The Haldane Society of Socialist Lawyers is delighted to announce its 2012-13 Human Rights Lecture Series. Click here for more details.
The image in this article contains information on the lecture series, and is a link to the lectures page of this website.
The image in this article is the logo of the Commission on a Bill of Rights.
The Haldane Society has submitted a response to the Commission on a Bill of Rights' Second Consultation. The Commission has been charged with making recommendations as to whether the UK needs a new Bill of Rights. The Haldane Society welcomes the opportunity to further reinforce the protection of human rights within the British legal system, both in the context of those rights protected in the existing Human Rights Act 1998, and in other international conventions. The Haldane Society therefore calls on the government:
Read the Society's response in full.
‘Security measures’ are becoming all-pervasive, supposedly to protect us from severe threats. In practice, such measures turn us into suspects – subjected to preventative measures such as state surveillance, restrictions on movement, extra-judicial powers, secret evidence and even punishment without trial. ‘Terrorism’, ‘extremism’ and ‘suspicious behaviour’ are defined so broadly and vaguely as to entrap potentially anyone.
Some measures target specific group. Anti-terror powers target migrant-diaspora and Muslim communities, as well as (increasingly) political activists. Bans on ‘terrorist’ organisations have been designed and used to persecute migrant communities here. Anti-terror raids are organised as mass-media spectacles, labelling individuals and entire groups as ‘terror suspects’.
Secret evidence has been systematically used to detain foreigners as ‘terror suspects’, who must be deported in the interests of ‘national security’. More recently, secret evidence has been extended to other procedures, likewise in the name of national security. Curfews and dispersal orders target youth, labelling normal social activities as dangerous.
Military equipment has been deployed to build public fear, justifying a quasi-military occupation protecting multinational companies from protest. In summer 2012 the MoD sought to put missiles in housing estates in East London, supposedly to protect the Olympics from terrorist threats. The High Court ruled that the MoD had legal powers to site missiles wherever necessary for that purpose. As an opposition campaigner rightly said, ‘This ruling means that the MoD can put missiles on our roofs or can even station troops in our houses, simply by claiming that it is necessary for national security.’
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The image in this article is of a panel of 5 people at the event.
Meeting of the Bureau of the International Association of Democratic Lawyers (IADL) in Gaza
By Carlos Orjuela
Members of the Haldane Society along with lawyers from around the world, including France, Italy, US, South Africa, Vietnam, Philippines, Haiti, Costa Rica and Spain, all participated in the latest meeting of the Bureau of the IADL. This took place in Gaza, from 24-28 September 2012, at the invitation of Raji Sourani, a long-standing Bureau member, and Director of the Palestinian Centre for Human Rights in Gaza. Carlos Orjuela, a member of the Executive Committee, represented the Haldane Society. The IADL holds a Bureau meeting twice a year, and a Congress every four years. Previous Congresses took place in Capetown, Havana, and Hanoi.
The IADL is a non-governmental organization of progressive lawyers from all over the world with consultative status in the UN's Economic and Social Council (ECOSOC). It was founded on 24 October 1946 in Paris by a gathering of lawyers who had survived the war against fascism and participated in the Nuremberg Trials. Rene Cassin, a drafter of the Universal Declaration of Human Rights, became the first IADL President. Haldane was a founder member.
The IADL Bureau came to Gaza to show solidarity with the Palestinian people and their cause and to lift the voices of its members in affirming the basic rights of the Palestinian people to self-determination, and an end to the illegal occupation and closure of the Gaza Strip.
The IADL met with the Palestinian Bar Association, the Palestinian NGO Network (PNGO), human rights organizations, women’s rights organizations, Palestinian political factions, and government officials. The Bureau visited the Prime Minister and the Minister of Justice. Bureau members held discussions with representatives of all political parties and affected individuals. Through these events and meetings, the IADL was able to gain first-hand information on the prevailing situation in the occupied Palestinian territory, particularly in the Gaza Strip.
What rapidly became clear is that the coming year will see an alarming deterioration in the lives of the people of Gaza and the emergence of a humanitarian crisis in the area. It was also obvious that despite the occupation being the root and direct cause of this tragedy, the Israeli army and authorities continue to act with almost complete impunity.
A conference entitled 'Setting the Agenda: Accountability for International Law Violations in the Occupied Palestinian Territory' was held on 27 September with various members of Palestinian civil society. Topics included accountability, the closure of Gaza and the plight of political prisoners in Israel.
On the last day of the delegation the group published the "Gaza Declaration of the International Association of Democratic Lawyers" (see http://www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=8843:gaza-declaration-from-the-international-association-of-democratic-lawyers-&catid=145:in-focus)
Main points of the Declaration are:
The Declaration concludes:
IADL confirms and declares that we shall work side by side with the Palestinian people in their pursuit to end the illegal occupation and realized their right to self-determination by:
For more information regarding the IADL please visit http://www.iadllaw.org/
Members of The Haldane Society of Socialist Lawyers proudly joined the TUC March For A Future That Works on Saturday 20 October 2012 to call for an end to the government's austerity programme. The attacks on government services by the coalition, including the decimation of legal aid services provided to the most vulnerable in society, are throwing huge numbers of people into destitution, a situation which the government's continued programme of cuts is threatening to make worse.
The Society looks forward to a continuation of the campaign by unions and student groups later this autumn.
We face vicious public spending cuts. Haldane members have a particular responsibility to defend the legal aid budget. But we also have a duty, as citizens and consumers of public services, to fight the cuts to the NHS, to education including the rise in tuition fees, to welfare benefits and other public services including social housing.
These cuts target the poor. Potential university students from poorer families will be deterred from pursuing higher education by the prospect of lifelong debt. Housing benefit cuts condemn tenants in both private and social rented housing to moving ceaselessly from one unaffordable property to another, and to move from their neighbourhoods to areas providing cheaper accommodation. Court closures restrict access to justice, as litigants have to travel further and more public sector jobs are lost.
Proposals to give new council and housing association tenants ‘flexible tenancies’ – limited to two years, renewable only if the tenant remains unemployed and in desperate need – trap those tenants into poverty and dependence on welfare benefits. There is little incentive to look for a job if you will lose your home as a result. The supply and quality of social housing has been massively depleted by 30 years of the ‘right to buy’ and lack of public investment. These proposals will ghettoise social housing as a safety-net of last resource, only to be provided to the most desperate and inevitably at a low standard.
Despite David Cameron’s statements during the election, the NHS is not protected from cuts. NHS staff, like other public sector workers, are all subject to a two year wage freeze – a wages cut in real terms. Lansley’s pathfinder GP consortia – commissioning treatment for their patients from hospitals – will mean that decisions on treatment are dictated by cost, not what is best for the patient. GPs don’t want that. For all its inadequacies, the NHS is a glorious achievement, not least because treatment is determined by patient need. Its public nature needs defending against increasing privatisation.
The Government’s Green Paper Proposals for the Reform of Legal Aid in England and Wales proposes cuts of £350 million from the legal aid budget of £2.1 billion. The cuts fall in the area of social welfare law and civil claims – where people are enforcing their rights. Legal aid will not be available for private law family disputes unless domestic violence or child abduction issues are relevant. There will be no legal aid for housing damages claims, clinical negligence, consumer protection, criminal injuries compensation, debt, disputes over education, employment cases, welfare benefits and immigration claims (excluding asylum). Financial eligibility is slashed. So far fewer than the current 29 percent of the population could claim legal aid even when it is available. A 10 percent cut in rates, frozen over five years, might mean the end of specialist legal aid providers who can no longer make ends meet and meet their office costs. Even if legal aid remains available, there may no legal aid providers. As our friends in Young Legal Aid Lawyers put it, only the rich and the near destitute will have access to justice.
With Young Legal Aid Lawyers, The Haldane Society is holding a Commission of Inquiry into the Case for Legal Aid in Parliament on 2nd February 2011, providing testimony from those who have benefited from legal aid. Please contact us if you can help. We should all be responding to the Green Paper – consultation closes on 14th February 2011. We support Justice For All, Save Legal Aid and the other campaigns to keep legal aid and advice.
We are inspired by the resistance of students and higher education staff. Haldane members have been on demonstrations and are providing legal representation about kettling, student occupations and criminal charges. The students and lecturers are leading the way and we hope that public sector workers will join them in resistance. We support the TUC Day of Action to Stop the Cuts on Saturday 26th March 2011. Lawyers are public sector workers too. We will be on the Day of Action with the Haldane banner and hope members will march with us.
We will work with different groups opposing the cuts such as the Coalition of Resistance, the Right to Work campaign and with the trade unions. If the Con- Dems get away with these punitive cuts, we face a return to levels of poverty and social inequality last seen in the 1930s. The 1945 Labour Government built the welfare state – whilst holding down a deficit of 100 percent. The great genius of the welfare state is its universality. We are all entitled to free education, free health treatment, certain welfare benefits. That universality results in a more cohesive, collective society. We are all in it together. Sit in any NHS waiting room and you see how diverse patients are.
Over the last 30 years, that universality has been whittled away. We have been encouraged to buy our way out of public services and buy private education, private health insurance, use our homes as commodities. So it is the poor who are more dependent on public services. The Con-Dems want public services to be only for the poor – provided as a minimum and substandard safety-net or simply not available at all. If we don’t stand up and fight now, it will be too late.
Liz Davies, chair of the Haldane Society of Socialist Lawyers
The 26th March 2011 ‘March for an alternative’ demonstration was so big that many of us failed to find The Haldane Society’s banner. We still marched, and I was struck by how many lawyers turned out. It’s new to see lawyers defining themselves as public sector workers.
There’s also a new feel to the campaigns to save legal aid. Outside the right-wing world of The Daily Mail, the ‘fat cat lawyer’ jibes are beginning to disappear. Justice 4 All and The Law Society’s Sound Off for Justice are getting the message across that defending legal aid is not about defending lawyers, but about access to justice. The phrase ‘fourth pillar of the welfare state’ has resonance.
There were over 5,000 responses to the Green Paper ‘Proposals for the Reform of Legal Aid in England and Wales’ – we can presume the responses were overwhelmingly opposed to the proposals. Those who responded included Judges, MPs, the legal profession, advice agencies, voluntary sector groups and individuals. At the time of writing, the Government’s response is due to be published in early June and then the Parliamentary fight begins. We need to remain geared up to lobby and campaign against the proposed £350 million cuts.
Haldane’s Commission of Inquiry into Legal Aid is due to report on 14th June 2011. We hope that the report is well-timed. The Commission was organised jointly with our friends Young Legal Aid Lawyers. As set out in Connor Johnston’s YLAL column on page 11, it comprised three independent panelists: Dr Evan Harris, former Liberal Democrat MP, Diana Holland, Assistant General Secretary of Unite the Union, and Canon Nicholas Sagovsky, former canon at Westminster Abbey. They have heard from practitioners, campaigning organisations and, most importantly, people who have benefited from legal aid and have also studied the case for cutting legal aid.
At the Commission’s public session on 2nd February 2011, the personal testimony from individuals who had been helped with family, housing, education and debt advice, and with representation at an inquest, was profoundly moving. Beneficiaries of legal aid acknowledged the responsibilities involved in spending public money: Mrs Whitehouse got a cheer as she told us that the best thing about her winning her appeal (which meant that she could stay in her home) was that the landlord had had to pay her legal costs, so that the public was not out of pocket. They were also clear that their problems – which were often complex and required dealing with numerous statutory bodies – could not have been resolved without legal aid. Public bodies – local authorities, schools, the Home Office – all benefit from legal advice. Unlike recipients of legal aid, those public bodies don’t get blamed for briefing expensive lawyers or creating litigation. Cutting legal aid makes the playing field even more unequal.
Other public sector workers – teachers, civil servants and (most importantly for us) Court staff – are being balloted for strike action on 30th June 2011 in defence of public sector pensions as I write. We hope that Haldane members will be able to support the strike and not cross picket lines. It’s tricky to balance our duties to our clients with our solidarity with Court staff and other public sector workers, but it’s one that health professionals, teachers and other public servants have to make all the time.
Away from the main demonstration on 26th March, 200 demonstrators peaceably occupied Fortnum and Mason and other retailers accused of tax dodging. The police seemed all sweetness and light: telling them they just had to wait until it was safe to leave. As the protesters left, they were surrounded, contained and arrested. Many of them spent over 24 hours in custody. The Court cases are on-going but their treatment highlights the need for committed legal observers.
The Haldane Society provides legal observers for demonstrations, at the request of the organisers. We are there to monitor police behaviour and ensure police accountability. We’re not there to police the demonstrators: they are already being policed. We’re there to ensure that, where lawful rights of legitimate protesters are infringed, there is a record and the police are held accountable. Anyone who is interested in volunteering, please contact haldane.legalobservers@gmail.com
Liz Davies, chair of the Haldane Society of Socialist Lawyers
Resistance to the cuts is a multi-faceted movement. The next big protest is the Pensions Justice Day of Action, on Wednesday 30th November 2011, called by the TUC.
As I write, public sector unions are balloting their members for action and we encourage all Haldane members in the public sector to vote to defend their pensions and public services. The Haldane Society will be providing practical solidarity to workers on strike in defence of public services.
Len McCluskey in this issue calls for industrial action, and protest on the street – the oldest form of democracy. He voices support for UK Uncut and for the student protests, and opposition to the police tactics of kettling and other forms of containment. We agree with McCluskey that what is needed is resistance at all levels and across all groups.
Riots may not be a political tactic, but they certainly reflect the sheer desperation and alienation experienced by poor young people in urban environments. They have seen their access to higher education snatched away from them – through the increase in university fees and the abolition of the EMA – they regularly find themselves subject to heavy policing, they are at the sharp end of the cuts to welfare benefits and indeed legal aid, and in August 2011 it all just snapped. Connor Johnston, from Young Legal Aid Lawyers, gives a vivid account of observing the Hackney riots from his window and remarks on the ‘near impossibility of escaping poverty’ for many young people.
Meanwhile, the Tories have stepped up the attack on the Human Rights Act. The insidious propaganda against it relies on xenophobia and right-wing ‘law ‘n’ order’ type rhetoric: rights are appropriate for law-abiding British citizens but immigrants, criminals, travellers and others are demonised. This rhetoric deliberately misses the points that rights are rights no matter what. The whole point of human rights is that they should not be determined by political expediency or popular prejudices.
Human rights are under attack all over the world. Colombian trade unionist, human rights defender and academic Liliany Obando has been detained, without charge or trial, for over three years. Whilst the new Santos government in Colombia promised that his Government would have ‘a firm and unwavering’ commitment to human rights, on average one Colombian human rights defender is murdered every three days.
In solidarity with our comrades defending human rights across the globe, The Haldane Society is holding a conference ‘Defending Human Rights Defenders’ on Friday 24th February 2012 in Central London. We will focus on supporting activists – lawyers, trade unionists, journalists, NGO workers, and political campaigners – who risk their lives for their commitment to social justice and human rights. We have invited delegations from Colombia, Palestine, the Philippines, Swaziland and the Caucasus region. We hope that the audience will include members of an even broader range of national and international campaigning organisations and solidarity movements. More details are on the back page.
Defending Human Rights Defenders will be a fantastic opportunity to provide practical support and solidarity to comrades facing death threats for standing up for human rights. Please circulate the event widely, and contact Haldane Vice-Chair Anna Morris at dhrd@haldane.org if you can offer practical assistance in the organisation of the event.
We are sad to report the death of Haldane Society Vice-President Professor Kader Asmal in June 2011, and we are proud and privileged to have been associated with him. Kader Asmal was a South African lawyer, stalwart of the freedom struggle and long-standing Haldane member, who worked while in exile principally at Trinity College, Dublin. Besides representing the ANC in Ireland, he found the time to champion human rights in Northern Ireland, chairing an inquiry into the British Army and RUC’s shoot to kill policy and helping to found British Irish Rights Watch. On his return to South Africa, after the fall of the apartheid-regime, he helped to write South Africa’s Bill of Rights and proposed setting up the Truth and Reconciliation Commission, as well as serving as Minister for Water and Forestry Affairs and then as Education Minister. Richard Harvey and Michael Seifert share their memories of Kader.
Kader told the ANC’s National Executive Committee in 1993, when some members were anxious to excuse human rights abuses committed by their own organisation: ‘Human rights are human rights, they belong to all human beings, whoever they might be’. Wise words, which the ANC was right to accept, and which we need to repeat whenever Theresa May, The Daily Mail and David Cameron try to whip up xenophobia and hatred.
Liz Davies, chair of the Haldane Society of Socialist Lawyers
The Court of Appeal (Criminal Division) is often described as the safety net of the criminal justice system. One of its key functions is to ensure that the wrongly convicted can have their convictions quashed. In 1995, following a series of high profile miscarriages of justice including the Guildford Four and the Birmingham Six, the Criminal Cases Review Commission was established as an added safeguard to the Court of Appeal. Its role is to review alleged miscarriages of justice and refer convictions and sentences deemed to have a ‘real possibility’ of being quashed back to the Court of Appeal.
Yet, just how effective are these safeguards in protecting the innocent and ensuring their prompt acquittal?
On the 18th March 2009, Sean Hodgson walked out of the Royal Courts of Justice frazzled and overwhelmed by the crowding press. After 27 years of incarceration, it did not take the Court of Appeal much deliberation to declare Hodgson a free man. Hodgson’s conviction for the murder and rape of Teresa de Simone was overturned when DNA testing on biological swabs taken from the victim proved him to be factually innocent.
The Forensic Science Service very soon became the target of the media’s fingerpointing exercise for wrongly reporting that the swabs were destroyed 11 years earlier when the request for DNA testing was first made. Hampshire Police was also subjected to criticism for ruling out another suspect, David Lace, who confessed to the murder in 1983 and took his own life shortly after.
However, the focus on blaming individual parts of the criminal justice jigsaw lost sight of the systemic dysfunctions with the criminal appeal system that, for over two decades, failed to overturn Hodgson’s conviction.
The jury’s conviction of Hodgson back in 1982 was hardly surprising. At trial, the jury heard how Hodgson made a series of voluntary confessions – first to a priest, then to a prison officer, to the police and to his own solicitor. He made oral and written admissions to the murder, each time giving a detailed account of how he killed Teresa de Simone – details which, the prosecution claimed, could only have been known by the killer. Supporting his confessions, his blood group was a match to that of the killer, and he was undoubtedly present in the locality at the time of the murder.
The unreliability of Hodgson’s confession was put forward at trial and, certainly, when he applied for leave to appeal in 1983. Hodgson was a notorious compulsive liar with a known severe personality disorder. He had made repeated false claims to the police for other criminal offences, including confessions for two other murders that he could not have committed as they did not happen. Many of the details that the prosecution claimed could only have been known by the killer were widely reported in newspapers and television reports.
The then Court of Criminal Appeal dismissed Hodgson’s leave to appeal almost as quickly as the Court of Appeal would allow it 26 years later. The initial appeal was dismissed on the basis that these arguments, as forceful as they may be, were either already heard by the jury or could have been made at the time of his trial. Instead, presumably because counsel had thought that Hodgson was unlikely to be able to withstand the prosecution’s crossexamination, a tactical decision was made for Hodgson to give an unsworn statement from the dock which barely gave details of why and how he had made up the false confessions. The safety net of the appeal court offered little protection to this vulnerable man. Rather, a severely mentally ill defendant was somehow to be individually blamed for not being able to stand in the dock and convincingly articulate to the jury the complex psychological processes that made him repeatedly confess to the most heinous of crimes.
The advent in knowledge on the phenomenon of false confessions appeared to be of no help at all to Hodgson either. Since the early 1990s, dozens of others who voluntarily confessed to crimes that they had not committed have had their convictions quashed due to fresh psychiatric evidence not heard at trial that rendered their convictions unsafe. Key examples include Judith Ward, Andrew Evans, Ashley King, Darren Hall and Patrick Kane who all suffered from forms of psychiatric or personality disorders that made them vulnerable to false confessions. As far back as 1989, the Lloyd-Bostock report cited false confessions as the second biggest cause of wrongful convictions in Britain after eyewitness misidentification. The pioneering work of internationally renowned forensic psychologist Professor Gisli Gudjonsson further enhanced our understanding of how even ordinary people with normal intelligence can be susceptible to making false confessions either voluntarily or under the pressures of police interrogation. It appeared that because Hodgson’s history of making false confessions was already known to the jury who nevertheless decided to convict him, the doctrine of finality precluded the (un)reliability of his confession from being re-examined.
As with all other appeals against conviction, the primary way to defy this long-standing doctrine is to find fresh evidence that renders a conviction unsafe – a requirement under section 23 of the Criminal Appeal Act 1968 and section 2 of the Criminal Appeal Act 1995 respectively. Hodgson’s fate was therefore sealed, at least until luck befell him with the discovery of the exonerating DNA evidence – the fresh evidence that held the key to his eventual acquittal by the Court of Appeal.
Hodgson is one of the ‘lucky’ few – perhaps an odd term to describe someone who served almost three decades of wrongful incarceration. However, the discovery of fresh evidence is not something that can be guaranteed for every innocent victim of wrongful conviction. Indeed, the Criminal Cases Review Commission, which similarly applies the fresh evidence criteria in deciding whether to refer an application back to the appeal courts, has referred fewer than four per cent of over 13,000 applications it has received since its establishment.
The Innocence Network UK, established at the University of Bristol in September 2004 to facilitate investigations into alleged wrongful conviction has, to date, deemed around 200 prisoners (out of over 1,000 requests for assistance) to have a plausible claim of innocence. Many are convicted on evidence that is dubious to say the least – alleged cell confessions; inconsistent witness testimonies; questionable forensic evidence; and forms of highly circumstantial evidence. Almost all these 200 prisoners have failed in their first appeal – the principal reason being that arguments relating to the unreliability of the evidence that convicted them have already been heard by the jury and, unless fresh evidence is produced, the Court of Appeal is not entitled to go behind the jury’s verdict. Around half of these cases have been refused at least once by the Criminal Cases Review Commission. Despite the questionable circumstances of their convictions, the Criminal Cases Review Commission, whose role is generally confined to a review of fresh evidence, can do little, if anything, to assist them.
However, returning to the case of Hodgson, it should not have required fresh evidence in the form of a DNA exoneration to quash his conviction 27 years later. He was convicted mainly on his own confession, which we knew then and certainly more so in the last two decades, to be an inherently unreliable form of evidence. Hodgson’s conviction should arguably have been overturned much earlier on the basis of his questionable confession alone. Yet, without the miraculous discovery of the DNA evidence, Hodgson would most certainly still be trapped within the prison system.
If there is anything that Hodgson’s wrongful conviction has taught us it is that justice should not be dependent on the luck of finding fresh evidence. If the overriding concern of the Court of Appeal and the Criminal Cases Review Commission is truly about safeguarding the innocent, then the requirement for fresh evidence should not be a barrier for revisiting the convictions of those who might be.
Gabe Tan is Executive Director of the Innocence Network UK (INUK)
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