Courts under the Hammer

Richard Vogler
Richard Vogler

There is delightful unconscious irony in the choice of a gavel hammer as an emblematic illustration for Policy Exchange’s recent intervention: “Future Courts:  A New Vision for Summary Justice”. If the authors had even the slightest experience of everyday work in our courts, they would have known that gavels are never used by judges or magistrates in this country (in contrast to America, where gavel-wielding judges are frequently depicted in movies and on TV). Gavels in the UK are the exclusive preserve of auctioneers selling off property. Nevertheless, the Minister for Police and Criminal Justice, Damian Green, has discerned “a number of interesting ideas” in the report. No doubt he was considering the exciting new opportunities for auctioneers to get their hands on large parts of the criminal courts estate: opportunities which will be discussed eagerly at the forthcoming Policy Exchange seminar on “Privatising Justice: Myths, Threats, Opportunities” with the Justice Minister Chris Grayling on 11 March.

Irony aside, the Policy Exchange Report makes depressing reading. It points out that thecourt system has been singled out for particularly savage cuts in the current round of austerity and is required to deliver a 38% saving between 2012 and 2016 (p.5). It notes the “slow decline of the magistracy” associated with a reduction not only in its workload but also in recruitment, which has “fallen off a cliff in recent years, down from around hammer2,400 in 2006/7 to fewer than 500 in 2011/12”. This has led, unsurprisingly, to a sense of “disempowerment and demoralisation” within the magistracy (pp.19-20). We should not be too despondent, however. Much of the explanation for the underuse of Magistrates’ Courts and the reduction in criminal business can be attributed to the fall in recorded crime over the recent period (p.16).

Based on this analysis, and with almost no research other than some unspecified conversations with “magistrates, judges, court workers and organisations”, Policy Exchange have revived some long-discredited ideas, spiced them with contemporary talk of “neighbourhood justice, innovation and “new ecosystems” (p.11) and breathed them seductively into the receptive ears of the Justice Ministers. Amongst these ideas is a proposal that the Victorian “Police Court” could be brought back from its decent interment, in order to dispose rapidly of cautions, diversion and guilty pleas inside police stations and community centres. Other courts could be reorganised around “justice hubs” which will incorporate newly-built or converted facilities, housing civil and criminal courts, with co-location of criminal justice agencies.  Magistrates could dispense justice in unused shops, leisure centres and office space – with mobile courts that change their location over time (pp.7-8).

At the heart of the Policy Exchange proposals is the idea that justice must be faster, closer to the community and, above all, more structured around solving problems and changing behaviour (p.7). The whole culture of the magistracy should be transformed through the recruitment of 10,000 younger magistrates with different working patterns, including “a small number of reformed offenders and addicts” all of whom would be provided with specialist training and opportunities for the exchange of problem-solving techniques (p.9). All this sounds reassuringly positive and progressive, aimed at snatching community benefit from the ghastly jaws of austerity and decline.

Unfortunately, the Policy Exchange document hides a great deal more behind its breathless rhetoric. The whole basis for these reform proposals (described as “background”) is budgetary. There is no acknowledgement that our magistrates’ courts justice moneyhave a central role as arbiters between the police and the citizen, nor that their judicial independence would be fatally compromised, both in appearance and in fact, by their location in police stations. Judicial independence, according to the authors, is overrated, merely negative and may not in any event apply to magistrates. According to them “it is questionable whether it should have the same strict meaning for lay magistrates, who might sit for two days a month at the most, as it does for full-time judges” (p.9).  Given that the magistracy disposes of 97% of criminal cases in England and Wales, this is an extraordinary proposition which strikes at the heart of the due process protections within any rational system of law. The authors would do well to consider the appalling travesties of justice which take place daily in states which share their disdain for the principle of judicial independence. They might, for example, ask the demonstrators in Ukraine whether they agree that judicial independence is merely a “negative” and dispensable attribute and not, as John Kerry has pointed out, a precious and non-negotiable demand.

Policy Exchange’s proposal for “linking the Transforming Rehabilitation agenda to court reform” is another well-trodden road to disaster, which recalls the early twentieth century enthusiasm for therapeutic courts; an essential part of the “Social Defence” movement. Similar innovations and a similar contempt for “process-focused and mechanistic” justice (p.7) led quickly to the wholesale abandonment of process protections throughout continental Europe and the co-option of the courts by totalitarianism. These are no idle fears but the potentially catastrophic outcomes of policy creation which is ill-informed, speculative and ideologically-driven. Embedded in these recommendations is a brazen call for the marketization of justice and the creation of a culture of payment by results. The authors maintain that “a successful strategy for fostering court innovation can be delivered – one based on new financial incentives which will allow new resources to be brought to bear”. How do they imagine that this should be accomplished? The answer is that “the Ministry of Justice should quickly devise simple metrics that would allow for the comparison of the reoffending rates of particular courts” (p.51). Whilst there is no direct assertion that courts, magistrates and judges should be paid by results in the manner which is currently being proposed for the Probation Service, the implication is clear to see. What the authors of this Report envisage is a system of courts stripped of independence, cleansed of “mechanistic” due process protections which might stand in the way of their rehabilitative and “problem-solving” mission and driven by market priorities. It is a vision which all of us who value the great principles of fair and equal adversarial justice which were first developed in this country, need to resist emphatically and a timely reminder that we should never take their continued existence for granted.

Richard Vogler is Professor of Comparative Criminal Law and Criminal Justice at the University of Sussex

Sussex LLM Field Trip to the Hague

Michael Kearney
Michael Kearney

In early December 2013, the Sussex law school returned to The Hague for our (20th?) annual postgraduate student field trip. Over the course of two days we visited the International Criminal Tribunal for the Former Yugoslavia, the Institute for International Criminal Investigations (IIWS), and the International Criminal Court. On our first morning we arrived at the ICTY. As with last year, after a short introduction to the home of the Tribunal, we received a great presentation from Matthew Cross, who works in the Prosecution office. Having given us an overview of the Tribunal’s role and functioning, Matthew gamely fielded a bunch of questions, and provided a great insight into the workings of international criminal law.

Our next step was to sit in and observe the Tribunal in action. We were fortunate that morning, that the Chamber was sitting in the case of Radovan Karadzic, who had been President of Republika Srpska and Supreme Commander of its armed forces, and who has been indicted for genocide, extermination, murder, persecutions, deportation, inhumane acts, acts of violence the primary purpose of which was to spread terror among the civilian population, unlawful attack on civilians, taking of hostages.

It was a tense affair, and after some time the Chamber went into closed session in order to facilitate a witness. We had to leave for some 15 minutes and wait in the lobby. When we returned it was quite dramatic, with a witness, their identity obscured, giving evidence about some of the violence they had encountered during the war.

Sitting behind Karadzic that morning as a defence counsel was Colleen Rohan. As was the case during last years visit, Colleen was kind enough to come and speak with us at the IIWS later that afternoon. Before she arrived from the proceedings, the afternoon session began with what would turn out to be a marathon session with her colleague, and defence counsel, Gregor Guy-Smith. Gregor has led the defence to win several key cases at the Yugoslavia Tribunal, including the highly controversial judgment on appeal in the 2012 case of Prosecutor v Momicilo Perisic.

Gregor provided us with an engaging, wide-ranging, political, legal, cultural, and at times spiritual, environmental, and philosophical review of the role, function, and possibilities and limitations of international law. When Colleen joined the session she was able to contextualise and explain the background to the activity we had seen that morning at the Tribunal, and to develop upon the practical work of defence counsel at international tribunals. The volume of materials to be analysed and the sheer scale of such cases, in time, costs, and energy, were clearly exasperating, but both Colleen and Gregor gave us a memorable overview of both the logistical and personal elements of practicing international criminal law.

After a nice evening socialising in an unseasonably mild Hague, the following morning we visited the International Criminal Court. The Court’s visiting space is a bit cramped, being a converted car park, but hopefully the new building being built for the Court will be ready for our next visit. As is the situation with all Courts, its impossible to predict in advance what will be on at any specific date. On this occasion we were brought to view one of the Trial Chambers, but unfortunately there was no proceedings under way. The Chambers were much smaller than I would have expected, but hopefully for the next visit we’ll get the chance to observe a trial in action.

Sussex LLM Students at the ICTY
Sussex LLM Students at the ICTY

That afternoon we returned to the IIWS, where Niamh Hayes gave us a quite stark presentation that focused on two key issues, namely the work of the IIWS, and the manner by which crimes of sexual violence have been, and are being, addressed under the framework of international criminal law. One of Niamh’s publications had been a key text in our autumn term teaching so it was a great opportunity to meet with and to hear her wide-ranging presentation. Again, it was clear and to the point. While the subject matter was often uncomfortable, it was a provocative, illuminating, and considered presentation, and one which I’m certain will have encouraged many of us to push harder in the quality of our work.

The field trip, was, overall, a great success. For myself, Elizabeth Craig and Charlotte Skeet, it was a pleasure to get to know our students that bit better, and to have the chance to spend a few days in Court rather than in class. Richard Vogler, the brains behind the whole trip, is to be thanked for all his logistical work and organisational support. We’re already looking forward to our next trip …

Michael Kearney is a Lecturer at Sussex Law School

Get Real: ‘Human Rights’ Court ‘Oks’ Torture

Michael Kearney
Michael Kearney

It’s been a few more bad weeks on the torture front.  On 20th January a report compiled by several former war crimes prosecutors alleged “direct evidence” of the “systematic torture and killing” of thousands of men, thought to be victims of the Syrian government’s security agencies. On the 27th, Robert Fisk used his Independent column to raise the plight of Abdullah al-Qahtani, a Saudi national on death row in Iraq, whose case has been taken up by Amnesty International, and who has been subject to the torture typical of Iraqi detention centres.

If such conduct in Iraq and Syria can be tolerated or explained away by the environment of war, violence, and impunity in which they occurred, what then, as to how the UK is dealing with torture? Another report on systematic torture in Iraq, was, in January, submitted to the Office of the Prosecutor of the International Criminal Court. Compiled by Public Interest Lawyers and the European Centre for Constitutional and Human Rights, the report details both the commission of torture by British soldiers and the failure of the British state to properly investigate and prosecute the actions of its citizens.

I’ll return to this Report over the coming weeks, but here I want to comment on the judgment of the European Court of Human Rights in Jones & Ors v United Kingdom, which was delivered 14th January 2014. The Court upheld the House of Lords’ 2006 decision which ruled that British citizens could not seek redress through the Courts for the torture to which they were subjected to, during detention, by named Saudi police officers, including incidents allegedly authorized by a Saudi minister.

The ECtHR judgment reads like a sorry positivist textbook, and is devoid of any reference to actually existing human rights. Instead, the judges appear to have read the sources of law in such a way that the principles of public international law, rules around treaty interpretation, and specifically the norm of sovereign immunity, are elevated to a higher plane than any consideration of the progressive development of human rights jurisprudence.

It might be hard to assert that the outcome of the case could have been very different, given that the prevailing case law, notably the 2012 decision of the International Court of Justice in the Germany v Italy (Immunities) judgment, confirms that states remain immune from suit in the courts of other countries, even when the most serious violations of human rights, those of a supposedly jus cogens nature, have been accepted as fact, and where no other avenue for compensation or redress exists.

That week’s public international law seminar was on immunities, so with minimum notice we took the new judgment as the point of discussion. The response, particularly from students familiar with the ECtHR, was unanimously grim. The blunt dismissal of the applicants’ claims (four in total, with one having


died since the Lords’ judgment), with no effort on the part of the Court to even attempt to balance the rights of the individual to redress for torture, is quite disheartening.

In holding that the applicants’ article 6 right (to a fair trial and to redress for violations) had been justifiably restricted, the Court found the UK’s actions to be both legitimate and proportionate (paras 188-9). The legitimate aim was that of the promotion ‘of comity and good relations between states’ by respecting sovereignty, while the restriction on the applicants, since it reflected ‘rules of public international law on state immunity cannot in principle’, have been disproportionate.

With respect the human rights against which such considerations should have been balanced, the Court failed to go into much detail, the only notable exception being that the judgment did give space to consideration of various statements from the UN’s Committee Against Torture, urging the necessity that states give torture victims the possibility of taking such civil claims. Rather than side with their counterparts (policy wise, if not formal) the Court deferred to Bingham’s dismissal of the Committee’s pronouncements as being only ‘of slight legal authority’, on the grounds that the International Court of Justice has yet to make an equivalent assertion.

Very frustrating in the Court’s judgment is this circular use of sources: national courts are asserting that they do not have the power to override international law’s respect for sovereignty by declaring exceptions to immunity not identified by international tribunals. In turn the international courts justify their subjugation of accountability to sovereignty by reference to the lack of domestic jurisprudence categorising such exceptions.

What’s particularly galling is that there is but one substantive dissent, that of Judge Kalaydjieva, who stated that she ‘not only share[s] the doubts of some of the numerous dissenting judges in the case of Al-Adsani, but also find[s] it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to court concerning disputes over employment […] but not concerning redress for torture – as in the present case.’

Judge Antonio Trinidade
Judge Antonio Trinidade

This is in sharp contrast to the judges of the International Court of Justice in the 2012 Immunities case where Bennouna, Yusuf, and Trindade J each gave scathing dissents. Trindade concluded a powerful 100 page dissent by stating that ‘my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justice should have decided in the present Judgment.’ [His emphasis.]

In a statement that directly reflects the facts in Jones, Bennouna stated that ‘it is only in exceptional circumstances — when a State presumed to be the author of unlawful acts rejects any engagement of its responsibility, in whatever form — that a State could lose the benefit of its immunity before the courts of the forum State. The right of the individuals concerned to have access to justice in their own country would then take precedence, where the State in question had refused to submit to the fundamental principles of law — on which, moreover, it was itself relying.’

Judge Mohamed Bennouna
Judge Mohamed Bennouna

One should expect that a human rights court would have at least taken some of these dissents into consideration. On this record it looks like the ICJ is the court to which human rights activists should be looking for support, while the European Court of Human Rights [my emphasis], is withdrawing into a dull public international law realm of Westphalian obeisance. In response to the judgment, one of the applicants’ lawyers contextualized the decision with the claim that ‘Strasbourg is increasingly reluctant to rule against the UK Government because of Westminster’s “hostility” to the European Court of Human Rights’.

For now I want to briefly stress some of the key problems that this judgment leaves us with. The first concerns the notion of ‘jus cogens’. At para 93 the Court claimed that there is ‘no conflict’ between jus cogens laws, such as the prohibition of torture, and the rules of state immunity. This is absurd. Of course there’s a conflict. If there weren’t a conflict then we wouldn’t have needed a judgment to figure out which rule of international law trumps which. As to whether jus cogens actually means anything in practice, other than being a fancy label, it’s difficult to figure it out but it doesn’t appear to bring anything substantial to the meaning of the prohibition of torture.

The Court, at para 176, noted the UK government’s argument that, ‘the rule of State immunity did not authorise or condone torture and was therefore not incompatible with the prohibition of torture’ on the grounds that  ‘It merely diverted any breach to a different method of settlement.’ This brings us to a second problem. There is ‘no different method’ in existence. The European Court is the court of last resort.

Finally, at para 187 the Court, in setting out its stall on the assessment of the case, notes that it would be inconsistent ‘with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on categories of persons.’ The judgment then proceeds to remove from the jurisdiction not just of national courts, but of the European Court itself, the whole range of civil claims on torture committed in other countries by state officials, and does indeed confer immunity from civil liability on the entirety of that category of persons. This is rationalized by reference to public international law, to which the ‘Convention enforcement bodies’, have hereby decided that they are subservient to, and which they claim they can neither restrain nor control.


In recent weeks, colleagues in Ireland had been pressing for a Ministerial led corporate trade mission to the Gulf to raise issues of human rights concern, including around torture and fair trial. The Minister concerned, Richard Bruton (Jobs, Enterprise and Innovation), took to the paper of record to pen a response to the naive, the blind, and the deaf, explaining that to raise such concerns with the Sheikhs would serve no purpose other than to sabotage our capitalists’ plans for profit. On 23rd January he wrote: ‘These people need to get real. To do as they suggest would seriously undermine our basic objective on these missions. Either we are serious about delivering the exports and investment we need to provide employment for our people or we are not.’

I’ve referring to this spat since it seems to mirror the attitude that has been shown by the European Court in Jones. My reading of this judgment is that the Court has, in light of the British government’s threats to withdraw from the Convention framework, told human rights activists, and torture victims, that they too need to ‘get real’, since to do as they suggest, and push for accountability, would serve only to antagonize the British political elite, and to undermine the objectives (the existence?) of the Court itself.

In the current edition (232) of Viz, one of the stalwart characters, Roger Mellie – The Man on The Telly, is shown on his return to Fulchester, having premiered his Road Show gig in Dubai. The punch line has Roger in the shower at the gym, his back bloody and lacerated, after having been whipped by the Emirati’s police.

Torture in the Middle-East, whether perpetrated by British soldiers, or against British citizens, has been normalised, tolerated, and to a great extent removed from the sphere of law. Given the failure of our judicial institutions to strive for progress on the problem of impunity for torture, its lucky we still have Viz then, reminding the rest of us, as has been its wont, to ‘Get Real’.

Michael Kearney is a Lecturer at Sussex Law School