John Kampfner
The Americans have finally had enough of us. In June the House of Representatives passed a bill protecting US citizens from British libel laws. It contains the embarrassing claim that libel actions in British courts are often designed to get around American laws on free speech, and are “intended not only to suppress the free-speech rights of journalists, academics, commentators, experts and other individuals, but to intimidate publishers.”
The law’s catalyst was Rachel Ehrenfeld, an American writer sued for libel in London—not the US—by a Saudi businessman in 2005 over allegations that he had links to terrorists. Ehrenfeld had not published her book, Funding Evil, in Britain, but 23 copies were sold online here. She decided not to defend the case, and was ordered to pay £130,000 in damages and costs. Ehrenfeld sought protection in the US, but found none. Thus began the battle for what came to be known as “Rachel’s law.”
The problem, according to Floyd Abrams, one of America’s most doughty civil liberties lawyers, is that US claimants have to prove that allegations about them are substantially false, while in Britain claims are false unless a defendant shows otherwise. British law, he says, is “American law turned inside out.” Many other countries now share America’s dim view: our libel laws are derided around the world as benefiting only legal firms and those who are both rich and have something to hide. The latter are often “libel tourists,” foreigners who sue in Britain, confident that there has never been a better time or place to do so.
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Elizabeth Pisani
To discuss this article visit First Drafts, Prospect ’s blog
Having lived in India, Indonesia, Kenya and other recent adopters of democracy, I’m no stranger to the untidy realities of parliamentary government. And while the mother of parliaments has not been setting a good example in recent months, one of the legislative backdrops to the expenses scandal tells us more about parliament’s true strengths and weaknesses. To find out more I have been talking to Catherine Stephens, a sex worker who, like many in her trade, has spent time hanging around Westminster. Lately Catherine has been there on parliamentary business, trying to knock some sense into the nation’s laws on prostitution. And she scored a significant victory on 19th May at the third reading of the current policing and crime bill.
The legislation covers gang law, airport security and what the government can do with your DNA—as well as whether men should be jailed for paying for sex with prostitutes. If it passed you by it might well be because the Speaker interrupted its third reading to make a statement about MPs’ expenses, and promptly fell on his sword.
Evan Harris, the Liberal Democrat MP for Oxford and champion of safer sex work, was speaking at the time. He soldiered on as gaggles of MPs took possession of the chamber. Harris politely gave way for the Speaker’s eight minute interruption, and then quietly resumed as most of his colleagues drained away.
The debate gave a fascinating glimpse into British democracy. Discussion of a law that may mean life or death in the sex trade, and that threatens men with arrest for an offence that is not clearly defined, was sandwiched into a couple of hours. The government bangs its drum on “evidence-based” policy but failed to present any evidence that locking up prostitutes’ clients will reduce trafficking of women. Labour’s John McDonnell summed it up well: “We not only do not give ourselves the time to discuss legislation, but we legislate in absolute ignorance of the facts of what is happening on the ground… This is no way to run a country, is it?”
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Alex McBride
“Bugger won’t plead guilty,” said the beleaguered-looking defence counsel with a weary sigh. “I’ve got absolutely nothing to say. Might as well have brought my bongos.” Thank God I was prosecuting. I was giddy with relief that I wasn’t the one stuck with the “no questions” trial. This is what the trade calls a case where the evidence against your client is so overwhelming that you can’t think of any questions to ask on his behalf.
How had it come to this? Malcolm and his crew weren’t slapstick junkie burglars snagging themselves on windows and dripping blood (not to mention DNA) all over the place. They were professionals. They chose their targets carefully—like the warehouse in a secluded industrial estate, a few months before. They came in over the roof, cutting the cables that connected the alarm to the police station. They dropped down into the warehouse, lifted the internal security doors off their runners and broke into the storeroom. From there they loaded their Luton van with £90,000 worth of upmarket pens.
Everything went beautifully—so much so that the gang used the same strategy a few weeks later when they broke into a mobile phone company. This time they took the company’s delivery van too, disabling its tracking device. They loaded it up with £250,000-worth of mobile phones and were gone. What chutzpah! The plods would never catch them.
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Alex McBride
“There’s CCTV,” said the prosecutor cheerfully. I wasn’t worried. CCTV is generally of such bad quality that it’s hard to figure out what the indistinct blobs on the fuzzy background are doing and to whom. Is it a pub fight? Is it a German expressionistic dance? Is it mating badgers? It’s anyone’s guess. The prosecutor pressed play. The picture quality was razor-sharp. She turned to me and smiled. “New camera,” she said.
Smack bang in the middle of the screen was my client, Giles, outside a pub, stripped to the waist and readying for action. His quarry made a break for it, but was too slow. Giles punched him in the face, flexing his spindly arms at the hidden camera. He might as well have been holding a sign saying “Convict me now.” Giles’s left hook ignited the whole street corner, with a dozen pub regulars settling their differences like gentlemen.
Crimewatch UK was no match for this footage. It was even better than Cops, the American “real life” television crime show that set the gold standard in the 1990s, with clips of the underclass being righteously clubbed by mustachioed patrolmen. But in these type of programmes, it’s always the police and not the defendants who are shown in their best light. And if you thought that only shining examples of police work are caught on camera, you would be, as we barristers like to say, falling into error.
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Alex McBride
Fresh-faced baby barristers nervously watched the junior clerk laying out the briefs on the postroom shelf. That shelf meant everything—it was our shelf of dreams. How we wished that we, like the grandest silks, could be prosecuting celebrity murderers or defending psychopaths. In fact, we’d settle for anything better than our reality of suburban magistrates’ courts and petty crime.
“Please let it not be Harlow youth court,” I prayed. You had to run the gauntlet there, past the defendants and their families gobbing by the entrance. No one got through unscathed. By 6.30pm, I was the only one without a brief and reconciled to Harlow. Then a folder arrived, tied in white ribbon. Defence briefs come in pink ribbon.
“Trial at Southwark crown court, sir. Prosecuting,” said the clerk.
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Alex McBride
My client has just agreed to plead guilty to a lesser charge, which, mercifully, is acceptable to the prosecution. There will be no trial. No embarrassment of trying to sell his hopeless defence to the jury. What happiness! It’s 10.30am and the day is mine. Unless I make the mistake of going back to chambers and putting myself at risk of the dreaded late return.
The late return is a brief that no one at the English bar wants to touch. It has bounced up and down Middle Temple Lane without finding anyone dumb or desperate enough to accept it. The “cab rank” rule of the bar requires that if a barrister is free, it is their professional duty to take the case. In practice, people can plausibly claim that they are too busy. But eventually the music stops, and if the brief lands in your lap you have to keep it.
Sensible junior barristers avoid chambers until a decent time in the afternoon. When I foolishly sneaked back into chambers that morning, I was ambushed by the senior clerk. “Sorry, Mr McBride, sir, could you go down to the crown court? There’s been a bit of a cock-up.” Clerks may address barristers as Mr or Miss, but don’t let that mislead you as to who’s grinding the organ and who’s dancing in front of it holding a tin cup.
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Ian Caplin
A privy council report published in late January recommended in principle that the ban on intercept evidence in court be removed. This is fast becoming the consensus view. While there are some strong arguments for its removal, the devil is going to be in the detail of how it is done.
The police and other intelligence agencies can be authorised to conduct surveillance activities under the Regulation of Investigatory Powers Act 2000. Evidence from bugging—the use of concealed listening devices or cameras—is admissible in court. But intercept evidence—which covers the covert interception of telephone calls, faxes, email and ordinary post—is not. So while a phone conversation bugged by an external listening device may be admissible, the same information gained by intercepting or “tapping” the call would not be. Intercept evidence therefore has a value in the detection and surveillance of crime, but not its prosecution.
It is difficult to find arguments in favour of the ban from geography or history. Several countries use intercept evidence in criminal proceedings, and for centuries it was admissible in English criminal trials—the ban on its use in court was introduced only in 1985. Intercept evidence was used in the treason trial of Mary, Queen of Scots in 1586 (Elizabeth I’s spymaster intercepted letters implicating her knowledge of the Babington plot). Fifty years ago, the privy council concluded that, while it was rarely used in criminal proceedings, intercept evidence was still admissible.
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Thom Dyke
Following Rowan Williams’s comments on sharia law, Sayeeda Warsi, the Conservatives’s shadow community cohesion minister, said “Williams seems to be suggesting that there should be two systems of law, running alongside each other, almost parallel, and for people to be offered the choice of opting into one or the other… that is unacceptable.”
In fact, Williams suggested nothing of the sort. This was not a call for sharia principles to be “incorporated” into British law by the same formal mechanism that the European convention on human rights became part of domestic law through the Human Rights Act in 1998. Neither was it an argument for the supremacy of sharia law to English law, in the way that the 1972 European Communities Act established the primacy of European legislation.
As the archbishop said, some elements of sharia are fast becoming the default position in Muslim communities throughout the country. While no one knows the exact numbers of sharia courts currently operating, one organisation, the Islamic Sharia Council in Leyton, east London, has dealt with over 7,000 cases since it was founded in 1982. Such bodies are entirely unregulated, and no formal qualifications are required to hand down interpretations of Koranic law.
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Alex Carlile
I admire the campaigning organisation Liberty. Charismatic leadership has given it refreshing visibility and importance. I share its desire to protect civil liberties, especially those threatened by potentially arbitrary actions by the state. Liberty’s concern about counter-terrorism law is justified. The threat of terrorism instills in government a sense of foreboding at least as great as that felt by the public at large. Guardians are needed to protect us from repressive and disproportionate laws. It takes courage to stand up for potentially unpopular causes. Liberty does so by instinct.
Liberty recently published a report comparing periods of pre-charge detention in Britain with those of other countries. Unfortunately, the report, and Liberty’s presentation of it, fell below the group’s high standards. Informed debate, not mere campaigning zeal, is required for matters as weighty as the increase in the maximum period of detention before charge.
Since 2001, I have looked closely at practices in other countries. What can happen abroad has been illustrated by recent events in Italy. The murder of the student Meredith Kercher was an act of appalling brutality. However, the fact that the arrested suspects could spend up to a year in custody without being charged is something I know Liberty would regard as unacceptable legal process—a blot on the civil liberties of suspects, some of whom might be innocent. Yet Liberty’s report implied that this was not possible in Italy.
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Shami Chakrabarti
Liberty recently published a study that demonstrated that Britain’s current 28-day limit on pre-charge detention is much longer than in 15 comparable democracies around the world, based on advice from leading lawyers and academics. Alex Carlile, the independent reviewer of terrorism legislation, dismisses this research as “mere campaigning zeal.”
Yet Carlile’s article actually demonstrates just how far the few remaining supporters of longer pre-charge detention have to go to justify any extension beyond 28 days. Faced with the fact that the US constitution limits pre-charge detention to just two days, Carlile’s response is that the British government’s proposal is not as bad as Guantánamo bay or extraordinary rendition. Surely Britain, which many used to see as a beacon of liberty, can aspire to more than that.
In a similar vein, Carlile argues that Liberty’s study is too kind to the French because, he implies, suspects are often ill-treated by French police during the six days they are allowed to be held before charge. I certainly condemn any such violation of French domestic and international law, but I struggle to see how this justifies Britain holding people without charge for over a month.
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