Contempt of Caught? How the ICC upheld the Rule of Law

Two of my main passions collided last week in the latest instalment of the cricket “spot-fixing” scandal (the background to which is summarised brilliantly by cricket website ESPN Cricinfo), and it was pleasing to see the cricketing establishment being so respectful of the English legal system. The International Cricket Council (as opposed to the International Criminal Court) took a decision to ban the three Pakistani cricketers involved in the scandal for what is, once suspended bans have been taken into account, a period of 5 years each. However, it was the ICC’s decision to only publish an edited version of its spot-fixing ruling and making even that edited version “unavailable to readers in England and Wales” for fear of influencing the case which will be coming to the UK courts in March this year that was so impressive.

The ICC’s exercise of caution is excellent news in the wake of the media reporting of the Joanna Yeates murder case, which led to thousands of tweets about a suspect who was portrayed in many newspapers as being guilty by virtue of not being what fits into their definition of “normal”.

The Guardian sought to talk about whether the coverage of the Yeates case was rendering the Contempt of Court Act 1981 “threadbare” and “in disarray”. It is reassuring, therefore, to see that when the CPS is proactive in its protection of the justice system, as it was in this instance, that the public and the organisations who are affected will respond.

The CPS’ charging statement contained the following:

“I would remind everyone that these men are entitled to a fair trial and should be regarded as innocent of these charges unless it is proven otherwise in court. The International Cricket Council tribunal is due to announce its decision tomorrow, but criminal proceedings are active now.

“It is extremely important that nothing should be reported which could prejudice the trial.”

(Source: CPS blog)

This will not be a long post because, amongst other reasons, I won’t comment on the case itself and thereby contravene the very direction that I am commending the ICC for adhering to.

However, what I will say is that I am pleased that in, the wake of the “trial by [mainstream and social] media” that occurred in the Yeates case, the English legal system’s principles are being upheld once more.

Of course people will have opinions on these three cricketers (and the agent who was the subject of the News of the World sting operation), and will air them privately to each other and may even broadcast them publicly via the internet. But they must express them in such a way that it cannot influence the outcome of a case which has yet to come to trial. The CPS is doing the right thing in setting this example. The ICC has done the right thing in responding accordingly.

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As an aside, I wonder if this article by Roy Greenslade, about the overturn of convictions secured after so-called “Fake Sheikh” sting operations run by the News of the World, is relevant to the Amir/Butt/Asif/Majheed case. I am unfamiliar with the rules pertaining to these kind of attempts to draw out incriminating conduct, and would be interested to know if convicting these men is likely to be impossible even before the trial has begun simply on account of the methods used to obtain evidence.

Newsflash: Legal Bloggers are real people! Reflections on the #LawBlogs seminar

This week, I was fortunate enough to be invited to a seminar about the future of legal blogging held at One Crown Office Row, home of the brilliant UK Human Rights Blog.

In his post entitled “That was the future of legal blogging”, Adam Wagner of the UK Human Rights Blog gives a good run-down of what was covered.

Legal blogging is certainly alive and well if the #LawBlogs event is to be a barometer. There are new blogs springing up all the time to augment the body of older ones – one member of the panel, Carl Gardner, set up his blog in what he called “ancient history in internet terms” (2006) – and covering all aspects of the market.

It took being in that room with a large number of people who blog for me to realise just how many varieties of law blog there are.

At the moment, I’m not in a position to write about the finer points of law; I don’t feel sufficiently qualified. I tweeted a while ago about this, saying I was a frustrated law blogger because despite my desire, I don’t know enough law to blog authoritatively. But that doesn’t matter – even those who clearly do know enough to blog in that way don’t always do so; for every blog like Carl Gardner’s, Adam Wagner’s, David Allen Green’s (although his New Statesman blog is less about legal intricacies) or the fantastic LawThinkUK blog, there’s one like Legal Bizzle’s, Tim Bratton’s or mine (not that I’m in their league, of course).

I intend, as I progress through my career, to keep up my writing. Whether that is to continue writing about the process of studying & working in law and its impact on me, like Barry Gross or Tim Bratton do, or whether I’ll move into doing more complex analyses, I don’t know. But whichever one it is, I’m sure I’ll enjoy it.

One of the questions that was discussed was “who do you blog for?”. One of the things I took away from the evening about blogging is that whoever your intended audience may be and whatever effect you hope your writing will have, you are ultimately blogging for yourself. Blogging is unpaid and, as was agreed in the form of much nodding and murmuring when it was mentioned at #LawBlogs, can be very time consuming. It’s not something that any of the legal bloggers would do if they didn’t enjoy it. And I think it’s that enthusiasm that comes across when you read a blogpost – even when Legal Bizzle’s at his most irritated I can sense that, even if he’s not enjoying the work or the people with whom he has to interact, he is enjoying telling the rest of us his story. Blogs aren’t written entirely for the writer’s benefit, though – if it was just about the writing, we’d all be writing diaries – and the more legally-focused blogs rely on their audience in a different way to the ‘therapeutic’ blogs.

It’s sometimes easy to forget – or rather, it’s sometimes difficult to comprehend – just how many blogs you read in the course of any given time period. I was surprised to sit in a room with 30 people on Thursday night, each of whose blogs I have read at least once this week, in some cases many more times than that. There are also plenty of bloggers who were not in the room whose blogs I have also read this week.

#LawBlogs was marvellous because it confirmed to me that there really is a “blogging and Tweeting community”. It was great to meet in person the people who before now had simply been Twitter account names, especially those who use alternative names and photos, and to talk about things we have in common. The main tie binding those who were present was an enjoyment of law (although some might say it borders on an obsession with law).

There were people from all stages of qualification, from lowly, GDL-studying me to those who have made it to the very top of the profession; people who work in all areas of law, and those who write from the outside about the law and its practitioners. It was great to find common ground about blogging with people whom I’d never have met were it not for Twitter, talking about self-censorship in blogposts and the value we’ve found in tweeting about law.

Without the invention of the internet, there would never have been an invitee list like there was at #LawBlogs. Being there was a great pleasure, and there are plans afoot to hold a bigger version of the seminar later in 2011. For me, it was yet another great illustration of the power of the network. Long live legal blogging, in all of its many forms.

The place of ethics in legal education

There is a discussion happening currently in legal education circles about the suggestion from the Law Society that ethics should be taught to law students. Professor Richard Moorhead of Cardiff University wrote an excellent blogpost on the subject in December, around the time that the Law Society’s report was published. He wrote that he supported the basic premise of teaching ethics to law students, so long as certain things were taken into account. I shan’t go through them now, because that would be effectively regurgitating his entire blogpost, and I wouldn’t do it justice; I advise you to read it for yourselves.

I tried writing this post a couple of weeks ago, but couldn’t seem to find an angle for it. That angle was presented to me by a friend of mine a couple of days ago. She attended the Student Law Conference this week, where she attended a talk by Lady Hale, a Justice of the United Kingdom Supreme Court. After giving her presentation, Lady Hale invited questions from the gathered mass of law students.

One of the questions asked was “How do you balance integrity with achieving your clients’ objectives?” I studied some ethics at University and found it very interesting from a philosophical point of view. But I don’t expect that it will have any practical bearing on my career as a lawyer.

The student’s question to Lady Hale is exactly the type of issue that legal education, if it is to attempt to bring ethical teaching to bear on the future lawyers of this country, should attempt to answer. Navigating the shades of grey and working right up to the boundaries of legality in order to achieve a client’s objectives are what some people would say denotes a good lawyer. But how is this taught?

This week, I finally read the Law Society’s report on the teaching of ethics to law students, which contains a draft syllabus for the teaching of legal ethics on Qualifying Law Degrees (QLD), as one of the foundation subjects. I was linked to it from Neil Rose’s article on Guardian Law about the effect that the new Alternative Business Structures might have on legal ethics, in which Neil recounts his time working on the Solicitors Regulation Authority’s (SRA) legal ethics helpline. “My experience,” he said, “is that solicitors are generally seeking reassurance they are doing the right thing rather than looking for ways around the rules.”

On the face of it, it appears that to teach ethics as I was taught it in my philosophy elective during my degree, or even how the Law Society intends to do so (if the draft syllabus I linked to earlier is adopted), is not quite the right way to go about it. It seems to me to be a practical aspect that needs to be taught. One would hope – though sadly, experience tells us that a mere hope is all this remains – that those who wish to enter a career in the law have a moral code that they wish to adhere to. I don’t believe that learning the theory of ethics will benefit students, certainly not as one of the foundation subjects on a QLD or on a Graduate Diploma in Law (the so-called “law conversion course”).

What can be inferred from Neil’s experiences on the SRA’s helpline is that the guidance lawyers sometimes lack is that of interpretation. But is this teachable? Is it practical to do so? After all, each situation faced in practice will differ, and it is impossible to cover all possible eventualities of every law that is taught on a QLD. Perhaps that is the thinking behind teaching ethical theory; if you cannot teach every situation, at least attempt to arm students with a framework from which to approach those situations. The problem is, I doubt that the proposed framework is practically applicable.

I wonder whether this ethics debate is really addressing the heart of the problem. At University, the ethics module I took was worth 10 credits, so I chose another module worth 10 credits to complement it. That module was Critical Thinking – how to form valid arguments, and how to identify when a conclusion does not logically stem from the reasons given. It is that module which I believe will have greater practical application in my career; it was those skills which led me to question the validity of using ethics to solve this problem.

If it really is just a problem of interpretation of laws, as I suspect it might be, does that point not towards the need to add ethics to the syllabus but simply to improve the standard of legal education as a whole? Isn’t interpretation one of the core skills that legal training is supposed to provide? Of course, once a lawyer begins to practise they should be taught about conflicts of interest and money laundering and other practical ethical elements. But, in my opinion, those should not be compulsory subjects on a law degree.

‘Extended trial periods for workers’ proposal: a call for opinions

Recently, I watched an interview that the Financial Times carried out with The Confederation of British Industry’s new Director General, John Cridland. It was very interesting, and is worth watching if you have the time and inclination to do so.

Cridland  asserted that with the consumer being “chastened” and the government concerned with the public sector, the private sector had to take the lead in the recovery. He said that there were three things that business needed to do – invest, export and create jobs – and that in each area, there was a key role for the government to play.

When probed further about what the government needed to do in order to promote these, Cridland said of the job market that the government must “remove any barriers that get in the way of businesses, and particularly small businesses, employing people. There are key changes to employment law, like giving businesses a couple of years to judge whether they’ve got the right person, which will make a real difference to whether a business is prepared to take the risk of taking somebody on.”

I was intrigued by this statement. I’ve been learning about the EU employment regulations recently as part of my GDL (which was interesting in itself, as I’d previously covered them from a political perspective as part of my degree) and have seen the feelings they inspire from all quarters.

I have spoken to people who employ workers, who have said that a move in this direction would indeed be useful for them, as would a relaxation of other employment laws such as those covering maternity and its related areas.
I’ve spoken to some employers who accept that it can be difficult on occasion, but that an equal and fair society is worth the inconvenience and that competent hirers and managers should be untroubled by employment law.
I’ve spoken to employment lawyers who feel that despite regulation being weighted slightly in favour of workers, the business world can cope and needs to be regulated against to maintain fairness.

I agree that fairness is the ultimately desirable goal, and that the concept of a two-year trial period probably goes against that ideal. But is pragmatism required in times of struggle for business? If enterprises are being asked to lead the recovery, should they not be given every help to do this? On the other hand, consumer spending will also be a trigger for recovery. For consumers to spend, they’ll need to feel secure in their employment, and therefore long trial periods might not be the way to encourage that feeling.

It’s a fine line to be drawn, and it’s the CBI’s job to argue solidly in the interests of its members. I’d be interested to hear the opinions of people to whom this might affect, to see if they think it would make a practical difference to their work. I nearly didn’t publish this blogpost because it’s not a field where I can give opinions that are based on anything other than observation. I’m applying for Training Contracts at the moment which are two years in length and, in effect, give law firms the very flexibility that the CBI is asking for - the ability to test whether someone is worthy of a permanent role during the first two years of their service. But I decided to on the grounds that I doubt that many people have watched this interview, and I’m  sure there will be opinions around once people have seen it.

The government’s financial plans are taking a tremendous pounding in many quarters at the moment, and if you watch the Cridland interview you’ll see how careful he is not to say anything negative about his ally, the Conservative party. Socio-economic policy is probably the area over which the two ruling parties will have to compromise the most. I could not envisage a ruling party adopting this theory as a policy, even at the best of times; given that there’s a coalition in power, the CBI have two hopes of achieving their aim – and Bob Hope is no longer around.

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