Monthly Archives: June 2012

Judging Judges – Is there a need for greater judicial scrutiny?

I attended Cheryl Thomas‘ inaugural lecture at the Judicial Institute at UCL last Wednesday where she talked about judicial studies and in particular, the study of judges and juries. I’d never really thought about judicial studies until I was trying to find empirical evidence of the behaviour of juries in criminal trials for a paper I was writing. All I found was a study from the early 1990s – The Crown Court Study, by Professor Michael Zander and Paul Henderson, so I used this slightly outdated evidence, feeling a little disheartened about my research skills. At the lecture I found out that this paper was in fact one of the few empirical studies of juries in the UK. Thomas described the study of juries in the UK as a as a “black hole” with academics remaining cautious about conducting research in the area, for fear of breaching Section 8 of the Contempt of Court Act.

Royal Courts of Justice Photo courtesy of Gareth Davies

However it is not only the study of juries that is largely neglected in the UK, but perhaps more surprisingly, the study of judges is also neglected even though this wouldn’t be limited by the Contempt of Court Act. This paucity of research could be due to a number of factors, most notably the commonly held belief that the judiciary should not be interfered with. In 1955 Lord Kilmuir famously claimed that there is a need for ignorance to “protect” the judiciary from scrutiny, establishing the so-called Kilmuir rules. This changed in the 1980s when these rules were revoked. In March, the current master of the rolls, Lord Neuberger, stated in a speech to the Student Law Society at Birmingham University:

“it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.”

His assertion that members of the judiciary should be able to make extra-judicial comments as well as having a public profile also came with a warning that judges must be cautious about what they say publicly.

In the US the area of judicial studies has greatly evolved since the 1950s with prominent academics such as Theodore L. Becker making it a well respected field of study. In the UK there has been little attempt to study the work of judges, the book by JAG Griffith on politics of the judiciary is based on very little empirical evidence and has failed to encourage further study. This also means that assertions made by those who write or comment on behaviour of the judiciary, as well as assumptions or sweeping statements, often go unchallenged regardless of their accuracy.

Thomas claimed that academics in England and Wales lack curiosity in relation to the judiciary, but she also stated that while they are not in opposition with judges, they do not have a great deal of contact with one another. It appears to her that academics have lost touch and no longer have the appropriate skills to study the judiciary.

The key problem in the judiciary of England and Wales lies with judicial appointments and the failure to improve diversity. While there is some progress being made in relation to the number of women appointed in the judiciary, the number of black, Asian and minority ethnic (BAME) candidates remains very low. The current appointments to the judiciary of England and Wales are significantly unrepresentative of society, this is not only regarding gender and ethnicity but also taking into account socio-economic background.

The judiciary of England and Wales is often cited as being one of “the best” legal systems in the world. Although there is no international study to confirm or reject such an assumption, there is evidence to suggest that it fares very well in comparison to other states in terms of corruption and speed. Nevertheless it’s reputation is tainted by its poor diversity statistics, the public debate on the issue of diversity has become sterile and unproductive as a result of progress being so slow.

Establishing judicial studies as a respectable and rigorous academic field could not only increase public understanding and interest in the judiciary, but it could also serve to improve the quality and openness of our legal system.

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The Communications Data Bill: Bogeymen and Blanket Surveillance

Despite warnings from digital rights groups, privacy advocates and experts in the tech world, the government has gone ahead with their plans for blanket surveillance measures on the internet, including controversial practices such as deep packet inspection (DPI).

The draft Communications Data bill published yesterday proposes that individuals’ data is stored using so called “black boxes” tracking their detailed internet use i.e. every website they visit, Google search terms, emails etc. A vast amount of data can be stored in these devices and using specialist software this data can be analysed using search functions and selection methods.

Currently Government Central Head Quarters (GCHQ) can access a large amount of data and conduct surveillance of specific suspects, the difference in the CCDP bill is that this data would be accessible in relation to any member of the public. The idea behind this seems to be that by conducting “blanket surveillance” the authorities could catch criminals who are not yet suspects.

Throwing such a wide net however would also consequently entangle innocent people and breach their privacy, while most likely only finding those criminals who lack basic internet skills. The issue here is rather who the authorities actually wish to target and where they plan to concentrate their resources, than assuming everyone is a suspected criminal. Apart from a terrifying intrusion into people’s private information this would be an arduous task for police, who currently are lacking the resources to analyse comparatively low levels of data already.

This brings me on to the next issue – costs. The proposed cost for the implementation of the bill is over a billion pounds. Judging by experience on spending for the Olympics this figure is likely to rise by quite a lot. At a time when there are cuts to essential services in the NHS, legal aid and right across the public sector, where will the government manage to drum up the money for implementing a misguided and ludicrous piece of legislation – which looks to only benefit the security industry itself.

While the security industry may prove lucrative for the government, the harm that this bill will cause to the public greatly overrides any government-business relations. Such an outright invasion of individuals’ privacy and the breach of personal freedoms and basic human rights cannot be justified by the government in any way whether it is business-motivated or not.

Analysing internet use can paint a very intimate picture of someone’s private life such as their health, financial situation and their personal relationships. It is not only an extreme breach of a person’s privacy but it is also completely unnecessary. Most of those affected will be innocent members of the public who may be unaware of the full extent of the bill and who do not know how to encrypt websites. Furthermore, the criminals that the government is referring to, can easily bypass the surveillance measures, thus making them even more difficult to catch.

While the government insists it will not read the data, it claims that it must have access to it for the purpose of catching criminals. Charles Farr – the head of the Home Office’s of security and counter-terrorism office, was extremely defensive when questioned about the bill and merely stated “trust us, we know”. On the contrary, it appears that any sensible person with expertise in the field of internet security would know that the proposals in the bill make very little practical or financial sense. Therefore trusting the government to “know what it’s doing” seems more and more naive on this issue.

It appears that this is just one of several bills the government is putting forward which seeks to take away fundamental personal freedoms and infringe basic human rights. Only on Sunday, Theresa May criticised judges for “not qualifying” Article 8 of the European Convention on Human Rights (ECHR) and being too lenient on criminals who use Art.8 to remain in the UK (even though only 2% of foreign nationals facing deportation after criminal proceedings successfully apply Art.8 to remain in the UK). These recent policies proposed by the government are particularly worrying as they may have severe consequences for basic human rights in the UK.

The government has taken the line that this is an effective way of catching the usual bogeymen – terrorists and paedophiles. What they are still failing to consider, is that the system is relatively easy to bypass and simply requires the use of encrypted pages – in simple terms this means that websites using “https” rather than “http” cannot be tracked.

Should Government Intervene in the Judicial Process? — Home Secretary criticises judges on application of right to family life

Theresa May stated today that judges must follow stricter rules on the application of human rights laws in relation to immigration and deportation of criminals. She also claimed that Article 8 of the European Convention on Human Rights (ECHR) – the right to family life, is not an absolute right and must be weighed up against public interest. The cross government agreement approved by Ken Clarke encourages judges to interpret Article 8 in a way that would put the state before the right to family life.

On the BBC’s Andrew Marr show the Home Secretary revealed plans to tighten immigration laws and to prevent criminals using Article 8 to avoid deportation.  The UK is introducing “financial independence” rules which will make it more difficult for tens of thousands of families to bring relatives into Britain. When the measures come into force next month, individuals must earn at least £18,600 to bring in a non-EU  spouse into the UK and additional income for each child. May is emphasising that this will prevent foreign partners from “relying on benefits” for when they settle in the UK. She claims that these moves seek to largely reduce net migration as well as ensuring integration and economic independence of immigrants.

She also referred to plans to introduce “Britishness tests” which will consist of English language as well as a “life in the UK” tests. Marr pointed out the challenges that may arise in relation to Article 8 ECHR, however May argued that states have the ability to “qualify” the right to family life i.e. apply their own interpretation. She argued that the courts have not been correctly qualifying that right “not even in the way stated by the Convention”. Ultimately she is pressuring judges to enforce more stringent legal controls on the immigration of relatives of British residents as well as making it easier to deport foreign criminals.

The Home Secretary stated that she will outline the rules and guidelines in qualifying the right in the courts. “[I am going to] set out the rules that say this is what parliament, this is what the public, believe is how you balance the public interest against the individual’s interest” According to May the ECtHR has actually been tougher than some English courts in this area, she claimed that in many European cases judges differentiate between a foreign nationals who have been in the country illegally  or legally.

Her proposal for tighter rules emphasises the governments view that the right to family life doesn’t necessarily take precendence over other factors. The government plans to introduce legislation if the judges do not follow the motion set out by the Commons. She warned: “I would expect that judges will look at what parliament will say and that they will take into account what parliament has said. If they don’t then we will have to look at other measures and that could include primary legislation.”

It is unclear how exactly the government is to assess whether or not judges have taken on board the government’s wishes. For May to publicly criticise the work of judges for not being in line with the governments policies seems a  little worrying as surely judges should be expected to act within the framework of the law rather than according to the interests of the government. Lawyers have stated that implementing legislation to amend the human rights act or to change its proper application would most likely be contrary to the convention.

Critics have argued that it is not the job of Parliament to interpret the law but that of the judges. May’s comments on the Marr show could be seen to be labelling immigrants as benefit scroungers or criminals who are abusing human rights laws such as Article 8 in order to stay in the country. The governments intervention on the current approach taken by judges seems both unnecessary and inappropriate. While many judges inevitably reflect public opinion to a degree they should primarily base their judgments on the law. Government has no place to enforce their political agenda onto court decisions, and judges should act in the public interest to uphold a fair and legitimate legal system that upholds human rights.

German Agency Wants to Snoop Social Networks to Analyse Creditworthiness

A German credit agency in is planning to analyse the creditworthiness of individuals by using information gathered from online sources such as Facebook and other social networking sites.

Schufa, Germany’s  largest credit agency intends to assess peoples ability to make repayments by using “crawling techniques,”  such as those used by Google, for the purpose of “identifying and assessing the prospects and threats.” A spokesman for Schufa told Spiegel Online that “everything is happening within the legal frameworks in Germany.”

Nevertheless, the proposal raises serious concerns over assessing a person’s reputation from information found on the web. Schufa is planning to analyse automatically recorded information on the Internet such as on social networks, and this can then be linked to the stored data gathered by the credit agency. Although Facebook pointed out that according to its terms and conditions, automatic registration of members was actually not permissible.

For a country with some of the strictest privacy laws in Europe, it is no surprise that the proposal has come under a strong criticism. Analysing data related to personal relationships which can be found on Facebook and Twitter in order to judge a persons creditworthiness is a severe invasion of privacy.

Since the German broadcaster NDR reported on the research project last  Thursday there has been a public outcry. Numerous privacy advocates and politicians have strongly criticised the proposal.

Sabine Leutheusser-Schnarrenberger,  the German Justice Minister, was quick to condemn the credit agency’s plans. She told the Spiegel that Facebook “friends and preferences” should not prevent an individual from, for example, being able to obtain a mobile phone contract. Leutheusser-Schnarrenberger stated “Schufa and other credit agencies should disclose their full intentions of using Facebook data to check creditworthiness.” She said that the data used to determine someone’s credit report is already controversial and called for the process to be made “fully transparent.”

On Thursday, the Justice Minister was joined by Consumer Protection Minister Ilse Aigner in warning Schufa and HPI about tracing individuals on social networks, and requested further information on the research plans. Rainer Brüderle a parliamentary member of the Free Democrats (FDP) stated that “Schufa’s plans go too far…social networks, like a circle of friends, are part of a person’s private life, and should therefore not be tapped.”

However, the Hasso Plattner Institute (HPI) which was to be commissioned by Schufa to develop a proposal for the project, has now pulled out due to mounting criticism from politicians and privacy advocates. The privately-funded information technology institute was going to explore the extent to which information from the Internet can help in evaluating the creditworthiness of individuals. HPI  announced that it has withdrawn from the contract with Schufa.

In a statement, the institute claimed there had been some “misconceptions” by the general public about their research approach. HPI Director Christoph Meinel stated that the project could no longer be carried out with the ease and in the “unburdened” conditions necessary.

The move by HPI, a clear blow for Schufa, has been welcomed by critics of the proposal, but it is unclear whether the credit agency intends to pursue the project regardless. The proposal could be hugely damaging to the privacy of individuals, linking their private relationships and their online reputation to their creditworthiness seems hugely invasive. Schufa’s plans could have detrimental effects on a person’s everyday life and further highlight the dangers of disclosing personal information on the internet. It is unclear whether Germany, a country with some of the most sophisticated privacy laws in the world would be able to justify such actions in accordance with its legal framework.

US Supreme Court Rejects Blackwater Appeal – What does this mean for the accountability of Private Military Firms?

There are serious legal and human rights concerns about private military companies providing “security services” in conflict areas. Where the strict hierarchical discipline of the military is avoided, you may wonder who these companies are accountable to.

The recent Supreme Court decision regarding Blackwater Worldwide the US private security firm that operated in Iraq has left the door open to the possibility of holding these private firms accountable for unlawful violence in war zones.

On September 16, 2007 heavy gunfire erupted at the busy Nisour Square junction, killing at least 14 civilians including a 9 year old boy and leaving dozens injured. The shots were fired from a convoy of four armoured vehicles manned by Blackwater guards, who maintain that they were acting in self-defence after being shot at by insurgents.

Witnesses claim that the contractors were never in any danger and shot at civilians mercilessly and unprovoked. The chief prosecutor Kenneth Kohl disclosed that other Blackwater guards who had been on the convoy involved in the Nisour Square shootings reported the incident to Blackwater management, one guard describing it as “murder in cold blood“. However it appears that the  management failed to report these statements to the State Department.

The case had previously been thrown out by federal judge Ricardo Urbina on December 31, 2009 who cited misuse of statements made by the defendants by investigators.  The state department had ordered the guards to explain the details of the incident to investigators under the threat of losing their jobs. Their lawyer argued that using these statements to charge the four men amounted to a violation of their  constitutional right against self-incrimination and were made under duress.

However the charges were reinstated in April 2011 when a federal appeals court reopened the case and ordered the review of evidence against each individual defendant. The US Supreme Court refused to dismiss the manslaughter and weapons charges against the four defendants Paul Slough, Evan Liberty, Dustin Heard and Donald Ball and has declined to comment.

This is a small victory in holding private firms accountable for their actions in war zones. The privatisation of war and the use of private military firms is becoming increasingly prevalent and raises serious concerns over accountability. While this is not an isolated incident and it is likely that many unlawful actions by such contractors can go unnoticed due to the nature of their work, it provides a step towards creating a framework in which these companies could be held responsible for their actions.

Due to the transnational nature of many private military firms it is increasingly difficult to hold these companies responsible for the actions of their employees. The fact that these firms work in states in which the government has collapsed or is unable to enforce the necessary laws due to the condition of the state the operations of these firms often go unnoticed even if they are largely acting outside of the law.

Blackwater later changed their name to Xe Services, and after being unable to shake their bad reputation decided on a further name change now calling themselves Academi.

Access to Law Anyone?

Everyone should have the ability to understand and to access the law. The legal system of England and Wales takes pride the quality of its judiciary and seeks to ensure that everyone is equal before the courts.

In a recent public lecture, lawyers and law professors explained how law can be used as a tool by anyone. It can be applied in ways that can empower people and help them to solve complex problems, it can also be used to prevent disputes getting out of hand or to apply pressure for social change or to obtain justice. This doesn’t seem entirely realistic: ‘Anyone’ can research the law if they are equipped with access to a case law database for a small fee, ‘anyone’ can decipher statute if they have the right education and familiarity with legalese. ‘Anyone’ could use the law as a tool provided they know how to access the law and have the time and expertise to do so.

Although the law does not necessarily ensure fair and just outcomes, it can be used as a tool to challenge unfair circumstances. Decisions are not always black and white, and in some areas, law simply provides a starting point for relationships and transactions between people. The law is more of a scaffolding for our interactions, it helps us to lay down rules on how we behave and how we do business in society. If the general public aren’t able to understand the law, we limit its use as a structural tool for society.

Appointing a lawyer to decipher decisions or statute should not be prerequisite, it should be a choice. Of course looking up legal issues is very time-consuming, however it shouldn’t be written and recorded in a way that intimidates and confuses those who have neither studied nor worked in a legal environment. Most important decisions are only available to read in full on legal databases for which you must pay and subscribe. Not only lay-people, but also foreign legal professionals are often on the wrong side of the paywall: a French law professor, writing an article on comparitive criminal law, was recently reduced to asking me to look up a legal decision in the database for her.

It is not only the subscription based databases or the structure of the legal profession that are a barrier, but also the language in which the law is written and the lack of support for the average person to help them to understand the law. Legal aid cuts are going to make this an even bigger problem, lawyer’s fees being too high for many people seeking legal advice. Many are put off by the high fees and the unapproachable image of the stereotypical lawyer.

The changes to legal aid which seem increasingly inevitable, will put pressure on the already overflowing law centres and citizens advice bureaus. Providing low-cost advice and guidance to the law could be hugely helpful in coming to terms with the changing legal climate – making the law more accessible.

Will England and Wales become a two-tier society where those who can afford legal advice are able to intimidate those who cannot? The upcoming cuts to legal aid must not lead to a legal system that fails those who cannot pay.