SocialistLawyer Magazine of the Haldane Society of Socialist Lawyers n Number 60 l February 2012 £3

INSIDE: Housing in The 2011 riots The fight for land Austerity cuts; job East Jerusalem: sentencing: unfair, rights in Mexico; the seekers allowance international legal inconsistent and end of the Basque challenge; news, mission report unequal? ETA armed struggle reviews and more SocialistLawyer Number 60 – February 2012 –ISSN 09 54 3635 Editor: Tim Potter Special thanks to: Liz Davies, Russell Fraser, Contents Stephen Knight and Declan Owens Cover picture: Jess Hurd (Report Digital) Luis Eduardo Garc – a trade union member at News & comment...... 4 Coca Cola – living under paramilitary death Colombia, Employment Tribunals, Stephen Lawrence, Francis Khoo and more threat at Buchramanga in Colombia. Many thanks to all our other contributors, readers Young Legal Aid Lawyers ...... and members who have helped with this issue. 11 Design: Smith+Bell (www.smithplusbell.com) Connor Johnston on an illuminating report on the costs of cutting legal aid Print: The Russell Press (www.russellpress.com) Fairness? Consistency? Equality? ...... 12 Paramjit Ahluwalia asks why these basic tenets are absent from the post-riot sentencing

Housing in East Jerusalem ...... 14 Haldane Society of Marina Sergides reports on an legal mission to the Occupied Palestinian Territory Socialist Lawyers ‘No event is ever correctly reported’ ...... 18 PO Box 64195, London WC1A 9FD Jim Duffy on the case of Cait Reilly’s battle over Jobseeker’s Allowance www.haldane.org The struggle for land rights ...... 22 The Haldane Society was founded in 1930. It provides a forum for the discussion and analysis Fiona McPhail meets people driven from their homes and a battling lawyer in Mexico of law and the legal system, both nationally and internationally, from a socialist perspective. It holds Britain’s hidden slaves ...... 26 frequent public meetings and conducts Sarah Steinhardt on the individuals who live in servitude in 21st century Britain educational programmes. The Haldane Society is independent of any Justice should not depend on luck ...... 28 political party. Membership comprises lawyers, Gabe Tan argues that fresh evidence should not be needed to prove innocence academics, students and legal workers as well as trade union and labour movement affiliates. Why did ETA call it off? ...... 30 The list of the current executive, elected at the AGM in November 2011 is as follows: Brian Currin on the Basque seperatists decision to end its armed struggle President: Michael Mansfield QC Vice Presidents: ‘Their cuts not ours’? ...... 34 Geoffrey Bindman QC, Louise Christian, Tess Gill, Paul Heron argues that Labour councils should not carry out austerity measures Tony Gifford QC, John Hendy QC, Helena Kennedy QC, Imran Khan, Kate Markus, Reviews ...... 37 Gareth Peirce, Michael Seifert, David Turner- Films: The Enemy Within and Impunity Samuels, Phil Shiner, Frances Webber, Professor Lord Wedderburn QC Chair: Liz Davies ([email protected]) Vice-Chairs: Kat Craig (katherinec@ christiankhan.co.uk) and Anna Morris ([email protected]) Secretary: Chris Loxton ([email protected]) Assistant Secretary: Sophie Khan Socialist Lawyer Editor: Tim Potter ([email protected]) Treasurer: Declan Owens ([email protected]) Membership Secretary (job-share): David Renton ([email protected]) with Debbie Smith ([email protected]) International Secretary: Bill Bowring ([email protected]) Executive Committee: Martha Jean Baker, Jacob Bindman, Sarah Collins, Rheian Davies, Russell Fraser, Joanna Gilmore, Margaret Gordon, Mike Goold, Agnieszka Grabianka-Hindley, Owen Greenhall, Richard Harvey, Paul Heron, John Hobson, Natalie James, Angus King, Stephen Knight, Saleh Mamon, Carlos Orjuela, Ripon Ray, Brian Richardson, Hannah Rought-Brooks, Marina Pages 20-21: Precepts Letterpress print featuring text appropriated from the Socialist Sergides, Adiam Weldensae, Azam Zia. (Socialist Fellowship), Precepts, originally published 1966 by the Socialist Fellowship, Ruth Ewan, 2012. formerly the National Council of British Socialist Sunday Schools

2 Socialist Lawyer February 2012 Editorial

This is the 60th edition of Socialist Lawyer. of the delegation to East Jerusalem in Diamond The Haldane Society remains as active as ever. December 2010 where delegates encountered On 30th November 2011, Haldane members those standing up for their housing rights in expressed their solidarity with public sector Sheikh Jarrah. The delegation went on to celebration workers striking in defence of their jobs, deliver briefing sessions in Brussels and in pensions and pay by marching alongside them. Parliament in London on 18th October 2011. The ideologically driven Con-Dem coalition The review section covers the story of Brazilian cuts agenda continues apace. human rights activist Marcelo Freixo whose Readers of this magazine will be all too actions have helped inspire a feature film familiar with the current Government’s drive directed by José Padilha. There is also a report to cut the legal aid budget and the threats this on those fighting for land rights in Chiapas, poses to access to justice particularly for the Mexico which is accompanied by an interview most vulnerable members of society. As Lord with Abigail Escalante, an intrepid Mexican Prescott complains of the lack of media human rights lawyer. coverage of the Legal Aid, Sentencing and Brian Currin is perhaps better known in Punishment of Offenders Bill, Connor Spain than on these shores for his Johnston of Young Legal Aid Lawyers casts a instrumental role within the international focused eye on the passage of the legal aid Bill team of facilitators who have sought a through Parliament in the pages of this edition. negotiated and democratic solution to the It was 12 months ago that The Haldane conflict in the Basque country. He brought his Society and Young Legal Aid Lawyers jointly experience as a South African lawyer who had organised ‘The Case for Legal Aid – an inquiry been involved in the creation of the Truth and into public funding and access to justice’ Reconciliation Commission in his home which was held in Parliament in February country to his work as a facilitator for peace. 2011. Following on from this event a year He gives his account in this edition of the down the line, The Haldane Society in reasons behind the announcement of Eta’s partnership with Amnesty International and ceasefire in October 2011. European Lawyers for Democracy & Human It is a great pleasure to be able to print a Rights (ELDH) have set their sights on piece of work by the artist Ruth Ewan in organising an equally ambitious and no less Socialist Lawyer. Ruth’s work places the important international conference on accounts of activists, socialists, protesters and Defending Human Rights Defenders. The the socially marginalised in the public sphere. conference will take place at the Amnesty She has exhibited widely from the ICA in Human Rights Action Centre on 24th London to the Centro Andaluz de Arte February 2012. Contemporáneo in Seville. One of Ruth’s The aim of the conference is to draw recent pieces of artwork involved together lawyers, trade unionists, journalists commissioning over 100 buskers, placed at and activists from some of the world’s most different areas around London, to sing The challenging civil societies. In recent years Ballad of Accounting. The song was written in Haldane members have been active 1964 by the folk singer Ewan MacColl who participants in delegations to Turkey, held communist beliefs. Colombia, Palestine, and the Philippines Also featured in the magazine is some among other locations. It is a great privilege to artwork from the days of Salvador Allende’s be able to draw together delegates from all government of Popular Unity in Chile before it these countries as well as Swaziland and the was toppled by the military coup led by Caucasus region to share in their knowledge General Pinochet in 1973. The artwork and experiences as well as an exchange of displays some of the spirit of Allende’s solidarity and expertise. government. It is also a reminder of the price Given the upcoming conference, this that has been paid by many across the globe edition of Socialist Lawyer is full of accounts who strive to defend justice, equality and of those working in defence of human rights. human rights. Marina Sergides looks back at the conclusions Tim Potter, editor

Socialist Lawyer l February 2012 3 News&Comment

under the European Arrest background to a case, removing a Extradition Warrant (EAW). He played a film significant barrier to a person’s in which a man named Andrew removal. Symeou spoke powerfully of his Mike Evans recounted the and human hellish experience of extradition to number of petty offences for Greece for a crime in which it was which countries such as Poland rights later accepted he had had no would seek extradition: exceeding involvement. Indeed, much of the an overdraft limit; the possession n recent years extradition has evidence gathered against him had of two counterfeit Euro notes; occasionally been front-page been obtained by police beating causing minor damage to a car. news. However, as Jago witnesses until they confirmed Not surprisingly he would favour IRussell, chief executive of Fair fictitious accounts. Current legal the law being amended to provide / reportdigital.co.uk Jess Hurd Picture: Trials International, and Mike arrangements mean the judiciary is for extradition in cases where the Evans, manager of Kaim Todner denied any discretion to reject a offence was of a sufficient gravity. Solicitors’ extradition department, request that does not reveal even a Both speakers’ tireless reminded a Haldane lecture in prima facie case. representation of their clients is January, many more extradition The EAW is predicated on the beginning to have an effect on the requests are made to Britain each principled yet hopelessly optimistic public and MPs alike. In year from other countries seeking idea that all EU countries can be December 2011, a backbench the return of their citizens. trusted implicitly to respect human motion was passed in Parliament Mr Russell stated firmly that rights norms, a principle known as calling for the Government to Barbara Tucker, the peace campaigner not all extradition was bad and ‘mutual recognition’. There is little provide greater protections for who has been camped in Parliament that what he wished to see was a opportunity for the courts to those requested. Square since 2005, has her tent removed by police in January. more effective system than that properly examine the factual Russell Fraser

custody without trial for nearly General Intelligence Directorate MoU had come into being meant Euro court seven years. (GID), ‘particularly against the Jordanians would be The ECtHR ruled that Qatada Islamist detainees’. In order to motivated to ensure his proper could not be deported to Jordan overcome doubts about Qatada’s treatment. The court also detainee because to do so would be a safety were he to be returned, the dismissed the possibility that once violation of Article 6 of the Government obtained a returned Qatada could be at risk of decision European Convention on Human Memorandum of Understanding being detained and mistreated in Rights. The court decided that, (MoU) from the Jordanian state, secret. n 17th January 2012, were Qatada to face a retrial in which it said could be relied upon The court dismissed Qatada’s the European Court of Jordan for alleged terrorist to ensure Qatada would not be ill- Article 5 claim on the basis that Human Rights offences, there was a real risk of treated, despite the agreement not there would not be a flagrant O(ECtHR) handed down evidence obtained by the torture being legally binding. The ECtHR breach. He had argued that if its judgment in Abu Qatada v the of third parties being admitted and considered the content and returned he could face up to 50 United Kingdom. Qatada is a this would amount to ‘a flagrant context of the MoU and days of incommunicado detention Jordanian national who has lived denial of justice’. concluded Jordan would likely before any trial. This, the court in Britain since around 1993 and The decision of course means demonstrate ‘strict compliance found, fell well short of the length in 1994 was recognised by the that Qatada cannot be deported. with both the letter and spirit of of time necessary for an Article 5 Home Secretary as a refugee. In However, the court rejected his the MoU’. breach. In any event, it will be the 2002, he was arrested under the claims that to deport him would The court also rejected court’s determination that the Anti-terrorism, Crime and also amount to violations of Qatada’s claim that his high MoU negotiated with Jordan can Security Act 2001 and became one Articles 3 and 5. The court profile would put him at greater be relied upon which will cause of the group known as ‘the accepted that torture is risk of torture. In fact, it said, the most disquiet in human rights Belmarsh Detainees’. By the time ‘perpetrated systematically’ by the focus on his case and the wider circles. That decision has profound of this judgment he had been in Jordanian security body the political context in which the implications for other foreign October 11: An investigation by The Guardian 12: The Supreme Court rules that a 16: In what is the first major vote of its 18: The Court of Appeal upholds reveals that Justice Minister, Jonathan blanket Home Office visa ban on kind in Latin America, Bolivians go to lengthy prison sentences handed Djanogly, could personally profit from British citizens under-21 bringing the polls to vote for 28 judges for four down to two boys who used Facebook changes to the legal aid system he spouses to the UK from abroad was national courts, including the Supreme to ‘incite’ riots, as well as other was endorsing. The Ministry of Justice unlawful. The Government criticises Court and the Constitutional Tribunal. offenders involved in looking. Lord and Cabinet Office have launched an the decision with Immigration Minister, Half the candidates were women and a Judge said ‘The level of lawlessness investigation. Djanogly claimed he had Damien Green, saying the judgment large proportion were indigenous. was shocking and wholly inexcusable. ‘at all times made relevant declarations was ‘very disappointing’. Congress had previously selected The imposition of severe sentences… as an MP’. judges. must follow.’

4 Socialist Lawyer February 2012 On the picket line A political hearing in the Employment Tribunal

recently represented a trade compensation; the best trade claimants obtain representation by unionist in a Tribunal claim. unionists save workers’ jobs. finding a lawyer willing to act pro Mid-way through the hearing, A recurring theme of the bono, or through a union, or via II received by text solidarity evidence in our case was the no-win-no-fee agreements, all of greetings which had been voted contrast between the sorts of which avoid having to pay legal through at a union meeting the hearings which used to be fees up front. Employers have night before. This was certainly common at the Tribunal and the deeper pockets. Their something I have never been sent sorts of hearings we often have representatives exploit this by as a lawyer before. Groups of these days. One witness was a over-litigating demanding Pre- workers attended the hearing: union full-time officer, who Hearing Reviews with the hope of never less than two or three at a described becoming a Tribunal rep striking out the claim. As the time, on one occasion as many as a for his union in the early 1990s, higher courts dislike strike outs at dozen people filling the room. shortly after taking on a full-time preliminary hearings in many cases Through the hearing I was post. He was quizzed on the this increases the total cost of constantly reminded of the support he had had when he began litigation. Employers are different ways a case will be the job. Union officials now notoriously weak at controlling understood by lawyers and by a regularly make calls to a their own lawyers’ costs. They political trade unionist. designated solicitor’s firm. The blame workers for the total costs I have often heard lawyers officers of the union continue to of defending each claim. denigrate trade unionists, deal with casework on behalf of Returning to the recent case; including at one training day run their employed members but all parts of the hearing were reported nationals in Britain both in by a well-known provider of pro their Tribunal representation is in the press. At times, the political custody and on bail who are bono representation, where it was farmed out to lawyers. Twelve nature of the hearing seemed to challenging deportation. The last said that the widespread use of years ago, the official explained, win us a certain freedom in court. Government review of counter- Tribunals had come about because the situation was different, union The Tribunal made no attempt to terrorism measures avoided any unions had not taken issues of officials were solely responsible for close down lines of questioning, serious analysis of the existing discrimination seriously. I doubt hearings and had minimal backup. even when they drifted away from powers and the decisions of the the speaker had heard of The prevalence of professional the strict issues in the case. It was a Special Immigration Appeals Grunwick or the Ford equal pay representation is described in the scrupulously fair hearing, which at Commission (Siac) and concluded strike. When lawyers run down literature as an ‘arms race’. the end we lost. that the Government’s aim should unions we reveal ourselves as fools. Employers spend more on After the hearing, the client be to consolidate and expand its In truth, a skilled trade unionist representation and claimants celebrated his defeat with a three- practice of obtaining assurances can often do more good for a retaliate by demanding solicitors day party. It was wonderful. from countries who pay no heed worker than even the very most rather than union officials, Sometimes, in a political case, to respect for human rights. brilliant lawyer. Long before a barristers rather than solicitors. as my client showed me, winning Following this judgment the claim is issued a good union This model serves claimants isn’t everything. Government indicated at a representative may know the poorly. The large majority of David Renton hearing before Siac that it will seek company’s procedures by heart a further assurance from Jordan and be able to spot even relatively that it will not rely on evidence minor breaches by the employer. obtained by torture if Qatada The workplace representative may were to be retried. It also revealed have lengthy experience of “A skilled trade that it is considering an appeal to working with a particular manager unionist can often do more the ECtHR’s Grand Chamber. and have developed the skills to good for a Russell Fraser persuade that manager to change worker than even his or her mind before a final the very most decision is made. Best of all, she brilliant will have access to sources of lawyer.” 20: Colonel Muammar Gaddafi is strength that are wholly closed to killed in city of Sirte where he grew up. the lawyer. For example, there may Later his body was put on display in a be a group of colleagues who can meat store in Misrata. Confusion rally behind the claimant, who surrounded the circumstances of his could come forward as witnesses death with video footage apparently showing him being tortured shortly to a hearing, or who may even after his capture. threaten strike action if the company does not back down.

The best lawyers win their clients / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer February 2012 5 News&Comment

‘Battle to defend profession from being no more than a ‘cynical business’ Picture: Gemma Hall Picture: n 8th November 2011, you know.’ He continues that found their way to us and to the this season’s Haldane many who call themselves socialist support to repair their lives.’ Human Rights fail to act the part, and he is After this start to his career, his OLectures saw Geoffrey worried about what a ‘socialist politics have clearly shown Bindman come to speak to a lawyer’ should do, particularly through in his work: he has acted packed audience at the College of since a client may not be a socialist as Private Eye’s lawyer for 15 Law, about his life as an themselves. However, he does years, served as Deputy Leader of ‘unrepentant leftish lawyer’. concede that ‘people always call Camden Council, helped to That he is unrepentant is me a socialist and I don’t object.’ establish the Camden Law Centre, understandable, but why does Despite his reticence in calling and set up the firm Bindmans, Bindman call himself a ‘leftish’ himself a socialist lawyer, with the aim of focussing to the Geoffrey Bindman: “People always lawyer? ‘I always have a worry Bindman’s long career nonetheless greatest degree possible on legal call me socialist and I don’t object.” about being called a socialist,’ he reflects the impact that his politics aid work in order to improve says. ‘I’m a stickler for getting the must have had on his professional ordinary people’s lives. retain even a small part of that right word for things.’ The idea of choices. He was greatly influenced During the lecture, Bindman ethical ideal that is essential to what being a ‘leftish’ lawyer comes, by industrial accident cases he was most animated when a lawyer should be? He laments according to Bindman, from the worked on when he was younger discussing the direction in which that legal ethics have already gone satirical event Beyond the Fringe, and he states that this may have the profession is moving. When downhill in the move from a where Jonathan Miller objects contributed to his socialism. alternative business structures profession to a business: although that ‘In fact, I'm not really a Jew. ‘Without the trade unions, many become more widespread in the some like to get ‘extra credit’ from Just Jewish. Not the whole hog, of these people wouldn’t have profession, how, he asks, will we calling themselves professionals,

established the CCRC requires it Criminal justice system still fails the innocent to only refer cases if it believes that there is a real possibility that the conviction will be quashed. nnocent people are still in the wake of notorious cases such half of whom have already been As a result, only very few languishing in prison despite a as the Birmingham Six and the refused a referral back to the Court applicants fortunate enough to publicly funded body that Guildford Four, a growing of Appeal by the CCRC at least have fresh evidence that was not Iwas set up to assist them to mountain of cases is emerging that once. available at the time of the original overturn their wrongful reveal the CCRC is not fit for the The CCRC has referred less trial or first appeal that is thought convictions. The Innocence purpose of helping the innocent to than four per cent of the 13,000 to undermine the safety of their Network UK (INUK) is calling for overturn their wrongful plus applications that it has convictions will have their cases the reform of the Criminal Cases convictions. received from alleged victims of referred. Review Commission (CCRC) — Since its establishment in wrongful convictions. A Public Statement issued by the last resort for innocent victims September 2004, the Innocence The CCRC was meant to the Innocence Network UK as of wrongful conviction. Network UK has received over ensure that victims of miscarriages part of the Joseph Rowntree 15 years on since the Criminal 1,000 requests for assistance from of justice have their cases Charitable Trust-funded project Cases Review Commission was alleged innocent victims of investigated and referred back to details the key failings of the established following a wrongful conviction. It has the appeal courts if it is thought Criminal Cases Review recommendation of the Royal deemed 200 (20 per cent) to have a that the applicant is or might be Commission and its Commission on Criminal Justice plausible claim of innocence, over innocent. However, the law that recommendations for reforms so October November 27: The Blonde Angel of Death, 2: The Attorney General, Dominic 11: The Civil Justice Council releases 14: The Leveson Inquiry into Culture, Alfredo Astiz, is sentenced to life Grieve QC, addresses the Grand its report Access to Justice for Litigants Practices and Ethics of the Press imprisonment along with 11 other Chamber of the European Court of in Person. The report is critical of begins in court 73 of the Royal Courts former members of the notorious Human Rights. Grieve, speaking in thousands more people having to of Justice. It is the first time a public Argentine ESMA naval unit. The two- French, tells the court that national represent themselves in court should inquiry has been shown live over the year trial was the latest in a number of parliaments and not European judges civil legal aid be almost completely internet. cases concerning the disappearance should decide whether prisoners are eradicated. of around 30,000 political opponents of entitled to the vote. the former military regime.

6 Socialist Lawyer February 2012 News&Comment

businesses that act ethically tend to President of the Society. believe they will fail in the market. As well as appointing ELDH: 2011 was active and According to Bindman, we now Geoffrey Bindman as a Vice have a battle to defend the legal President, the AGM also profession from becoming no more appointed Phil Shiner of Public productive, 2012 will be too... than a ‘cynical business’. Interest Lawyers to join him as Although the relentless attacks another of our Vice Presidents. he European Lawyers 2011, observing the registration of by successive governments on Shiner has previously worked for Democracy and the Basque political party Sortu in legal aid mean that there are now closely with The Haldane Society Human Rights (ELDH), Madrid; fewer opportunities for young and was one of our speakers Tof which Haldane is a • 21st May 2011, a conference in lawyers to practise as he did, during last year’s lecture series, founder member, continues to go Athens on The Legal Impact of the Bindman is keen not to discourage with a talk on human rights from strength to strength. The European 'Debt' Crisis, organised anyone from working outside of violations by UK forces in Iraq. latest Executive Committee by the Alternative Intervention of the corporate world of the big City The well attended AGM also meeting took place on 26th Athens Lawyers; firms. ‘However hard it is,’ he reappointed the President and November 2011 in Berlin at the • 22nd July 2011, a conference says, ‘it is rewarding in a way that other Vice Presidents of the headquarters of the trade union hosted in Genoa on Ten Years of corporate law never will be.’ Society. The meeting then went ver.di – Vereinte attacks on Fundamental Rights – Perhaps the greatest mark of on to pass policy supporting the Dienstleistungsgewerkschaft or The Role of Lawyers; Geoffrey Bindman’s achievements Middle East and North Africa United Services Union, which has • 5th to 7th October 2011, attending in his long and distinguished Solidarity Network and 2.2 million members. an international conference on career was becoming one of only a mandating the Society to The meeting was attended by human rights violations organised handful of solicitors to have been campaign against the British representatives and members of by Bahrain Human Rights appointed as honorary QCs. Government’s continuing attacks progressive lawyers' associations organisations in Beirut; However, at the Haldane AGM on civil liberties. It also saw the from the Basque Country, • 29th and 30th October 2011, held just after his lecture, the election of 2012’s Executive Bulgaria, England, France, attending the international Society sought to recognise his Committee and the discussion of Germany, Greece, Italy, Serbia, conference in Algiers on the Right achievements in our own way, by a new constitution for the Society. and Switzerland. ELDH has of Peoples to Resistance – the Case inviting him to become a Vice Stephen Knight members in 16 European of the Saharawi people. countries. There is a busy year ahead. A number of guests also Future events on the ELDH that it can better assist the reformed innocent people will attended, including Johannes calendar include: innocent. continue to be let down by the Honecker and Conrad Zimmer of • A conference and meeting of the This includes the immediate body that Parliament set up to the RAV (Republican Lawyers, European Network of Labour repeal of the ‘real possibility test’ assist them.’ German legal activists) and Lawyers on 2nd and 3rd March under s.13 of the Criminal Appeal The reforms proposed, aimed Wolfgang Kaleck of the European 2012 in Berlin on The right to Act 1995 to be replaced with a test at making the CCRC a more Centre for Constitutional and strike in Europe; and that allows the Criminal Cases adequate body to assist the Human Rights (ECCHR). • A conference on the Review Commission to refer a innocent, would also potentially I delivered a political report on Criminalisation of Migrants on conviction back to the Court of save millions of pounds from the the nature of the economic and 16th March 2012 in Brussels. Appeal if, after considering all the public purse by shortening the political crisis of European and The meeting also agreed that evidence, it thinks that the length of time that those wrongly world capital, which included ELDH will sponsor Haldane's applicant is or might be innocent. incarcerated might otherwise looking at the tasks of lawyers in Defending Human Rights Dr Michael Naughton, spend in prison. The average costs combating nationalism and Defenders conference. Founder and Director of the to taxpayers for each year a male xenophobia and uniting with trade The next Executive Committee Innocence Network UK and prisoner spends wrongly unions. All colleagues present of ELDH will take place on Senior Lecturer in the University incarcerated are as follows, joined in the liveliest political Saturday 25th February 2012 at of Bristol Law School, said: Category A (dispersal prison): discussion in ELDH's history. Garden Court Chambers. All ‘Unless the operations of the £64,597, Category B: £34,359, We reviewed a very active and Haldane members are cordially Criminal Cases Review Category C: £32,109. productive year, including: invited to attend. Commission are drastically Caroline Clancy • 9th February Bill Bowring December 23: The UK president of the European 1: The Justice Ken Clarke: 14: The Lord Chief Justice issues Court of Human Rights, Sir Nicholas Secretary Ken Clarke delaying guidance on tweeting from the Bratza, condemns the behaviour of announces a six-month tactics... courtroom. Journalists and legal senior members of the UK delay to his programme commentators will now be allowed to Government who stoke hostility of legal aid cuts. The post updates and snippets on Twitter towards the European Convention on plans had begun to during hearings unless directed Human Rights. Sir Nicholas described encounter stout opposition otherwise by judges. criticism of the judges of the court as in the House of Lords but ‘vitriolic’ and ‘xenophobic’. Clarke blamed the delay on the need to reschedule contracts. / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer February 2012 7 News&Comment

Stephen Lawrence – one lawyer’s view….

t seems to me important to say And here we are now something about the celebrating justice. Somewhat prosecution of Stephen uncomfortably. Because it is that ILawrence’s killers and the jury’s very change in the law that allowed verdicts. Not because everyone is one of the suspects, Gary Dobson, talking about it right now but to be prosecuted and convicted all because I began my legal career these years later. Although not the some 15 years ago talking about it first to be convicted under the and almost nothing else. The provisions of the Criminal Justice Stephen Lawrence Inquiry was Act 2003, which came into force in announced in 1997 – with Sir 2005, it is both ironic and William Macpherson’s report significant that Dobson’s failed completed in 1999. Ian Macdonald prosecution resulted in a change in QC and Rajiv Menon (now QC) the law that was ultimately used were instructed on behalf of against him. Have I changed my Duwayne Brookes whilst mind about this law? It is worth Courtenay Griffiths (now QC) and I remembering that the failed were instructed on behalf of the prosecution in Stephen Lawrence’s Commission for Racial Equality case was brought privately by (CRE) although in the end anguished parents and many have unforeseen circumstances meant said it was a political act; a that Courtenay was unable to do prosecution brought in the the case. It was where I conducted knowledge that it was bound to my first ever cross-examination. We fail. But it kept the case alive. sat through many months of Like the rest of the nation I am evidence, some fascinating, some delighted that Stephen’s parents heart-breaking, and some have finally got some justice. But disappointing. All of us learnt have I changed my mind about the lessons – both political and abrogation of the double jeopardy personal. By all of us I mean all of us rule? No, I think not. Despite the lawyers, Sir William Macpherson relatively high statutory test the himself, the media circus, the police DPP has to satisfy to re-try an and the general public. Nothing has acquitted person, the 2003 Act been the same since on many levels. also gives the police wide powers Ironically most of us human rights to re-investigate and re-arrest lawyers were against Macpherson’s acquitted persons with the DPP’s recommendation that the double permission – without limit of time. jeopardy law should be re-written. In my view, it remains a draconian It would, we thought, be used law, an erosion of civil liberties, against the very community that the despite the long overdue police had historically failed to conviction of a racist murderer. protect. l Maya Sikand Stephen Lawrence: trial victory but double jeopardy is still a draconian law. December January 15: The European Court of Human 21: The Former News of the World 3: Two men are finally convicted of 11: Jonathan Sumption QC is sworn Rights rules that hearsay evidence can editor Andy Coulson loses a High the murder of Stephen Lawrence, 18 in as a Supreme Court judge. His be used as the sole means of securing Court case in which he hoped to force years after he was killed by a gang. elevation to the highest court in the a criminal conviction. The long-awaited News Group Newspapers to continue Gary Dobson and David Norris were land without any judicial experience ruling in al-Khawaja sidestepped a to pay his legal expenses. found guilty at the Old Bailey. On 30th was questioned by many. Sumption potential confrontation between the January 2012 it was announced the previously attracted controversy for European Court and our own Supreme men will appeal their convictions. writing a letter to Court of Appeal Court. judges on behalf of the Government requesting they redact sections of a

8 Socialist Lawyer February 2012 News&Comment

Obituary Francis Khoo

rancis Khoo Kah Siang him in exile in England. legislation advised against office dialysis but had a successful renal died on 20th November Francis started his life in exile holders serving more than nine transplant in July 2011 – the 2011 at the age of 64. He as a cleaner in a Central London years. He had served 23 years! generous gift of an anonymous Fwas a steadfast comrade Hotel. However he soon found From War on Want he returned to British woman donor. of The Haldane Society. To lose work as an administrator in legal practice in London until his The day before his death he was him is a serious blow, but his Medical and Scientific Aid for failing health forced him to stop. at the Annual General Meeting of legacy continues. His widow, Dr Vietnam. Two years later he Despite this, his work for many Living Stones, a charity of which Ang Swee Chai of Medical Aid for worked as a journalist for an charities continued. he was trustee. His diary was full Palestinians, is very much with us international third world He wrote many poems, songs of future engagements including still. magazine, South. From there he and articles. He sang for the wives The Haldane Society, charities for Francis was the fourth went on to direct the charity War of striking miners. One of his the homeless, Medical Aid for generation of a Singapore on Want. songs, Father Christmas in the Palestinians, the Scottish Peranakan family. As a law student He was co-founder with Dr Slag Heap, brought the whole of Parliament, and the House of he opposed the introduction of the Ang Swee and Vice Chair of Hemsworth, a town faced with pit Commons. He was in exile from Suitability Certificate, the Medical Aid for Palestinians from closure, to tears in 1984. his beloved Singapore for 34 years. abolition of the jury system, and 1984 to 2007. He had to step He had suffered from renal Bill Bowring with thanks to Dr the heavy bombing of Hanoi on down when new British Charity failure since 1998. He went on Ang Swee Christmas day in 1972. He was called to the Singapore Bar. Shortly after joining a legal practice, he helped to found a Citizens’ Co-op ‘Clear potential for wrongful convictions’ to save the Singapore Herald, the liberal English daily closed by the Government of Lee Kuan Yew. n the 6th December be inferred from presence at the of men, one of whom died. Ken He met Dr Ang Swee in 1974, 2011, The Haldane scene. Although legal principle was convicted of murder under and two weeks after their meeting Society hosted a lecture states mere presence is not joint enterprise and received a 16- she read in The Straits Times that Oon ‘Guilt by enough for criminal liability, it is year prison sentence. Gloria told her new acquaintance was to Association: Criminalisation unclear where mere presence us that Ken did not have a weapon defend in a controversial trial in through Joint Enterprise Law’. ends and encouragement or or participate in the attack and at which factory workers and a The speakers were Gloria assistance begins. If the the time of the murder was semi- student leader were charged with Morrison, Campaign Co- prosecution had to prove the conscious. Over 260 families have rioting. She was worried for his ordinator for Jengba, and Simon defendant shared intention to kill contacted Jengba reporting personal safety, but he patiently Natas, Solicitor-Advocate and this would be fair, but under concerns about convictions where explained that everyone is entitled Partner at Irvine Thanvi Natas joint enterprise the defendant those convicted did not foresee, to legal defence – and that no one Solicitors. does not need to intend murder. intend or participate in the murder should be deemed guilty until guilt Joint enterprise is a legal Simon told us that this results in they were convicted of. is proven beyond reasonable principle being applied to murder two problems, first, innocent Simon explained that 'joint doubt. If he had to pay the price of cases. Under joint enterprise people can be convicted; enterprise is increasingly being doing so, he would accept it. defendants may be found guilty of secondly it is not right that a used as a powerful, coercive and Indeed, shortly after they were murder if they foresaw that person who did not intend to kill punitive tool where there is clear married, in 1977, the authorities another person might kill or can be convicted. potential for wrongful sought to arrest Francis, but he intend serious harm and they Gloria spoke about the case convictions'. managed to escape. Dr Ang Swee encouraged or assisted that of Ken Alexander. He and his For more information on what was detained shortly afterwards, person. Simon explained that the friends were attacked by a group is a lively debate go to and was questioned about Francis. main problem is that www.jointenterprise.co When she was released, she joined encouragement or assistance can Rebecca Harvey

judgment in a claim brought by 17: The first of three private trial for human rights abuses during former Guantánamo Bay detainee prosecutions concerning Judge £315k the military dictatorship in Chile. Binyam Mohammed. He is a big Baltasar Garzón opens in Madrid. Garzón has also pursued former fan of the unelected chamber: ‘The One of the trials involves Garzón’s The amount of tax paid by members of Argentina’s military House of Lords has been at a very attempts to open investigations into Tony Blair’s “companies” junta. Human rights organisations high quality for a very long time,’ he victims of the Franco regime. Garzón on earnings of £12million and his many supporters in Spain said, ‘You get a good hearing and led the attempts in 1998 to extradite last year. claim that the prosecutions are impressively reasoned decisions General Pinochet from the UK to face politically motivated. there.’

Socialist Lawyer February 2012 9 News&Comment

MOVICE Cundinamarca, and his five year old daughter on 13th Colombian jailed for January 2012. Mr Riascos had been unwavering in his calls for defending human rights justice for the death of his wife, Zenaida Leguizamón, shot by members of the Colombian army avid Rabelo Crespo, a from over 40 years to a maximum in 2008. Colombian human of eight. Mr Rabelo has dedicated his rights leader, was jailed Colombian human rights life to speaking out against human Don 14th September groups have criticised the law as it rights violations. He is just one of 2010. He has been imprisoned provides no penalties for false so many who have faced false since without being convicted of information and as a result such accusations, imprisonment, death any crime. He is currently held in testimony has been used in threats and assassinations as a La Modelo Prison, Bucaramanga, numerous cases against Rabelo: campaign to set him free result of their work. The majority falsely accused of ‘conspiracy to government critics. Even more of those targeted are members of commit a crime’ and ‘aggravated worrying is that ‘El Panadero’ is civil society opposition, among homicide’. The evidence against imprisoned as a direct result of Mr coalition MOVICE, the them trade unionists, human him is based on former Rabelo’s human rights work, Movement for Victims of State rights defenders, peasant farmers, paramilitary witnesses, who which played a leading role in Crimes, one of the largest and academics, student and receive benefits from the uncovering the abuses he most persecuted organisations in indigenous leaders. Colombian state in exchange for committed. It is for this reason Colombia. On 9th January 2012 The 2010 election of President their testimony. that Mr Rabelo claims the case The Haldane Society adopted a Juan Manuel Santos has brought Specifically, Mr Rabelo’s case against him is driven by campaign for Mr Rabelo’s release about a significant change in hinges on evidence from paramilitary interests. and for the defence of his rhetoric and claims of an increased imprisoned paramilitary ‘El Mr Rabelo is the national organisation MOVICE, in commitment to human rights. Panadero’. His testimony, given spokesperson for Credhos, the response to the threats they face. However, with 24 trade unionists under the Uribe administration’s regional corporation for human Just before going to print, we assassinated in 2011, Colombia Justice and Peace Law, allowed rights, and a leading member of learnt of the disappearance of continues to be the most him to reduce his prison sentence the national human rights Fernando Riascos, member of dangerous country in the world The dangers behind the proposed judicial reform in

he judicial reform bill, courts to declare over the last constitutional underpinning. country like Colombia where currently being two years that both the The current judicial reform the institutions have been debated in the establishment of US military comes within this context in an heavily penetrated by narco- TColombian congress, bases on Colombian soil and attempt to restrict the traffickers and their armed threatens to compromise the Álvaro Uribe Vélez’s (2002- jurisdiction of the courts to militias – particularly the relative independence that the 2010) third-term presidential investigate and convict members Colombian congress and the country’s courts have enjoyed bid were unconstitutional. of congress that is enshrined in military. For the consolidation since the passage of the 1991 Because of these and many the 1991 Constitution. The of the country’s democracy it is Constitution. This other cases, the Colombian judicial reform is also a push to important for the Supreme independence has allowed executive and congress have protect the military from the Court to continue to have the Colombia to investigate more been placed in an embarrassing jurisdiction of the civil courts, as jurisdiction to investigate and than 60 members of congress position, tarnishing their the military expands the role of sentence members of congress, for charges of collaborating legitimacy. The courts have military tribunals. and for the civil courts to be with narco-traffickers and become the only protector of the These and other aspects of expanded in order to prosecute paramilitaries. It enabled the democratic process and its the reform are troubling for a military personnel who commit January February 17: The European Court of Human 17: Legal and constitutional expert 27: Sir Nicholas Bratza, the British 1: Julian Assange’s appeal against his Rights grants the appeal of the Prime Minister David Cameron President of the European Court of extradition begins in the Supreme Jordanian cleric Abu Qatada against continues his attack against the Human Rights warns senior politicians Court. Assange hopes to persuade the deportation. The court ruled that he European Court of Human Rights. In against using ‘emotion and seven judges hearing the case that would be unlikely to receive a fair trial a speech to the Council of Europe, exaggeration’ to criticise the court. In Swedish prosecutors are not entitled to were he deported because torture- Cameron said the court was in an article in The Independent, Bratza issue arrest warrants as they cannot be tainted evidence would be used danger of only dealing with ‘small responded to increasing hostility from considered a ‘judicial authority’. against him. claims’. Tory frontbenchers.

10 Socialist Lawyer February 2012 Young Legal Aid Lawyers This regular column is written by YLAL members. If you are interested in joining or supporting their work, please visit their website www.younglegalaidlawyers.org Cuts won’t save money

for union members and human n the second week of January assessments bleakly acknowledge that it will not damage access to rights groups report ongoing 2012 the Legal Aid, that ‘legal aid recipients are justice for vulnerable groups – threats against their work on the Sentencing and Punishment of amongst the most disadvantaged labelling them as ‘highly ground; David Rabelo’s drawn out IOffenders Bill resumed its in society’ and that the cuts ‘have contentious’ and ‘assertion rather detention is testament to that. passage through the House of the potential to impact a greater than evidence’. Though the Human rights violations in Lords. Carefully timed to coincide proportion of women, Black, amendment was withdrawn, the Colombia take place under the with this, the New Year also saw Asian and Minority Ethnic people, support that it garnered was pretext of a conflict that has raged the publication of Unintended and ill or disabled people’. The encouraging. Lord Bach, for over 40 years, between the Consequences: the Cost of the Government case has always been summing up before withdrawing Colombian army, right-wing Government’s Legal Aid Reforms. that this is justified, as ‘a the amendment, spoke out against paramilitaries and left-wing The report, authored by Dr proportionate means of meeting the ‘false argument’ that life and guerrillas. However, civilians have Graham Cookson of King’s our legitimate policy objectives’. liberty are the only values which been targeted disproportionately, College, aims to do what the If the cuts do not save money then warrant protecting through legal in part as a result of the army’s Government has thus far failed to the political and moral case for aid: ‘it is difficult to think of a indiscriminate counter-insurgency do, and quantify the knock-on cutting legal aid falls away. more obvious place where legal strategy, which according to costs of the legal aid cuts. In the circumstances one would aid is appropriate than to solve Amnesty International is ‘largely The report makes for be forgiven for thinking that the legal problems that affect people based on the premise that those interesting, though perhaps not cuts are driven by ideology rather who are, through no fault of their living in conflict areas are part of surprising reading. Among its than necessity, a sentiment born own, poor or disabled or who the enemy’. headlines, Cookson indicates that out in the Government’s criticism lack any privileges. Colombian civil society is the cuts will save in the region of that the legal aid scheme ‘bears What the early weeks of 2012 calling for a solution to the £139 million per annum, ‘realising little resemblance to the one have shown is that the House of conflict, to help end the abuses. a net saving of significantly less introduced in 1949, having Lords stage of the legislative The UK NGO Justice for than half (42 per cent) of the expanded far beyond its original process provides a real chance to Colombia has launched a Peace Government’s prediction’. He scope’. This argument – that the change the Legal Aid Bill for the Campaign in response. For more qualifies this with the rider that welfare state must be cut back to better and that the need to do so is information on how to support ‘numerous costs could not be ‘first principles’ – is one that is as pressing as it has ever been. The Justice for Colombia’s work please estimated, and this figure is gaining currency in varying committee debates will continue visit www.justiceforcolombia.org therefore likely to be a substantial contexts across the political until February 2012 followed by Natasha Morgan underestimate of the true costs’. spectrum. Such arguments are also the all-important report stage. The cuts to legal aid for social inaccurate. In the report which Please sign up to the Justice for All welfare law will, he estimates, presaged the Legal Advice and ‘pair up with a peer’ scheme at generate a further £35 million in Assistance Act 1949 Lord www.justice-for-all.org.uk Colombia knock-on costs, equating to a net Rushcliffe envisioned a system In the last issue, writing on the saving of 39 per cent, while, where legal aid would be available riots, I commented that Labour crimes against civilians, as well shockingly, the cuts to clinical ‘in all courts and in such manner as Councillors were not around in as war crimes. Knowing the negligence will generate a net loss will enable persons in need to have Hackney on the evening of the human rights violations record of £18 million. access to the professional help they riots. They were around and of the Colombian police and The logic underpinning require’ and not be limited to those doing their bit to check residents army these two must be kept Cookson’s findings is easy to see: who are ‘normally classed as poor’ were OK. Apologies. under greater scrutiny if good by providing legal advice early on but should include ‘those of small l Connor Johnston is a governance is desired. to help resolve debt issues, or moderate means’. To intimate member of Young Legal Aid Nazih Richani employment disputes or appeal a that legal aid currently does more Lawyers and a pupil barrister at Nazih is Associate Professor of wrongful refusal of welfare than this is simply wrong. Garden Court Chambers Political Science and Director of benefits, there is less chance that It is against this backdrop that Latin American studies at Kean the original problem will escalate the Bill Committee of the House University in Union, New Jersey. and increase costs for the taxpayer. of Lords has been urging the This article first appeared on the Cookson’s findings also Government to return to the NACLA website on 27th correspond with earlier research drawing board before December 2011. carried out by Citizens Advice and proceeding with the legal aid by the New Economics cuts. An amendment tabled to Foundation on behalf of the Law the Legal Aid Bill which would Centres Federation. have required the Government to 3: A clandestine operation that secretly The Government’s attitude properly assess the impact of the deployed police spies (including Mark toward this body of research has cuts on vulnerable groups Kennedy) in political groups for 40 been consistently dismissive. In attracted widespread support. years is severely criticised by an official response to Citizens Advice and Lord Pannick QC, speaking out in policing inspectorate. It concludes the the Law Centres Federation the support of the amendment, ‘intrusive’ tactic should in future be used only after independent Government cited ‘reservations criticised what he described as authorisation’; and found serious about the methodology employed’. the twin factual premises of the failings by the National Public Order Such responses fall short of the Bill – that it will save large

Intelligence Unit (NPOIU). mark. The Government’s impact amounts of public money and / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer February 2012 11 by Paramjit Ahluwalia

Fairness, consistency and equality – was there a complete failure to apply these principles in wake of the riots of 2011?

he very essence of a justice system is fairness, the principles to be applied have in fact already been consistency and equality of all individuals established.’ before the law. The events of August 2011 and In the immediate aftermath of the riots, the Chair of the sentencing decisions post the riots illustrated Camberwell Magistrates’ Court, Novello Noades, was reactions that failed to adhere to the foundation reported in the media as having said that ‘the court had principles of fairness, consistency and equality. been given a Government "directive" that anyone involved TOn 18th October 2011, the Court of Appeal consisting in the rioting be given a custodial sentence.’ of Lord Chief Justice Judge, Sir John Thomas and Lord The Court service explanation of the above was that a Justice Leveson determined 10 appeals relating to the senior clerk had circulated instructions to court clerks that riots in R v Blackshaw and others [2011] EWCA Crim they should advise Magistrates to consider disregarding 2312. Each appellant argued that their sentence was normal sentencing guidelines. This further does not accord manifestly excessive and disproportionate to the with transparency principles that are a fundamental part of criminality involved. the justice system. Until Blackshaw was determined, courts obviously felt The disorders were extremely serious. What was needed under some form of pressure, perhaps media induced, in this time was public guidance from the Sentencing despite the wealth of general guidelines and sentencing Guidelines Council, and not first instance published principles that already exist. remarks either by Crown Court Judges or indeed legal Such were the departures in sentences given that even advisers. the President of the Prison Governors Association, Eoin On 16th September 2011, the Sentencing Guidelines McLennan Murray, commented ‘there’s a sentencing frenzy Council published a statement saying that ‘it was not and we seem to have lost all sense of proportionality. It’s necessary to issue further guidelines, and that the guidelines appealing to the populist mentality and that’s not the best allowed sentencers to depart from the guidelines altogether basis on which to sentence people. The norms of sentencing if it were in the interests of justice to do so, so long as are being ignored.’ reasons were given for doing so.’ Sentencing guidance emanates from the Court of Appeal This was insufficient. Between August to October 2011, or the Sentencing Guidelines Council and not from many courts were left in the position of reacting by individual judges in Crown Courts. In Manchester, Judge appeasing the media frenzy, rather than applying Gilbart QC, the Recorder of Manchester provided a ‘novel’ sentencing principles. framework of sentencing in a judgment in the cases of R v Beswick, Boyd, Gillespie-Doyle dated 16th August 2011. Should the guidelines have been applied? He set out a table of sentencing ranges, even for offence The Sentencing Guidelines Council itself describes that types not before him. ‘Sentencing guidelines provide a structured approach to The Court of Appeal in Blackshaw found, at paragraph determining the appropriate sentence while still allowing 20, that it was: ‘inappropriate for Crown Court judges to for judicial discretion. This allows Judges and Magistrates issue, or appear to be issuing, sentencing guidelines. in different courts to be consistent in their approach to Up and down the country judges will pass the sentences sentencing and allows for greater transparency in the they think appropriate in the context of the public disorder sentencing decision. The guidelines are applicable in all taking place in their own cities, and nationally, and in the criminal courts in England and Wales.’ light of well understood principles, and in the event of any The Coroners and Justice Act 2009 provides that when appeals against these sentences, by reference to the sentencing an offender for an offence, a court must follow decisions of this court. That is the correct process. any relevant sentencing guidelines, unless it is contrary to Until there are appeals against sentence, this court the interests of justice to do so. cannot and should not have any input into the sentencing The Court of Appeal, including Lord Leveson the Chair decisions in the Crown Courts, save in the broad sense that of the Sentencing Guidelines Council, considered that:

12 Socialist Lawyer February 2012 ‘the imposition of severe sentences, intended to provide opportunistic nature. The appellant was out on the streets, both punishment and deterrence, must follow. It is very on his way home. The temptation to “buy” a television at a simple. Those who deliberately participate in disturbances huge undervaluation was too strong. The offence formed of this magnitude, causing injury and damage and fear to part of the process of public disorder, in the sense that when even the most stout-hearted of citizens, and who it was committed the appellant was in close proximity to individually commit further crimes during the course of the those who had been involved in the rioting and looting. riots are committing aggravated crimes. They must be Nevertheless, given that he did not intend to and did not punished accordingly, and the sentences should be designed actually participate in any public disorder, but was, to deter others from similar criminal activity.’ genuinely, walking home when the events occurred, we have concluded that the deterrent element in the sentence Sentencing Guidelines merely guidelines and can be tempered.’ not ‘tramlines’ I do not seek to defend the actions of those who The position taken by the Court of Appeal in Blackshaw committed crimes during the riots, but in terms of and others was that the Sentencing Guidelines were sentencing principles, it is questionable why the issue of guidelines, but not tramlines and there to provide a starting unplanned and opportunistic activity was not considered point and to promote consistency. equally for other charges. McCrane took a television in the At paragraph 14 of the judgment, the court considered; middle of the riots and received double the sentence ‘In our judgment the effect of current legislation is reflected in the guidelines. Yet an individual buying a simple. The court should approach the sentencing decision television in the streets during the disorder was handed a by reference to any relevant guidelines... This provides the sentence of six months. Both arguably acted out of starting point and it produces the desirable consistency of opportunism. approach to sentencing decisions up and down the country without sacrificing the obligation to do justice in the Aspects not dealt with by R v Blackshaw and individual and specific case. The often quoted aphorism, others that sentencing guidelines are guidelines not tramlines, Paragraph nine in Blackshaw outlines that the judgment continues to be fully reflected in the present legislative did not specifically deal with individuals who were framework.’ children, young offenders nor offenders with significant The court went on to consider that the justification was mental health problems. that ‘none of the guidelines contemplated the offences with Last of all, the Court of Appeal in Blackshaw considered which they are concerned would take place within the there to be no link to a demonstration in the riot offences: context of the nationwide public disorder to which we have ‘We shall now set out the factual context in greater referred.’ detail. On 6th August 2011 a crowd gathered outside What is concerning is that the sentences imposed were Tottenham Police Station demonstrating in support of not merely on the outskirts of such ‘tramlines,’ but “justice” for Mark Duggan. The demonstration became effectively doubled the guidelines in some cases. violent. Two police cars, a bus and cars were set on fire, For example, one appellant by the name of McCrane, a shops were set alight. Disorder became widespread. Before young woman of previous good character, received a long it had nothing whatever to do with any sentence of 13 months in relation to burglary. There was a demonstration.’ break in to an Argos store in South East London. Police In The Riots, a recent production by the Tricycle attended, and whilst there saw the appellant carrying a Theatre, Chelsea Ives, a young woman sentenced for her television. McCrane stated that there ‘was stuff lying part in the disorder explains: around outside and I took it.’ ‘The public seem to automatically place me in an The Sentencing Guidelines for burglary (items under unnamed category for thick, low-life individuals which is £2,000) in force at the date of the riots outlined that a not me at all. I haven’t even had the chance to speak for person who was found guilty after a trial, and who was of myself. It just feels like I shouldn’t even have had legal good character, should receive a sentence ranging from a advice, because it seems the Judge has already made up his fine to 26 weeks custody. mind about my sentence due to the help and support of the Ms McCrane received a sentence of effectively double media. The public just need to know I’m only accountable the highest amount that she should have received for that for my actions and not everyone else’s and that I am sorry.’ category of burglary. David Cameron’s populist rhetoric at the time prompted Oddly, despite the Court of Appeal upholding most a New York Times editorial on 17th August 2011 to declare sentences, the approach towards handling stolen goods in ‘Fair play is one traditional British value we have always Blackshaw was somewhat different. admired. And one we fear is increasingly at risk.’ One of the appellants, Stephen Craven, was sentenced to The riots were unprecedented and damaged the hearts 12 months at the Crown Court for the handling of a stolen of communities already in vulnerable positions. As heart television set. He was seen in the street with an HD rendering as the physical damage done to those television set in a stolen Tesco trolley and explained he had communities is, the shaking of core foundation principles just bought it for £20 from youths. of fairness, consistency and equality should not be the His sentence was reduced to one of 6 months outcome when we need the court system to hold its head imprisonment by the Court of Appeal, explaining that (at high, above media frenzy. paragraph 125): ‘The most significant feature of this case is its Paramjit Ahluwalia is a barrister at Mitre House Chambers Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: s

Socialist Lawyer February 2012 13 In December 2010, The Haldane Society and Avocats Sans Frontieres went on an international legal mission to the Occupied Palestinian Territory. From 19th to 23rd December 2010 a group of English lawyers visited Palestine to report on house evictions and demolitions in the occupied territory. The delegation comprised four English barristers specialising in housing rights – John Beckley, Liz Davies, Marina HOUSING Sergides, John Hobson – and Bill Bowring, Professor of Law at Birkbeck College, IN EAST University of London and currently chair of the JERUSALEM European Human Rights Advocacy Centre (EHRAC). The delegation was accompanied by ASF project coordinator Stijn Denayer and he delegation looked specifically protest, living on the pavement in front of at the evictions in Sheikh Jarrah, their former homes. ASF project manager and a Palestinian neighbourhood Eviction is being sought by the Nahalat barrister Hannah Rought- located to the north of the Old Shimon Company. This company rely on old City in occupied East Jerusalem. Ottoman documents, appearing to suggest Brooks, as well as human This is an area which has seen that Sheikh Jarrah was bought by Jewish rights lawyer Valentina Tthe forced eviction of over 60 Palestinians families in the 19th Century before the leaving another 500 at risk of dispossession declaration of the Israeli State. The Azarov. The fact finding report and displacement, according to the United authenticity of these very old documents is has been published and is Nations Office for the Coordination of questionable. They have, so far, managed to Humanitarian Affairs (UN OCHA). evict four families, which included 60 available on The Haldane The Sheikh Jarrah eviction cases are people, the Mohammad Al-Kurd, Al-Ghawi, Society and ASF websites. primarily based upon two competing land ownership claims, namely those of: (1) Marina Sergides reports. Jewish Committees who claim ownership pre-dating 1948; and (2) 28 extended Palestinian refugee families, over 500 people, who have been residing on the land and in their homes for over 60 years. The 28 Palestinian families all fled or were expelled from their homes in 1948 from areas that are now in Israel. As part of their resettlement they were provided with homes in the area of Sheikh Jarrah by the United Nations in 1956. This was part of an UNRWA-sponsored housing scheme, which gave the 28 Palestinian refugee families funds to build homes on land provided by the Jordanian Government. This grant was provided on the express agreement that they relinquished their right to food assistance by UNRWA. According to the agreement, the families were to pay a nominal rent for three years, after which ownership of the land and the properties would be transferred to them. However, legal title to the homes was never formally transferred to the families. The evicted Palestinians spent months, in

14 Socialist Lawyer February 2012 Hanoun and Rifqa Al-Kurd families. The complete failure to recognise its Immediately upon being evicted, settlers international obligations under moved into the homes of the Palestinian international law has attracted criticism families. The settlers have no personal ties from not only the UN but many politicians, with the homes in Sheikh Jarrah. The activists and lawyers from across the delegation heard stories of settler families political spectrum. The former US President, arriving with all of their belongings on the Jimmy Carter, visited Sheikh Jarrah on 22nd morning of the evictions, ready to take up October 2010 and addressed the weekly residence within hours of the eviction. protesters, stating that he does not believe that destroying houses or evicting families The law applicable in East from homes they have inhabited for Jerusalem. generations are just actions that can lead to The Jerusalem Municipality and the Israeli peace. He praised the Sheikh Jarrah Government insist that the situation in protesters and said that he hoped their Sheikh Jarrah is a strictly legal matter for the “The evidence demonstrates struggle would soon bear fruit and that courts to decide upon as purely a dispute of ‘…the eviction of Palestinians from their property ownership between Jewish and that underlying the processes homes might be in accordance with Israeli Arab residents of Jerusalem. Because the of zoning and planning law, but is against international law’. Jerusalem Municipality does not recognise that it ‘occupies’ East Jerusalem, it does not control in East Jerusalem are Inequality before the Courts and consider that the dispute should be based clear political motivations on Police along what it considers to be ordinary The delegation received well-documented ‘domestic’ law in East Jerusalem. the part of the Jerusalem information raising serious doubts with However, the legal system, in and of itself Municipality and the Israeli regards to the authenticity and accuracy of precludes what would be considered a fair the Ottoman era documents used by the and just legal outcome in international State...” Jewish Committees and the Nahalat Shimon terms. In its 2004 Advisory Opinion, the Company to claim ownership of much of International Court of Justice held that East the land in Sheikh Jarrah, doubts which Jerusalem is occupied territory and however are not being considered properly confirmed the applicability of international by the Israeli courts. humanitarian law and international human Moreover, the delegation observed that rights law to East Jerusalem. Under Article there is an asymmetry in the way the Israeli 43 of the Hague Regulations, Israeli Government, including: courts treat the question of pre-1948 authorities are obliged to respect the law in – The unilateral redrawing of Jerusalem’s property rights. While the courts have been force, and are prohibited from making municipal boundary after 1967, leading to willing to uphold claims by Jewish permanent changes, except when absolutely the annexation of the Old City of Jerusalem organisations in relation to property in prevented. Under international law, Israel as (6.5 km2) and land from surrounding Sheikh Jarrah allegedly owned by Jewish the occupying power does not possess Palestinian villages (64.5 km2). families before 1948, similar claims by the sovereignty over East Jerusalem and is – The adoption of the Basic Law: Jerusalem Palestinian residents of Sheikh Jarrah in vested only with temporary powers of Capital of Israel on 30th July 1980, which relation to lands which their families owned administration. Israel is therefore not declared ‘Jerusalem complete and united’ to in what is now the State of Israel would not entitled to apply its own domestic laws be ‘the capital of Israel’. be entertained. Such asymmetry is simply within the OPT, including East Jerusalem. Both the expanding of Jerusalem’s not justifiable. The ICJ reaffirmed the applicability of municipal boundaries and the 1980 Basic Furthermore, in the event of court Article 49, paragraph 6, of the Fourth law has been declared ‘null and void’ by the verdicts disfavouring settler groups, these Geneva Convention, which provides: ‘The UN Security Council. are often not enforced. In June 2007, for Occupying Power shall not deport or In a further breach of Article 49, instance, the Mohammad Al-Kurd family transfer parts of its own civilian population paragraph 6, of the Fourth Geneva were forced to file a High Court petition into the territory it occupies’. That provision Convention, the delegation considers that against Avi Dichter, Minister of Public prohibits not only actual deportations or the evidence presented to it demonstrates Security, and the district police for failure to forced transfers of population, but also any that underlying the processes of zoning and enforce a court order to vacate settlers who measures taken by an occupying power in planning control in East Jerusalem are clear had occupied an extension of the Al-Kurd order to organise or encourage transfers of political motivations on the part of the family home. The family had previously parts of its own population into the Jerusalem Municipality and the Israeli State received a court order to seal and demolish occupied territory. The delegation observes to engineer the demographic balance the extension, the observation of which was that with regard to Sheikh Jarrah such between Jewish and Palestinian occupants, made impossible due to the occupation of measures have been taken by the Israeli resulting in a housing crisis for the latter. the settlers. Credible accounts of s

Socialist Lawyer February 2012 15 HOUSING

IN EAST s intimidation by settlers and their JERUSALEM supporters were articulated to the delegation as well as accounts of inaction on behalf of the police when complaints have been raised. Under customary international humanitarian law, as reflected in Article 43 of the Hague Regulations, Israel, as the Occupying Power, is responsible for the safety of the local population under its control. Under international human rights law, the Palestinian families in Sheikh Jarrah have a right to life and right to security of person (Articles 6 and 9 of the ICCPR). The failure to protect the Palestinian families in Sheikh Jarrah from settler violence amounts to a breach of Israel’s obligations under international humanitarian law and human rights law.

The manner of eviction as violating human rights law The first hand testimonies heard and the reliable reports read by the delegation provide clear evidence that Israel is not complying with its obligations to avoid and minimise the use of force during evictions. The delegation observed the following in the manner in which the evictions in Sheikh Jarrah were carried out: 1) That not all persons carrying out these evictions were properly identified; 2) That evictions have been carried out at night; housing conditions in both the Jewish 3) That evictions have rendered people neighbourhoods in West Jerusalem and the homeless and that no assistance was Jewish settlements in East Jerusalem. provided by the Israeli occupying authorities Palestinian neighbourhoods are to assist families who were rendered characterised by poor roads, little or no homeless; and street cleaning, limited sewage “Only about 5 to 10 per cent 4) that adequate and reasonable notice for infrastructure, few public services and an all affected persons prior to the scheduled absence of well-maintained public areas. of the municipal budget is date of eviction was not always given. Only about 5 – 10 per cent of the municipal spent in Palestinian areas, this Furthermore, the Israeli police have attended budget is spent in Palestinian areas, this is evictions and demolitions in massively despite Palestinians constituting around 35 is despite Palestinians disproportionate numbers, closing off roads per cent of the population of Jerusalem. constituting around 35 per and access points, and removing by force Additionally, the near impossibility of members of the affected families. obtaining building permits, even in the 13 cent of the population of per cent of East Jerusalem zoned for Jerusalem” A Palestinian housing crisis Palestinian construction, has created Currently, only 13 per cent of the land in cramped conditions with numerous East Jerusalem (21.3 km2) is available for generations of family members living in one Palestinians to build on, much of which is single house, unsafe building structures and already densely built upon with limited or no any infrastructure for water, overcrowded houses. The delegation electricity, gas and sewage. observed that the housing conditions in the As a result, Palestinian residents in Palestinian neighbourhoods in occupied East Jerusalem are suffering a severe housing Jerusalem are in stark contrast to the crisis. The delegation was informed by UN

16 Socialist Lawyer February 2012 “Israel should act on its legal obligations as an occupying power and immediately cease the construction of Jewish settlements throughout the occupied Palestinian territory”

OCHA that the natural growth among this area. Following field visits to Area C, delegation, for meetings with members of Palestinians in East Jerusalem currently At-Tuwani, as well as to other areas in East the Jerusalem City Council and requires the construction of 1,500 housing Jerusalem such as Silwan, Beit Hanina, representatives from the Jerusalem Mayor’s units per year, whereas in 2008 only 125 Shuafat and Anata, the delegation concludes Office. The delegation did meet with one building permits were issued, allowing for that the planning regime and enforcement Jerusalem councillor, Meir Margalit. the construction of approximately 400 policy of forced evictions and demolitions in Unfortunately no positive response was housing units only. Similarly, the planning the OPT, once again, violates Israel’s received to the other requests, and no one regime and enforcement policy in the West obligations under international from these bodies made themselves Bank (Area C) has led to a severe restriction humanitarian and human rights law, such as available to meet with the delegation. on the development of Palestinian villages. the International Covenant on Civil and Requests for meetings were also made to Area C, a designation from the era of the Political Rights (ICCPR), which Israel representatives from settler groups and Oslo Accords, is an area where Israel has ratified in 1991. In July 2010, the Human lawyers defending these groups before the full military and administrative control. In Rights Committee considered Israel’s courts, but despite receiving some replies no order to build, a Palestinian must apply for a implementation of its obligations under the one made themselves available to meet with permit from the Israeli authorities. If there is ICCPR and concluded that its policies in the the delegation. no permit, the building is liable for OPT amounted to violations of the right to In its report, the delegation made a demolition. Area C covers 60 per cent of the non-discrimination, to privacy and a home, number of recommendations in respect of West Bank, home to around 70,000 and to a family life, criticising the ‘frequent Israel, the European and the International Palestinians. It is also the area in which most administrative demolition of property, Community, all of which are set out in the Jewish settlements, all illegal under homes, as well as schools in the West Bank report in some detail. Most importantly, international law, are built. The delegation and East Jerusalem due to the absence of however, the delegation recommended that was informed that around 200 Palestinian construction permits, their issuance being Israel should act on its legal obligations as houses are demolished on a yearly basis in frequently denied to Palestinians’. an occupying power and immediately cease both the construction of Jewish settlements Conclusion throughout the occupied Palestinian It should be noted that, during the five-day territory, including East Jerusalem, and mission, the delegation received briefings cease from transferring of its own civilian from authoritative Israeli and Palestinian population into these settlements. non-governmental organisations, including Furthermore the delegation recommended Bimkom – Planners for Planning Rights, the that Israel desist from engineering International Peace and Cooperation Centre discriminatory planning and building (IPCC), the Israeli Committee Against permit policies for the Palestinian House Demolitions (ICAHD), the Jerusalem population and from forced evictions of Legal Aid and Human Rights Centre Palestinian families in Sheikh Jarrah and (JLAC), the Civic Coalition for Defending elsewhere in the OPT. the Palestinians’ Rights in Jerusalem (CCDPRJ), the Women’s Centre for Legal Marina Sergides is a barrister at Garden Aid and Counselling (WCLAC), and Al- Court Chambers Haq, West Bank Affiliate of the International Commission of Jurists. The delegation also met with the Norwegian Refugee Council (NRC), the United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The delegation also met with Israeli and Palestinian lawyers, specialising in housing rights issues and/or working on the Sheikh Jarrah cases. Many requests were made prior to and during the visit of the

Socialist Lawyer February 2012 17 ‘Early in life I had not ever correctly report

he words are George Orwell’s, but previously described as an opportunity had they could just as easily have been by Jim Duffy suddenly hardened into a ‘mandatory’ those of 22 year-old Cait Reilly. In requirement. If Cait failed to attend, her JSA the week of 9th January 2012, Cait career in museums. In the meantime, she would be reduced or withdrawn. filed judicial review proceedings claimed Jobseeker’s Allowance (JSA), sought Cait then spent a week in a classroom challenging the sort of State paid work and was eventually able through the being told by a training company how to Tapproach to maximising employment that now-defunct ‘Future Jobs Fund’ to obtain dress, greet people and become more Orwell prophesised. Her stand against what valuable work experience at The Pen Room, a employable. There then followed two weeks she argues to be an unfair, unpaid compulsory Birmingham museum. When her six-month at Poundland where no training or direction labour scheme seemed all the braver by the paid placement ended, Cait decided to was offered and, crucially, no pay. Cait, who time The Daily Mail had finished with her. For continue on a voluntary basis and once again already has retail experience, was simply told them, this was a young, middle-class upstart claimed JSA while she looked for paid work. to sweep floors and to stack shelves. Neither who considered herself too good for She is conscious of the need for extensive work the ‘guaranteed’ job interview or the Poundland. experience in her chosen field. promised City & Guilds retail certificate ever The reality is much different. Cait is one of a In October 2011, her Jobcentre Plus adviser materialised. Meanwhile, many supermarket quarter of a million unemployed people who informed her of an ‘opportunity’ to attend an employees apparently found in the run-up to will, by the end of the year, have found open day at which retail jobs would be Christmas that overtime work was suddenly themselves on the end of the Coalition’s drive available. She attended having been told that it hard to come by as a result of an influx of to ‘Get Britain Working’ and required to carry could lead to a week’s training followed by a unpaid jobseekers. out between two weeks and six months of guaranteed job interview. When she discovered It was not until Cait instructed us to bring a unpaid work under one of a plethora of at the open day that what was on offer legal action that she found that she had been complex schemes elaborated administratively involved six weeks of training, Cait decided involved in a ‘sector-based work academy’, as and without Parliamentary scrutiny. that this would take her away from her opposed to ‘work experience’, or the ‘work Cait graduated from the University of important voluntary work for too long. Her programme’, or a ‘Mandatory Work Activity Birmingham in July 2010 intent on forging a adviser’s tone changed, and what was Scheme’, or the ‘Community Action

18 Socialist Lawyer February 2012 iced that no event is ed in a newspaper’

Programme’ (CAP). She then realised she was ‘Workfare is least effective in getting people schemes. Yet, no one seems to have told the perhaps one of the lucky ones – Public Interest into jobs in weak labour markets where Employment Minister this: Lawyers acts for another individual who has unemployment is high.’ ‘It is a nonsense to suggest we should just be been required to undertake a full six months’ Yet, the Secretary of State for Work and leaving them on benefits without making a real unpaid work under the CAP. Pensions has created the UK’s own Workfare effort to find work.’ With youth unemployment figures at their programme in the weakest labour market since In fact, Cait would welcome paid work at highest level in 17 years, the Government faces 1996, without the required prescription of Poundland or anywhere else that would afford a monumental challenge in getting people back what the schemes entail or those to whom they her the luxury of living off more than £53 per to work. In addressing that crisis, it has chosen apply, either within the Regulations or any week. Her experience, however, suggests that to import the same model of ‘Workfare’ published policy. As such, he has arguably coercive schemes that require people to carry attempted previously in the United States. exceeded his powers under the Jobseekers Act out work over which they have no choice and Before setting up the array of schemes that 1995, granting near omnipotence to the for which they are not remunerated is unlikely Public Interest Lawyers is now challenging, the Jobcentre Plus adviser, who is henceforth to bring an end to their unemployment. Department for Work and Pensions empowered to determine what is good for the Cait Reilly hopes to make the Government commissioned expert research that examined Jobseeker, even if it means what is arguably think again and work with young unemployed Workfare in the USA, Canada and Australia. ‘forced or compulsory labour’ under the people, who perhaps ought to be seen as Two of its main conclusions ought to have put European Convention on Human Rights. victims rather than culprits of the financial the brakes on the political temptation to get the Notwithstanding the lack of clear criteria or crisis. An approach that instead empowers and proles working, pay or no pay: guidance, what we do know is that these equips them, tailored to draw upon their skills ‘There is little evidence that workfare schemes are not for the maligned ‘something- and plug their skills gaps, might ensure that increases the likelihood of finding work. It can for-nothing’ generation of unemployed not they not only enter the paid job market but stay even reduce employment chances by limiting complying with their jobseeking conditions – there. the time available for job search and by failing the DWP is clear that such individuals must to provide the skills and experience valued by continue to receive the appropriate sanction of Jim Duffy is a Solicitor at Public Interest employers’; and JSA withdrawal and are ineligible for these Lawyers

Socialist Lawyer February 2012 19

Fiona McPhail travelled to Mexico and met people driven from their homes and a lawyer who represents the tortured and disappeared. The struggle for land rights

n the early hours of 4th July 2011 five our clothes, livestock and tools. They wouldn’t families from Las Conchitas, Chiapas, let us take anything; they said it was now Mexico were forcefully evicted from their theirs. We have lost everything. We have no lands. Mateo Pérez Pérez is the father of five home, no means of sustaining ourselves, no children, his youngest is seven months old. work and no food. I recognised three of the His is one of the five families who men. They were Marciano Gaspar González Isubsequent to their eviction travelled to San and his two sons. He is a rich landowner in the Cristobal de las Casas, Chiapas where they area. The rest weren’t locals. They were occupied the main square. Seated on an empty probably campesinos from some other part. It water tanker and under a plastic tarpaulin is not uncommon for paramilitaries to recruit which sheltered them from the heavy rains in campesino communities. It’s a much easier which fall in the rainy season here, Mateo way to make a living.’ This was not the first explained to me what had happened that time that Mateo and his family and night: ‘In the early hours of the morning on neighbours had been displaced. ‘On one 4th July 2011 they grabbed me from my bed occasion after we had to flee our lands’ he and held me with my hands behind my back explained, ‘we sought refuge in the Lacandona whilst they beat me. They beat my brother and jungle for a couple of months. It was very mother too. They stuck a revolver in my wife’s difficult to survive there. We were then chased mouth. The children fled into the hills in the by officials as the land was part of a national darkness of the night. The paramilitaries had park. They eventually offered us title to lands come into the village firing gunshots so as to on the condition that we leave. So we left on terrify us. They held me to the ground with a the condition that we would be given titles revolver to my cheek and asked me if I liked it. within 15 days. We spent six months in hostels “Don’t think of coming back” they said, “or in Comitan, waiting for these titles. We still we will kill you”. I know they were serious. I haven’t received anything. The Government s asked them if we could gather our belongings; has broken promise after promise. We were

22 Socialist Lawyer February 2012 'The five families and comrades from the Frente Nacional en Lucha por el Socialismo just before their return to their lands.

Socialist Lawyer February 2012 23 s expecting to meet with them the week (2) ejidos (communal lands); and (3) small Ransacked and before the paramilitaries came. They never private ownership of land. upturned, a picture turned up.’ In the process of redistribution, land was of one of the families’ Land remains one of the greatest areas of expropriated from the large latifundio regimes. homes in which conflict in Mexico and throughout Latin Whilst progress was slow, by 1992, 28,000 nothing was left America. When the Spanish and Portuguese ejidos and 2,000 indigenous communities had standing. conquistadors colonised what is now Latin been given legal recognition. However the America in the 16th Century they stole the North American Free Trade Agreement ample natural resources the continent held in (NAFTA) which came into force in 1994, has order to develop European capitalism. The interrupted attempts to fairly distribute land. grab for land was at the heart of the colonial In 1992 and as part of the negotiations leading struggles against the indigenous populations, to the enforcement of NAFTA, Article 27 of who were massacred, chased off or enslaved. the Constitution was modified, essentially to The registration of land titles was allow for the privatisation of lands. Whilst introduced in Mexico by the US backed previously ejidos and indigenous lands were dictator, Porfirio Díaz, who ruled Mexico collectively owned, non-transferable, until the revolution of 1910. In theory this unseizable and inalienable, Article 27 as gave everyone the opportunity to register their amended allows both national and lands. In practice it led to the theft of vast international capital to buy and rent these lands by those in power or close to power. lands. It was not uncommon for such landowners Coincidentally the national budget for rural to thereafter use the manual labour of the areas has been reduced by 65 per cent, as indigenous populations as they wished often agricultural development in Mexico is to enslave them and work them to death. increasingly determined by transnational agro- The Mexican revolution which started in industrial groups and Mexico is turned into an 1910 had at its heart the demand for the importing country. The lands that Mateo Peréz redistribution of land. The Mexican Peréz, his family and neighbours have lived off revolutionary, Emilio Zapata famously are amongst the most fertile in Mexico and proclaimed that land belongs to those who highly sought after. work it. The revolution paved the way for As the economic crisis deepens, investment much of the agrarian reforms which took in fertile lands has become a strategic priority place throughout Latin America in the for the capitalist class. ‘We need to be twentieth century and influenced both the organised’ explains Mateo, ‘as this is not just Bolivian and Cuban revolutions of 1952 and our problem. Today it’s us who need support, 1959. Article 27 of Mexico’s Constitution of however, tomorrow it might be others.’ The 1917, which emerged from the revolution, families attempted to report the matter to the radically reformed land law. Prior to the 1910 police and the Procurador Fiscal in Palenque. revolution around 95 per cent of rural They also asked the State Human Rights families had no land. Council to intervene. In both cases they were Post-1910 the Mexican state in theory told it was outside the competence of the recognised three types of land ownership: (1) organisation. Article 11 of the International land belonging to indigenous communities; Covenant on Economic, Social and Cultural

Abigail Escalante has been working as a full- time lawyer with the Observatorio Nacional TORTURE, POLITICAL de Prisiones (ONP-Mexico) for two years. She is also a member of the Mexican League PRISONERS AND THE for the Defence of Human Rights (Limeddh). She is a young lawyer who specialises in representing clients who have WAR ON DRUGS been tortured, in most cases by State officials, as well as representing the family members of those who have been Fiona McPhail interviews disappeared. She is the only full-time lawyer within the organisation and while based in Abigail Escalante Mexico City, her work frequently requires her to travel around Mexico. I met her at a press conference in Chiapas last summer which was held in support of communities which had been affected by a natural disaster on the Rio Grijalva, Chiapas in 2007. 33 villages were wiped out. At least 404 homes were destroyed and 960,000 square kilometres of farming land ruined. She spoke on the platform about the arbitrary imprisonment and torture of some of her clients who had been protesting

24 Socialist Lawyer February 2012 Rights provides that everyone has a right to adequate housing. This includes the right against forceful eviction and the right to legal remedies where such practice occurs. The Office of the High Commissioner for Human Rights has commented that ‘while manifestly breaching the rights enshrined in the Covenant, the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions.’ It also recognises that indigenous peoples, alongside other oppressed groups, suffer disproportionately from forced evictions. The five families have been denied any form of formal justice. After one month of occupying the square, they decided to return to their lands. ‘This matter is not resolved’ one of family members explained to me upon our return to Las Conchitas, ‘we are still without title to our lands, we will still live in fear of the paramilitaries, and we are even poorer than when we fled as they stole all our work tools and destroyed most of our belongings. We are determined to survive though. We will keep fighting for justice’.

Fiona McPhail is a housing solicitor at Legal Services Agency, Glasgow. This article is partly based on an interview with Mateo Peréz Peréz, FNLS, who has consented to its use, together with the photographs in this article. John Kenneth Turner, Mexico Barbaro,(2010, Ediciones Leyenda, S.A. de C.V.) The International Land Coalition, ‘The Concentration of Land Ownership in Latin America: An approach to current problems’ 2011 available at: http://www.landcoalition.org/ sites/default/files/publication/913/LA_Regional_ ENG_web_11.03.11.pdf

against the non-payment of compensation special category. Most of our clients are poor while in custody. Santos Salas received third owed to them further to this disaster. and indigenous. Our Constitution states that degree burns and was also beaten up. The use I had the privilege of speaking to her and if the accused doesn’t understand Spanish they of torture is regularly used with the aim of obtaining a glimpse of what it means to be a are entitled to an interpreter. In practice this extracting confessions, she explained to me. human rights lawyer in contemporary rarely happens and yet there are enormous ‘The maltreatment of prisoners is so Mexico. numbers of indigenous people incarcerated.’ widespread and institutionalised that you ‘Everyone knows that there is corruption One such case is that of Santos Salas could say that there is impunity for the by the State in the so-called ‘War on Drugs’. Vazquez, a 61 year-old indigenous man from torturers. A further difficulty in these cases is Public opinion calls for the army to be taken Chiapas who is illiterate. Santos Salas is one that many torture victims cannot identify their off the streets. There have been numerous of 13 people aged between 50 and 70 years- torturers, as the victims are hooded. When we extra-judicial killings in this war; it’s not just a old who was detained while protesting take these cases on we investigate the case of collateral damage. An estimated against the non-payment of compensation allegations and work alongside medical 44,000 people have died since 2006. These are and the forced disappearance of two of the professionals. We then present these cases to mainly innocent people. Many of those killed movement’s leaders on 4th July 2010. When the authorities and ask that that they be are migrants. Most of the forced the police arrived and used tear gas the investigated. In some of our cases there has disappearances now relate to the ‘War on peaceful protest was dispersed. Those who been a complete failure on the part of the State Drugs’. And the State is complicit, even if it were unable to run fast enough were detained to investigate allegations of torture.’ hasn’t directly carried out the disappearance. by the police. Abigail has since informed me that the Our work focuses on cases of torture and The partners, friends and neighbours of State authorities have to date refused to accept ill-treatment of prisoners in custody and the the detainees have mounted a campaign any of the evidence presented to them of the criminalisation of political activists. We denouncing the human rights violations that torture of Santos Salas and the 12 other specialise in defending what we call political have taken place. Abigail and her colleagues comrades. More than one year on they remain prisoners, although the Mexican legal system have obtained medical evidence that shows incarcerated and the families and legal team doesn't recognise political prisoners as a that Santos Salas and the others were tortured continue to fight for their freedom.

Socialist Lawyer February 2012 25 The news last year that five people had been charged with slavery offences reminds us these practices are sadly still alive and well in modern Britain. Sarah Steinhardt reports...

hose arrests were the first for the could only guess that there were ‘more than secure the right not to be subject to such new offence of holding a person in 5,000’ affected. practices and, under case law, to provide access slavery or servitude (s. 71 For those who do have the courage to to a remedy for its breach, as considered in Coroners and Justice Act 2009) escape their situation, how can they obtain Siladin v France app. no. 73316/01. and demonstrate that the worst compensation or enforce the wages to which However, the UK has not taken any steps to kind of labour exploitation is not they are entitled? legislate for a particular tort of trafficking or Tconfined to the sex industry but extends to The UK is a signatory to the Council of slavery and there has been an incoherent the abuse of workers across the UK, in Europe Convention on Action against response to the implementation of these particular in agriculture and domestic service. Trafficking of Human Beings, Article 15 of obligations. The Government’s response to the There are no figures on the extent of the which provides the right of victims of 26th Report from the Joint Committee on problem; victims are often undocumented trafficking, including those brought to the UK Human Rights Session was to assert that HM migrants and reluctant to come forward. for the purposes of forced labour, slavery or Revenue & Customs’ National Minimum Abusers seek out those who are hidden from practices similar to slavery or servitude, to Wage Helpline, or the employment tribunal, view and who can be coerced and controlled as compensation and to free legal aid. Under provide access to the appropriate remedy, in the Green Acre Farm case. The House of Article 4 of the European Convention on while the Home Affairs Select Committee Commons Home Affairs Select Committee Human Rights the UK has a positive duty to opined that the Criminal Injuries

26 Socialist Lawyer February 2012 No case underlines this more than that of Hounga v Allen UKEAT/0326/10/LA; UKEAT/0327/10/LA, UKEAT/0329/10/LA which came before the Employment Appeals Tribunal (EAT) this year and was described as ‘probably one of the saddest cases that has come before this Tribunal’. The case concerned a 13 year old girl recruited from Nigeria to take care of the Respondents’ children and brought to the UK on the meagre promise that she would be paid £50 a month and could attend school. Mr and Mrs Allen engineered a plan to facilitate her entry which involved the child swearing an affidavit giving a false name and date of birth and stating that she was visiting relatives in the UK. The tribunal found that as she was a church going girl she would have known that what she was doing was wrong. On her arrival in the UK her passport was taken from her and throughout the course of her employment in the Respondents’ home she was subject to ‘serious physical abuse’. She knew she was in the UK illegally and her immigration status was used, as it frequently is, to threaten and coerce her. The employment tribunal, upheld by the EAT, found that she could not recover any Compensation Scheme was the appropriate compensation has been the employment wages for her work as her contract of recourse. Other options include tort claims for tribunal and a number of cases have been employment was tainted by illegality and she false imprisonment or post conviction successfully brought under the National had knowingly participated by falsely swearing compensation orders. Minimum Wage Act 1998 and as race the affidavit. She had never had a right to work The reality is that there is enormous discrimination claims. But are the employment in the UK so could not be paid for her work, difficulty in obtaining a remedy, particularly as tribunals appropriate venues for hearing such although she was able to recover more limited part of the criminal justice process, in heartbreaking accounts of human damages for race discrimination on the circumstances where evidence is often exploitation? The experience of people like broader test set out in Hall v Woolston Hall extremely limited and where ‘employers’ Mrs Mruke is far removed from the industrial Leisure Ltd [2001] ICR 99. nurture a fear of the authorities and cultural disputes that are typically encountered by A visa obtained on false pretences, or even and physical isolation. The possible financial employment tribunals. With no legal aid the lack of a visa, will not always preclude a and immigration incentives to potential funding, no witness protection mechanisms successful claim where the migrant did not claimants inevitably makes credibility a live and inadequate case management powers, knowingly participate and, in evidencing this, issue and getting over the criminal standard of employment tribunals were not designed to they can rely on their lack of familiarity with proof challenging. The police and Crown deal with disputes of this nature. On the English and with the relevant rules: Wheeler v Prosecution Service have frequently been contrary, employment law is founded on the Quality Deep Ltd (t/a Thai Royale Restaurant) reluctant to prosecute and awards under the principles of contract including freedom of [2004] EWCA Civ 1085, (2004) Times, 30 Criminal Injuries Compensation Scheme have contract, the very absence of which is one of August. However, as Hounga v Allen accordingly been very limited. the defining characteristics of slavery and demonstrates, individuals are frequently The first and to date only post-conviction forced labour. The claimant in a National vulnerable to exploitation precisely because compensation order was made in March of this Minimum Wage Act claim must establish that they are desperate to escape their already year and concerned Mwanamisi Mruke, from there is a contract, which can be problematic. impoverished situation and often do Tanzania, who was brought to the UK by Where a person has been sold by one person to participate or are coerced into participation. In Saeeda Khan to work as her domestic servant. another, perhaps by the trafficker to a UK such circumstances, the tribunal has little She was promised just £31 a month but recipient, how can it be said that there is choice but to reject the wages claim leaving the desperate to fund her daughter’s college agreement or intention to create legal victim without compensation for their work. education, she agreed. When she got to relations? ‘Employers’ seek out migrants not only with London, her passport was taken and she was It may be that Article 4 European the expectation that they can treat them less forced to sleep on the kitchen floor. She was Convention on Human Rights (ECHR) and well, but also in the belief that that they are less given just two slices of bread a day for food the UK’s treaty obligations provide a means for protected. Sadly, the effect of the law in this and worked from 6am to midnight without arguing for a purposive approach, mitigating area is to reinforce this belief. break; she did not have a day off in over four the strict contractual requirements with the The solution, if there is one, may be for a years. When Mrs Khan was convicted she was need to do justice to victims in the most statutory tort. However in the meantime, the ordered to pay £25,000 in compensation. extreme cases of true slavery and forced labour. interests of justice overwhelmingly support a While the compensation is undoubtedly a However, such arguments are challenging to strong purposive approach so as to give effect success story, at an equivalent annual salary of the very principles of employment law. to the UK’s Treaty obligations and to Article 4. just £6,250 per annum, it was no substitute for Claimants must be prepared for the kind of We must recognise the fallacy of contractual wages. drawn out legal battle that the vulnerable client freedom in these cases, which are not With regard to tort claims, there has been is unlikely to be willing to engage with. predicated on negotiation but on the just one successful example. That case, which A second and more common problem in the exploitation of the vulnerable and the abuse of concerned sex exploitation, was brought as contractual model is that of illegality. the powerless. That there remain individuals trespass against the person and unlawful Contracts exploiting migrant workers are who continue to be treated as slaves in the UK imprisonment – AT and others v Dulghieru frequently tainted by illegality in the in the 21st century demands that they be [2009] EWHC 225 (QB). immigration process and the worker who provided the protection of the law. As a result of these difficulties, and because knowingly participates will not be able to of the availability of damages for recover under their contract, no matter how Sarah Steinhardt is a barrister at 1 Mitre Court discrimination, the main forum for obtaining deserving their case may otherwise be. Buildings

Socialist Lawyer February 2012 27 Gabe Tan argues that fresh evidence should not be needed in miscarriages of justice Justice should not depend on luck

he Court of Appeal (Criminal Division) is often described as the safety net of the criminal justice system. One of its key functions is to ensure that the wrongly convicted can have their Tconvictions quashed. In 1995, following a series of high profile miscarriages of justice including the Guildford Four and the Birmingham Six, the Criminal Cases Review Commission was established as an added safeguard to the Court of Appeal. Its role is to review alleged miscarriages of justice and refer convictions and sentences deemed to have a ‘real possibility’ of being quashed back to the Court of Appeal. Yet, just how effective are these safeguards in protecting the innocent and ensuring their prompt acquittal? On the 18th March 2009, Sean Hodgson walked out of the Royal Courts of Justice frazzled and overwhelmed by the crowding press. After 27 years of incarceration, it did not take the Court of Appeal much deliberation to declare Hodgson a free man. Hodgson’s conviction for the murder and rape of Teresa de Simone was overturned when DNA testing on biological swabs taken from the victim proved him to be factually innocent. The Forensic Science Service very soon became the target of the media’s finger- pointing exercise for wrongly reporting that the swabs were destroyed 11 years earlier when the request for DNA testing was first made. Hampshire Police was also subjected to criticism for ruling out another suspect, David Lace, who confessed to the murder in 1983 and took his own life shortly after. However, the focus on blaming individual parts of the criminal justice jigsaw lost sight of

28 Socialist Lawyer February 2012 the dock which barely gave details of why and how he had made up the false confessions. The safety net of the appeal court offered little protection to this vulnerable man. Rather, a severely mentally ill defendant was somehow to be individually blamed for not being able to stand in the dock and convincingly articulate to the jury the complex psychological processes that made him repeatedly confess to the most heinous of crimes. The advent in knowledge on the

phenomenon of false confessions appeared to / reportdigital.co.uk Jess Hurd Picture: be of no help at all to Hodgson either. Since the early 1990s, dozens of others who voluntarily confessed to crimes that they had not committed have had their convictions quashed due to fresh psychiatric evidence not heard at trial that rendered their convictions unsafe. Key examples include Judith Ward, Andrew Evans, Ashley King, Darren Hall and Patrick Kane who all suffered from forms of psychiatric or personality disorders that made them vulnerable to false confessions. As far back as 1989, the Lloyd-Bostock report cited false confessions as the second biggest cause of wrongful convictions in Britain after eyewitness misidentification. The pioneering work of internationally renowned forensic psychologist Professor Gisli Gudjonsson further enhanced our understanding of how even ordinary people with normal intelligence can be susceptible to making false confessions either voluntarily or under the pressures of police interrogation. It appeared that because the systemic dysfunctions with the criminal Hodgson’s history of making false confessions Almost all these 200 prisoners have failed in appeal system that, for over two decades, failed was already known to the jury who their first appeal – the principal reason being to overturn Hodgson’s conviction. nevertheless decided to convict him, the that arguments relating to the unreliability of The jury’s conviction of Hodgson back in doctrine of finality precluded the (un)reliability the evidence that convicted them have already 1982 was hardly surprising. At trial, the jury of his confession from being re-examined. been heard by the jury and, unless fresh heard how Hodgson made a series of voluntary As with all other appeals against conviction, evidence is produced, the Court of Appeal is confessions – first to a priest, then to a prison the primary way to defy this long-standing not entitled to go behind the jury’s verdict. officer, to the police and to his own solicitor. doctrine is to find fresh evidence that renders a Around half of these cases have been refused at He made oral and written admissions to the conviction unsafe – a requirement under least once by the Criminal Cases Review murder, each time giving a detailed account of section 23 of the Criminal Appeal Act 1968 Commission. Despite the questionable how he killed Teresa de Simone – details which, and section 2 of the Criminal Appeal Act 1995 circumstances of their convictions, the the prosecution claimed, could only have been respectively. Hodgson’s fate was therefore Criminal Cases Review Commission, whose known by the killer. Supporting his sealed, at least until luck befell him with the role is generally confined to a review of fresh confessions, his blood group was a match to discovery of the exonerating DNA evidence – evidence, can do little, if anything, to assist that of the killer, and he was undoubtedly the fresh evidence that held the key to his them. present in the locality at the time of the murder. eventual acquittal by the Court of Appeal. However, returning to the case of Hodgson, The unreliability of Hodgson’s confession Hodgson is one of the ‘lucky’ few – perhaps it should not have required fresh evidence in was put forward at trial and, certainly, when he an odd term to describe someone who served the form of a DNA exoneration to quash his applied for leave to appeal in 1983. Hodgson almost three decades of wrongful conviction 27 years later. He was convicted was a notorious compulsive liar with a known incarceration. However, the discovery of fresh mainly on his own confession, which we knew severe personality disorder. He had made evidence is not something that can be then and certainly more so in the last two repeated false claims to the police for other guaranteed for every innocent victim of decades, to be an inherently unreliable form of criminal offences, including confessions for two wrongful conviction. Indeed, the Criminal evidence. Hodgson’s conviction should other murders that he could not have Cases Review Commission, which similarly arguably have been overturned much earlier on committed as they did not happen. Many of the applies the fresh evidence criteria in deciding the basis of his questionable confession alone. details that the prosecution claimed could only whether to refer an application back to the Yet, without the miraculous discovery of the have been known by the killer were widely appeal courts, has referred fewer than four per DNA evidence, Hodgson would most certainly reported in newspapers and television reports. cent of over 13,000 applications it has received still be trapped within the prison system. The then Court of Criminal Appeal since its establishment. If there is anything that Hodgson’s wrongful dismissed Hodgson’s leave to appeal almost as The Innocence Network UK, established at conviction has taught us it is that justice should quickly as the Court of Appeal would allow it the University of Bristol in September 2004 to not be dependent on the luck of finding fresh 26 years later. The initial appeal was dismissed facilitate investigations into alleged wrongful evidence. If the overriding concern of the Court on the basis that these arguments, as forceful as conviction has, to date, deemed around 200 of Appeal and the Criminal Cases Review they may be, were either already heard by the prisoners (out of over 1,000 requests for Commission is truly about safeguarding the jury or could have been made at the time of his assistance) to have a plausible claim of innocent, then the requirement for fresh trial. Instead, presumably because counsel had innocence. Many are convicted on evidence evidence should not be a barrier for revisiting thought that Hodgson was unlikely to be able that is dubious to say the least – alleged cell the convictions of those who might be. to withstand the prosecution’s cross- confessions; inconsistent witness testimonies; examination, a tactical decision was made for questionable forensic evidence; and forms of Gabe Tan is Executive Director of the Hodgson to give an unsworn statement from highly circumstantial evidence. Innocence Network UK (INUK)

Socialist Lawyer February 2012 29 The Basque seperatist group Eta’s decision to end its armed struggle has surprised many. Lawyer and international facilitor Brian Currin looks at the move towards non-violence and the challenges for peace ahead.

Why did Eta call it off?

uskadi Ta Askatasuna (Eta) – which with democracy. When, after the death of unilateral, unconditional and internationally means Basque Country and Liberty – Franco, they reneged on this promise a large verifiable ceasefire, and 10 months later, before was born out of a group of students sector of Eta felt betrayed, and accelerated a the end of 2011, a permanent and definitive midway through the 40-year terrorist campaign, killing 90 people in 1980. end to its armed activity. dictatorship of General Francisco The response of Spain’s Socialist Party The question many people are asking is why Franco in the 1950s. They formed an administration in the mid-1980s was and how did this happen? Earmed movement for independence and oppression. Government ministers ran a dirty Eta’s historic public statement on 20th socialism that challenged the all-powerful quasi- war against Eta that killed 27. Torture October 2011 in response to the Declaration fascist state led by Franco. After the death of remained a common police practice. Spanish from the International Peace Conference in Franco in 1975, Eta continued its campaign of rights abuses in response to Eta’s campaign of Donostia (San Sebastián) on 17th October violence when Spain became a democracy and violence post-Franco gave oxygen to the 2011, declaring a definitive cessation of its after Madrid granted the Basques an Basque Nationalist Left for which Eta saw itself armed activity, brought a successful end to a unprecedented level of autonomy. Their 52-year as the liberators. The Spanish Government three-year conflict transformation process. armed struggle cost close to a thousand lives. introduced more oppressive security legislation The predetermined objective of this process, The Franco dictatorship loathed Basque that included the Party Political Law 10 years which was spearheaded by the political nationalism. Instead of supporting his ago, which resulted in the banning of Batasuna, leadership of the Abertzale Left, was to achieve campaign against ‘godless communism’ the political party representing the pro- a paradigm shift from political violence to Basque nationalists were loyal to republican independence left. exclusively peaceful means as a way of democracy which Franco regarded as the worst Peace processes over the past 15 years, expressing and achieving their political form of betrayal. during which Eta declared numerous ceasefires, objectives. He treated them accordingly by, inter alia, have failed. The last peace process ended in Getting to a point where an organisation, banning the Basque language, Euskera, from 2007, a few months after Eta had detonated a classified by its own Government and by the public discourse even from sermons in parishes huge bomb at Barajas airport in Madrid. Not international community as a terrorist where the congregation spoke no other only was a multi-storey car park left in rubble organisation, shifts unconditionally and language. The catalyst for Eta’s extraordinary but so too were the hopes and expectations of unilaterally from violence to irreversible non- political growth during the 1960s was the millions of people. And if an iota of trust had violence is unique when compared with other dictatorship itself. Whenever the group carried emerged from engagements between the armed political struggles. out an attack, the Basque Country was protagonists during the 2006 – 2007 peace There are many factors which contributed saturated with indiscriminate police repression. process that too was destroyed. towards this outcome and equally as many Spanish leftist parties had promised the In 2007 no one would have predicted that perspectives. These range from the extreme s Basques the right of self-determination along within four years Eta would declare a opposite views of defeat and destruction of

30 Socialist Lawyer February 2012

From a video during which Eta announced their ceasefire in October.

“One of the factors towards the decision was a realisation amongst Batasuna leaders [the party representing the pro-independence left] that their prohibition from participation in democratic politics was undermining their political cause of self-determination” s Eta by Madrid’s security forces to the collaborate with social and political groups in obstacle to the legalisation of Sortu, a newly strategic end of the armed phase of a struggle the Basque Country with whom there had formed pro-independence left political party, that has victoriously achieved its objectives. previously been very little trust; and pave the way for a transparent, inclusive Reality, as we know, is always far more varied, • A willingness by social and political groups and sustainable peace process in the Basque complex and nuanced. who were deeply sceptical of pro-independence Country. This article does not enable an extensive left leaders’ bona fides and motives to take This is approximately where things are at analysis of the many factors that contributed political risks and engage with them; the moment, but not without significant towards Eta’s uniquely unconditional and • The rejection of violence by a significant part difficulties. unilateral cessation of armed struggle. of Basque society; The first challenge is how to consolidate From my perspective the main factors were: • The involvement of the international peace. To do that, it is necessary to identify the • The realisation amongst Batasuna leaders community and in particular Eta’s ceasefire immediate and future political and social that their prohibition from participation in commitment to the signatories of the Brussels challenges. democratic politics was undermining their Declaration, the establishment of the Broadly speaking, there appear to be three political cause of self-determination; International Contact Group for the Basque main challenges, immediate, short to medium • A willingness to listen and respond to the Country in January 2011 and the International term and medium to long term. The demands of their constituency to conceptualise Ceasefire Verification Commission a few declaration emerging from the International a new political project; months later, and the participation of world Conference on 17th October 2011 recognises • An acceptance by Batasuna’s top leadership leaders at the International Conference for these challenges. that the only viable new political project would Peace in San Sebastián in October 2011; In the first instance, the Spanish and the be legalisation of their political party, and a • Finally, the success of Bildu, a newly formed French Governments are called upon to willingness to give robust leadership to do coalition of pro-independence parties, in the respond positively to Eta’s statement declaring whatever was necessary to achieve legalisation; 2011 March elections. a definitive end to its armed activity and to • The deep and wide consultation undertaken The support for Bildu in the March 2011 agree to talks exclusively to deal with the by Batasuna leaders amongst their entire elections was an incontrovertible message from consequences of violence. This is a critical step constituency to explain and motivate the need the pro-independence Basque society of their in order to begin essential processes to bring for a political commitment to exclusively endorsement for democratic politics above closure to decades of violence. The peaceful means that would be irreversible, violent conflict. My assessment then was that consequences of the violence, which are many irrespective of how unpopular that message Eta would absorb the message and in a and varied, cannot simply be left to resolve might be to hard line elements within their relatively short time take the next inevitable themselves. They are of such a nature that constituency; step from ceasefire to irreversible cessation of cooperation between the protagonists is • Batasuna leadership’s ability to engage and armed activity, which would remove the final necessary.

32 Socialist Lawyer February 2012 Eta has ended its armed activity, but confront the causes of the political conflict and addressed if peace and reconciliation are to be inevitably the organisation must still possess negotiate resolutions. This challenge is in the entrenched are the recognition of all the victims dangerous weapons and explosives. hands of the Basque parties and indications are and social reintegration of prisoners. Decommissioning requires a cooperative that all but one political party is willing and In recognising victims, processes and process. What happens to Eta leaders who are ready to at least begin talks about talks. mechanisms should be put in place to assist on the run and those who declared the end to Realistically multi-party negotiations in the victims to deal with their loss, pain and armed activity and who will lead the Basque Country are unlikely to begin until after suffering, bearing in mind that the peace process decommissioning process from their side? the next regional elections scheduled for early itself may, paradoxically, for many victims be an Issues such as indemnity from prosecution and 2013 but likely to take place earlier. Similar aggravating factor. amnesty need to be discussed. There are more engagements need to be launched in the The number of prisoners and the length of than 500 politically motivated prisoners Community of Navarra and the Northern sentences served in a country that has dispersed in various parts of Spain and France. Basque Country in France. experienced political violence is often Their return to the Basque Country and the The political product of all these negotiations disproportionate. The end of violence invariably release of at least some categories of prisoners will inform the nature and extent of subsequent results in greater numbers of released prisoners, needs to be carefully managed. The political engagement, medium to long term, many of whom are long-term. Prison conditions extraordinary and stringent security laws, with the Spanish and French Governments if are often worse for prisoners associated with which are inappropriate in a normalised necessary, depending on the outcome of terrorism and rehabilitation programmes are political environment, should be dismantled. regional negotiations. non-existent. As a result social reintegration of Surprisingly, neither France nor Spain has Socially, the most pressing and daunting politically motivated prisoners is always a responded to the Declaration emanating from challenge is reconciliation in Spain and in the complex challenge. The current economic the conference which called upon them to Basque Country. The divisions are deep and realities in Europe, particularly unemployment respond positively to an Eta statement ending entrenched. They did not begin with the rates, will not make it easier. armed activity, and to engage with Eta on the formation of Eta in the 1950s. In modern consequences of the violent conflict, i.e. history they go back to the internecine Spanish Brian Currin is a South African lawyer. In 1994 decommissioning, prisoners, exiles and victims. civil war. he was appointed by Nelson Mandela to chair a This is an essential step that has to happen There are international models of Prison Audit Committee and was subsequently irrespective of political sensitivities. reconciliation processes which may be involved in the creation of the Truth and The short to medium term political instructive. But each country is unique, not only Reconciliation Commission. In the last few years challenge is to create an all inclusive forum for in relation to its conflict but also its national he has been part of the international facilitators dialogue (multi-party talks) between all the character, traditions, culture, religion etc. team involved in the search for a negotiated and political parties in the Basque Country to Two other key social challenges to be democratic solution in the Basque Country.

Socialist Lawyer February 2012 33 ‘Their cuts

Are austerity measures inevitable? Paul Heron thinks not...

he election of the Con-Dem Sadly these cuts were carried out by all of that, ‘[t]he directors of Britain's largest Coalition Government the political parties and in some cases the companies were last night condemned as “elite approximately 20 months ago has Labour-led council being the worst offenders – greedy pigs” for pocketing a 49 per cent pay heralded a major austerity for instance in Newham council in east rise in the past year, while average workers programme. Over that period London £100 million worth of cuts was failed even to keep up with inflation.’ 250,000 public sector jobs have agreed. Even the Green Party in Brighton has This at a time when youth unemployment Tdisappeared. More than 100,000 jobs have failed to step up to the mark and has reached over one million. been lost in local authorities alone across introduced a budget which implements cuts to While the national government has set the England. jobs and services. tone for austerity, local government has been a Many workers have reluctantly taken willing accomplice. Sadly, some of the most payoffs; some because they are older and close Where the cuts fall severe cuts have affected some of the poorest to retirement, others because they lack the Despite the claims by Osborne and Cameron areas. confidence in their own union leaderships on a that ‘we are all in this together’ nothing could The Independent reported on 8th January local or national basis in the battle against the be further from the truth. Carl Emmerson, the 2012 that ‘[i]nner city areas of Liverpool and Con-Dem plans. Acting Director of The Institute of Fiscal Manchester and parts of London including There does not seem an end in sight to the Studies, has been reported as expressing the IFS Hackney will be worst hit with spending jobs and services slaughter. Reporting in The view that: ‘The tax and benefit changes are reductions of 8.9 per cent. However richer Guardian Patrick Butler outlines in detail the regressive rather than progressive across most parts of the country such as Surrey, impact of the cuts being made by local of the income distribution. And when we add Buckinghamshire and Wiltshire fare much authorities. These statistics provide an in the new measures announced yesterday this better with cuts of less that 1 per cent.’ alarming picture of the extent of the cuts from is, unsurprisingly, reinforced.’ He added, ‘Our The Guardian on 14th February 2011 all areas of the UK – North East Lincolnshire analysis continues to show that, with the reported that ‘Labour councils shed 50% more council: £30 million cuts over four years, £9 notable exception of the richest two per cent, jobs than Tory areas’. The cuts have hit million frontloaded in 2011-12. Jobs cut: 200. the tax and benefit components of the fiscal Labour-run councils hardest. Yet instead of Dorset County Council: £55 million of cuts consolidation are, overall, being implemented organising a fightback they have been happy to over three years, with £31 million frontloaded in a regressive way.’ carry out the cuts sometimes justifying them by into 2011-12. Jobs lost: 500. Some libraries At the same time that this is happening it stating these are ‘their cuts not ours.’ will be closed. Western Isles Council: £5.1m has been business as usual in the City of cuts for 2011-12, with so far 60 staff leaving London and the boardrooms of many …and if you know your history through voluntary redundancy or early companies. Only as recently as October 2011, There is a history of Labour councils fighting s retirement. Stephen Foley in The Independent reported back.

34 Socialist Lawyer February 2012 not ours’? Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture:

Socialist Lawyer February 2012 35 s One of the sharpest areas of combat The issues of surcharge and disqualification position were the threat of being surcharged between socialists and national government of elected councillors came again to the fore in and secondly ‘What choice do we have?’ has been over local government cuts, finance the mid 1980s. In the initial stages, 16 Labour The power of surcharge was identified by and the surcharging of councillors who dare to councils representing millions of people in the the Nolan Commission as wrong. It also saw disobey. These battles have shown that until industrial heartlands from North Tyneside, that it was being used as a political weapon. As the 1980s Labour councils were prepared to do Leicester, Sheffield, Manchester and the a result when the Local Government Act 2000 battle to protect workers and the most London areas agreed to fight the cuts in central was introduced surcharging was abolished. vulnerable from savage cuts. government funding. After the sabre rattling all This is set out in Part V of the Act. Surcharge and disqualification of elected of them backed down except Liverpool and The Local Government Act 2000 could be councillors goes back to 1834 when the Poor Lambeth. utilised to assist those afraid of being thrown Law Amendment Act 1834 introduced the The two councils battled on. They out of office. The Act states that if you do not infamous new poor law. It introduced the right understood that the cuts in central government ‘have regard’ to financial advice given by the of government auditors to disallow items of funding would affect jobs and services at a time council’s chief finance officer and fail to fully expenditure and to order the guardians to of severe recession. In the case of Liverpool it explain failing to follow his/her financial repay the amount. The law was extended would mean the ending of the council house advice, according to their statutory duty, a during the 19th century and came to include building programme, as well as the job councillor could be referred to the standards elected councillors when local government creation programme in the council. board for breach of that individual council’s councils were formed. It has been the cause of The two councils were left isolated by the code of conduct – which potentially could bar some notorious court cases, of which the central party. Eventually they were thrown out councillors for a period of time. Poplar case in the 1920s is one of the most of office. Lambeth councillors were surcharged It would, in this writer’s view, be very famous. £126,947 in total and thrown out of office. difficult for an unelected finance officer to bar When the Poplar council had the audacity The 47 Liverpool councillors were surcharged a group of councillors, particularly if they have to pay its labour force in excess of union rates £333,000 and thrown out of office, with many been elected as part a mass campaign with a in May 1923 the District Auditor threatened to being expelled from the Labour Party itself. mandate not to make cuts. surcharge the councillors to the tune of While ultimately the battle itself was Even if anti-cuts councillors were removed £17,000 for the financial year ending March unsuccessful, it is important to note that had all from office for a period, any such decision 1922. The Poplar councillors believed they the 14 councils stood together they could have would be open to a judicial review. This would were acting within the law. They argued that forced the Government to backtrack. not rule out others stepping up to replace them section 52 of the Metropolis Management Act Liverpool City Council in 1984 had in fact on the same anti-cuts programme. 1855 allowed them the right to pay their wrung concessions of £20 million out of the What of the possibility that the Government employees as they saw fit. The Auditor then Minister, Patrick Jenkins. will send in commissioners to run the council? disagreed and, under pressure from local Some on the left have sought to rubbish the Despite the threats of the Thatcher government businesses, decided to enforce a surcharge on stand of Lambeth and in particular the at the time and despite setting a deficit budget, Lansbury and the socialist Labour councillors Liverpool councillors. Yet, they forget that the this never happened during the Liverpool and of Poplar. It eventually lead to 30 councillors, stand taken by these councillors was in the Lambeth council campaigns. Even the ‘Iron including six women, one of whom was tradition of the Labour movement. Lady’ recognised this would have provoked a pregnant, being sent to prison indefinitely for massive response. While it has happened in contempt of court for refusing a court order to 2011 – a new test Doncaster most recently this was in relation to remit the monies. In March 2011 many councils were faced with their failing social services. The Poplar councillors’ actions created a very stark choices. Do they cut the youth watershed, acting as they did in the best service? Do they cut elderly services? Frontline The need for a fight back traditions of the labour movement. Despite staff? They were being asked by the millionaire The Local Government Act 2000 excludes the their anxieties they were able and willing to Chancellor, George Osborne, to make massive surcharging of councillors so long as risk their freedom to fight for the working cuts to public services as part of the austerity councillors do not act in their own interests, class. The councillors became more popular budget, a price needed to be paid for bailing and they can justify the actions they take – that than ever and their socialist policies were out the banking system. Yet while city pay rose could take the form of refusing to carry out supported across the borough. by 49 per cent, it was public services that cuts, setting a needs budget and a deficit In 1973, 11 Labour councillors from Clay needed to pay the price. budget. Cross were surcharged for refusing to In facing up to the cuts not one Labour In the next few months councils will be implement the Housing Finance Act 1972. The council hinted at a campaign or promised to setting their budgets. Sadly more cuts are Act forced councils to increase rents on council put up a fight against the cuts. The most pending. A dialogue needs to be had in the housing. The councillors refused to do this. common arguments used to justify this labour and trade union movement. Labour The District Auditor ordered the 11 Labour councillors need to be challenged not only to Party councillors to pay a surcharge of £635 Cameron can campaign against the cuts more boldly, but to each in January 1973, finding them ‘guilty of be halted. set a needs budget. Critically, they should not negligence and misconduct’ fear the notion that they risk a surcharge. It is important for socialists to contact their 1980s: they say cut back, councillors and raise the issue of the need for a two councils fight back fightback. The surcharging and barring from The principle of surcharge and disqualification office is no longer the threat it was. from office was not abandoned by the Tories A question that faces socialists, trade through the Thatcher years. Indeed it was built unionists, and community campaigners is what into the Local Government Finance Act 1982. now? If we cannot rely on the Labour Party to Section 19 dealt with the powers of the Auditor represent us, in my opinion the crucial tasks Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: and the courts in relation to items of account ahead will be to ensure that not only is a which are ‘contrary to the law.’ Section 20 campaign of mass resistance organised through relates to the failure to bring sums to account the trade unions, but crucially that a new party and to losses due to ‘wilful misconduct.’ of the working class is built to be a voice in the The Act empowered an official, usually the council chamber and Parliament to speak for Auditor, to act against councillors where he or us, and to bring to these ‘esteemed’ venues the she considers that a council has acted outside ideas of socialism. the law or with willful misconduct – but was framed in such a way that councils are held to Paul Heron is a Solicitor at Hackney be guilty until they prove themselves innocent. Community Law Centre

36 Socialist Lawyer February 2012 Reviews

Slick thriller with a message

FILM: Elite Squad: The what can now be seen as a already impressive line of films 2007 polemic against police Enemy Within trilogy of social commentaries with a social conscience. It struck brutality that was Elite Squad, Director: José Padilha. Globo on urban life and violence in a strong chord with the Brazilian this follow-up to the original film Filmes & Feijão Filmes (2010) Brazil. Whereas Bus 174 public when on its release in 2010 is a much more nuanced piece of analysed the tragic trajectory of it became the highest grossing work. The comparisons some osé Padilha is no stranger Sandro do Nascimento from his film of all time in Brazil attracting have made between this film and to political film making. life as a street child in Rio de some 11 million viewers. On one David Simon’s The Wire are not JHis 2010 documentary Janeiro, during which he hand it can be seen as purely a entirely unjustified as the plot Secrets of the Tribe produced an witnessed the Candelária slick action thriller but the social weaves its way through the engaging critique of the discipline massacre, to his taking a public message it delivers is impossible police, local politicians and the of anthropology by turning the bus hostage, the Elite Squad to ignore. The film received an all press. camera on those who have films confront the police and too brief run in UK cinemas last Wagner Moura gives a studied the Yanomami peoples in politics head on. year but has now been released blistering performance as

the Amazon to powerful effect. With Elite Squad: The Enemy on DVD. Lieutenant Colonel Roberto s His documentary Bus 174 began Within, Padilha has added to an Ostensibly a sequel to the Nascimento who has risen

Socialist Lawyer February 2012 37 Reviews s through the ranks of Rio’s Bope Special Police Unit to a more bureaucratic position in which he The plague of paramilitaries becomes exposed to an alarming web of deceit and corruption coursing through the police and FILM: Impunity A businessman political life. The script writing Directors: Juan José Lozano and dressed in a suit and editing are provocative. The Hollman Morris with a briefcase film’s opening scenes, in which Intermezzo Films 2010 hanging from one Colonel Nascimento oversees a arm while the other prison siege that includes a cameo Impunity is a powerful arm sports an AUC armband and carries role from Brazilian actor and documentary of one of the most an assault rifle – the singer Seu Jorge as a gang leader, horrific periods of human rights film’s poster focuses show off some technically abuses and atrocities in recent on the collusion and brilliant production skills which times; the rise of the right-wing even overt support the ‘Making Of’ documentary United Self-Defence Forces of that politicians and accompanying the DVD sheds Colombia (AUC) paramilitaries. big business gave to further light on. The subject matter of this film the militias in The film’s other main ensured it would always be Colombia. protagonist is the human rights shocking. The sheer scale and activist Diogo Fraga played by horror of the crimes committed by Irandhir Santos. The character the AUC against ordinary, was based on the real life activist innocent people are hard to and now Rio congressman believe. However, possibly the Marcelo Freixo who helped front most awful aspect of the story – an investigation in 2006 to expose encapsulated in the film’s poster, mafia style militias operating in showing a stylised picture of a the city. Freixo had been a businessman dressed in a suit with member of the Rio human rights a briefcase hanging from one arm group Justiça Global before being while the other arm sports an elected to the state parliament in AUC armband and carries an 2006. 225 people were indicted as assault rifle – is the collusion and a result of this investigation which even overt support that politicians resulted in local politicians being and big business gave to the By 2010, of the 48,000 senators through voter sent to prison for connections to militias. reported disappearances linked to intimidation, and violently militias operating in Rio de The appalling crimes the AUC, only 973 families of suppressing strikes on behalf of Janeiro. In November 2011 committed by the AUC speak for victims had recovered their banana industry tycoons. Freixo and his family had to flee themselves. This enables Lozano remains. Although family However, as allegations arose Brazil with the support of and Morris to be able to tell this members are allowed to question against more and more Amnesty International after story with little direct input. First- paramilitary commanders at politicians, President Uribe reports had emerged of a plot to hand testimonies from the families tribunal hearings as to the fate decided to extradite the have him assassinated. His of victims tell of the murders, that befell their loved ones, the paramilitary commanders who decision was undoubtedly kidnappings and disappearances film shows that time after time were making these allegations to influenced by the murder of a that took place. The scene is set these questions are unanswered. the USA on drugs charges, prominent anti-corruption judge, vividly by the opening sequence of Reparation has clearly been removing them from the country Patricia Acioli, on 11th August the film where a woman tearfully shortcoming. As for justice, of the and destroying any chance of the 2011. tells of how her 12-year-old thousands of former Justice and Peace Tribunal In October 2011, before brother, whilst out playing with paramilitaries that were reviewed uncovering the true scale of Freixo went into exile, both José friends, was set upon by a group by the tribunal, only two partial political involvement. Padilha and the actor Wagner of paramilitaries and decapitated. criminal sentences have been It is clear from the title that this Moura had appeared at a talk Much of the film follows the handed down. Thousands of film is not a light-hearted account. organised by the Brazilian Bar work of the Justice and Peace paramilitaries were released As the film ends it outlines that Association to speak out in Tribunal; a body with quasi- straight away only to be later paramilitary groups continue to defence of Marcelo Freixo’s life. criminal jurisdiction set up by the arrested for committing further plague vast areas of Colombia, Elite Squad: The Enemy Colombian government in 2005 atrocities. despite the official position that Within is reported to have had a with the remit of investigating the One achievement of the they were demobilised in 2002, noticeable impact on public atrocities committed by the tribunal was to shed some light and almost none have been held to attitudes in Brazil. Readers of this paramilitaries and providing on the level of political and account. For the majority of magazine are strongly urged to justice and reparation to the corporate involvement with the paramilitaries and their State and seek out the film and the story AUC’s victims and their families. AUC. Paramilitary commanders corporate accomplices within that inspired it. Unfortunately the reality has admitted to ensuring the election Colombia, impunity persists. Tim Potter fallen well short of that. of particular governors and Michael Goold

38 Socialist Lawyer February 2012 Reviews

Spirit of Allende These posters are from the Museo de la Memoria in Santiago, Chile and are an example of the artwork and collective spirit of Salvador Allende’s government of Popular Unity which was toppled by the military coup led by General Pinochet on 11th September 1973. The UN Human Rights Commission estimates that some 250,000 people were detained for political reasons during this period. Thousands were arrested, tortured, detained and disappeared by the military regime between 1973 - 1990. Tens of thousands more were forced into exile. In a 2008 poll organised by the State channel TVN, Chileans voted Salvador Allende to have been the 'greatest Chilean in history' ahead of many other well known Chilean public figures. There has been a resurgence in political activism across Chile over the last 12 months as students have protested against the education policies of the current government, particularly in respect of access to university education. Camila Vallejo, one of the student leaders, was voted 2011 person of the year by readers of The Guardian.

Socialist Lawyer February 2012 39 Haldane Society of Socialist Lawyers

Human2012 Rights Wednesday 14 March 2012 Lectures All lectures at the College 6.30pm of Law 14 Store Street, “Occupy London and legal issues” London WC1. Free admission. £10 charge Speakers: to practitioners requiring Stephen Knafler QC CPD points Paul Ridge Bindmans solicitor George Barda litigant in person in the St Paul’s case Further information from www.haldane.org Join the Haldane Society of Socialist Lawyers n I would like to join/renew my membership of the Haldane Society Rate (tick which one applies): n Students/pupils/unwaged/trade union branches/trades councils: £20 n Practising barristers/solicitors/other employed: £50 n Senior lawyers (15 years post-qualification): £80 n Trade unions/libraries/commercial organisations: £100

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