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The Court of Appeal judgment in the Chagos Islanders (Diego Garcia) case and its predecessor, the Divisional Court judgment (and for completeness see also the 1999 and in particular 2000 judgments in the previous litigation and Ousley J's judgment on a separate issue) make fairly interesting reading, not only for lawyers and those interested in civil liberties or constitutional law but also for historians.

The whole sorry history of the affair is fairly lengthy and all of the judgments above, particularly the more recent Divisional Court one, go into it in detail. Shortly put, back in the 60s the US wanted a nice big airbase in the Indian Ocean: at the time, I guess, to keep an eye on China but it's been important in the US's more recent adventures as well. We had an appropriate island to offer, unfortunately it had some people on it. Actually, that seems to have passed some people in the FCO by: witness this, from Laws LJ's judgment in Bancoult No 1, at para 13:

There is a manuscript note by another official which comments on this minute. It refers to "a certain old fashioned reluctance to tell a whopping fib, or even a little fib, depending on the number of permanent inhabitants". A note dated 24 August 1966 to an official, Mr D A Greenhill, quotes a minute from the Permanent Under Secretary (I assume at the Colonial Office). The Permanent Under Secretary unburdened himself thus:

'We must surely be very tough about this. The object of the exercise was to get some rocks which will remain ours; there will be no indigenous population except seagulls who have not yet got a committee (the Status of Women Committee does not cover the rights of birds).'

This attracted a comment from Mr D A Greenhill, who spoke the same language:

'Unfortunately along with the birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When this has been done I agree we must be very tough and a submission is being done accordingly.'

(There's a lot of this kind of attitude in the memos recorded in the judgments, which I confess to finding blackly comic. I'm particularly fond of the refreshing candour of 'the territory is a non-self-governing territory and there is a civilian population even though it is small. In practice, however, I would advise a policy of 'quiet disregard'—in other words, let's forget about this one until the United Nations challenge us on it.' )

The islanders were chucked off, to Mauritius and elsewhere, and in recent years have been trying to undo all this: the 1971 Ordinance that originally banned them was overturned in Bancoult No 1, after which Robin Cook, then Foreign Secretary appeared to accept the decision, saying that new arrangements would be made and he didn't seek to defend the actions of the 1960s government. But when the new Indian Ocean Immigration Order came in in 2004 -after Cook's departure of course- it made being in the islands without a permit an offence punishable by three years in prison, and it became clear they were never going to be allowed home. It is entirely coincidental that B52s and Stealths were flying from Diego Garcia to bomb Iraq in the intervening years, and vague and unsubstantiated allegations that Diego Garcia is a hub for "extraordinary rendition" flights are of course utterly beneath contempt. Nevertheless, Mr Bancoult of the islanders renewed his campaign (and in the meantime the President of Mauritius threatened to take his state out of the Commonwealth if the UK Government did not reconsider).

Well, the islanders won in Bancoult No 2 at first instance as well, and now the Court of Appeal has upheld the Divisional Court. Given that Sedley LJ was one of the three members of the court I suspect that the Government rather expected that: if your case is going to rely on the proposition that the exercise of the Royal Prerogative outside the UK in matters of colonial governance is not subject to judicial review he's hardly the man you want. When you had Laws first time round, you surely begin to suspect the Listing Office of political views. Turns out, unsusprisingly, that it is: at para 64: the royal prerogative, while the common law accords it a very large area of judgment and discretion in colonial matters, is not unlimited or unreviewable. There's a fair bit on legitimate expectations (arising out of what Cook said after Bancoult No 1) as well. On to the Lords, I suspect, but there's a pretty good chance they'll do no better there. Good. In the meantime, this may, oddly enough, have some relevance to a case I'm working on (bearing in mind that there are many CDTs and similar for whom the Crown in Privy Council can legislate and several of them are in the business of fiscal efficiency, to use a polite term).

And if the title of this post is drawing a blank, get thee to the IMDB.

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When asked to pick up a brief at 5.30 for a hearing the next day, shortly before a bankholiday weekend which the IS is taking off for just as soon as he's bunged the papers on the fax (a few hundred of them, in no readily discernable order), always assume it is going to be a fucking hospital pass.

Heigh ho. It's rare to seek light relief in a High Court judgment on appeal from the VAT Tribunal but Mr Justice Mann has doubtless added much to the sum of judicial knowledge in his judgment in Spearmint Rhino v. HMRC. Apparently dancers at Spearmint Rhino are not agents of Spearmint Rhino (or employees, so far as individual lap dances are concerned), which is thus not obliged to pay VAT on the provision of their services (bearing in mind that "it was not submitted that the [various transactional] documents were in any way a sham or failed to record the true relationship between any of the parties" on which point I wouldn't dream of commenting). It does occur to me to wonder whether any of the dancers themselves are over the VAT threshold and thus liable, but I guess probably not, unless they're in very high demand.

At the start he refers to the gaps in judicial knowledge left by Sutton v. Hutchinson, an even better case where Ward LJ started off with: "The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The Judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is "to tease but not to satisfy"."

and then continued with the almost too clichéd for belief story of how:

By about the end of 2002, or early in 2003, the appellant seems to have begun to tease the respondent. He, being a rich businessman, sought, no doubt, to enliven his lonely evenings in London by seeking entertainment at the Spearmint Rhino club in Tottenham Court Road where the appellant was then employed. Having been tempted, he managed to obtain her telephone number and invited her to dinner. It was not exactly the traditional boy meets girl, "Let's have dinner, darling" kind of invitation. It was an invitation which she accepted, but entirely on the basis that she would be there as his escort and, as his escort, she would provide the services of companionship and amusement, but for a consideration. That consideration would amount, according to the judgment, to perhaps about £700 or £800 a night for the pleasure of her company at dinner. But the arrangement was made on a number of occasions and, as they went on, the relationship changed and at some time early in 2003 it is common ground that the services included sexual services, for which even more money was paid as a consideration. Whether or not rule 2 of the Spearmint Rhino club had been breached, requiring that you could get no satisfaction, we do not know and fortunately do not have to decide.

... Ultimately the claimant wanted some of his money, which he said was a loan, back. Later on Ward LJ observed that "One may ask, how on earth does a case like this see the light of day?". Indeed. Utterly bizarre story.

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HHJ Paul Collins, speaking on Law in Action, states that "We are operating on the margins of effectiveness, and with further cuts looming we run the risk of bringing about a real collapse in the [County Court] service". Given the drive to move more and more business to the County Courts over the last 8 years it's about time someone said something.

As the BBC News Article points out: "County courts are no longer subsidised by the taxpayer. Instead, they are expected to generate all their income from fees charged to court users."
However, the courts' budgets are fixed by the government and although the courts more than covered their costs last year, the surplus raised from fees was spent on other services."

The first part of that I continue to find particularly appalling, as I have this vague idea that providing a way for disputes between citizens to be resolved is one of the fundamental reasons we have states in the first place. The fact that the courts now have "customers" is a fucking disgrace. And yes, they really do call them customers. I am occasionally tempted to scribble on the notice addressed to Customers in room TM101 of the RCJ ("what can we do for you today madam. Two bankruptcies, an order for sale, and approval of an IVA? Yes, we take visa.")

That the County Courts are heading for chaos, just as they are dealing with more and more complex and high value cases is certainly true. Even in the High Court, in the RCJ itself, some solicitors have taken to personally filing documents and obtaining a receipt as they go missing so often. Only the other day a hearing of mine in a London county court turned out, when we arrived, not to be the kind of hearing it said it was on the order telling us to to turn up, but something rather different. Reason: the order actually made by the judge going through the file (without a hearing) had been sent off to some shonky outfit with the contract for drawing up the formal version of the order, and what had emerged from them bore little or no resemblance to what he had actually ordered. This happens all the time. This after a decade of reforms supposedly intended to make the administration of justice more efficient. The (continuing) reforms to Legal Aid have undoubtedly had the result that people either simply don't bring good claims or represent themselves, which they tend to do very badly (though there are exceptions), thus not only failing to present their own case to its best but vastly extending the time and effort everyone else ends up spending on it. God alone knows what will happen in the High Court when/if the proposed move and semi-merger of the Commercial Court and the Chancery Division to the Rolls Building, and the various consequent changes suggested happen, let alone if the more drastic plans for the abolition of the Divisions (which allow for the people dealing with a case, both court staff and judiciary, to have a bit of a clue about what is involved in that kind of case) and the even more vague idea about the merger of the High and County Courts ever happen.


Dec. 20th, 2006 05:17 pm
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...after years of waiting, the official UK Statute Law database has gone live. Right back to the Statute of Marlborough of 1267.

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For the love of Christ... If at first you fuck it up, have another go. And another. Repeat for the duration of your 9 years in office and claim you're successfully implementing policies.

Mr Reid said he wanted [...] to "move away from the traditional view that justice has to involve going to court [...]. The problem we face is what I call the justice shortfall. That is, the difference - sometimes big - between what you and I think is justice, and what a lawyer or legal academic might think it is. My kind of justice is swift, effective and matches the crime," said the home secretary."

The problem is, Reid appears to have no conception at all of the notion that those accused of crime, or wrongdoing in general, might be innocent, or even that there might, just possibly, be another side to the story. Accused=Guilty=Deserving of Punishment. Look at what a brilliant success ASBOs are. (Incidentally, I've seen more than one neighbour dispute where people have gone off and obtained ASBOs on no real grounds at all, simply for the asking, as a weapon in the usual war of attrition. Somehow, getting rid of them is more difficult, however ludicrous they may be.) As for lawyers, particularly criminal litigators, well, what the hell do they know. They all sit in ivory towers all day, not as though they go to a court and hear the nuts and bolts of criminal cases, the nasty little realities and allegations that all this is based on, the evidence about what was done by whom, day in day out.... um. (I actually do sit in an ivory tower a small basement office most of my days, but then I don't practice criminal law, preferring to be paid more than a pittance, that, by the standards of most people educated to degree level, being what junior criminal practitioners receive, contrary to popular belief). For the same reason he's returning to the idea of capping compensation for those wrongly accused: apparently "it is unfair that they in some cases get paid more than people who are victims of crime". But what do the wrongs of the two groups have to do with one another? It's a complete non-sequitur. Unless, of course, they were guilty all along and only got off "on a technicality". Ah those pesky technicalities. You'd think, if there wasn't a good substantive reason for them they wouldn't be there.

Ah fuck off you fascist thug.

EConvHR: Article 6 – Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3 Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b to have adequate time and facilities for the preparation of his defence; (etc.)

(Those like Mr Cameron who prefer this stuff to be British (whatever that means) can go read a little bit about the history of civil liberties and the conceptual foundations of the ECHR -quite heavily influenced by Anglo-American concepts, in sharp contrast to the EU treaties-, before saying anything stupid themselves.)

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The Guardian writes that:

Sir Ian Blair, the Metropolitan police commissioner, last night ordered an urgent review of a policy that allows officers to refuse certain duties on moral grounds after a decision to excuse a Muslim policeman from guarding the Israeli embassy.

PC Alexander Omar Basha, who is attached to the force's Diplomatic Protection Group, objected to being posted to protect Israel's embassy in central London from possible terrorist attack because he disagreed with the country's bombing of Lebanon. The officer had reportedly attended a recent anti-war protest.

For once in my life I find myself thinking "good for Ian Blair". If personal opinions, on politics, social mores, or whatever, cause a police officer to pick and choose who they will and will not protect, then they are not capable of being a police officer. And god knows the last thing we need right now, at a time when fracturing between socio-cultural/religious/ethnic groups, particularly Jews and Muslims, is a particularly serious issue in this country, is the factionalisation of the police. And yes, I personally think it's good he went on an anti-war protest, and he should certainly be able to do so. But he has to be able to turn up to protect the Israeli Embassy the next day, or the job isn't for him. Incidentally, yesterday was, as many pointed out, the 70th anniversary of the Battle of Cable Street: a great moment in the opposition against fascism in this country. And hurrah to the protestors and boo to Moseley (even though, as I understand it, the practical significance of the event at the time may have been rather less than that of the myth, many marches etc happily took place in the following weeks in the area). But what of the police ordered to protect the march? If any one of them had refused to obey orders they would have been sacked forthwith. And I think that would have been right. (The usual point about "only following orders" not being a defence doesn't apply because they weren't taking an active role, merely a defensive one to a legal march. Equally, any action by those police outside their proper duties on the march -such as beating protestors up- is a separate point from them being there.)

(ETA: it appears that the real story here is somewhat more complicated, several different versions of events have come out, particularly that he merely requested a different duty because he feared for his family in Lebanon if seen guarding the Israeli embassy. That certainly does, to my mind, put a different spin on this incident.)

I don't actually have much more to say about that, but it reminded me of a disciplinary case concerning my own profession I saw recently. I have a habit of occasionally reading the disciplinaries: most of them are about failure to do enough CPD hours (oops) or be insured, etc, but sometimes they have a certain black humour, or at least mild interest (like the irritated barrister who appears to have shouted at the poor paralegal attending him (who was probably inexperienced and well out of her depth) in terms involving the words "complete twat", outside court but unfortunately in the hearing of a judge who promptly wrote to the Bar Council: counsel was, I'm glad to say, heavily bollocked, bullying is never pleasant and nor does making an arse of yourself in public do wonders for the profession). This one was rather more significant than most. One of the fundamental rules of the Bar, rule 1 (well, actually, rules 601 and following and see also rule 303, but never mind the trivialities) runs as follows:

Read more... )


Aug. 8th, 2006 08:46 am
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I wrote about this on Geeklawyer's forum yesterday, and the inestimable Charon QC picked it up from there and wrote about it too, but I thought I'd note it here as well: compare and contrast:

Subject to the termination provisions of [the SSA], [the SSA] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.


Subject to the termination provisions of [the SSA], [the SSA] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms unless and until terminated by one year prior notice in writing by either party.

Read more... )
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Geeklawyer tells the story of:

Judge Florentino V. Floro Jr of the regional trial court in Malabon City [who] managed to remain in office for seven years despite changing his blue court robes to black every Friday to ”recharge his psychic powers” and professing the assistance of three invisible dwarf friends named Luis, Armand and Angel…

And then Judge Florentino V. Floro Jr replies in the comments. (Well, he says it's him, Geeklawyer says it's a Phillipines IP address, and I'm going to believe it because it's funnier that way.)

And someone else asks if they have red beards (cf Cocklecarrot J.) Splendid.

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The Court of Appeal has granted permission to claim judicial review of the refusal by the Government to hold an independent inquiry into the circumstances which led to the invasion of Iraq. R (Gentle & Others) v. Prime Minister, Secretary of State for Defence, and Attorney General [2005] EWHC 3119 (Admin.)

This is far from the end of the road of course, this is neither the Public Inquiry itself nor even the substantive JR hearing, merely leave for there to be a JR hearing into why there wasn't an inquiry (a stage designed, in theory, to weed out cases with no legal merit), and the Court hinted the chances of success were slim. Still, could be fun, and they are clearly going to have to consider legality of the war. The substantive hearing of the Review application is going to the same chamber of the CA, rather than back to the High Court, which is rather curious. Means that appeal against the outcome of the review itself will be straight to the Lords.

The applicants are relatives of soldiers killed in Iraq.

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I missed this: Bow Street Magistrates Court, the most important magistrates court for England and Wales, heard its last case the other day. Next thing it'll be the Bailey. Or the RCJ...

Not somewhere I ever appeared, or, frankly, was ever likely to appear, but it seems a sad loss. Also, frankly, by and large I find Victorian courtrooms rather better designed than modern ones.

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A few weeks after Lay's sudden death, a day before the NatWest Three's expected extradition, and while as a direct result of that the Commons debate the current state of the law on US-UK extradition, a key witness in their case has been found dead in a park in Chingford...

I Bet

Jul. 4th, 2006 02:55 pm
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From The Lawyer

A challenging opportunity has arisen for the urgent recruitment of a qualified commercial/ corporate /projects lawyer, who will act as senior legal consultant with an international consultancy practice based in Iraq. The successful candidate will be engaged in very exciting work in numerous sectors.

Perfect for any lawyer looking for adventure and the chance to escape the monotony of a conventional law firm. Pay and benefits will be extremely good and the work will be demanding and very interesting. The premises are in a secure location.

There are secure locations in Iraq?

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Guantanamo military tribunals ruled unlawful.

Judgment on the US Supreme Court website for those who want 185 pages of pdf.

ETA: particularly important because the decision is more wide-reaching than simply covering the Special Tribunals question. A significant part of the reasoning is the fact that the majority found that Common Article 3 of the Geneva Conventions does apply to the so-called War on Terror. That has implications well beyond these tribunals.

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Sullivan J clearly isn't interested in making himself popular with this Government. He's also responsible for Re: MB (which is closely connected to this case) and R (S & Ors) v. Home Secy (the Afghan hijackers decision). Good thing it's so difficult to remove a High Court judge really.

An odd image out of the "lenient sentencing" row from The Times Law Blog

The judge is embattled – he has had enough – but he is not down and out just yet. In a gesture of melancholic self-assertion, he will abandon the accoutrements of his profession (his wig), but not just any old how. He will despatch this centuries-old symbol of status into the Thames, this most potent of rivers, one steeped in history and figurative importance in British society, one whose gentle waves can be seen from the Temple, one of the major Inns of Court in London. The wig will thus be borne by the tidal currents of the Thames to a new destiny, under the watchful eye of barristers (judges-to-be) in the Temple, while its former owner opts to stagger, glass in hand, into the sunset.

Apropos of something completely different I am currently listening to Henman being his customary disappointing self. Good.

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Mark Stephens on The Times Law Blog on the Orgasmic Asbo granted this week in Newcastle.

I started several paragraphs but have to admit to being somewhat lost for words. I mean, what are the terms of the ASBO? "You shall not have a noisy orgasm"? Breach of an ASBO is, of course, a criminal offence.

In the mean time, Chris Bertram on Crooked Timber, and Gary Slapper and Mark Stephens (again, and rather more succinctly than Slapper) put the boot in on Blair's plans to "rebalance the criminal justice system", reminding him of this little thing called the presumption of innocence, and the difference between a suspect and a convicted criminal.

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Via Slashdot:

Avista Management Inc d/b/a Avista Plex Inc vs. Wausau Underwriters Insurance Co. (CNN)

June 7, 2006: 12:58 PM EDT
This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is
ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.
DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.

They'll be needing this

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The Government has backed down, to some extent, on the Legislative and Regulatory Reform Bill (latest version of the Bill currently here.

I haven't had a chance to go through it in detail as yet, so I'm unsure whether the amendments, available here (.pdf) cover all the concerns, but the crucial point would appear to be that the Bill will grant the powers only for the purpose of removing burdens, administering regulatory powers, or implementing proposals of the Law Commissions. (The latter two points weren't referred to in the news reports I've seen, but are still there in the amendments, and the last point about Law Commission reports still says "with or without amendments": while I can certainly see a reasonable argument for pushing through LC Bills as they stand, since they go through a very long consultative process before reaching the legislative stage, the point seems less strong if they're going to be amended.

The noxious Jim Murphy's line on Today was "well, this is of course what we always meant." Which rather invites the questions: "why didn't you draft it that way in the first place then, and why did you reject all previous proposals to do just this?"

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Judgment for defendants in Baigent & Leigh v. Random House Ltd (as Dan Brown's publishers and, in fact, their own)

(There's a summary version on the HM Court Service website.)

There is no "Architecture" or "Structure" to be found in HBHG or the Central Themes as contended by the Claimants nor has Dan Brown infringed any such Architecture or Structure or substantially copied HBHG when he wrote DVC although it is clear it was used to write the Langdon/Teabing lectures.

Not my legal field so I pass no comment, save that historically and artistically both books are rubbish. Peter Smith seems to have been quite enthused, more than he has been when I've been before him anyway.

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This litigation owes its origin to the manner in which a series of professional gentlemen in the north of England permitted themselves to transact, or in more accurate phrase to entangle and perplex, some legal business entrusted to their care. These licensed pilots undertook to steer a post captain through certain not very narrow straits of the law, and with abundance of sea room ran him aground on every shoal that they could make. First in 1824, then in 1825, and again some years afterwards, was the gallant officer incumbered with help for which he could perhaps supply a better term than I can. The crowning effort was in 1840, with reference to which, I may say, that seemingly the whole of the costs of the cause on each side, as between solicitor and client, ought to be born in a quarter upon which neither this nor any other court has probably the power to throw them.

(per Lord Justice Knight Bruce in Walker v Armstrong)


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