The Moody Blues

At the time that the credit rating of the US was downgraded, I was in Chicago. I was lucky to see what reaction was incurred while the wound was at its freshest, but I was surprised to see a distinct lack of introspection in the media. I remember I was in my hotel room, flicking through the abundance of news channels and the message was all the same: ‘these agencies clearly don’t know what the hell they’re talking about’ (paraphrased slightly).

I’d experienced the American media before and know how partisan it can be, so it was shocking to hear the anchors of Fox news passing up the opportunity to let the Democrats have it. Admittedly I was out of the country a couple of days later and I’m sure Bill O’Reilly just needed time to settle into his indignation, but the collective outrage from left and right put all other topics to the bench.

Compared with this barbarous call to arms, it seems the UK’s own downgrading by Moody’s has snuck under the radar. It’s a story that’s been cool off the press for a while now, and I don’t mean to imply that too few inches of column have been devoted to the matter, but why the absence of fire and brimstone? I’m not convinced that the British more stoic (or apathetic), it just seems like another sin for the heap accumulated by everyone’s favourite scapegoat, George Osbourne.

It’s widely held that the impact will be more political than economic as investors tend to use their own discretion rather than the findings of the ratings agencies. Additionally, the agencies had a far from spotless record (AAA for Lehman Brothers before the crisis?), but the precarious position of the pound is likely to take a further hit. Its glib record against the dollar this year; as well as the continued rise of import prices will surely take its toll on the average household.

I’m sure that Osbourne could read the Book of Job with envious eyes, for what remained of his credibility rested squarely on that AAA rating. Standard and Poor are likely to follow Moody’s lead, with Fitch not far behind. Osbourne highlights the ripple effect of the Eurozone, a valid point, but few are likely to have forgotten the £15billion borrowed in December as well as his scant revisions to the economic recovery plan.

Criticism of the agencies is not an exclusively American trait. Marc Joffe makes a reasoned argument against them, and our downgrading reflects the general gloom of the world economy. However, it will be interesting to see how this might affect the political landscape and whether this is the mortal blow to the ever resilient Osbourne.

Slaughter the Fattened Calf

The other day I said to myself that I should really get back onto Blogger and update my profile. It took me half an hour finally crack the code, not only because I had forgotten my password but I had forgotten the corresponding email address. But when I saw the date for my last entry, I had to collect my jaw from the floor. 

How can it have been over a year? I know I had written entries since this time but only in draft form. Looking back I was shocked to realise I hadn't submitted any of my (admittedly sparse) entries for more than a year, and those that I had written and returned to were old news by the time I had decided on revisions.

In my defence, I have been busy. I have completed my Masters in Commercial Law and while I ultimately attained a Commendation, I'm glad to be through with the dissertation process. My thesis was an examination of derivative action as a remedy for the shareholder and the effect of the recent statutory enshrinement of the provision. Pretty dry stuff, as was pointed out to me several times by my peers, but actually quite interesting when delved into (but I'm sure you'll take my word on that).

Since graduating in December I have been on the job hunt. I must admit that I hadn't counted on the landscape to be quite this desolate, but I am ever hopeful that some lucky employer will recognise a sound investment in me. Besides, my boredom is reaching saturation and I am relishing the chance to delve into something more meaningful than this pre-employment limbo. 

Nevertheless, this difficulty with the jobs market had reignited my interest in the current commercial atmosphere which has given me the motivation to start blogging again. A silver lining maybe, but I feel I have gotten rusty when it comes to current affairs. After all, my time has been spent locked away from sunlight sending job applications and pursuing dead ends. Hardly the return of the Prodigal Son, but I am happy to be writing again. 

Watch this space.

Hopes for a Rainbow Court

The higher echelons of the legal profession has usually been characterised by a very specific demographic. The image that is brought to mind when the average person thinks of a judge is that of an elderly white man, more than likely to have an Oxbridge education. However, Ken Clarke has a vision to abolish this antiquated image by introducing a scheme of part time judges and scaling back the number of judges on selection panels.

Only 12% of judges in England and Wales are female, and despite 13.7% of the country coming from an ethnic background, only 3.1% of judges are African-Caribbean, African or Asian. However, a movement has emerged recently to amend this and allow the judicial system to truly reflect the multicultural nature of Britain. s159 of the Equality Act 2010 is central to this new movement as the section allows selection panels to positively favour candidates from under represented backgrounds if two candidates are of equal merit. Thus far, the provision has not been implemented in the selection of judges, but this is soon to change.

The Judicial Appointments Committee has made clear that appointments have relied solely on merit and that the above legislation is incompatible with the present system and new legislation must be drawn up to ensure the smooth running of the future appointments process. While conservative opinion is sceptical around this area of positive action, with dissenting opinion making the cynical judgement that racial issues come before proficiency, Clarke has assured that "the calibre of our judges should never be compromised – their role is too important. Candidates should always be assessed on merit. But swathes of talent are going untapped.”

 The argument that he puts forth, and rightly so, is that if we are to broaden our search to new areas that have previously been overlooked, we are likely to find the most capable legal minds to bring the profession deep into the 21^st century. Accusations of racism are rife amongst the judiciary and a more multicultural pool of judges is likely to bring a positive perception to the profession.

Let us hope that this attempt at reform will not fall by the wayside. We should not sway from our position of being a meritocracy, but the undeniable tilt in favour towards white upper-middle class men should be done away with. After all, how can Britain claim to be champions of tolerance and liberalism with a court system dominated by a narrow group of society?

A Good Day for the Law

What's the difference between a good lawyer and a bad lawyer? A bad lawyer can let a case drag out for several years. A good lawyer can make it last even longer.

The legal profession is an easy target and given that half of those involved in litigation end up the loser, it’s of little surprise the profession is the public’s favourite scapegoat. For countless years solicitors have had to put up with disgruntled clients and attacks against their moral fibre. Perhaps this is the platform from which the ‘Solicitors From Hell’ website launched itself. The site names and shames those solicitors who haven’t met the high standards expected of them by the average client.

I’m sure there are those named on the site that deserve reprimand for their professional behaviour, but one bitter ex-client with little understanding of the legal system is now given the power to sabotage the reputation of whoever they see fit. I have little respect for Rick Kordowski’s website, so I was pleased to hear his attempted action for libel against the chief executive of the Law Society was scrapped.

Professor John Flood of the University of Westminster alleged that as he came out of the BBC with Des Hudson, the chief executive of the Law Society, ‘he said Rick Kordowski was a criminal. I reminded Des that the police didn't think so. He wasn't happy.’ Hudson meanwhile, claims that he did not refer to Kordowski as a criminal, rather that his methods of collecting information about the solicitors he names and shames amounts to criminal behaviour.

Kordowski originally claimed £1m damages, then applied for summary judgment in his favour, a declaration that Hudson's statement was false and defamatory, plus an apology and £10,000. Striking out the claim as an abuse of process, Mr Justice Tugendhat said it was not a case for summary judgment as there was a conflict of evidence and it was impossible for him to say that the defence had no real prospect of success. Tugendhat made clear that although the allegation of criminality was very serious, the alleged wrong in the case was of a relatively low level of seriousness. Further to this he noted that the case before him amounted to ‘an abuse of the court process.’

Mr Kordowski, who has made a bankruptcy claim now must face a bill of £14,000 for costs. No doubt he’ll have something to complain about.

The Horror, the Horror

This week I’ve been looking at whether it is lawful to physically force a terrorist to reveal information in a ‘ticking bomb’ situation. Naturally, this area of law is rife with controversy. How do we balance the potential for saving innocent lives with the risk of our society descending into a modern Spanish Inquisition?

The Police and Criminal Evidence Act 1984 provides for the use of ‘reasonable force’ when dealing with criminals. However the problems with this applied to the ‘ticking bomb’ scenario are twofold. First, it does not mean that the suspect can be physically abused in interrogation, rather that they can be restrained if they resist. Secondly, the term ‘reasonable force’ is shrouded in ambiguity, though an excessive level of force amounts to torture.

The United Nations definition provides that torture is ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession.’ Further to this, it is deemed to be an absolute right (though this issue is contested in case law like Ireland v UK as some forms of non-traditional interrogation are deemed more acceptable than others).

With Britain and America’s protracted fight against terrorism, it is arguable to say that a regulated system of ‘advanced’ interrogation with the heaviest burden of proof imaginable would serve the security of the nation well.  It’s a controversial view and torture will never lose the aura of taboo but the fear of our society descending a slippery slope into a situation where torture is accepted is far less frightening to me than a legal system that places no value on the lives of innocent people.

All Locked Up but Nowhere to Vote

This week I was surprised to find out how big of an issue prisoners voting rights are. I had assumed that a prison sentence would entail a suspension of the right and prisoners would accept the forfeiture as part of their punishment. While this is the case in the UK, I was surprised to learn of the depth of opposition to this system from the European Union. The contentious point has to do with Art.3 European Convention on Human Rights guarantee of free elections, which is incompatible with Britain’s blanket ban on prisoners voting rights.

Art 3 ECHR rules that voting is a right and not a privilege and a limitation of the right must be imposed in pursuit of a legitimate aim and be proportionate. The legitimacy of the aim is clear. While incarceration should incorporate rehabilitative functions, the primary purpose of imprisonment is to foster a respect for the law through the punishment of wrongdoing. Europe has no problem with Britain’s policy regarding aim; rather it is the lack of proportionality evidenced in the blanket ban that doesn’t sit well.

In Germany, voting rights are only suspended for crimes that seek to disestablish the democratic regime. In Greece, only those with a life sentence cannot vote. While Ireland and Cyprus imposed blanket bans at a time, they have since reformed their respective laws. It seems that Britain is seen as something of a dinosaur in the eyes of Europe but personally I applaud David Cameron’s insistence that there is ‘no reason’ why prisoners should get the vote. It seems strange to me how so few from the Continent have posed the question; why should those who have shown little respect for the law have a hand in its formation?

Death of a Tyrant

‘I am not going to leave this land. I will die as a martyr at the end. I shall remain, defiant.’ 

Muammar al-Gaddafi’s prophecy can hardly be described as eerily unforeseen. Rather, the choices he has made (all 42 years of them) seemed to point his prediction towards inevitability. 

While death should never be celebrated, the blood on Gaddafi’s hands have left few to mourn his violent departure. Nevertheless, the National Transitional Council's handling of Gaddafi’s capture has left them open to accusations of breaching international law. Though little is precisely known about the circumstances of the former dictators death, it is widely believed that NTC rebels executed Gaddafi following a NATO led air strike. Russian Foreign Minister Sergei Lavrov has been the voice of criticism, and declared that under international law, ‘a captured participant of an armed conflict should be treated in a certain way. And in any case, a prisoner of war should not be killed’ (http://www.independent.co.uk/news/world/europe/gaddafis-death-breached-the-law-says-russia-2374250.html). As well as this, the discovery of 53 bodies believed to be pro Gaddafi supporters draw frightening parallels with atrocities against the NTC that happened only weeks before. Rights groups like Human Rights Watch and Amnesty International have been documenting the atrocities of both sides, including several mass killing sites found in August (http://www.bbc.co.uk/news/world-africa-15428360) and no doubt will prove to be a check on the emergence of a new dictatorship with the same disregard for human rights as the previous one.

However, the Chairman of the NTC and the new Head of State for Libya Mustafa Abdul-Jalil has ordered an inquiry into the circumstances of the death following international pressure. While this inquiry is unlikely to yield negative implications for any pro-NTC supporter, particularly as the theory that the dictator was killed accidently in an instance of crossfire between sides gathers momentum, it is important that the new government goes through the motions and is seen to be upholding human rights. Libya is in a fragile position at the moment and can stray down a number of paths. If the former rebels are seen to endorse liberal rights it is a step in the right direction towards democracy, particularly as the alleged summary execution of Gaddafi seems in stark contrast to the ideals of the NTC.

Mustafa Abdul-Jalil has called for an end to revenge killings and has been eager to promote the new Libya as being ‘one national flesh’ allowing a unity that has been alien to the North African state. But as with any civil war, bitterness between old enemies will inevitably come to the surface. Now the country is free from an age old tyranny, Libya must now start the long road towards stability.