Category Archives: Justice Systems

Sticks and stones 2: The consequences of abuse on social media

And typically, just as I had hit Publish on my last blogpost, the news had shifted once again.

John Nimmo and Isabella Sorley, the two people who pleaded guilty to abusing Caroline Criado-Perze over Twitter have been sentenced to 8 weeks and 12 weeks in custody respectively. Their sentences are immediate, and they will both be on their way to prison now.

The sentencing remarks can be found here.

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Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons

On 5 July 2012, the Chief Justice of Australia, Ron French, gave a lecture in the very opulent Australia House on the differences and similarities between human rights protection in Australia and the United Kingdom. It was chaired by the Lord Chief Justice of England and Wales, Lord Judge.

French started his lecture by pointing out the most important difference between the two jurisdictions: Australia has a written constitution, and the United Kingdom does not. He also pointed out that Australia has no bill or charter of rights unlike the Human Rights Act 1998 in the United Kingdom, with him joking that the phrase “she’ll be right, mate” was a pithy way of describing the popular views of how human rights work. However, one of the great similarities and strengths of the two countries is the principle of legality based upon the common law and parliamentary sovereignty. There have been criticisms of Australia as a western democracy for a perceived failure to protect rights adequately, but French argues that there is protection present.

In September 2009, a committee on human rights reported to the Attorney-General of the Commonwealth of Australia on which rights should be better protected and how Australia can achieve that. One option was a statutory charter similar to the Human Rights Act 1998, but there was a concern that such a charter would remove the power and burden from the parliamentarians and place it on the judiciary. Instead, it was decided that education was the key way that rights should be protected, and other existing statutes could be altered to give the judiciary a power to interpret legislation in line with these rights similar to the power under s 3 HRA.

The committee suggested a common law Human Rights Act based upon the HRA in the United Kingdom and its dialogue model, but the Attorney-General said it could be divisive. Instead a human rights framework was created to promote education and to pass an Act of Parliament to form a joint committee on human rights to ensure that Australia complied with seven core human rights treaties. As an example of how this would work, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Teoh claimed that due to his children the Minister should have considered the impact of the Convention on the Rights of the Child (which Australia has ratified) when considering his deportation. That case held that it was correct for Teoh to have a legitimate expectation to be protected by an international treaty that Australia signed, though it was possible for the Minister to depart from his obligations under it.

It was decided that every new Bill was to be accompanied by a human rights statements, and the core treaties were:

  • the International Covenant on Civil and Political Rights;
  • the International Covenant on Economic, Social and Cultural Rights;
  • the Convention on the Elimination of All Forms of Racial Discrimination;
  • the Convention on the Elimination of All Forms of Discrimination Against Women;
  • the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment;
  • the Convention on the Rights of the Child; and
  • the Convention on the Rights of Persons with Disabilities.

There was also public discussion of putting discrimination law under common law and statute into one statute, as there are many that operate at both state and federal level. However, it was decided that this was unnecessary as s 109 of the Constitution can be used to prevent their operation under commonwealth law. In Mabo and Other v State of Queensland (1992) 175 CLR 1, a statute extinguishing the claim of Aboriginal groups to land was held to be inoperative under s 109 for grounds of discrimination. A further case where limiting fertility treatment in Victoria to married women only was also rendered inoperative.

Most territories have their own discrimination laws, some even in charter form. However, the Australian Constitution has no bill of rights to enshrine these laws, but it does contain protection for them. To find them, we need to look at the broader context, and the evolution of Australia as a country.

All the states acted as independent territories with their own supreme courts, but decided to federate in the 1890s, which required a draft constitution, as the colonies were given authority by imperial statute. The-then Chief Justice of Tasmania turned to the US Constitution as an example. Some representatives were not keen on the provisions in this, as for them some forms of discrimination were desired. However, the rights to trial by jury, free exercise of religion and the protection of a state’s residents from other states on the basis of their residence form part of the Constitution. There are other rights expressed within the document, as well as those more subtle.

Chapter 1of the Constitution sets up the law making power for the Commonwealth and the following chapter created the executive. Chapter 3 set up the judiciary: the High Court of Australia, federal courts, and the power to delegate federal authority to other courts, namely the supreme courts for each state. The High Court however remains the final appellate court for all. The Constitution contains a clear separation of powers, which is not found at state level. However, the independence of the supreme courts is now guaranteed and entrenched as a result of the Constitution.

Other express rights include as the prevention of civil conscription, the acquisition of property of just terms, and the power for the High Court to review the actions of an officer of the Commonwealth, an expansion to the right to trial by jury which requires a unanimous decision of a jury for conviction of a Commonwealth offence, and free movement and trade between states. A restraint of the practice of legal professionals between various states has also been removed.

In this way, the rights may be seen as legal and procedural guarantees as well as rights similar to those in our HRA. This also include the Kable doctrine, which prevents state courts from acting in a way that is repugnant to federal courts. This can also prevent the state judiciary from being bound by state legislation, such as the restrictions placed on a Magistrates Court to follow prescriptive legislative powers. The supreme courts cannot be deprived of their supervisory jurisdiction of the executive under the constitution and case law.

Other rights that have emerged from case law include the right of Australian prisoners to vote, to change election registration details after an election is called, and an implied freedom of political communication. The judiciary have also been known to take more direct action, as a book on shoplifting was denied a classification and therefore could not be published; however, while the appeal was dismissed, the judge as part of his reasoning attached the entire book to his judgment.

French noted that the United Kingdom does not have such cases, but our common law rights have the same constitutional power. The principle of legality ensures that construction of the law must follow the least infringing meaning. These rights and principles have their own importance and weight which is free from interference in statute. Australian examples include a provision against annoying Catholic pilgrims during World Youth Day as part of a papal visit could not be construed to prohibit all activity, and the reverse onus of the legal burden of proof falling on someone in possession of drugs could not be used to support the legal burden and evidential burden of trafficking offences.

French’s final point was this: the roles of the courts and the Constitution is key but is based upon the people working in their framework. However good a constitution is, it won’t work properly if there are bad people working in it, but however bad a constitution is, it will work if there are good people working in it.

The talk was hosted by the Anglo-Australian Lawyers Society and the Constitutional and Administrative Bar Association.

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Cameras in Court: is there any point?

The debate about having cameras in court has been going for some time now. The basic point, that justice should not only be done but should also seen to be done is an important one (if a very literal interpretation of the point), holds true. We are so used to seeing the goings-on in Parliament on TV; the growth of interest in the work of Parliamentary committees and inquiries has led to their broadcast; and with tweeting is now allowed in courts so long as it complies with the Lord Chief Justice’s guidance. We have instant updates from journalists, bloggers, and interested observers to these proceedings, so why shouldn’t there be cameras in court, broadcasting proceedings?

I went to a debate held by the Media Society at the ITN building on Gray’s Inn Road on this topic on 18 October 2011, and my note on the proceedings is as follows:

On 6 September 2011, the Secretary of State for Justice and Lord Chancellor Ken Clarke announced that the blanket ban on filming in courts was to be lifted as a way to increase public understanding of the justice system. The plan is to broadcast the sentencing remarks of Court of Appeal judges, with a later move to those in the Crown Court. Witnesses, jurors, and deliberations would not be broadcast.

This move came after the criticism of sentencing and reasoning in light of the August riots. However, the notion of filming in court has been mooted for a long time, and the debate on the topic is not new. In light of this announcement, the Media Society held a panel discussion on cameras in court.

Alastair Stewart, ITN newsreader of long standing, was the Chair for the event, and the following were the panellists:

Prof E Barendt;

John Battle (ITN Head of Complaince);

Simon Bucks (Sky News);

Sir Ivan Lawrence QC;

Fran Unsworth (BBC); and

John Whittingdale MP.

Stewart started with a few remarks about the background to the topic, point both to Clarke’s announcement and the UKSC’s broadcasts. He also noted that Scottish courts sometimes allow it for cases of public interest, but there has been varied success with the scheme. He continued by saying that while TV has a role in increasing confidence in the criminal justice system, some critical thinking needs to be done about how to make it work to the tastes of the parties involved, both those involved in the proceedings, and those broadcasting them.

Following a video by Mark Austin which set out an introduction to the debate as well as some initial points for both sides, the discussion got underway.

[AF note: two things stood out for me in the video: firstly, I never knew that the debate about film and photographs in court dated from the Dr Crippen trial in 1910, with photography being banned 15 years later; and that the first major push for the debate in modern times was as a result of the Louise Woodward trials in the US].

Whittingdale started by commenting that he was surprised it has taken this long to get a point where courts proceedings will be televised, considering how simple, easy and natural it seems as part of the #Leveson inquiry. His comments followed along the same lines as a speech given by the Master of the Rolls about proceedings and judgments being given in public already, noting that the public don’t scrutinise them by visiting courts. He noted that the arguments for cameras in court are very like those made for the televising of Parliament, and that the behaviour of MPs has not changed much [AF note: there always seems to be a lot more people in the public gallery in Parliament than in a court though]. Certainly, the now very well-known footage of Murdochs Senior and Junior in front of the Select Committee commanded a huge audience, but perhaps this was due to the range of interest in the subject matter, as few people would have seen it otherwise.

Moving on to Sir Ivan Lawrence QC, his rebuttal focused on the notion that Parliament is not concerned with the activity in courts, and the courts are targeted on individuals, not issues. As such, the two cannot be held to be the same. His fear is that the proceedings could be tainted:

  1. advocates are very unlikely to grandstand, but there is always the temptation;
  2. justice is a delicate matter, and the perceptions of the non-lawyers involved may mean they are less willing to take an active role; and
  3. judges will be constantly thinking about whether something can be broadcast or not.

An important pointt Lawrence raised is that there is very little considered when someone is acquitted, as the media simply does not allow the stigma to to fall away.

Fran Unsworth of the BBC followed by saying that it is a valid experiment as it supports open justice, and naturally the BBC has a role in educating people. She noted that England and Wales is lagging behind other jurisdictions, even though this type of broadcast improves transparency. The question is whether a reporter should take this role or whether people should have direct access to it.

Unsworth felt that there is a sense of double standards, as tweeting is allowed in court but cameras are not, though of course camera equipment technology has improved dramatically so it would not take up nearly as much space as feared. She felt that the proposals were too limited as the the public would be bored and the chance wasted. Any worries that hearings would become a media circus should remember that US trials like the OJ Simpson trials were unique for obvious reasons.

Simon Bucks of Sky News followed; he pointed out that broadcasts of the House of Commons have been the norm for nearly 22 years, and now it all seems innocuous and unsurprising. That the trials for Parliamentary expenses fraud were not broadcast, despite the public interest (both meanings), was strange, as it is a core part of democracy to see such events. It must be remembered that people with day jobs or who works away from courts location do not have access to justice in the sense of a viewer or a consumer. Bucks continued by saying that broadcasters have been running a steady campaign for years on this topic, and saw the riots hearings as a perfect example of what could be achieved.

Professor Barendt admitted straight away that he comes at the concept as a sceptic, especially noting that the progression to the Crown Court could be more interesting, as the participants are usually more unwilling. His main concern that is the broadcasters will use their discretion to cover more newsworthy trials, and not local or civil matters. He wonders whether it would leave to mandatory gavel-to-gavel coverage as in the USA, or only extracts; the choice requires an editorial distinction. He agreed that we need to think about the reputation of an acquitted defendant given that the media can shape views and ideas.

John Battle started by mentioning that he has also been heavily involved in the background to the campaign, having met the Lord Chief Justice years before on the matter (prior to Judge LJ being the LCJ). However, he stated very simply that filming is not a revolutionary idea; the courts the British public don’t get to see are their own, and the images available are scarce and very selective.

Returning to earlier concerns, he believed that there is very little evidence to support worries about disruption to advocates, and no evidence about the loss of protection for vulnerable witnesses. Judges will also be able to control the filming, in line with the rules for protected applications. He went on to say that the experiment can help feed the debate and assure those in proceedings what will happen. There will be better reporting of trials, and will also show the public just how informed and knowledgeable both judges and counsel are.

Questions from the floor:

Joshua Rozenberg asked why the Lord Chancellor has agreed to this now; are the government concerned the public aren’t well-informed? And would reporting on TV show the judges as capable of supporting and sympathising?

JW responded that he wasn’t sure why, but there is a definitely a growing feeling for openness in this government, something JB agreed with. IL is supportive of broadcasting judgments, something EB agrees with but there is a caveat that the media need to work closely with the LCJ to ensure standards on both sides are maintained, especially as the media needs to respect a judicial decision to not have a camera in court. FU believes that the plans do not go far enough, and that the audience would benefit from hearing the arguments.

Bob Satchell of the Society of Editors said that he feels it is a bit innocent to believe that the word rapist would no longer be used in association with an acquitted defendant. IL agreed, saying that a lifetime of working in courts says that the public don’t see someone as acquitted, but as an acquitted rapist. JB says that legislation would be required to ensure that it is done fairly, but the regulators already exist to protect defendants; he also wonders why the statements and summing up could not also be included to give a more rounded picture. JW believes that this trial would increasingly remove the stigma as they can understand why a decision was reached. SB points out that the proposition would be introduced incrementally, and that the nature of media coverage is selective.

A question asked about whether legal terminology and arguments would be explained. FU felt that that is not what is of interest, but the principle of broadcasting remains. She felt it is like Parliament, some of the debates are electric, but most of it is boring.

In response to a point raised by Stewart again about liberty and reputation, IL stated that it is important to ensure that the stream of justice is not polluted. FU says that people are selective already in what they write, so they should not expect anything different about broadcasts. IL points that this may also make an increasing problem with juror research worse.

After some personal comments directed at IL, EB defended his co-panellist and espoused the view that there is no right to see a criminal trial, which could be supported by a very narrow reading of Article 6 ECHR. FU accepts that this is true, but states that the judge would have control; the important thing to consider would then be why the trial could not be viewed.

A question from the floor made a point that journalists would select trials based upon what they think, so would it better to consult the public on what they wish to see? IL reiterated the point that most court proceedings are dull, and dipping in and out gives a poor understanding of how proceedings work. FU for the most part agreed, saying that people need to be allowed to choose themselves. However IL thinks that it is more a practical issue which would add to judicial workloads. SB mentioned a red stop button for judges to stop a live stream and wondered whether this would be an option for criminal trials. JB points out there still need to be a clear delineation between editorial and judicial controls.

Mark Stephens of FSL pointed out that the Commonwealth has evidence related to broadcast proceedings, and notes that the populace of each country was just as concerned as those here, but the broadcasts work. He points to a prosecutor following the Vancouver riots who felt it was important to have justice seen to be done, and done openly. EB responded by saying that selectivity is a very unattractive proposition, and it was noticeable that a media conference in Beijing pointed to the criminal justice system in England and Wales as lacking in freedom of speech.

A question from the floor about how filming courts could make celebrity defendants and glamourise the facts was responded to by SB saying the visual consequences may act as a deterrent. FU says that it would make no difference to the impact of a case, as such as case would be well known enough anyway; the paper press creates the marketability.

Another question from the floor made a point about scrutiny of justice, and the need to distinguish between open and transparent democracy and how journalism works [AF note: this is also something I thought about, will there be a need for legal pundits to explain the rationale behind judgments?]. Another question asked whether reporters would use footage to increase their ratings. JW said that it would be a slow process of increasing access, as there is a clear need to work out how the system would work, but JB said that it is important it happens as the open justice system here is very weak. JW continued by saying that the Murdoch pie incident in itself was good news, but the irritation comes from the fact that a pie could make it into a Select Committee hearing.

IL moved the discussed back to selectivity and pointed to current examples in the news about a focus on views concerning a defendant and their families, and the witnesses, which could be viewed by jurors. JB disagreed with this, pointing the trial of Conrad Murray in the USA, and the role of jurors and their oath in proceedings. However, EB and IL pointed out that people can get their information about cases from papers anyway.

Some final remarks:

EB feels that TV coverage of trials will exacerbate unfair influence on the criminal justice system, but the coverage itself will be more sensational than the trial.

IL believes that there has been no public demand for this, as the public see there are dangers to justice [AF note: or they may just see it as too dull].

Finally, JW believes that the trial will go ahead and will be extended, especially with improving technology. A mention in the Queen’s Speech could show proper commitment to the process.

Where are we now?

Now we have the campaign reaching a new strength, with BBC, Sky, and ITN writing to the heads of the political parties to gain their support for broadcasting courts. It cannot be denied that the principle is a sound one, but my concern is more about the practicality. Putting aside all the worries about grandstanding and witness protection, for which I am sure protocols would be developed, what good would broadcasting court proceedings actually do?

Watching my Twitter timeline, at times it is fascinating to see that people tune into web broadcasts of the Supreme Court and Parliamentary proceedings while they are at work. However, these are people with an interest in the matter at hand, be they wanting to see the outcome of a trial, or just marvelling at the levels of advocacy. How many of the people the broadcasters say cameras in court will reach actually care? My guess is not many. Also, how many people will be able to watch court proceedings live? How many will watch them on catch-up TV? Probably more for the latter, but still those not able to catch it will go for one of the excellent round-ups that is provided by other sources. I can’t quite imagine people wanting to avoid news of a verdict in a case quite the same way as avoiding the football scores.

Another concern is that courts are odd places at times, with some very archaic expressions and behaviours still used in the more traditional proceedings. Would the broadcasters just leave their audience with the proceedings, or would they provide a talking head or two to explain what is being broadcast? A lot of the court proceedings broadcast already are watched by practitioners or those with a good understanding of what is happening, but to watch Supreme Court tv with a bare understanding of what is happening will not improve anyone’s knowledge or experience of the justice system. There are excellent bloggers out there explaining the law, cases and developlments; The Judicial Office is getting extremely good at putting cases and remarks of interest on its website for people to find; and the Supreme Court publishes its judgments with press releases and summaries to help explain the decision reached. There so far has been no comment by the broadcasters about what they will do with the information gleaned from the broadcast. Each has used experts in the past to discuss important cases and developments, but there was no mention of such explanation in the debate, nor in any subsequent media (if someone can find it, please do show it to me). The public will still be left with the same information; it will be presented in a new, instant way, but still with the same level of understanding of what is happening and what is being said.

While I agree with the principle that justice should be seen to be done, cameras in court as they stand simply appear to be improving democracy in style only. Transparency has become a watchword of this government, turning something fundamental to popular democracy into a tickbox exercise. It is my belief that it is not the presentation of the information that matters, it is what you do with it and how we understand it that matters.

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