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January 31, 2009

BBC has little to fear from Gazan challenge

The BBC’s decision not to broadcast an appeal for Gaza this week was unlawful, according to a firm of London solicitors.

Hickman & Rose have written the BBC a letter before action, warning the broadcaster of their plans to challenge its decision in the courts.

Yesterday, the BBC asked for two weeks to deal with the application for judicial review of its decision. The law firm agreed.

Hickman & Rose say they are acting for “two Gazans who have lost their homes and members of their families and are still awaiting aid, plus a client in the UK who has complained to the BBC over their refusal to air the DEC Gaza appeal”.

Their clients claim that the decision not to broadcast the appeal “is unlawful on the basis that it is ‘irrational’, meaning ... that no reasonable decision maker could reasonably have reached it”.

They also allege that “the decision has the perverse result of giving the appearance that the BBC is biased against civilians living in Gaza, and therefore not ‘impartial’, contrary to its very objective.

“It further attributes to those ‘on the other side’ [presumably those who supported the BBC’s decision] the view that they would not want humanitarian aid to reach civilians who are suffering.”

The two Gazans and the UK-based applicant are “also claiming that the BBC failed to consider whether the restriction was compatible with Article 10 of the European Convention on Human Rights, which includes a right to receive information; the BBC has not shown that the restriction was strictly necessary and proportionate to any legitimate aim”.

What are we to make of these arguments?

The first claim is based on irrationality, the classic ground on which the decision of a public body may be overturned. In my view, the BBC should have little trouble in seeing this off.

Mark Thompson, the Director General, has explained the reasoning behind his decision not to show the appeal. Clearly, the claimants are not impressed by his reasons. But it would be extraordinary if the courts were to substitute their editorial judgment for that of the BBC. Provided the BBC has reached its decision in a rational way, the courts will not interfere.

The next argument is not one for the courts. What impression the BBC gives is no concern of theirs. Still less are the judges concerned about the views the BBC is supposed to have imputed to those who supported its decision.

Finally, we come to the human rights argument. It is perfectly true that Article 10 includes the right to receive information as well as the right to impart it. And, as Hickman & Rose fairly acknowledge, this right is not an absolute one: it is subject to such restrictions as are necessary in a democratic society.

The two Gazans can hardly be complaining that they have been deprived of the right to see the appeal on television. In the normal course of events, they would not be watching domestic BBC broadcasts. Even if they were, homeless Gazans are unlikely to send international aid to themselves.

So we are left with the anonymous television viewer in Britain. I would be amazed if this viewer had not seen the broadcast on other television channels or downloaded it from the internet. Even if he or she watched only the BBC, the viewer would have received a huge amount of “information” about the appeal from the corporation’s news programmes.

Whether or not there is a “right” to information about a particular appeal — which I doubt — I am confident that this claimant has not been deprived of it. If the courts were to decide otherwise, we could all take the BBC to court for refusing to broadcast our favourite football matches.


Posted at 11:17 AM | Comments (0)

January 29, 2009

Would-be barrister tries too hard

Red faces all round at the Bar's magazine Counsel. Last month, it published a full-page display advertisement from a young man seeking pupillage at the Bar, an essential step for anyone wishing to practise as an independent barrister.

The advertisement was styled to look like a Wild West poster. Under a "wanted" slogan, it said the reward for offering Maney Ullah pupillage would be "experience, dedication, loyalty, commitment, tenacity".

That may be so, but the Bar Standards Board took a very dim view of Mr Ullah's inititive.

Inviting offers of pupillage in this way is "inappropriate", it says in this month's Counsel. Any chambers who made Mr Ullah a direct offer in response to the advertisement would be in breach of the rules and the pupillage would not be registered.

It's not easy for would-be barristers to get pupillage. But trying to buy your way in with an eye-catching advertisement is clearly not the done thing.

The magazine has promised it will not be accepting any such advertisements in future. It does not say whether Mr Ullah will be getting his money back.


Posted at 05:19 PM | Comments (0)

Britain’s military prosecutor will never ‘go native’

An interview with Bruce Houlder QC, the new Director of Service Prosecutions, forms the basis of my fortnightly column in today's Law Society Gazette.


Posted at 10:00 AM | Comments (0)

January 28, 2009

Setback for war crimes trial

A former Congolese child soldier withdrew his evidence against an alleged warlord today, throwing the first trial at the International Criminal Court into confusion.

The witness, whose name and age were not released, was the first witness in the case of Thomas Lubanga, who is charged with recruiting youngsters under age 15 and sending them into battle in the Ituri region of eastern Congo in 2002-2003.

After testifying in the morning that he was recruited by Lubanga’s militia as a small boy and taken to a training camp, he later changed his story.

Constantly under Lubanga’s glare from the accused sitting a few feet away, the youngster began displaying hesitation after less than an hour in the witness box.

Pressed by the prosecutor, Fatou Bensouda, on whether he had indeed attended a military training camp, he replied: “No.” Lubanga could not hide a smile.

Mrs Bensouda then sought a delay of the trial for an investigation overnight into “concerns the witness has about protective measures ... what happens after he gives his testimony and returns home.”

“We are convinced it has an effect on the testimony the witness is giving now,” she told the three judges who are trying Lubanga trial on charges of recruiting hundreds of children under 15 to fight in the Democratic Republic of Congo’s five-year civil war, which ended in 2003.

Sir Adrian Fulford, the presiding judge, granted the prosecution time “to find out whether something has happened that could destabilise ... the witness in such a way that he would deviate from the evidence.”

Until his change of mind, the witness had been giving testimony in Swahili from behind a screen to protect him from public view, although Lubanga, as well as the judge, prosecutors and defence lawyers could see him.

His voice and face were electronically distorted on screens in the public gallery and his name has been withheld for his protection.

Lubanga, 48, stared intently at the witness, who initially told the court that “Thomas Lubanga’s soldiers” had recruited him one day as he was walking home from school with friends.

“They had UPC uniforms ... and rifles,” he said, referring to Lubanga’s Union of Congolese Patriots.

“There were more of them than my friends and me together.”

● This account is based on news agency reports. A transcript of the day’s proceedings appeared here 48 hours after the hearing.



Posted at 10:43 PM | Comments (0)

January 27, 2009

Government backs down on secret inquests

The Government is willing to modify plans under which some inquests would be held in private, the Justice Minister Bridget Prentice said in an interview for the rozenberg.net website today.

Jack Straw, the Justice Secretary, is hoping to persuade his Cabinet colleagues that a judge — rather than a minister — should decide whether an inquest should be held without a jury.

Under clause 11 of the new Coroners and Justice Bill published this month, a Secretary of State would be able to “certify” a coroner’s investigation if the minister though it involved matters that should not be made public, and provided other conditions were met.

Unless the minister’s decision was so irrational as to satisfy the grounds for judicial review, the effect would be to transfer the inquest to a judge who would be required to exclude the press, public and relatives when “secure evidence” was being considered.

In practice, the decision to certify an inquest in this way would be taken by the Home Secretary or the Foreign Secretary.

During the Second Reading debate in the Commons yesterday, Mr Straw said several times that he would consider amendments to what he accepted was a “controversial” proposal.

Asked today whether the Government had any amendments in mind, Mrs Prentice told me: “You might argue that the Secretary of State should apply to the court for that certification, so that it is the High Court judge who would make the decision.” The judge would see the secure evidence, she suggested.

But before such an amendment could be accepted, there would need to be cross-government support. Mrs Prentice made it clear that neither Jacqui Smith nor David Miliband, the two Secretaries of State involved, had yet agreed to give up their powers under the Bill as currently drafted.

As I reported here when the Bill was published, secret inquests would not be confined to cases involving national security: they could be ordered merely “in order to protect the interests of ... preventing or detecting crime”. I suggested to the minister that this was an unnecessarily broad power.

“Again, I think that’s an area that is worthy of further debate,” she replied, adding that she would consider whether the power could be narrowed.

Mrs Prentice had previously promised that there would be no general reporting restrictions at inquests, subject only to a “narrow provision” to protect the families of UK special forces. But I put to her my concerns, first expressed here, that the Bill would still permit the coroner to ban disclosure of the deceased’s identity and any “other matter”.

“I’ll have to look at that again,” the minister conceded.

She recalled out that families bereaved by suicide had told her that reading about the inquest was a “doubly traumatic” experience for them. But surely it was now government policy that any restraints on reporting public inquest should be matters for media bodies and not for the courts?

“Perhaps that has been worded in that way because of the earlier conversations we have had with bereaved families,” Mrs Prentice suggested. “We’ll have to look at that again.”

Opposition parties have promised to vote against separate proposals in the Bill under which government departments would be allowed to share personal data — including medical records — with other departments and private companies. Had Mrs Prentice expected the Government to come under such sustained attack from the Tories and Liberal Democrats on the subject of data-sharing?

“I don’t think we were surprised but I’m a little bit disappointed because I do genuinely think that proper data-sharing is beneficial for the majority of people,” she told me. “Instead of having to go through endless bureaucratic hoops to get something sorted out, if that can be done through one gateway so much the better.”

But as Dominic Grieve, the shadow justice secretary, pointed out in the Commons yesterday, the British Medical Association believes her proposals would strip patients the right to control their medical records.

“I think that’s up for debate,” Mrs Prentice said.

Did she mean the Government might change its proposals?

“Again, we can look at whether it goes — whether some details could be excluded.”

And sharing with private bodies?

“Again, I think we have to look at whether the protections are sufficiently tight on that.”

Private companies already had access to some data, she explained. But ministers would have to ensure that the rules were “sufficiently robust” to ensure that data did not cascade from one department to another.

It is not unusual for Bills to be amended during their committee stage. But opposition parties may wonder why the Government is willing to “look again” at so many details of a flagship Bill, just a day after its main debate in the Commons.


Posted at 11:35 PM | Comments (0)

Perils of 'doing a pre-pack'

Tonight's Evening Standard column is about how insolvent businesses can carry on trading without paying some of their creditors.


Posted at 03:00 PM | Comments (0)

January 26, 2009

Lubanga pleads not guilty

The first defendant to stand trial before the International Criminal Court pleaded not guilty this morning to recruiting child soldiers and sending them to “kill, pillage and rape”.

Wearing a dark suit and red tie, Thomas Lubanga showed no emotion as his French lawyer, Catherine Mabille, said he denied using children under 15 as soldiers in the armed wing of his Union of Congolese Patriots political party in 2002-03.

The children still suffer the consequences of Lubanga’s crimes,” Luis Moreno-Ocampo, the prosecutor, told panel of three judges in The Hague. “They cannot forget what they suffered, what they saw, what they did.”

The case, which has been beset by difficulties in the past, opened on time. Sir Adrian Fulford, the British judge who is presiding over the trial, handled the proceedings smoothly even though some of the counsel seemed unfamiliar with the conventions that enable judges in England to know in advance who will address the court.

A feed of the trial, in English, is available here. This worked well during the morning. The video-stream, although low resolution, is adequate — except perhaps for maps, documents, and video evidence shown to the court. The audio feed — which in many ways is more important — is excellent. The proceedings are transmitted with a half-hour delay, allowing the court a measure of control over what may be broadcast.

Mr Moreno-Ocampo showed the judges a video recording of Lubanga at a training camp. The footage featured young men and children, some dressed in military fatigues, others in T-shirts and shorts. Another video showed a pickup full of heavily armed bodyguards, including at least two who appeared to be children, following Lubanga’s vehicle.

The prosecutor said children were abducted on the way to school or from sports fields. They were beaten and killed during training. Young girls were taken as “wives” by commanders.

“As soon as the girls’ breasts started to grow, Thomas Lubanga’s commanders could select them as their wives,” he said. “‘Wives’ is the wrong word. They were sexual slaves.”

Nine witnesses will be former child soldiers who will recount the horror of their military service, Mr Moreno-Ocampo said.

“They will come to confront past crimes and present prejudices, in particular within their communities,” he said. “It takes courage.”

This is the first international prosecution to feature the participation of victims. The first of a team of lawyers for 93 victims addressed the court before lunch.


Posted at 11:36 AM | Comments (0)

The dysfunctional Privy

In a report to be launched today by the campaign group Justice, Patrick O’Connor QC calls for the abolition of the Privy Council — or failing that, fundamental reform of this ancient body of advisers to the Sovereign.

Mr O’Connor is particularly critical of the government’s powers, exercised through the Privy Council, to issue orders in council under the Royal Prerogative. These orders, he says, were used to abolish the right of trade union membership at GCHQ, to exile Chagos islanders from their home on Diego Garcia and, more recently, to prevent those same islanders from returning.

Although prerogative orders in council have the effect of primary legislation, they are not subject to parliamentary scrutiny and do not require a minister’s certificate of compatibility with the European Convention on Human Rights.

Mr O’Connor describes the Privy Council as a dysfunctional body. “There is no rationale which can justify the eclectic range of its work. It currently ranges from being in part ‘synonymous with government’ to an independent court: from a forum for the monarch’s real remaining personal prerogative powers to a theatre for benign historic ceremonial.

“This has all arisen by historical accident, and has never been analysed rationally,” he says. “Do the charters of universities and professional associations have to be administered by the same body as produces the laws of Guernsey and proclaims bank holidays and our coinage? Does Parliament have to be dissolved by the same body as approves royal marriages, closes burial grounds and approves pensions for the marine personnel in Hong Kong?

“Does the same office have to support the government chief whips in both Houses of Parliament and deal with the affairs of the Institute of Plumbing and Heating Engineering and the Royal Caledonian Horticultural Society?”

The Privy Council can be traced back to the 13th century. All members of the Court of Appeal become privy counsellors and the honour is retained for life. In practice, however, it is members of the Cabinet of the day who attend its working meetings.


Posted at 12:01 AM | Comments (0)

January 25, 2009

Justice delayed is justice denied

The first trial at the International Criminal Court — which begins tomorrow — is likely to take “some months”, the court has announced.

A month or two would be reasonable. But prosecutors at The Hague have said privately that the trial of Thomas Lubanga will continue for nine months. That is far too long. The court simply does not have the resources to run trials at this sort of length.

Lubanaga is accused war crimes. He is said to have enlisted and conscripted children under the age of 15 years into the Forces patriotiques pour la libération du Congo, and used them to participate actively in hostilities in Ituri, a district of the Eastern Province of the Democratic Republic of the Congo, between September 2002 and August 2003.

The prosecution will call 34 witnesses, including some former child soldiers. Nineteen witnesses are expected to give evidence anonymously. Prosecution witnesses will be available for cross-examination. It is not known how many witnesses will be called by the defence.

It is hard enough to conduct a trial when everything spoken has to be translated into three languages. But the presiding judge should make his position very clear at the beginning of the trial. Sir Adrian Fulford should tell prosecuting and defence counsel that the court, not the parties, will decide how much time is devoted to oral evidence. That is not to say that any evidence should be rejected simply for reasons of time. But evidence does not have to be taken in full and in open court during the trial.

One option, of course, is for the court to rely — in whole or in part — on the written statements that witnesses have presumably made already. These could be used for repetitive or undisputed matters in which cross-examination cannot be justified.

Another, more interesting, option would be for witnesses to give their evidence orally to another judge at the International Criminal Court, one who is not taking part in the trial. This could take place in another courtroom while the main hearing was continuing, with junior lawyers from the prosecution and defence in attendance. The court's regulations envisage the possibility of "recorded evidence,including the transcripts and the audio- and video-record of evidence previously given": see regulation 54(i).

If parts of the evidence are contentious, the witness could be brought before the full court to be examined on those areas alone. Everything else would simply be reported in writing to the full court.

These are unusual steps. But they are necessary to prevent the case getting out of hand. If Sir Adrian establishes a brisk working method for this court’s first case, other trials will adopt similar procedures and the cause of international criminal justice will be strengthened immeasurably.


Posted at 11:16 AM | Comments (0)

Now where have I read this before?

I turn my hand to reviewing legal thrillers in today's Observer.


Posted at 08:28 AM | Comments (0)

January 24, 2009

Inquests to be even more secret than we thought

The government’s plans to authorise secret inquests, with press, public and relatives excluded, have come in for increasing criticism since I wrote about them here a few hours after the Coroners and Justice Bill was published.

In a briefing to MPs ahead of the Second Reading debate on Monday, the Bar Council says it should be for the judge appointed to conduct a certified inquest — and not the Secretary of State — to decide whether to hold all or part of it in private. That was my view too.

But I have now noticed a proposal that would allow all inquests to be held under a blanket of secrecy — not just those certified by a minster under the admittedly wide powers proposed in clause 11.

Let’s start with a Government paper called Sensitive reporting in coroners' courts — response to comments

This claims that, after extensive consultation, the Government has abandoned earlier plans to allow coroners to prevent publication of the deceased’s name.

“There will be no general provision on reporting restrictions in the coroners’ legislation,” it says.

“The legislation will, however, contain a narrow provision to protect the families of UK special forces deceased servicemen and women.”

This, says the Government, “repays the undertaking of confidentiality which these soldiers, and their families, give.”

Fair enough, one might say. And “families will, however, have the right to waive their anonymity if they wish”.

So where do we find this “narrow provision” in the Bill? It must be clause 34(2)(e). We can see that from the explanatory notes, paragraph 287.

They say: “Subsection (2)(e) would allow the senior coroner to direct that a person’s name should not be disclosed except to persons specified in the direction. It is intended that any provision made in rules will provide for this discretion to be used sparingly, for example during inquests into the deaths of UK special forces personnel or other investigations where witnesses need to remain anonymous to protect their safety.”

So it’s not just the special forces. That’s just an example. It’s any witnesses who “need to remain anonymous to protect their safety”. And where is the power to waive anonymity? And why all this woolly language about what “it’s intended” the rules will say?

Now let’s look at clause 34(2)(e) itself.

“Coroners rules may make ... provision for a senior coroner to have power to give a direction, in proceedings at an inquest, allowing or requiring a name or other matter not to be disclosed except to persons specified in the direction.”

No mention of special forces. No mention of witnesses who need to remain anonymous to protect their safety. The power is not even restricted to names. It would allow a rule banning disclosure of any “name or other matter”. And that, of course, could include the name of the deceased — which is exactly what the Government promised we would be able to report.

If ministers really intend this rule to be confined to special forces, they should say so on the face of the Bill. Otherwise, nobody will believe them.


Posted at 12:15 AM | Comments (0)

January 21, 2009

Bulgaria faces legal action over lawyers' ban

My column in the Evening Standard yesterday (sorry) reports attempts by EU law firms to make Bulgaria comply with European law.


Posted at 06:10 PM | Comments (0)

January 20, 2009

Newspaper faces double contempt charges

It must be something of a record for a newspaper to be accused twice in one day of being in contempt of court. But that, in effect, is what happened to The Times today.

The first case involved a story published in December 2007, anonymously reporting comments made by two jurors who had expressed the view that a childminder had been wrongly convicted of manslaughter.

Two judges gave Baroness Scotland, the Attorney General, permission to bring contempt of court proceedings against Times Newspapers Ltd and the jury foreman, Mike Seckerson.

Lord Justice Maurice Kay said: “We don't think this is the very gravest case of jury indiscretion. Nevertheless we grant permission.”

Lady Scotland's counsel, Philip Havers QC, had told the High Court that the article “breaches the absolute rule against disclosing the essential secrets of the jury room”.

He said it had revealed the voting intentions of jury members and disclosed their reasoning.

Section 8 of the Contempt of Court Act 1981 makes it a contempt of court to “obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

In the second case, Mr Justice Ouseley referred an article published in The Times last Saturday to Lady Scotland “for her urgent and serious consideration”.

The judge had presided over a murder trial at the Old Bailey that was was held partly in secret. On Friday, Wang Yam, a Chinese conman, was convicted of murdering Allan Chappelow, a reclusive author, in an attempt to steal from his bank accounts.

During the trial, Mr Justice Ouseley had made a number of orders under section 11 of the Contempt of Court Act, which allows a court to ban publication of evidence withheld from the public.

After Yam was convicted, the judge said that “speculation as to what was said in camera would be regarded as a significant attempted contempt of court”.

Today, Mr Justice Ouseley added that “repetition of the Times article, in any publication of this statement, may equally therefore be a contempt of court”.

He explained that the orders, made to protect national security and the administration of justice, would continue in force. “The Court of Appeal confirmed that without such orders no trial of Wang Yam for the murder of Allan Chappelow would have been possible.”

It will be for Lady Scotland to decide whether to bring proceedings against The Times over the report last week. The newspaper and its legal editor Frances Gibb — whose by-line appeared on both articles — are expected to contest the allegations vigorously.


Posted at 11:45 PM | Comments (0)

Human Rights: don't hold your breath

"I was reflecting overnight on the development of the law of equity," Jack Straw said this afternoon.

The remark struck me as entirely appropriate for a Lord Chancellor to make, since it was his predecessors who developed the law of equity half a millennium ago to soften some of the rough edges of the common law.

Mr Straw told the Joint Parliamentary Human Rights Committee that he was hoping to do something similar for the Human Rights Act with his proposed Bill of Rights and Responsibilities. There could be "maxims of rights and responsibilities".

But don't hold your breath. The next step will be a Green Paper. That won't be published much before Easter, his ministerial colleague Michael Wills told the committee.

As for legislation, the most there will be is a draft Bill. We will not see legislation enacted this side of a General Election, Mr Straw explained.

And who knows what will happen after that?


Posted at 04:59 PM | Comments (0)

January 18, 2009

Sudan prosecutor accused of political posturing

The International Criminal Court is gearing up for its first trial, due to start in a week’s time. It will be a historic moment.

I have written many times about the case of Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo accused of conscripting children under 15 to kill and rape.

I hope the case proceeds as planned. The prosecutor, Luis Moreno-Ocampo, has promised that he will call “only” 31 witnesses.

Meanwhile, what of Mr Moreno-Ocampo’s controversial attempt to indict the president of Sudan on 10 charges of genocide, crimes against humanity and war crimes? He announced this last July.

In a report to the UN Security Council nearly two months ago, Mr Moreno-Ocampo predicted that: “The judges will rule shortly on the prosecution request for an arrest warrant.”

His confident assumption that there would be a decision “shortly” seemed to be based on the fact that he had recently submitted the further evidence requested by the trial chamber.

He presumably thought a decision on the Bashir case could be taken separately from an application he made on November 20 for the arrest of rebel commanders in Sudan. This cannot be resolved until Mr Moreno-Ocampo submits more evidence requested by the court; he has until January 26 to do so.

Last week, there was a new development that could delay the application for President Bashir’s arrest further, if not derail it completely.

A hefty submission arrived at the court, asking the pre-trial chamber not to issue warrants against President Bashir or the rebel commanders “on grounds that

• issuing such warrants would have grave implications for the peace building process in Sudan and that deference must be given to considerations of national interest and security;

• that the interests of justice will not be served particularly in light of the prosecutor’s conduct in bringing these applications;

• that such warrants could entrench the negative perceptions of the International Criminal Court and thus contribute to a deterioration of the situation in Sudan; and

• that alternative means of transitional justice and resolution are being and will be pursued without the need for any consideration of involvement of the International Criminal Court at this stage."

The submission last week was lodged on behalf of two citizens’ organisations in the Sudan.

One of these is said to represent some two million trade union members in Sudan. The other is an ad-hoc committee called the Sudan International Defence Group, which has gathered more than a million signatures to a petition opposing the arrest of President Bashir.

The application says that these Sudanese are supported by the tribal leaders of the Fur, Masalit and Zaghawa tribes of Darfur, groupings which are alleged by the prosecutor to be the president’s victims.

All these applicants are represented by Sir Geoffrey Nice QC, the English barrister who prosecuted Slobodan Milosevic at the war crimes tribunal for the former Yugoslavia.

Any submission that bears Sir Geoffrey's name carries great weight. It is therefore particularly gratifying to find that he cites two articles of mine in his 500 pages of supporting evidence. The first of these reported that sexual misconduct allegations against Mr Moreno-Ocampo had been dismissed as manifestly unfounded although the prosecutor had been held personally responsible for a breach of due process. The second reported suggestions, as Sir Geoffrey put it, that the prosecutor might “have made the genocide charges [against President Bashir] public to divert attention away from the publicity surrounding the finding against him of a breach of due process.”

Summing up their case, Sir Geoffrey and his junior counsel Rodney Dixon say: “The applicants have been driven to make this application out of a genuine concern for preserving the intricate web of peace agreements in Sudan without which the country may be set back immeasurably. They hold firmly to the view that there cannot be indifference to the highly detrimental consequences of arrest warrants in the particular circumstances that face their nation at this point in its development towards a peaceful democracy.

“The applicants ask that their submissions are heard and seriously considered, based as they are on reliable external, informed and researched opinion together with reliable ‘local’ opinion reflecting and supported by the broadest spectrum of public opinion within Sudan.”

It is clear that the application is based on politics as much as it is on law — if not more so. But, say the the applicants, so is Mr Moreno-Ocampo’s application for an arrest warrant.

“The prosecutor’s extraordinary political posturing over this particular application of his makes it appropriate to have in mind all aspects of the political background,” the application says.

“In the same vein, the pre-trial chamber may be aware in general terms of arguments to the effect that reality in Darfur is very different from how it is portrayed in the Western press, that the underlying issue could be Sudan’s mineral wealth and oil and which great power should get access to it, and that insincere political objectives lie behind the general characterisation of the crisis as a genocide.”

It is on that basis that the applicants argue that they have a right to be heard.

“Given that he [Mr Moreno-Ocampo] has engaged in substantial international campaigning on all these issues... the applicants ask the pre-trial chamber to find that it is entirely appropriate that their application be considered at this stage, contemplated as it is by rule 103 of the ICC rules even if not expressly provided for in the procedures for the issue of a warrant of arrest pursuant to article 58 of the ICC statute.”

Rule 103 says, in part: “At any stage of the proceedings, a chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a state, organisation or person to submit, in writing or orally, any observation on any issue that the chamber deems appropriate.”

The applicants point out that this rule does not exclude submissions being accepted in proceedings concerned with the application for arrest warrants.

“Moreover, the actions of the ICC prosecutor should be considered beside the reality that assertions in his (public redacted) application to the court for the issue of an arrest warrant against President Bashir have been highlighted as being inaccurate and false.

“There has, in particular, been widespread scepticism about charging genocide. All of the above point to the need for heightened scrutiny of the prosecutor’s applications, as already suggested, and the importance of taking into account the applicants’ submissions.”

Sir Geoffrey maintains that “the terms of rule 103 are broadly couched to permit the chamber to receive submissions at any stage of the proceedings, including applications for arrest warrants, providing that such submissions could assist in the proper determination of the matter before the chamber.”

He argues that the court should arrange a public hearing at which the citizens’ organisations may argue their case and the prosecutor may respond.

An application of this nature is unprecedented. But so is an application for the arrest of a serving head of state. And so too is the behaviour of Mr Moreno-Ocampo in making public speeches that assume President Bashir’s guilt.

As Sir Geoffrey says, “in many or most domestic jurisdictions for a prosecutor to announce as conclusions facts that he wants to prove in the way done here would contravene various rights and be unacceptable for reasons of possible contempt of court or on grounds of privacy or defamation.”

In my view, the pre-trial chamber should treat this application with the utmost seriousness. It may be that to treat this application in the way that Sir Geoffrey seeks would be to taint with politics what should ultimately be a legal process. But it would be idle to pretend that politics plays no part in international justice.


Posted at 08:36 PM | Comments (0)

Provocation and diminished responsibility

I have been looking at clauses 39 to 42 of the Coroners and Justice Bill, which deal with provocation and diminished responsibility. These are partial defences to murder, in the sense that — once established — they reduce a murder conviction to one for manslaughter.

The only significance of this distinction, of course, is that life imprisonment is the mandatory sentence for murder but not for manslaughter.

Though the clauses are well drafted, the concepts they embrace are complex. You would not have to suffer from diminished responsibility to find them hard to understand. And anyone who suspects they may be provoked into a killing will not find these clauses either calming or comprehensible.

Just to give you an idea, let me quote part of clause 41(1). A person who kills — let’s call him D — is to be convicted of manslaughter rather than murder if

(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

All these concepts are further defined in the Bill. A qualifying trigger may be a fear of violence. And what’s important is that the loss of self-control no longer has to be sudden. That’s because it’s thought that the existing defence favours men; women are said to lose self-control more slowly.

If you really want to understand what the change will mean, start by reading clauses 41 and 42. Then look at the explanatory notes attached to the Bill.

These say “it will remain open, as at present, for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing”.

So women who wait a long time before killing an abusive partner may be convicted of murder after all.

The next thing you should do in your quest to understand all this is to look at a fuller document published by the Government at the same time as the Bill. This summarises comments on an earlier draft and explains why the Government has made minor amendments.

“We continue to believe,” the Government says, “that the right approach is to retain the requirement for control to have been lost but to remove the requirement for the loss to have been ‘sudden’ to make plain that situations where the defendant’s reaction has been delayed or builds gradually are not excluded.

“However, we acknowledge the concerns that ‘suddenness’ could be read back into the law and therefore have decided to put the matter beyond doubt on the face of the statute. We also do not believe that it will be a bar to the partial defence applying in deserving cases of long-term abuse.”

The comments paper discloses that “a number of academic lawyers, legal practitioners and lobby groups” pointed out that the Government could have saved itself a great deal of time and trouble if it had simply abolished the automatic sentence of life imprisonment for murder. This would “allow mitigating features of homicide cases to be dealt with more easily without resorting to ‘gateways’ through which a defendant can escape a murder conviction in deserving but not undeserving cases”.

I agree. Whether a killing was murder or manslaughter would not matter if the judge was not bound to pass a sentence that is both misleading and misunderstood.

But ministers are unmoved. “The penalty for murder is an essential element in maintaining public confidence in the justice system which this government will maintain,” they say.

Really? Aren’t ministers undermining that element by extending the scope of manslaughter? If you extend the partial defence of provocation, people who would otherwise have been concvicted of murder will escape a mandatory life sentence when they are found guilty of mere mnsalaughter in future.

And changing the law might lead to a more proportionate level of sentencing in murder cases, too. Anything but the most straightforward murder now attracts a minimum term in the region of 30 years, equivalent to a 60-year fixed sentence for any other offence.

But nobody seems to understand this — least of all the sort of armed robbers who kill shopkeepers and those protecting them.

So the Government has the worst of both worlds: sentences that are too high to be fair and too obscure to deter. Surely there must be a better way?


Posted at 04:37 PM | Comments (0)

January 16, 2009

Our homes should be our castles, Lord Judge tells burglars

A splendidly robust judgment from the Lord Chief Justice this morning supports lengthy sentences for burglars who violate the tranquillity of people’s homes.

Lord Judge, speaking for the Court of Appeal, said that domestic burglaries were not only an offence against property but also an offence against the person.

Quoting the 17th century judge Sir Edward Coke, Lord Judge said our homes should be our “safest refuge”.

He added: “There is a longstanding, almost intuitive belief that our homes should be our castles.

“Something precious is violated by burglary of a home and those who perpetrate this crime should be sentenced and punished accordingly.”

Despite this, last October a part-time judge in Leicester had misunderstood previous guidance and decided he could not sentence a man to prison for four domestic burglaries.

But burglary of a home was always a serious criminal offence, said Lord Judge, sitting with Lords Justices Latham and Hughes. The court upheld prison sentences in six separate cases.

In one of them, Colin Rocky McPhee, 25, had been sentenced to five years for tricking his way into the home of an 89-year-old man in Middlesbrough after midnight, even though McPhee found nothing to take. The occupant, a wheelchair user, thought the call was from a concerned neighbour.

“We pose the simple question,” the judges said: “What emotions will this victim experience every time a helpful neighbour rings his door bell in order to offer help and assistance?

“The answer is obvious. He will never forget the occasion when he was helpless while a burglar rummaged around his bedroom. The sentence was intended to protect the vulnerable from this predatory offender.

“We acknowledge that the sentence was severe, but it was not manifestly excessive.”

Some of the court’s comments are worth quoting in full.

“Where goods of slight economic but significant sentimental value are taken or damaged the impact on the victim is likely to be high, not least because these objects are irreplaceable. A photograph is worth nothing, except to the person who owns it, but it may be the only image left of grandparents, or now deceased parents.

“The loss or destruction of letters written in the early days of courtship may distress the widow or widower who has lost them far more than the disappearance of valuable electrical equipment.

“The presence of the victim at home in bed at night while the burglary occurs may well occasion especial trauma certainly if woken by the burglar, and even more so if he or she sees, or, worse, is confronted by the burglar. In these circumstances it would be unrealistic to regard the victim’s presence at home during a night-time burglary as merely a medium-level aggravating feature.

“The same may apply when the householder is at home during the daytime when a forced entry takes place, particularly if the homeowner is someone on his or her own, or someone who by himself or herself is caring for children or the elderly. Such a burglary is likely to cause considerable alarm and distress, and, often perhaps overlooked, while it is taking place, uncertainty about what to do and great fear about what may lie ahead.

“To all this we would of course add the particular effect on the elderly and infirm, whose last years can be overshadowed by what sometimes becomes an ever present, pervading fear and constant nervousness. Many warm and happy memories of bygone years can be destroyed as a direct consequence of burglary, and for some indeed, their home becomes something of a prison, as they barricade themselves behind the security arrangements they believe they need.”

Setting guidelines for future cases, the court acknowledged that there would be “low-level burglaries, with minimal loss and damage, and without raised culpability or impact, which may be dealt with by some form of punishment in the community rather than an immediate custodial penalty”.

But any domestic burglary with aggravated features — such as force, trauma to the victim, pre-mediation, vandalism, vulnerability and high-value or sentimental property — should normally attract a custodial sentence, beginning at nine to 18 months.


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January 15, 2009

Why solicitors don't become High Court judges

This link will take you to my column in today's Law Society Gazette.


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Drunk as a Lord?

The Law Commission has just produced a useful report called Intoxication and Criminal Liability.

As the Government’s law reform advisers point out, many crimes are committed while the offender is under the influence of alcohol or other drugs. I suspect that the figures are going up.

Though there is nothing particularly wrong with the courts’ approach to intoxication, the law is unclear and difficult to apply. That is because it is common law, laid down by judges over the past 150 years.

I won’t try to explain why the law is so confusing. Suffice it to say that liability depends on whether a particular offence is one of “specific intent” or “basic intent”.

So the Law Commission has come up with a new draft Bill, listing the states of mind to which self-induced intoxication would be relevant.

The trouble with this is that successive governments have never been very interested. The Law Commission made similar proposals as long ago as 1995, though the new proposals are a little crisper.

Prof Jeremy Horder is the Law Commissioner responsible for today’s report. I asked him why he thought the Government should devote scarce Parliamentary time to implementing his recommendations.

“There is always going to be a risk that the Court of Appeal or House of Lords will decide to ‘go a bit softer’ on crime — if one can use that phrase — in one of these areas.

“So far, the courts have not wavered much; they have taken a robust approach. But it’s not beyond the bounds of possibility that the House of Lords would take a more generous approach, of the kind that is taken in some jurisdictions.”

In Prof Horder’s view, the appeal courts might respond to a rise in the prison population by relaxing the rules and allowing more people to use intoxication as a defence. Ministers should press on with legislation.

“Do this now and you may rest assured that, whatever may happen, this essentially sound and sensible set of rules will prevail. It’s always dangerous to leave such important matters to the House of Lords — because they may get it wrong.”


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January 14, 2009

Ministers will order judges to exclude reporters from inquests

The Home Secretary will be able to order High Court judges to exclude the press and public from a breathtakingly wide range of inquests under proposals published today.

Clause 11(2) of the Coroners and Justice Bill would allow a Secretary of State to “certify” an investigation if of the opinion that it should not be made public “in order to protect the interests of ... preventing or detecting crime”.

Although the power is subject to judicial review, it would cover almost any inquest. Most unnatural deaths result from actions that could involve crimes.

Once an inquest has been certified in this way, the coroner is to be excluded and the death is to be investigated by a High Court judge. If the judge decides to hold an inquest, clause 11(6) says that he or she must sit without a jury.

The Bill would allow the Home Secretary to certify an investigation even if a jury has already begun hearing the evidence. That jury would then be discharged.

Clause 11 says nothing about excluding the press and public. For that, we must turn to clause 34. This allows rules to be made regulating procedures at inquests.

Clause 34(4) says: “Coroners rules may make provision requiring a person holding an inquest that has to be held without a jury because of section 11(6) to give a direction excluding persons, except those of a prescribed description, from all or part of the inquest.”

That “person holding an inquest that has to be held without a jury because of section 11(6)” is a High Court judge. The judge may therefore be required to exclude everyone — except those specified in the rules — from the inquest.

Those rules will not be published before the Bill is enacted. But we can be confident that they will not include press and public among those entitled to attend such inquests. They may not include relatives — or even the relatives’ lawyers.

Note carefully the word “require”. The High Court judge will have no discretion. If he or she lets a trusted reporter in, it is the judge who will be breaking the law.

Surely, the whole point of appointing someone as senior as a High Court judge is to ensure that the right answers are given to difficult questions. Don’t we trust High Court judges to decide whether it is safe to hold an inquest in public? Not if we are the Government, it seems.


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Coroners and Justice Bill

The Coroners and Justice Bill, published today, is a huge portmanteau measure, running to 162 clauses and 232 printed pages.

I am about to start wading through it. In the meantime, I have put together this summary from notes published by the Government.

Part 1 deals with coroners. Its main elements are:

* Creation of a new national coroner service, led by a new Chief Coroner, moving towards whole-time coroners working within flexible jurisdictions and to national minimum standards, with powers to commission non-invasive post-mortems where appropriate, and complying with a charter of services for bereaved families; and

* Creation of a new system of secondary certification of deaths that are not referred to the coroner, covering both burials and cremations.

Part 2, which covers homicide, deals with:

* Abolishing the existing partial defence of provocation and replacing it with two new partial defences of killing in response to a fear of serious violence, and killing in response to words or conduct which caused the defendant to have a justifiable sense of being seriously wronged;

* Modernising the partial defence of diminished responsibility based on the concept of a "recognised medical condition";

* Clarifying the offence of infanticide;

* Simplifying and modernising the offence of assisting suicide.

Part 2 also amends the law on prohibited images of children. In addition, it deals with conspiracy, and hatred on grounds of sexual orientation.

Part 3 re-enacts the provisions of the emergency Criminal Evidence (Witness Anonymity) Act 2008 so that the courts may continue to grant anonymity to vulnerable or intimidated witnesses where this is consistent with a defendant's right to a fair trial.

This part of the Bill also allows courts to grant Investigative Witness Anonymity Orders in certain gun and knife crime cases. It also extends the use of special measures in criminal proceedings (such as the use of live video links and screens around the witness box) so that vulnerable and intimidated witnesses can give their best evidence.

Part 4 deals with sentencing. It

* Establishes a new Sentencing Council for England and Wales, in place of the Sentencing Guidelines Council, with a strengthened remit to promote consistency in sentencing practice;

* Enables the courts to pass an indeterminate sentence for public protection for certain terrorist offences; and

* Prevents criminals from profiting from books and other publications about their crimes through the introduction of a civil recovery scheme.

The remainder of the Bill includes:

* Amendments to the Data Protection Act to strengthen the inspection powers of the Information Commissioner and to remove barriers to the sharing of information where this is a strong public interest in doing so; and

* Amendments to sentencing and other legislation to support implementation of the Framework Decision on taking about of convictions in the Member States of the European Union in the course of new criminal proceedings.

There is more, much more.


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January 13, 2009

Battle lines are drawn up as recession bolsters corruption

This link will take you to my weekly column on the business pages of the London Evening Standard.

Readers may also care to know that -- alongside Sir Charles Gray and Desmond Browne QC -- I shall be contributing to tomorrow's Unreliable Evidence, presented by Clive Anderson on Radio 4 at 8.00 pm. The programme, about privacy, will be repeated next Saturday night but you can listen to it at any time during the week after transmission by going to the Radio 4 website.


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January 09, 2009

Human Rights Act: a victims’ charter

Victims of crime have benefitted from the Human Rights Act, the Director of Public Prosecutions said this morning.

Keir Starmer QC was holding his first press briefing since taking up his appointment two months ago as head of the Crown Prosecution Service.

He said that respect for human rights should be at the heart of a modern, transparent prosecution service. The rights “particularly in play” were those of victims, the defendants and the public — who were entitled to know, through the media, what was going on.

“It is clear that victims have the right to have alleged offences thoroughly investigated and, where appropriate, prosecuted effectively,” Mr Starmer said.

But it had been much harder to enforce those rights under common law before the Act took effect in 2000, he explained. The rights of victims to have alleged offences investigated thoroughly came from human rights jurisprudence.

“Under the common law, it was much more difficult to argue that the victim had the right to an investigation. Under the Human Rights Act, that’s an argument that’s available. And people overlook that.”

Those people, presumably, include MPs who argue that that the Human Rights Act is biased in favour of defendants.

In Mr Starmer’s view, the 1998 Act was a “constitutional instrument of the first importance”. Abolishing it would leave victims of crime worse off.


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January 07, 2009

High Court judges not 'fustian', says Lord Judge

High Court judges are no longer elderly and old-fashioned, the Lord Chief Justice said today. Lord Judge was introducing new research into the reasons that some highly-qualified candidates do not seek judicial appointments.

He summarised one of these as “a general concern about working in an old-fashioned, fustian atmosphere, with old-fashioned, fustian colleagues”.

Leaving aside the quibble about Lord Judge’s chosen adjective — I would have written “fusty”, which has a different etymology — he makes an important point.

“High Court judges are, in the main, in their fifties and sixties, with a sprinkling of new judges still in their forties and a very small number of older judges in their early seventies”.

And the job is not as solitary as some may imagine. “One of the most striking features of this apparently disparate group of independent-minded individuals is the warm collegiate support that they offer to each other,” Lord Judge said.

Another disincentive identified in the research by Prof Dame Hazel Genn was the requirement for High Court judges to sit “on circuit” outside London. The requirement does not apply to those appointed to the Chancery Division, who have traditionally not been regarded as capable of trying criminal cases.

But the system for circuit visits is extremely flexible, the Lord Chief Justice insisted. Exceptions are made for those with sole responsibility for young children or elderly parents.

“In practice, those who expect to dislike circuit visits often find, after appointment, that it is far more enjoyable and less disruptive than they had feared,” Lord Judge explained. “It is a matter of regret to me and my colleagues on the Judicial Executive Board that the perceptions of life on circuit reflect what happened years ago.”

Dame Hazel, professor of socio-legal studies at University College London, interviewed six recently-appointed High Court judges and 29 senior lawyers. Of the practitioners, 21 were barristers and all but two of them were QCs. The remaining eight people interviewed were senior solicitors in the big “magic circle” firms.

Initial respondents recommended other interviewees to produce a so-called “snowball sample” — no good for statistical analysis but very useful if you are trying to understand a particular group of people.

Most of the practitioners had no immediate intention of applying for judicial appointment and thought it unlikely they would apply in the future. Their reasons, roughly in order of frequency, were:

• Less challenging work or unfamiliar areas of law as a judge; and less control of one’s workload than when a practitioner

• Need to spend time away from home “on circuit”; combined with formal environment of judges’ lodgings

• Cut in salary from £500,000 or more to £165,900; often when there were young children to support from a second marriage

• Loss of autonomy in deciding working hours

• Preference for advocacy rather than decision-making, despite a willingness to give robust advice to clients

• Temperament more suited to the Bar than Bench

• Isolation from former colleagues and lack of support.

These were neatly encapsulated, Dame Hazel concluded, in the reasons given by four QCs who had turned down judicial appointments in the days when all that was required was a proverbial "tap on the shoulder" by the Lord Chancellor.

Case 1: Female silk
“I have no interest in full-time appointment. It is the conditions of service. Five-fold reduction in income. Less control over professional life and I would feel bound to go on Circuit. It would involve being away. I have young children and I am not willing to do that. I’m married and I like to have dinner with my husband and friends rather than talk to a load of High Court judges. And also the social milieu. I’ve sat as a Deputy and I don’t find the High Court encouraging of collegial enterprise… The hours of service are also an issue. 60-70 hours. That is similar to me, but I feel I have a choice and feel very well rewarded for what I do. But judges have a huge workload and other activities. I can take a week off if I want to. The loss of autonomy and flexibility is an issue… There is no guarantee that you would get to the Court of Appeal. The idea of spending the next 15 years of my life being a High Court judge doing rubbish work is frankly too depressing to contemplate... [The Lord Chancellor] tapped me on the shoulder when I was 45... If I had had no family at all my sense of public duty might make me do it. But when you see the reality of what you have to do on the High Court Bench – work like a dog, lots of extra-curricular stuff and administration…”

Case 2: Female silk
“I found being an assistant recorder awful. I decided it was a nightmare. During my two week sitting it became completely obvious that I was not suited to the role. I am not very judgmental. I can always see the other side. I didn’t enjoy the work. I really, really didn’t enjoy it. I am happy giving really strong advice in my practice, but I did not enjoy judging. Also, I hated not knowing about criminal law and having to sit. A few years later, I was asked if I wanted to be a High Court judge and I said ‘No’. Then [the Permanent Secretary to the Lord Chancellor] asked me to go and see him. He wanted to check and asked me to reconsider. I would have had
to go on Circuit and that for me was non-negotiable… I couldn’t possibly have gone on Circuit. I wanted to be at home. Nothing has happened since to make me regret my decision. Money didn’t come into it at all. It wasn’t a factor.”

Case 3: Male silk
“I was offered the High Court by [the Lord Chancellor] and I said ‘not yet’ and I have never found a ‘yet’. At the time, I didn’t feel I could afford the High Court. I had young children at private school. And it would be the QB and I had no great love of the idea of going out on Circuit… I don’t like being away from home to be honest. I don’t want to be away from my wife… It would help if you could negotiate Circuit. I hear that judges on Circuit are now being put up in hotels. Having to live in a hotel is appalling beyond belief. Hotel life is hateful. I don’t think policy people understand this… I’ve enjoyed my practice hugely. The life of a High Court judge doesn’t strike me as hugely attractive. Lots of boring stuff. Procedural stuff. Litigants in person… And you are no longer your own master. I have quite a bit of control and if a case settles, I take time off. In the High Court, if a case settles they give you the next one… It is a more rackety life at the Bar. The obvious attraction of the Bench would be a regular salary and pension, but I have already provided for my pension so that is not vital for me, but it is for some people.”

Case 4: Male silk
“My shoulder was tapped and I said ‘No, not for the moment’. I said ‘No’ because I was still enjoying the Bar. You should not take on the job of judge unless you are absolutely sure that’s what you want to do… If you’ve got friends who are judges, you should know what’s expected. I didn’t feel at that stage I wanted to do it. I didn’t want to give up the Bar. I didn’t want a full-time judicial appointment. What most of us enjoy, if we are lucky enough to be a senior silk, is that we are very well paid; we have interesting jobs; we do a variety of things and life is much more flexible. If you finish a big case, you can take a breather. And if I’m not in court and something interesting is happening at home – like going to watch a child play football – I can do that. I like the flexibility and the autonomy. I declined the offer of appointment. I said ‘not yet’. I might do it, but I am not 100 per cent sure. Ignoring the money, as long as I’m enjoying the Bar and the challenges and the freedom, I am not sure I want to have to give that up. You get boring cases as a barrister and as a judge. But it’s about being an employee.”


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January 06, 2009

Lawyers in hunt for firms that use pirated software

Readers may not know that I write a column for the business pages of the London Evening Standard every Tuesday. You can read this week's column here.


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January 01, 2009

2009: A Law Odyssey

The only thing we can predict with any certainty about legal developments in 2009 is that they will be unpredictable. But informed guesses are always worth a try at this time of year — even if they may offer a hostage to fortune. So here goes.

Although the recession is likely to generate more insolvency and restructuring work, I fear that plenty of lawyers will lose their jobs in the next 12 months. Now is not the time to be a conveyancer — either residential or commercial — or to specialise in mergers and acquisitions.

The big City practices work on the assumption that their partners and associates will leave on a fairly steady basis, taking up jobs in industry or joining other firms. That has not been happening recently. But the reduction in work is no reason to freeze recruitment, provided partners are prepared to accept lower earnings for a while.

Those who run these firms are old enough to remember the last recession. One told me recently that it would be disastrous to stop taking trainees. That would leave the firm without a generation of new associate solicitors in two or three years’ time, just as the economy was beginning to pick up.

Looking further afield, the world’s first permanent international criminal court should begin its first trial this month. Note my use of the word “should”. I see I reported three years ago that Luis Moreno-Ocampo, prosecutor at the International Criminal Court, was confident that the first trial would begin in 2006.

This was not to be. As I disclosed last June and explained in subsequent reports, Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo, was very nearly released last year because of Mr Moreno-Ocampo’s failure to let the defendant’s lawyers see potentially exculpatory evidence.

After the prosecutor had finally complied with his legal obligations, the trial was rescheduled to begin this month. But then, as I reported just before Christmas, Ekkehard Withopf, the senior trial lawyer who had worked on the Lubanga prosecution for more than four years, was taken off the case by Mr Moreno-Ocampo. There is no suggestion that this had anything to do with the quality of Mr Withopf’s work and he remains employed at the court. But it puts the remaining prosecutors at a considerable disadvantage.

We are told that the Lubanga prosecution will now be led by Fatou Bensouda, Mr Moreno-Ocampo’s deputy. An expert in international maritime law from The Gambia, Mrs Bensouda ran a bank there after serving in many of her country’s leading prosecutorial and government posts. Immediately before joining the International Criminal Court she was senior legal advisor at the International Criminal Tribunal for Rwanda.

It will be interesting to see how Mrs Bensouda gets on as an advocate when she appears before Sir Adrian Fulford, the non-nonsense Old Bailey judge who is to preside over Lubanga’s trial. There were rumours in The Hague that Mr Moreno-Ocampo wanted the distinguished London-based lawyer Sir Desmond de Silva QC to take Mr Withopf’s place in the prosecution team. But Sir Desmond told me before Christmas that he had not been approached. If he had been offered the brief, he would have requested a substantial adjournment to prepare for the trial.

I am sure the court would not have granted it. For one thing, the defendant has spent nearly three years on remand in The Hague, preceded by a year’s detention in Kampala. For another, in order to take on the Lubanga trial Sir Adrian has had to give up an appointment that would have enhanced his position in the English judiciary: he was to have started today as a presiding judge in the South-Eastern Circuit.

So if Mrs Bensouda is not now in a position to prove her case, the defendant will have to be acquitted. For more than a decade, the international community has devoted huge amounts of work and more than a little money into establishing the International Criminal Court. Its reputation now rests on the shoulders of one woman.

Back home again, spring should see the first shoots in the restructured legal profession of England and Wales. By April, the Law Society is expecting to see the creation of so-called legal disciplinary practices — including barristers, other lawyers and up to 25% of non-lawyers offering ancillary services.

In itself, this is unlikely to have a huge impact on legal services — not least because of the recession. The real Big Bang in the legal profession will not come until licences are granted, probably in three years’ time, to what will be called alternative business structures. Non-lawyers will be allowed to invest in law firms for the first time and we may see legal practices floated on the Stock Exchange.

On October 1, the House of Lords will cease to be the final court of appeal for most of the United Kingdom. All but three of the current law lords, together with some new recruits, are to troop across Parliament Square and become the first justices of the Supreme Court.

How much difference this will make in practice is a matter of lively debate. Logically, there should be no change in the new court’s role and functions. But the life of the law is not always logical. I discussed the changes with two of the new judges in an interview that you can read here.

The most intriguing question for 2009 is whether it will mark the publication of Lord Saville’s report into the Bloody Sunday shootings.The law lord finished taking evidence from all but a handful of witnesses in February 2004 and heard closing speeches in November of that year. He made it clear at the time that he planned to submit his report to the Government in the summer of 2005. Last year, he told surviving relatives of those killed in 1972 that the inquiry team was not likely to publish its report before the autumn of 2009. But I wouldn’t hold your breath.

Also in the spring, we can expect the family courts to be opened to “accredited reporters”, subject only to anonymity provisions. As I explained in a commentary last month, I have concerns about this concept: government officials should not have the final say over who is a journalist.

And this raises some important questions in which I have more than a passing interest. I have had the misfortune to have been the last full-time, legally-qualified legal correspondent employed by both the BBC and The Daily Telegraph. There is now less coverage and analysis of law, politics and other demanding topics in the mainstream media than there was even a decade ago. Some titles are under threat.

In recent years we have seen the creation of an impressive trade press, chronicling the success or otherwise of lawyers and their practices. But the serious general reader looking for rigorous reporting has had to turn to the internet. As newspapers have shrunk, their on-line coverage has expanded.

Although this may not been immediately obvious to readers of my former website, none of the stories and commentaries I published on the Telegraph on-line law page between September 2008 and the end of that year appeared in print. A version of the piece you are reading now was the last that I wrote for the Telegraph website: the publishing group told me last month that it would be terminating my contract from the beginning of January.

However, I intend to resume writing, before long, on this website — www.rozenberg.net — unless, of course, somebody makes me a better offer in the meantime.

I regard this as journalism rather than blogging, and not just because I would like to retain such journalistic credentials as a Parliamentary pass and access to the family courts. According to my definition, blogging consists largely of opinion whereas journalism is primarily about news.

And blogging is also a way of by-passing the normal constraints of journalism. For example, it is now possible for the courts to issue an injunction which bans any public reference to its existence. I cannot tell you whether I have ever seen such an injunction — or at least, one that may still be in force — because to do so would be to breach it.

But a very well-read blogger has recently done just this. If I were to link to that blogger’s website, I would be at risk of putting myself in contempt of court and I have no intention of doing this — tempting though it might be to test the law.

The media commentator Stephen Glover recently suggested that the BBC should not permit staff journalists to be as opinionated as they currently are in the blogs that the BBC itself publishes on-line. His concern was that “the old distinction between reporters and pundits has widely broken down”.

Since the BBC is not permitted to express its own opinions in the way that newspapers do in their editorials, it is arguable that BBC correspondents should not express their personal opinions on a BBC website. But when I worked for the BBC I never had any difficulty in distinguishing between personal opinion and informed commentary.

I also recall a distinguished director-general ruling that the BBC was not indifferent as between good and evil. So I hope that specialist correspondents will not be deterred from writing commentaries on-line.

Certainly, we shall be acquiring more of our news electronically in the years to come. Primary sources will become increasingly important and accessible: the Supreme Court website, for example, will not only carry the full text of every judgment but also, for the first time, a summary of each decision written in simple language.

Trusted reporters and commentators will also have an increasingly important role to play in filtering the available information and putting it into context. Legal journalism may be shrinking, but I hope it will not disappear for good.

You will not be able to leave comments on this website because I do not have time to monitor or moderate them. But you are very welcome to email me with any comments; my address is joshua@rozenberg.net


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