Joshua Rozenberg
c/o Noel Gay
19 Denmark Street
London WC2H 8NA




Recent Entries






February 26, 2009

Realistic rulings on Abu Qatada

My column in the Law Society Gazette today is about two rulings last week dealing with Britain's response to international terrorism.

Posted at 12:27 PM | Comments (0)

February 25, 2009

Will the High Court order Britain to denounce Israel?

The High Court challenge lodged yesterday by a Palestinian organisation raises some important and difficult legal issues.

As I understand it, this is an application for permission to seek judicial review of decisions taken — or not taken — by the British Government. The claimants want the court to declare that ministers are in breach of their international obligations towards Israel arising from Israel’s military operations in Gaza.

The claimant is an organisation called Al-Haq, which is based in Ramallah, on the West Bank. Phil Shiner, the solicitor representing Al-Haq, says it is a human rights organisation with an “impeccable track record”.

Gerald Steinberg, who runs the Jerusalem-based research organization NGO Monitor, says Al-Haq’s general director, Shawan Rateb Abdullah Jabarin, has been denied exit visas by Israel and Jordan on account of his alleged ties to a terrorist group, the Popular Front for Liberation of Palestine.

On July 7, adds Prof Steinberg, the Israeli Supreme Court upheld the refusal of a visa to Mr Jabarin on the strength of “reliable information” that he was “among the senior activists of the Popular Front terrorist organisation”.

But what matters here is whether Al-Haq has the necessary legal standing to bring this application. Claimants usually have to be individuals or organisations affected by — or potentially affected by — the decision being challenged.

It would be unusual for a court to grant standing to a law centre representing, or campaigning for, aggrieved individuals — whether it had an impeccable record or links to terrorism. I would expect Al-Haq to bring in some individual claimants before long.

Much more fundamental is whether Britain’s obligations under international law are “justiciable” in the courts of England and Wales. In other words, will the domestic courts enforce the duties that Britain owes to other states under treaties and the customary obligations that are regarded as binding between states?

Not surprisingly, Al-Haq says these obligations are enforceable in “domestic” — or national — courts. Equally unsurprisingly, the Government says they are not.

If the High Court decides that Britain’s obligations under international law are justiciable, the next question to be decided is what these obligations are. Mr Shiner says these include denouncing Israel’s military actions in Gaza. He does not, incidentally, argue that Britain is required to denounce Hammas for launching missile attacks on Israeli civilians.

Does English common law really impose a binding duty on the British Government to denounce the actions of a friendly state with which it has full diplomatic relations?

It sounds far-fetched to me. In my experience, the courts usually regard international relations as best left to the government.

But the claim, as I understand it, has been put together by four leading barristers practising in the field of human rights. And I’m merely a journalist.

Time alone will tell. But it is of interest to note that a similar attempt by Al-Haq to seek judicial review was rejected by the High Court in 2007, a year after the case was lodged.

An appeal was dismissed last November. Although the case was not brought under al-Haq's name — no doubt for the reasons given above — the organisation makes it clear here that it, and Mr Shiner, were behind the claim.

Posted at 01:07 AM | Comments (0)

February 24, 2009

British Gas harassment move backfires

Tonight's column in the Evening Standard shows how an attempt by British Gas to stop a customer suing under anti-harassment laws has exposed other businesses to the risk of prosecution.

Posted at 09:28 PM | Comments (0)

February 23, 2009

Attempt to block Bashir arrest fails

President Omar al Bashir of Sudan will learn next week whether the International Criminal Court is to issue a warrant for his arrest.

The prosecutor, Luis Moreno-Ocampo, requested a warrant last July for Bashir’s arrest on 10 charges of genocide, crimes against humanity and war crimes.

A pre-trial chamber at the court has been scrutinising the prosecutor’s unprecedented request and will issue its ruling on March 4.

As I reported here last month, a submission was lodged on behalf of citizens’ organisations in Sudan asking the court not to issue the arrest warrants.

This submission has been dismissed by the court. In its judgment here the court makes it clear that the application does not come within the court rules.

Leave to appeal was refused on February 19

It does not follow from this, of course, that arrest warrants will be issued — or that any arrest warrant would cover genocide, the most serious of the allegations against Bashir.

Nor does it follow that Bashir will ever be arrested, let alone tried.

Posted at 05:14 PM | Comments (0)

February 19, 2009

Another magic circle firm makes partners redundant

Redundancies among partners at Clifford Chance, reported here last week, have been following by sweeping changes at Allen & Overy:

• Partners – A global reduction in partner headcount of approximately 9% (47 partners) and around a further 7% (35 partners) subject to equity adjustments. Around half of those affected are in London. This process is at an advanced stage and will be completed by the end of this financial year on 30 April.

• Other fee-earners – A proposed 9% reduction in numbers of associates or other fee earners globally. Around half of these are proposed to be in London, where the redundancy programme is likely to result in approximately 100 associates or other fee earners leaving the firm. This will be subject to local employment processes which will start immediately.

• Support staff – A proposed 9% reduction in support staff headcount. Again, roughly half of these people are expected to be in London, where around 100 staff are likely to be affected. This will also be subject to local employment processes which will start immediately.

• Trainees – Current trainees and those with future training contracts at the firm are not affected.

• Pay - For 2009, pay will be frozen for all staff globally – fee-earning and support staff alike. This will be subject to local employment law, where applicable.

• Fee rates – Acknowledging the impact of the global financial crisis on the firm’s clients, Allen & Overy’s headline billing rates are to be frozen until further notice.

• Demerger of private-client practice group – As part of this strategic review, Allen & Overy’s private client practice is become an independent firm, Maurice Turnor Gardner LLP, with effect from 1 May 2009. Staff in the private-client group, with the exception of trainees, will be at risk of redundancy.

Commenting on the moves, the firm’s managing partner, Wim Dejonghe, said: “In the rapidly changing environment in which we operate, the reality is that there is simply not enough work to keep all our people sufficiently busy and we do not see that changing in the near to medium term.

“We have reluctantly taken the difficult decision to act now, from a position of financial strength, so that we can offer better terms to our departing people than might otherwise be the case.”

The firm added that the cost of restructuring would be paid from its cash reserves. “The impact on the current year’s financial results is forecast to be £44m,” it said.

Posted at 03:36 PM | Comments (0)

February 18, 2009

Islamist extremist can be deported

I am pleased to see that the law lords agreed this morning with my criticism of the Court of Appeal’s decision last April, allowing Abu Qatada’s appeal against the Home Secretary’s decision to deport him.

According to the special anti-terrorist court known as SIAC, Abu Qatada is an Islamist extremist who advocates the use of violence to replace the Jordanian monarchy with an Islamic regime.

Jordanian courts have convicted him in his absence for explosives and terrorist offences. He would face retrials on these charges if returned there.

The problem identified by the Court of Appeal was that SIAC had found a “high probability” that the Jordanian courts would rely on evidence that “may very well” have been obtained through torture and that this would be of “considerable, perhaps decisive importance against him”.

It was not that he would be tortured, more that he would be convicted on evidence previously obtained through torture.

Writing in the Law Society Gazette last May, I said: “Jordanian law does not permit the use of evidence found to have been obtained involuntarily. SIAC was prepared to give Jordan the benefit of the doubt on this and so should we.

“It would help if the Jordanians were prepared to expand on the ‘memorandum of understanding’ they signed in 2005 by confirming that they would not rely on evidence obtained unlawfully. But there comes a time when our judges should stop trying to police other countries’ courts.”

And that’s pretty well what Lord Phillips said at paragraphs 153-4 of his judgment today, though in rather more sophisticated terms.

“As Lord Justice Buxton observed [in the Court of Appeal], the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because ‘the state must stand firm against the conduct that has produced the evidence’.

“That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan...

“The issue before SIAC was whether there were reasonable grounds for believing that if Mr Othman [Abu Qatada] were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or, as SIAC put it, to amount to a total denial of the right to a fair trial.

“SIAC concluded that the deficiencies that SIAC had identified did not meet that exacting test. I do not find that in reaching this conclusion SIAC erred in law.”

I can’t leave this story without mentioning a typically charming aperçu by Lord Brown, at paragraph 252.

“I have had the advantage of reading in draft the very full opinions of my noble and learned friends ... and, finding myself in substantial agreement with them all, readily recognise that there is much to be said for my saying little, little to be said for my saying much.”

Posted at 11:14 AM | Comments (0)

February 17, 2009

Mills convicted: exclusive interview

David Mills has spoken for the first time about the letter that led to his conviction today by an Italian court for taking a bribe from the Italian prime minister.

He was sentenced to four-and-a-half years’ imprisonment. The sentence will not be put into effect unless and until all appeals have been exhausted. By then, it is likely to have expired under Italy’s statute of limitations.

Mills, 64, who separated three years ago from his wife Tessa Jowell, the Olympics minister, denied accepting $600,000 (then £350,000) to give false evidence against Silvio Berlusconi.

“The judge refused to drop the case against me even though my co-defendant is immune from prosecution,” he said in an interview for the website. “This allows them to defeat the object of the immunity law by a proxy guilty verdict against the prime minister.”

Berlusconi had originally been a co-defendant in the long-running trial. But the case against him was put on hold after his government persuaded the Italian parliament to give immunity to the country’s four leading constitutional figures while they remained in office.

In February 2004, Mills, a lawyer, wrote a confidential letter to his accountant, Bob Drennan. It referred to a “Mr B” — assumed to be Berlusconi.

Mills told Drennan that “the way in which I had been able to give my evidence [in trials in 1998] ... had kept Mr B out of a great deal of trouble that I would have landed him in if I had said all I knew”.

In the letter, Mills said: “I told no lies, but I turned some very tricky corners, to put it mildly.”

Drennan regarded himself as under an obligation to send this letter to the Serious Fraud Office in London, which passed it on to Italian investigators.

The letter referred to a sum of $600,000. Mills said he had been told he could treat this as “a long-term loan or a gift”. He regarded it as a gift, on which tax would not have been payable.

Recalling his “Dear Bob” letter this week, Mills said it followed a challenge by the Inland Revenue to Mills’s view that the payment was not taxable.

“The letter set out a scenario in which I attributed the $600,000 to Carlo Berlasconi, an old friend who worked for Silvio Berlusconi,” Mills told me.

“The scenario was designed to elicit advice on the tax issue and to protect the name of the actual source.” He was Diego Attanasio, a client and friend of Mills.

Mills did not want to identify Attanasio. But he took the view that what mattered to the Inland Revenue was whether the money was taxable or not.

During the months that followed, Mills settled matters with the taxman. He disclosed the source of the $600,000 but, since he could not prove that it was a gift, he agreed to pay tax on it.

Meanwhile, Mills was interviewed in Milan by an Italian examining magistrate, Fabio de Pasquale. After “10 hours of hectoring interview”, the lawyer feared he would be arrested for impeding the investigation if he denied what was in the letter.

“So I let him repeat in a statement what was in the Drennan letter — with some additions of his own — and signed it, knowing I could disprove it in due course,” Mills said.

In court, forensic accountants instructed by Mills produced a report supported by a mass of documents which, he said, “showed beyond doubt that the source of the money was indeed Attanasio”.

When the trial started in 2006, de Pasquale alleged that the money had been paid to Mills by Carlo Bernasconi on the orders of Silvio Berlusconi.

Eventually, said Mills, the prosecutor was unable to deny that the money had come from Attanasio. But then de Pasquale changed the charge, alleging that Mills had arranged, without Attanasio’s knowledge, for Attanasio’s money to be replaced by money from Berlusconi.

“According to de Pasquale, this might have taken place in a number of places,” said Mills. “But his preferred place was in the accounts of a Gibraltar law firm, where Attanasio held a number of trust funds.

“In his closing speech, de Pasquale said he had no proof — but he thought it was ‘very likely’ that the Gibraltar accounts had been the place where the ‘compensation’ took place,” Mills continued.

“This is despite the fact that the burden is on the prosecution to prove the case beyond reasonable doubt. No witness has ever mentioned the issue. There is no evidence of it, documentary or otherwise.”

In all the thousands of pages of evidence, the lawyer said, there was no corroboration of the prosecution case at all. “The evidence all corroborates my account. Not surprising, as it is true.”

Mills said the case was highly political — with left-wing Milan judges pitted against the right-wing Berlusconi government. De Pasquale wanted to be the first prosecutor to get a “result” against Berlusconi, where others had failed.

And Mills complained of a number of “irregularities” in the case:

• The presiding judge has been on anti-Berlusconi marches but refused to withdraw from the case.

• In Italy, the same prosecutor conducts the investigation, interviews the witnesses, prepares the case and presents it in court. “There has been no oversight and he has been able to plough on without having to justify his case to anyone,” Mills said.

• A CD containing the evidence was handed to the press before the trial started, in breach of strict court rules.

• The prosecution changed the charge after evidence had been heard from many of the witnesses — including Attanasio, who was supposed to have received a compensating payment from Berlusconi. So he was never asked about it.

• The court refused to allow defence lawyers to recall other relevant witnesses — or to call others, including Berlusconi — to disprove the compensation theory.

• The court decided that communications between Mills and his lawyer were admissible — though they would be privileged under English law.

Mills said that Italian law did not give his lawyers an opportunity to make a speech in mitigation of sentence after the verdict was delivered. But he pointed out that, unlike English law, Italian law treated a defendant as innocent until all appeals had been exhausted.

After the court ruling, Mills said: “I am naturally very disappointed by this verdict. I am completely innocent, but this is a highly political case.

“The prosecution have not produced evidence either of an agreement to give false evidence, of a payment to do so or of any falsity in the evidence. It is incredible.

“The judges have not yet given their reasons for their decision, so I cannot say how they dealt with the prosecutor’s own admission that he could not prove his case.

“I am hopeful that the verdict and sentence will be set aside on appeal, and am told that I will have excellent grounds for one.”

Ms Jowell gave Mills her backing today. “This is a terrible blow to David and, although we are separated, I have never doubted his innocence,” she said.

Posted at 05:22 PM | Comments (0)

Advisers that recommended 'bad funds' face lawsuits.

Will investors who lost money by investing in Bernard Madoff be able to bring claims in the English courts? That's the subject of tonight's Evening Standard column.

Posted at 02:23 PM | Comments (0)

February 16, 2009

Lawyer’s hero is terrorist leader

The print edition of today’s Lawyer magazine carries an interview on page 13 with Michael Wachtel, head of the oil and gas practice at the London office of Watson Farley & Williams, an international law firm.

One of the questions Mr Wachtel is asked is “Who’s your hero and why?”

His answer is: “Hezbollah leader Hassan Nasrallah, not because of his politics or his ideology, but because he refused to be intimidated by a much stronger foe, and he won.”

Posted at 06:55 PM | Comments (0)

Lubanga trial back on track

The first trial at the International Criminal Court seems to have recovered from its disastrous start.

Not that you would know this by looking at the daily transcripts that are meant to be posted on the court’s website, here.

At time of writing, the latest transcript is dated February 4, nearly two weeks ago — and that contains virtually nothing because the court was in closed session. A spokesman tells me that the court management section is doing its utmost to resolve the problems that have delayed publication of the transcripts.

The latest report I can trace by an international news agency was filed on February 10.

Fortunately, though, this website provides excellent coverage of the trial. The website is supported by the Open Society Justice Initiative.

Rachel Irwin reports that on February 13 the court heard evidence from the former child soldier who had recanted hours after being called as the court's first witness — a risk, incidentally, that no experienced prosecutor would have taken. The witness said he was about 11 when he was forced to train and fight in Thomas Lubanga’s militia.

Irwin adds that Lubanga “was visibly shaken and abruptly walked out of the courtroom” after hearing evidence from a former high-ranking official in the alleged warlord’s political movement.

It is sad, but perhaps not surprising, that this important story has dropped out of public view.

Posted at 01:32 PM | Comments (0)

February 12, 2009

Lord Bingham on the Binyam Mohamed case

Britain's most distinguished retired judge tells me in an interview for the Law Society Gazette that it would cause him great concern if British officials had connived at mistreatment of prisoners abroad.

Posted at 12:30 AM | Comments (0)

February 10, 2009

Dutch MP banned from Britain over anti-Islam film

Britain has banned the Dutch MP Geert Wilders from coming to London to show his anti-Islam film Fitna at the Houses of Parliament, he told news agencies this evening.

The commentator Melanie Phillips (in whom I must declare an interest) says this demonstrates the extent of Britain's capitulation to Islamic terror.

Mr Wilders had been invited by Lord Pearson of Rannoch to show his 15-minute film, which criticizes the Koran as a “fascist book”, on Thursday.

But he was informed today in a letter from the British Embassy he would not be allowed into Britain.

The film sparked violent protests around the Muslim world last year for linking Koranic verses with footage of terrorist attacks. Mr Wilders has urged his government to ban the Koran and warned of a “tsunami” of Islam swamping the Netherlands.

In a telephone interview, Mr Wilders called the British government’s decision “cowardly” and vowed to defy it. “Let them try to detain me,” he told the Associated Press.

The Dutch Foreign Minister, Maxime Verhagen, said his government would press Britain to reverse the ban, adding that he “deeply regretted” that a Dutch lawmaker had been barred access.

The Home Office said it “opposes extremism in all its forms” and would work to “stop those who want to spread extremism, hatred and violent messages in our communities from coming to our country”.

Lord Pearson said he was “very surprised that the British Government should ban a European citizen — and an elected Dutch MP at that — from coming to this country.” He called the Government’s decision “weak and unacceptable in the extreme.”

The UKIP peer said he took exception to some of Mr Wilders’ statements but wanted to show his film “precisely to uphold his right to freedom of speech, even if we disagree with what he’s saying.”

He added that he would do his best to help the Dutch MP show his film in Britain, despite the ban.

Mr Wilders, whose Freedom Party holds nine of Dutch parliament’s 120 seats, said he was shocked by the travel ban.

“We are talking here about a European Union country, one of the oldest democracies in the Western world,” he said.

The Old Holborn blog has what it says is a copy of the letter sent to Mr Wilders on behalf of Jacqui Smith, the Home Secretary. It says:

“The purpose of this letter is to inform you that the Secretary of State is of the view that your presence in the UK would pose a genuine, present and sufficiently serious threat to one of the fundamental interests of society.

“The Secretary of State is satisfied that your statements about Muslims and their beliefs, as expressed in your film Fitna and elsewhere, would threaten community harmony and therefore public security in the UK. You are advised that should you travel to the UK and seek admission an Immigration Officer will take into account the Secretary of State’s view.

“If, in accordance with regulation 21 of the Immigration (European Economic Area) Regulations 2006, the Immigration Officer is statisfied that your exclusion is justified on grounds of public policy and/or public security, you will be refused admission to the UK under regulation 19. You would have a right of appeal against any refusal of admission, exercisable from outside the UK.”

The letter is signed “Irving N. Jones, On behalf of the Secretary of State for the Home Department”.

Posted at 08:48 PM | Comments (0)

Magic circle loses its aura

Today's Evening Standard column charts redundancies among the biggest law firms.

Posted at 02:06 PM | Comments (0)

Spy laws should be used to prevent dog-fouling, says ex-judge

The Chief Surveillance Commissioner has defended the use of covert surveillance against dog-fouling.

Sir Christopher Rose, a former senior Court of Appeal judge, made his comments in a robust speech explaining his powers this morning. His job is to oversee the way in which all public authorities apart from the security services carry out all forms of covert surveillance except intercepts.

This covers “property interference” and “intrusive surveillance”, both of which can be carried out only by law enforcement agencies. He also oversees “directed surveillance” — covert but not intrusive — and the use of informants. These powers can be used by some 500 local authorities for preventing or detecting crime.

Sir Christopher referred to press reports last year that some councils were using the Regulation of Investigatory Powers Act 2000 to crack down on dog fouling. Others were using the powers to monitor people who left litter or who abused the blue badge scheme for disabled drivers.

“The headline ‘Anti-terror laws used against dog fouling’ encapsulates in a few words all that is worst in popular journalism,” said Sir Christopher.

“It is inaccurate, emotive and grossly misleading. The legislation is, expressly, for many purposes other than fighting terrorism.”

The chief commissioner said he understood that dog excrement carried a parasite which could cause blindness in children.

“On this basis I suspect that a reasonable, well-informed, member of the public would approve of covert surveillance necessary to reduce dog-fouling in children’s playgrounds.”

Sir Christopher also said, without further explanation, that “media criticism of Poole Borough Council was misplaced”. This appears to be a reference to a decision by the council, reported last April, to conduct surveillance of a couple who were wrongly suspected of not living in their children’s school catchment area.

In his speech, which will be available on his website, Sir Christopher said it was no part of his responsibility to encourage or discourage the use of covert surveillance.

“How much or how little takes place is not my concern. My job is to seek to ensure, so far as the resources at my disposal permit, that when covert surveillance is carried out it is necessary, proportionate and in accordance with the legislation and relevant codes of practice.”

Posted at 11:00 AM | Comments (0)

February 08, 2009

Diplomat arrested for antisemitic tirade may not be charged

The Daily Mail reports that a high-ranking diplomat at the Foreign Office has been arrested after allegations that he launched a foul-mouthed antisemitic tirade.

The newspaper says that Rowan Laxton, 47, was watching TV reports of the Israeli attack on Gaza as he used an exercise bike in a public gym.

Gym members and staff allegedly heard him shout: “Fucking Israelis, fucking Jews”. It is alleged he also said Israeli soldiers should be “wiped off the face of the earth”.

After a complaint was made to the police, Mr Laxton, who is head of the South Asia Group at the Foreign Office, was arrested for inciting religious hatred through threatening words and behaviour and bailed until late next month.

He has not, apparently, been charged and I do not think he will be.

The offence for which Mr Laxton was arrested was created by the Racial and Religious Hatred Act 2006, which came into force in October 2007. This legislation inserts a new section 29B into the Public Order Act 1986.

It says: “A person who uses threatening words or behaviour ... is guilty of an offence if he intends thereby to stir up religious hatred.”

There can be no doubt that religious hatred includes hatred of Jews. There may be some doubt as to whether the phrase “fucking Jews” is threatening or merely insulting. But there must be every doubt over whether, on the facts as alleged, it could be shown that Mr Laxton intended to stir up religious hatred. Unless the necessary intention can be shown, no charges can be brought.

The law on racial hatred is much broader. Section 18 of the Public Order Act 1986 says: “A person who uses threatening, abusive or insulting words or behaviour ... is guilty of an offence if he intends thereby to stir up racial hatred, or having regard to all the circumstances racial hatred is likely to be stirred up thereby.”

Note the differences: this offence includes “abusive or insulting” words. And there is no need to prove intention, provided it was likely that the words used would stir up racial hatred.

The courts have made it clear that Jews may be regarded as a “race” for these purposes, even though they may not all be drawn from what a New Zealand judge described as a “common racial stock”. I think it would be going too far to say that “Israelis” would also be regarded as a race, even though the words allegedly spoken were presumably directed at Jewish Israelis rather than Muslims, Christians or others.

It follows that a charge of incitement to racial hatred would have more chance of success than a charge of religious hatred on the facts as alleged. Even then, assuming no evidence of intention, it might be difficult to prove the alleged words were likely to have incited hatred among others using the gym.

But that does not mean the matter should end there. If the alleged facts are true, Mr Laxton cannot continue to work as a diplomat.

Posted at 11:55 PM | Comments (0)

February 05, 2009

Judges asked to look again at torture case

Lawyers for Binyam Mohamed have asked the High Court to reopen his case following statements from the Foreign Secretary.

As I reported here, there were major contradictions between what David Miliband appears to have told the court and what he said publicly once the judgment was published.

The Foreign Secretary told Parliament this afternoon that, in his judgment, “the disclosure of the intelligence documents at issue, by order of our courts and against the wishes of the US authorities, would indeed cause real and significant damage to the national security and international relations of this country.”

Mr Miliband continued: “For the record, the United States authorities did not threaten to ‘break off’ intelligence co-operation with the UK. What the United States said — and it appears in the open, public documents of this case — is that disclosure of the documents by order of our courts would be ‘likely to result in serious damage to US national security and could harm existing intelligence information-sharing … between our two governments’.”

This is not a quotation from the judgment, of course, but from court papers.

Richard Stein, the solicitor at Leigh Day acting for Mohamed, said: “In court, disclosure was resisted because of US threats to downgrade the security relationship if it was disclosed. Now it is said by the Foreign Secretary to be because of a mutual understanding about how intelligence material is treated. In light of the weight given by the court to the ‘threat’, that is a substantial difference.”

Mr Stein said the Government had also failed to correct the court’s misapprehension that the Obama administration had not changed its position in relation to the threat. “In view of the fact that the matter had not been raised with the new regime this is particularly surprising.”

For those who would like to read the written submissions made today by Dinah Rose QC, I have uploaded them here.

Posted at 05:34 PM | Comments (0)

So are we at risk from the US, or not?

David Miliband appears to be wriggling. The Foreign Secretary issued a Public Interest Immunity Certificate on September 5 explaining why “seven very short paragraphs amounting to about 25 lines” of a High Court judgment should not be made public.

These paragraphs summarise reports by the US government to MI5 and MI6 on the circumstances under which Binyam Mohamed, a British resident suspected by the US authorities of terrorism, was held incommunicado and unlawfully in Pakistan and elsewhere between 2002 and 2004.

Lord Justice Thomas and Mr Justice Lloyd Jones wanted to include the paragraphs in an earlier ruling because the summary was highly material to Mohamed’s claim that he had been tortured. After the Foreign Secretary objected, the judges agreed to redact, or remove, the seven paragraphs pending further argument.

At paragraph 62 of their judgment issued yesterday, they said “the Foreign Secretary’s certificates, particularly the certificate of September 5, 2008, make clear that the United States Government’s position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided.

“It was and remains (so far as we are aware) the judgment of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom.”

The judges had seen evidence to show that Mr Miliband had assessed the risk to Britain’s intelligence relationship with the US in good faith and on the basis of evidence from high-ranking US officials.

There was no basis on which Mr Miliband’s judgment of the danger to national security could be questioned in these circumstances, the judges said.

“In the judgment of the Foreign Secretary there is a real risk that, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

For that reason, the judges decided it would not be “in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day-to-day life”.

Passing the buck to its historic resting place, the judges concluded: “If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain.”

This strikes me as a superb ruling by the two Welsh judges. They came down resoundingly on the side of free speech while explaining that their hands are tied by their duty to protect Britain's national security.

But what was Mr Miliband's reaction?

“There has been no threat from the United States to ‘break off’ intelligence co-operation,” he told Channel 4 News last night.

“Intelligence co-operation depends on confidentiality. We share our secrets with other countries and they share their secrets with us. The founding principle for us and for them is that we can trust the confidentiality of that relationship.

“In this case, the United States made it clear, in documents that have been published, that there would inevitably be serious and lasting harm if that fundamental principle was breached.”

The judges did not say that the US had threatened to “break off” intelligence co-operation. They said it would “re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided”.

That was certainly how they understood Mr Miliband’s certificate. Is that his position now, or not? The Foreign Secretary should tell us if his evidence has been misunderstood by the court. In that event, I am sure the judges would be more than happy to re-open the case and publish the disputed paragraphs.

● The case is thought to be the first in which the court has considered arguments from a barrister and her non-lawyer brother. Dinah Rose QC appeared for Binyam Mohamed while David Rose, a contributing editor at Vanity Fair, made written representations as a member of the media.

Posted at 01:00 AM | Comments (0)

February 03, 2009

Lawyers rush to freeze assets as recession turns nasty

This week's Evening Standard column is about the amazing power of injunctions.

Posted at 07:30 PM | Comments (0)

February 02, 2009

More problems for the International Criminal Court

The first trial to be held at the International Criminal Court seems to be going from bad to worse.

Last Monday, the trial of Thomas Lubanga opened as scheduled. The alleged warlord denied using children under 15 as soldiers in the armed wing of his Union of Congolese Patriots political party in 2002-03.

By Tuesday, the prosecutor, Luis Moreno-Ocampo, had wandered off to the World Economic Forum in Davos. Not only was this a grave discourtesy to defence lawyers -- they had listened to his opening speech so he should have listened to theirs -- but it also meant he was not on hand when his first witness withdrew the evidence on Wednesday afternoon that the witness had given on Wednesday morning.

Judging from the available transcripts, no witnesses seem to have been called since then. The first witness did not continue giving evidence on Thursday and no other witnesses were called that day. Friday's transcript is not on the court's website.

This morning, the court announced that today's hearing "has been cancelled due to unforeseen circumstances". This may be nothing more sinister than the effects of bad weather, but if that were the case then the court should have said so.

Finding out what has been going on is made much more difficult by the court's decision to launch a new website today. Previous links do not work and each page takes several minutes to load. But this page appears to carry the latest transcripts of the Lubanaga hearings.

Meanwhile, Mr Moreno-Ocampo has been telling The Times that he is considering whether he has jurisdiction to investigate alleged war crimes in Gaza. That would only be possible if Gaza were a state, which it is clearly not. Mr Moreno-Ocampo should spend less time looking for cheap headlines and devote what skills he has to the one case he has managed to bring to trial after more than five years in the job.

Posted at 12:12 PM | Comments (0)