"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Friday, 30 March 2012

HLE Event – Law Reporting in the New Media Age

Halsbury's Law Exchange, in partnership with international law firm Eversheds, is hosting an expert panel discussion on how legal reporting is changing in the new media age.
The seminar will focus on the influence of new media, where the law stands now and how it is likely to develop in the future. Topics for discussion will include the impact social media and legal blogs have had in making the law more accessible and widely discussed; the televising, tweeting and real-time blogging of cases; libel, contempt of court and the implications of international blogging beyond the jurisdiction.

Speaking at this event will be:
Joshua Rozenberg (chair) – Legal commentator, blogger and BBC Law in Action presenter
Siobhain Butterworth – Freelance lawyer, writer and Guardian blogger
Katy Dowell – Senior reporter, The Lawyer
David Allen Green – Solicitor, Jack of Kent and New Statesman blogger
Andrew Sharpe – Solicitor, Head of Commercial at LexisPSL and blogger
Adam Wagner – Barrister and founding editor of the UK Human Rights Blog

More details including the rsvp address are at www.halsburyslawexchange.co.uk

Tuesday, 20 March 2012

Not so free speech

For Halsbury's Law Exchange

No sooner had HLE published a post on the joke (in every sense) trial of Paul Chambers than another story appears which leaves one wondering how many in officialdom have even heard of free speech, let alone understood it.

According to this report in the Independent newspaper:

A teenager will appear in court after allegedly making comments on Facebook about the deaths of six soldiers in Afghanistan last week, police said.

Azhar Ahmed, 19, according to West Yorkshire Police, posted the comments on his profile page and has been charged with a racially aggravated public order offence, according to West Yorkshire Police.

A police spokesman said Ahmed, of Fir Avenue, Ravensthorpe, West Yorkshire, was bemoaning the level of attention the British soldiers who died in a bomb blast last week received compared to Afghan civilians who have died in the war.

The offending post has been uploaded by Spectator blogger Alex Massie here.

Leaving aside Ahmed’s fairly shaky grasp of the English language, his post might reasonably be described as offensive. It certainly does not express views I would share, though as it happens I think our stay in Afghanistan has probably outlived its usefulness.

Yet none of that is of any relevance. Ahmed’s published views might properly be called offensive, but if free speech is to mean anything at all, it has to include the freedom to offend. In a democracy, the view of the majority rarely needs defending. The majority has the power to vote away anything with which it disagrees (or disagrees sufficiently for someone to organise a political campaign). It is the ability to offend the majority, challenge the powerful and contest the status quo which needs defending.

It is hard to think of which is worse – prosecuting Paul Chambers because he made a joke, or Azhar Ahmed because he made a statement about the war in Afghanistan. Without dissolving into cliché, it might be observed that one of the key differences between our society and that of the Taliban is that the latter tends to execute anyone not on message politically or religiously. In Britain on the other hand free speech is one of the cornerstones of our society.

It is true that free speech has not always been as robustly defended in Britain as in the United States, but if it has come to prosecutions of inane facebook updates or tweets then we have reached the lowest point since the days of mediaeval persecution. (Incidentally our overworked criminal justice system will likely explode or implode as well.)

Of course there are limits to free speech – protecting intellectual property, or state secrets, or preventing harassment of another – but no sensible restrictions would include making jokes (which are painfully obviously jokes such as Chambers’) or remarks, offensive or otherwise, about the rights and wrongs of the actions of soldiers or the war in Afghanistan.

Extraordinarily basic introduction to free speech over. All that has been offered by way of explanation by the police (quoted by Alex Massie in the article linked above) is that Ahmed:

“... didn’t make his point very well and that is why he has landed himself in bother.”

Assuming the quote not to be severely out of context, it does not deserve a response. Instead I would direct the spokesperson to Art 10 of the European Convention on Human Rights, and the history in this country of Lollardism, the Reformation, Milton, JS Mill and much else besides. Alternatively, they could just recall the following quote attributed to Stephen Fry:

“So you’re offended. So f+++ing what?”

Monday, 12 March 2012

Assisted suicide again

For Halsbury's Law Exchange

UPDATE: see this morning's Telegraph for a potentially interesting development.

Recently Halsbury's Law Exchange (HLE) concluded its student competition by asking the five finalists to provide a video submission on whether or not assisted suicide should be legalized. The videos were all of a high standard and can be viewed on Youtube.

Predictably the videos proffer views as strongly expressed as they are disparate. The fact is that assisted suicide is an issue about which one cannot be uncontroversial. Either one believes that there are certain circumstances in which a person should be permitted to end his or her life, with assistance if necessary, or one does not. Either way, one will encounter passionate, articulate and determined opposition. There is no fence to sit upon.

Elsewhere on HLE an opinion piece by Jacqueline Laing was recently reproduced from the New Law Journal. It argued that assisted suicide equals institutionalised murder, nothing less, no exceptions. There has also been the policy paper for HLE prepared by John Cooper QC, which argues that the existing guidelines released by the Director of Public Prosecutions following the well known Purdy case (R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2009] 4 All ER 1147) are adequate even if they go further than was strictly required by the Purdy decision.

For a different perspective, the formidable Becker-Posner blog has recently posted on the issue (see here and here), both authors supporting some form of assisted suicide based on the rather different perspective of economists, as did the well-publicised paper prepared by Lord Falconer with the support of Dignity in Dying.

It seems to me that there are two broad questions. The first is whether any form of assisted suicide ought to be legal in the first place. This involves questions of philosophy and religion that have been debate more or less throughout recorded history without anything like a consensus emerging. If one answers in the affirmative, then the second question arises of how to devise a legal framework to allow it. This involves defining the permissible circumstances and providing a safeguard against abuse – and abuse in this context equals murder. The second question is almost as difficult as the first.

Needless to say, I cannot attempt a full exposition of either within a blog. For the former I would refer readers to the Philosopher's Brief, filed by a number of eminent United States' authors for a Supreme Court hearing in the 1990s. In common with them I believe that there are indeed circumstances in which assisted suicide one should be permitted.

The cornerstone of the philosophers' argument is the concept of individual autonomy (note that they had to structure their argument to constitute a legal submission in the context of the United States’ constitution rather than an abstract moral philosophy paper). To my mind, however, the key point is that one is already permitted to refuse medical treatment even when certain death will shortly follow - a transplant operation, for example, or taking some form of vital drug. There is something approaching a consensus that that rule is morally just. If, therefore, one may refuse medical intervention even though the consequence of refusal is virtually immediate death, then I would argue that it follows that in certain circumstances one ought to be able to accept treatment with the same result. This is the point that my co-author and I made when writing about the issue for Criminal Law & Justice Weekly in 2010.

The terminally ill Dianne Pretty faced a drawn out and excruciating death due to her degenerative illness. When the courts refused to accept that she might be assisted in suicide at a time and place of her choosing, she had no choice but to suffer precisely the ghastly death she had gone to court to avoid. I would not have wished to have been the one to deliver the news to Ms Pretty about the fate she was to endure. Rather less would I wish to receive the same news if I developed the same illness as Ms Pretty.

All that, however, is not to belittle in any way the strength of the opposing argument. The very idea of a medical professional assisting someone's life to end seems counter-intuitive, to say the least. But it seems to me that the strongest arguments against assisted suicide come when considering how an acceptable legal framework might be developed to permit it. It is not difficult to envisage circumstances whereby continuing to live in ghastly circumstances would be beyond the endurance of any of us. Indeed there is no need to imagine - Diane Pretty faced an actual example. But it is equally easy to imagine circumstances in which permission for assisted suicide might be abused: the aforementioned New Law Journal article does just that. If it transpires that the risks of abuse are too great, then even supporters of assisted dying would have to concede that it should not be permitted.

We must therefore address the second question identified above. Again, I would refer readers to Mr Cooper QC's policy paper for a detailed treatment of the development of how the law has developed to date and the Commission on Assisted Dying for a consideration of how it might be altered in the future.

I would note that while suicide was legalised in 1961, assisted suicide remains illegal. Nothing in the DPP guidelines on when prosecution will be undertaken changes that. While it is fundamental that the Attorney General retains the discretion whether or not to prosecute in any individual case, he and his subordinates have no power to impose a blanket decision never to prosecute. If it transpires that no prosecution ever takes place, despite prima facie evidence offences having been committed, then the DPP may well be found to have been acting unlawfully.

The risks that any legal framework must guard against are obvious. The very elderly or the terminally ill are ipso facto among the more vulnerable members of society. Ms Laing writes that:

“Once enshrined in law, the practice invariably involves a move towards the elimination of those who have not asked to be killed, those who are unwanted, those who are lonely and low-income (KNMG Dutch Physicians Guidelines, Position paper, 23 June 2011), and those whose deaths offer some advantage to third parties controlling the process. It does so because it involves a radically altered mindset.

Organs for transplant are an ongoing incentive for active euthanasia. So too is cost-saving, litigation and payout minimisation, bed clearing, medical research, improper individual concerns about inheritance and even political Malthusianism. In this environment, failures of transparency, ie lies and deception, are both pragmatic and inevitable.”

Can safeguards prevent abuse of this nature? I would observe that the law already has to frame questions of equal magnitude and difficulty elsewhere. Legalising suicide in the first place opens the door to possible abuse. Perhaps more pertinently, the law of self defence, or defence of another, allows what would otherwise be murder. Unlike assisted suicide, the state’s approval has to come after the fact, where the circumstances are harder to reconstruct and therefore the claim of a prospective defendant that he or she was indeed acting to save him or herself or another person is much harder to assess – leading to obvious potential for abuse. Yet no-one suggests that the defence should be removed, because it is a fundamental right to protect one’s life, even if that may entail ending the life of one’s assailant.

Or there is the emotive issue of abortion, with recent newspaper reports suggesting that there are cases of “gendercide” in this country, where some wish for cultural reasons to have sons rather than daughters. This, or any other form of abuse, has not (or not yet) led to a suggestion that abortion should never be allowed.

More detailed suggestions are made in the paper issued by Dignity in Dying. The paper can be accessed on their website. I would suggest that these should indeed be sufficient if rigorously policed and enforced, and preferable to the present situation where all seems to turn on the DPP’s interpretation of its own guidelines.

Sunday, 11 March 2012

Cross about work

The headline in today's Telegraph (10 March 2012) warns of an impending ECHR case in which the claimants want to establish the right to wear a cross at work, as a symbol of their religious faith.

A few questions:

- should the state have anything to do with workplace clothing regulations?

- if so, should it allow exemptions on health and safety grounds, or for any other reason?

- if so, who is going to decide what is a genuine symbol, or someone taking the mickey?

- what of religious institutions such as faith schools?

Thursday, 8 March 2012

A modern-day "conchie"

Published in Criminal Law and Justice Weekly, vol 176, 3 March 2012, p 135

Conscientious objection to military service has provided much drama in both fiction and real life for many years. In fiction one finds examples in the recent Downton Abbey, or the gentle Private Godfrey in Dad’s Army, and countless other works as well.

The most famous non-fiction example is possibly Mohammad Ali, who chose jail rather than serving in Vietnam against an enemy he did not know on behalf of a state that declined to afford him full civil rights.

Recently the case of R v Lyons [2011] EWCA Crim 2808 raised the same issue in the context of Britain’s modern wars.

Lyons held the rank of leading medical assistant in the Royal Navy. In May 2010 he was told he would be deployed to Afghanistan. He formed the view that the UK’s involvement in the conflict was wrong and that it would be morally wrong for him to take part. He therefore applied for discharge on the ground that he was a conscientious objector. The application was refused and he appealed. Before his appeal was determined, he was ordered to undertake a pre-deployment weapons training course. He refused to participate. He was court-martialed and found guilty of intentionally disobeying a lawful command contrary to s 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months’ military detention, demoted to able seaman and dismissed from the service. He appealed against sentence.

Historical background

Objection to war – a particular conflict or warfare in general – on religious or secular grounds is no doubt as old as war itself. In Britain the armed forces have historically been recruited on a volunteer basis. Full-scale conscription was unknown in this country until the Great War, when the British army found itself drawn irrevocably into the sort of full-scale conflict on the Continent which it had spent a century planning to avoid. By contrast, most Continental powers had had compulsory military service for generations, the modern origins lying in the French Revolution and the subsequent creation of the Grande Armée.

It is therefore noteworthy that Britain was the first amongst European powers to have formal legal recognition of conscientious objection. Mention was made in the Militia Act 1757, but the story in modern times begins with the Military Service Act 1916, an Act which simultaneously introduced conscription and the recognition of objection on the ground of conscience.

During the Second World War, nearly 60,000 registered as Conscientious Objectors. After national service ended at the start of the 1960s, formal procedures for dealing with conscientious objectors fell away, until in 1970 the Advisory Committee on Conscientious Objectors (ACCO) was formed as a non-departmental public body to advise the Secretary of State for Defence.

Continue reading here.