Tag Archives: judiciary

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from the early 1990s – The Crown Court Study, by Professor Michael Zander and Paul Henderson, so I used this slightly outdated evidence, feeling a little disheartened about my research skills.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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Diversity in the Judiciary – Are Times A’Changing?

The judiciary has long been criticised for being made up of white upper class men, however how accurate is this picture of the modern bar? It appears that in the area of diversity little has changed or at least  not enough.

In the recent Report published by the Lords Select Committee, the statistics show that in 2011 only 5.1% of judges were Black, Asian and Minority Ethnic (this is officially referred to as ‘BAME’) and only 22.3% were women. While the Committee stressed that the ‘diversity factors’ incorporate a number of other elements including disability, sexual orientation and social background, I have always found it odd to be asked to disclose highly personal information such as sexual orientation on an application form to the Inns of Court. That however is an entirely different matter.

The Committee stated that while judicial appointments should be based on merit it is vital and should continue, it appears that this has not resulted in a judicial system which is representative of society. It welcomes the idea of greater diversity and has agreed that the application of section 159 of the Equalities Act 2010 to judicial appointments would be beneficial in encouraging a change in the makeup of the legal system.

However why are these groups under represented? One of the most puzzling factors here is the lack of female appointments. There are such a large number of women studying law that the measly figure of 22.3% seems completely unrealistic. Not only because women obviously account for half the population, but also because there are so many top female law students and lawyers.

Dame Elizabeth Kathleen Lane: First female judge in the UK

When you walk into a lecture at City Law school, at least half of the lecture theatre will be filled with women. Where are these faces in the judiciary? How and where do they get lost on the way to the top appointments. Lady Justice Hallett highlighted this issue by indicating that her appointment was rather an anomaly than a symbol of modernisation. Maybe most of these law graduates choose to become solicitors rather than barristers/judges, where there is greater diversity.

The bar is by definition quite an exclusive and closed profession. The tuition for the BPTC now costs between 14,000 and 17,000 pounds, which many aspiring barristers embark on with no, or very little funding. Who can afford such a high price, especially at a time where the chances of securing a pupillage are so slim. These constraints prevent many law graduates from gaining access to the bar, unless of course they have an alternative income or support from their family. This however still does not explain the lack of female judges.

Constance Briscoe one of the first black judges and author of Ugly

Women and candidates from minority backgrounds should be encouraged to apply for these positions by creating more compatible working conditions. The Committee has recognised that there should be wider opportunities available for flexible working hours and career breaks, in order to encourage applications from women and others with caring responsibilities. (not that it should only be women caring for children – this may also attract a different sort of man who may be more adapted to home life)

The Committee has not actually set out any targets for the number of BAME and women judges it seeks to appoint, however it says this issue should be reviewed in five years if no significant progress has been made. I won’t hold my breath on the next set of statistics, but I hope that those making judicial appointments will be more open to embracing change.

Video Clip of Baroness Jay discussing judicial appointments

Baltasar Garzon Cleared – What does this mean for the Spanish Justice System?

Baltasar Garzon was cleared by the Spanish Supreme Court of overstepping his authority on Monday. He was accused of abusing his judicial powers by opening an investigation into the disappearance of 114,000 individuals during the Franco era. Mr Garzon argued that these were crimes against humanity and therefore could not be subject to a 1977 Amnesty legislation, which prevented the perpetrators from being tried.

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Only one judge on the seven judge panel was in favour of a guilty verdict. However it seems his acquittal was based on a technicality rather than a changing view of the law regarding the issue. Mr Garzon had committed an error when he opened the investigation but it did not constitute a crime. The ruling stated:

“He misinterpreted Spanish law but did not knowingly and arbitrarily violate the limits of his jurisdiction … as would be required for a conviction” 

He was recently found guilty of illegal wiretapping in a separate case, which in Spanish law seems to constitute a rather grey area. This guilty verdict caused him to be suspended from acting as a judge for 11 years, effectively ending the career of the 56 year of judge. He was also accused of corruption in another case which has been thrown out by the Supreme Court.

His supporters and a number of human rights groups have argued that these cases against him were primarily politically motivated. The prominent judge had made many enemies due to his activism, especially launching an investigation into Spain’s recent bloody history. His opponents have argued that writing history should be left to the historians while his supporters want accountability and answers for the crimes committed. The outcome of this case appears to have done little in terms of clarifying the legal issues surrounding Mr Garzon’s conduct and his aims, it has arguably just raised concerns over the legal and political implications of addressing Spain’s past.

Update: Baltasar Garzon found guilty of illegal wiretapping

Spanish judge Baltasar Garzón, was found guilty of illegal wiretapping yesterday, as a result of a domestic corruption investigation. A panel of 7 judges found him guilty of misconduct, he is now liable to pay a fine of €2,500 and has been barred from the bench for 11 years. He has also been on trial in a separate case, for allegedly abusing his position by launching an investigation into human rights abuses during the Franco era.

In 2009, Garzón ordered wiretaps of conversations held between detainees and their lawyers in prisons. Wiretaps are permitted in cases involving suspected terrorists, but Spanish law is more ambiguous on non-terror cases. Garzón claims he ordered the wiretaps because he believed the lawyers were being instructed by the detainees to launder money. The respective prisoners are accused of paying politicians to obtain lucrative government contracts.

Garzón is still awaiting the verdict from his other case.

IP Law and Extradition Agreements

The recent extradition case against Richard O’Dwyer, involving the breach of US copyright law, raises serious issues about the use of extradition agreements between states.  The 23 year old student ran tvshack, a website hosting links to tv programmes and films which could be streamed online for free. By providing links to protected creative material, his website was allegedly in violation of US copyright law. Despite the indirect function of the site, the links can amount to secondary infringement which is a criminal offence under US law.

Richard O'Dwyer with his mother Julia outside Westminster Magistrates Court

How do these US laws apply outside it’s own jurisdiction? The simple answer would be that they don’t.. Or that’s what we would assume. The crimes O’Dwyer is being sought for by the American authorities are not actually offences in the UK. However under an extradition agreement between the US and Britain he could be tried for crimes in US courts. The the Extradition Act passed by Labour post 9/11 in 2003, was primarily designed for extraditing terror suspects and appears quite unsuitable in relation to this case. Clearly Richard O’Dwyer is not being sought for terrorism offences, so how can this treaty be applied to someone who has merely violated US copyright law.

In the US O’Dwyer could face a maximum sentence of 10 years, while he would most likely only face a fine in the UK for equivalent copyright violations. Sir Menzies Campbell, who is currently leading a review of UK extradition arrangements, stated:

Sir Menzies Campbell is leading a review into extradition on behalf of the Lib Dems

“It seems anomalous to say the least that an action taking place in the United Kingdom which would not be regarded as criminal can justify extradition to the U.S.”

In January, District Judge Quentin Purdy said that he was satisfied the alleged conduct would constitute an offence under British law, and ruled that the extradition could go ahead. He stated that it was important that justice was not hindered by national borders, to ensure alleged victims of crime along with the public could maintain faith in the legal system. It seems to me that being extradited for copyright infringement on agreements created to deal with terrorism suspects, is a strong incentive for the public to lose their confidence in the judicial system. Why can O’Dwyer not go on trial in the UK if Judge Purdy believes his conduct would constitute an offence in Britain?

If there are such grave concerns relating to protection of intellectual property, why do they not create cross border agreements relating to intellectual property law allowing individuals to be tried in their home countries?  It seems fundamentally wrong to use an agreement designed for an entirely different purpose to extradite a British citizen on much lesser offences. It appears that the British courts are dealing with American pressure to extradite O’Dwyer under the Extradition Agreement rather than addressing the nature and gravity of his case. Julia, Mr O’Dwyer’s mother, has been running a campaign to to fight his extradition and allow him to stand trial in the UK. In an interview with the World Socialist website, she criticised the UK’s willingness to extradite its own citizens without considering the alleged offences:

“With America, it is a whole different treaty and law. It’s very difficult to fight because you’re not addressing the alleged crime. You are fighting the extradition law. When you go through the extradition courts, they want you to go to America to prove your innocence. They don’t want to be looking at the allegations against you”

The O’Dwyer case draws worrying parallels with the case of Gary McKinnon, who has been fighting extradition to the US after hacking into the Pentagon website. The Asbergers sufferer claimed that he had hacked into the site in 2001 and 2002 in an attempt to find evidence relating to UFO’s. He has also been subject to the 2003 Extradition Agreement between the UK and US since it came into force in 2005 some years after he committed the relevant offences. If McKinnon is extradited and charged he could face up to 70 years in prison.

US President Barack Obama tried to distance himself from the issue of extradition when forced to answer a question about O’Dwyer’s case in a live digital questioning session in the White House. Thousands of web users had voted for it to be the top issue to be put to the president. Obama claimed that as a president he did not take a direct role in the case.

“I’m not personally doing anything, I want to make sure everybody understands… the president doesn’t get involved with prosecution decisions or extradition decisions and this has been a decision by the Justice Department”

While the US president may not be personally seeking O’Dwyer’s extradition, he did not criticise the case. Nor did he comment on the use of anti-terrorism legislation relating to the extradition agreement. In a stereotypical style of a politician he looked shifty and tried to move away from giving a clear answer.

The Extradition Agreement 2003 makes it much easier to extradite British citizens to the US than the other way round. The ratio of extradition currently stands at 5:2 in Americas favour. Mrs O’Dwyer has been very open in voicing her disappointment in the UK’s  handling of the case, she told the Daily Mail:

“The UK government’s passive acceptance of disproportionate extradition is shameful, but well known.” 

Extradition agreements should be reserved for serious crimes involving dangerous criminals. While the tvshack website may have been in violation of copyright laws in the US, extradition and custody measures  seem to be a hugely disproportionate punishment for a young university student. The role of British courts in this case is hugely alarming and raises concerns regarding the protection of British citizens. The extradition process should not be welcomed by UK courts but rather enforced as a last resort in serious circumstances. The laws used to extradite individuals should relate to their offences rather than serving a means to put them on trial in that country. If we constantly extradited British citizens for breaching laws of other states we probably wouldn’t be left with much of a population. Perhaps due to increased globalisation and internet piracy, a strengthening of intellectual property law is needed across borders. However extradition measures created for terrorism offences have no application in such circumstances.

A petition has been set up to campaign for a fair trial for Richard O’Dwyer in the UK.

Here is a short video on the case from RT News

Sentenced for looting? What about corporate fraud?

The sentencing of rioters this summer appeared to be  harsh, disproportionate and policy driven. The government tried to influence sentencing and the judiciary went along with it, handing down long sentences for crimes that would normally barely even reach the court. The damage caused by the riots, especially to small businesses, came at a high cost. The government and the public wanted there to be a consequence for all those involved. The courts proceeded to make an example of those who had looted goods, by giving them prison sentences of up to several years.

Andrew Wetherall outside the court with his wife, who due to her expensive tastes, he claims he committed fraud for

There was a father of two jailed for 18 months for stealing a flat screen tv, a 19 year old was sentenced to 2 years in a young offenders institution for drinking stolen champagne and picking up a pair of stolen trainers, and then the case of the 6 month sentence for stolen water from Lidl. What about ex Labour minister Elliot Morley? He was freed last year after serving only a quarter of his 16 month sentence for claiming 30,000 pounds in expenses. While Andrew Wetherall, the director of KPMG who stole 500,000 pounds by fiddling his expense claims. He was sentenced to 4 years, for a crime that vastly outweighs the cost of a flatscreen tv. The theft of the damage caused by the riots is not insignificant or justifiable, but a custodial sentence is in my opinion highly unsuitable for most of those involved in the riots (community service and restorative justice would be much more helpful in rebuilding communities). It is also completely inconsistent with the large scale theft committed by individuals in government or in charge of running large corporations.

Although figures show that the majority of those arrested for theft last summer were not in fact children, the rioters were still overwhelmingly young people. The media were quick to once again demonize the British youth, even last week there was debate about the discipline of children and whether restrictions on smacking children should be lifted. However, the public seems to ignore the great examples being set by adults in the form of fraudulent businessmen, MP’s and executives of large corporations. These individuals are portrayed in a completely different light to those who stole a tv, a pair of trainers or a bottle of water last summer.

Combined with the lack of prospects, how will the next generation gain respect for our society when those at the top are regularly looting assets to lead lavish lifestyles. When young people see the anarchic behaviour of the rich and the often mild consequences of this behaviour if any, how can we expect them to develop different values? Many people who got caught up in the moment and took part in the chaos, behaved as if it was their right to appropriate goods e.g. a pair of trainers, even trying them on before leaving the ransacked shop. The public were shocked by these details, but how is this different, in fact it is hardly comparable to the behaviour of  Bill Godley, Andrew Wetherall, Elliot Morley, Lord Taylor or the cases of Alstom, BAE etc… The recent corporate fraud cases are too numerous to name.

I’m not condoning stealing, but why is corporate fraud treated like a relatively harmless and victimless crime? On the UK’s Fraud Prevention Service (CIFAS) website, the Chief Executive, Peter Hurst states that although violent/aggravated burglary and scams are different crimes, their consequences are often the same. There are many different fraud cases and many different types theft, but the money stolen is also money lost by others. Those sentenced for looting or theft took goods as if they were entitled to it, just like those who have committed fraud. If judges are quick to make examples of those who looted during the summer riots, why are they not applying the same tactic to those who commit corporate fraud?