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Until yesterday, gay asylum-seekers could be deported under a controversial Home Office policy, even if they faced persecution in their home country. But in a unanimous ruling that mirrors a 2002 decision by the High Court of Australia, five of the country's senior-most judges have upheld the right of gay refugees to live in Britain, if they can establish that they faced persecution in their home countries.
The case of the two unnamed men (one from Cameroon and the other from Iran) was heard by the Supreme Court after their applications had been rejected on the basis that they could choose to keep their sexual orientation a secret upon deportation. However Lord Hope, deputy president of the court, who headed the panel of five justices said that to compel a homosexual to pretend that their sexuality does not exist or can be suppressed was to deny him his fundamental right to be who he is. Lord Rodger added that the normal behaviour of gay people must be protected as it was for heterosexual people, while Lord Walker noted that "the notion a gay man could (and so, some might say, should) avoid trouble by adopting a "discreet" lifestyle (or leading an entirely celibate life) is not limited to the context of asylum law. It is the way in which hundreds of thousands of gay men lived in England before the enactment of the Sexual Offences Act 1967."
The Home Office's 'reasonable tolerability' test (that was also used by the Court of Appeal) has been rejected in favour of a new three/four-stage test, in which asylum tribunals must first ask if the appellant is gay or would be treated as someone who is gay by potential persecutors in his/her home country. Second, is there evidence that someone who lived an openly gay life would be at risk of persecution in that country? Third, how would the appellant actually live if returned? If they would live openly then clearly they are not a refugee. But if they would live discreetly, a fourth question must be asked: why will they exercise discretion? The justices offered a distinction between discretion on grounds of persecution and discrimination. If for example an appellant simply wanted to avoid social pressures or family shame, the asylum tribunal would have to reject the application. Persecution means more serious harm, for example: prison, rape, torture or death.
There was also an interesting reference to pop culture by Lord Rodger who said: "To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates." And you thought senior judges were cricket-loving, wig-wearing, out-of-touch, senile old farts.
Well done Supreme Court for correcting a series of wrongs. It's decisions like these that reaffirm one's confidence in our legal system.
French Contract Law
Jul. 4th, 2010 06:55 pmAs in England and Wales, to terminate a contract in France, you need to provide a reasonable period of notice. But what is reasonable? There is no hard-and-fast rule. It's determined on a case-by-case basis and the judgements in two separate cases serve as a useful indicator. In one, the court held that a nine-month termination notice period was insufficient for a business relationship of thirty-five years. In the other, the court held a nine-month termination notice period was sufficient for a business relationship of twenty-five years.
The alleged sole surviving gunman from the 2008 Mumbai attacks has been convicted for murder and waging war with India. The Pakistani national is likely to be sentenced to death. Although executions are legal in India, they are rarely used. In 1983, the Supreme Court of India ruled that the death penalty should be imposed only in "the rarest of rare cases". The last execution was in 2004 when a security guard was hanged in Kolkata for the rape and murder of a schoolgirl fourteen years earlier. However, it appears the last trained hangman in India has retired, leaving the country with no executioners! And even if Mohammed Ajmal Amir Kasab is sentenced to death, it will merely result in "a lengthy series of appeals and an indeterminate wait on death row". Ninety-five countries have abolished capital punishment. But what do you think? Are there exceptional crimes that deserve punishment beyond a lifetime of incarceration? Share your thoughts!
[Poll #1559687]
[Poll #1559687]
It's a victory for civil liberties but it's a sad indictment of the state of affairs in this country, that but-for the intervention of the Strasbourg court, we would certainly be living in an elected dictatorship. Stop-and-search powers, enacted under Section 44 of the Terrorism Act 2000, have been abused by British police, particularly in London. This case involved two people who were detained by police outside the Defence Systems and Equipment International exhibition in London Docklands in 2003. One of the claimants was detained for about twenty minutes as he was cycling to join a protest outside the arms fair. The other claimant, a journalist from London, had come to film the protests and was detained for what she felt was about thirty minutes, though police records claimed it was just five minutes. The Strasbourg court were not impressed and said the pair's rights under Article 8 of the European Convention on Human Rights (the right to respect for a private and family's life) had been violated. This was because stop-and-search powers were "not sufficiently circumscribed" and there were not "adequate legal safeguards against abuse". It also concluded that "the risks of the discriminatory use of the powers" were "a very real consideration". The pair were awarded £30,400 ($49,400) to cover legal costs.
Naturally the British government are disappointed with the result and the Home Secretary, Alan Johnson, has said the government will appeal against the decision. The police are also disappointed and according to Chief Constable Craig Mackay of the Associaion of Chief Police Officers, officers will continue using the powers while the appeal was pending. Though perhaps most disappointingly of all is the fact, as pointed out by Policing and Security Minister David Hanson, that the government had won all previous challenges in the UK courts. This included a High Court ruling in 2003, subsequently upheld by the Court of Appeal and the House of Lords, that the powers, and any consequent violation of human rights, was proportionate under the European Convention on Human Rights and justified in the light of the threat of terrorism. For the sake of the future of civil liberties in this country and a potential ejection out of the EU* (if the Eurosceptics had their way!), let's hope this was just a minor blip on the part of our highly esteemed and liberty-friendly judiciary.
* IMPORTANT NOTE: Many Brits often complain that decisions like these illustrate the deplorable extent to which the UK has had its powers usurped by the EU. But it is worth remembering that the European Court of Human Rights (ECtHR) in Strasbourg that decided the above case, has absolutely no connection with the European Union. It is in fact an institution belonging to the Council of Europe, of which the UK is a member along with forty-six other countries, including Russia, Armenia and Norway who are not members of the EU. The main court of the EU is the European Court of Justice (ECJ) located in Luxembourg. Its role is to decide on matters affecting EU Law, (ie: disputes between Member States or involving other legal entities only within Member States). The ECJ does not concern itself with human rights issues, which is the sole purview of the ECtHR. I wonder how many people are actually aware of this.
Naturally the British government are disappointed with the result and the Home Secretary, Alan Johnson, has said the government will appeal against the decision. The police are also disappointed and according to Chief Constable Craig Mackay of the Associaion of Chief Police Officers, officers will continue using the powers while the appeal was pending. Though perhaps most disappointingly of all is the fact, as pointed out by Policing and Security Minister David Hanson, that the government had won all previous challenges in the UK courts. This included a High Court ruling in 2003, subsequently upheld by the Court of Appeal and the House of Lords, that the powers, and any consequent violation of human rights, was proportionate under the European Convention on Human Rights and justified in the light of the threat of terrorism. For the sake of the future of civil liberties in this country and a potential ejection out of the EU* (if the Eurosceptics had their way!), let's hope this was just a minor blip on the part of our highly esteemed and liberty-friendly judiciary.
* IMPORTANT NOTE: Many Brits often complain that decisions like these illustrate the deplorable extent to which the UK has had its powers usurped by the EU. But it is worth remembering that the European Court of Human Rights (ECtHR) in Strasbourg that decided the above case, has absolutely no connection with the European Union. It is in fact an institution belonging to the Council of Europe, of which the UK is a member along with forty-six other countries, including Russia, Armenia and Norway who are not members of the EU. The main court of the EU is the European Court of Justice (ECJ) located in Luxembourg. Its role is to decide on matters affecting EU Law, (ie: disputes between Member States or involving other legal entities only within Member States). The ECJ does not concern itself with human rights issues, which is the sole purview of the ECtHR. I wonder how many people are actually aware of this.
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The Return of Jury-Less Trials
Jan. 13th, 2010 12:30 amLast June I made a post about a landmark decision by the Court of Appeal that created English legal history by allowing a criminal trial to be heard by a judge alone. That trial, involving four men accused of armed robbery at a cash depot at London's Heathrow Airport in 2004, began yesterday at the Royal Courts of Justice. As I wrote back then, the origins of jury trials in England date back to the 12th century, so this is a pretty significant development to our criminal justice system. Let's see what happens...
The concept of ABH was considered by the Divisional Court (DC) in DPP v Smith (Michael Ross) (2006). The defendant held down his former girlfriend and cut off her ponytail with kitchen scissors a few weeks before her 21st birthday. The Magistrates acquitted him on the ground that, although there was undoubtedly an assault, it had not caused ABH, since there was no bruising or bleeding, and no evidence of any psychological or psychiatric harm. The victim’s distress did not amount to bodily harm. The DC allowed an appeal by the DPP, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done.
"In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim."
~ Judge P in DPP v Smith (Michael Ross) ~
"To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm."
~ Creswell J in DPP v Smith (Michael Ross) ~
(as copied directly from Wikipedia)
~ Judge P in DPP v Smith (Michael Ross) ~
"To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm."
~ Creswell J in DPP v Smith (Michael Ross) ~
(as copied directly from Wikipedia)
In a landmark decision, the Lord Chief Justice (the aptly named Lord Judge) has created English legal history by agreeing to allow a trial to be heard by a judge alone. The ruling invokes Section 44 of the Criminal Justice Act 2003 and is dependent on evidence of a real and present danger of jury tampering taking place. The origins of jury trials in England & Wales date back to the 12th century.
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Last November, 80 Stoke City football fans were rounded up by Greater Manchester Police under Section 27 of the Violent Crime Reduction Act 2006. Their crime? A belief that they may cause trouble later. The fans were on their way to watch their team play Manchester United when they stopped at the Railway Inn in Irlam. Although there was no complaint from the landlord of the pub, the officers surrounded the fans and aggressively ordered them onto police buses and drove them back to Stoke. Some fans had not even traveled from Stoke. The fans were falsely imprisoned for four hours during which they were not allowed to take lavatory breaks.
These incidents highlight the abuse of the new Section 27 powers which allow police to:
- "Deprived of toilet facilities on the coach, the supporters were instructed to urinate into cups, which spilled over the floor of the bus so that they had to sit with urine sloshing around their feet for the 40-mile journey back."
These incidents highlight the abuse of the new Section 27 powers which allow police to:
- "Direct individuals to leave a locality. This is where an individual's presence is likely to cause or contribute to the occurrence, repetition or continuance of alcohol-related crime or disorder in a locality and it is necessary to remove the individual from the locality for the purpose of removing or reducing the likelihood of there being such crime or disorder in the locality."
It's a crisp. That's the decision of the Court of Appeal, reversing last July's High Court judgment that Pringles is not a potato crisp.
~ Lord Wright in Liversidge v Anderson (1941) ~
Two exams down, five to go...
May. 6th, 2009 11:45 pm-Lord Denning in Miller v. Jackson (1977)
In Ireland, a man can be sentenced to life for incest but a woman can only be sentenced to a maximum of seven years. As if that isn't a fair deal for people who commit the same crime, there comes a story of a mother who forced her teenage son to have sex with her on four occasions over a six-year period, while abusing and starving her five other children in a rat-infested dwelling in the county of Roscommon. The woman admitted to police that her children, now aged between 10 and 19 were often "blue with cold, had dinner only twice a week and had lice crawling over their bodies." The woman admitted to being the worst mother in the world and lamented about turning the clock back. The judge told the mother that if she had been a man she would've been sentence for life. Sickening!
Ten Great Legal Wits
Jan. 17th, 2009 01:20 amI attended my first British court hearing this afternoon. It was part of our Criminal Law Tutorial homework. We were instructed to attend a criminal hearing at a Crown Court or Magistrates' Court and answer some questions about it. I went with a group of friends to Southwark Crown Court near London Bridge. We sat in court for about an hour, observing a prosecutor questioning one of the defendants accused of controlling prostitution for gain, three counts of unlawful wounding, ABH (actual bodily harm) and possession of a firearm with intent to cause fear of violence. During the prosecution, the defendant denied all the charges. Unfortunately, I couldn't stay to watch the rest of the afternoon's proceedings but from what I did see, I'm sold! If you thought the theory was good, wait till you see it in practice!
Southwark Crown Court was opened in 1983 with fifteen courtrooms, making it the fourth largest court centre in the country. It is a desginated serious fraud centre and from what I'm told, it is second in stature to the Old Bailey (officially called the Central Criminal Court) when it comes to hearing criminal proceedings of the nature we observed this afternoon. If that's the case, I will most certainly be paying it a visit in the not-too-distant future. And given the proximity of the Old Bailey, I will also be paying it a visit soon.
There were quite a few little interesting things that I saw today. Firstly, the defendant had access to a translator who stood next to him the whole time. At one point the judge interrupted the translator and reminded him that he could only offer translation services. I'm not surprised the judge interfered because it looked distinctly like the translator was telling the defendant in Albanian: "deny it while you can, deny, deny, deny!" :P I was also surprised at how 'modern' the court was, with flat screen TVs (both were turned off) on either side of the side walls and laptops with MS Word open on the counsel's table. But it wasn't all like that. Despite a recent decision to allow counsel to get rid of their silk gowns and wigs in civil cases, the counsel in our case were in traditional attire, including the judge.
The case itself was quite fascinating. The prosecutor tried his best to poke holes in the defendant's original statement and even though the accused denied everything, he did let slip the following bits: he refused to refer to the girls in the brothel as prostitutes, instead insisted on using the term 'working girls', he refused to name the owner of the flat in which the brothel operated because it would compromise his own safety (an assertion he repeated several times despite the prosecutor flinging a name in his direction), and he claimed that he didn't run the brothel but worked there merely as a doorman or security guard. At one point he started throwing back questions at the prosecutor to which the prosecutor got annoyed and said we might as well all go home if he didn't stop. The defendant stopped asking questions, but not before he found himself in a sticky situation trying to explain why he had hid some prostitute timetable papers from the brothel under his kitchen sink, which he described as a safe place, while storing his passport in a drawer in his dresser. As the defendant put it, the passport was worthless because his visa had expired and therefore he was living illegally in the UK anyway. I really wish I'd heard the rest of the prosecution. You can read more about the background to the case and the charges laid upon the other defendants here.
Funnily enough, though my friends and I generally agreed about how interesting the case was, most of the jury looked bored. Only two ladies seemed engrossed in the case; one was dutifully taking notes, while the other perused the prosecution's folder of evidence. Thanks to my group attending the hearing the court was almost full. A few people thought we were journalists. I was tempted to play along...
Meanwhile, I have been unanimously acclaimed as my tutorial group's Class Rep. Nobody really stood against me and I suppose the initiative to create a Facebook Group for our class of 15 kids might've had something to do with it. You'd think in a group of budding-lawyers there'd be at least one other interested lad or lass. Nevertheless, I will have the distinct pleasure of communicating the praises and concerns of our group with the powers that be, but more importantly, I will be able to attend the bi-annual Class Rep Wine & Cheese.
Southwark Crown Court was opened in 1983 with fifteen courtrooms, making it the fourth largest court centre in the country. It is a desginated serious fraud centre and from what I'm told, it is second in stature to the Old Bailey (officially called the Central Criminal Court) when it comes to hearing criminal proceedings of the nature we observed this afternoon. If that's the case, I will most certainly be paying it a visit in the not-too-distant future. And given the proximity of the Old Bailey, I will also be paying it a visit soon.
There were quite a few little interesting things that I saw today. Firstly, the defendant had access to a translator who stood next to him the whole time. At one point the judge interrupted the translator and reminded him that he could only offer translation services. I'm not surprised the judge interfered because it looked distinctly like the translator was telling the defendant in Albanian: "deny it while you can, deny, deny, deny!" :P I was also surprised at how 'modern' the court was, with flat screen TVs (both were turned off) on either side of the side walls and laptops with MS Word open on the counsel's table. But it wasn't all like that. Despite a recent decision to allow counsel to get rid of their silk gowns and wigs in civil cases, the counsel in our case were in traditional attire, including the judge.
The case itself was quite fascinating. The prosecutor tried his best to poke holes in the defendant's original statement and even though the accused denied everything, he did let slip the following bits: he refused to refer to the girls in the brothel as prostitutes, instead insisted on using the term 'working girls', he refused to name the owner of the flat in which the brothel operated because it would compromise his own safety (an assertion he repeated several times despite the prosecutor flinging a name in his direction), and he claimed that he didn't run the brothel but worked there merely as a doorman or security guard. At one point he started throwing back questions at the prosecutor to which the prosecutor got annoyed and said we might as well all go home if he didn't stop. The defendant stopped asking questions, but not before he found himself in a sticky situation trying to explain why he had hid some prostitute timetable papers from the brothel under his kitchen sink, which he described as a safe place, while storing his passport in a drawer in his dresser. As the defendant put it, the passport was worthless because his visa had expired and therefore he was living illegally in the UK anyway. I really wish I'd heard the rest of the prosecution. You can read more about the background to the case and the charges laid upon the other defendants here.
Funnily enough, though my friends and I generally agreed about how interesting the case was, most of the jury looked bored. Only two ladies seemed engrossed in the case; one was dutifully taking notes, while the other perused the prosecution's folder of evidence. Thanks to my group attending the hearing the court was almost full. A few people thought we were journalists. I was tempted to play along...
Meanwhile, I have been unanimously acclaimed as my tutorial group's Class Rep. Nobody really stood against me and I suppose the initiative to create a Facebook Group for our class of 15 kids might've had something to do with it. You'd think in a group of budding-lawyers there'd be at least one other interested lad or lass. Nevertheless, I will have the distinct pleasure of communicating the praises and concerns of our group with the powers that be, but more importantly, I will be able to attend the bi-annual Class Rep Wine & Cheese.
Pringles 'are not potato crisps'
"Pringles, the popular snack food in a tube, are not potato crisps, a High Court judge has ruled. Their packaging, "unnatural shape" and the fact that the potato content is less than 50% helped Mr Justice Warren make his crunch decision. As a result, Pringles, in all flavours are free from Value Added Tax."
"Pringles, the popular snack food in a tube, are not potato crisps, a High Court judge has ruled. Their packaging, "unnatural shape" and the fact that the potato content is less than 50% helped Mr Justice Warren make his crunch decision. As a result, Pringles, in all flavours are free from Value Added Tax."
The Lighter Side of the Law
"Oscar Wilde observed, that “Questions are never indiscreet. Answers sometimes are.” It is, though, difficult to furnish discreet answers to some of the questions asked by judges. “Who is the idiot who did that?” snapped Justice Mildren in an Australian court in 2004, inquiring about bail granted to a serial burglar who’d gone straight out to commit more crime. The judge demanded the name of the bail-granting idiot. Investigations soon found the answer. It was Justice Mildren."
"Oscar Wilde observed, that “Questions are never indiscreet. Answers sometimes are.” It is, though, difficult to furnish discreet answers to some of the questions asked by judges. “Who is the idiot who did that?” snapped Justice Mildren in an Australian court in 2004, inquiring about bail granted to a serial burglar who’d gone straight out to commit more crime. The judge demanded the name of the bail-granting idiot. Investigations soon found the answer. It was Justice Mildren."
An Outdated Law Still In Force
"Today’s main treason law is found in the Treason Act 1351. Under the Act, anyone is guilty if he “levies war against the Sovereign” or is “adherent to the Sovereign's enemies”. Also guilty is anyone who “compasses or imagines the death of the Sovereign”. Those words come from a 14th century language known as “Law French”. It’s a bit ridiculous to have to apply them to situations today. It’s also treason to slay the Lord Chancellor, or to violate (which in this context means to have sex with) the Sovereign's eldest unmarried daughter or the wife of the Sovereign's eldest son and heir. A person convicted of treason can be sentenced to life imprisonment. Although the death penalty for murder was abolished in 1965, it remained a lawful punishment for treason until it was ended by the Crime and Disorder Act 1998.
There have been some notorious treason cases. Sir Roger Casement is said to have been hanged by a comma. Casement was convicted in WWI of conspiring with the Germans to further an Irish insurrection. His conviction depended on how part of the 1351 Act is punctuated. You can, of course, significantly change the sense of one set of words by punctuation. For example, “a woman, without her man, is nothing” can be changed to “a woman: without her, man is nothing”. In Casement’s case, a comma appeared in a key clause of some, but not all, early versions of the 1351 Act. Ultimately, the court decided the comma was there (the judges inspected an ancient copy using a magnifying glass) and it allowed the definition of a traitor to include someone whose treachery, like Casement’s, was committed outside the realm. He made his nefarious plans with others while he was abroad. Casement was hanged at Pentonville Prison in 1916."
"Today’s main treason law is found in the Treason Act 1351. Under the Act, anyone is guilty if he “levies war against the Sovereign” or is “adherent to the Sovereign's enemies”. Also guilty is anyone who “compasses or imagines the death of the Sovereign”. Those words come from a 14th century language known as “Law French”. It’s a bit ridiculous to have to apply them to situations today. It’s also treason to slay the Lord Chancellor, or to violate (which in this context means to have sex with) the Sovereign's eldest unmarried daughter or the wife of the Sovereign's eldest son and heir. A person convicted of treason can be sentenced to life imprisonment. Although the death penalty for murder was abolished in 1965, it remained a lawful punishment for treason until it was ended by the Crime and Disorder Act 1998.
There have been some notorious treason cases. Sir Roger Casement is said to have been hanged by a comma. Casement was convicted in WWI of conspiring with the Germans to further an Irish insurrection. His conviction depended on how part of the 1351 Act is punctuated. You can, of course, significantly change the sense of one set of words by punctuation. For example, “a woman, without her man, is nothing” can be changed to “a woman: without her, man is nothing”. In Casement’s case, a comma appeared in a key clause of some, but not all, early versions of the 1351 Act. Ultimately, the court decided the comma was there (the judges inspected an ancient copy using a magnifying glass) and it allowed the definition of a traitor to include someone whose treachery, like Casement’s, was committed outside the realm. He made his nefarious plans with others while he was abroad. Casement was hanged at Pentonville Prison in 1916."
