anyone who can afford it cuts go through, it is impossible to envisage the buys privately. That has already happened to social survival of specialist, expert legal aid practitioners in housing: 30 years of under funding has turned what any firm or chambers. We are sad to see Tooks’ used to be a universal scheme into an emergency safety demise. We salute the chambers – staff and barristers – net for the most desperate. for its record of fighting miscarriages of justice, An irony is that rich countries could do with a bit of holding the State to account through inquests, austerity. We consume too much fuel, eat too much inquiries and judicial reviews, and for its commitment meat, trade in luxuries and waste far too much. We have to delivering legal services to those who cannot afford a duty to the planet and to poorer countries to change to pay for them. our lifestyles, particularly our fuel consumption, but not This issue of Socialist Lawyer shows just how busy by flat price rises which merely give the rich licence to our membership and executive are, not just trying to consume even more. We need a Government that save legal aid and doing the day job of representing prioritises public transport, cuts down on flying, and clients, but also standing in solidarity against human ensures that everyone can afford to heat their , rights abuses in the Philippines, Mexico, pay their housing costs and put enough food on the Guantánamo Bay, Chile and elsewhere. Two longer table. A bit of austerity on the rich – along with articles show us that socialist lawyers are thinkers as redistribution – would help the planet no end. well as activists: Bill Bowring responds to David People, even lawyers, are fighting back. Renton’s previous article on socialism and legal rights Firefighters, teachers, university lectures are on strike. and we are honoured that the Chief Justice of Kenya, A Day of Action against Austerity is planned for 5th Dr Willy Mutunga, has given us permission to November 2013. There is real anger among criminal reproduce his speech on building an anti-colonial defence lawyers and an appetite for direct action. The jurisprudence. Law Society has been roundly condemned for its We hold our Annual General Meeting on 14th Thatcherite plea of ‘there is no alternative’ to cuts to November 2013 with Vice-President Phil Shiner criminal legal aid. Calls for direct action have come speaking on ‘UK human rights violations in Iraq and from the Criminal Bar Association, the London Afghanistan – the present picture’ (see back page). Criminal Courts Solicitors’ Association and other Come along and consider getting more involved: professional bodies not known for their radicalism. motions and nominations for the executive should be Haldane Chair Liz Davies The next step in the campaign to save legal aid sent to [email protected] no later than 5pm speaking at the People’s should be a one-day withdrawal of labour and Monday 11th November 2013. Assembly in June 2013. boycott of the courts. A strike by lawyers would be Liz Davies Chair, [email protected]

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Re-born in the USA

espite what the official transport and public education she history books may try to had been written off by the mass Dtell us, the United States daily city newspaper as ‘too hard has a rich socialist tradition. In the left for Seattle’. She was portrayed first part of the 20th century, the as a fringe underdog. The Seattle Teamsters’ rebellion in Times was forced to eat humble pie Minneapolis and Eugene Debs’ when they later admitted: ‘What presidential election campaigns Kshama did was to simply inspired millions of US workers. overturn the common wisdom of However, the relative success of how to succeed in local elections in US capitalism in the 1950s and general and city council races in 1960s, within the context of the particular. She took what were Cold War and the McCarthy-led viewed as two immutable laws witch-hunt of communists, [the need for big money and seemed to diminish and extinguish Democratic Party endorsements] socialism for a generation. and essentially threw them out of Yet struggle, solidarity and the window… it’s nothing short of socialism remain very much on the an earthquake… Kshama has agenda in 21st century America. shown a new path for independent Already this year fast food candidates who directly advance workers have held a series of one working people’s interests.’ day strikes across major cities There is no doubt the anti- demanding a minimum wage of corporate message of the $15 per hour. The campaign hit a chord. As Kshama movement, born as a result of the stated in her address about the financial meltdown in 2008, and established politicians, ‘It is a later brutally attacked by police, scandal that Seattle council has maintained its momentum members pay themselves through Occupy Homes, stopping $120,000 a year… meanwhile the the of homes – see workforce in the city struggles www.occupyhomesmn.org. with low pay’. There have also been some Over in the mid-west Ty surprising election results because Moore, a socialist activist in of old style campaigning and Minneapolis is also challenging socialist politics. For instance in for a seat in the city council. He is the August 2013 primary election standing in the 9th ward which is for Seattle City Council a socialist seen as the most progressive in the candidate, Kshama Sawant, won a city. With 75 active supporters and stunning 35 per cent of the vote a reputation as an active trade with 44,000 votes. unionist he has a real chance. With her clarion call for a city- These two elections illustrate wide $15 per hour minimum that the campaigns of the past are wage, rent control and a tax on maybe the music of the future. millionaires to fund public Paul Heron ‘When I see the Stop the War people saying ‘Hands off Syria’, I want to put my head in m

June 10: Members of Parliament call for a 11: The Justice Secretary, Chris 14: A woman who posted the words 19: The Supreme Court rules that the review of new immigration rules amid Grayling, says he wants some victims ‘Feeling like burning down some families of three soldiers killed in Iraq in fears that families were being to give pre-recorded evidence in mosques in Portsmouth, anyone want poorly armoured Land Rovers can sue separated. The cross-party group criminal trials. Grayling’s to join me?’ escapes prison. Michaela the Ministry of Defence for negligence. found that the minimum earnings rule announcement followed the death of Turner was given an eight-week The court decided that soldiers of £18,600 a year, which came into violin teacher Frances Andrade who sentence suspended for six months fighting overseas can still claim effect in July 2012, meant many non- killed herself following giving evidence following comments she wrote on protection under Article 2 of the EU partners of British citizens were in one trial. However, critics pointed out Facebook about the death of Lee European Convention on Human denied entry to Britain to live with their that such provisions already exist. Rigby. Rights. families.

4 Socialist Lawyer October 2013 SL65_pp4-11_news 14/10/2013 09:26 Page 5

On the picket line A retrograde step

ne of the worst known of she suffers and their impact on her, dismissed. There will never be very the Government’s proposals is not any greater where she is also many of them. The relatively tight Ofor the employment the second or the third employee to tribunal time-limit of three months, tribunal is its plan to remove the bring a claim. Compensation does combined with typical delays of tribunal’s power to make not rise merely because the about a year between claim and recommendations in discrimination employer has a bad history of hearing, makes it impossible for a claims. In theory, where a claimant discrimination. claimant to wait and see what succeeds, the tribunal may make a In most successful cases there is happens with another worker’s recommendation that within a no mechanism by which an claim before launching their own period the respondent takes some employee can confirm that there ‘piggy-back’ case. specified steps related to have been previous claims. There is Our common law principles of Picture: Jess Hurd / reportdigital.co.uk / Hurd Jess Picture: discrimination revealed in the a poorly administered paper compensation again reduce awards proceedings. This is an important archive of tribunal decisions from for those who can say no more than part of the total powers of a which claimants may seek previous that they objected vicariously to tribunal. It is usual for the cases. There is usually a lengthy their employer’s discrimination recommendations to consist of the delay between judgments being against someone else. adoption of an equality policy if the given in court and a paper copy Finally, it has been suggested employer lacks one, or specific deposited there. Without someone that the loss of the power to make training for a team if more than one making the enquiry, there is no way recommendations causes no harm person has been involved in acts of of getting access to previous because the tribunal has no powers discrimination. criticisms of the respondent. to monitor the implementation of From the point of view of Few tribunals would be willing the recommendations it makes. workplace equality, the step is to consider previous decisions This is true, up to a point. clearly retrograde. It reduces against the same respondent, but tribunals have no power to monitor, pressure on employers and reduces would assume they were irrelevant but a determined claimant could the choices open to claimants and to to the case in hand. Even where probably seek enforcement through tribunals where some kind of respondents find themselves losing the civil courts. The general discrimination has been uncovered. in court, they often offer a compliance of employers with There is no ‘balancing’ reform to compromise agreement, with tribunal powers is in general make up for the way in which a confidentiality clauses to protect shockingly poor, with only around useful power which points towards them from bad publicity, before a a half paying any amount of equality is being lost. hostile decision is made. There is no tribunal judgments at all within two In policy circles, various ‘transmission mechanism’ to enable years of a successful claim. attempts are being made to defend serial claims. However no one says that because the Government’s repeal plans. It is Another idea being floated is the tribunals have difficulty enforcing said for example that the purpose of possibility of claimants judgments their power to order these provisions is to punish circumventing the problems of the compensation should be taken employers for discrimination, and repeal of the power to make away from them. that employers can just as well be recommendations by somebody, If tribunal recommendations are punished by groups of employees quite who is not specified, ignored then there would be a much bringing serial cases, with the encouraging workers not directly simpler and better answer to deal compensation rising, as each involved in discrimination claims with this problem: not to protect the employee succeeds. bringing ‘indirect victim’ claims. discriminators, but to require This is to misunderstand the Again, the proposal is reporting and compliance with purpose of compensation in impractical. There have in the past these recommendations and to discrimination claims: it is not to been claims of this sort, for grant the tribunal the powers it punish the aberrant employer but to example, where a worker is needs to punish the employers who compensate the employee for her instructed by their employer to do not comply. ead in my hands’ – . loss. But her loss, meaning the acts discriminate, declines, and is David Renton

July 19: The Supreme Court also quashed 24: A former undercover police officer 3: The Metropolitan police officer Alex 3: The police and crime commissioner an anti-terrorist sanction imposed reveals how the Metropolitan police ran MacFarlane is sacked following his for West Yorkshire, Mark Burns- upon an Iranian bank. The Treasury an operation designed to ‘smear’ the being secretly recorded using racist Williamson, refers the former Chief was ordered to remove sanctions family of Stephen Lawrence as well as language towards a man he had Constable of the West Yorkshire force against Bank Mellat and said that the his friend Duwayne Brooks and arrested. MacFarlane twice stood trial Sir Norman Bettison to the IPCC Government’s secret intelligence was campaigners who supported them. for racially aggravated public disorder following allegations that he tried to irrelevant. The bank was said to have Peter Francis claims he was told to find but on both occasions the juries were intervene in the Lawrence Inquiry. been financing groups involved in ‘dirt’ which could be used against unable to agree a verdict. Bettison had earlier resigned from the Iran’s nuclear programme. them. force over allegations about his role in the Hillsborough disaster.

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all arrests lead to successful prosecutions, it can be seen that Broken promises the effectiveness of stop and search under these powers is almost infinitesimal. top and search has long Any serious attempt to address By comparison, with their been a touchstone issue, stop and search would be widely effectiveness in detecting crime, Sparticularly for black welcomed. There can be little the capacity of stops and searches communities in Britain. Fifteen doubt that it is a blunt and largely to stir up resentment among those years ago it was the major ineffective instrument. Few stops who are targeted is incalculable. complaint raised by community actually result in an arrest let alone The riots that erupted in London activists at the Stephen Lawrence a conviction. According to the and then spread to other towns reportdigital.co.uk / Hurd Jess Picture: Inquiry, and, consequently, a Government’s own statistics, just and cities in August 2011 were primary reason why Sir William over nine per cent of such sparked by the death of Mark Macpherson concluded that the encounters under section 1 of the Duggan at the hands of the police Metropolitan police were Police and Criminal Evidence Act and the subsequent rough institutionally racist. The solemn (PACE) 1984 across England and treatment of a female protester promise made by forces across the Wales in 2009/10 led to an arrest. outside Tottenham police station. land after that report was that the Meanwhile less than 1 per cent of Many of those young people, use of the tactic would be less those conducted under section 44 black and white who took to the arbitrary and more ‘intelligence of the Terrorism Act 2000 resulted streets freely admitted that they led’. in an arrest. did so as a means of striking back It would appear that few The impact in terms of race against a force which they regard lessons have been learned and relations is dire. An Equality and as alien, invasive and oppressive. instead of a more targeted Human Rights Commission They identified with Mark approach, there has not simply report, Stop and Think published Duggan because they themselves been a return to business as usual in 2010 noted that: experience police harassment as a but, rather, a proliferation. In ‘Since 1995, per head of daily part of their lives. 2009/10 the Ministry of Justice’s population in England and Wales, Since then of course we have own publication Statistics on Race recorded stops and searches of learned that the Lawrence family and the Criminal Justice System Asian people have remained itself and many of the activists 2010 recorded 1,141,839 between 1.5 and 2.5 times the rate whose campaigning put the police encounters, a 20 per cent increase for white people and for black on the defensive and led to on four years previously. More people always between four and Macpherson’s landmark ruling recently a report by Her Majesty’s eight times the rate for white have been bugged and spied upon. Inspectorate of Constabulary people.’ Instead of finding Stephen (HMIC) in June 2013 concluded Walkthrough arches to detect Lawrence’s killers, the police were that their disproportionate use has knives, guns and other weapons more interested in protecting their a ‘toxic effect’ on relations have become a familiar sight own and criminalising their between the police and minority outside schools, train and London critics. ethnic communities. Chastened by underground stations. Under these Mark Duggan returned to the this, Secretary Theresa May powers, enshrined in section 60 of nation’s collective consciousness was forced to announce a public the Criminal Justice and Public with the delayed opening of his consultation. As Socialist Lawyer Order Act 1994, black people inquest in September 2013. Our went to press, the outcome of this were up to 27 times more likely to political leaders would do well to consultation was not known, but be stopped than their white pause and give serious given the history of broken counterparts. The number that consideration to the wider lessons promises, we would be well resulted in arrests was two per to be learned. advised not to hold our breath. cent. When we consider that not Brian Richardson Doreen Lawrence speaking at the Trades U July 10: Her Majesty’s Chief Inspector of 18: The Supreme Court strikes down 25: newspaper is the CPS, Michael Fuller, publishes a attempts to change the granted permission to appeal in its bid critical report stating that the CPS was immigration rules. The court said that to have a decision to keep private being damaged by a lack of ministers were not permitted to details of Prince Charles’s lobbying of resources. The CPS faces significant exclude workers, students, and other ministers. The paper has been seeking reductions in staff with its budget being migrants from the UK under criteria not the release of a set of letters written to cut by 27 per cent. ‘Chilling’ laid before Parliament. Government departments over a Officials for Tory minister Eric Pickles period of nine months. describing the effect of agreeing to a Freedom of Information request.

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Fighting for Vadim’s freedom adim Kuramshim was regime re-arrested him in October sentenced to 12 years in 2012 and brought him back to Vprison by the state of court but this time with no jury. In Kazakhstan in late 2012. A human breach of its own procedures, the rights lawyer and human rights court deemed Vadim guilty and defender, he has been awarded the sent him to prison for 12 years on 2013 Ludovic-Trarieux human the same charges on which he had rights prize, one of the oldest and first been acquitted. most prestigious awards given to a The appeal court in February lawyer in the world. Indeed the 2013 upheld the verdict and in first prize was awarded in 1985 to March 2013, Vadim was Nelson Mandela, then in a jail in transferred to a prison colony that apartheid South Africa. is infamous for violations of The award of the Ludovic– prisoners’ human rights. Trarieux prize is a major boost for The Haldane Society welcomes the campaign to free Vadim. The this latest recognition of Vadim prize has the backing of lawyers Kuramshin's vital work as a and human rights organisations human rights defender and across Europe. Its website states: reiterate our belief that he has been ‘Since 2003, the prize is awarded targeted as a result of his peaceful every year in partnership by the and legitimate human rights Human Rights Institute of The Bar activities. We appeal to our of Bordeaux, the Human Rights members and supporters to step up Institute of the Bar of Paris, the the campaign for his release from Human Rights Institute of The Bar prison in time to attend the formal of Brussels, l’Unione forense per la awarding of the prize in Paris on tutela dei diritti dell’uomo (Roma), 5th December 2013. Rechtsanwaltskammer Berlin, the Letters can be sent to the Bar of Luxemburg, the Bar of President of Kazakhstan at the Geneva as well as the Union following address: President Internationale des Avocats (UIA), Nursultan Nazarbayev, Office of and the European Bar Human the President, Akorda Building, Rights Institute (IDHAE) whose Left Bank of the Ishim River, members are the biggest European 010000 Astana, Kazakhstan. law societies fighting for human Emails can be sent to the rights’. Kazakh authorities at embassies Vadim was arrested in of Kazakhstan in your country – September 2012 after returning a list of Kazakh embassies and from a conference in Warsaw consulates can be found here: where he had given a speech www.embassypages.com/ exposing human rights abuses in kazakhstan; Ministry of Foreign Kazakhstan. As previously featured Affairs Republic of Kazakhstan: in Socialist Lawyer, Vadim was [email protected] – please send found innocent by a jury of all the copies to Campaign Kazakhstan: serious charges brought against [email protected] s Union Congress in September. him and released. The Kazak Paul Heron August 30: A challenge to the Government’s 2: Uruguay’s lower passes a 2: A coroner who wrote to the Culture 2: A Home Office swoop on ‘bedroom tax’ is rejected by the High bill that will legalise marijuana and Secretary, Maria Miller, to complain suspected illegal immigrants at rail Court. The judges said the measure regulate its production, distribution about the media’s coverage of an stations, businesses and homes draws was based on a ‘reasonable and sale. The bill fixes the price of inquest at which he presided is criticisms from across the political foundation’. Richard Stein, a solicitor marijuana around $2.50 per gram. censured by the Office for Judicial spectrum. Labour called on the Home for some of the claimants said ‘our Complaints. Michael Singleton had Secretary to say whether the clients are bitterly disappointed with criticised the media ‘intrusion’ and ‘ill- campaign had broken official today’s decision, but they are not informed bigotry’ concerning the guidelines on stop and search. The defeated’. gender change of Lucy Meadows. He move even drew criticism from Nigel had told journalists in court that he had Farage of UKIP. done his own research on the case.

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News&Comment Pictures: Jess Hurd / reportdigital.co.uk / Hurd Jess Pictures:

Hundreds joined the Justice Alliance rally on 30th July outside the Old Bailey in London, opposing the government’s attack on legal aid and access to justice.

organisations to agree now that the legal profession will start by Legal aid battle hots up boycotting the courts – both civil London A large, determined Justice is not fit for purpose. and criminal – on a specified date meeting of criminal solicitors and Speakers from the platform and and will consider escalating action. barristers on 1st October vowed to the floor repeatedly called for escalate the campaign against barristers and solicitors to stand Manchester On 29th September Grayling’s proposals to decimate united and withdraw their labour the Northern Save Justice legal aid, and to withdraw their from the Courts. There was Campaign held a spirited rally labour as part of that campaign. widespread dismay expressed from outside Manchester Crown Court, The meeting, called by the both the platform and the floor at writes Mikhil Karnik. It was Criminal Law Solicitors’ the position of the Law Society not addressed by Jennifer Hilliard of Association, the Criminal Bar to stand in solidarity with their Parents for Real Justice, Jean Association and the London criminal members and colleagues Betteridge from Access to Advice, Criminal Courts Solicitors’ by taking a firm stance to oppose Manchester barristers John Association, was attended by the cuts and support direct action. Nicholson, Jared Ficklin, and around 500 barristers, solicitors, There remain discussions to be Mark George QC, Denise and legal executives. It had as to when and in what form McDowell of Greater Manchester Labour’s Shadow Justice Secretary unanimously voted to oppose all the withdrawal of labour will take Immigration Aid Unit, and by Sadiq Khan MP spoke at the rally the different cuts to legal aid and place. The Haldane Society would Labour MP Kate Green. Speakers outside the Old Bailey. declared that the Ministry of encourage the various professional spoke about the hypocrisy of

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YoungLegalAid 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 Carry on regardless

he Government’s approach individuals who rely on it to statistics. Transforming Legal Aid to legal reform has become safeguard their rights. The saw more of the same, with the Twearily familiar. Step one: Government received in the region attack focused more closely on design a set of proposals that will of 16,000 responses, the majority claimants reliant on legal aid. In undermine access to justice for in opposition to the proposals. this latest consultation the vulnerable group x. Step two: trail Nevertheless, on 5th September Government has truly nailed its the proposals in the right wing 2013, the Ministry of Justice ideological colours to the mast. press supported by irrelevant announced its intention to carry on The effect of the proposals, and/or inaccurate material relating regardless. among other things, will be to to fat cat lawyers/spurious cases/ True, the Government has increase the financial risk to those left wing campaigners (delete as made some concessions. In who try to challenge the unlawful appropriate). Step three: release particular, we are no longer facing acts of the State and tighten up the proposals with an improbably price-competitive tendering for rules that dictate who can bring tight timeframe for consultation. criminal legal aid contracts. such challenges. The consultation The timetable should be as Instead the Government has is littered with choice phrases: inconvenient as practicable. proposed a mixed model, with an judicial review, we are told, is Where possible, it should coincide element of competition (for police being used as ‘a delaying tactic’ with a time when our elected station work) while leaving clients undermining Government representatives are on holiday and with the ability to choose their reforms, a ‘campaigning tactic’ to not available for discussion. For own solicitor. And certain limited generate publicity, and generally as example, a 36-hour consultation exceptions have been introduced a means to ‘frustrate or discourage on bringing back capital to the abhorrent residence test, for legitimate executive action’. An punishment to restore the victims of trafficking among article in The Daily Mail, trailing credibility of the criminal justice others. the proposals and quoting Lord system by clamping down on the These concessions should not Chancellor Chris Grayling, rails 63.2m Britons who dodge the be overstated. It would be wrong against campaigners challenging death penalty each year; responses to say we have won. A 17.5 per the legality of the HS2 High Speed by 14:00 on Boxing Day. Step cent cut in fees for criminal legal Rail Line. While, in similar vein, four: ‘listen carefully’ to the aid will still sound the death knell the consultation paper singles out multiple thousands of respondents for many firms. And allowing the efforts of peace activist Maya who explain in simple language victims of trafficking legal aid to Evans in holding the Ministry of why the proposals are really not a help with their employment Defence to account for the very good idea. Step five: carry on dispute is of limited value if those unlawful acts of the armed forces regardless and use secondary same individuals cannot get free in Afghanistan. As if these matters legislation where possible. legal help when they are destitute are not of legitimate public And so it was with and homeless. Nevertheless that is concern. Transforming the effect of the exception. The The picture that emerges is a Legal Aid: the devil is in the detail. Government that will not be held Government’s Then on 6th September 2013, account for its actions at home or latest assault following closely on the heels of abroad. The approach is redolent on legal aid the response to Transforming of a spoiled child, reacting those, like Chris Huhne, who and those Legal Aid, came yet further petulantly when told he cannot do when in trouble afforded Government plans to restrict whatever he wants to do. themselves the best lawyers that access to judicial review. This new Now it is clear that the battle is money could buy, whilst at the consultation marks an escalation an ideological one, the battle lines same time condemning the rest in hostilities. In 2011, when the are at least clearer. Now that we to justice on the cheap. They then Lord Chancellor Ken Clarke know the case against us, it is less reinforced how the attack on pushed the Legal Aid Sentencing important to focus on rebutting justice was ideological, and in and Punishment of Offenders Act spurious economic arguments or fact would not achieve through Parliament, legal aid for the misuse of statistics. However substantial savings overall, judicial review emerged unscathed. it also makes the battle harder. and how access to specialist This was recognition on the part of A Government pursuing an lawyers was not a luxury it the Government, we were told, of ideological course is less likely to was a necessity. Those the importance of holding the State be deterred than one pursuing a attending the rally then to account. How quickly things policy out of pragmatism or marched behind the Haldane change. December 2012 saw the economic necessity. This does not Society banner (proudly first in the latest series of mean we should shy away from carried by Mark George consultations, purportedly the fight. and myself) and a coffin designed to kick-start the economy The judicial review proposals to join the TUC protest by clamping down on spurious for further reform consultation outside the Tory judicial reviews: dubious logic closes on 1st November 2013. conference. Liberty’s Shami Chakrabarty. underpinned by questionable Connor Johnston

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News&Comment

If that were not bad enough, it Tories’ contempt for the poor gets worse. There is no maximum time limit for the decision maker to reconsider and make their new he Government continues to received. The increase is mainly decision. This could mean possibly wield its ideological due to the negative decisions made many months without a new Tsledgehammer to the on Employment and Support decision and long delays in justice welfare state with the introduction Allowance claims. According to for vulnerable people. What of mandatory reconsideration the Disability Alliance around 50 exacerbates this is that during this before appeal for all social security per cent of oral appeals and 20 per review process, where the claimant benefits as of October 2013. cent of paper hearings are is requesting a review of a decision Prior to this, a claimant could successful. not to award benefit outright, they appeal a Department for Work With such an increase in will receive no money. This could and Pensions (DWP) decision appeals and with at least half of potentially leave a vulnerable immediately rather than ask for the these appeals being successful, for person without money for many DWP to review their decision. The this Government there can only be months and will have a huge knock benefit of doing this was twofold. one solution – smash the current on effect on people’s lives. If a First during a review the claimant system and make it as difficult as person is unable to claim another would usually not get paid – by possible for people challenging benefit, such as job seekers appealing straight away the person governmental decisions. allowance, they will be left without secured the basic rate of income, And that is what they have money. They may receive housing usually £71 for a single person done. From 28th October 2013, benefits and council tax reduction while they waited for the appeal the Government have removed the but this will not cover any shortfall hearing. Secondly by appealing, claimant’s right to appeal before for water rates or heating charges the claimant sidestepped and asking for a reconsideration. or council tax charge or food and removed the risk of any bias from Mandatory reconsiderations must utilities, and they will be at risk of the DWP decision maker reviewing be requested within a strict one being evicted from their homes. the claim and rubber stamping the month period by anyone wanting They won’t be able to claim crisis original decision, the claimant was to challenge a negative DWP loans as they no longer exist. able to access an independent decision on their claim. Requests People will simply be left destitute. impartial Tribunal and receive a for reconsiderations outside of the Once the DWP have completed fair hearing. one month period are the review process, if the claimant The Tribunal service over the discretionary and can only be is unsuccessful they would then past seven years has seen a huge challenged if refused by judicial need to appeal directly to the Campaigning against the bedroom tax. increase in the number of negative review. Tribunal service ensuring all the DWP benefit decisions being When a claimant requests a correct forms are completed within claimant can finally have an appealed to the First Tier Tribunal. reconsideration, no action during yet again another strict time limit. independent impartial hearing of According to the Tribunal statistics the first month will be taken by the The claimant would then need to their case to determine whether in 2006/07 there were 254,000 decision maker while they wait for wait for the Tribunal service to they are entitled to the benefit. appeals heard and by 2011/12 the claimant to submit further notify the DWP of the appeal. The Until then, there is no time limit there were 434,000 appeals. The information. At the end of the DWP will then have to provide an for the DWP, all that there is, is an expected forecast for 2013/2014 is month the DWP decision maker appeal bundle to the Tribunal indefinite delay before an that the Tribunal service will hear will then start the process of service, yet there is no time limit for independent tribunal can look at another 607,000 appeals. The reviewing the original decision. the DWP to do this within until the facts of the case and decide Tribunal service saw a 52 per cent The DWP have not ruled out that October 2014 when there will be a whether the claimant has an increase in receipts of appeals the reviewing decision maker could 28-day time limit. Once the entitlement to benefit. between January and March 2013 be the same person who made that Tribunal service receive the bundle The right to a fair trial and to a compared to the same period in original decision. Impartiality it the case will be listed for a date case being heard promptly before 2012, with 155,000 appeals seems does not exist here. some time in the future where the an independent and impartial

August 5: The Metropolitan police issues a 12: The Home Office agrees to 15: A ban on health workers who have formal apology to the family of Ian withdraw its vans warning illegal ‘There are poor children who do HIV performing certain procedures is Tomlinson killed by one of its officers immigrants to ‘go home’ after a legal not have a room of their own in lifted. Dame Sally Davies, the chief during the G20 protests in London in challenge. Two claimants said the which to do their homework, in medical officer, said the ban was 2009. Julia Tomlinson said: ‘The public vehicles – dubbed ‘racist vans’ – which to read, in which to fulfill outdated and that it was more likely admission of unlawful killing by the breached the Government’s duties on their potential’. that a person would be struck by Metropolitan police is the final verdict, equality. The Home Office agreed that Michael Gove lightning than be infected with HIV by and it is as close as we are going to get it would consult before launching such unwittingly describes the effects of the their doctor or dentist. to justice’. This followed confirmation campaigns in the future. Tory bedroom tax on poor families. The that the Metropolitan police would offer tax orders children aged six to ten to the family compensation. share a bedroom.

10 Socialist Lawyer October 2013

SL65_pp4-11_news 14/10/201309:26Page11 22: Rebecca Harvey economy is recovering. George Osborne smirks that the more in the long run. Meanwhile be huge and will cost society far scroungers. The social impact will continue to be labelled as benefit lifestyles will struggle and and those who lead chaotic those with mental health problems vulnerable people with disabilities, shocking and startling. The most contempt for the poor is both tribunal is being eroded. The by the charity the Money Advice Trust reveals that local councils have used bailiffs to collects debts on their behalf over 1.8 million times. The charity criticised the number as excessive collected. responsible in how debtsand aresaid councils should be more A Freedom of Information request

Picture: Jess Hurd / reportdigital.co.uk Mesopotamia Broadcasting TV and its parent company impose a hefty fine on Kurdish Roj 3rd July 2013 to shut down Courtand took a shock decision on people. defending the basic rights of the People’s Law Office from ÇHD and members of the to prevent lawyers, members of is grounded on political motives, based on truth and law and that it insisting that the indictment is not ÇHD held a press conference and was approved by the court. court by the public prosecutor pages has been submitted to the The indictment of about 600 lawyers from Europe to observe. chosen by the court to discourage Obviously this date has been on 24th-26th December 2013. wishes. His trial opening will be thanked us and sent his best birthday letter in prison. He conference, received ELDH’s Human Rights Defenders spoke at Haldane’s Defending President Selçuk Koza Revolutionary Lawyer’. ÇHD Symposium in Istanbul: ‘Being a holds its 3rd International Law (Progressive Lawyers Association) sister organisation ÇHD September 2013, our Turkish Turkey T and events ELDH news September on a wide range of issues. www.eldh.eu) continue to be active issues a statement apologising5: for its inaction during the reign of the dictator , saying: ‘It must be said and recognised clearly and completely: the court system and especially the Supreme Court at that time, failed in their roles as safeguards of basic human rights, and to protect those who were victims of State abuse.’ The Chilean Judges’ Association The Danish District Supreme Rights (ELDH – Democracy and Human he European Lawyers for On 28th – 29th ğ açlı, who News financing Roj TV. people who are charged with Kurdish politicians and business opening of a trial against sevenfinding mission to observe the ELDH sent observers on a fact September 2013, in Copenhagen, against this judgment. On 18th licenses revoked. ELDH protested MMV and Nuce TV also had theirMesopotamia Broadcasting’s licenses were revoked. Roj TV,kroner each and their broadcastingpay a fine of 5.2 million Danishbroadcasters were sentenced to inciting terrorism. The accusing them of being guilty of Edward Snowden Cuban Five 2011. rising to 6,649 in 20102009 andthere 7,877 were in 3,128 moredeployments than doubled over thetwo useyears. of tasersIn by 10:police officers has Transparency International. WissenschaftlerInnen, and Vereinigung Deutscher IALANA (German section), awarded to Edward Snowden, by the 2013 Whistleblower Prize was organisations. collected 65 signatures of various Transnational Institute, ELDH Human Rights (ECCHR) and the Centre for Constitutional and two organisers, the European success. Together with the other European Union. This was a big Edward Snowden shamed the presidential jet and treatment of grounding of the Bolivian initiated a statement that the be also be shown in Berlin on 4th One-World-Festival. The film will with three other NGOs within the on 11th October 2013 together The Cuban Wives organising a screening of the film Democratic Lawyers (VDJ) is German Association of organisation in Germany, the On 30th August 2013 in Berlin, Home Office statistics reveal that Haldane’s sister in Düsseldorf ELDH & Comment Socialist conference will be held in English. Rights (YUCOM). The support of Lawyers for Human Democratic Lawyers, with the ELDH and the Serbian June 2014. The organisers will be date is most likely to be on 7th Southern Europe’. The conference and European Human Rights in begun for a conference on ‘EU Belgrade Conference on Europe in Western Sahara was in the public interest.decisions about whether annualprosecution cost of the fraudclaim. should Starmer guide said the up £1.9to billion10 years for thoseannounces who increasedfalsely prisonPublic terms Prosecutions of Keirclaimants Starmer continues as 15:the Director of [email protected] Bill Bowring Marxism and Law if you would like to participate. from England. Please contact me need at least two more colleagues Germany who are interested. We colleagues from Spain, Italy and November 2013. There are end of October or beginning of mission to Western Sahara at the organising a human rights colleague Urko Aiartza is you are interested in coming. on Europe. Please contact me Lawyers,if will organise a colloquyAssociation of Democratic organisation, the Italian The next day the Haldane’s (Internationalsister House of Women).Internazionale delle Donne on 19th October 2013 at the ExecutiveCasa Committee is in Rome autumn 2014. Michael Heinrich, in London in European theorists such as contemporary German and other invite some of the leading on this topic, with the aim to have also begun on a colloquium Berlin Latin American Festival. and 7th October 2013 during the The next meeting of ELDH’s The demonisation of benefit Lawyer Preparations have Our Basque October 2013 Preparations 11 SL65_pp12-13_grayling_print 14/10/2013 09:36 Page 12

Who is that man in the Lord Chancellor’s seat?

Clare Sambrook points a finger at the Tory minister enjoying his job of destroying legal aid

The most striking thing about Chris Grayling’s For the Justice Committee he did at least appearance before the Justice Select Committee turn up. About the initial decision to deprive on Wednesday 3rd July 2013 was the man citizens of their choice of representative, he himself – the depth of his self-assurance, the said: ‘You can’t both provide a guarantee of a permanent self-congratulatory smile, his glib, slice of the work and provide choice.’ condescending replies. The way, like a And: ‘in order to invest in scaling the machine, he rattled out words, apparently business – two firms merging, for example, without breathing. And what words they were: there would be a need to provide a guarantee ‘a new contractual framework, tough financial of volumes’. By volumes he meant the quantity decisions, deliver change in a way that is of legal work. sustainable, one-size-fits-all’. Grayling, who So what made him change his mind? ‘The bears the title Lord Chancellor and has taken market has said to me, “Actually the principle an oath to respect the rule of law, was all spin of choice is one that we regard as more and no content, the consummate PR man. important.”’ Yet the matter under scrutiny could scarcely The ‘market’ is ‘Grayling speak’ for the be more grave. legal profession. The coalition government plans to destroy ‘This is not rocket science,’ he said. ‘The legal aid as we know it in England and Wales, only issue of dispute, the one thing that something that has allowed us access to justice, resonated early on was perhaps we haven’t got regardless of our wealth, since 1949. Grayling the choice piece right.’ proposes to: ‘The choice piece’. So that’s it then. Our • Destroy the current model whereby the choice of advocate, a piece of business. As he Ministry of Justice purchases legal services spoke you could sense justice being delivered, from 1,400 local providers. or rather not, by the pallet. • Issue vast contracts to a small number of ‘There’s never been a process of change businesses offering bulk legal services at the where those people affected by change haven’t lowest price – Tesco, G4S and Stobart are been jumpy about it,’ he said of the assault on poised to move in. our rights that has brought barristers • Pay a flat fee regardless of plea. (A guilty plea protesting onto the streets. promises fatter margins). Plaid Cymru’s Elfyn Llwyd, who, unlike • Impose a 12-month residence test for civil Grayling, has practiced law, challenged the legal aid. (Babies in care proceedings would huge reduction in legal providers planned for lose legal representation). Wales. The proposals do not say what will • Pay for legal work on applications for judicial happen if a provider is unable to provide review only in cases where the application sufficient or sufficiently qualified lawyers, said succeeds. Llwyd. ‘Unlike the Olympics, the Army can’t be Two days ahead of his date with the drafted in… What does the Ministry propose?’ committee, Grayling abandoned his reviled Grayling smirked: ‘A shortage of lawyers in plan to deprive defendants of their choice of this country is not one of the big challenges that solicitor. The previous Thursday Grayling’s we have.’ proposals had been ridiculed and condemned Llwyd said the proposals failed to consider by MPs of all parties in a Commons debate victims of crime. Grayling replied that victims that he failed to attend. He spent the day wanted to see criminals tried and locked up.

campaigning in Bedford. Yasmin Qureshi, Labour MP for Bolton, reportdigital.co.uk / Hurd Jess Picture:

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challenged him on the likely disproportionate though his constituency home is less than impact of his changes on black and minority 17 miles from the House of Commons. ethnic firms – often one or two person firms. revealed an unusual ‘I simply do not accept that,’ Grayling said. arrangement Grayling set up with the ‘I pay tribute to the BME business community Parliamentary Fees Office whereby he claimed in this country, which is among the most £625 a month for mortgages on his main home entrepreneurial, successful and effective parts and the Pimlico flat. of the private sector in the UK…’ Over the summer of 2005, he undertook a He carried on in that fatuous way as if complete refurbishment of the flat. Between Qureshi’s concern related to the competence of May and July he claimed £4,250 for black and minority ethnic practitioners. redecorating, £1,561 for a new bathroom, Qureshi, a former Crown Prosecution £1,341 for new kitchen units, £1,527 for Service barrister, told him: ‘If they go out of plumbing and £1,950 for rewiring and other business then the number of ethnic minority work. people in the judiciary is going to be reduced During the 2005-06 financial year, Grayling too.’ claimed close to the maximum allowance for No matter. MPs, the Daily Telegraph reported. In 2006- Elfyn Llwyd’s fears for Welsh legal firms got 2007 he submitted receipts for the work that the same patronising brush-off: ‘I’m absolutely had been carried out the previous year. In June certain the Welsh legal profession will rise to 2006, for instance, he submitted an invoice for the challenge,’ Grayling said. £3,534, with a handwritten note claiming ‘this He dismissed the deep anxiety widely felt has only just been issued, date about the flat fee paid regardless of plea. notwithstanding’. Gareth Johnson, Conservative MP for A scribbled note that accompanied another Dartford, and a practising solicitor, said that late-arriving claim, for £2,250, submitted in some lawyers might push defendants to plead July 2006, stated: ‘Decorator has been very ill guilty because of the financial incentive – a & didn’t invoice me until now.’ guilty plea entailing less work. Anyway, back to the Select Committee ‘I regard the standards of the legal meeting. profession to be much higher than that,’ Sir Alan Beith, the chair and Liberal Grayling said. Democrat MP for Berwick, mentioned a few And ‘I want people who are guilty to plead mismanaged Ministry of Justice contracts – guilty as early as possible.’ the court interpreting shambles, prisons and , Labour MP for Islington probation contracts, the offender-tagging North, challenged the withdrawal of legal contract with G4S and Serco, under representation from prisoners trying to make investigation and soon to blow into a massive complaints about medical treatment or access scandal. to mother and baby units. ‘You haven’t got the capacity within the Grayling replied, ‘That’s why we have department to manage contracts on this scale prison visitors, Independent Monitoring have you?’ said Beith. Boards, the Prisons Ombudsman.’ Grayling replied that the problem with the Under pressure from Corbyn, Grayling court interpreters contract was that it had been said: ‘I suspect this is an ideological difference placed with too small a supplier, and bigger between us.’ suppliers could sort it out. Does Grayling seriously expect us to believe Huh? that justice is safe, because Chris Grayling has That such a man holds the title ‘Lord faith in the Ombudsman, the Welsh, and the Chancellor’, has taken an oath to uphold the entrepreneurial spirit of migrants? Or is rule of law, yet holds Parliament in such ideology all that matters to him? contempt that he failed even to attend the Who is this smug, self-satisfied operator? Commons debate on his proposals is… What makes him tick? surprising is the first polite word that springs Chris Grayling was born into privilege. to mind. Educated at the Royal Grammar School, High ‘You have to deal with the world as it is Wycombe, he took history at Cambridge, then rather than how you would like it to be,’ joined the BBC as a news trainee. He moved Grayling told the Justice Committee. into management, ran TV production companies, then he jumped into another world. Postscript He joined Burson-Marsteller, the world On 4th September 2013, in Westminster Hall masters of reputation management, whose MPs again decried the proposals. Grayling did clients have included the Nigerian government not attend. revealed exclusively on during the Biafran war, the Argentinian junta 5th September 2013 that Grayling had after the disappearance of 35,000 civilians, the scrapped plans to award criminal legal aid dictator Nicolae Ceaucescu and the Saudi contracts to the lowest bidder. In answer to a Royal Family. Freedom Of Information request the Ministry Nice guys. of Justice said there were 35 people on its legal Grayling spent a few years at Burson- aid policy team, and one of them was legally Marsteller. On his website it is not named, it’s a qualified. ‘leading communications agency’. Then he parachuted into the safe Tory seat of Espom Clare Sambrook is a novelist and journalist, and Ewell. He rose fast through the shadow co-editor of OurKingdom and winner of the cabinet, developing a portfolio with Paul Foot Award and Bevins Prize for help from his Parliamentary expenses. outstanding investigative journalism. This article The Daily Telegraph revealed in 2009 that is drawn from a piece published on Grayling had claimed thousands of pounds to OurKingdom, the UK arm of openDemocracy renovate a Pimlico flat – bought with a on 3rd July 2013, the day that Grayling mortgage funded at taxpayers’ expense, even appeared before the Justice Select Committee.

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New threat to the right to protest Stephen Knight on the new police arrest tactic to include legal observers The right to protest is a fundamental part of a serious disruption to the life of the spurious accusations of obstructing police democratic society. However, in the police’s community’. The conditions imposed limited officers in the execution of their duty. emerging tactic of engaging in mass arrests at the duration and location of the protest. But this was not the first time the police political demonstrations, we see a new assault It is an offence for a person taking part in a had acted in this way. At a previous anti- on protest, and therefore on the very public assembly to knowingly breach the fascist protest on 1st June 2013 police had foundations of our democracy. Just as bad conditions set down under section 14 POA. made 58 arrests – again for breaching though, is that not only have the police taken Importantly, on this occasion, the police took conditions of which protesters were clearly to arresting protesters, but they are now almost no steps to inform people of the unaware. At that protest, police further clearly expanding their assault on protest to conditions. There is little doubt that the vast compelled legal observers to remove their include the arrest of legal observers. majority of the demonstrators present were high-vis jackets and leave the demonstration. At the anti-fascist protest in Tower completely unaware of the conditions, and Arrests of legal observers have also taken Hamlets on 7th September 2013, the Haldane therefore it would be impossible for them to place at other high profile events, including at Society, along with Green and Black Cross knowingly breach them. the arrest of 182 Critical Mass cyclists during (GBC) and the Legal Defence and Monitoring Around the time that the fascists were the 2012 Olympics Opening Ceremony. Group (LDMG), sent a combined team of approaching Tower Hamlets, part of the At all of these protests the combined 14 legal observers. The legal observers had counter-demonstration moved from the tactics of mass arrests and arrests of legal the role of monitoring the policing of the original site of the protest. Hundreds of those observers have had a chilling effect on protest. protest, gathering evidence on the conduct of involved in this part of the protest were The police do not embark on mass arrests the police, and distributing legal advice to rounded up by police officers and confined to in order to obtain convictions against all of protesters in the form of ‘bust cards’ two small kettles. Police officers, including the those present. They are fully aware that almost containing a summary of protesters’ rights most senior officers at the scene, seemed everyone arrested for knowingly breaching and useful legal contacts. Legal observers are confused as to the reason for the kettles, being conditions on the protest will be acquitted, always independent from the protest, and are unable to provide coherent or consistent legal given the difficulty of proving knowledge of marked out as such by their orange high-vis justifications for them when asked. the conditions. Far more troubling vests which have ‘Legal Observer’ printed Despite assurances that those kettled motivations underlie this tactic. First, mass clearly on them. would be released later in the day, by mid- arrests are used as an intelligence gathering The police imposed conditions on the afternoon the police began an operation exercise: being arrested, even if no conviction length and location of the anti-fascist protest which saw the arrest of everyone detained in results, means the taking of personal details under section 14 of the Public Order Act 1986 the kettles: almost 300 people in total. The and biometric data. Secondly, they prevent (POA). This provision allows a senior police arrests were almost all made for alleged people being able to exercise their right to officer to impose conditions on a public breach of the conditions placed on the protest when at a demonstration, as mass reportdigital.co.uk / Hurd Jess Picture: assembly if the officer reasonably believes that protest. At one of the kettles five legal kettling and arrest effectively brings protest to certain circumstances apply. A near-identical observers remained present throughout the an end. Thirdly, when people are released provision applies to processions, under duration of the kettle to monitor the arrests from custody on police bail, bail conditions section 12 POA. On this occasion, the and provide support to arrestees. They were are often imposed forbidding the individual supposed circumstance invoked was that the the final five people arrested. At both kettles, arrestee from further participating in protest. demonstration ‘may result in serious public those legal observers not detained also had to For instance, on 7th September 2013, those disorder, serious damage to property or contend with constant threats of arrest on bailed to return at a later date found >>>

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>>> themselves with conditions prohibiting If you were arrested on 7th ordered their arrests. The constant visibility of them from participating in protests within the legal observers at mass protests, and their M25 at which the British National Party, September, or could provide interactions with them, cannot have left any English Defence League and English Volunteer any useful evidence to help in doubt in these senior officers’ minds that legal Force were present, thereby effectively observers are not protesters. It should therefore removing from a large number of anti-fascists people’s defence, email GBC be obvious to the police that independent legal their ability to participate in political on [email protected]. observers are not capable of being subject to expression. Fourthly, and most importantly, conditions under sections 12 and 14 POA. those arrested are less likely to attend future If you would like to get involved Further, the recent dicta of Lord Justice Moses protests if they know they may face the same with legal observing with the in Mengesha v Commissioner of Police of the treatment again, and others are less likely to Metropolis [2013] EWHC 1695 (Admin) attend at all if they know there is a risk of mass Haldane Society, email indicates that the courts are alive to the arrests taking place. [email protected] independence of legal observers, and are The tactic of arresting legal observers, while approving of their role. not having a direct effect on as many people, is are not isolated incidents, but a determined Those legal observers recently arrested are also worrying. By arresting legal observers, the strategy to undermine political dissent by currently consulting their lawyers as to the next police seek to remove independent observers in dissuading people from attending protests, and steps they should take. Given the growing tactic order to allow themselves to act with impunity. preventing effective monitoring of the police. of threatening legal observers, it is conceivable Whereas the most high profile mass arrests As well as the chilling effect on protest, it is that it may become necessary to bring a case to and arrests of legal observers have been strongly arguable that the arrest of legal court in order to establish once and for all their undertaken by the Metropolitan Police, this observers for breaching conditions placed on independence from the protests they attend. It approach has also been used elsewhere, for protests is itself unlawful. Legal observers would be unfortunate if a legal challenge were example at the anti-fracking protests at clearly do not ‘take part in’ protests – a to be the only way of containing this new threat Balcombe this summer. Clearly, the growing fundamental part of the offences under the to the right to protest. and consistent use of mass arrests at political POA – but instead are present to observe them. demonstrations is part of a wider approach by It is clear that senior officers are aware of the Stephen Knight is an Executive Committee the police of cracking down on protest. These arrest of legal observers, and may have directly member of the Haldane Society

Michael Gooldand Emily Elliott report on an important victory in the High Court against the Metropolitan police and its kettling actions

On 7th September 2013, around 300 anti- before the detainees were released one at a fascist demonstrators were arrested in East time. Upon release, each detainee was filmed London. The arrestees were reportedly kettled by a police officer and required to provide their by police for several hours before being names and addresses and submit to a search. arrested en masse for breaching restrictions Those who refused were not allowed to leave imposed on the demonstration under the and were pushed back into the containment. Public Order Act 1986. This shocking crack- The officers on the ground on 30th down by the Metropolitan Police, on what had November 2011 offered little or no legal reportedly been a peaceful demonstration, is justification for their actions at the time. Some nothing new, particularly in recent years where of the officers claimed to be relying on a power Government attacks on every aspect of public under the Police Reform Act which allows services have increasingly been met with officers to require a person to give their name protests and dissent. This in turn has been met and address if they believe that person has been with repression from authorities, such as the acting in an anti-social manner. However, that police service, who are keen to dissuade similar legislation was clearly not intended to provide protests in the future. The more extreme and such a blanket power as the police were oppressive tactics adopted by police in times of purporting to exercise on that day – a fact austerity makes the High Court’s recent subsequently recognised by the Metropolitan decision in the case of Mengesha v Police’s legal team as they did not rely on it at Commissioner of Police of the Metropolis an the High Court. important victory in defence of the right to The tactics were, however, deeply troubling. protest. There are obvious privacy concerns with what The case arose during the trade union was effectively large-scale, arbitrary march in central London on 30th November surveillance. No attempt was made to establish 2011. Legal observers from the Haldane whether particular individuals may have Society had attended to monitor the policing of actually committed any crimes. Everyone was the demonstration. At around 15:00, a group treated as a suspect merely because of their of demonstrators attempted to occupy the presence. Everyone’s details were taken, the headquarters of Xstrata mining company on information no doubt destined for one of the Panton Street. Police responded by setting up a Metropolitan Police’s secretive databases. containment and kettling about 150 people, Further, the conduct seemed to be including a number of legal observers. The deliberately intimidating. Many of the group was contained for about two hours demonstrators present were young people,

16 Socialist Lawyer October 2013 SL65_pp14-17_observers_print 14/10/2013 09:49 Page 17 Pictures: Jess Hurd / reportdigital.co.uk / Hurd Jess Pictures: Mass arrests also took place this summer of anti- fracking protesters in Balcombe in west Sussex.

perhaps on one of their first protests. Each had the Metropolitan Police instead tried to argue Firstly, the fact that demonstrators will no been kettled for hours before being funnelled that in fact everyone had given their details longer be subjected to these arbitrary and through police lines to be held with their back voluntarily. The Court rightly gave that intimidating tactics is a good thing and, as I against a wall and a video camera pointed contention extremely short shrift and rejected stated above, an important victory for the inches from their faces. it early on in the hearing. It was noted that one right to protest. One of the detainees was Susannah only needed to view the video of Ms Mengesha Secondly, the case clearly illustrates the Mengesha who had attended the providing her details to see that it was not strategies of the police, and the Metropolitan demonstration as a legal observer with the being done voluntarily. Further, the Police in particular, towards protests and Haldane Society. Represented by Kat Craig Metropolitan Police’s initial response, which public order situations. What stands out is the (Haldane Vice-Chair), then of Christian Khan tried to justify obtaining personal details as a sheer brazenness of the police in assuming solicitors, Ms Mengesha initiated judicial necessary part of the containment itself, these powers and the lack of regard for any review proceedings against the Metropolitan seemed to accept that it had been a legal constraints. The fact that, when the Police arguing that it was unlawful for them to requirement and not a request. proceedings actually got to court, they did not require detainees to provide their personal The hearing also touched upon whether a even try to argue a legal justification shows details as the ‘price of being permitted to leave’. constable is acting unlawfully when he requests just how little consideration they had given to In the Metropolitan Police’s initial response a person to stop and identify themselves in the lawfulness of their actions at the time. to the claim, they maintained that the filming circumstances where it appears that an This astonishing arrogance is no doubt partly and questioning was ‘part and parcel of the obligatory demand is being made of them and due to the support they have always received containment’, containment itself having been they have no alternative but to comply. Such a from the courts and legislature in validating declared lawful by the European Court of circumstance appears to apply here – the their public order powers, the vindication of Human Rights in Austin v UK. They even demonstrators and legal observers were ‘kettling’ being one recent example. argued that the demonstrators had benefitted lawfully contained and thereafter, lawfully Finally, this case demonstrates the as it had prevented dragging the containment searched. In between leaving the containment importance of judicial review itself. The out longer in order to identify actual offenders and the search, their details were taken. It was shameless arrogation of such powers by the in the crowd. However, by the time of the noted by Moses LJ that this gave an impression police shows how crucial it is to have a hearing before the High Court on 2nd May that the details were lawfully required. robust, and accessible, means of holding the 2013, the Metropolitan Police had conceded Unfortunately however, he stated in his Executive to account. It is therefore essential that it was in fact unlawful to require the judgment that, as important as this issue is, this that we fight against the proposed changes to detainees to provide their details. Lord Justice case did not require it to be resolved. legal aid funding for judicial review which Moses referred to this prior argument, made by With the Metropolitan Police having will deny funding in cases deemed the Commissioner, as a ‘significant nothing else to hide behind, the Court granted ‘borderline’ and cases that are resolved prior misapprehension as to the lawful scope of his Ms Mengesha’s application in a judgment to the permission stage. Such changes will powers’, noting that Austin v UK had found handed down on 18th June 2013. The mean judicial review is simply not a containment to be only permitted where a judgment praised Ms Mengesha’s conduct in financially viable practice for many firms, breach of the peace is taking place or is the proceedings with these words: resulting in many cases, like Ms Mengesha’s, reasonably thought to be imminent. This ‘With the same sense of responsibility she has not being brought in future. method of last resort is not permissible for any demonstrated throughout her conduct as a other reason, such as ensuring identification of legal observer, the claimant does not seek any Michael Goold is a pupil barrister and co- all those in the containment. form of just satisfaction other than this secretary of The Haldane Society and Emily Accepting that there was no legal power to vindication of her claim’. Elliott is a member of the Society’s Executive require the detainees to provide their details, This decision is important for three reasons. Committee

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Miscarriages of justice appear to have fallen out of fashion. While the early 1990s saw a series of cases that shook the criminal justice system to its core, today overturned Eddie convictions still make occasional headlines but rarely linger in the media for long. The general assumption appears to be that things just are not like they were in the bad days of the 1970s Gilfoyle: and 1980s, when ‘fit ups’ and forced confessions were a common problem. There have undoubtedly been substantial miscarriage improvements since cases such as the Guildford Four and Birmingham Six came to the public’s attention; however, miscarriages of justice take many forms, and the recent case of of justice Sam Hallam shows that the potential for them to happen in the present remains very real. While reforms have helped to reduce – but by no means eliminate – the number of wrongful convictions since their enactment, older potential miscarriages of justice remain. Those unfortunate enough to have spent years or sometimes decades behind bars for crimes they did not commit are still waiting for justice. The case of Eddie Gilfoyle is one that again raises the grave spectre of a serious miscarriage of justice. The circumstances of the case are extremely tragic and made even more so by the fact that an innocent man appears to have Jacob Bindman spent 17 years in prison for a murder he did not on commit. In 1992 Eddie Gilfoyle, a Falklands War veteran, was working as a nurse in his the tragic suicide which local hospital. On 4th June 1992, Eddie’s wife inexplicably became a Paula Gilfoyle was found hanged in the garage of their home in Upton, Wirral. She was eight murder investigation and a half months pregnant. The cause of death was asphyxiation caused by hanging. A suicide note was found at the house written to those with little knowledge of how deaths complaints against the officers were not proved by Paula, and the death bore the hallmarks of a are investigated by the authorities. The at disciplinary proceedings. tragic suicide. Yet four days later Eddie was effective preservation and analysis of a crime Frustratingly for those representing Eddie, arrested; and, in the summer of 1993, he was scene is largely dependant on properly trained details of these internal investigations were convicted of the murder of his wife by a jury at officers getting to it first, and ensuring that only provided to them in piecemeal fashion Liverpool Crown Court. Eddie subsequently vital evidence is not destroyed. Naturally this over the course of the trial and two subsequent spent 17 years in prison before being released task has traditionally been entrusted to trained appeals. Indeed, the full accompanying notes on parole in 2010, under strict license detectives, experienced in such matters. The to the Humphreys Report, which was the first conditions that have been ordered to remain in role of the Coroner’s Officer is a far more internal investigation, were not disclosed until place for the rest of his life. functional one, essentially acting on behalf of June 2012, while parts of the second internal How the case went from a tragic suicide to the Coroner to officially confirm a death and inquiry, the Gooch Report, remain redacted to Eddie’s conviction for murder is a story so record the circumstances. Therefore, where a this day. This drip of disclosure has fraught with problems that his supporters have death is reported, whether suspicious or not, significantly hampered Eddie’s attempts to battled tirelessly for 19 years to expose it as the police are required to attend the scene and clear his name; and, as a result, the Court of untenable. Since his conviction, a steady stream obtain primary access to the body in order to, Appeal has never properly considered the effect of further material and revised analysis of the if necessary, rule out suspicious circumstances. of the failures at the scene. evidence have thrown much doubt over the Yet in the Wirral, at the time of Paula’s death, The question still needs to be asked: why conviction, and, as recently as 2010, important the police had in place a policy unique to that did Paula’s apparent suicide become a murder new evidence has been disclosed to Eddie’s division of the Merseyside Police Force: investigation? There is no definitive answer, lawyers for the first time. allowing the Coroner’s Officer to inspect the but a number of factors drove a feeling of To return to the immediate aftermath of scene first. Eddie’s solicitor only learned of the disbelief to suspicion on the part of the Paula’s death, the Coroner’s Officer, PC Jones, existence of this policy in 2012. The policy authorities. The fact that Paula was eight and a told the Senior Scenes of Crimes Officer when was subsequently changed, but half months pregnant proved to be the catalyst he arrived at the scene, that ‘there’s nothing for embarrassment at its prior existence perhaps for a change of thinking in those investigating. you here’. PC Jones told the Senior Scenes of partly explains the caginess by the Merseyside At the time of her death research was limited, Crimes Officer that upon arrival at the house Police Force in the years since Eddie’s but there was a common assumption that he had observed the body in the garage and conviction. women close to giving birth simply would not concluded it was a straightforward case of The mishandling of the scene is a crucial want to commit suicide. Pre-natal suicide is suicide, there being nothing to suggest any element of the problems with Eddie’s case. relatively rare, but subsequent research has suspicious circumstances. By the time the What was left in the aftermath of such a shown that it is by no means as rare as it Senior Scenes of Crimes Officer had arrived the poorly handled initial investigation was a lack appears to have been thought at the time Coroner’s Officer had already cut down the of vital evidence and a space in which extreme Paula’s death was investigated. Since Eddie’s body. Astonishingly, however, he had not taken hypotheses were allowed to develop into a full conviction a study in 2003 by The British any photos of the body in situ before doing so. blown prosecution for murder against Eddie. Journal of Psychiatry has suggested that suicide This was to be the first of a substantial number Two separate internal investigations into the is a leading cause of maternal death. This of errors committed at the scene of Paula’s handling of the initial investigation resulted in applies primarily to the period after giving death. The fact that the Coroner’s Officer was strong criticism of the way the case was dealt birth but the increased risk of pre-natal suicide first on the scene, and was allowed such with and disciplinary action against a number where underlying mental health issues may be unfettered access, may appear surprising even of officers – although it must be noted that the present was highlighted. Additionally, during

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told an internal investigation that he was suggested that Paula had killed herself. adamant the rope was not there the first time, Unfortunately for Eddie, Professor Canter was and that he had looked in the exact draw in not allowed to give evidence at Eddie’s second which it was found. appeal in 2000. This comes on top of the One can speculate that the intense shock to a increased understanding of suicide in small and closely knit community, and the pregnancy that has become apparent in the disbelief of the people closest to Paula about her years since Paula’s death. Despite the question motivation to end her own life, led to the single marks that had emerged over the prosecution minded pursuit of an alternative theory to case, the Court of Appeal in 1995 and 2000 suicide. Despite the inadequacy of the initial placed great significance on the fact that Paula investigation, this new theory received some appeared to be in a happy state of mind, and support from what would later prove to be that consequently suicide would have been highly questionable forensic evidence. One greatly out of character. However, in 2010, example of this is that the jury were shown a Eddie’s solicitor was allowed access to the video of a pregnant female police officer unused material in the case, which revealed a standing on a step-ladder, trying unsuccessfully metal box containing a copy of Paula’s diary to tie a rope in a knot around the beam in the never before seen by the defence. The diary garage where Paula had been found. The rope revealed that Paula had attempted suicide as a she used was limp and floppy where as the teenager after a row with her then boyfriend. original was stiff and thus likely to have been That same boyfriend had subsequently gone on able to be manoeuvred more easily. to murder a young woman, and his Unfortunately the original ligature was relationship with Paula had continued for a destroyed after the post-mortem meaning that substantial period while he was serving a life this piece of vital evidence was not available for sentence. Along with the diary, Paula had kept examination. However, the prosecution a suicide note from a former fiancé whom she pathologist gave evidence that based on his had been with when she first met Eddie, which experiments Paula could not possibly have contained phrasing which was similar to her committed suicide. His conclusion was that own suicide note. Clearly this is important Paula must have been a willing victim as there evidence that would, at the very least, have was no bruising signifying a struggle. Two tiny tested the unerring belief of all concerned that scratches were found on her neck, which the Paula showed no glimpses of depression or pathologist attributed to a struggle, presumably unhappiness. Such evidence forms a part of as the noose tightened around her neck. Eddie’s latest attempt to have the CCRC refer However, subsequent evidence from the case back to the Court of Appeal for a third renowned pathologist, Dr Bernard Knight, time. suggested that the scratches most likely came These are just some of the problems with from the first post mortem, at which no marks Eddie’s conviction that have led to the third Eddie’s second appeal, which took place in were recorded. Another pathologist later attempt to have it quashed. Allied to these 2000, a psychiatrist with experience of suicides provided evidence that he had seen scratch concerns are a plethora of significant problems in pregnancy (an expertise that was not marks in suicides and that they were therefore with the case, such as the fact that Eddie did available during his first trial) gave evidence not necessarily indicative of a struggle. Above not give evidence at trial due to his mental state that Paula was in his view ‘phobic of labour’. all, support was given at trial for the following the death of his wife, and concerns Unfortunately for Eddie the Court of Appeal prosecution’s extraordinary theory that Paula about his ability to engage with the trial after it refused to receive this evidence. had been tricked into placing a noose around emerged he had not been given the correct In addition to any subjective incredulity that her own neck and then Eddie had pulled her medication during proceedings. This article is the police may have felt, as officers spoke to legs from underneath her. Shockingly, not one an attempt to give some background to the family and friends in the days that followed of the witnesses were experts in knots, nor case, and to highlight some of the problems Paula’s death, an anecdotal picture began to were any in a position to give the seemingly that have led many to believe that Eddie should emerge of a woman with a ‘bubbly’ personality conclusive opinions they gave. not have spent 17 years in prison. A campaign who was very much looking forward to By the time of the second appeal, the Crown for the quashing of his conviction is building becoming a mother. It was these testimonies had accepted many of the flaws in the forensic up steam once again. The Eddie Gilfoyle that began to change the attitude of those evidence but instead relied on an alternative Campaign recently released a 50 page booklet investigating towards Eddie. The focus explanation: that Paula was sitting on top of which provides details of the history of the changed, Eddie was arrested and interviewed the step-ladder and was pushed off by Eddie. case, and the evidence involved, in an at length on three occasions before being Again, this was strongly refuted by Professor accessible format. Meanwhile Eddie’s solicitor, released without charge. At the time of his first Knight, but by this stage it appeared that that Matt Foot, has submitted substantial arrest on 8th June 1992, the police carried out the Court of Appeal had shifted the focus of the representations and evidence to the Criminal an extensive search of the house including the case to other parts of the evidence against Cases Review Commission to ask that they garage and found another, partially completed Eddie, finding that the non pathological consider referring his case back to the Court of note from Paula. Using Electro Static evidence of Paula’s death was the key to the Appeal once again, in light of the fresh Document Analysis a further partially drafted conviction; and, somewhat surprisingly, that it evidence and new analysis of old evidence that suicide note was found in a notebook. These always had been. has emerged. finds would fuel the officers’ new hypothesis The ‘non pathological evidence’ in the case The campaign has drawn a wide spectrum that Eddie had dictated suicide notes to Paula relates largely to Paula’s alleged state of mind of support from many, including Lord Hunt of under the false pretence that he was doing a prior to her death. Professor David Canter, an the Wirral, former chair of the Bar Council, course on suicide at work, a theory suggested eminent psychologist, had provided an expert Desmond Browne QC, and numerous lawyers, by two of Paula’s work colleagues. It was this report to police prior to the trial, in which he campaigners and members of the public. The theory that came to be the driving force behind concluded that Paula had not killed herself. Times has also reported extensively on the the police’s pursuit of Eddie. Although this evidence was deemed doubts that surround the case and expressed In a further search on 23rd June 1992 an inadmissible at the trial, it clearly influenced grave concern about the safety of the officer recovered what came to be known as the police and prosecution’s thinking. Yet conviction. the ‘practice rope’ from a drawer in the garage. following further disclosure of material by the For more information visit www.eddie This appeared to be a rope in a noose-like Criminal Cases Review Commission that he gilfoyle.co.uk. formation that bizarrely had not been seen had not been shown by the police before during the previous search of the garage. An writing his report, Professor Canter reversed Jacob Bindman is a barrister at 1 Mitre Court officer who was present for the first search later his view and concluded that all the evidence Buildings

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In 2010 Kenya created a new modern constitution that replaced both the 1969 Constitution and the past Colonial Constitution in 1963. This was the culmination of almost five decades of struggles that sought to fundamentally transform the backward economic, social, political, and cultural developments in the country. by Willy Mutunga

The vision of the constitution of Kenya The vision of the new judiciary under the constitution The making of the Kenyan 2010 constitution is a story of ordinary citizens striving and succeeding to overthrow the The Old Judiciary existing social order and to define a new social, economic, Let me reflect briefly on the nature of the judiciary of which and political order for themselves. Some have spoken of the all Kenyans are a part. We are the heirs, albeit by what you new constitution as representing a second independence. might think of as a bastard route, to a tradition that gives a There is no doubt that the constitution is a radical very powerful place to the judiciary: under the common law document that looks to a future that is very different from our system. It is a flawed inheritance because it came to us via the past, in its values and practices. It seeks to make a colonial route. The common law as applied in Kenya, at least fundamental change from the 68 years of colonialism and to the indigenous inhabitants, as in the colonies generally, was 50 years of independence. In their wisdom the Kenyan people shorn of many of its positive elements. During the colonial era decreed that past to reflect a status quo that was unacceptable we were not allowed freedom of speech, assembly or and unsustainable through: provisions on the association. Our judiciary was not independent, but was democratisation and decentralisation of the Executive; essentially a civil service, beholden to the colonial devolution; the strengthening of institutions; the creation of administration and very rarely minded to stand up to it. institutions that provide democratic checks and balances; Indeed, administrative officers took many judicial decisions. decreeing values in the public service; giving ultimate There was no separation of powers. And institutions of the authority to the people of Kenya that they delegate to people that they trusted were undermined or even destroyed. institutions that must serve them and not enslave them; Indeed the common law was a tool of imperialism. Patrick prioritising integrity in public leadership; a modern Bill of McAuslan, upon whose book with Yash Ghai most lawyers Rights that provides for economic, social and cultural rights of Kenya cut their constitutional teeth, wrote satirically to reinforce the political and civil rights giving the whole (plagiarising the late 19th century poet, Hilaire Beloc): gamut of human rights the power to radically mitigate the ‘Whatever happens, we have got the common law, and they status quo and signal the creation of a human rights state in have not’. We can recall the trial of Jomo Kenyatta: a Kenya; mitigating the status quo in land that has been the masterful display of juristic theatre in which the apparent country’s achilles heel in its economic and democratic adherence to the rule of law substantively entrenched the development; among others reflect the will and deep illegitimate political system in power at the time. Colonial commitment of Kenyans for fundamental and radical mindsets persisted, in the executive, the legislature and, changes through the implementation of the constitution. unfortunately, even in the judiciary, even after independence. The Kenyan people chose the route of transformation and We continued to yearn for the rule of law. not the one of revolution. If revolution is envisaged then it By the rule of law, I do not mean the sort of mechanical will be organised around the implementation of the jurisprudence we saw in cases like the Kapenguria trials. constitution. It was mechanical jurisprudence that led the High Court in

20 Socialist Lawyer October 2013 SL65_pp20-23_kenya_print 14/10/2013 09:56 Page 21 Picture: Jess Hurd / reportdigital.co.uk / Hurd Jess Picture:

independent Kenya to reach an apparently technically sound resolution has been much more used, in Kenya we still have decision that the election of a sitting president could not be cases that are heard in driblets. We need radical changes in challenged because the losing opponent had not achieved the judicial policies, judicial culture, and an end of judicial pragmatically impossible task of serving the relevant legal impunity and laziness. documents directly upon the sitting president. Again it was Fourthly, I see in the constitution, especially Article 159 this purely mechanical jurisprudence that fuelled the decision (2), a mandate for us to carry out reforms tailored to Kenya’s of a High Court that the former section 84 of the needs, and aimed at doing away with these colonial and neo- independence constitution (that mandated the enforcement of colonial inefficiencies and injustices. It is perhaps remarkable, a bill of rights) rendered the entire bill of rights inoperative and indeed, a paradox that, although disappointment with because the Chief Justice had not made rules on enforcement the judiciary was at least as great among the common Kenyan as he was obligated by the self-same constitution to do. as frustration with politicians, it is also true that they chose to place their faith in the institution of the new judiciary in The New Judiciary, the New Rule of Law, the Decolonising implementing the new constitution. Jurisprudence Fifthly, what I want to emphasise here is the need to It is time for the judiciary of Kenya to rise to the occasion, and develop new, not only highly competent but also indigenous shake off the last traces of the colonial legacy. As I see it, this jurisprudence. I link this last adjective to the constitution’s involves a number of strands or approaches. value of patriotism. I conceive that it requires the judge to There must be no doubt in the minds of Kenyans, or of us, develop the law in a way that responds to the needs of the about our impartiality and integrity. No suspicion that we people, and to the national interest. I call this robust (rich), defer to the executive, bend the law to suit our long term patriotic, indigenous, and patriotic jurisprudence as decreed associates or their clients, or would dream of accepting any by the constitution and also by the Supreme Court Act of sort of bribe. Kenya. Above all, it requires a commitment to the Secondly, to be a judge has always been the pinnacle of constitution and to the achievement of its values and vision. ambition of any lawyer who actually takes pride in her work. Sixthly, few people now maintain the myth that judges in So it should be possible to take for granted that a judge is of the common law system do not make law. Our constitution high intellectual calibre, with mastery of legal principles and tears away the last shreds of that perhaps comforting illusion, techniques, hard working, and committed to applying these especially in the context of human rights, when it provides qualities in the task of judging. under Article 20 (2) (a) that ‘a court shall develop the law to Thirdly, we in Kenya have been the inheritors of not only the extent that it does not give effect to a right or fundamental the common law but of english court procedures. While freedom’. As I read it, it means that if an existing rule of english court procedures have over time been made simpler, common law does not adequately comply with the Bill of some archaic terminology has been done away, with case Rights, the court has the obligation to develop that rule so management having been firmer, and alternative dispute that it does comply. And it is matched (in Article 20(3)(b), >>>

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>>> which follows) by an obligation to interpret statute in a way that also complies with the bill of rights. This is an obligation, not to rewrite a statute, but to read it in a way that is bill of rights compliant if at all possible. I would urge that it is not just the bill of rights that should be used as the touchstone of legal appropriateness but also the constitution more generally. The constitution says no less.

Elements of Robust (rich), Indigenous, Patriotic, and Progressive Jurisprudence The elements of this decolonising jurisprudence would include the six strands and approaches discussed above, would shun mechanical jurisprudence, but would also reflect the following ingredients: The decolonising jurisprudence of social justice does not mean insular and inward looking. The values of the Kenyan Constitution are anything but. We can and should learn from other countries. My concern, when I emphasise ‘indigenous’ is simply that we should grow our jurisprudence out of our own needs, without unthinking deference to that of other jurisdictions and courts, however, distinguished. And, indeed, the quality of our progressive jurisprudence should be a product for export to these distinguished jurisdictions. After all our constitution is the most progressive in the world. While developing and growing our jurisprudence commonwealth and international jurisprudence will continue to be pivotal, the Judiciary will have to avoid mechanistic approaches to precedent. It will not be appropriate to reach out and pick a precedent from India one day, Australia another, South Africa another, the US another, just because they seem to suit the immediate purpose. Each of those precedents will have its place in the jurisprudence of its own country. A negative side of a mechanistic approach to precedent is that it tends to produce a mind-set: ‘If we have not done it before, why should we do it now?’ The Constitution does not countenance that approach. Our jurisprudence must seek to reinforce those strengths in foreign jurisprudence that fit our needs while at the same time rescuing the weaknesses of such jurisprudence so that ours is ultimately enriched as decreed by the Supreme Court Act. The task of growing such jurisprudence involves a partnership: between other judiciaries, the profession and scholars. I hope that the bar, too, will respond to the challenge. Standards of advocacy need to improve, the overall quality of written and oral submissions needs to improve. We have so far found the jurisdictions of India, South Africa and Colombia to be great partners as our respective constitutions are similar in many respects. Besides, decolonising jurisprudence requires South-South collaboration and collective reflection. Pawa 254 (Power We are trying to move away from excessively detailed 254) is a centre for written submissions. This makes sense only if the judges read radical artists in the written submissions in advance. And do so with a critical Nairobi. Willy eye, prepared to interrogate the arguments of counsel. And Mutunga (pictured on the right, above) prepared also to put forward alternative ideas. It is a visited the centre questionable practice to come up with ideas and authorities in and toured the the privacy of judges’ chambers when writing a judgment, if exhibition. counsel had no chance to put forward argument on those ideas and authorities. The very purpose of written submissions is to try to prevent that happening by enabling the judge to be well prepared in advance. If the judge is well prepared, he or she is in a much stronger position to criticise counsel for not being prepared. In this way the bench can help encourage higher standards of advocacy. the decisions coming out of our courts will reflect the We are trying to make this task easier for you by collective intellect of the judiciary distilled through the enhancing the quality and quantity of legal materials common law method as well as through regular discourses available to the bench by and appointing legal researchers. and learning by judicial officers. To be a good judge must It will be a learning experience for judges as well as legal involve continuous training and learning and regular researchers to work out how the cause of justice can best be informal discourses among judges. served by this innovation. We are confident that this offers an The Judiciary Training Institute (JTI) must become our opportunity to make major strides in the quality of the institution of higher learning, the nerve centre of our jurisprudence in the courts of Kenya. progressive jurisprudence. JTI will co-ordinate our academic I want also to add that these major strides in the quality of networks, our networks with progressive jurisdictions, our jurisprudence in our courts can be amplified if we improve training by scholars and judges, starting with our own great our collegiality and ability to co-educate each other so that scholars and judges. In our training to breathe life into our

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commentary on the constitution, and on our laws. And we need high quality commentary on our judgments. We must not be over-sensitive to criticism. No one learns anything if they are not criticised. There are some small shoots of revival in legal writing. Let us hope they thrive and multiply. Article 159(2)(e) says that the courts must protect and promote the purposes and principles of the constitution. I have sought to establish such framework for purposive interpretation in two Supreme Court matters. The constitution took a bold step and provides that ‘The general rules of international law shall form part of the law of Kenya’ and ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’. Thus Kenya seems to have become a monist state rather than a dualist one. The implications of this will have to be worked out over time, as cases come before the courts. Even in the past, Kenyan judges have not ignored international law. They have often quoted the Bangalore Principles on Domestic Application of International Human Rights Norms. Now, however, the courts have greater freedom. Many issues will have to be resolved. Indeed, we now have great opportunity to be not only the users of international law, but also its producers, developers and shapers. In some ways our task is rather easier than that faced by some other court systems struggling to establish the validity of their place in the constitutional scheme. The principle of Marbury v Madison, that established the possibility of judicial review of legislation, and at the same time the key place of the courts in the upholding of the US Constitution, is enshrined in our constitution (Articles 23(3)(d) and 165(3)(d)). So are the basic characteristics of the Indian public interest litigation (Articles 22(2) and 258(2)). Our path has been smoothed: we do not have to strive to establish our role as guarantor of the supremacy of the constitution, or of the rights of the downtrodden. We are indeed clearly mandated to fulfil these roles. Let me again remind you that our constitution specifically mandates public interest litigation. Our appointment process is precisely designed to give us independence of the executive and the legislature so that we can if necessary ‘force other institutions of governance to do what they are supposed to do’. We can only pray that we have the moral stature, the legal skills and the courage to do what we are directed to do. Finally, Article 159 (2) of the constitution has restored ‘traditional dispute resolution mechanisms’ with constitutional limitations. We live in our country where courts are not the only forums for administration of justice. Traditional dispute resolution mechanisms keep these institutions as free as possible from lawyers, ‘their law,’ and the ‘law system of the capital.’ The development of the ‘Without the Law’ jurisprudence will be a critical nugget in our progressive jurisprudence.

Conclusion Professor Upendra Baxi wrote, of public interest litigation in India: ‘The Supreme Court of India is at long last becoming…the Supreme Court for Indians. For too long the apex court had become “an arena of legal quibbling for men with long purses”. Now increasingly, the court is being identified by the Justices as well as people as “the last resort of the oppressed and bewildered”.’ I hope that the courts of Kenya will truly be viewed as the constitution our jurisprudence cannot be legal-centric; it must courts for all Kenyans, and the salvation of the Kenyan place a critical emphasis on multi-disciplinary approaches oppressed and bewildered. And, to return to where I really and expertise. began: I believe we shall only do this through the rigorous but Now that law reporting is regular under the able creative use of the basic values of our constitution, indeed leadership of the National Council on Law Reporting, the through the judiciary’s becoming the embodiment of those Supreme Court has also established a program of researching values, especially of patriotism, social justice and integrity. the ‘lost jurisprudence’ during the years when reporting did not exist. I am confident there will emerge gems and nuggets Dr. Willy Mutunga is the Chief Justice of the Republic of Kenya of progressive jurisprudence from that search. and the President of the Supreme Court of Kenya. He gave this Let us hope that the community of scholars responds to speech to Judges and guests of the Kenyan Judiciary on the the challenge equally. The quality and quantity of Kenyan occasion of launching the Judiciary Transformation Framework legal literature is disappointing. We need high quality on 31st May 2012.

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TV Death Row Poetry by Talha Ahsan – Yo. The universal call sign hollered from behind a cell door. – Yo. A reply with all the authenticity of a baseball cap worn backwards by an ageing celebrity. The inmates stand by the iron doors embedded with a two foot glass pane a few inches wide. They raise their voices through the gap at the sides. Every fifteen minutes a correctional officer will tour the tier. At night they flash torches upon prone bodies to inspect for the stipulated living breathing flesh as per directive. There is a pause in the conversation. – You should get a TV, he continues – But I’m worried I’ll end up watching it all day and night. – What’s wrong with that? I laugh. He laughs with me. Then his laugh takes on a different tone and turns louder upon realisation my laughter was at the perceived but clearly unintended irony of his question. In the housing block opposite is located Death Row. There are eleven of them. In 2012 the death penalty was repealed in Connecticut but Talha Ahsan (born 1979, any prior capital conviction remains. They London) is a British poet and await the outcome of cases to overturn their translator. He is currently in sentences. I asked my attorney once what they pre-trial solitary confinement did all day. “Watch TV, ” he replied. There in a supermax prison in followed a moment of sunken despondency. Connecticut since his TV is a momento mori of candy floss and extradition to the USA with co- glitter. Those are just bones with a temporary defendant Babar Ahmad in

O t b 2012 H

SL65_pp24-25_talha-ahsan_print 14/10/201310:02Page27 fix of salmon-toned fresh skin. Those are just October 2012. He was skulls grinning under cheerleader-blonde. detained without trial for over Behind the glass, beyond the pores and bones, six years after being arrested another goldfish bowl of a cell: dark, humid under an extradition request and pink if you sneaked a peek. from the USA – a country he had never set foot in – on Amongst the whirring of blood, bald and allegations relating to an barefoot, thoughts pace hands cuffed behind obsolete Islamic media back. Between the two slits, a morsel descends website concerning conflicts the darkness of an alimentary canal. in Chechnya and – OK, I’ll think about it, I say. Afghanistan. The case raised I return to another slither of window to a controversy due to world: a cut unhealed upon a cell wall. comparisons with Gary The skeletons of autumn queue for last rites McKinnon and accusations of kept in line by an indifferent wire fence. double standards due to No appeal will be heard. Ahsan’s diagnosis with Asperger’s syndrome. A new book of his poetry is being released soon with an Scratched on a Wall introduction by Gareth Peirce. TV Death Rowwas written You cannot cut your hand on edges that are blunt, in supermax. The other poem or rather a knife to your skull than a rock for the heart? was written just prior to his The dirt will choke out your lungs extradition when he was in if you cannot clean yourself with your tongue. HMP Long Lartin. A person who believes the sun will never rise again, and a person who believes it will, do not live on the same island. In prison, I have matured double my age, like a piece of paper, folded and folded over again, Socialist I am stronger, less easy to tear. Words are written Lawyer MagazineoftheHaldane not to remember but to forget Society ofSocialist Lawyers as memories for others Number65, October 2013 to pick up and skim across a deafening sea. www.haldane.org

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26 Picture: Pablo Navarrete more than 23 years since formal democracyneoliberal economic model, still largelyto ina placemore comprehensive critique of reformthe of the education system soon gave way bring ‘free markets’ to Chile. population. Thousands were murdered to mass privatisation, was forced on the programme of neoliberal policies, includingPinochet and using State terrorism, a11th radical September 1973, Chile’s 9/11. electedUnder Government of Salvador Allende 1990,on which overthrew the democratically backed dictatorship of Augusto Pinochet Chilein since the end of the US GovernmentThese protests have been the largest haveseen continuedin throughout 2012 and 2013.place during that year. The studentwere protestsoccupied and daily street protestsfunded took education system. Some 700 schoolsmass protests demanding a free and Instate- May 2011 Chilean students began a series of Ballots or banners? Socialist Lawyer In 2011, the students’ initial demands for October 2013 Navarrete Film maker dimension on a new politicalin Chile have takenhow student protests Pablo looks at ( profile student leaders such as Camilato VallejoChile in 2011 and 2012 to speakthe tofilm’s the highdirector Roberto Navarreteproducing travelled on the student protest movement, neoliberal model. instrument in ensuring the perpetuation placeof today.the The constitution has ‘approved’been a keyunder the dictatorship and reformstill ofin the undemocratic 1980 constitution,returned. A key student demand has been the demands on Chile’s political class participatefrom the in elections and instead sectionmake its of the student movement optingrelate not toto the formal political processthe withstudent one movement has centred on how to inspiring others in Chile and beyond.protests are causing such an effect ordinaryin Chile students, and to understand why intheir 2011) and Giorgio Jackson, but also to The Guardian For the upcoming documentary I am Since 2011, a major source of debate within newspaper’s person of the year SL65_pp26-27_chile_print 14/10/2013 10:02 Page 27

“The movement has made a cultural change and Chilean society is now thinking about a re- articulation of our organisations and our work, making them more stable and permanent.”

served to awaken consciousness, and signalled I am one of the privileged few, although I do a new horizon for Chilean society, in the not consider that I have much money to spare. direction of making profound changes to our In fact I pay for my studies with a private country. In terms of concrete demands, the loan. Nevertheless, I am aware that my student movement, the social movement for chances of being in a good school and of education, hasn’t achieved very much in terms having a good career come at the expense of of new Government legislation, in the sense the discrimination of others. And I feel a that the vast majority of the laws that are being tremendous sense of injustice about that. I debated by our politicians do not faithfully think now there are many of us who have this represent our demands for free, high quality sort of anxiety, guilt, for being privileged at public education for all so that the access and the expense of the discrimination of others, functioning of education can be democratised. and those that are discriminated against feel However we believe that there have been many helpless and are very angry. So the time has advances in subjective terms. Today, the come where both groups have realised, Chilean population believes that a different without us looking at each other with hate, future is possible in Chile. They believe that that now is the time to pull in the same thanks to organising and collective action we direction and the synergy this has produced can make changes and thus put the weaknesses has been extremely powerful. of political institutions that were created to RN: How would you sum up what the dominate and exclude the great majority into student movement achieved in 2011? sharper focus. Giorgio Jackson: That question is always Therefore, Chilean society, which once had complicated because you have to separate great respect for its institutions, today no things between the quantitative, i.e., the longer believes in them and those rulers or concrete achievements in public policy and the those who hold political power cannot find like versus more qualitative things, things that protection behind these institutions because are perhaps somewhat intangible. I think in they are totally discredited. The abuse of terms of quantitative changes we did not power, mismanagement of information, achieve what we wanted. It is very difficult to misrepresentation of information by the media, make these changes with a right-wing the abuse of economic power through Government and the system of political economic practices that have no type of representation that exists today. The country’s regulation in the private sector, all these things institutions close the door to any change very have become evident and people now find abruptly. But some things were achieved that them intolerable. The discontent that had been were unthinkable, that confronted the brewing in society exploded in 2011. From Government’s agenda, that pushed the this discontent, civil society has put forward Government further than they wanted. It’s new proposals. We are not simply a group of true that it never corresponded to the weight indignant people but a movement that had the of the protests but these things always fall well ability to propose an alternative horizon for below expectations. On the other hand, the construction. I think that’s the summary I optimistic part is that in qualitative terms we would make of 2011. It’s been a year in which redefined what was possible; we stopped we could not make much in terms of concrete thinking negotiating to obtain just a little streets. Another section that includes Camila advances given the moorings of political more. This happened through work and Vallejo and Giorgio Jackson have now decided institutions inherited from the dictatorship. pressure. So we’ve put aside the taboo and to participate in elections with the aim of Nevertheless we have made advances on a fears that existed in thinking of a different creating structural change from within the subjective level, the movement has made a model and delivered a clear and honest political system. In the run up to the 17th cultural change and Chilean society is now message to the public. The people empathised November 2013 presidential elections, which thinking about a re-articulation of our with this message because it was not an are likely to result in Chile’s rightwing coalition organisations and our organisational work, invented one. The reproduction of inequality losing power and a return to the presidency of making them more stable and permanent. and privilege exists in Chile and there is a former socialist party leader Michelle Bachelet, Through this we plan to strengthen our generation that says ‘no more’. The neoliberal former student leaders such as Camila Vallejo proposals for a different society, a different model, the model of education as a consumer and Giorgio Jackson are now running for development model. good has had 30 years to operate without Congress in elections scheduled for the same RN: As a young person, what would you restrictions. And it hasn’t showed the benefits day as the presidential one. Below are extracts say it is that has motivated you to get it promised. So now it’s time that us Chileans of interviews carried out by Roberto Navarrete involved in the protests? change this model. with Camila Vallejo and Giorgio Jackson in Giorgio Jackson: The motivation always lies December 2011, sections of which are included partly in the personal stories that are Pablo Navarrete is a documentary film maker in our upcoming documentary. generated in the collective. In my particular and editor of the website www.alborada.net. Roberto Navarrete : What would you say case, it came through a lawyer, Fernando For more information about the forthcoming have been the strengths and weaknesses Atria, a well known academic in Chile who documentary ‘Chile’s Student Uprising’, of the student movement in 2011? writes a newspaper column entitled the ‘The including how you can contribute to its Camila Vallejo: We feel that the mass student anguish of the privileged.’ I studied in a private production visit: www.alborada.net/alborada mobilisations that took place throughout 2011 school. films.

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Immigration is a deadly business. On 19th and murdered in the massacre. She had seen news suggesting reform within the army to prevent 20th August 2013 the Permanent People’s of the massacre on TV and suspected the human rights violations; and Fathers Solalinde Tribunal convened in Mexico City for a worst. She testified that she had received a call and Fray Tomas, priests who run migrant preliminary hearing on the themes of from a hostage taker demanding payment. She shelters and who dedicate their livelihoods to migration, refugees and forced displacements wasn’t able to afford to make payment. Her defending migrants. What was argued by all of Central Americans and Mexicans in transit family had emigrated for economic reasons witnesses was that the massacre of migrants at to the United States. In the June 2013 edition after all. Shortly after she received several calls San Fernando was not an isolated incident. of Socialist Lawyer, Camilo Pérez-Bustillo from the state authorities, each call advising The Tribunal also heard of clandestine wrote an article detailing the background to her that they believed to have found the corpse communal graves in which the corpses of at the tribunal. of a family member. least 193 migrants were discovered in April The tribunal hearing marked the three year The second witness was Maria Gloria from 2011 in the state of Tamaulipas. anniversary of the massacre of 72 migrants in Brazil. She spoke of how her nephew had Those who represented migrants’ rights San Fernando, Tamaulipas in the North East chosen to emigrate to the US as an alternative organisations spoke of the extortion, torture, of Mexico. On 22nd August 2010 an to a life of poverty, drugs and crime. Mato forced disappearances and deaths of migrants. Ecuadorian migrant was able to escape from a Grosso is a very poor region in western Brazil. It is publicly known in Mexico that the most ranch where he was being held hostage Those who can, emigrate. Jean Charles de common form of transport to the US is on the together with other immigrants primarily of Menezes also came from that region. The few freight trains which cross the country. So Central and South American origin. He was news reached her family within days of the dangerous is the journey that it is referred to as able to report the incident to the authorities. massacre however they had to wait two the death train (tren de la muerte) or the steel While several members of the Zetas Cartel months before the body could be sent back to beast (la bestia). On average migrants make have been arrested in relation to the massacre, Brazil. For unknown reasons the body was five stops between the southern and northern many questions remain unanswered. The erroneously sent to Honduras. When it border of Mexico. On each of these stops they Tribunal was appropriately opened with the eventually reached Brazil, Gloria and her can be expected to pay between $100 to 400 reading of the names of the 72 migrants, family were advised not to open the coffin. US Dollars, in a country where the minimum several of whom to this day remain Acting against that advice they opened it to wage is around £2.50 per day. Failure to pay unidentified. find that there were no human remains inside. what is demanded by the gangs and corrupt The tribunal heard from two family In addition to these two family witnesses, officials will most likely result in being thrown members of victims of the massacre. The first the Tribunal heard from various expert off the train. Serious injury or deaths caused witness was Angela from Guatemala. Her witnesses, including a psychologist who visits by train accidents are common. In order to husband, son, daughter, brother-in-law and immigrants in detention; General Gallardo, a obtain medical assistance migrants must turn the daughter of her brother-in-law were retired army general who was imprisoned for to the authorities who will deport them as Extortion, torture and death: t Fiona McPhailreports from the preliminary hearing of the P Pictures: Consuelo Pagarza Consuelo Pictures:

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soon as the necessary medical treatment has It is argued by the prosecuting committee On the same day that the Tribunal been carried out. Amputations are very on the Tribunal that this systematic violation commenced, a migrant shelter in San Jose common. of migrants’ rights through action and Huehuetoca was attacked. This was the third Within a week of the hearings the inaction, frequently resulting in the most attack on a migrant shelter in five days, derailment of a freight train carrying around serious of human rights violations meets the bringing home the dangerous reality faced by 150 migrants in the region of Tabasco was criteria of crimes against humanity and that those seeking to defend migrants. Several of reported. The death toll is rising and it is the State’s immigration policies amount to the those speaking before the tribunal in their suspected that those who survived the accident use of death as a deterrent. capacity as human rights activists had either have sought to make their own way to avoid As well as witnesses from the States of been threatened or imprisoned for their work. being caught by the authorities and deported. origin, the Tribunal heard from the receptor The victims and their defenders demand As these migrants are travelling illegally the state, the US. Representatives of Houston justice. They demand the creation of DNA train companies and the State denies any United, a community based organisation in databases so that migrants can be identified responsibility for them. southern Texas reported that while the and legislative reform that decriminalises Those fortunate enough to not suffer train number of migrants crossing the border had immigrants. They demand greater protection injuries run the risk of being kidnapped and declined, most probably as a result of the for migrants in transit. Crucially however they tortured. The tribunal heard that economic crisis, the death toll had risen. The also demand an end to the economic policies approximately 20,000 migrants are US authorities had reported 271 border that keep their countries plunged in poverty disappeared per year. A Honduran mother deaths in Texas for 2012. It was stated that and ultimately force the poor to risk their lives testified that her son left for the US in January the real figure was mostly likely much higher. striving for a more dignified life. 2008 aged 17. She had initial contact from The weight of the tribunal lay not only in The prosecuting committee has until July him and was then contacted by a third party the breadth of its representation but also its 2014 to finalise and conclude its arguments. demanding money. She was provided with a form. The mothers, wives and partners of Further to the two day preliminary hearing, the bank account number and contact number. families who have been separated as a result jury was persuaded that there is a case to She made several transfers until she was of economic hardship and immigration chose answer. advised by phone that he was no longer there. to convey their pain through a theatrical For further information on future hearings Since then she has had no news of him. She performance at the end of the first day. There please contact Camilo Pérez-Bustillo at joined the Caravan of Mothers who have are around 30 million Mexican and Central [email protected]. marched throughout Mexico demanding that American women in such positions. Of those the Mexican government take action and women and girls who try to emigrate, six out Fiona McPhail is a solicitor from Scotland and a assist in finding those migrants who have been of 10 are raped, report Amnesty member of The Haldane Society. She is disappeared. International. currently based in Mexico City. : the price of migration to the US e Permanent People’s Tribunal held in Mexico City in August 2013

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Demonstration against bus fare increases, in São Paulo, June 2013. Picture: Maria Objetiva Maria Picture: SL65_pp30-37_brazil_print 14/10/2013 10:05 Page 31

It started with a bus fare increase... Rio-based Damian Plattanalyses 2013’s mass demonstrations in Brazil

The third consecutive term of the leftist move laboriously up Brazil’s skewed social Although the largest demonstrations were Partido dos Trabalhadores (Worker’s Party) ladder, they are hit by the expense of middle not much short of an outpouring of general Government was ticking along relatively class life, where private health care and private discontent, there were some quick victories. comfortably for Dilma Rousseff, ongoing education are standard, given the generally Protesters in several cities achieved their corruption scandals aside, until protests against poor quality of public services. In short people immediate goal when local authorities, a bus fare increase in São Paulo triggered similar might earn more but, while the cost of living including Rio de Janeiro and São Paulo, action across the nation, drawing hundreds of rises, they are seeing poor returns from their announced a freeze on bus fare rises. In Rio, thousands of dissatisfied Brazilians onto the growing contributions to the public coffers. the State Government abandoned unpopular streets in June 2013 to protest against a political Rio de Janeiro, where the largest protests plans to bulldoze a school and an indigenous system they see as corrupt and inefficient. The took place, is the current focus of national people’s museum to make way for a multi- massive demonstrations came as a surprise to ambition. 300,000 people, or one million storey car park near the Maracanã football many observers. Brazil is the BRICS poster depending on who you listen to, came onto Rio’s stadium and future World Cup final venue. child: a strong democracy and an optimistic streets on 20th June 2013. Excessive marketing Mayor Paes also guaranteed the future emerging economy, ripe for investment and for World Cup preparations and the 2016 survival of Vila Autodromo, a that was ready for the future. The last time Brazilians Olympics has grated on the population of a city earmarked for demolition to make way for took to the streets en masse was back in 1992 to where the cost of living has soared. While there Olympic development. These achievements call – successfully – for the impeachment of then have been notable improvements in public seemed unlikely before demonstrators took to President Fernando Collor, the man who froze safety, a less violent city is a more expensive city. the streets. the nation’s bank accounts. A principal target of resentment is State But while the protesters scored some points, Rousseff, a former militant involved in Governor Sérgio Cabral, whose support has two incidents highlighted the longstanding organised opposition to the military plummeted to eight per cent in his second term violence and human rights abuses suffered by dictatorship – who was imprisoned and of office. Once the initial surge of protests had the country’s poor. On 24th June 2013, tortured for her activity – was quick to identify subsided, demonstrators camped outside his military police belonging to the BOPE special the protests as a sign of the strength of ‘our home in the exclusive Leblon neighbourhood operations unit (portrayed brilliantly by José democracy’ and new ‘political energy’. The until he moved, presumably at the request of Padilha in his ultra-violent Elite Squad films) middle class is growing slowly and millions influential neighbours, elsewhere. Eduardo Paes, killed nine alleged drug traffickers in the have been lifted out of extreme poverty by Rio’s mayor, although not unscathed, has sprawling Maré favela complex. One BOPE social assistance programs initiated by the weathered the storm with more sagacity, making member also died in this unauthorised Partido dos Trabalhadores. However as people concessions and inviting protesters for talks. operation which left residents without >>>

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Protests against a bus fare increase in São Paulo (below) triggered similar action across the nation, leading to hundreds of thousands

Pictures: Maria Objetiva Maria Pictures: on the streets protesting against a political system they see as corrupt and inefficient. >>> electricity for 36 hours. Then in July 2013 killings and Amarildo’s disappearance confirm members of a police ‘pacification’ unit, based that Brazil’s most vulnerable population in the enormous beachfront Rocinha favela, continues to be at risk of human rights took a bricklayer called Amarildo into custody violations on a daily basis. during a routine operation. He has not been On a Friday evening in September 2013 seen since. This episode was condemned at the I listened to three lawyers who have been end of August 2013 by the Rio branch of the voluntarily defending and accompanying Brazilian Bar Association, which, together with protesters detained by the police. Carol, respected local sociologist Michel Misse, Clarice and Natalia tell a story which leaves me launched a campaign to monitor and depressed. I left Rio for three months just as the investigate killings and disappearances linked protests were beginning, and was enthused by to police activity in the city. Misse documented what seemed to be a possible tidal change in 10,000 such incidents between 2001 and 2011. public opinion, because for once it seemed that The average of one thousand police related a critical mass of average Brazilians were deaths a year in Rio de Janeiro is more than taking matters into their own hands. I wrote a triple the yearly average for the whole of the comment piece for The Guardian where I USA. The national truth commission celebrated the fact that protesters appeared to investigation of human rights abuses under the have avoided attempts by the traditional military dictatorship, which ruled the country Brazilian mass media to characterise them as from 1964 to 1985, counts 540 disappearances vandals and rioters. Three months down the for the whole country for that period. Misse’s line it seems that the powers-that-be have alarming figures exemplify the class chasm and succeeded in their goal of criminalising the violence which hamper societal development in protesters. Carol tells me that her mother, who Brazil. While the mass marches pointed to the leaned out of the window to shout support in possible existence of a youthful, informed June 2013, now sees them as mere middle class, eager to flex its muscle, the Maré troublemakers.

32 Socialist Lawyer October 2013 SL65_pp30-37_brazil_print 14/10/2013 10:05 Page 33

Liberdade, Belo Horizonte, 22nd June. Belo Horizonte (2.5m inhabitants) – like any big city in Brazil, the poorest people cannot afford to buy a house or an .

Her mother’s change of attitude appears first bomb, was released when TV images and Despite recent social advances, Brazil is still largely informed by violent TV scenes of police statements contradicted each other. It a fiercely unequal society. It registered 46 dollar clashes as demonstrators face baton charges looked like someone wanted to frame him. A billionaires in 2013, a 25 per cent increase on and tear gas grenades. This began with the backpack containing Molotov cocktails was 2012, according to Forbes. The protests, and dispersal of the massive 20th June 2013 march, also found at the scene of the protests. Its the belligerent State response, reflect the when military police charged protesters at owner is unknown. Violent episodes like this contradictory nature of this emerging power. different points across the city centre. Because led to characterisation of Brazil’s protests as While a new generation struggles to find its of this, the lawyers say, the largely peaceful ‘riots’ in the international press, notably in The voice and millions are lifted out of poverty, demonstration ended in mayhem. At this point Times. corrupt power structures and centuries-old the general public began to dissociate What happened with the episode outside social conflict continue to hinder progress. It is themselves from the protests. I ask about an the Governor’s palace, I ask? Was it really no accident that Fernando Collor – the incident during July 2013. Shortly after the instigated by undercover police? The lawyers disgraced former president impeached after the Pope had left a meeting at the Governor’s think it might have been, but tell me the mass protests of 1992 – holds court today at palace by helicopter a protest outside turned investigation was archived. Really? But didn’t the centre of power in Brasília, where he is a violent. Both demonstrators and police filmed anyone follow up? We don’t know, they say, Senator. And while everyone knows where to two men in t-shirts conspiring to throw petrol those were the days when the Pope was visiting find Collor, no one will say what happened to bombs. Other cinematographers captured – so much was going on. Since that moment Amarildo, and neither do we know who threw images of what appeared to be the same men numbers on the streets have fallen the petrol bombs at police outside the running behind police lines shortly afterwards. dramatically, down to a hard core of ‘Black Governor’s palace. Threatened with arrest, one pulls out ID, Bloc’ anarchist style protesters, who are mostly waving it at confused ‘colleagues’. These teenagers. The State Governor has introduced Damian Platt was a Brazil Campaigner for images led to allegations – fiercely denied – that a law – unconstitutional, I’m told – to prevent between 1997 and 2005 undercover police used violence against other such demonstrators from using masks to and is co-author of the book Culture is Our police in an attempt to destabilise the conceal their faces. Public opinion is strongly in Weapon. He is based in Rio de Janeiro from demonstration. Bruno Telles, a 25 year-old favour of such a measure: after all, who wants where he runs a consultancy service and student arrested on suspicion of throwing the to let vandals gain the upper hand? publishes the blog Culture is Your Weapon.

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What lies behind the ‘urban crisis’? Joviano Mayerand William Azalimlook at the roots of the anger in Brazil

No one could have predicted the events hegemony of private cars at the expense of The issue of housing issue is of great that took place in Brazil in June and July 2013, public transport, with the construction of importance in the context of this ‘urban crisis’, after a violent police crackdown against the flyovers, the widening of roads, and tunneling. especially when considering the role of housing protests of the MPL (Free Pass Movement) in Thousands of poor families have been as part of the access to goods and services São Paulo. The increase in the rate paid by the removed from their homes to make way for offered by the city. In Brazil, the struggle for users of public transport of 20 centavos of a these major infrastructure works, with no housing also has a central role in popular urban Real, was the trigger for protests to occupy the guarantee of proper resettlement. Such movements, which often use the occupations of streets. The violent response of the military removals occur in total disregard to the idle property as a method of political pressure police forces, rather than stifle the movement, international human rights treaties to which and popular organisation. caused it to spread like wildfire throughout the Brazil has been one of the signatories. Social It is appropriate to emphasise the important country, the focus of the protests no longer movements estimate that more than 150,000 victory achieved by the homeless movement in restricted to the question of fare increases on families will be removed due to these sporting Belo Horizonte as a result of the June 2013 public transport. events in Brazil. protests in Brazil. After occupying Belo The demonstrations that shook the The mega sporting events are, in short, a Horizonte’s City Hall, the movement managed establishment and created an inflection point in clear expression of the so called notion of the to establish a channel to communicate and Brazilian democratic history had an urban ‘city of exceptions’, where the city is designed negotiate with the local government, which had crisis as their backdrop. This urban crisis has for profit and in which any sort of urban until then been closed to dialogue. been highlighted in recent decades by the standard for the use of space can be relaxed in Minas Gerais is the third richest state in deepening of socio-spatial segregation in favour of the interests of capital. Not Brazil with the third largest GDP of all of Brazilian cities, which have increasingly without reason, the complaints related to these Brazil’s other states. Belo Horizonte, the become hostage to the logic of business events surfaced during the protests. In Belo capital, has about two and a half million management for the benefit of private real Horizonte, the State capital of Minas Gerais, the inhabitants. Like any big city in Brazil, the estate capital. three big marches that happened during the poorest people, especially those with household The advent of mega sporting events in Confederations Cup, one of which had incomes of less than three minimum wages, Brazil, namely the 2013 FIFA Confederations approximately 150,000 people, headed cannot afford to buy a house or an apartment, Cup, the 2014 World Cup and the 2016 towards the football stadium where the games even with access to public subsidy programs for Olympics in Rio de Janeiro, has aggravated the were taking place. The violent police repression, housing finance. crisis in large cities. The construction works aimed at protecting the so called ‘FIFA The 1988 constitution of the Republic of associated with these events have increased the territory’, resulted in the deaths of two people. Brazil guarantees everyone the right to >>>

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‘Peace without a voice is not peace, it’s fear!’ 20th June 2013, Belo

Horizonte. Objetiva Maria Picture:

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Protests against the Confederations Cup, June 2013. The violent response of the military police forces, rather than stifle the

Pictures: Maria Objetiva Maria Pictures: movement, caused it to spread like wildfire throughout the country.

>>> housing and provides that all property This is the case of urban occupations in Belo should fulfill a societal function. Therefore, an Horizonte where, in late July 2013, those abandoned urban property with a strictly involved in such occupations banded together speculative purpose, without any economic or to occupy the City Hall and demand residential purpose, violates the constitution. negotiations with the Government to prevent However when homeless families occupy a the displacement of approximately 3,000 property that stands idle without a societal families in uncertain living situations. function, in order to put into effect the right to These occupations were not recognised by live with dignity, the State acts in defence of the Government, which refuses to provide such property at any cost. basic services as energy supply, delivery of post, The judiciary, which is extremely sanitation, transport, health, education and conservative and steeped in the notion of urban infrastructure. The experience of the property as an absolute good, has not yet Dandara community, where 1,200 families live incorporated the new constitutional on land which has been occupied since April framework that amends the right to property 2009, exemplifies the Government’s response. for the benefit of its societal function. Thus, The direct action taken by these decisions on a preliminary basis to grant a communities in the seat of the municipal repossession order against communities that government in Belo Horizonte, shortly after the have arisen from urban occupations are Pope’s visit to Brazil, lasted 32 hours and frequent. The popular collectives of lawyers gained significant media coverage. Within and public defenders who work for the legal hours, the municipal authority had obtained a defence of these communities manage to, at court order to evict the protesters from City most, gain time in procedural motions to allow Hall. This would come at a high political price. for the consolidation of occupations. When this Many of the young people who had poured happens, the issue becomes more political and into the streets of Belo Horizonte in recent less legal in the view of the authorities. months camped out in front of City Hall and in

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Occupying the City Hall in Belo Horizonte in July. The protest lasted 32 hours and defied court orders.

a beautiful demonstration of solidarity blocked protests in June and July 2013, in this sense, right and the left, it is necessary to empower the one of the city’s major avenues. A sea of have a lot to teach the progressive forces of victims of this ‘urban crisis’, those segregated colourful tents, painted with signs and slogans society. Firstly there is the conclusion that the from the city. Part of this lies in favouring those supporting the protesters, was formed. A photo demonstrations in recent months were claims being made for urban reform, many of of a mother breastfeeding her son, who had exceptional urban rebellions. The protests help which are already set out in the constitution been denied entry by the police, through the to provide a focus on urban issues within the and laws of Brazil. bars of the headquarters of the City Hall was context of the development of capitalism. They Progress towards recognising existing widely shared on social networks. These events also help to allow for the construction of a constitutional rights is sadly slow. The ‘Status were to prove crucial in progressing theory of urban struggle. of the City’, an important law which regulates negotiations between the protesters and the We only have to listen to the voices that the guidelines for the social functioning of cities local government. The immediate agreement sounded in the streets to realise that the claims and the urban policy instruments of strategic reached was that the protesters would vacate written on the signs and on the bodies of planning, has not yet been assimilated by the the building with the promise (transcribed in protesters are not just a direct result of the political forces that act on the urban scene minutes signed by the Mayor) that urban contradictions forged on the factory floor. The some 12 years after its enactment. occupations would be included in the of logic of production and appropriation of space A major challenge is presented to the left: to the city as areas for land regularisation. produces its own contradictions that cannot be fully understand the urban phenomenon, to This experience in Belo Horizonte can analysed and understood as coming from the defy all its complexity, to unravel its peculiar provide some helpful indicators of positions contradiction between capital and labour, in contradictions, the normative and institutional that can be taken by political groups that the strictest sense. limitations and the roles played by antagonistic campaign in favour of socialism. For the social Understanding the contradictions that are actors and to, finally, walk the path of the movements that had been involved locally, typical of the logic of space appropriation in valued use of the city. 2013 was just a trial run. cities, within the frameworks of neo-liberalism, In Brazil, as in many other countries, the city is a part of understanding the ‘urban crisis’, the Joviano Mayer is a lawyer who works with was not always part of the analysis of ultimate reason for these demonstrations. And social movements in Belo Horizonte, Brazil. revolutionary theory that traditionally if the ‘urban crisis’ is the ultimate reason for William Azalim is an activist based in Belo prioritised workers’ and peasants’ causes. The these demonstrations, which shocked both the Horizonte, Brazil.

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When 16 regiments of the New Model Army parliaments, which would be the supreme the claim. The vote was rightly restricted to put their names to an Agreement of the People authority in the land. Certain constraints were those who have ‘a permanent fixed interest in as the basis of a constitutional settlement of the placed on Parliament: it was not to interfere this kingdom’, namely ‘the persons in whom all civil war between Parliament and the Crown, it with freedom of religion; it was not to press land lies, and those in corporations in whom all was a unique challenge to State power that still men to serve in the armed forces; it could not trading lies’. He added that ‘liberty cannot be resonates today, writes Paul Feldman. prosecute anyone for their part in the recent provided for in a general sense if property be Until then, history had always been pretty war; it was not to exempt anyone from the preserved.’ Ireton summed up the bourgeois much shaped by the ruling classes, with ordinary course of the law; all laws passed by nature of the revolution, with its emphasis on ordinary people playing out supporting roles. Parliament should be for the common good. property and ownership and attacked the Their views were not sought nor encouraged The Agreement insisted: ‘These things we concept of natural rights. and their interests were assumed to be the same declare to be our native rights.’ A second civil war erupted and the debates as those leading change. The debates focused on who should have were suspended. Nevertheless the Agreement The English Revolution of 1640-1660, the vote, with Colonel Rainsborough famously spread like wildfire throughout the army. In which ended the rule of absolute monarchy for declaring: ‘The poorest he that is in England November 1647, at an army rendezvous at good and established the power of Parliament, hath a life to live as the greatest he, and Corkbush Field, near Ware in Hertfordshire, was different. Here was one of the first therefore… every man that is to live under a many soldiers wore the Agreement in their shattering social events of the modern age, Government ought first by his own consent to hatbands. involving the whole population in a titanic put himself under that Government.’ Lilburne inspired a second version of the struggle. Defending the existing limited franchise, Agreement towards the end of 1648 which was In England, a century after the protestant Cromwell’s son-in-law Henry Ireton rejected due to go before Parliament in January 1649. reformation, reading and writing was no longer confined to the clergy. And access to the printing machine led to a wide circulation for pamphlets and manifestos. The yeoman farmers and the artisans of the towns increasingly viewed themselves as independent self-management thinkers. These were the forces Oliver Cromwell turned to when early skirmishes with forces loyal to Charles I ended in defeat for disorganised parliamentary forces. The New Model Army was paid, trained and knew what

it was fighting for. Centuries later, it would network transpa inspire the creation of the Red Army. education During 1647, as the first civil war drew to a close, the regiments who had done the fighting were angered by attempts to disband them and send them to Ireland. Parliament had failed to pay their wages for some months. So the regiments elected agitators to represent them in what became the Council of the Army, which included officers and commanders. The agitators co-operated closely with political activists and pamphleteers who were equality dubbed the Levellers. They helped draw up key agreem demands in several documents throughout the

summer of 1647. One was the Case of the constitution decentralised Army Truly Stated. By the autumn, they had also produced the Agreement of the People. housing With the King detained, the Council of the Army met at St Mary’s, Putney, in October for what were to become historic debates about constitutions, natural rights, property and diversity power. The ‘Agreement of the People for a firme and present Peace, upon grounds of culture common-right and freedoms’, to give it its full of title, shook Cromwell and the army grandees to the core. Peoples’ Assembly The Agreement was based on what was termed ‘native rights’, considered by the Levellers to be inalienable rights that could be

traced back to pre-Norman Conquest times. traditions justice Not for nothing was John Lilburne, a key Leveller, known as ‘free born’. At the top of the Agreement’s non-violent accou groundbreaking agenda was the rule of law pe and the independence of the judiciary. The

Agreement suggested that power lay with the reform judiciary people and that Parliament should always be subordinate to the electorate. All in all, it set d out the framework for a written constitution demonstrate and set in motion our long, unfinished struggle for democracy. civil rights The Agreement wanted members of Parliament elected in proportion to the population of their constituencies; biennial

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This was overtaken by Parliament’s decision to century, the Chartists of the 19th century and power that has established itself above society put Charles I on trial for treason against the the Suffragettes in the 20th century. The as a whole. people. The King was executed at the end of Agreement of the People for the 21st Century • This power is exercised primarily on behalf of January. England became a republic. (www.agreementofthepeople.org) was dominant capitalist economic and financial Monarchy and the were launched last year to focus on where we go interests as demonstrated by anti-people abolished. from here. austerity measures. Lilburne, who had been a lieutenant colonel Many argue that representative democracy • Legal authority does not come from the in the army, and his supporters were soon has turned into a corporatocracy, where the people as citizens, but from the Monarchy, under arrest for treason. They published a third powerful economic and financial interests Lords and Commons. version of the Agreement in May 1649, decide what is in our best ‘interests’. To quote • The House of Commons is a powerless smuggling it out of the Tower. Many regiments Al Gore, our democracy has been ‘hollowed assembly rather than an independent adopted the Agreement and denounced out’. The question then is, can the present transforming legislature instructed by the will Cromwell. The mutiny was put down at political-state system be fixed? Or is it beyond of the electorate. Burford in Oxfordshire in May 1649 and the reform and repair and time to conceive of a • Members of Parliament do not exercise any Levellers demands had to wait to be taken up more advanced democracy for the 21st real control over ministers or civil servants. by the American and French revolutions. century? • A surveillance State secretly monitors and There is a continuity of a people’s struggle In the preamble, our draft Agreement states tracks the legitimate activities of activists, trade for democracy in Britain that runs through to that the British State political system is unionists and protesters. today from the 1640s, embracing the struggles undemocratic and unjust in that: • Local government has lost its relative of Tom Paine and his supporters in the 18th • The State is a highly centralised, alienating autonomy and is now reduced to carrying out central Government orders and decisions. • The State has abandoned primary responsibility in a number of areas including housing, higher education and care in older age in favour of markets for public services. • The State refuses to take steps to cut carbon emissions and other measures to meet the challenge of climate change. organise • Power at national level increasingly exists only in relation to an unaccountable, unelected reform transnational State that includes the EU, the democracy IMF and the WTO. parency The Agreement makes the case for a transition from representation without power to a popular sovereignty, through the creation of an ‘inclusive written constitution’ that ‘embraces the aspirations of the powerless majority’. We want to encourage the building of a new, nation-wide democratic tradition from the ground up through, for example, People’s Assemblies. Building on our existing rights, the draft extends them into areas of social rights like housing, health and education. The economic

human rights self-organisation ement rights proposed include the right to co- operative ownership in place of shareholder control and the right to democracy and self- co-operative management in all areas/activities of the workplace. The Agreement suggests the right ‘to live in an environment shaped by ecological care and not profits’. free movement We are honoured that the Haldane Society has lent its support to the project, along with MP John McDonnell, the Real Democracy ecological health working group of and the organisations like the National Coalition for Independent Action. Many individuals have also endorsed the campaign through the website and on Facebook. liberty There is much work to be done in turning what is a framework into an actual, living constitution. We need to involve as many people as possible, professionals and activists, in this project. As more and more rights are countability inclusive rolled back, undermined and frequently people obliterated by a rapacious, increasingly authoritarian State, we can learn from history. Like the Levellers, we should be campaigning for what we want, what we aspire to, at the decision -making same time as defending in every way possible what we’ve achieved.

s Paul Feldman is a journalist. He has written this rights article on behalf of the steering group of the organisation Agreement of the People for the 21st Century.

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David Renton’s thoughtful and trenchant took for granted and which had, we thought, century, essentially the same rights as are article in Socialist Lawyer 64 has done us all a been vindicated by our military triumph”. contained in the ECHR, in 1844 in his On the great service, opening up questions of crucial British politicians were instrumental in Jewish Question: importance to the Haldane Society. That is drafting the ECHR, building on the 1948 ‘Over the next 40 years Marx and Engels because we are socialists, committed to Universal Declaration of Human Rights and were to sharpen this critique of rights and solidarity in resistance to the depredations of older British common law liberties. Sir David develop a richer sense of how an alternative capital, and to fighting for its abolition. We are Maxwell-Fyfe, a Conservative politician and society might work.’ not simply human rights defenders, though lawyer, drafted much of it after he had joined In actual fact, Marx and Engels affirmed the many of us are active in a host of human rights the European Movement on the invitation of opposite, in 1845 in The German Ideology. organisations, for example the Bar Human Winston Churchill.’ They wrote that: Rights Committee and the Solicitors This conception of human rights has no ‘Empirically, communism is only possible as International Human Rights Group. place for collective rights, for example the the act of the dominant peoples “all at once” What then should be our understanding of rights of the working class, or even of trade and simultaneously, which presupposes the the discourse of human rights, which has unions. The UK, like other common law universal development of productive forces become something like a secular religion or countries, refuses to have anything to do with and the world intercourse bound up with substitute for religion? The practice of human social and economic rights, and refuses to communism.’ rights protection often looks worryingly like ratify the Council of Europe’s Revised Social And continued with one of my favourite Euro-centrism; European standards set against Charter with its system of collective (not passages from their works: USA power politics or geopolitical mayhem. individual) complaints by trade unions and ‘Communism is for us not a state of affairs That was the issue in the notorious Kadi NGOs to the European Committee of Social which is to be established, an ideal to which judgment of 2008, in which the European Rights, or the Optional Protocol to the reality [will] have to adjust itself. We call Court of Justice (ECJ) annulled the decision, International Covenant on Economic, Social communism the real movement which taken initially by the United Nations Security and Cultural Rights. The jurisprudence of the abolishes the present state of things. The Council (as the Sanctions Committee) placing European Committee of Social Rights, with conditions of this movement result from the Mr Kadi on a terrorist list. The ECJ did so in many decided cases, can be found at www.coe. premises now in existence.’ (Their emphases) the light of ‘the principles of liberty, int/t/dghl/monitoring/socialcharter/default_ Thus, they were and remained perfectly democracy and respect for human rights and en.asp. clear that communism could only come about fundamental freedoms enshrined in Article David Renton is not a liberal; he is a once abundance, ‘the universal development of 6(1) EU as a foundation of the Union.’ That is, revolutionary socialist. He has made a fine the productive forces’ had been established all European principles. reputation as a lawyer fighting for workers’ over the world. They refrained from providing So far as the UK is concerned, human rights rights, and is well known for his 2012 book any blueprint for future society. Except that is are liberal rights, the right of the individual to Struck out: Why Employment Tribunals fail for another famous passage in the same work: dignity. In reality, even the Tories have no workers and what can be done. ‘For as soon as the distribution of labour problem with the Council of Europe’s ‘three What does he say? He writes that, drawing comes into being, each man has a particular, pillars’; the rule of law, multi-party democracy, on Marx, a useful approach to the problem of exclusive sphere of activity, which is forced and the protection of individual human rights. rights in the present situation: upon him and from which he cannot escape. As Adam Wagner wrote on 3rd September ‘…could be to disregard temporarily the He is a hunter, a fisherman, a herdsman, or a 2013 on the UK Human Rights Blog, under search for further and better lists of rights in critical critic, and must remain so if he does not the heading ‘Why we would be mad to leave order to focus on their revolutionary kernel: want to lose his means of livelihood; while in our European Convention on Human Rights’: i.e. the right to a just outcome [my emphasis]. communist society, where nobody has one ‘It cannot be overstated how fundamentally Part of establishing a fair outcome depends exclusive sphere of activity but each can British the [European Convention on Human on a system of expropriation.’ become accomplished in any branch he wishes, Rights] is. The included rights were based There is no disagreement between David society regulates the general production and largely on those developed by the British Renton and me as concerns the need for thus makes it possible for me to do one thing common law, reaching back to the 1215 expropriation. today and another tomorrow, to hunt in the Magna Carta and the 1689 Bill of Rights. We differ in respect of what Marx actually morning, fish in the afternoon, rear cattle in the After the Second World War, imposing wrote. Indeed, Marx and Engels wrote very evening, criticise after dinner, just as I have a traditional British values on foreign legal little on law, and even less on what a future mind, without ever becoming hunter, systems was seen as part of the victor’s spoils. communist society might look like. David fisherman, herdsman or critic.’ British politicians “made a huge contribution Renton asserts that after Marx’s acerbic This is very far from being a serious vision to the drafting”, said Lord Bingham, critique of the rights contained in the French of the future, but is instead part of a comment “reflect[ing] values which we in this country and American declarations of the late 18th on the present. >>>

Rights and wrongs Opposite page: ‘Karl Bill Bowringreplies Marx (Holzschnitt)’ (1970) by Robert to David Renton, who Diedrichs (1923–1995), German graphic artist, asked, ‘Do socialists painter and illustrator. See more of his work still have an alternative at: http://commons. wikimedia.org/wiki/ concept of rights?’ Robert_Diedrichs

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Socialist Lawyer October 2013 41 SL65_pp40-43_bowring-walker_print 14/10/2013 10:09 Page 42

>>> Furthermore, their Manifesto of the done. But, Marx insists, human beings are not space… we have the certainty that matter Communist Party of 1848 says nothing about equal at all, starting with their ‘…unequal remains eternally the same in all its a future communist society. Instead, the final individual endowment, and thus productive transformations, that none of its attributes section, Part IV, begins: capacity’, that is, physical and mental can ever be lost, and therefore, also, that with ‘The Communists fight for the attainment endowment. One worker is brighter than the same iron necessity that it will of the immediate aims, for the enforcement of another, stronger than another. And, Marx exterminate on the earth its highest creation, the momentary interests of the working class; continues: the thinking mind, it must somewhere else but in the movement of the present, they also ‘…one worker is married, another is not; and at another time again produce it.’ represent and take care of the future of that one has more children than another, and so This is Spinoza. One can be quite sure movement.’ on and so forth. Thus, with an equal that if the earthly paradise were ever Communists, therefore, struggle on the performance of labour, and hence an equal in achieved, that would be the moment at side of the working class in the present day. the social consumption fund, one will in fact which a passing asteroid would eliminate the And Marx and Engels go on to specify their receive more than another, one will be richer planet and all its inhabitants, workers and attitude to existing parties in the various than another, and so on. To avoid all these capitalists alike. Something like Lars von European countries. The class struggle has defects, right, instead of being equal, would Trier’s film Melancholia. not gone away, far from it, and now have to be unequal.’ To return to the question of rights. I think intensifies all over the world. In passing, it is It is not, as David Renton suggests, that for that a strong case can be made for the of great interest that two recent American Marx ‘…all universal rights… result in proposition that each generation of ‘human block-buster films, Hunger Games and unequal treatment’. The point is that human rights’ has its origins in revolutionary Elysium, both depict bitter and bloody class beings are unequally endowed, and have struggle, and that is why they remain, unlike struggles in the future. unequal personal lives. As Marx makes clear, black-letter law, so powerful and so To return to On the Jewish Question, his famous slogan ‘From each according to scandalous. The first generation of civil and Marx condemned the bourgeois rights of the his ability, to each according to his need’, can political rights, now enshrined in the ECHR, Declarations, asserting that ‘…the so-called only be realised ‘…after the productive forces had their origin in the French and American rights of man, the droits de l’homme as have also increased’ and ‘all the springs of co- Revolutions, abhorred by Edmund Burke, the distinct from the droits du citoyen, are operative wealth flow more abundantly’. We father of English conservatism. We should nothing but the rights of a member of civil now know, as Marx and Engels did not, that take our stand with Burke’s enemy, Tom society – i.e. the rights of egoistic man, of man there are severe ecological barriers to Paine, whose Rights of Man and Common separated from other men and from the achieving abundance. Sense still read as a full frontal attack on community.’ That is, the man who wants to To sum up, Marx and Engels insisted that contemporary English political corruption. be left alone by the State, principally to make communists fight in the present, we cannot The second generation, social and money. predict the future, and of course there is no economic rights, were first treated as legal David Renton then, quite properly, turns certainty that the working class will win. rights in the International Labour his attention to Marx’s 1875, 30 years later, Marx and Engels both drew deeply from Organisation which was created in 1919 as a Critique of the Gotha Programme – that is, the radical materialist Baruch Spinoza (1632- direct response to the October revolution of the programme drafted by Lasalle for the new 1677), for whom all transcendence, 1917. Haldane’s John Hendy and Keith mass workers’ party, the German Social anthropocentrism, and teleology were Ewing have shown how the UK shamelessly Democratic Party, an explicitly socialist anathema. In 1841 Marx made extensive violates its ILO obligations. And the key document. transcripts, in Latin, from Spinoza, pages 233 right of the third generation, the right of I disagree with David Renton’s to 276 in Volume IV/1 (1976) of the peoples to self-determination, was first interpretation of Marx’s critique. The Marx/Engels Gesamtausgabe, the MEGA promoted by Marx, Engels and Lenin, and provision which attracted Marx’s merciless which continues in production. And in the came to fruition in the anti-colonial struggles criticism was: Introduction to his Dialectics of Nature, after World War Two. Self-determination ‘3. The emancipation of labour demands written in 1883, Engels wrote: struggles continue for the Irish, Basques, the promotion of the instruments of labour to ‘It is an eternal cycle in which matter Kurds, Palestinians, and Tamils. That, for the common property of society and the co- moves… a cycle in which every finite mode of me, is the ‘revolutionary kernel’ of rights. operative regulation of the total labour, with a existence of matter… is equally transient, and fair distribution of the proceeds of labour.’ wherein nothing is eternal but eternally Bill Bowring teaches law at Birkbeck For Marx, this necessarily implies ‘equal changing, eternally moving matter and the College. He is a barrister practising at the right’, that is, bourgeois right. Under laws according to which it moves and European Court of Human Rights and is capitalism, the worker receives remuneration changes. But however often, and however International Secretary of the Haldane according to the amount or quality of work relentlessly, this cycle is completed in time and Society.

“Marx and Engels insisted that communists fight in the present, we cannot predict the future, and of course there is no certainty that the working class will win.”

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Self determination Steven Walkerlooks at what influenced young Cuban lawyer Fidel Castro

The 60th anniversary was growing and he was seen prominently as a and bombings in Bogotá. The Americans of the beginning of the leading mourner at the funeral of the much- blamed communist agitators but there is no Cuban revolution on respected communist labour leader Jesus conclusive evidence they were particularly 26th July 1953, offers Menendez, who had been shot dead by an successful in organising what was in effect an a chance to consider army captain in Manzanillo. expression of mass outrage against the murder where Fidel Castro In 1948, the Cuban Presidency passed to of a much-admired President. drew inspiration from Carlos Prio, who with the influential army A police inquiry falsely named Fidel as a and the ideas which officer Batista, gave unparalleled freedom to communist agent sent to deliberately stir up prompted his band of the American mafia who accelerated the discontent. Fidel managed to reach the Cuban guerrillas to mount an audacious attack on the degeneration of Cuba into what became widely embassy under Moncado barracks – headquarters of the renowned as America’s brothel, where casinos, Argentinean Cuban military dictator Fulgencio Batista, who gambling and gangsterism flourished and the diplomatic protection had seized power in an army coup in 1952. proceeds of organised crime were stashed away and was flown back to Fidel studied law at the University of from mainland American tax authorities. Havana on a cargo Havana in 1945 on the advice of those who Fidel was sent with a group from the MSR plane. Fidel drew noted his passion for argument. A world when he was twenty-one years old to assist in lessons from these two divided ideologically between capitalism and the insurrection in the Dominican Republic, events, where he communism, stimulated a febrile political then under the ruthless American-backed participated actively in atmosphere at university. Two of his earliest dictator Rafael Trujillo. The Cuban insurgents an insurrection with an university friends belonged to the communist failed and most were arrested but Fidel intoxicating mix of violent struggle, the actions youth and Fidel made his first overtly political managed to escape by swimming across the of massed crowds, and the inspiration of speech in 1946, criticising the dictatorship of shark-infested waters of the Bay of Nipe to Gaitán’s oratory and mesmerising personality. Gerardo Machado, Batista’s predecessor. make his way to his father’s sugar cane estate. Fidel was by now immersing himself in Fidel was aligned with two main political Back at university in Havana, Fidel swapped student politics and actively supporting the groupings at university – the Movimiento allegiance to the UIR and was nominated to the fight for independence in Puerto Rico. He was Socialista Revolucionario (MSR) led by Presidency of the also demonstrating solidarity with other Rolando Masferrer and the Union University Special student movements in Argentina, Venezuela, Insurreccional Revolucionaria (UIR) led by Committee on legal Colombia and Panama, which were Emilio Trio. This was his revolutionary affairs. demanding an end to American colonial rule apprenticeship being refined, where he learned The pattern of via financed puppet dictatorships. much about the nature of Cuban institutions Fidel’s journey to later Eduardo Chibás left the Auténtico, the and how steeped in corruption and violence succeed in Authentic Revolutionary Party of Cuba, and in they were. The two groups quarrelled and overthrowing the 1947 founded the Partido Popular Cubano jostled for prominence on campus, while Batista dictatorship in (PPC – Cuban People’s Party) quickly outside the corrupt President Ramon Grau San 1959 was being becoming better known as the Ortodoxo party. Martin, an American puppet, seized power in hardened. Fidel was now by no means an Fidel joined immediately, finding in Chibás yet 1944. avowed Marxist, he gradually distanced another hero who he followed with great Two of the key historical and political himself from the UIR and had little contact enthusiasm, regarding him as a man of the events dominating students at Havana with his communist friends. He later tells of the future destined to pave the way to Cuba’s University and influencing their beliefs, ideas influence of Marxist-Leninist ideas and reading independence. and perceptions of Cuba’s past and future were a part of Das Kapital, but implies that these The Ortodoxo party soon established itself the independence struggles of 1868 to 1898 led were not forming part of any coherent political as the first serious opposition to the by José Martí; and the revolutionary ideology. What seems to have been of much Government, fully adopting the principles and movement of 1927 to 1933 involving former more significance was to identify with those values of the revered José Martí for anti- army officers, students and government fellow students and historical Cuban heroes imperialism, socialism, economic officials that had led to the overthrow of such as José Martí, and satiate his appetite for independence, political liberty and social Machado. Fidel recognised that these were revolution and insurrection. justice. What is striking about this period in incomplete shifts in fundamental power – In 1948 Fidel joined a group of students Fidel’s life is his ability to identify with and simply replacing varieties of colonial rulers and from different parts of Latin America to stage a follow charismatic male figures who had the corrupt American puppet dictators. Fidel protest at the Pan American Conference in capacity and personality to grasp the attention vowed to succeed in creating a truly Bogotá, the capital of Colombia, where the of the masses. Thus his political personality independent Cuba, a USA sought to tighten its grip on those was being melded with his underlying self-determining countries dependent on and economically and aggressive personality, creating a formidably country led by those politically controlled by the USA. The student strong union. Although the attack on the on the side of the delegations harassed those attending the Moncado barracks in 1953 failed, Fidel never many rather than the conference, with demonstrations, marches and lost sight of his goal and six years later in 1959, few. leafleting delegates, attacking US colonialism. together with Che Guevara, his brother Raúl In early 1947 Fidel During the frantic atmosphere and growing Castro and others, succeeded in overthrowing became increasingly tensions the Colombian President, Jorge Eliécer Batista and liberating Cuba. politically active, Gaitán was shot and killed at a demonstration, openly criticising enraging the poor majority of Colombians who Steven Walker is the author of Fidel Castro’s President Grau and Batista for their failed supported his attempts at liberal social reform. Childhood – the untold story, 2012,Troubador leadership and corruption. His political profile This triggered a wave of riots, violence, killings Books, ISBN: 9781780882154.

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Reviews

Undercover poses searching Uncovering questions about whether the decades of deception were worth it? It also asks whether it can ever decades of be justified to spy on those who are arbitrarily defined as being of deception interest to the State for whatever reason they see fit? The answer to both is clearly no. In the majority, Undercover: The True Story of the intelligence that went back to Britain’s Secret Police the SDS handlers was simply of By Rob Evans & Paul Lewis politically committed activists, Faber and Faber (2013) challenging the State hegemony. It demonstrates that the police If you haven’t already read Rob tactics were simply another Evans and Paul Lewis’s book, or example of the State’s ongoing its extracts in The Guardian, then programme of social control perhaps you think that intrusive through the designation of police surveillance does not affect dissenters as deviant or ‘criminal’. you? Or you may think that your Undercover is a vital exposé of membership of the Haldane the lengths that the Metropolitan Society of Socialist Lawyers, Police covert operations went to. support for various anti-capitalist However, it is not just the ‘classic’ and/or justice movements and covert surveillance we should be your attendance at concerned about. Most demonstrations are nothing that demonstrators today are aware of the State would be interested in, the risk of being overtly let alone want to monitor, record photographed or recorded by and analyse, right? Wrong. intimidating ‘Evidence Gathering What Undercover Teams’. The Court of Appeal in immediately makes clear is that the case of John Catt recently there is no longer any de-lineation confirmed the existence of a between the State’s legitimate police database containing names programme to monitor and and images and known associates disrupt genuine threats to of demonstrators with no national security and their fetish previous convictions. Increasing with infiltrating grassroots technology also means that we movements for justice and social now give up a lot of information change. that could be of interest to the The authors tell the story of State for free to big corporations the previously unknown secret in exchange for a virtual social lives of police officers Bob Unlike other undercover police they felt for the police’s underhand contact. This is not to mention the Lambert, Peter Black, Mark officers, SDS officers were not and un-regulated infiltration. meta-data that can be harvested Kennedy, Lynn Watson, Marco there to gather evidence that could That police spies have targeted by the intelligence agencies, Jacobs and a number of other be used in court, or to be able to and penetrated the left is perhaps packaged, sold and analysed by undercover officers or witness events in order to testify not a surprise to many, but few whoever is willing to pay the HUMINTS (Human Intelligence against suspects under oath. They can fail to be shocked by the price. Sources) that were deployed by were simply there to feed authors’ revelations that the Fearless revelations by the Metropolitan Police’s Special information about political Metropolitan Police had been investigative journalists such as Demonstration Squad (SDS) movements back to their handlers, monitoring the private home of Evans and Lewis alongside founded in 1968. for as long as it was deemed Doreen Lawrence, listening to the whistle-blowers such as Edward Within the SDS hand-picked necessary. legally privileged conversations of Snowden and Chelsea Manning officers would ‘disappear into a Few causes were safe, the anti- Dwayne Brooks and that officers show us that we are only at the tip black hole for several years’, apartheid movement, Greenham had committed the most personal of the iceberg in understanding changing their appearance, common, London Greenpeace, violations by having intimate how the State seeks to monitor assuming the identities of Youth Against Racism, Newham relations with female activists, and control our freedoms. deceased members of the public, Monitoring Project, the Animal most with the tacit approval of Undercover is also a timely and creating new identities for Liberation Front, Campaign senior officers. These revelations reminder of the importance of this themselves as activists in order to Against the Arms Trade, and the prove that there is no longer any type of quality journalism as a live by the SDS motto of Socialist Workers Party were all part of our public or private space vital mechanism for holding the undercover policing, ‘by known targets. Many have since that is safe from the State’s State to account. whatever means necessary’. spoken out against the betrayal intrusion. Anna Morris

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Reviews

responsible for forcing them into witnesses – the surviving detainees pleaded guilty to inhuman Institutional stress or ski positions, yelling – had not been prepared for the treatment while contesting a insults and abuse at them, hooding experience of giving evidence; they charge of manslaughter. He must them and then punching, kicking, were doing so through have regretted that decision as he culpability and battering them while interpreters, a process which watched his comrades walk free. blindfolded. Other soldiers inevitably makes their testimony Three people shine through as A Very British including senior officers and the more distant. As the witnesses determined truth-seekers. Sir Killing: The padre had wandered through the became confused, and rambling, it William Gage conducted the two- Death of Baha barracks and must have observed was hard for the prosecution to year inquiry into the death of Baha Mousa ‘the choir’: the detainees lined up elicit their previous statements Mousa and was able to piece AT Williams, and struck in succession. The from them. When they expressed together an account of what Jonathan Cape, screaming must have been audible emotion, it felt false and jarring to happened in the barracks in Basra. 2012 throughout the barracks. a British courtroom. Skilled Phil Shiner, Vice-President of the The second institution is the criminal defence lawyers were able Haldane Society, took ground- legal profession. Obviously it is not to make far too much of apparent breaking cases to the Supreme This is a story of two British for lawyers to track down the inconsistencies. The second group Court and Strasbourg in order to institutions failing Iraqi civilians. truth: a lawyer’s job is to defend his of witnesses were soldiers who had establish that a full inquiry was The culpability of the first or her client fearlessly, subject only been only too happy to help the needed and that human rights institution is well-known: British to certain ethical restraints. prosecution when it looked like could apply to the actions of troops detained and tortured nine It is the court process, assisted by they might be in the dock. Once British troops abroad. And Iraqi civilians in Basra in 2003, one adversarial advocates, that is they were off the hook and their Colonel Daoud Mousa, Baha’s of them – Baha Mousa – was so supposed to get to the truth. The comrades were charged, they father, had been seeking the truth badly assaulted he died as a result. court-martial of only seven suffered a collective loss of from the moment he was presented Only one person – Corporal Payne soldiers accused of assaulting memory. The prosecution was with a death certificate that – has been convicted of any crime. Mousa with such force so as to reduced to treating some of them contained an inaccurate cause of However these assaults were not cause his death lamentably failed as hostile witnesses. All seven death for his son. He was let down committed by a rogue bad apple to get to the truth. defendants were acquitted and the by the court-martial and by most soldier. The torture session had Andrew Williams provides a media ran sympathetic stories of the legal profession, and only lasted two days. The Iraqis were devastating account of how the about the ordeal they had suffered. finally found some justice from guarded by at least 15 soldiers. adversarial system can let down The only convicted perpetrator William Gage. Fifteen to 20 soldiers were truthful witnesses. The Iraqi was Corporal Payne who had Liz Davies

the war effort or cooperate with the firm’s assistance to the trade union arose after an upsurge in strike authorities to that end in any way – and labour movement at key action in India in 1928/29 and a A special saw him imprisoned several times moments in the 20th century will clampdown by the law officers of between 1916 and 1919. however appeal to a much wider the British Empire. practice That is just one fascinating audience. The book includes an index of detail contained in Steve Allen’s For example, in a powerful key legal cases in the areas of book Thompsons – A personal chapter entitled ‘Dying for work’, personal injury, labour and Thompsons – history of the firm and its founder. the author documents the firm’s employment law in which the firm A personal Others include the account of involvement in seeking redress for has been closely involved. The history of the legal assistance provided to the those affected by workplace referral to the same in the text firm and its Poplar Borough Councillors who accidents and the campaign reveals an organisation of many founder were jailed in 1921 for failing to against the Workmen’s deeply committed individuals and Steve Allen set a rate, an act of resistance Compensation Act 1925. one imbibed with a clear political ISBN 978-0- grounded in opposition to Associated chicanery on the understanding and analysis of the 85036-638-9 unfairness in a system of payment part of employers and insurance challenges facing working people. Merlin towards the cost of common companies had been a feature of a Thompsons today has over services provided across London. system which had repeatedly left 1,000 staff and partners working As the 100th anniversary of the As well as being at the helm of workers shattered by industrial in an increasingly competitive beginning of the First World War the foundation of the National injury with no real choice but to market within a context of de- approaches, interest in those who Council for Civil Liberties in 1934, accept early and often inadequate industrialisation. resisted the military conscription Harry Thompson also provided settlements in the decades before However, as the author is keen of the time is starting to grow. legal expertise to the unemployed the welfare state. to point out, the firm has never One such radical dissenter was workers and anti-fascist Further afield, in an early acted for insurance companies and WH (Harry) Thompson, who movements of that decade. example of the firm’s involvement remains ‘a special practice, a firm founded the well-known law firm While parts of the book may in supporting trade unionists united in its endeavour to act for of the same name in 1921. only be of interest to those familiar across the world, legal assistance the trade unions, for working Harry Thompson’s actions as with the firm’s internal life – the was provided to defendants in a people and the disadvantaged and an ‘absolutist’ – a conscientious author himself worked there for case known as the Meerut oppressed’. objector who declined to help with over 30 years – the coverage of the Communist conspiracy trial which John Hobson

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with children, and alongside them, and, in the film’s most violent While the high-rise monochrome Original and uniformed adults whose faces are scene, is attacked and punched jungle of Recife might look like recognisably similar to those in the about the head, inexplicably, by a another world, Ribeiro’s polarised faded portraits of the opening female neighbour. cast structure of the sugar mill is gripping sequence. These are the modern Anthropologist Darcy Ribeiro still firmly in place. Everything is serving classes: the nannies, wrote that the proto-cell of different; nothing has changed. FILM: Neighbouring Sounds cleaners, cooks, porters and Brazilian life originated from the The urban domestic staff open and Directed by Kleber Mendonça security guards. social structure organised around close doors for their masters. Filho, 2012 Neighbouring Sounds tells the the sugar mills, which date back to Everyone knows their place; story of two families who live a the 17th century. The senhor was everyone is edgy. Neighbouring Sounds is a new few blocks from the sea in Recife, the governor of the lives of all Neighbouring Sounds, which type of Brazilian film, a social in a claustrophobic world of those who worked and lived there: excels in originality, observation commentary with no guns, no jagged high rises, right angles and those of his own family, the mill and detail, captures a long awaited corpses, nearly no and the barred windows. The upwardly workers, and of course, the slaves. moment of possible opening in country’s official entry for the mobile Bia, played by Maeve After João and Sofia visit his Brazil. But can the country really 2014 Oscars. Jinkings, a frustrated housewife, is grandfather Seu Francisco, in the change? The sins of the fathers The film’s gripping opening at war with the neighbour’s dog. countryside, at the decayed former continue to dictate the lives of the sequence is a montage of peasants She staves off frustration with sugar mill he still owns, the living. João is the quintessential and their masters. Worn, leathered large doses of marijuana, in underlying tension and unease Brazilian stereotype of extreme faces peer out with untrusting eyes, between shuttling her children to running through the film escalates affability, and in his case, little frozen in time in parched and from Chinese and English into an atmosphere of pure productivity. Despite treating countryside. A crescendo of lessons. A second, richer, family is menace. Bia’s daughter has a people well, and entertaining percussion – Boom-BOOM- represented by João, played by nightmare about a horde of heartfelt notions of justice, he Boom-BOOM – grows louder, Gustavo Jahn, a sympathetic, thieves, dropping endlessly one by reinforces the archaic class system louder, louder, until the still images handsome late-twenty-something one into her garden in the dead of with his lazy, easygoing platitudes. break into the film proper, and the who manages the many flats on night. João dreams of a waterfall He greets termination of his love viewer finds himself in a completely the street owned by his of blood. While the security guards affair with Sofia with the same different universe, following a girl grandfather. While João begins an swap tales of random violence, Bia vague, passive smile he applies to on pink roller blades, plastic wheels affair with Sofia, and attempts to spies a lone black boy sneaking the rest of life. His grandfather, click-clacking on the surface of a rent out a flat in a building where along the rooftops in the dark. former senhor of the sugar brand new car park. She skates into floral tributes stand as reminders Seu Francisco has made his way plantation, continues to take all a fenced playground at the top of a of a recent suicide, Bia takes to the city, swapping his former the decisions, but for how long? residential high rise. It’s crowded delivery of a 40-inch plasma TV, plantation for urban real estate. Damian Platt

system. Innocent until proven The chapter on causes of gives Naughton’s ‘troubleshooting’ guilty? Not when police miscarriages of justice describes a recommendations for prevention Expertlydone investigations are designed purely crucial aspect of this subject that is of wrongful convictions in the to find evidence of guilt, defence is rarely acknowledged: within our future. The parole board’s attitude The Innocent & poorly funded, and defendants system it is not only possible that to those who deny their guilt must the Criminal rendered passive by the wrongful convictions are brought be altered since it now Justice System: requirement to work entirely to the about purposefully, by treatment discriminates actively against a sociological agenda of the prosecution. such as that meted out by corrupt factually innocent prisoners; the analysis of Much of the book rests on the police to the Guildford Four and Court of Appeal (Criminal miscarriages of following definition: miscarriages others in the infamous cases, but Division) must widen its ambit to justice of justice are unfortunate, they can come about with none of assist the factually innocent By Michael accidental, made in good faith but the actors in the investigation or without being restricted by Naughton, ‘abortions’ of justice come about prosecution of a crime breaking principles of finality and jury Palgrave Macmillan, 2013 intentionally, in bad faith, any rules or perceiving in any way deference. The Criminal Cases maliciously. It is here that my only that they are doing wrong. This is Review Commission needs to get Naughton’s new book is expertly discomfort with the book arose. the truly terrifying part of the back its teeth and become a written. His experience gives his These are both unavoidably words problem. The sociological aspect of properly independent investigatory writing an engaging practical tone, which denote traumatic events the search by police for evidence to body. Compensation at current while being squarely academic. occurring exclusively in women’s convict a person, ‘tunnel vision’ as levels is woefully inadequate. An The book is divided into bodies. Personally then, I found Naughton refers to it, is an idea that is simple but quietly practical sections covering this analogy and its association of example of this. Confirmation bias revolutionary ends the book. causation, investigation and the abortion with wrongdoing jarring. means that evidence which would Wrongful convictions will continue (in)adequacy of redress. Without The word ‘miscarriage’ may indeed tend to prove a person’s innocence until the overriding objective flinching, pillars of ‘British Justice’ be insufficient – this may be then a is unconsciously filtered out throughout the criminal justice are shown in an unflashy way to be missed opportunity to invent because it goes against an original system becomes the safeguarding in fact, irrelevant to the actual newer, better terms more fit for assumption of guilt. of the innocent. workings of the criminal justice purpose. The last chapter of this book Elizabeth Forrester

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Human-2014 2013 Rights Lectures Thursday 14th November 2013: Annual General Meeting and Lecture: Speaker: Phil Shiner, solicitor, Public Interest Lawyers, doughty litigator against human rights abuses by British troops, will be speaking on: UK human rights violations in Iraq and Afghanistan – the present picture Followed by Haldane Society AGM: reports, motions, elections of officers and executive Tuesday 10th December 2013: How to be a Feminist Lawyer Speakers include: Elizabeth Woodcraft, family law barrister – other speakers to be confirmed All lectures at 6.30pm at the University of Law 14 Store Street London WC1E 7DE www.law.ac.uk/ our-centres/london-bloomsbury/getting-there Attendance is free. We hope that CPD points will be available (for £10), but please check in advance Further information from www.haldane.org