Archive | September, 2012

Terry’s All Gold ?

28 Sep

Not any longer – Mr John Terry retired from international football just before he was found to have racially abused Anton Ferdinand (QPR) in a match about a year ago. Since at his trial the Chief Magistrate Mr Riddle made it clear that Mr Terry escaped conviction primarily on account of the burden & standard of proof – in short (I summarise) that although Mr Terry wasn’t impressive, the Beak couldn’t be sure that he had done as alleged. As the Court may have anticipated, a ‘conviction’ of the footballing authorities was more-or-less inevitable.

Some think Mr Terry got off lightly – apparently he doesn’t.

What is Respect ?

27 Sep

Joshua Rozenberg contributes a brief yet thoughtful piece to Standpoint on Respecting Religion, raising a number of issues. His third set of comments, about Ladele Eweida et al v UK (2012) at the ECHR, prompts some further thoughts, as does a short piece by Prof Diana Ginn from Dalhousie Uni on SSRN about the Canadian Supreme Court’s approach to the question of respecting / freedom of religion.

(We note at once that the two ideas seem treated as equivalent, which in fact the ECHR tends to dispute – freedom of religion is there treated as an internal-intellectual but absolute matter, and its expression is a bolt-on extra that can be treated less sympathetically – see Lord Bingham’s customarily crisp summary at para 20 of his Denbigh High School judgement)

Prof Ginn is comparing two broad approaches to the variety of religious expressions that Courts encounter, represented by two Canadian Supreme Court cases from the last decade.

In one case, Syndicat Northcrest v Amselem [2004] 2 SCR 551 (SCC), the Court seems to Prof Ginn to have taken as given the Appellants’ desire to express their faith by building succahs (tabernacles) on their balconies  at the time of the relevant feast: whether or not all or most or many Jews, or all or most or many Orthodox Jews, did so was not treated as relevant. Instead the majority of the Court moved on to weigh against that the terms of the local byelaws (preventing decorations etc on balconies), and conclude that whilst the byelaws were rational in the abstract (I paraphrase and summarise) their application so as to prevent temporary modest and aesthetically appropriate succahs would be unconstitutional.

In the more recent case S.L. v. Commission Scolaire des Chênes [2012] SCC 7 (SCC), a different approach seemed to Prof Ginn to be taken. Although the parents of the children’s Catholic faith was accepted as sincere – one may wonder how the Court could do otherwise – it was held that they needed to demonstrate objectively that that to which they objected did interfere with their Catholic (Christian) faith. They failed to do so, and so lost the case. The majority of the Court appeared to Prof Ginn to regard any attempt to do so in future (ie with other evidence) as hopeless.

Are the cases different in approach ? Difficulties in deciding this will include difficulties about the facts. In Amselem, the clash was obvious enough, although perhaps a different Court might have said ‘They’ve offered you a communal succah – be reasonable …’ and been more dismissive. Here, the assertion that teaching children about other religions would undermine their Catholic faith was evidently regarded as dubious – although it may be that the parents’ real objection was how they thought that the other faiths would be presented: not just ‘how others believe,’ but ‘how others believe and anyone who thinks their beliefs are any better than anyone else’s (eg your parents) is a bigot‘ – thus the comment about relativism?

Maybe.

I wonder whether one of these approaches might yet provide a solution for the ECHR in Ladele, Eweida, etc ? Perhaps not very different from our previous suggestion – but useful and recent authority from a significant (at least to common lawyers) constitutional court ? The question would then be – which approach and whose burden ? If it’s for BA to show the cross is a real problem (Amselem) – BA lose, it’s no ‘worse’ than a succah. If it’s for Ms Eweida to show the cross is really necessary (SL) – she loses, because she can’t show objectively, etc.

Discuss …

Honoured

27 Sep

This Blog has been honoured by a comment from Prof Gavin Phillipson – see the comments on the previous post. Our gratitude should be duly recorded, and readers are invited to read both the original items again and also the Prof’s reply to Prof Oliver’s remarks and reflect for themselves.

In the wise words of the Bard, “‘Tis dangerous when the baser nature comes Between the pass and fell incensèd points Of mighty opposites,” so we leave the details to the Profs. Perhaps there is a bigger-picture difference of approach (of attitude, even ?), in terms of the where or how the balance is to be struck between “the astonishing power of the actual” (which is, actually, actual) and “democratic legitimacy” as an important abstract value. If Prof P accepts that the House of Lords works reasonably well as it is (he will please feel free to correct that impression if he wishes), then the question is perhaps what level of risk is acceptable in a plan to cure its admitted defects? The more one inclines to safety and the actual, the lower risk level is acceptable. The more important (perhaps especially if we mean ‘important in absolute terms’) the abstract value of ‘democratic legitimacy’ the higher the risk level that will seem acceptable. Perhaps that explains the impression of ‘conservatism’ and ‘parochialism.’

(Tweaked to clarify meaning)

Clash of the Titans

27 Sep

Disraeli allegedly once said of Gladstone that it wasn’t so much the latter’s invariable belief that he (Gladstone) held the Ace of Trumps up his sleeve that annoyed him (Disraeli), so much as his conviction that God Almighty put it there.

Of course this has nothing to do with Prof Gavin Phillipson’s piece for the UK Constitutional Law Group explaining how everyone who disagrees with him is (at best) mistaken. Nor therefore does it with Prof Dawn Oliver’s counterblast 1 1/2 hours later, where she comments that Prof Gavin “assumes that all opponents of the Government bill on Lords Reform are unthinking and /or stupid.”

Seconds out, Round Two …..

Orf With His Head !

25 Sep

The BBC have got themselves into what is – I believe – technically known in broadcasting as “a fine mess” over Abu Hamza. ‘The End of an Era’ was a fair headline for their security correspondent’s piece on the prospect of his eventual departure from the UK for the USA (see here for The Guardian‘s summary of the decade-long story behind that word ‘eventual’) and further charges. See here for his recent Article 3 complaint about US Prisons and here for his Article 6 complaint about his trial.

Unfortunately, the journalist made himself the story by seeming to say (at least in the eyes of The Guardian) that Her Majesty the Queen had lobbied the Home Secretary of the day for Hamza to be arrested and locked up. This quickly saw the BBC in full-on grovelling apology mode, to the glee of The Guardian – who (presumably citing Free Speech rather than a deficient sense of irony) also published a Comment piece to the effect of ‘Er, didn’t HMQ have a point ?’

As the dust began to settle, it seems that if HMQ did pass comment, it was simply to ask whether some law wasn’t being broken by Abu Hamza’s preaching ? (No-one suggests that this was an unreasonable question). However, the obvious candidate to be the Home Secretary (2001-2004) to whom HMQ spoke – David Blunkett – denied emphatically that it was he (see links above). It is not entirely clear whether it is suggested that it was the Home Secretary in question (whoever) or HMQ herself who passed on the comment to the BBC man – it may seem the latter ? – possibly the lawyers have advised that fingering either and getting it wrong could be very very expensive indeed in damages for defamation (we agree). On any basis, this was an outrageous breach of confidence.

Generally, the BBC’s luckless correspondent is advised to avoid Buckingham Palace Garden Parties, dark alleys on moonless nights, and corgi dogs for a very long time. If a vacancy for a correspondent in – say – Antarctica comes up, he may find a warmer welcome awaits him there.

What is Property ?

24 Sep

One view is that, as the French anarchist Proudhon famously observed, ‘Property is theft.’ Beyond the apparent paradox (how can you have theft without property ?) is presumably the idea that land is the common heritage of at least the human race and perhaps (in a more ‘animal rights’-conscious age) all living creatures.

Somewhere between that and the assumption of an unproblematic right of individual property (20th/21st-century US and UK, at least) must be other possible perspectives.

As Gray & Gray remark (in Elements of Land Law), the old feudal idea of land ‘ownership’ (tenure, really) as a chain of relationships may fit modern environmental and social sensitivities better – but no-0ne calls for the return of that. What else ?

An interesting recent article in the Journal of Islamic Economics Banking & Finance seeks to argue that private ownership of land is unIslamic. The article evidently suffers in translation, but one can readily imagine Jewish or Christian equivalents – indeed, this writer thinks that they have existed. The thrust of the article appears to be that you can own what you have worked on or improved – which anticipates John Locke by a millennium – but the land itself (as distinct from houses and crops – there is evidently no doctrine of annexation) is common property.

Another view is explored a little in the Harry Potter books/films, but has received little discussion in the journals – with an honourable exception at 87 (2008) Oregon Law Review 1101 by Gary Pulsinelli (use Hein Online to access), although the present writer respectfully differs somewhat from his understanding of Goblin Law. According to the goblins (Pulsinelli discusses the g/G question in note 3), property can only belong to someone for their lifetime, and after that it reverts to the person who conferred it – perhaps (this writer theorises) as trustee for the social group in which it was produced. Since no-one can need land (or anything else, one supposes) for longer than their lifetime, it might seem odd that we talk of people owning fee simples at all. Of course it simplifies conveyancing to know that you will not be turned out at an uncertain date, when the seller or the seller’s seller (etc) dies – but that assumes conveyancing…

Free Speech & the BBC

22 Sep

While another UK TV Channel got into trouble for a proposed documentary about Islam and its Prophet (nothing to do with the US film trailer that has sparked riots across the Middle East, the murder of the US Ambassador to Libya, and a bounty on the producer’s head in Pakistan), the BBC have quietly continued broadcasting Citizen Khan – see here for the series website. Although there were initial complaints, the BBC seem successfully to have shrugged them off for now.

A question worth reflection may be – how, and why ? That it is a comedy must help – although of course that may also cause some people to feel that they are being mocked. The general view around the world – see a partial sample of the BBC’s own here – seems to be that it is more sympathetic than mocking – that there is something in the writer Adil Ray’s defence of his series that ‘they are a typical British family – they just happen to be Muslims of Pakistani origin’ (I paraphrase). That Ray is himself a British Muslim and stars in his own show presumably helps (should it ?). If one thinks of other such comedies of recent decades, then – yes – there are some familiar figures – the Maliks with whom it is important for the family to ‘keep up’ – the head of the family who isn’t – the father’s anxiety about the cost of his daughter’s wedding. But is that a/the problem, that it’s not very new ? Or was it essential to go with familiar jokes/comic themes, given the sensitivities ?

The reader is invited to watch in iplayer – please note that episode 1 goes a bit slowly because it is establishing characters, so do watch both that and at least one other. The character of the Mosque Manager is intriguing – possibly a rather clever piece of writing, but we shall see …

Life’s Dominion

21 Sep

The writer is struck by this story in The Guardian, of a woman named Sarah Catt who has been sent to prison for 8 years (of which the Judge apparently considers that she will serve 4: see Sentencing Remarks here) for self-administering a (very) late-term abortion. The Guardian writer’s concern is that the Judge who passed sentence is or was a fairly senior member of the Lawyers’ Christian Fellowship. Doubtless mindful of Peter Hain’s recent difficulties with allegedly ‘scandalising the court’ (the prosecution was dropped), she is careful not to allege bias, although an Administrative Lawyer might be forgiven for feeling that citing a dictum of Lord Hewart often quoted in bias cases was sailing close to the wind.

One trusts that there will be no prosecution here, but the article did cause this writer to pause. Probably the reader’s best bet is to read the Judge’s Sentencing Remarks (link above) and form their own view.

Perhaps the difficulty is inherent in the way the abortion legislation is framed: upto point X the legislation takes the ‘pro-choice’ attitude that we are just talking about a bundle of cells with impressive potential, and after point X the ‘pro-life’ attitude that we are near-enough to talking about a human being, so that the Judge’s comments about forms of homicide are not irrelevant after all?

But that is quite a change in the status of a being that takes place in one tick of a clock – from bundle of cells to human being (almost). It is unlikely that anyone thinks that that is the true moment at which the change takes place – the figure set is a political compromise probably regarded on both/all ‘sides’ as temporary. Perhaps that makes troubling convictions and troubling acquittals inevitable, each side of the line.

Equity in Criminal Law

19 Sep

A common early question in a student’s Equity studies is ‘So, Mr Richard, does Equity have anything to do with Criminal Law ?’ My standard answer is, ‘No, not so. Equity involves broad discretions for the Court, which are inappropriate where (as in Criminal Law) the liberty of the subject is at stake.’

However, this is not in the USA seen as so obvious – or so you might conclude from Prof (Howard) Brill’s recent article on SSRN. Originally dated 2000, the issue is still topical. The rules cited certainly tend to steer Equity away from Crime, but there clearly is not seen as being an a priori absolute ban. (Prof Brill’s interest is in Arkansas)

Sight Unseen ?

18 Sep

It strikes the writer that no-one is saying that one cannot condemn the publication of photos of the Duchess topless “until you’ve seen the photos for yourself.”

The laughing reader will recall that in fact this is often said about publications that it is said should be banned (it is said for example by those looking to profit from them – but not only by such) – “How you can you know until you’ve seen/read/watched it ?” – the point being precisely that you can’t know and should be ignored. The innuendo is that you’re prejudiced and your opinion is worthless. This seems a common liberal (or ‘liberal’ – whichever) retort when it is said that something is blasphemous, offensive, etc.

Given the universality (near enough) of the condemnation of the publication – why is no-one trying this line ? If (presumably) it is thought inapplicable, then why so ? Where is it applicable, and why ?

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