Essex Court Chambers, genocide and the allure of Chinese money

Lawyers, and perhaps especially barristers like to speak of the high nature of their calling. We defend human rights. We give a voice to the voiceless. We fearlessly ignore all personal considerations and strive only to uphold the rule of law. We are independent and cannot be bought or bullied. “Do right, fear no-one,” as the Criminal Bar Association used to say quite often. Fine words indeed.

At the Commercial Bar – that rarified corner of my profession where chambers, and even some individuals earn millions from international litigation and arbitration – the principle seems to have been watered down to “do nothing to upset China.” Continue reading “Essex Court Chambers, genocide and the allure of Chinese money”

The Batley Grammar School teacher should not be sacked for blasphemy

It is more than 6 years since the Charlie Hebdo murders. 12 people were shot dead in the magazine office, murdered by Islamists to avenge its publication of cartoons of Mohammed. Their “crime” was that they had committed blasphemy. Over the next three days a policewoman and 4 customers at a Jewish shop were also murdered.

In the immediate aftermath of the atrocity it became fashionable so say “Je Suis Charlie” in solidarity with the magazine. At least a million people, including the French President marched through Paris to demonstrate their support for freedom of speech. The British Prime Minister joined them, as did many other world leaders.

Even the Saudi Arabian ambassador attended the demonstration, which might have seemed a little surprising given the Kingdom’s well-known disapproval of blasphemy. However, Saudi Arabia does not endorse the extra-judicial killing of blasphemers. Instead – as with Raif Badawi – it punishes them with lashes and imprisonment, only very rarely with beheading, and then only after a trial.

In October last year Samuel Paty, a teacher was beheaded, again in France, after apparently showing his students some of the Charlie Hebdo cartoons of Mohammed. He had reportedly asked anyone who did not wish to see the pictures to close their eyes first. The precaution did not save him from a planned and premeditated attack by a religiously motivated mob. Continue reading “The Batley Grammar School teacher should not be sacked for blasphemy”

How could Priti Patel reintroduce the death penalty?

There was a flutter of interest on Christmas Day when, in festive mood, the Society of Black and Asian Lawyers tweeted the following:

A little bird at the @ukhomeoffice tells us @pritipatel has asked Civil Service to scope a policy paper on the restoration of the death penalty in the #NewYear2021 and the #Tories have the majority to do just that.”

In the past Ms Patel has expressed support for capital punishment. In 2006 she told the Mail on Sunday:

If you had the ultimate punishment for the murder of policemen and other heinous crimes, I am sure it would act as a deterrent. We must send a clear signal to people that crime doesn’t pay. The punishment must fit the crime and yes, I do support capital punishment.”

In a BBC Question Time programme in 2011 she said:

I have said this before and I will say it again, I do actually think when we have a criminal justice system that continuously fails in this country and where we have seen murderers, rapists and people who have committed the most abhorrent crimes in society, go into prison and then are released from prison to go out into the community to then re-offend and do the types of crime they have committed again and again.

I think that’s appalling. And actually on that basis alone I would actually support the reintroduction of capital punishment to serve as a deterrent, because I do think we do not have enough deterrents in this country for criminals.”

In fact, I’m not sure she has ever “said it again.” In an interview with the Mail on Sunday in 2019, asked about the death penalty she said:

I have never said I’m an active supporter of it and [what I said] is constantly taken out of context.”

If her apparently contradictory public statements can be reconciled, and perhaps they cannot, her position seems to be that the death penalty should be reintroduced even though she has never actually campaigned for its reintroduction.

However, let us make the unsafe assumption that the Society of Black and Asian Lawyers are correct, and that she has commissioned a “scoping exercise” in the Home Office to advise her on the feasibility of bringing back the gallows. Brexit may have removed one potential obstacle: any moves to reintroduce hanging would have met with objections from Brussels; indeed it would have been unlawful under the EU Fundamental Charter of Human Rights, Article 2 (2) of which of provides:

No one shall be condemned to the death penalty, or executed.”

Happily the team need not waste any time on the knotty problem of the exact status of the Fundamental Charter in UK law, because post-Brexit it has none.

So, aside from the many philosophical objections to the death penalty, what practical problems will Ms Patel’s scoping exercise into the establishment of a post-Brexit bloody code need to address?

The problems, even for a determined government with a sizeable majority, are considerable. Continue reading “How could Priti Patel reintroduce the death penalty?”

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.

*** *** ***
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”