Month: October 2006

Religious Dress

It is currently Reading week – a time to read. Yeah. Or something like that.

In addition to reading, we have been set a short assignment to comment on a case we have been looking at in Constitutional & Administrative Law, an assignment I have just completed and am now going to republish here:

Read the Court of Appeal decision of Brooke LJ, and the House of Lords decision of Baroness Hale, in Begum v Denbigh High School. In your opinion, how should this case have been decided and why.

The UK is not secular – throughout the country there exist schools run by the church, Religious Education is part of the national curriculum and religious dress is often incorporated into uniform policy. Indeed, the history of the UK revolves around religion and the influence of the Church of English, and now increasingly the religious beliefs of a wide variety of faiths. In contrast, the United States (and many countries in Europe) operates a secular educational system to allow the state to appear neutral. However, despite this, an interesting paradox exists in that the US “is now the most religiose country in Christendom, while England is among the least”[1] . This is particularly the case when the President of the USA himself openly states that “he [is] driven with a mission from God”[2] which goes against the original non-religious founding beliefs of the American government.

Whilst this decline may be true for Christianity, we are hearing more and more in the news of disputes arising not from Christian believers but from the members of the Islamic faith. Islam is often seen as much more extreme in the way belief is expressed – particularly with the dress code. Considering this in isolation, it seems silly that such an expression of religion can inspire such thoughts when the habit worm by a nun would be accepted without a second thought. The headscarf or full length dress is often seen as a symbol of Islamic fundamentalism and thanks to coverage by the media, in particular the relationship with terrorism, the connotations of these clothes create an air of suspicion and even fear in Western countries.

So when a case such as Begum v Denbigh High School arises, it is immediately transported to headline news and becomes a talking point across the country. The question that is raised here is not whether someone should be allowed to express their beliefs but how far the freedom to do so should extend. This is particularly relevant in the case of Denbigh High School who were very accommodating with their uniform policy to ensure, in consultation with the local religious community, that all reasonable options were available to pupils. But what is “reasonable”?

From this case, and others like it, it is apparent that whilst the courts are of course allowing the right under the ECHR, they are applying certain conditions to it where other people or society as a whole is affected. This was particularly the case with the recent case of the teaching assistant Aishah Azmi who was suspended for wearing a full veil during lessons[3]. The stance taken here was that the veil caused health and safety problems during certain lessons and children had found it difficult to communicate with her.

In both the Begum and Azmi case, a choice is available – in the former, the student does not have to attend the school and in the latter the assistant can find a different job. On its own, this sounds like a very stubborn approach – “we’re not changing so if you don’t like it, go elsewhere” – but in reality both schools attempted to make concessions for these kind of situations and in both cases the options presented were declined. When looking at it like this, to avoid dangerous precedent, the courts really had no option to find against both claimants. If their cases were to have succeeded then it could result in a large number of similar cases for all kinds of religious beliefs resulting in great expense for organisations forced to accommodate any request. It would then be seen to be taking advantage of the tolerant society and the rules set out in the ECHR that exists in the UK which does not exist in other countries, particularly those where Islam originated.

At the heart of the debate is of course religion and the rights allowed for each individual to freely associate himself with any religion of his choosing. An interesting argument raised by Richard Dawkins in his excellent book, The God Delusion, is why do we treat religion with such respect and consider it polite not to interfere with the religious beliefs of another? This possibly derived from a speech by Douglas Adams:

“Religion…has certain ideas at the heart of it which we call sacred or holy or whatever. What it means is ‘Here is an idea or a notion that you’re not allowed to say anything bad about; you’re just not. Why not? – because you’re not!’ If somebody votes for a party that you don’t agree with, you’re free to argue about it as much as you like; everybody will have an argument but nobody feels aggrieved by it. But on the other hand if somebody says ‘I mustn’t move a light switch on a Saturday’, you say, ‘I respect that’. When you look at it rationally there is no reason why those ideas shouldn’t be as open to debate as any other, except that we have agreed somehow between us that they shouldn’t be.”[4]
So perhaps the real question that needs to be considered is why does the ECHR give such direction over freedom of religion in the first place? When you do actually consider that and come to the conclusion that there is no reason, you understand why the secular state exists.

The Perfect Example

When I showed the Military Commission article on The Register to one of my friends yesterday he said that it’s a sign of things to come here in the UK. I disgreed because in the UK we do have an effective parliament and safeguards in place. The government might try and instigate the likes of the Legislative and Regulatory Reform Bill but they have so far, and I hope always will, fail.

Another perfect example of how this is the case is when the detention without trial idea was suggested only to be scrapped because it is against human rights laws. It’s ironic that it was this Labour government that passed the Human Rights Act in 1998 and now things they are trying to get through are being blocked because of it! I’d like to think that anything similar to this in the future will meet the same fate and our judicial system will ensure that even if something suspect does come into force, it doesn’t have much of an impact upon the freedoms we take for granted.

And I’m glad the Lord Chief Justice thinks along the same lines.

The beginning of the end

I hate the American media. I can’t stand their “news”. And I use “news” in the lightest sense. You only have to watch Fox News to see what I mean – a show of pure drama and hype. The news as I see it in the USA is purely for entertainment value and rarely shows an unbiased or independant view. Contrast that with the BBC News and even ITV or Channel 4 news and it really becomes aparrant. We are so lucky in the UK to have the BBC News providing real impartiality in their original news broadcasting.

However, despite my dislike for news reporting in the United States I am actually going to link to a 9 minute clip from an MSNBC broadcast which mirrors some of the points I highlighted yesterday. But even this clip that assults the Military Comissions Act and the government that passed it caused a shiver down my spine in the way that it was presented. If this had been reported by the BBC News (it may have been, but I don’t have a TV) I would have expected a summary of the points of the legislation covering both sides and possible impacts and perhaps a comment from the US political correspondant, but certainly no personal opinion. This MSNBC piece did none of that and focused entirely on what had happened in history and how it was the beginning of the end of America.

The media always hype things, particularly the destruction of freedom and liberty (rightly so?) and that is even more so in the USA. But on this occasion if you can put up with that, it’s worth watching.

Military Commissions Act

So called “Western society” is supposed to be the pinacle of democracy, fairness, justice and tolerance. I’m proud of British history and when people look back on the 21st century I want them to be just as proud of our the achievements.

Sometimes I feel sorry for the Americans who have to put up with the Bush administration. For the most part, Europe and the UK have been spared such crazy things like software patents, the full extent of the Patriot Act and forced teaching of creationism as a scientific theory (it might be a theory but it sure as hell isn’t scientific). So when I read an article today on The Register about the Military Commissions Act of 2006 I was dismayed at the extent to which rights are being eroded in the USA in the name of democracy – as a “a “vital tool” in the war on terror”.

My political alignment is not clearly defined – I like ideas from all sides of the political compass. As a result I’m by no means a liberal, but I think that aspects of law enforcement such as judicial review, parliamentary review, the right to legal counsel, the right to not be tortured et al are crucial aspects to a fair and just legal system. That the removal of these aspects of a legal system (all be it concerned with military commissions) can actually pass through the legislative stages in the USA is beyond belief. What exactly is the purpose of Congress if it just passes these bills without any consideration for the key aspects of modern society that it will demolish? I know our government has tried similar things, but they always fail – our parliament works in that stupid ideas such as these cannot get through.

It is the job of the media to exaggerate to get a story, but even so actually looking at the text of the act reveals that what is being described in the article on The Register is true:

For the bill that he signed with such evident satisfaction has relieved the federal courts of their rights and duty to hear petitions for a writ of habeas corpus, which allow prisoners to challenge their confinement under Constitutional principles.

The new law, called the Military Commissions Act of 2006, will allow rough treatment during interrogations, so long as the President designates a practice not to be torture. But he is permitted to “interpret” international law forbidding torture to suit himself.

The government, not the courts, will now be deciding what is cruel and inhumane treatment. Only monstrous abuse, reaching the level of a war crime, such as rape, mutilation, and the like, are expressly forbidden. And prisoners will not be granted legal counsel during interrogations.

Another reason I will never, ever live in the USA.

 

Trauma

In the UK we have a criminal legal system which requires the burden of proof to be “beyond reasonable doubt” – should any doubt be present then the defendant should be acquitted of any charges. You already knew that.

The way the system works is a witness will be questioned by their own counsel and then cross examined by the other side. The idea here of course is to determine the facts of the case and convince the jury (if present) that something did or didn’t happen, how it did or didn’t happen and to prove or disprove the charge. The questions can often be difficult and since most barristers are cunning, the questions will also be worded and crafted in such a way as to get the answer the particular barrister wants. But you already knew that too.

It is quite fun to watch when this kind of thing happens. You can see how answers are manipulated and in many cases the witness will become frustrated, making them even easier to question. This is fine if the witness is a horrible criminal – you want to see them have a hard time – but what if the witness is the victim or someone who is vulnerable? Fine if they’re a hardcore robber but what if they are a young rape victim?

I have just finished watching a Panorama documentary on how rape is dealt with by the legal system (good old BBC making it available for free online). I didn’t watch this because I was told to, although the consideration of consent turned out to be completely relevant to what we are currently looking at in our Criminal Law seminars at the moment). The points raised were quite interesting in that whilst our legal system does indeed ensure (for the most part) that if someone is convicted then they are actually guilty, but the way it works in sensitive cases such as rape raises some important questions.

The documentary mentions that in many rape cases it is just a question of the word of one person against another, and usually the victim is highly traumatised by the incident and may have even been drugged or intoxicated and thus unable to remember anything. In these situations the only evidence is that provided by the defendant who is not going to admit to what actually happened. If there is no evidence to suggest otherwise – no video cameras, no witness and no credible testimony from the victim because s/he was drunk – whilst it might not be what you want, the only legal response is to aquit. There is doubt as to what happened and the burden of proof is clear.

Based on these factors, the first point that must therefore be considered is how counsel questions victims in such cases. Their job is to win for their client and you often read how lawyers are heartless monsters who will do anything to win In reality, they are actually real people and I would even suggest most lawyers have their own moral code! How do you deal with such a sensitive issue when the only real defence is to bring into question the credibility of the victim?

From Panorama:

The defence counsel’s strategy in these cases is to undermine the credibility of the complainant. Sometimes this is done in a very heavy-handed way, you know, by dragging in her sexual past. Sometimes it’s done rather more subtly. But it doesn’t matter which way it’s done, that is the strategy. To suggest to the jury that this woman, who is telling you this story, well perhaps she’s not entirely credible. – Jennifer Temkin, Professor of Law – University of Sussex

But wait, is “victim” the correct term here? Is our legal system not based around the principal that the accused is innocent until proven guilty?

Yes, true, but I think that’s a technical legal point that isn’t really relevant in the actual treatment of the victim…or alleged victim.

So what do we do?

Perhaps looking at the second point will help with the dilemma of the first? The burden of proof. If it is really just down to the word of one against another does that not mean that the jury has to weigh up the probability of whether the testimony of the one is more likely to be true than the other? How likely does it have to be for the jury to consider it to be true beyond all reasonable doubt?

The question is therefore should we make an exception in the case of rape to the burden of proof and change it so that the burden of proof is like civil cases – the balance of probability?

If you change the standard of proof just to get a conviction, what will happen is you will have innocent people going to prison, and probably sitting in prison for years, for something that obviously they haven’t done. I think the balance always has to be to ensure that innocent people don’t go to prison. Our system is revered around the world as being a fair system, and unfortunately if that means that guilty people walk free, then that is the price you pay for ensuring that an innocent citizen isn’t locked up for many many years. – Kirsty Brimelow, Criminal Barrister

As a law student learning in detail how the system works, I think these are good questions that students should be considering – how the legal system has been built up to handle these cases and how well it does it, especially if many students are going to go on and be involved in these kind of issues.

So what should be done?

 

The UK Statute Law Database

Although I am only a first year law student, I have already had to use my Statute Book and the law resources online to research cases and particular legislation. This is made easier because my university subscribes to the well known online legal databases such as Lexis Nexis, Justis and Westlaw. These resources are helpful because it becomes much easier to find the text of the legislation as well as any ammendments and annotation.

Unfortunately, these resources are subscription based i.e. they will probably cost a hell of a lot of money to use. Just looking on the Lexis Nexis website right now I see that the prices aren’t even available – you have to contact someone first. That’s always a bad sign!

I read The Guardian and there has been an ongoing campaign in their technology supplement called “Free Our Data”. This is particularly focused on data such as post codes or Ordinance Survey maps, but I recall them also mentioning making available the law which applies to us all i.e. legislation. Already Parliament (through a fancy new website) and the DCA provide access to recent legislation as well as bills currently going through Parliament. There is also online access to Hansard and the particularly useful theyworkforyou.com. But there is no centralised source that can provide you with access to the full text of all the legislation along with details of ammendments etc etc.

That’s where the Statute Law Database comes in.

I have heard (even mentioned in one of my lectures last week) that this database has been planned for many, many years but it is now finally almost ready for access by the public. For free! It is currently in phase 3 of the public testing where a small number (under 100 I think) of people have been given access to test out the features and provide feedback – I am one of those people.

I was given access on 2nd October and since then I have been playing around with it when I got the chance. Over the weekend I actually got the opportunity to use it “for real” when preparing some work for a seminar this week. I was reading up on a case (R v Brown [1994] 1 AC 212 (HL)) which mentioned two sections of the Offences Against the Person Act 1861. I didn’t know what was contained within those sections so I used the SLD to find out.

Originally I was going to write up my “review” I wanted to include some screenshots but I was asked to wait until it actually goes public because:

“We are currently working with our supplier to make some screen changes and this is likely to be a process that will take us up to completion of the Pilot. One of the reasons for us running this as a pilot is to ensure that when we do go live we are presenting a facility that we have signed off and that is why I would prefer existing public facing systems, such as your own website, to not display images at the moment.”

The interface looks fine to me already – clean and simple – but this is fair enough and so instead I shall describe it.

After logging in (login will be removed on the launch since it will be available freely) you can search for a specific title, year and number within a number of different legislation types – and there are a lot of types. From UK General Public Acts to an unrevised NI Order in Council and from Church of England measures to Welsh Statutory Instruments, it seems that the SLD covers it all. You can also view all of these in alphabetical or chronological order as well as conduct detailed searches on the database.

Once you have located a document you wish to view, you will be taken to what could be called a section overview of the act. You can then click on the title to view that section, or the title of the whole document to view the entire thing in full.

The SLD also provides a list of the ammendments that have been made to the document, or that a document makes to another document. Version history is also available so you can see how many versions there have been and how they differ from one another.

But as with anything, there are a few problems. My biggest issue is, as mentioned on Binary Law, addressability. When I was conducting the research on the Offences Against the Person Act I needed to cite my source. Unfortunately, the URL for section 20 looks like this:

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation
&title;=offences+against+the+person&Year;=1861&searchEnacted;=0
&extentMatchOnly;=0&confersPower;=0&blanketAmendment;=0
&sortAlpha;=0&TYPE;=QS&PageNumber;=1&NavFrom;=0
&parentActiveTextDocId;=1043854&ActiveTextDocId;=1043873
&filesize;=4415

which is not good to paste into a footnote. However, I was actually able to reduce this to:

http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=1043873

and that was perfect for my work. But it is a pain to have to do that and each document really needs a “permalink” which is short and can be copied into footnotes and references. This is something that the subscription legal databases like Lexis Nexis also fall down on.

Another issue I had was finding ammending legislation. Because I thought it was funny (hah hah), I looked at section 17 of the Offences Against the Person Act which is listed as:

“Impeding a person endeavouring to save himself from shipwreck.”

This was originally punished by

“penal servitude for life”

However, this was ammended “Words repealed by Statute Law Revision (No. 2) Act 1893 (c. 54)”. I tried to find out what this Act said but I was unable to find it in the SLD nor using Google. Because of this I was forced to use Lexis Nexis to view the Offences Act which explained that:

“See further, the punishment for a person liable to penal servitude is now imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed immediately before 18 April 1949: the Criminal Justice Act 1948, s 1(1).”

This is probably something that as a qualified lawyer I would have known – the change by the Criminal Justice Act – but as a new student I did not. Nor would I have known if I was a member of the general public. Whilst this may be out of the scope of the SLD it is nevertheless a problem I faced.

It is fun to be involved in a project like this, even at the final testing stages, because I am possibly the only law student on the scheme and law students are definitely going to be making use of the service. I hope the changes I think are necessary and those suggested by other people (Binary Law) are made for the final launch, due in December.

 

Obligations

Last week was my first week on a full and proper timetable, which is split between lectures and seminars. I had prepared the work I needed to for the seminars and this weekend I have been doing the same – preparing for the seminars for this coming week.

We haven’t really been “taught” much law so far – a lot of the lectures and seminars have been focused around an introduction to the modules. So when the second piece of work for the Obligations I seminar was set, I was a little surprised at what the question was. For example:

What is the likely (legal) outcome in the following situations?
1. Gary had installed a new kitchen for his friend Dave. When Dave bought a new car, he promised to give Gary his old car when the new one was delivered. Garry accepted, but Dave later changed his mind and decided to sell the car instead.

7. Martha rents out rooms in her flat for £300 per month. When James, one of her tenants, unexpectedly lost his job, she told him that she would accept half the rent from him, as she thought this would be easier than finding a new tenant. Two months later, James finds another job – but when Martha says the rent should go back to £300 per month, he tells her he doesn’t have to pay that much any more.

My first thought was that we hadn’t been taught where to start with these kind of questions, but then I remembered that in actual fact, I had everything I needed with the “Overview of Contract” booklet that we’d been given, and the books that I had bought. First lesson learnt: there is no spoon feeding here; you’re given what you need but it’s up to you to make use of it and find the answers yourself – so much different from A Level.

And that’s how it should be. It was really satisfying to be able to use the materials I had on my own to find the answers – or at least my interpretation of the material to provide an answer. It’s a great feeling and I enjoyed doing it, which shows that I have chosen the right subject.

It’s also very satisfying to see my site being mentioned in the Blawg Review! #78 was hosted by Human Law this week and I got a mention!

 

Finding case material

Unfortunately I was very busy with visiting the County Court for the day and then going to the Space Society meeting so I wasn’t able to post this as I said I would, but here it is now!

Feel free to comment and add your own resources/tips and reuse this document under the terms of the CC license this site uses.

Sources of case material

Pre 1865 – Nominate Reports

Found in the “English Reports”
Post 1865 – The Law Reports (Incorporated Council of Law Reporting)

Official law reports, approved by judges and preferred in court
Under 200 cases per year
25 series, of which 4 are reported today
AC – Appeal cases in House of Lords
Ch – Chancery Division
QB – Queen’s Bench Division
Fam – Family Division
Post 1936 – All England Law Reports

Report quicker than The Law Reports
Post 1954 – Weekly Law Reports

Report quicker than The Law Reports
Locations of case material

Westlaw

www.westlaw.com
Provides summary, where reported, links to full text, case history, cases cited, citations to the case, case comments.

The Law Reports
Criminal Appeal Reports
Weekly Law Reports
Others
Lexis Nexis

www.lexisnexis.com
Full text of case, citations to the case

The Law Reports
All England Law Reports
Justis

www.justis.com
The Law Reports
Weekly Law Reports
Family Law Reports
English Reports
Lawtel, Casetrack, BAILII

www.lawtel.com
www.casetrack.com
www.bailii.org

Transcripts

Finding legislation

As I posted yesterday, this is the first of two posts containing short reference documents I put together to consolidate the information I gained through lectures on finding legal material. This document concerns finding legislation.

Feel free to comment and add your own resources/tips and reuse this document under the terms of the CC license this site uses.

Types of legislation

Primary

Acts of Parliament or Statutes
Public General Acts – Apply nationally
Local/Personal Acts – Apply to an individual/locality
Debates published in Hansard
Green Papers – Consultative documents
White (Command) Papers – Policy documents
Orders in Council
Delegated

Statutory Instruments – made under the authority of statute
Other rules, codes, orders with the force of law
Locations of legislation

Westlaw

www.westlaw.com
UK and Scottish statutes and statutory instruments in force
Historic view allowing you to look at the legislation as it was at a certain date – goes back to 1992
Shows cases citing the legislation
Shows other legislation that applies or refers to the Act
Lexis Nexis

www.lexisnexis.com
Annotated UK Statutes, UK Statutory Instruments, Scottish Statutes and Scottish Statutory Instruments as updated and amended
Halsbury’s Laws of England – an encyclopaedia providing a narrative view of the law based on topics.
Whether an Act or part of an Act is in force
Justis

www.justis.com
UK Acts of Parliament, including Scottish Acts as updated and amended
Cross reference amended and amending acts
Repealed statutes from 1235 onwards

Finding…

In order to find the text of legislation back in “The Day” you would have had to look in the library and find so called “books” with the text in, and even then it might be difficult to find the very latest version and the text may not have any helpful annotations. Nowadays this task is much easier with the use of the internet and Google. But whilst Google is handy to confirm a fact or get a quick copy of the legislation, for full, authoritative versions with additional information about citations, ammendments and various other notes you need to look elsewhere.

Right now, “elsewhere” will be databases such as Lexis Nexis, Westlaw and the Justis. Unfortunately these are subscription based services but since my university pays for access to them I shan’t consider any other resources for the moment. In a few months the Statute Law Database will become available which will provide access to the legislation for everyone for free. I am part of the final phase 3 test user group and shall be reporting my findings in due course (i.e. when I get around to testing it in amonst my vast amount of reading and preparation tasks).

One of the first things I have learnt from the law school is how and where to find both legislation and case material. Across a few lectures we have been introduced to the services available and I decided to consolidate the information provided into two handy documents I now have stuck on my wall. And I am going to share these online and open them for comment, feedback and improvement (assuming anyone who is reading has the time to do so!).

As such, my next two posts tomorrow and Wednesday will be these documents typed out for all and any to use. And because the content on this blog is licensed under a very unrestrictive CC license, you can pretty much do with them as you please so long as you mention me! But if you do improve them I would appreciate any feedback.