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June 22, 2009

More trouble at the International Criminal Court

Readers will know I take an interest -- some might say an obsessively close interest -- in the world's first permanent international criminal court. Like many of those who welcomed its creation, I have been saddened by the difficulties it has encountered.

Until now, I have believed that the main problem lay with the prosecutor (see previous posts about Luis Moreno-Ocampo passim). Now, however, I learn from Prof William Schabas that things seem to be going wrong with the judges. Here is a lengthy extract from a blog entry he posted on June 18. I cannot confirm it but I have no reason to doubt it.

"I was in The Hague last week and picked up much discussion about what has become a real crisis for the Court concerning the composition of its Appeals Chamber. In March, following the swearing in of the five new judges, the plenary agreed upon the new composition of the Appeals Chamber, ‘elevating’ two judges from Pre-Trial Chamber I.

"There was a problem with this that was obvious to everyone: because the two judges had been sitting for several years on the Pre-Trial Chamber, they were ‘contaminated’ with respect to cases and situations that were already proceeding. In effect, they could only hear appeals concerning matters before the other Pre-Trial Chamber. It didn’t seem to make much sense at a practical level, and we can only speculate as to why this was done.

"I was told that the Committee on Budget and Finance and the Assembly of States Parties both reacted with letters to the Court asking it to reconsider the decision. So the plenary of judges met again last Monday. They voted, by nine to seven, not to change their original decision. The two judges who were named to the Appeals Chamber voted and, presumably, made up the majority. Without them, the vote would have been seven to seven.

"This entire business is not a healthy development at the Court. It reflects a group of judges who appear themselves to be divided in a way that cannot contribute to the spirit of collegiality that the Court requires in these difficult times. On the outside, it will increase frustration by the States that make up the Assembly of States Parties. At some point, if their requests to the Court are dismissed as this one was, they will be tempted to try more draconian measures, such as denial of funding or even threats to withdraw from the Statute altogether.

"None of this is visible on the website, of course, but it is an open secret in The Hague. If you want to learn more about it, you only need to hang out in the bars and restaurants of the city for a few days, or better still, the Court’s own cafeteria."


Posted at 02:30 PM | Comments (0)

June 21, 2009

Will MPs face charges?

The brief announcement from Scotland Yard on Friday evening that the police had “decided to launch an investigation into the alleged misuse of expenses by a small number of MPs and peers” took some news organisations by surprise.

Surely the Metropolitan Police and Crown Prosecution Service had said it was “highly unlikely that there could be a successful prosecution”?

That was certainly how most news organisations read the confusingly worded statement put out by the two organisations two weeks earlier.

In fact, that statement said it was unlikely there could be a successful prosecution “unless evidence is available which shows individuals deliberately misled the fees office”. And this seems to be what the police now think they may have.

The point seems clear enough: if you claimed for a duck island or for cleaning your moat — and that is what you spent the money on — you have not misled the fees office. Your claims may have been outrageous but they were not unlawful.

But what if you claimed for a mortgage that you had already paid off? What, indeed, if you claimed more for council tax than you owed the council?

Then, assuming your claim was made on or after January 15, 2007, you might have a case to answer under the Fraud Act 2006.

That provides three different ways of committing the new offence of fraud. The first of these seems most appropriate for a phantom mortgage but the other two might fit as well. It doesn’t really matter because it’s a single offence, with a maximum penalty of 10 years whichever way you do it.

The first way of committing the offence is by dishonestly making a false representation with the intention of making a gain. The crucial word here is “dishonestly”; ultimately, a jury would have to decide whether or not an MP had made an honest mistake.

A representation is false if it is untrue or misleading and the person making it knows it is, or might be, untrue or misleading. And an MP who claims for a phantom mortgage would be caught by the law even if he never said he had a mortgage at the time. A claim for repayment is treated as an implied representation that the claimant has a mortgage, just as a customer who eats in a restaurant is making an implied representation that he will pay the bill.

You are also committing fraud if you dishonestly fail to disclose information that you are under a legal duty to disclose and you intend to make a gain for yourself as a result. Again, “dishonestly” is the key word. “Legal duty” seems broad enough to cover an MP’s duty not to mislead the fees office.

Finally, fraud can be committed by someone who occupies a position in which he is expected to safeguard the financial interests of another person and dishonestly abuses that position with the intention of making a gain.

It might just be possible to stretch that to cover the position of an MP who is expected to safeguard the financial interests of taxpayers. But there would be no need if the CPS could get home on one of the other routes.

Offences committed before January 2007 are covered by the Theft Acts. Again, though, dishonesty is the crucial factor.

If I were one of the MPs alleged to have claimed for a non-existent mortgage, I’d be quite worried. Unlike the cash-for-honours case, this investigation is based on clear, modern legislation. If the evidence stands up, I have no doubt that the Director of Public Prosecutions would regard a prosecution as being in the public interest.


Posted at 08:14 PM | Comments (0)

June 18, 2009

Ostracized in Austria

Today's column in the Law Society Gazette explores the case of Julius Meinl, a British banker arrested in Austria and released only on payment of world-record bail. Despite reforms last year, the relationship between Austrian prosecutors, pre-trial judges and criminal defence lawyers still seems far too cosy.


Posted at 06:53 AM | Comments (0)

June 16, 2009

BBC hides ‘dark’ programmes

A High Court judge who is campaigning against what he regards as an “epidemic” of family breakdown has criticised the BBC for relegating a two-part documentary on the subject to a time when most viewers will be asleep.

In a speech to the Family Holiday Association tonight, Sir Paul Coleridge explained that he had been interviewed by the highly respected BBC journalist John Ware for two full-length programmes called “The Death of Respect”.

The programmes had been completed by the end of March and were due for transmission in the 9 pm slot. Sir Paul, who sits in the High Court Family Division as Mr Justice Coleridge, said he had asked Ware when they would be broadcast.

“Last week I discovered they are to be shown in mid July at the extraordinary time of 11.20 pm,” Sir Paul disclosed.

He had asked Ware and his producer if they could explain “this change of heart” about what the judge regarded as important programmes. “The only response I have had is that those in charge think that they are ‘too dark’.

“‘What,’ I enquired, ‘does “too dark” mean?’ The response was that they are not regarded as sufficiently positive or life-affirming or the kind of programmes which the BBC like to make nowadays.

“So we have a situation, it would seem, where the biggest and most highly regarded, publicly-funded opinion-former in the land regards these vitally important issues as ‘too dark’ to make a contribution to.”

This was “worrying,” Sir Paul concluded, though it might be a symptom of the wider problem. There was a “deep and abiding concern about the current state of health of the family in this country and a real wish to engage in debate about where we are and what needs to be done”.

It was indeed “dark, very dark, and sometimes disturbing”. But we would not throw any light on it if we refused to acknowledge it or to discuss it in a broad and sensible way.


Posted at 09:00 PM | Comments (0)

June 09, 2009

Mediating between lawyers and accountants

The courts are not threatened by alternative methods of dispute resolution, according to the Master of the Rolls, Lord Clarke of Stone-cum-Ebony.

England’s senior civil judge was speaking last night at a lively seminar in Gray’s Inn organised by Littleton Chambers. I must immediately declare an interest: I was invited by the organisers to chair the discussion that followed.

Lord Clarke quoted my report of Prof Dame Hazel Genn’s Hamlyn Lectures last December, in which she attacked what she saw as the downgrading of civil justice, the degradation of civil court facilities and the diversion of cases to private dispute resolution.

Mediation “is not about just settlement”, Dame Hazel had said. “It is just about settlement.”

Lord Clarke acknowledged that alternative dispute resolution would not solve all problems and he agreed that it should be no more than a supplement to litigation. He said Dame Hazel’s warning should not be ignored. In his view, though, the courts were not under threat.

“I do not think that the existence and value of the role of the courts in the civil justice system is in any way threatened by ADR in general or mediation in particular,” he said. “On the contrary they are an important adjunct to the role of the courts and, critically rely upon the courts to succeed.”

That view was shared by Philip Bartle QC and the other panellists from Littleton Chambers — Richard Price QC, David Reade QC and Naomi Ellenbogen.

In something of a judicial first, there were comments from the audience by Lord Neuberger, Lord Justice Waller, Lord Justice Jacob and Mr Justice Eady.

Some mediation enthusiasts present were surprised to discover that many of the judges who urge litigants to mediate have never attended a mediation themselves. The service was simply not around when they were at the Bar.

Last night’s exception was Lord Justice Ward, who trained as a mediator in order to understand the process. He told the seminar that being a mediator was very different from being a judge.

Lord Clarke’s support for mediating disputes whenever possible was shared by the indefatigable Lord Woolf, who launched a mediation service this morning on behalf of the Institute of Chartered Accountants and the ADR Group. It will be called Resolving Commercial Disputes.

The former Lord Chief Justice is one of 20 mediators drawn from the legal and accountancy professions whose services may be secured through the new service. Another is Cherie Booth QC.

Resolving Commercial Disputes will normally recommend a pair of mediators: one lawyer and one accountant. It was therefore not surprising that Jane Andrewartha, a solicitor with Clyde & Co and one of the mediators lined up for the new service, took me to task — in the nicest possible way — for asking the panel last night whether barristers or retired judges made the better mediators.


Posted at 12:04 PM | Comments (0)

June 05, 2009

Prosecutor denies politicising court over Gaza

The prosecutor of the International Criminal Court has rejected my accusation that he is politicising a judicial process by taking months to consider whether he can launch an investigation into Israel’s recent military operations in Gaza.

I accused him of jeopardising the impartiality of his court in this article. Mr Moreno-Ocampo seemed to be aware of it, referring to my “editorial position” when I and other reporters questioned him at the Qatar Law Forum last weekend.

He accepted that only states could accept the jurisdiction of the court. But he insisted that a decision that Palestine could accept the jurisdiction of the court would not amount to a finding that Palestine was a state.

To hear the five-minute interview, which is exclusive to this website, click on the ► button below:

If you need help or want to download the interview, click here.



Posted at 11:50 PM | Comments (0)

June 04, 2009

Survial of world depends on rule of law

This week's Law Society Gazette column analyses a strong speech by Lord Phillips, president-elect of the UK Supreme Court.

The speech, made last weekend in Qatar, remained unreported until today.


Posted at 10:49 AM | Comments (0)

June 02, 2009

Scotland for the chop?

Word reaches me that Baroness Scotland, the Government's senior law officer, may be following Jacqui Smith out of the door in the forthcoming Cabinet reshuffle.

If the Prime Minister is serious about introducing constitutional reform before the next election, then Lady Scotland may be something of an obstacle. She managed to block Gordon Brown's plans to reform her own post.

So who will succeed her as Attorney General? There is nobody in the Commons. And there are not many Labour-supporting QCs who'd want the job, even if it comes with an instant peerage.

If Gordon Brown is so keen to rehabilitate Blairites, I'd expect him to bring back Lord Falconer, the former Lord Chancellor.


Posted at 04:53 PM | Comments (0)

Law lords to stay

The Queen has agreed that all justices of the Supreme Court may be referred to as “Lord” or “Lady”, even though those to be appointed from now onwards will not be given peerages.

The decision, which has not yet been announced, is a sensible solution that I have urged for some years. “Justice of the Supreme Court Sumption” is too much of a mouthful. “Justice Sumption” would demote him to below the rank of a High Court judge. “Sir Jonathan Sumption” — the title he could put on his cheque-books — would make him seem inferior to his fellow judges.

As a result of decision, we shall continue to refer to members of the Supreme Court as “law lords”. It will be as if nothing had ever changed.

Meanwhile, the last member of the new court to receive a peerage has maintained the great tradition of choosing a funny name. Having been plain old “Tony Clarke” all his life, Sir Anthony Clarke, who remains Master of the Rolls until the autumn, was introduced into the House of Lords yesterday as Lord Clarke of Stone-cum-Ebony.

In case you wondered, Stone-cum-Ebony is a parish in Ashford, Kent, south-east of Tenterden. The parish is scattered over a wide area but is situated mostly in the Isle of Oxney between Wittersham and Appledore. Stone is a village and Ebony is a hamlet.

So now you know.


Posted at 08:58 AM | Comments (0)

June 01, 2009

Bloody Sunday Inquiry to report in the autumn

I hear that Lord Saville has finally completed his report into the events of Bloody Sunday, more than 11 years after he was appointed to inquire into the shootings in Northern Ireland on 30 January 1972. It has taken him five years to write.

The report, which is said to run to 7,000 pages, is apparently with the printers. There is no word on when the report will be published but I understand it may not be until Parliament returns after the summer recess in mid-October.

I suspect that the law lord has now decided to include a summary, something he initially thought he might be able to do without.

A spokesman for the inquiry told me she could make no comment about publication date. Relatives of those who died were told last year that the report would not be published before this autumn.

Lord Saville, 73, finished taking evidence from all but a handful of witnesses in February 2004 and heard closing speeches in November of that year.

He must have started work on the report in 2004 because he made it clear at the time that he planned to submit his report in the summer of 2005. It will now be published four years late.

What seems to have given him an incentive to shake off his personal albatross is the prospect of sitting as a justice of the Supreme Court when it opens in October. He is eligible to serve for 18 months before reaching the retirement age of 75.

Although he was the most junior law lord when appointed to chair the Bloody Sunday Inquiry, Lord Saville is now the most senior apart from the president and deputy president. He was therefore able to choose the best room.

This has gone down particularly badly with his fellow law lords because their individual offices have turned out to be much pokier than expected.

One might ask how much of a contribution Lord Saville will be able to make to the new court, given that he has not sat as a judge for well over a decade. At least Jonathan Sumption QC, widely expected to join the Supreme Court if Lord Neuberger becomes Master of the Rolls, is a lawyer first and historian second.


Posted at 03:28 PM | Comments (0)