Lessons for open justice from the Marie Dinou case

Marie Dinou, the woman from York convicted of a non-existent coronavirus offence after being found “loitering between platforms” at Newcastle railway station was lucky to be charged with something newsworthy. Had hers been a mundane motoring charge it is highly unlikely that anyone would have spotted that her treatment by the police and the justice system was stupid, incompetent and unlawful.

Thanks largely to the press (The Times’s Fariha Karim and The Independent’s Lizzie Dearden deserve special mention) and Doughty Street’s Kirsty Brimelow QC, who was amongst the first to denounce the prosecution as misconceived, her conviction is to be reversed by application of S.142 of the Magistrates Courts Act 1980. This useful piece of legislation allows a Magistrates Court to reverse a conviction “if it appears to be in the interests of justice to do so.”

British Transport Police now concede they made a mistake in arresting and charging Ms Dinou, but their attitude immediately after her conviction was very different. Keen to let the world know that they had achieved the first railway arrest under the new Coronavirus legislation, they had issued one of those self-congratulatory press releases that prosecutors are apt to release, albeit they are normally reserved for the convictions of murderers, serial rapists and elderly ladies who have too many cats. Appropriately enough it was dated April 1st. Continue reading “Lessons for open justice from the Marie Dinou case”

Is Sheikh Mohammed Al Maktoum a kidnapper and a pirate?

Money can buy the world’s best jockeys, trainers and racehorses.

As the judgment of the President of the Family Division in Re Al M revealed on Thursday, it can buy kidnappers who can be relied upon for their expertise and discretion when it comes to snatching one’s teenage daughter off the streets of Cambridge and flying her off to Dubai.

It can buy pirates who can kidnap your other daughter from a yacht in the Indian Ocean.

It can buy hundreds of malicious articles in the world’s press designed to “destabilise and harm” your ex-wife.

Sheikh Mohammed Rashid Al Maktoum, the Emir of Dubai, may have hoped that it could also buy him justice.

His Highness Sheikh Mohammed Rashid Al Maktoum

His decision to commence litigation against his wife now looks like one of the most foolish legal miscalculations since Jonathan Aitken promised to “cut out the cancer of bent and twisted and bitter journalism with the simple sword of truth and the trusty shield of British fair play.” Continue reading “Is Sheikh Mohammed Al Maktoum a kidnapper and a pirate?”

Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.

Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of the police investigation. Mr Corbyn has described it as a “disturbing move.”

It is nothing of the sort.

No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed a standard form to give to complainants for use when investigating sexual offences.

It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.

Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked the more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict. Continue reading “Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.”

Can the Home Secretary prevent Shamina Begum returning to the UK?

The Home Secretary has said that he will prevent the return to the UK of Shamina Begum, the Isis bride from Bethnal Green:

My message is clear” he told The Times, “if you have supported terrorist organisations abroad I will not hesitate to prevent your return.”

Opinions differ on whether it would be right to allow her to return to Britain. The brother of the murdered hostage Alan Henning, for example, believes she should “absolutely not” be allowed back into the country. He speaks for many.

Others take a more forgiving line, arguing that when she left she was only 15 years old; she has been groomed or brainwashed, and is perhaps not without hope of rehabilitation. Moreover, she now has a new-born baby. Whatever she may have done, her baby is innocent.

Ms Begum’s recent media appearances have been a master-class in digging from the bottom of an already deep hole.

What, though, is the legal position? Can the Home Secretary “prevent her return”? Continue reading “Can the Home Secretary prevent Shamina Begum returning to the UK?”

How English Law presumes you guilty, even if your conviction is quashed

When summing up any case to a jury, one of the first things a judge has to explain is that although it is for the jury to decide the facts of the case, they must follow the judge’s directions of law. A favourite cliché of many is then to say “if I am wrong on the law a higher court will put it right.”

Phew,” the jurors are meant to think, “we can trust that even if this old fool has got the law wrong, no harm will come of it because that ‘higher court’ will make everything right again.”

Victor Nealon and Sam Hallam learnt last week from the Supreme Court what they must have guessed already: the promise that a higher court will put wrongful convictions right is hollow. And although there is statutory provision for the state to atone with compensation for subjecting innocent people to wrongful convictions and imprisonment, it is worded in such a way that compensation can virtually never be paid. It is a bogus, Potemkin provision of no practical effect.

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Continue reading “How English Law presumes you guilty, even if your conviction is quashed”

Asia Bibi v. The State: Judgment of the Supreme Court of Pakistan

The text below is the judgment of the Supreme Court of Pakistan. You can download an official copy of the judgment here, but some may find it more convenient to read it on the web.  Please note that some of the formatting (italics, spacing possibly some Arabic / Urdu script and especially some line breaks) has not been reproduced correctly, for which I apologise.

IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ
MR. JUSTICE ASIF SAEED KHAN KHOSA
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
CRIMINAL APPEAL NO.39-L OF 2015
(Against the judgment dated 16.10.2014 of
the Lahore High Court, Lahore passed in
Crl.A.No.2509/2010 and M.R.No.614/2010)
Mst. Asia Bibi
…Appellant(s)
VERSUS
The State etc.
…Respondent(s)

For the appellant(s):
For the State:
For the complainant:
Date of hearing:
 

Mr. Saif-ul-Malook, ASC
Mr. Zubair Ahmed Farooq, Addl.P.G.
Mr. Ghulam Mustafa Chaudhry, ASC
8.10.2018
JUDGMENT

MIAN SAQIB NISAR, CJ. – Continue reading “Asia Bibi v. The State: Judgment of the Supreme Court of Pakistan”

The ECtHR has not created a European blasphemy law but it has produced a lamentable judgment

The decision of the Fifth Section of the European Court of Human Rights in the case of E.S. v. Austria has been welcomed by Islamists in Pakistan and condemned by secularists in Europe. It has also been misunderstood. Some of those who have condemned the refusal of the Court to denounce Austria’s domestic criminal law are those who on other occasions would denounce it for interfering in the sovereignty of an independent country.

In strict legal terms all that the Court has done is to rule that an Austrian law making it a crime – in some circumstances – to “disparage” religion, is not incompatible with the European Convention on Human Rights.

It has not established a Europe-wide blasphemy law. It has not ruled that criticising or insulting Muhammad is a crime. It has not ruled that it is criminal to be rude about the Muslim faith. It has not ruled that Islam is entitled to legal protection denied to other religions.

Nor is it necessarily the last word in the case. There is still some prospect that it will be heard by the Grand Chamber of the ECtHR which could reverse the decision.

But for all that, it is a dreadful judgment, not least because it has immediately and predictably been hailed by Muslim religious fanatics as support for their demand to hang the the 47 year old Pakistani Christian Asia Bibi for supposedly insulting Muhammad. Worse still, it does so at a time when the Pakistan Supreme Court has reserved judgment and is considering whether to uphold her conviction and death sentence.

Asia Bibi: awaiting final judgment on blasphemy appeal

Continue reading “The ECtHR has not created a European blasphemy law but it has produced a lamentable judgment”

Asia Bibi’s life is in the hands of the Pakistan Supreme Court

The Pakistan Supreme Court will shortly rule on whether 47 year old Asia Bibi must hang for blasphemy. If she loses her appeal, she is likely to become the first person to be executed under Pakistan’s extraordinarily harsh blasphemy laws.

To read the judgments of the Pakistan courts is, for an English lawyer, to enter a world which seems strangely familiar and yet utterly alien.

The language of the judges bears a close relationship to the language of the English courts: there are “Honourable Judges” (though usually abbreviated to “Hon’ble”) the senior judges are called “Mr (or very rarely “Mrs” or “Miss”) Justice,” all counsel are “learned” and many of the laws enforced still date from the days of the British Empire. The Penal Code, for example, still contains reference to [the admittedly repealed] Section 58, with its Dickensian “Offenders sentenced to transportation, how dealt with until transported,” and Section 56 which deals with “Sentence of Europeans and Americans to penal servitude” (in the days of the Raj, European prisoners were accommodated in a special “European only” prison, or repatriated to serve their sentences in a cooler climate). Still very much in force, however, is a death penalty, carried out just as the British liked it, with an old fashioned noose, gallows and long drop. Continue reading “Asia Bibi’s life is in the hands of the Pakistan Supreme Court”

The silent man of Swansea and St Margaret of York: muteness, malice and mercilessness

An unusual trial took place in Swansea last week. Forty-eight year old David Hampson was convicted of breaching a criminal behaviour order and sentenced to three and a half years imprisonment. Mr Hampson’s peculiar modus operandi is to stand in the middle of a busy Swansea street and stop the traffic. It is annoying but not terribly serious behaviour. But he has been doing it since 2014. For his first offence he was given a conditional discharge, a magisterial slap on the wrist. He immediately re-offended again, and then again, and in due course was convicted in the Crown Court of the more serious offence of public nuisance. In an attempt to stop him once and for all, he was imprisoned and made the subject of a criminal behaviour order. This meant that if he obstructed traffic again he would face a possible maximum sentence of 5 years imprisonment. It made not the slightest difference. As soon as he was released he proceeded to stop the traffic again, “draping himself over a Royal Mail van with his arms outstretched and his face pressed up against the windscreen.” Continue reading “The silent man of Swansea and St Margaret of York: muteness, malice and mercilessness”

Prosecuting Boris Johnson over “Brexit lies” would be an ill-conceived publicity stunt

A 28 year old Norfolk man called Marcus J Ball is trying to bring a crowd-funded private prosecution against Boris Johnson. He says that Mr Johnson lied while campaigning for the Leave campaign in the Referendum. Since he was at the time an MP (and until 9th May 2016 also Mayor of London) he was the holder of a public office. Mr Ball believes that lies told in the campaign mean that he has committed the offence of “misconduct in public office,” a serious criminal offence carrying an unlimited fine and potentially life imprisonment.

Ball: Private Prosecutor

Continue reading “Prosecuting Boris Johnson over “Brexit lies” would be an ill-conceived publicity stunt”