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SocialistLawyerMagazine of theHaldaneSociety of Socialist Lawyers ■ Number65 ●October 2013 £3

Legal Aid: thefight goes onBrazil: crisisand uprisingKenya: a newconstitutionThe right toprotest

Justicein thebalance

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2 Socialist LawyerOctober 2013

Editor: Tim Potter Special thanks to: Liz Davies, Russell Fraser,Declan Owens, Mike Goold and Brian RichardsonCover picture: Jess Hurd(www.jesshurd.com)Design: Smith+Bell(www.smithplusbell.com)Print: The Russell Press(www.russellpress.com)ISSN 09 54 3635

PO Box 64195,London WC1A 9FDwww.haldane.orgThe Haldane Society wasfounded in 1930. Itprovides a forum for the

discussion and analysis of law and the legalsystem, both nationally and internationally,from a socialist perspective. It holds frequentpublic meetings and conducts educationalprogrammes.The Haldane Society isindependent of any political party.Membership comprises lawyers,academics, students and legal workers aswell as trade union and labour movementaffiliates. The list of the current executive,elected at the AGM in November 2012 is asfollows:President:Michael Mansfield QCVice Presidents:Geoffrey Bindman QC, Louise Christian,Tess Gill, Tony Gifford QC, John Hendy QC,Helena Kennedy QC, Imran Khan, Catrin Lewis, Kate Markus, Gareth Peirce,Michael Seifert, David Turner-Samuels,Estella Schmidt, Phil Shiner, Jeremy Smithand Frances WebberChair: Liz Davies ([email protected])Vice-Chairs: Kat Craig and Anna Morris([email protected])Secretary (job-share):Russell Fraser & Michael Goold([email protected])Socialist Lawyer editor: Tim Potter([email protected])Treasurer:Declan Owens([email protected])Membership Secretary:Debbie Smith ([email protected])International Secretary: Bill Bowring([email protected])Executive Committee:Kani Areef, Martha Jean Baker, AlexChandran, Natalie Csengeri, Rheian Davies,Emily Elliott, Elizabeth Forrester, ThomasGillie, Margaret Gordon, AgnieszkaGrabianka-Hindley, Owen Greenhall,Rebecca Harvey, Richard Harvey, PaulHeron, John Hobson, Sophie Khan, AngusKing, Stephen Knight, Siobhan Lloyd,Natasha Lloyd-Owen, Chris Loxton, CarlosOrjuela, Sam Parham, Wendy Pettifer, Ripon Ray, David Renton, Brian Richardson,Hannah Rought-Brooks, Marina Sergidesand Adiam Weldensae

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SocialistLawyer

HaldaneSocietyof Socialist Lawyers

4 News & commentLegal Aid protests; Reborn in theUSA; Young Legal Aid lawyers and On The Picket Linecolumns; Stop and search; Vadim Kuramshim; Socialsecurity benefits and ELDH news and events

12 Who is that man in the Lord Chancellor’s seat?Clare Sambrook points a finger at Chris Grayling, the Toryminister enjoying his job of destroying legal aid

14 New threat to the right to protest Stephen Knight onthe new arrest tactic to include legal observers and MichaelGoold and Emily Elliott on an important victory in the HighCourt against the Met police and its kettling actions

18 Eddie Gilfoyle: miscarriage of justice Jacob Bindmanon the tragic suicide which inexplicably became a murder

20 Kenya: a new constitutionWilly Mutunga on theculmination of almost five decades of struggles

24 The poetry of Talha Ahsanwho is currently in pre-trialsolitary confinement in a supermax prison since hisextradition to the USA with co-defendant Babar Ahmad

26 Ballots or banners?Film maker Pablo Navarrete looks athow student protests in Chile have a political dimension

28 Extortion, torture, death: price of migration to USFiona McPhail reports from the preliminary hearing of theinternational Permanent People’s Tribunal in Mexico City

30 It started with a bus fare increase...Rio-basedDamian Platt analyses Brazil’s 2013 mass demonstrations

34 What lies behind the ‘urban crisis’?Joviano Mayerand William Azalim look at the roots of the anger in Brazil

38 Agreement of the peoplePaul Feldman on thecampaign for a British constitution

40 Rights or wrongs?Bill Bowring replies to David Renton’s‘Do socialists still have an alternative concept of rights?’

43 Self determinationSteven Walker looks at whatinfluenced young Cuban lawyer Fidel Castro

44 ReviewsBooks: Undercover; A Very British Killing: TheDeath of Baha Mousa; Thompsons; The Innocent & theCriminal Justice Systemand the film Neighbouring Sounds

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Socialist LawyerOctober 2013 3

from thechair

unprecedented in the UK although not elsewhere:Pakistani lawyers brought their country to a standstillwhen they went on strike after the Chief Justice hadbeen suspended by General Musharraf. We are allanxious about our clients: if we do not turn up, willshe be unjustly sent to prison? Or landed with ajudgment? Lose her children? Be evicted? Will Ireceive a wasted costs order? If we all stand togetheron a one-day boycott, Judges just won’t be able topunish either our clients or ourselves. Collectiveaction and solidarity is the key. If we don’t take actionnow to save legal aid, when will we?

It is poignant that Tooks Chambers, set up by ourPresident Mike Mansfield QC during the 1984 –1985 miners’ strike, is a prominent casualty of legalaid cuts. It is important to note that Tooks’ dissolutionis the result of the cuts to legal aid that have alreadybeen implemented: years of attrition, a 10 per cent cutin civil legal aid payments in October 2011, low ratesof pay for junior criminal barristers, the LASPO cutsto social welfare law. If the Transforming Legal Aidcuts go through, it is impossible to envisage thesurvival of specialist, expert legal aid practitioners inany firm or chambers. We are sad to see Tooks’demise. We salute the chambers – staff and barristers –for its record of fighting miscarriages of justice,holding the State to account through inquests,inquiries and judicial reviews, and for its commitmentto delivering legal services to those who cannot affordto pay for them.

This issue of Socialist Lawyer shows just how busyour membership and executive are, not just trying tosave legal aid and doing the day job of representingclients, but also standing in solidarity against humanrights abuses in the Philippines, Mexico,Guantánamo Bay, Chile and elsewhere. Two longerarticles show us that socialist lawyers are thinkers aswell as activists: Bill Bowring responds to DavidRenton’s previous article on socialism and legal rightsand we are honoured that the Chief Justice of Kenya,Dr Willy Mutunga, has given us permission toreproduce his speech on building an anti-colonialjurisprudence.

We hold our Annual General Meeting on 14thNovember 2013 with Vice-President Phil Shinerspeaking on ‘UK human rights violations in Iraq andAfghanistan – the present picture’ (see back page).Come along and consider getting more involved:motions and nominations for the executive should besent to [email protected] no later than 5pmMonday 11th November 2013.Liz Davies Chair, [email protected]

Three and a half years into the coalition Governmentand austerity is well and truly with us. Nor foreveryone: the incomes of the 1,000 wealthiest peoplein the UK are growing. But in the real world, thoseliving off benefits have to find money from what issupposed to be basic subsistence money to paytowards council tax, bedroom tax, and ever increasingfuel and food bills. Everyday in my practice as ahousing lawyer I see people threatened with evictionfor not being able to find £25 a week – from non-housing related benefits – for the bedroom tax; thebenefit cap resulting in 42 per cent of income going onrent; and fewer and fewer people able to obtain legaladvice since the LASPO cuts arrived in April 2013.

The Government’s latest attack on legal aid is partof its assault on the welfare state. Its philosophy is thatpublic services should only be available for the mostdesperate and delivered at rock-bottom cost andtherefore rock-bottom quality. In health, educationand criminal defence, the Government wants two-tierstructures: the publicly-funded part of the structureshould be so run-down that anyone who can afford itbuys privately. That has already happened to socialhousing: 30 years of under funding has turned whatused to be a universal scheme into an emergency safetynet for the most desperate.

An irony is that rich countries could do with a bit ofausterity. We consume too much fuel, eat too muchmeat, trade in luxuries and waste far too much. We havea duty to the planet and to poorer countries to changeour lifestyles, particularly our fuel consumption, but notby flat price rises which merely give the rich licence toconsume even more. We need a Government thatprioritises public transport, cuts down on flying, andensures that everyone can afford to heat their homes,pay their housing costs and put enough food on thetable. A bit of austerity on the rich – along withredistribution – would help the planet no end.

People, even lawyers, are fighting back.Firefighters, teachers, university lectures are on strike.A Day of Action against Austerity is planned for 5thNovember 2013. There is real anger among criminaldefence lawyers and an appetite for direct action. TheLaw Society has been roundly condemned for itsThatcherite plea of ‘there is no alternative’ to cuts tocriminal legal aid. Calls for direct action have comefrom the Criminal Bar Association, the LondonCriminal Courts Solicitors’ Association and otherprofessional bodies not known for their radicalism.

The next step in the campaign to save legal aidshould be a one-day withdrawal of labour andboycott of the courts. A strike by lawyers would be

Austerity,legal aid,and fightingback

Haldane Chair Liz Daviesspeaking at the People’sAssembly in June 2013.

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News&Comment

Despite what the officialhistory books may try totell us, the United States

has a rich socialist tradition. In thefirst part of the 20th century, theTeamsters’ rebellion inMinneapolis and Eugene Debs’presidential election campaignsinspired millions of US workers.

However, the relative success ofUS capitalism in the 1950s and1960s, within the context of theCold War and the McCarthy-ledwitch-hunt of communists,seemed to diminish and extinguishsocialism for a generation.

Yet struggle, solidarity andsocialism remain very much on theagenda in 21st century America.Already this year fast foodworkers have held a series of oneday strikes across major citiesdemanding a minimum wage of$15 per hour. The Occupymovement, born as a result of thefinancial meltdown in 2008, andlater brutally attacked by police,has maintained its momentumthrough Occupy Homes, stoppingthe foreclosure of homes – seewww.occupyhomesmn.org.

There have also been somesurprising election results becauseof old style campaigning andsocialist politics. For instance inthe August 2013 primary electionfor Seattle City Council a socialistcandidate, Kshama Sawant, won astunning 35 per cent of the votewith 44,000 votes.

With her clarion call for a city-wide $15 per hour minimumwage, rent control and a tax onmillionaires to fund public

transport and public education shehad been written off by the massdaily city newspaper as ‘too hardleft for Seattle’. She was portrayedas a fringe underdog. The SeattleTimeswas forced to eat humble piewhen they later admitted: ‘WhatKshama did was to simplyoverturn the common wisdom ofhow to succeed in local elections ingeneral and city council races inparticular. She took what wereviewed as two immutable laws [the need for big money andDemocratic Party endorsements]and essentially threw them out ofthe window… it’s nothing short ofan earthquake… Kshama hasshown a new path for independentcandidates who directly advanceworking people’s interests.’

There is no doubt the anti-corporate message of thecampaign hit a chord. As Kshamastated in her address about theestablished politicians, ‘It is ascandal that Seattle councilmembers pay themselves$120,000 a year… meanwhile theworkforce in the city struggleswith low pay’.

Over in the mid-west TyMoore, a socialist activist inMinneapolis is also challengingfor a seat in the city council. He isstanding in the 9th ward which isseen as the most progressive in thecity. With 75 active supporters anda reputation as an active tradeunionist he has a real chance.

These two elections illustratethat the campaigns of the past aremaybe the music of the future.Paul Heron

Re-born in the USA

‘When I see the Stop the War people saying ‘Hands off Syria’, I want to put my head in m

June 11:The Justice Secretary, ChrisGrayling, says he wants some victimsto give pre-recorded evidence incriminal trials. Grayling’sannouncement followed the death ofviolin teacher Frances Andrade whokilled herself following giving evidencein one trial. However, critics pointed outthat such provisions already exist.

14:A woman who posted the words‘Feeling like burning down somemosques in Portsmouth, anyone wantto join me?’ escapes prison. MichaelaTurner was given an eight-weeksentence suspended for six monthsfollowing comments she wrote onFacebook about the death of LeeRigby.

19:The Supreme Court rules that thefamilies of three soldiers killed in Iraq inpoorly armoured Land Rovers can suethe Ministry of Defence for negligence.The court decided that soldiersfighting overseas can still claimprotection under Article 2 of theEuropean Convention on HumanRights.

10:Members of Parliament call for areview of new immigration rules amidfears that families were beingseparated. The cross-party groupfound that the minimum earnings ruleof £18,600 a year, which came intoeffect in July 2012, meant many non-EU partners of British citizens weredenied entry to Britain to live with theirfamilies.

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Socialist Lawyer October 2013 5

One of the worst known ofthe Government’s proposalsfor the employment

tribunal is its plan to remove thetribunal’s power to makerecommendations in discriminationclaims. In theory, where a claimantsucceeds, the tribunal may make arecommendation that within aperiod the respondent takes somespecified steps related todiscrimination revealed in theproceedings. This is an importantpart of the total powers of atribunal. It is usual for therecommendations to consist of theadoption of an equality policy if theemployer lacks one, or specifictraining for a team if more than oneperson has been involved in acts ofdiscrimination.

From the point of view ofworkplace equality, the step isclearly retrograde. It reducespressure on employers and reducesthe choices open to claimants and totribunals where some kind ofdiscrimination has been uncovered.There is no ‘balancing’ reform tomake up for the way in which auseful power which points towardsequality is being lost.

In policy circles, variousattempts are being made to defendthe Government’s repeal plans. It issaid for example that the purpose ofthese provisions is to punishemployers for discrimination, andthat employers can just as well bepunished by groups of employeesbringing serial cases, with thecompensation rising, as eachemployee succeeds.

This is to misunderstand thepurpose of compensation indiscrimination claims: it is not topunish the aberrant employer but tocompensate the employee for herloss. But her loss, meaning the acts

she suffers and their impact on her,is not any greater where she is alsothe second or the third employee tobring a claim. Compensation doesnot rise merely because theemployer has a bad history ofdiscrimination.

In most successful cases there isno mechanism by which anemployee can confirm that therehave been previous claims. There isa poorly administered paperarchive of tribunal decisions fromwhich claimants may seek previouscases. There is usually a lengthydelay between judgments beinggiven in court and a paper copydeposited there. Without someonemaking the enquiry, there is no wayof getting access to previouscriticisms of the respondent.

Few tribunals would be willingto consider previous decisionsagainst the same respondent, butwould assume they were irrelevantto the case in hand. Even whererespondents find themselves losingin court, they often offer acompromise agreement, withconfidentiality clauses to protectthem from bad publicity, before ahostile decision is made. There is no‘transmission mechanism’ to enableserial claims.

Another idea being floated is thepossibility of claimantscircumventing the problems of therepeal of the power to makerecommendations by somebody,quite who is not specified,encouraging workers not directlyinvolved in discrimination claimsbringing ‘indirect victim’ claims.

Again, the proposal isimpractical. There have in the pastbeen claims of this sort, forexample, where a worker isinstructed by their employer todiscriminate, declines, and is

dismissed. There will never be verymany of them. The relatively tighttribunal time-limit of three months,combined with typical delays ofabout a year between claim andhearing, makes it impossible for aclaimant to wait and see whathappens with another worker’sclaim before launching their own‘piggy-back’ case.

Our common law principles ofcompensation again reduce awardsfor those who can say no more thanthat they objected vicariously totheir employer’s discriminationagainst someone else.

Finally, it has been suggestedthat the loss of the power to makerecommendations causes no harmbecause the tribunal has no powersto monitor the implementation ofthe recommendations it makes.

This is true, up to a point.tribunals have no power to monitor,but a determined claimant couldprobably seek enforcement throughthe civil courts. The generalcompliance of employers withtribunal powers is in generalshockingly poor, with only arounda half paying any amount oftribunal judgments at all within twoyears of a successful claim.However no one says that becausetribunals have difficulty enforcingjudgments their power to ordercompensation should be takenaway from them.

If tribunal recommendations areignored then there would be a muchsimpler and better answer to dealwith this problem: not to protect thediscriminators, but to requirereporting and compliance withthese recommendations and togrant the tribunal the powers itneeds to punish the employers whodo not comply.David Renton

On the picket lineA retrograde step

ead in my hands’ – Tony Blair.

19: The Supreme Court also quashedan anti-terrorist sanction imposedupon an Iranian bank. The Treasurywas ordered to remove sanctionsagainst Bank Mellat and said that theGovernment’s secret intelligence wasirrelevant. The bank was said to havebeen financing groups involved inIran’s nuclear programme.

3:The Metropolitan police officer AlexMacFarlane is sacked following hisbeing secretly recorded using racistlanguage towards a man he hadarrested. MacFarlane twice stood trialfor racially aggravated public disorderbut on both occasions the juries wereunable to agree a verdict.

3: The police and crime commissionerfor West Yorkshire, Mark Burns-Williamson, refers the former ChiefConstable of the West Yorkshire forceSir Norman Bettison to the IPCCfollowing allegations that he tried tointervene in the Lawrence Inquiry.Bettison had earlier resigned from theforce over allegations about his role inthe Hillsborough disaster.

July24:A former undercover police officerreveals how the Metropolitan police ranan operation designed to ‘smear’ thefamily of Stephen Lawrence as well ashis friend Duwayne Brooks andcampaigners who supported them.Peter Francis claims he was told to find‘dirt’ which could be used againstthem.

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News&Comment

Doreen Lawrence speaking at the Trades U

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Stop and search has longbeen a touchstone issue,particularly for black

communities in Britain. Fifteenyears ago it was the majorcomplaint raised by communityactivists at the Stephen LawrenceInquiry, and, consequently, aprimary reason why Sir WilliamMacpherson concluded that theMetropolitan police wereinstitutionally racist. The solemnpromise made by forces across theland after that report was that theuse of the tactic would be lessarbitrary and more ‘intelligenceled’.

It would appear that fewlessons have been learned andinstead of a more targetedapproach, there has not simplybeen a return to business as usualbut, rather, a proliferation. In2009/10 the Ministry of Justice’sown publication Statistics on Raceand the Criminal Justice System2010 recorded 1,141,839encounters, a 20 per cent increaseon four years previously. Morerecently a report by Her Majesty’sInspectorate of Constabulary(HMIC) in June 2013 concludedthat their disproportionate use hasa ‘toxic effect’ on relationsbetween the police and minorityethnic communities. Chastened bythis, Home Secretary Theresa Maywas forced to announce a publicconsultation. As Socialist Lawyerwent to press, the outcome of thisconsultation was not known, butgiven the history of brokenpromises, we would be welladvised not to hold our breath.

Any serious attempt to addressstop and search would be widelywelcomed. There can be littledoubt that it is a blunt and largelyineffective instrument. Few stopsactually result in an arrest let alonea conviction. According to theGovernment’s own statistics, justover nine per cent of suchencounters under section 1 of thePolice and Criminal Evidence Act(PACE) 1984 across England andWales in 2009/10 led to an arrest.Meanwhile less than 1 per cent ofthose conducted under section 44of the Terrorism Act 2000 resultedin an arrest.

The impact in terms of racerelations is dire. An Equality andHuman Rights Commissionreport, Stop and Think publishedin 2010 noted that:

‘Since 1995, per head ofpopulation in England and Wales,recorded stops and searches ofAsian people have remainedbetween 1.5 and 2.5 times the ratefor white people and for blackpeople always between four andeight times the rate for whitepeople.’

Walkthrough arches to detectknives, guns and other weaponshave become a familiar sightoutside schools, train and Londonunderground stations. Under thesepowers, enshrined in section 60 ofthe Criminal Justice and PublicOrder Act 1994, black peoplewere up to 27 times more likely tobe stopped than their whitecounterparts. The number thatresulted in arrests was two percent. When we consider that not

all arrests lead to successfulprosecutions, it can be seen thatthe effectiveness of stop andsearch under these powers isalmost infinitesimal.

By comparison, with theireffectiveness in detecting crime,the capacity of stops and searchesto stir up resentment among thosewho are targeted is incalculable.The riots that erupted in Londonand then spread to other townsand cities in August 2011 weresparked by the death of MarkDuggan at the hands of the policeand the subsequent roughtreatment of a female protesteroutside Tottenham police station.Many of those young people,black and white who took to thestreets freely admitted that theydid so as a means of striking backagainst a force which they regardas alien, invasive and oppressive.They identified with MarkDuggan because they themselvesexperience police harassment as adaily part of their lives.

Since then of course we havelearned that the Lawrence familyitself and many of the activistswhose campaigning put the policeon the defensive and led toMacpherson’s landmark rulinghave been bugged and spied upon.Instead of finding StephenLawrence’s killers, the police weremore interested in protecting theirown and criminalising theircritics.

Mark Duggan returned to thenation’s collective consciousnesswith the delayed opening of hisinquest in September 2013. Ourpolitical leaders would do well topause and give seriousconsideration to the wider lessonsto be learned. Brian Richardson

Broken promises

July25:The Guardiannewspaper isgranted permission to appeal in its bidto have a decision to keep privatedetails of Prince Charles’s lobbying ofministers. The paper has been seekingthe release of a set of letters written toGovernment departments over aperiod of nine months.

18:The Supreme Court strikes downHome Office attempts to change theimmigration rules. The court said thatministers were not permitted toexclude workers, students, and othermigrants from the UK under criteria notlaid before Parliament.

10: Her Majesty’s Chief Inspector ofthe CPS, Michael Fuller, publishes acritical report stating that the CPS wasbeing damaged by a lack ofresources. The CPS faces significantreductions in staff with its budget beingcut by 27 per cent. ‘Chilling’

Officials for Tory minister Eric Picklesdescribing the effect of agreeing to aFreedom of Information request.

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News&Comment

s Union Congress in September.

Fighting for Vadim’s freedomVadim Kuramshim was

sentenced to 12 years inprison by the state of

Kazakhstan in late 2012. A humanrights lawyer and human rightsdefender, he has been awarded the2013 Ludovic-Trarieux humanrights prize, one of the oldest andmost prestigious awards given to alawyer in the world. Indeed thefirst prize was awarded in 1985 toNelson Mandela, then in a jail inapartheid South Africa.

The award of the Ludovic–Trarieux prize is a major boost forthe campaign to free Vadim. Theprize has the backing of lawyersand human rights organisationsacross Europe. Its website states:‘Since 2003, the prize is awardedevery year in partnership by theHuman Rights Institute of The Barof Bordeaux, the Human RightsInstitute of the Bar of Paris, theHuman Rights Institute of The Barof Brussels, l’Unione forense per latutela dei diritti dell’uomo (Roma),Rechtsanwaltskammer Berlin, theBar of Luxemburg, the Bar ofGeneva as well as the UnionInternationale des Avocats (UIA),and the European Bar HumanRights Institute (IDHAE) whosemembers are the biggest Europeanlaw societies fighting for humanrights’.

Vadim was arrested inSeptember 2012 after returningfrom a conference in Warsawwhere he had given a speechexposing human rights abuses inKazakhstan. As previously featuredin Socialist Lawyer, Vadim wasfound innocent by a jury of all theserious charges brought againsthim and released. The Kazak

regime re-arrested him in October2012 and brought him back tocourt but this time with no jury. Inbreach of its own procedures, thecourt deemed Vadim guilty andsent him to prison for 12 years onthe same charges on which he hadfirst been acquitted.

The appeal court in February2013 upheld the verdict and inMarch 2013, Vadim wastransferred to a prison colony thatis infamous for violations ofprisoners’ human rights.

The Haldane Society welcomesthis latest recognition of VadimKuramshin's vital work as ahuman rights defender andreiterate our belief that he has beentargeted as a result of his peacefuland legitimate human rightsactivities. We appeal to ourmembers and supporters to step upthe campaign for his release fromprison in time to attend the formalawarding of the prize in Paris on5th December 2013.

Letters can be sent to thePresident of Kazakhstan at thefollowing address: PresidentNursultan Nazarbayev, Office ofthe President, Akorda Building,Left Bank of the Ishim River,010000 Astana, Kazakhstan.

Emails can be sent to theKazakh authorities at embassies of Kazakhstan in your country – a list of Kazakh embassies andconsulates can be found here:www.embassypages.com/kazakhstan; Ministry of ForeignAffairs Republic of Kazakhstan:[email protected] – please sendcopies to Campaign Kazakhstan:[email protected] Heron

August2:Uruguay’s lower house passes abill that will legalise marijuana andregulate its production, distributionand sale. The bill fixes the price ofmarijuana around $2.50 per gram.

2: A coroner who wrote to the CultureSecretary, Maria Miller, to complainabout the media’s coverage of aninquest at which he presided iscensured by the Office for JudicialComplaints. Michael Singleton hadcriticised the media ‘intrusion’ and ‘ill-informed bigotry’ concerning thegender change of Lucy Meadows. Hehad told journalists in court that he haddone his own research on the case.

30:A challenge to the Government’s‘bedroom tax’ is rejected by the HighCourt. The judges said the measurewas based on a ‘reasonablefoundation’. Richard Stein, a solicitorfor some of the claimants said ‘ourclients are bitterly disappointed withtoday’s decision, but they are notdefeated’.

2: A Home Office swoop onsuspected illegal immigrants at railstations, businesses and homes drawscriticisms from across the politicalspectrum. Labour called on the HomeSecretary to say whether thecampaign had broken officialguidelines on stop and search. Themove even drew criticism from NigelFarage of UKIP.

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News&Comment


LondonA large, determinedmeeting of criminal solicitors andbarristers on 1st October vowed toescalate the campaign againstGrayling’s proposals to decimatelegal aid, and to withdraw theirlabour as part of that campaign.

The meeting, called by theCriminal Law Solicitors’Association, the Criminal BarAssociation and the LondonCriminal Courts Solicitors’Association, was attended byaround 500 barristers, solicitors,and legal executives. Itunanimously voted to oppose allthe different cuts to legal aid anddeclared that the Ministry of

Justice is not fit for purpose.Speakers from the platform and

the floor repeatedly called forbarristers and solicitors to standunited and withdraw their labourfrom the Courts. There waswidespread dismay expressed fromboth the platform and the floor atthe position of the Law Society notto stand in solidarity with theircriminal members and colleaguesby taking a firm stance to opposethe cuts and support direct action.

There remain discussions to behad as to when and in what formthe withdrawal of labour will takeplace. The Haldane Society wouldencourage the various professional

organisations to agree now thatthe legal profession will start byboycotting the courts – both civiland criminal – on a specified dateand will consider escalating action.

ManchesterOn 29th Septemberthe Northern Save JusticeCampaign held a spirited rallyoutside Manchester Crown Court,writes Mikhil Karnik. It wasaddressed by Jennifer Hilliard ofParents for Real Justice, JeanBetteridge from Access to Advice,Manchester barristers JohnNicholson, Jared Ficklin, andMark George QC, DeniseMcDowell of Greater ManchesterImmigration Aid Unit, and byLabour MP Kate Green. Speakersspoke about the hypocrisy of

Legal aid battle hots up

Labour’s Shadow Justice SecretarySadiq Khan MP spoke at the rallyoutside the Old Bailey.

Hundreds joined the Justice Alliance rally on 30th July outside the Old Bailey in London, opposing the government’s attack on legal aid and access to justice.

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The Government’s approachto legal reform has becomewearily familiar. Step one:

design a set of proposals that willundermine access to justice forvulnerable group x. Step two: trailthe proposals in the right wingpress supported by irrelevantand/or inaccurate material relatingto fat cat lawyers/spurious cases/left wing campaigners (delete asappropriate). Step three: releaseproposals with an improbablytight timeframe for consultation.The timetable should be asinconvenient as practicable.Where possible, it should coincidewith a time when our electedrepresentatives are on holiday andnot available for discussion. Forexample, a 36-hour consultationon bringing back capitalpunishment to restore thecredibility of the criminal justicesystem by clamping down on the63.2m Britons who dodge thedeath penalty each year; responsesby 14:00 on Boxing Day. Stepfour: ‘listen carefully’ to themultiple thousands of respondentswho explain in simple languagewhy the proposals are really not avery good idea. Step five: carry onregardless and use secondarylegislation where possible.

And so it was withTransformingLegal Aid: theGovernment’slatest assaulton legal aidand those

individuals who rely on it tosafeguard their rights. TheGovernment received in the regionof 16,000 responses, the majorityin opposition to the proposals.Nevertheless, on 5th September2013, the Ministry of Justiceannounced its intention to carry onregardless.

True, the Government hasmade some concessions. Inparticular, we are no longer facingprice-competitive tendering forcriminal legal aid contracts.Instead the Government hasproposed a mixed model, with anelement of competition (for policestation work) while leaving clientswith the ability to choose theirown solicitor. And certain limitedexceptions have been introducedto the abhorrent residence test, forvictims of trafficking amongothers.

These concessions should notbe overstated. It would be wrongto say we have won. A 17.5 percent cut in fees for criminal legalaid will still sound the death knellfor many firms. And allowingvictims of trafficking legal aid tohelp with their employmentdispute is of limited value if thosesame individuals cannot get freelegal help when they are destituteand homeless. Nevertheless that isthe effect of the exception. Thedevil is in the detail.

Then on 6th September 2013,following closely on the heels ofthe response to TransformingLegal Aid, came yet furtherGovernment plans to restrictaccess to judicial review. This newconsultation marks an escalationin hostilities. In 2011, when thethen Lord Chancellor Ken Clarkepushed the Legal Aid Sentencingand Punishment of Offenders Actthrough Parliament, legal aid forjudicial review emerged unscathed.This was recognition on the part ofthe Government, we were told, ofthe importance of holding the Stateto account. How quickly thingschange. December 2012 saw thefirst in the latest series ofconsultations, purportedlydesigned to kick-start the economyby clamping down on spuriousjudicial reviews: dubious logicunderpinned by questionable

This regular column is written by YLAL members. If you are interested in joining orsupporting their work, please visit their website www.younglegalaidlawyers.org

Carry on regardlessstatistics. Transforming Legal Aidsaw more of the same, with theattack focused more closely onclaimants reliant on legal aid. Inthis latest consultation theGovernment has truly nailed itsideological colours to the mast.

The effect of the proposals,among other things, will be toincrease the financial risk to thosewho try to challenge the unlawfulacts of the State and tighten up therules that dictate who can bringsuch challenges. The consultationis littered with choice phrases:judicial review, we are told, isbeing used as ‘a delaying tactic’undermining Governmentreforms, a ‘campaigning tactic’ togenerate publicity, and generally asa means to ‘frustrate or discouragelegitimate executive action’. Anarticle in The Daily Mail, trailingthe proposals and quoting LordChancellor Chris Grayling, railsagainst campaigners challengingthe legality of the HS2 High SpeedRail Line. While, in similar vein,the consultation paper singles outthe efforts of peace activist MayaEvans in holding the Ministry ofDefence to account for theunlawful acts of the armed forcesin Afghanistan. As if these mattersare not of legitimate publicconcern.

The picture that emerges is aGovernment that will not be heldaccount for its actions at home orabroad. The approach is redolentof a spoiled child, reactingpetulantly when told he cannot dowhatever he wants to do.

Now it is clear that the battle isan ideological one, the battle linesare at least clearer. Now that weknow the case against us, it is lessimportant to focus on rebuttingspurious economic arguments orthe misuse of statistics. However it also makes the battle harder. A Government pursuing anideological course is less likely tobe deterred than one pursuing apolicy out of pragmatism oreconomic necessity. This does notmean we should shy away fromthe fight.

The judicial review proposalsfor further reform consultationcloses on 1st November 2013.Connor Johnston

YoungLegalAid Lawyers

those, like Chris Huhne, whowhen in trouble affordedthemselves the best lawyers thatmoney could buy, whilst at thesame time condemning the restto justice on the cheap. Theyreinforced how the attack onjustice was ideological, and infact would not achievesubstantial savings overall,and how access to specialistlawyers was not a luxury itwas a necessity. Thoseattending the rally thenmarched behind the HaldaneSociety banner (proudlycarried by Mark Georgeand myself) and a coffinto join the TUC protestoutside the Toryconference.

Liberty’s Shami Chakrabarty.

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News&Comment

August12:The Home Office agrees towithdraw its vans warning illegalimmigrants to ‘go home’ after a legalchallenge. Two claimants said thevehicles – dubbed ‘racist vans’ –breached the Government’s duties onequality. The Home Office agreed thatit would consult before launching suchcampaigns in the future.

‘There are poor children who donot have a room of their own inwhich to do their homework, inwhich to read, in which to fulfilltheir potential’.Michael Goveunwittingly describes the effects of theTory bedroom tax on poor families. Thetax orders children aged six to ten toshare a bedroom.

15:A ban on health workers who haveHIV performing certain procedures islifted. Dame Sally Davies, the chiefmedical officer, said the ban wasoutdated and that it was more likelythat a person would be struck bylightning than be infected with HIV bytheir doctor or dentist.

claimant can finally have anindependent impartial hearing oftheir case to determine whetherthey are entitled to the benefit.

Until then, there is no time limitfor the DWP, all that there is, is anindefinite delay before anindependent tribunal can look atthe facts of the case and decidewhether the claimant has anentitlement to benefit.

The right to a fair trial and to acase being heard promptly beforean independent and impartial

5:The Metropolitan police issues aformal apology to the family of IanTomlinson killed by one of its officersduring the G20 protests in London in2009. Julia Tomlinson said: ‘The publicadmission of unlawful killing by theMetropolitan police is the final verdict,and it is as close as we are going to getto justice’. This followed confirmationthat the Metropolitan police would offerthe family compensation.

The Government continues towield its ideologicalsledgehammer to the

welfare state with the introductionof mandatory reconsiderationbefore appeal for all social securitybenefits as of October 2013.

Prior to this, a claimant couldappeal a Department for Work and Pensions (DWP) decisionimmediately rather than ask for theDWP to review their decision. Thebenefit of doing this was twofold.First during a review the claimantwould usually not get paid – byappealing straight away the personsecured the basic rate of income,usually £71 for a single personwhile they waited for the appealhearing. Secondly by appealing,the claimant sidestepped andremoved the risk of any bias fromthe DWP decision maker reviewingthe claim and rubber stamping theoriginal decision, the claimant wasable to access an independentimpartial Tribunal and receive afair hearing.

The Tribunal service over thepast seven years has seen a hugeincrease in the number of negativeDWP benefit decisions beingappealed to the First Tier Tribunal.According to the Tribunal statisticsin 2006/07 there were 254,000appeals heard and by 2011/12there were 434,000 appeals. Theexpected forecast for 2013/2014 isthat the Tribunal service will hearanother 607,000 appeals. TheTribunal service saw a 52 per centincrease in receipts of appealsbetween January and March 2013compared to the same period in2012, with 155,000 appeals

received. The increase is mainlydue to the negative decisions madeon Employment and SupportAllowance claims. According tothe Disability Alliance around 50per cent of oral appeals and 20 percent of paper hearings aresuccessful.

With such an increase inappeals and with at least half ofthese appeals being successful, forthis Government there can only beone solution – smash the currentsystem and make it as difficult aspossible for people challenginggovernmental decisions.

And that is what they havedone. From 28th October 2013,the Government have removed theclaimant’s right to appeal beforeasking for a reconsideration.Mandatory reconsiderations mustbe requested within a strict onemonth period by anyone wantingto challenge a negative DWPdecision on their claim. Requestsfor reconsiderations outside of theone month period arediscretionary and can only bechallenged if refused by judicialreview.

When a claimant requests areconsideration, no action duringthe first month will be taken by thedecision maker while they wait forthe claimant to submit furtherinformation. At the end of themonth the DWP decision makerwill then start the process ofreviewing the original decision.The DWP have not ruled out thatthe reviewing decision maker couldbe the same person who made thatoriginal decision. Impartiality itseems does not exist here.

If that were not bad enough, itgets worse. There is no maximumtime limit for the decision maker toreconsider and make their newdecision. This could mean possiblymany months without a newdecision and long delays in justicefor vulnerable people. Whatexacerbates this is that during thisreview process, where the claimantis requesting a review of a decisionnot to award benefit outright, theywill receive no money. This couldpotentially leave a vulnerableperson without money for manymonths and will have a huge knockon effect on people’s lives. If aperson is unable to claim anotherbenefit, such as job seekersallowance, they will be left withoutmoney. They may receive housingbenefits and council tax reductionbut this will not cover any shortfallfor water rates or heating chargesor council tax charge or food andutilities, and they will be at risk ofbeing evicted from their homes.They won’t be able to claim crisisloans as they no longer exist.People will simply be left destitute.

Once the DWP have completedthe review process, if the claimantis unsuccessful they would thenneed to appeal directly to theTribunal service ensuring all thecorrect forms are completed withinyet again another strict time limit.The claimant would then need towait for the Tribunal service tonotify the DWP of the appeal. TheDWP will then have to provide anappeal bundle to the Tribunalservice, yet there is no time limit forthe DWP to do this within untilOctober 2014 when there will be a28-day time limit. Once theTribunal service receive the bundlethe case will be listed for a datesome time in the future where the

Tories’ contempt for the poor

Campaigning against the bedroom tax.

SL65_pp4-11_news 14/10/2013 09:26

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News&Comment

ELDH newsand events

The European Lawyers forDemocracy and HumanRights (ELDH –

www.eldh.eu) continue to be activeon a wide range of issues.

Turkey On 28th – 29thSeptember 2013, our Turkishsister organisation ÇHD(Progressive Lawyers Association)holds its 3rd International LawSymposium in Istanbul: ‘Being aRevolutionary Lawyer’. ÇHDPresident Selçuk Kozağaçlı, whospoke at Haldane’s DefendingHuman Rights Defendersconference, received ELDH’sbirthday letter in prison. Hethanked us and sent his bestwishes. His trial opening will beon 24th-26th December 2013.Obviously this date has beenchosen by the court to discouragelawyers from Europe to observe.The indictment of about 600pages has been submitted to thecourt by the public prosecutorand was approved by the court.ÇHD held a press conferenceinsisting that the indictment is notbased on truth and law and that itis grounded on political motives,to prevent lawyers, members ofÇHD and members of thePeople’s Law Office fromdefending the basic rights of thepeople.

The Danish District SupremeCourt took a shock decision on3rd July 2013 to shut down andimpose a hefty fine on Kurdish RojTV and its parent companyMesopotamia Broadcasting

accusing them of being guilty ofinciting terrorism. Thebroadcasters were sentenced topay a fine of 5.2 million Danishkroner each and their broadcastinglicenses were revoked. Roj TV,Mesopotamia Broadcasting’sMMV and Nuce TV also had theirlicenses revoked. ELDH protestedagainst this judgment. On 18thSeptember 2013, in Copenhagen,ELDH sent observers on a factfinding mission to observe theopening of a trial against sevenKurdish politicians and businesspeople who are charged withfinancing Roj TV.

Edward Snowden ELDHinitiated a statement that thegrounding of the Bolivianpresidential jet and treatment ofEdward Snowden shamed theEuropean Union. This was a bigsuccess. Together with the othertwo organisers, the EuropeanCentre for Constitutional andHuman Rights (ECCHR) and theTransnational Institute, ELDHcollected 65 signatures of variousorganisations.

On 30th August 2013 in Berlin,the 2013 Whistleblower Prize wasawarded to Edward Snowden, byIALANA (German section),Vereinigung DeutscherWissenschaftlerInnen, andTransparency International.

Cuban Five Haldane’s sisterorganisation in Germany, theGerman Association ofDemocratic Lawyers (VDJ) isorganising a screening of the filmThe Cuban Wives in Düsseldorfon 11th October 2013 togetherwith three other NGOs within theOne-World-Festival. The film willbe also be shown in Berlin on 4th

and 7th October 2013 during theBerlin Latin American Festival.

Western Sahara Our Basquecolleague Urko Aiartza isorganising a human rightsmission to Western Sahara at theend of October or beginning ofNovember 2013. There arecolleagues from Spain, Italy andGermany who are interested. Weneed at least two more colleaguesfrom England. Please contact meif you would like to participate.

Conference on Europe inBelgrade Preparations havebegun for a conference on ‘EUand European Human Rights inSouthern Europe’. The conferencedate is most likely to be on 7thJune 2014. The organisers will beELDH and the SerbianDemocratic Lawyers, with thesupport of Lawyers for HumanRights (YUCOM). Theconference will be held in English.

Marxism and Law Preparationshave also begun on a colloquiumon this topic, with the aim toinvite some of the leadingcontemporary German and otherEuropean theorists such asMichael Heinrich, in London inautumn 2014.

The next meeting of ELDH’sExecutive Committee is in Romeon 19th October 2013 at the CasaInternazionale delle Donne(International House of Women).The next day the Haldane’s sisterorganisation, the ItalianAssociation of DemocraticLawyers, will organise a colloquyon Europe. Please contact me ifyou are interested in coming.Bill [email protected]

September22:A Freedom of Information requestby the charity the Money Advice Trustreveals that local councils have usedbailiffs to collects debts on their behalfover 1.8 million times. The charitycriticised the number as excessiveand said councils should be moreresponsible in how debts arecollected.

5: The Chilean Judges’ Associationissues a statement apologising for itsinaction during the reign of the dictatorAugusto Pinochet, saying: ‘It must besaid and recognised clearly andcompletely: the court system andespecially the Supreme Court at thattime, failed in their roles as safeguardsof basic human rights, and to protectthose who were victims of State abuse.’

tribunal is being eroded. Thecontempt for the poor is bothshocking and startling. The mostvulnerable people with disabilities,those with mental health problemsand those who lead chaoticlifestyles will struggle andcontinue to be labelled as benefitscroungers. The social impact willbe huge and will cost society farmore in the long run. MeanwhileGeorge Osborne smirks that theeconomy is recovering.Rebecca Harvey

10:Home Office statistics reveal thatthe use of tasers by police officers hasmore than doubled over two years. In2009 there were 3,128 deploymentsrising to 6,649 in 2010 and 7,877 in2011.

15:The demonisation of benefitclaimants continues as the Director ofPublic Prosecutions Keir Starmerannounces increased prison terms ofup to 10 years for those who falselyclaim. Starmer said the £1.9 billionannual cost of the fraud should guidedecisions about whether prosecutionwas in the public interest.

SL65_pp4-11_news 14/10/2013 09:26

12 Socialist Lawyer October 2013

The most striking thing about Chris Grayling’sappearance before the Justice Select Committeeon Wednesday 3rd July 2013 was the manhimself – the depth of his self-assurance, thepermanent self-congratulatory smile, his glib,condescending replies. The way, like amachine, he rattled out words, apparentlywithout breathing. And what words they were:‘a new contractual framework, tough financialdecisions, deliver change in a way that issustainable, one-size-fits-all’. Grayling, whobears the title Lord Chancellor and has takenan oath to respect the rule of law, was all spinand no content, the consummate PR man.

Yet the matter under scrutiny could scarcelybe more grave.

The coalition government plans to destroylegal aid as we know it in England and Wales,something that has allowed us access to justice,regardless of our wealth, since 1949. Graylingproposes to:• Destroy the current model whereby theMinistry of Justice purchases legal servicesfrom 1,400 local providers.• Issue vast contracts to a small number ofbusinesses offering bulk legal services at thelowest price – Tesco, G4S and Stobart arepoised to move in.• Pay a flat fee regardless of plea. (A guilty pleapromises fatter margins).• Impose a 12-month residence test for civillegal aid. (Babies in care proceedings wouldlose legal representation).• Pay for legal work on applications for judicialreview only in cases where the applicationsucceeds.

Two days ahead of his date with thecommittee, Grayling abandoned his reviledplan to deprive defendants of their choice ofsolicitor. The previous Thursday Grayling’sproposals had been ridiculed and condemnedby MPs of all parties in a Commons debatethat he failed to attend. He spent the daycampaigning in Bedford.

For the Justice Committee he did at leastturn up. About the initial decision to deprivecitizens of their choice of representative, hesaid: ‘You can’t both provide a guarantee of aslice of the work and provide choice.’

And: ‘in order to invest in scaling thebusiness – two firms merging, for example,there would be a need to provide a guaranteeof volumes’. By volumes he meant the quantityof legal work.

So what made him change his mind? ‘Themarket has said to me, “Actually the principleof choice is one that we regard as moreimportant.”’

The ‘market’ is ‘Grayling speak’ for thelegal profession.

‘This is not rocket science,’ he said. ‘Theonly issue of dispute, the one thing thatresonated early on was perhaps we haven’t gotthe choice piece right.’

‘The choice piece’. So that’s it then. Ourchoice of advocate, a piece of business. As hespoke you could sense justice being delivered,or rather not, by the pallet.

‘There’s never been a process of changewhere those people affected by change haven’tbeen jumpy about it,’ he said of the assault onour rights that has brought barristersprotesting onto the streets.

Plaid Cymru’s Elfyn Llwyd, who, unlikeGrayling, has practiced law, challenged thehuge reduction in legal providers planned forWales. The proposals do not say what willhappen if a provider is unable to providesufficient or sufficiently qualified lawyers, saidLlwyd. ‘Unlike the Olympics, the Army can’t bedrafted in… What does the Ministry propose?’

Grayling smirked: ‘A shortage of lawyers inthis country is not one of the big challenges thatwe have.’

Llwyd said the proposals failed to considervictims of crime. Grayling replied that victimswanted to see criminals tried and locked up.

Yasmin Qureshi, Labour MP for Bolton,

Who is that man in theLord Chancellor’s seat?

Clare Sambrookpoints a finger at the Toryminister enjoying his job of destroying legal aid

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challenged him on the likely disproportionateimpact of his changes on black and minorityethnic firms – often one or two person firms.

‘I simply do not accept that,’ Grayling said.‘I pay tribute to the BME business communityin this country, which is among the mostentrepreneurial, successful and effective partsof the private sector in the UK…’

He carried on in that fatuous way as ifQureshi’s concern related to the competence ofblack and minority ethnic practitioners.

Qureshi, a former Crown ProsecutionService barrister, told him: ‘If they go out ofbusiness then the number of ethnic minoritypeople in the judiciary is going to be reducedtoo.’

No matter.Elfyn Llwyd’s fears for Welsh legal firms got

the same patronising brush-off: ‘I’m absolutelycertain the Welsh legal profession will rise tothe challenge,’ Grayling said.

He dismissed the deep anxiety widely feltabout the flat fee paid regardless of plea.Gareth Johnson, Conservative MP forDartford, and a practising solicitor, said thatsome lawyers might push defendants to pleadguilty because of the financial incentive – aguilty plea entailing less work.

‘I regard the standards of the legalprofession to be much higher than that,’Grayling said.

And ‘I want people who are guilty to pleadguilty as early as possible.’

Jeremy Corbyn, Labour MP for IslingtonNorth, challenged the withdrawal of legalrepresentation from prisoners trying to makecomplaints about medical treatment or accessto mother and baby units.

Grayling replied, ‘That’s why we haveprison visitors, Independent MonitoringBoards, the Prisons Ombudsman.’

Under pressure from Corbyn, Graylingsaid: ‘I suspect this is an ideological differencebetween us.’

Does Grayling seriously expect us to believethat justice is safe, because Chris Grayling hasfaith in the Ombudsman, the Welsh, and theentrepreneurial spirit of migrants? Or isideology all that matters to him?

Who is this smug, self-satisfied operator?What makes him tick?

Chris Grayling was born into privilege.Educated at the Royal Grammar School, HighWycombe, he took history at Cambridge, thenjoined the BBC as a news trainee. He movedinto management, ran TV productioncompanies, then he jumped into another world.

He joined Burson-Marsteller, the worldmasters of reputation management, whoseclients have included the Nigerian governmentduring the Biafran war, the Argentinian juntaafter the disappearance of 35,000 civilians, thedictator Nicolae Ceaucescu and the SaudiRoyal Family.

Nice guys.Grayling spent a few years at Burson-

Marsteller. On his website it is not named, it’s a‘leading communications agency’. Then heparachuted into the safe Tory seat of Espomand Ewell. He rose fast through the shadowcabinet, developing a property portfolio withhelp from his Parliamentary expenses.

The Daily Telegraph revealed in 2009 thatGrayling had claimed thousands of pounds torenovate a Pimlico flat – bought with amortgage funded at taxpayers’ expense, even

though his constituency home is less than 17 miles from the House of Commons.

The Daily Telegraph revealed an unusualarrangement Grayling set up with theParliamentary Fees Office whereby he claimed£625 a month for mortgages on his main homeand the Pimlico flat.

Over the summer of 2005, he undertook acomplete refurbishment of the flat. BetweenMay and July he claimed £4,250 forredecorating, £1,561 for a new bathroom,£1,341 for new kitchen units, £1,527 forplumbing and £1,950 for rewiring and otherwork.

During the 2005-06 financial year, Graylingclaimed close to the maximum allowance forMPs, the Daily Telegraph reported. In 2006-2007 he submitted receipts for the work thathad been carried out the previous year. In June2006, for instance, he submitted an invoice for£3,534, with a handwritten note claiming ‘thishas only just been issued, datenotwithstanding’.

A scribbled note that accompanied anotherlate-arriving claim, for £2,250, submitted inJuly 2006, stated: ‘Decorator has been very ill& didn’t invoice me until now.’

Anyway, back to the Select Committeemeeting.

Sir Alan Beith, the chair and LiberalDemocrat MP for Berwick, mentioned a fewmismanaged Ministry of Justice contracts – the court interpreting shambles, prisons andprobation contracts, the offender-taggingcontract with G4S and Serco, underinvestigation and soon to blow into a massivescandal.

‘You haven’t got the capacity within thedepartment to manage contracts on this scalehave you?’ said Beith.

Grayling replied that the problem with thecourt interpreters contract was that it had beenplaced with too small a supplier, and biggersuppliers could sort it out.

Huh?That such a man holds the title ‘Lord

Chancellor’, has taken an oath to uphold therule of law, yet holds Parliament in suchcontempt that he failed even to attend theCommons debate on his proposals is…surprising is the first polite word that springs to mind.

‘You have to deal with the world as it israther than how you would like it to be,’Grayling told the Justice Committee.

PostscriptOn 4th September 2013, in Westminster HallMPs again decried the proposals. Grayling didnot attend. The Times revealed exclusively on5th September 2013 that Grayling hadscrapped plans to award criminal legal aidcontracts to the lowest bidder. In answer to aFreedom Of Information request the Ministryof Justice said there were 35 people on its legalaid policy team, and one of them was legallyqualified.

Clare Sambrook is a novelist and journalist, co-editor of OurKingdom and winner of thePaul Foot Award and Bevins Prize foroutstanding investigative journalism. This articleis drawn from a piece published onOurKingdom, the UK arm of openDemocracyon 3rd July 2013, the day that Graylingappeared before the Justice Select Committee.

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SL65_pp14-17_observers_print 14/10/2013 09:49


The right to protest is a fundamental part of ademocratic society. However, in the police’semerging tactic of engaging in mass arrests atpolitical demonstrations, we see a new assaulton protest, and therefore on the veryfoundations of our democracy. Just as badthough, is that not only have the police takento arresting protesters, but they are nowclearly expanding their assault on protest toinclude the arrest of legal observers.

At the anti-fascist protest in TowerHamlets on 7th September 2013, the HaldaneSociety, along with Green and Black Cross(GBC) and the Legal Defence and MonitoringGroup (LDMG), sent a combined team of 14 legal observers. The legal observers hadthe role of monitoring the policing of theprotest, gathering evidence on the conduct ofthe police, and distributing legal advice toprotesters in the form of ‘bust cards’containing a summary of protesters’ rightsand useful legal contacts. Legal observers arealways independent from the protest, and aremarked out as such by their orange high-visvests which have ‘Legal Observer’ printedclearly on them.

The police imposed conditions on thelength and location of the anti-fascist protestunder section 14 of the Public Order Act 1986(POA). This provision allows a senior policeofficer to impose conditions on a publicassembly if the officer reasonably believes thatcertain circumstances apply. A near-identicalprovision applies to processions, undersection 12 POA. On this occasion, thesupposed circumstance invoked was that thedemonstration ‘may result in serious publicdisorder, serious damage to property or

serious disruption to the life of thecommunity’. The conditions imposed limitedthe duration and location of the protest.

It is an offence for a person taking part in apublic assembly to knowingly breach theconditions set down under section 14 POA.Importantly, on this occasion, the police tookalmost no steps to inform people of theconditions. There is little doubt that the vastmajority of the demonstrators present werecompletely unaware of the conditions, andtherefore it would be impossible for them toknowingly breach them.

Around the time that the fascists wereapproaching Tower Hamlets, part of thecounter-demonstration moved from theoriginal site of the protest. Hundreds of thoseinvolved in this part of the protest wererounded up by police officers and confined totwo small kettles. Police officers, including themost senior officers at the scene, seemedconfused as to the reason for the kettles, beingunable to provide coherent or consistent legaljustifications for them when asked.

Despite assurances that those kettledwould be released later in the day, by mid-afternoon the police began an operationwhich saw the arrest of everyone detained inthe kettles: almost 300 people in total. Thearrests were almost all made for allegedbreach of the conditions placed on theprotest. At one of the kettles five legalobservers remained present throughout theduration of the kettle to monitor the arrestsand provide support to arrestees. They werethe final five people arrested. At both kettles,those legal observers not detained also had tocontend with constant threats of arrest on

spurious accusations of obstructing policeofficers in the execution of their duty.

But this was not the first time the policehad acted in this way. At a previous anti-fascist protest on 1st June 2013 police hadmade 58 arrests – again for breachingconditions of which protesters were clearlyunaware. At that protest, police furthercompelled legal observers to remove theirhigh-vis jackets and leave the demonstration.Arrests of legal observers have also takenplace at other high profile events, including atthe arrest of 182 Critical Mass cyclists duringthe 2012 Olympics Opening Ceremony.

At all of these protests the combinedtactics of mass arrests and arrests of legalobservers have had a chilling effect on protest.

The police do not embark on mass arrestsin order to obtain convictions against all ofthose present. They are fully aware that almosteveryone arrested for knowingly breachingconditions on the protest will be acquitted,given the difficulty of proving knowledge ofthe conditions. Far more troublingmotivations underlie this tactic. First, massarrests are used as an intelligence gatheringexercise: being arrested, even if no convictionresults, means the taking of personal detailsand biometric data. Secondly, they preventpeople being able to exercise their right toprotest when at a demonstration, as masskettling and arrest effectively brings protest toan end. Thirdly, when people are releasedfrom custody on police bail, bail conditionsare often imposed forbidding the individualarrestee from further participating in protest.For instance, on 7th September 2013, thosebailed to return at a later date found >>>

Stephen Knight on the new police arrest tactic to include legal observers

New threat to theright to protest

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themselves with conditions prohibitingthem from participating in protests within theM25 at which the British National Party,English Defence League and English VolunteerForce were present, thereby effectivelyremoving from a large number of anti-fasciststheir ability to participate in politicalexpression. Fourthly, and most importantly,those arrested are less likely to attend futureprotests if they know they may face the sametreatment again, and others are less likely toattend at all if they know there is a risk of massarrests taking place.

The tactic of arresting legal observers, whilenot having a direct effect on as many people, isalso worrying. By arresting legal observers, thepolice seek to remove independent observers inorder to allow themselves to act with impunity.

Whereas the most high profile mass arrestsand arrests of legal observers have beenundertaken by the Metropolitan Police, thisapproach has also been used elsewhere, forexample at the anti-fracking protests atBalcombe this summer. Clearly, the growingand consistent use of mass arrests at politicaldemonstrations is part of a wider approach bythe police of cracking down on protest. These

are not isolated incidents, but a determinedstrategy to undermine political dissent bydissuading people from attending protests, andpreventing effective monitoring of the police.

As well as the chilling effect on protest, it isstrongly arguable that the arrest of legalobservers for breaching conditions placed onprotests is itself unlawful. Legal observersclearly do not ‘take part in’ protests – afundamental part of the offences under thePOA – but instead are present to observe them.It is clear that senior officers are aware of thearrest of legal observers, and may have directly

ordered their arrests. The constant visibility oflegal observers at mass protests, and theirinteractions with them, cannot have left anydoubt in these senior officers’ minds that legalobservers are not protesters. It should thereforebe obvious to the police that independent legalobservers are not capable of being subject toconditions under sections 12 and 14 POA.Further, the recent dicta of Lord Justice Mosesin Mengesha v Commissioner of Police of theMetropolis [2013] EWHC 1695 (Admin)indicates that the courts are alive to theindependence of legal observers, and areapproving of their role.

Those legal observers recently arrested arecurrently consulting their lawyers as to the nextsteps they should take. Given the growing tacticof threatening legal observers, it is conceivablethat it may become necessary to bring a case tocourt in order to establish once and for all theirindependence from the protests they attend. Itwould be unfortunate if a legal challenge wereto be the only way of containing this new threatto the right to protest.

Stephen Knight is an Executive Committeemember of the Haldane Society

>>>

On 7th September 2013, around 300 anti-fascist demonstrators were arrested in EastLondon. The arrestees were reportedly kettledby police for several hours before beingarrested en masse for breaching restrictionsimposed on the demonstration under thePublic Order Act 1986. This shocking crack-down by the Metropolitan Police, on what hadreportedly been a peaceful demonstration, isnothing new, particularly in recent years whereGovernment attacks on every aspect of publicservices have increasingly been met withprotests and dissent. This in turn has been metwith repression from authorities, such as thepolice service, who are keen to dissuade similarprotests in the future. The more extreme andoppressive tactics adopted by police in times ofausterity makes the High Court’s recentdecision in the case of Mengesha vCommissioner of Police of the Metropolis animportant victory in defence of the right toprotest.

The case arose during the trade unionmarch in central London on 30th November2011. Legal observers from the HaldaneSociety had attended to monitor the policing ofthe demonstration. At around 15:00, a groupof demonstrators attempted to occupy theheadquarters of Xstrata mining company onPanton Street. Police responded by setting up acontainment and kettling about 150 people,including a number of legal observers. Thegroup was contained for about two hours

before the detainees were released one at atime. Upon release, each detainee was filmedby a police officer and required to provide theirnames and addresses and submit to a search.Those who refused were not allowed to leaveand were pushed back into the containment.

The officers on the ground on 30thNovember 2011 offered little or no legaljustification for their actions at the time. Someof the officers claimed to be relying on a powerunder the Police Reform Act which allowsofficers to require a person to give their nameand address if they believe that person has beenacting in an anti-social manner. However, thatlegislation was clearly not intended to providesuch a blanket power as the police werepurporting to exercise on that day – a factsubsequently recognised by the MetropolitanPolice’s legal team as they did not rely on it atthe High Court.

The tactics were, however, deeply troubling.There are obvious privacy concerns with whatwas effectively large-scale, arbitrarysurveillance. No attempt was made to establishwhether particular individuals may haveactually committed any crimes. Everyone wastreated as a suspect merely because of theirpresence. Everyone’s details were taken, theinformation no doubt destined for one of theMetropolitan Police’s secretive databases.

Further, the conduct seemed to bedeliberately intimidating. Many of thedemonstrators present were young people,

Michael Gooldand Emily Elliott report onan important victory in the High Court againstthe Metropolitan police and its kettling actions

If you were arrested on 7thSeptember, or could provideany useful evidence to help inpeople’s defence, email GBCon [email protected] you would like to get involvedwith legal observing with theHaldane Society, [email protected]



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perhaps on one of their first protests. Each hadbeen kettled for hours before being funnelledthrough police lines to be held with their backagainst a wall and a video camera pointedinches from their faces.

One of the detainees was SusannahMengesha who had attended thedemonstration as a legal observer with theHaldane Society. Represented by Kat Craig(Haldane Vice-Chair), then of Christian Khansolicitors, Ms Mengesha initiated judicialreview proceedings against the MetropolitanPolice arguing that it was unlawful for them torequire detainees to provide their personaldetails as the ‘price of being permitted to leave’.

In the Metropolitan Police’s initial responseto the claim, they maintained that the filmingand questioning was ‘part and parcel of thecontainment’, containment itself having beendeclared lawful by the European Court ofHuman Rights in Austin v UK. They evenargued that the demonstrators had benefittedas it had prevented dragging the containmentout longer in order to identify actual offendersin the crowd. However, by the time of thehearing before the High Court on 2nd May2013, the Metropolitan Police had concededthat it was in fact unlawful to require thedetainees to provide their details. Lord JusticeMoses referred to this prior argument, made bythe Commissioner, as a ‘significantmisapprehension as to the lawful scope of hispowers’, noting that Austin v UK had foundcontainment to be only permitted where abreach of the peace is taking place or isreasonably thought to be imminent. Thismethod of last resort is not permissible for anyother reason, such as ensuring identification ofall those in the containment.

Accepting that there was no legal power torequire the detainees to provide their details,

the Metropolitan Police instead tried to arguethat in fact everyone had given their detailsvoluntarily. The Court rightly gave thatcontention extremely short shrift and rejectedit early on in the hearing. It was noted that oneonly needed to view the video of Ms Mengeshaproviding her details to see that it was notbeing done voluntarily. Further, theMetropolitan Police’s initial response, whichtried to justify obtaining personal details as anecessary part of the containment itself,seemed to accept that it had been arequirement and not a request.

The hearing also touched upon whether aconstable is acting unlawfully when he requestsa person to stop and identify themselves incircumstances where it appears that anobligatory demand is being made of them andthey have no alternative but to comply. Such acircumstance appears to apply here – thedemonstrators and legal observers werelawfully contained and thereafter, lawfullysearched. In between leaving the containmentand the search, their details were taken. It wasnoted by Moses LJ that this gave an impressionthat the details were lawfully required.Unfortunately however, he stated in hisjudgment that, as important as this issue is, thiscase did not require it to be resolved.

With the Metropolitan Police havingnothing else to hide behind, the Court grantedMs Mengesha’s application in a judgmenthanded down on 18th June 2013. Thejudgment praised Ms Mengesha’s conduct inthe proceedings with these closing words:‘With the same sense of responsibility she hasdemonstrated throughout her conduct as alegal observer, the claimant does not seek anyform of just satisfaction other than thisvindication of her claim’.

This decision is important for three reasons.

Firstly, the fact that demonstrators will nolonger be subjected to these arbitrary andintimidating tactics is a good thing and, as Istated above, an important victory for theright to protest.

Secondly, the case clearly illustrates thestrategies of the police, and the MetropolitanPolice in particular, towards protests andpublic order situations. What stands out is thesheer brazenness of the police in assumingthese powers and the lack of regard for anylegal constraints. The fact that, when theproceedings actually got to court, they did noteven try to argue a legal justification showsjust how little consideration they had given tothe lawfulness of their actions at the time.This astonishing arrogance is no doubt partlydue to the support they have always receivedfrom the courts and legislature in validatingtheir public order powers, the vindication of‘kettling’ being one recent example.

Finally, this case demonstrates theimportance of judicial review itself. Theshameless arrogation of such powers by thepolice shows how crucial it is to have arobust, and accessible, means of holding theExecutive to account. It is therefore essentialthat we fight against the proposed changes tolegal aid funding for judicial review whichwill deny funding in cases deemed‘borderline’ and cases that are resolved priorto the permission stage. Such changes willmean judicial review is simply not afinancially viable practice for many firms,resulting in many cases, like Ms Mengesha’s,not being brought in future.

Michael Goold is a pupil barrister and co-secretary of The Haldane Society and EmilyElliott is a member of the Society’s ExecutiveCommittee

Mass arrests alsotook place thissummer of anti-fracking protestersin Balcombe inwest Sussex.



Miscarriages of justice appear to have fallenout of fashion. While the early 1990s saw aseries of cases that shook the criminal justicesystem to its core, today overturnedconvictions still make occasional headlines butrarely linger in the media for long. The generalassumption appears to be that things just arenot like they were in the bad days of the 1970sand 1980s, when ‘fit ups’ and forcedconfessions were a common problem. Therehave undoubtedly been substantialimprovements since cases such as theGuildford Four and Birmingham Six came tothe public’s attention; however, miscarriages ofjustice take many forms, and the recent case ofSam Hallam shows that the potential for themto happen in the present remains very real.While reforms have helped to reduce – but byno means eliminate – the number of wrongfulconvictions since their enactment, olderpotential miscarriages of justice remain. Thoseunfortunate enough to have spent years orsometimes decades behind bars for crimes theydid not commit are still waiting for justice.

The case of Eddie Gilfoyle is one that againraises the grave spectre of a serious miscarriageof justice. The circumstances of the case areextremely tragic and made even more so by thefact that an innocent man appears to havespent 17 years in prison for a murder he did notcommit. In 1992 Eddie Gilfoyle, a FalklandsWar veteran, was working as a nurse in hislocal hospital. On 4th June 1992, Eddie’s wifePaula Gilfoyle was found hanged in the garageof their home in Upton, Wirral. She was eightand a half months pregnant. The cause ofdeath was asphyxiation caused by hanging. A suicide note was found at the house writtenby Paula, and the death bore the hallmarks of atragic suicide. Yet four days later Eddie wasarrested; and, in the summer of 1993, he wasconvicted of the murder of his wife by a jury atLiverpool Crown Court. Eddie subsequentlyspent 17 years in prison before being releasedon parole in 2010, under strict licenseconditions that have been ordered to remain inplace for the rest of his life.

How the case went from a tragic suicide toEddie’s conviction for murder is a story sofraught with problems that his supporters havebattled tirelessly for 19 years to expose it asuntenable. Since his conviction, a steady streamof further material and revised analysis of theevidence have thrown much doubt over theconviction, and, as recently as 2010, importantnew evidence has been disclosed to Eddie’slawyers for the first time.

To return to the immediate aftermath ofPaula’s death, the Coroner’s Officer, PC Jones,told the Senior Scenes of Crimes Officer whenhe arrived at the scene, that ‘there’s nothing foryou here’. PC Jones told the Senior Scenes ofCrimes Officer that upon arrival at the househe had observed the body in the garage andconcluded it was a straightforward case ofsuicide, there being nothing to suggest anysuspicious circumstances. By the time theSenior Scenes of Crimes Officer had arrived theCoroner’s Officer had already cut down thebody. Astonishingly, however, he had not takenany photos of the body in situ before doing so.This was to be the first of a substantial numberof errors committed at the scene of Paula’sdeath. The fact that the Coroner’s Officer wasfirst on the scene, and was allowed suchunfettered access, may appear surprising even

to those with little knowledge of how deathsare investigated by the authorities. Theeffective preservation and analysis of a crimescene is largely dependant on properly trainedofficers getting to it first, and ensuring thatvital evidence is not destroyed. Naturally thistask has traditionally been entrusted to traineddetectives, experienced in such matters. Therole of the Coroner’s Officer is a far morefunctional one, essentially acting on behalf ofthe Coroner to officially confirm a death andrecord the circumstances. Therefore, where adeath is reported, whether suspicious or not,the police are required to attend the scene andobtain primary access to the body in order to,if necessary, rule out suspicious circumstances.Yet in the Wirral, at the time of Paula’s death,the police had in place a policy unique to thatdivision of the Merseyside Police Force:allowing the Coroner’s Officer to inspect thescene first. Eddie’s solicitor only learned of theexistence of this policy in 2012. The policywas subsequently changed, butembarrassment at its prior existence perhapspartly explains the caginess by the MerseysidePolice Force in the years since Eddie’sconviction.

The mishandling of the scene is a crucialelement of the problems with Eddie’s case.What was left in the aftermath of such apoorly handled initial investigation was a lackof vital evidence and a space in which extremehypotheses were allowed to develop into a fullblown prosecution for murder against Eddie.Two separate internal investigations into thehandling of the initial investigation resulted instrong criticism of the way the case was dealtwith and disciplinary action against a numberof officers – although it must be noted that the

complaints against the officers were not provedat disciplinary proceedings.

Frustratingly for those representing Eddie,details of these internal investigations wereonly provided to them in piecemeal fashionover the course of the trial and two subsequentappeals. Indeed, the full accompanying notesto the Humphreys Report,which was the firstinternal investigation, were not disclosed untilJune 2012, while parts of the second internalinquiry, the Gooch Report, remain redacted tothis day. This drip of disclosure hassignificantly hampered Eddie’s attempts toclear his name; and, as a result, the Court ofAppeal has never properly considered the effectof the failures at the scene.

The question still needs to be asked: whydid Paula’s apparent suicide become a murderinvestigation? There is no definitive answer,but a number of factors drove a feeling ofdisbelief to suspicion on the part of theauthorities. The fact that Paula was eight and ahalf months pregnant proved to be the catalystfor a change of thinking in those investigating.At the time of her death research was limited,but there was a common assumption thatwomen close to giving birth simply would notwant to commit suicide. Pre-natal suicide isrelatively rare, but subsequent research hasshown that it is by no means as rare as itappears to have been thought at the timePaula’s death was investigated. Since Eddie’sconviction a study in 2003 by The BritishJournal of Psychiatry has suggested that suicideis a leading cause of maternal death. Thisapplies primarily to the period after givingbirth but the increased risk of pre-natal suicidewhere underlying mental health issues may bepresent was highlighted. Additionally, during

EddieGilfoyle:miscarriageof justice

Jacob Bindmanonthe tragic suicide whichinexplicably became amurder investigation

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Eddie’s second appeal, which took place in2000, a psychiatrist with experience of suicidesin pregnancy (an expertise that was notavailable during his first trial) gave evidencethat Paula was in his view ‘phobic of labour’.Unfortunately for Eddie the Court of Appealrefused to receive this evidence.

In addition to any subjective incredulity thatthe police may have felt, as officers spoke tofamily and friends in the days that followedPaula’s death, an anecdotal picture began toemerge of a woman with a ‘bubbly’ personalitywho was very much looking forward tobecoming a mother. It was these testimoniesthat began to change the attitude of thoseinvestigating towards Eddie. The focuschanged, Eddie was arrested and interviewedat length on three occasions before beingreleased without charge. At the time of his firstarrest on 8th June 1992, the police carried outan extensive search of the house including thegarage and found another, partially completednote from Paula. Using Electro StaticDocument Analysis a further partially draftedsuicide note was found in a notebook. Thesefinds would fuel the officers’ new hypothesisthat Eddie had dictated suicide notes to Paulaunder the false pretence that he was doing acourse on suicide at work, a theory suggestedby two of Paula’s work colleagues. It was thistheory that came to be the driving force behindthe police’s pursuit of Eddie.

In a further search on 23rd June 1992 anofficer recovered what came to be known asthe ‘practice rope’ from a drawer in the garage.This appeared to be a rope in a noose-likeformation that bizarrely had not been seenduring the previous search of the garage. Anofficer who was present for the first search later

told an internal investigation that he wasadamant the rope was not there the first time,and that he had looked in the exact draw inwhich it was found.

One can speculate that the intense shock to asmall and closely knit community, and thedisbelief of the people closest to Paula about hermotivation to end her own life, led to the singleminded pursuit of an alternative theory tosuicide. Despite the inadequacy of the initialinvestigation, this new theory received somesupport from what would later prove to behighly questionable forensic evidence. Oneexample of this is that the jury were shown avideo of a pregnant female police officerstanding on a step-ladder, trying unsuccessfullyto tie a rope in a knot around the beam in thegarage where Paula had been found. The ropeshe used was limp and floppy where as theoriginal was stiff and thus likely to have beenable to be manoeuvred more easily.Unfortunately the original ligature wasdestroyed after the post-mortem meaning thatthis piece of vital evidence was not available forexamination. However, the prosecutionpathologist gave evidence that based on hisexperiments Paula could not possibly havecommitted suicide. His conclusion was thatPaula must have been a willing victim as therewas no bruising signifying a struggle. Two tinyscratches were found on her neck, which thepathologist attributed to a struggle, presumablyas the noose tightened around her neck.

However, subsequent evidence fromrenowned pathologist, Dr Bernard Knight,suggested that the scratches most likely camefrom the first post mortem, at which no markswere recorded. Another pathologist laterprovided evidence that he had seen scratchmarks in suicides and that they were thereforenot necessarily indicative of a struggle. Aboveall, support was given at trial for theprosecution’s extraordinary theory that Paulahad been tricked into placing a noose aroundher own neck and then Eddie had pulled herlegs from underneath her. Shockingly, not oneof the witnesses were experts in knots, norwere any in a position to give the seeminglyconclusive opinions they gave.

By the time of the second appeal, the Crownhad accepted many of the flaws in the forensicevidence but instead relied on an alternativeexplanation: that Paula was sitting on top ofthe step-ladder and was pushed off by Eddie.Again, this was strongly refuted by ProfessorKnight, but by this stage it appeared that thatthe Court of Appeal had shifted the focus of thecase to other parts of the evidence againstEddie, finding that the non pathologicalevidence of Paula’s death was the key to theconviction; and, somewhat surprisingly, that italways had been.

The ‘non pathological evidence’ in the caserelates largely to Paula’s alleged state of mindprior to her death. Professor David Canter, aneminent psychologist, had provided an expertreport to police prior to the trial, in which heconcluded that Paula had not killed herself.Although this evidence was deemedinadmissible at the trial, it clearly influencedthe police and prosecution’s thinking. Yetfollowing further disclosure of material by theCriminal Cases Review Commission that hehad not been shown by the police beforewriting his report, Professor Canter reversedhis view and concluded that all the evidence

suggested that Paula had killed herself.Unfortunately for Eddie, Professor Canter wasnot allowed to give evidence at Eddie’s secondappeal in 2000. This comes on top of theincreased understanding of suicide inpregnancy that has become apparent in theyears since Paula’s death. Despite the questionmarks that had emerged over the prosecutioncase, the Court of Appeal in 1995 and 2000placed great significance on the fact that Paulaappeared to be in a happy state of mind, andthat consequently suicide would have beengreatly out of character. However, in 2010,Eddie’s solicitor was allowed access to theunused material in the case, which revealed ametal box containing a copy of Paula’s diarynever before seen by the defence. The diaryrevealed that Paula had attempted suicide as ateenager after a row with her then boyfriend.That same boyfriend had subsequently gone onto murder a young woman, and hisrelationship with Paula had continued for asubstantial period while he was serving a lifesentence. Along with the diary, Paula had kepta suicide note from a former fiancé whom shehad been with when she first met Eddie, whichcontained phrasing which was similar to herown suicide note. Clearly this is importantevidence that would, at the very least, havetested the unerring belief of all concerned thatPaula showed no glimpses of depression orunhappiness. Such evidence forms a part ofEddie’s latest attempt to have the CCRC referthe case back to the Court of Appeal for a thirdtime.

These are just some of the problems withEddie’s conviction that have led to the thirdattempt to have it quashed. Allied to theseconcerns are a plethora of significant problemswith the case, such as the fact that Eddie didnot give evidence at trial due to his mental statefollowing the death of his wife, and concernsabout his ability to engage with the trial after itemerged he had not been given the correctmedication during proceedings. This article isan attempt to give some background to thecase, and to highlight some of the problemsthat have led many to believe that Eddie shouldnot have spent 17 years in prison. A campaignfor the quashing of his conviction is buildingup steam once again. The Eddie GilfoyleCampaign recently released a 50 page bookletwhich provides details of the history of thecase, and the evidence involved, in anaccessible format. Meanwhile Eddie’s solicitor,Matt Foot, has submitted substantialrepresentations and evidence to the CriminalCases Review Commission to ask that theyconsider referring his case back to the Court ofAppeal once again, in light of the freshevidence and new analysis of old evidence thathas emerged.

The campaign has drawn a wide spectrumof support from many, including Lord Hunt ofthe Wirral, former chair of the Bar Council,Desmond Browne QC, and numerous lawyers,campaigners and members of the public. TheTimes has also reported extensively on thedoubts that surround the case and expressedgrave concern about the safety of theconviction.

For more information visit www.eddiegilfoyle.co.uk.

Jacob Bindman is a barrister at 1 Mitre CourtBuildings

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The vision of the constitution of KenyaThe making of the Kenyan 2010 constitution is a story ofordinary citizens striving and succeeding to overthrow theexisting social order and to define a new social, economic,and political order for themselves. Some have spoken of thenew constitution as representing a second independence.

There is no doubt that the constitution is a radicaldocument that looks to a future that is very different from ourpast, in its values and practices. It seeks to make afundamental change from the 68 years of colonialism and 50 years of independence. In their wisdom the Kenyan peopledecreed that past to reflect a status quo that was unacceptableand unsustainable through: provisions on thedemocratisation and decentralisation of the Executive;devolution; the strengthening of institutions; the creation ofinstitutions that provide democratic checks and balances;decreeing values in the public service; giving ultimateauthority to the people of Kenya that they delegate toinstitutions that must serve them and not enslave them;prioritising integrity in public leadership; a modern Bill ofRights that provides for economic, social and cultural rightsto reinforce the political and civil rights giving the wholegamut of human rights the power to radically mitigate thestatus quo and signal the creation of a human rights state inKenya; mitigating the status quo in land that has been thecountry’s achilles heel in its economic and democraticdevelopment; among others reflect the will and deepcommitment of Kenyans for fundamental and radicalchanges through the implementation of the constitution. The Kenyan people chose the route of transformation andnot the one of revolution. If revolution is envisaged then itwill be organised around the implementation of theconstitution.

The vision of the new judiciary under the constitution

The Old JudiciaryLet me reflect briefly on the nature of the judiciary of whichall Kenyans are a part. We are the heirs, albeit by what youmight think of as a bastard route, to a tradition that gives avery powerful place to the judiciary: under the common lawsystem. It is a flawed inheritance because it came to us via thecolonial route. The common law as applied in Kenya, at leastto the indigenous inhabitants, as in the colonies generally, wasshorn of many of its positive elements. During the colonial erawe were not allowed freedom of speech, assembly orassociation. Our judiciary was not independent, but wasessentially a civil service, beholden to the colonialadministration and very rarely minded to stand up to it.Indeed, administrative officers took many judicial decisions.There was no separation of powers. And institutions of thepeople that they trusted were undermined or even destroyed.Indeed the common law was a tool of imperialism. PatrickMcAuslan, upon whose book with Yash Ghai most lawyersof Kenya cut their constitutional teeth, wrote satirically(plagiarising the late 19th century poet, Hilaire Beloc):‘Whatever happens, we have got the common law, and theyhave not’. We can recall the trial of Jomo Kenyatta: amasterful display of juristic theatre in which the apparentadherence to the rule of law substantively entrenched theillegitimate political system in power at the time. Colonialmindsets persisted, in the executive, the legislature and,unfortunately, even in the judiciary, even after independence.We continued to yearn for the rule of law.

By the rule of law, I do not mean the sort of mechanicaljurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court in

In 2010 Kenya created a newmodern constitution that replacedboth the 1969 Constitution and thepast Colonial Constitution in 1963.This was the culmination of almostfive decades of struggles that soughtto fundamentally transform thebackward economic, social,political, and cultural developmentsin the country.by Willy Mutunga

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independent Kenya to reach an apparently technically sounddecision that the election of a sitting president could not bechallenged because the losing opponent had not achieved thepragmatically impossible task of serving the relevant legaldocuments directly upon the sitting president. Again it wasthis purely mechanical jurisprudence that fuelled the decisionof a High Court that the former section 84 of theindependence constitution (that mandated the enforcement ofa bill of rights) rendered the entire bill of rights inoperativebecause the Chief Justice had not made rules on enforcementas he was obligated by the self-same constitution to do.

The New Judiciary, the New Rule of Law, the DecolonisingJurisprudenceIt is time for the judiciary of Kenya to rise to the occasion, andshake off the last traces of the colonial legacy. As I see it, thisinvolves a number of strands or approaches.

There must be no doubt in the minds of Kenyans, or of us,about our impartiality and integrity. No suspicion that wedefer to the executive, bend the law to suit our long termassociates or their clients, or would dream of accepting anysort of bribe.

Secondly, to be a judge has always been the pinnacle ofambition of any lawyer who actually takes pride in her work.So it should be possible to take for granted that a judge is ofhigh intellectual calibre, with mastery of legal principles andtechniques, hard working, and committed to applying thesequalities in the task of judging.

Thirdly, we in Kenya have been the inheritors of not onlythe common law but of english court procedures. Whileenglish court procedures have over time been made simpler,some archaic terminology has been done away, with casemanagement having been firmer, and alternative dispute

resolution has been much more used, in Kenya we still havecases that are heard in driblets. We need radical changes injudicial policies, judicial culture, and an end of judicialimpunity and laziness.

Fourthly, I see in the constitution, especially Article 159(2), a mandate for us to carry out reforms tailored to Kenya’sneeds, and aimed at doing away with these colonial and neo-colonial inefficiencies and injustices. It is perhaps remarkable,and indeed, a paradox that, although disappointment withthe judiciary was at least as great among the common Kenyanas frustration with politicians, it is also true that they chose toplace their faith in the institution of the new judiciary inimplementing the new constitution.

Fifthly, what I want to emphasise here is the need todevelop new, not only highly competent but also indigenousjurisprudence. I link this last adjective to the constitution’svalue of patriotism. I conceive that it requires the judge todevelop the law in a way that responds to the needs of thepeople, and to the national interest. I call this robust (rich),patriotic, indigenous, and patriotic jurisprudence as decreedby the constitution and also by the Supreme Court Act ofKenya. Above all, it requires a commitment to theconstitution and to the achievement of its values and vision.

Sixthly, few people now maintain the myth that judges inthe common law system do not make law. Our constitutiontears away the last shreds of that perhaps comforting illusion,especially in the context of human rights, when it providesunder Article 20 (2) (a) that ‘a court shall develop the law tothe extent that it does not give effect to a right or fundamentalfreedom’. As I read it, it means that if an existing rule ofcommon law does not adequately comply with the Bill ofRights, the court has the obligation to develop that rule sothat it does comply. And it is matched (in Article 20(3)(b), >>>

Picture: Je

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ortdigital.co.uk

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which follows) by an obligation to interpret statute in a waythat also complies with the bill of rights. This is an obligation,not to rewrite a statute, but to read it in a way that is bill ofrights compliant if at all possible. I would urge that it is notjust the bill of rights that should be used as the touchstone oflegal appropriateness but also the constitution moregenerally. The constitution says no less.

Elements of Robust (rich), Indigenous, Patriotic, and ProgressiveJurisprudenceThe elements of this decolonising jurisprudence wouldinclude the six strands and approaches discussed above,would shun mechanical jurisprudence, but would also reflectthe following ingredients:

The decolonising jurisprudence of social justice does notmean insular and inward looking. The values of the KenyanConstitution are anything but. We can and should learn fromother countries. My concern, when I emphasise ‘indigenous’is simply that we should grow our jurisprudence out of ourown needs, without unthinking deference to that of otherjurisdictions and courts, however, distinguished. And, indeed,the quality of our progressive jurisprudence should be aproduct for export to these distinguished jurisdictions. Afterall our constitution is the most progressive in the world.

While developing and growing our jurisprudencecommonwealth and international jurisprudence will continueto be pivotal, the Judiciary will have to avoid mechanisticapproaches to precedent. It will not be appropriate to reachout and pick a precedent from India one day, Australiaanother, South Africa another, the US another, just becausethey seem to suit the immediate purpose. Each of thoseprecedents will have its place in the jurisprudence of its owncountry. A negative side of a mechanistic approach toprecedent is that it tends to produce a mind-set: ‘If we havenot done it before, why should we do it now?’ TheConstitution does not countenance that approach.

Our jurisprudence must seek to reinforce those strengthsin foreign jurisprudence that fit our needs while at the sametime rescuing the weaknesses of such jurisprudence so thatours is ultimately enriched as decreed by the Supreme CourtAct.

The task of growing such jurisprudence involves apartnership: between other judiciaries, the profession andscholars. I hope that the bar, too, will respond to thechallenge. Standards of advocacy need to improve, the overallquality of written and oral submissions needs to improve. We have so far found the jurisdictions of India, South Africaand Colombia to be great partners as our respectiveconstitutions are similar in many respects. Besides,decolonising jurisprudence requires South-Southcollaboration and collective reflection.

We are trying to move away from excessively detailedwritten submissions. This makes sense only if the judges readthe written submissions in advance. And do so with a criticaleye, prepared to interrogate the arguments of counsel. Andprepared also to put forward alternative ideas. It is aquestionable practice to come up with ideas and authorities inthe privacy of judges’ chambers when writing a judgment, ifcounsel had no chance to put forward argument on thoseideas and authorities. The very purpose of writtensubmissions is to try to prevent that happening by enablingthe judge to be well prepared in advance. If the judge is wellprepared, he or she is in a much stronger position to criticisecounsel for not being prepared. In this way the bench can helpencourage higher standards of advocacy.

We are trying to make this task easier for you byenhancing the quality and quantity of legal materialsavailable to the bench by and appointing legal researchers. It will be a learning experience for judges as well as legalresearchers to work out how the cause of justice can best beserved by this innovation. We are confident that this offers anopportunity to make major strides in the quality of thejurisprudence in the courts of Kenya.

I want also to add that these major strides in the quality ofjurisprudence in our courts can be amplified if we improveour collegiality and ability to co-educate each other so that

the decisions coming out of our courts will reflect thecollective intellect of the judiciary distilled through thecommon law method as well as through regular discoursesand learning by judicial officers. To be a good judge mustinvolve continuous training and learning and regularinformal discourses among judges.

The Judiciary Training Institute (JTI) must become ourinstitution of higher learning, the nerve centre of ourprogressive jurisprudence. JTI will co-ordinate our academicnetworks, our networks with progressive jurisdictions, ourtraining by scholars and judges, starting with our own greatscholars and judges. In our training to breathe life into our

Pawa 254 (Power254) is a centre forradical artists inNairobi. WillyMutunga (picturedon the right, above)visited the centreand toured theexhibition.

>>>

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constitution our jurisprudence cannot be legal-centric; it mustplace a critical emphasis on multi-disciplinary approachesand expertise.

Now that law reporting is regular under the ableleadership of the National Council on Law Reporting, theSupreme Court has also established a program of researchingthe ‘lost jurisprudence’ during the years when reporting didnot exist. I am confident there will emerge gems and nuggetsof progressive jurisprudence from that search.

Let us hope that the community of scholars responds tothe challenge equally. The quality and quantity of Kenyanlegal literature is disappointing. We need high quality

commentary on the constitution, and on our laws. And weneed high quality commentary on our judgments. We mustnot be over-sensitive to criticism. No one learns anything ifthey are not criticised. There are some small shoots of revivalin legal writing. Let us hope they thrive and multiply.

Article 159(2)(e) says that the courts must protect andpromote the purposes and principles of the constitution. I have sought to establish such framework for purposiveinterpretation in two Supreme Court matters.

The constitution took a bold step and provides that ‘Thegeneral rules of international law shall form part of the law ofKenya’ and ‘Any treaty or convention ratified by Kenya shallform part of the law of Kenya under this Constitution’. ThusKenya seems to have become a monist state rather than adualist one.

The implications of this will have to be worked out overtime, as cases come before the courts. Even in the past,Kenyan judges have not ignored international law. They haveoften quoted the Bangalore Principles on DomesticApplication of International Human Rights Norms.

Now, however, the courts have greater freedom. Manyissues will have to be resolved. Indeed, we now have greatopportunity to be not only the users of international law, butalso its producers, developers and shapers.

In some ways our task is rather easier than that faced bysome other court systems struggling to establish the validityof their place in the constitutional scheme. The principle ofMarbury v Madison, that established the possibility ofjudicial review of legislation, and at the same time the keyplace of the courts in the upholding of the US Constitution, isenshrined in our constitution (Articles 23(3)(d) and165(3)(d)). So are the basic characteristics of the Indianpublic interest litigation (Articles 22(2) and 258(2)). Our pathhas been smoothed: we do not have to strive to establish ourrole as guarantor of the supremacy of the constitution, or ofthe rights of the downtrodden. We are indeed clearlymandated to fulfil these roles.

Let me again remind you that our constitution specificallymandates public interest litigation. Our appointment processis precisely designed to give us independence of the executiveand the legislature so that we can if necessary ‘force otherinstitutions of governance to do what they are supposed todo’. We can only pray that we have the moral stature, thelegal skills and the courage to do what we are directed to do.

Finally, Article 159 (2) of the constitution has restored‘traditional dispute resolution mechanisms’ withconstitutional limitations. We live in our country wherecourts are not the only forums for administration of justice.Traditional dispute resolution mechanisms keep theseinstitutions as free as possible from lawyers, ‘their law,’ andthe ‘law system of the capital.’ The development of the‘Without the Law’ jurisprudence will be a critical nugget inour progressive jurisprudence.

ConclusionProfessor Upendra Baxi wrote, of public interest litigation inIndia:

‘The Supreme Court of India is at long last becoming…theSupreme Court for Indians. For too long the apex court hadbecome “an arena of legal quibbling for men with longpurses”. Now increasingly, the court is being identified by theJustices as well as people as “the last resort of the oppressedand bewildered”.’

I hope that the courts of Kenya will truly be viewed as thecourts for all Kenyans, and the salvation of the Kenyanoppressed and bewildered. And, to return to where I reallybegan: I believe we shall only do this through the rigorous butcreative use of the basic values of our constitution, indeedthrough the judiciary’s becoming the embodiment of thosevalues, especially of patriotism, social justice and integrity.

Dr. Willy Mutunga is the Chief Justice of the Republic of Kenyaand the President of the Supreme Court of Kenya. He gave thisspeech to Judges and guests of the Kenyan Judiciary on theoccasion of launching the Judiciary Transformation Frameworkon 31st May 2012.

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SL65_pp24-25_talha-ahsan_print 14/10/2013 10:02 Page 27

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In May 2011 Chilean students began a series ofmass protests demanding a free and state-funded education system. Some 700 schoolswere occupied and daily street protests tookplace during that year. The student protestshave continued throughout 2012 and 2013.These protests have been the largest seen inChile since the end of the US Governmentbacked dictatorship of Augusto Pinochet in1990, which overthrew the democraticallyelected Government of Salvador Allende on11th September 1973, Chile’s 9/11. UnderPinochet and using State terrorism, a radicalprogramme of neoliberal policies, includingmass privatisation, was forced on thepopulation. Thousands were murdered tobring ‘free markets’ to Chile.

In 2011, the students’ initial demands forreform of the education system soon gave wayto a more comprehensive critique of theneoliberal economic model, still largely in placemore than 23 years since formal democracy

returned. A key student demand has been thereform of the undemocratic 1980 constitution,‘approved’ under the dictatorship and still inplace today. The constitution has been a keyinstrument in ensuring the perpetuation of theneoliberal model.

For the upcoming documentary I amproducing on the student protest movement,the film’s director Roberto Navarrete travelledto Chile in 2011 and 2012 to speak to the highprofile student leaders such as Camila Vallejo(The Guardian newspaper’s person of the yearin 2011) and Giorgio Jackson, but also toordinary students, to understand why theirprotests are causing such an effect in Chile andinspiring others in Chile and beyond.

Since 2011, a major source of debate withinthe student movement has centred on how torelate to the formal political process with onesection of the student movement opting not toparticipate in elections and instead make itsdemands on Chile’s political class from the

Ballots or banners?Film maker PabloNavarrete looks athow student protestsin Chile have takenon a new politicaldimension

SL65_pp26-27_chile_print 14/10/2013 10:02


streets. Another section that includes CamilaVallejo and Giorgio Jackson have now decidedto participate in elections with the aim ofcreating structural change from within thepolitical system. In the run up to the 17thNovember 2013 presidential elections, whichare likely to result in Chile’s rightwing coalitionlosing power and a return to the presidency offormer socialist party leader Michelle Bachelet,former student leaders such as Camila Vallejoand Giorgio Jackson are now running forCongress in elections scheduled for the sameday as the presidential one. Below are extractsof interviews carried out by Roberto Navarretewith Camila Vallejo and Giorgio Jackson inDecember 2011, sections of which are includedin our upcoming documentary. Roberto Navarrete : What would you sayhave been the strengths and weaknessesof the student movement in 2011?Camila Vallejo: We feel that the mass studentmobilisations that took place throughout 2011

“The movement has made a cultural change andChilean society is now thinking about a re-articulation of our organisations and our work,making them more stable and permanent.”

served to awaken consciousness, and signalleda new horizon for Chilean society, in thedirection of making profound changes to ourcountry. In terms of concrete demands, thestudent movement, the social movement foreducation, hasn’t achieved very much in termsof new Government legislation, in the sensethat the vast majority of the laws that are beingdebated by our politicians do not faithfullyrepresent our demands for free, high qualitypublic education for all so that the access andfunctioning of education can be democratised.However we believe that there have been manyadvances in subjective terms. Today, theChilean population believes that a differentfuture is possible in Chile. They believe thatthanks to organising and collective action wecan make changes and thus put the weaknessesof political institutions that were created todominate and exclude the great majority intosharper focus.

Therefore, Chilean society, which once hadgreat respect for its institutions, today nolonger believes in them and those rulers orthose who hold political power cannot findprotection behind these institutions becausethey are totally discredited. The abuse ofpower, mismanagement of information,misrepresentation of information by the media,the abuse of economic power througheconomic practices that have no type ofregulation in the private sector, all these thingshave become evident and people now findthem intolerable. The discontent that had beenbrewing in society exploded in 2011. From this discontent, civil society has put forwardnew proposals. We are not simply a group ofindignant people but a movement that had theability to propose an alternative horizon forconstruction. I think that’s the summary Iwould make of 2011. It’s been a year in whichwe could not make much in terms of concreteadvances given the moorings of politicalinstitutions inherited from the dictatorship.Nevertheless we have made advances on asubjective level, the movement has made acultural change and Chilean society is nowthinking about a re-articulation of ourorganisations and our organisational work,making them more stable and permanent.Through this we plan to strengthen ourproposals for a different society, a differentdevelopment model.RN: As a young person, what would yousay it is that has motivated you to getinvolved in the protests?Giorgio Jackson: The motivation always liespartly in the personal stories that aregenerated in the collective. In my particularcase, it came through a lawyer, FernandoAtria, a well known academic in Chile whowrites a newspaper column entitled the ‘Theanguish of the privileged.’ I studied in a privateschool.

I am one of the privileged few, although I donot consider that I have much money to spare.In fact I pay for my studies with a privateloan. Nevertheless, I am aware that mychances of being in a good school and ofhaving a good career come at the expense ofthe discrimination of others. And I feel atremendous sense of injustice about that. Ithink now there are many of us who have thissort of anxiety, guilt, for being privileged atthe expense of the discrimination of others,and those that are discriminated against feelhelpless and are very angry. So the time hascome where both groups have realised,without us looking at each other with hate,that now is the time to pull in the samedirection and the synergy this has producedhas been extremely powerful.RN: How would you sum up what thestudent movement achieved in 2011?Giorgio Jackson: That question is alwayscomplicated because you have to separatethings between the quantitative, i.e., theconcrete achievements in public policy and thelike versus more qualitative things, things thatare perhaps somewhat intangible. I think interms of quantitative changes we did notachieve what we wanted. It is very difficult tomake these changes with a right-wingGovernment and the system of politicalrepresentation that exists today. The country’sinstitutions close the door to any change veryabruptly. But some things were achieved thatwere unthinkable, that confronted theGovernment’s agenda, that pushed theGovernment further than they wanted. It’strue that it never corresponded to the weightof the protests but these things always fall wellbelow expectations. On the other hand, theoptimistic part is that in qualitative terms weredefined what was possible; we stoppedthinking negotiating to obtain just a littlemore. This happened through work andpressure. So we’ve put aside the taboo andfears that existed in thinking of a differentmodel and delivered a clear and honestmessage to the public. The people empathisedwith this message because it was not aninvented one. The reproduction of inequalityand privilege exists in Chile and there is ageneration that says ‘no more’. The neoliberalmodel, the model of education as a consumergood has had 30 years to operate withoutrestrictions. And it hasn’t showed the benefitsit promised. So now it’s time that us Chileanschange this model.

Pablo Navarrete is a documentary film makerand editor of the website www.alborada.net.For more information about the forthcomingdocumentary ‘Chile’s Student Uprising’,including how you can contribute to itsproduction visit: www.alborada.net/alboradafilms.

SL65_pp26-27_chile_print 14/10/2013 10:02


Immigration is a deadly business. On 19th and20th August 2013 the Permanent People’sTribunal convened in Mexico City for apreliminary hearing on the themes ofmigration, refugees and forced displacementsof Central Americans and Mexicans in transitto the United States. In the June 2013 editionof Socialist Lawyer,Camilo Pérez-Bustillowrote an article detailing the background tothe tribunal.

The tribunal hearing marked the three yearanniversary of the massacre of 72 migrants inSan Fernando, Tamaulipas in the North Eastof Mexico. On 22nd August 2010 anEcuadorian migrant was able to escape from aranch where he was being held hostagetogether with other immigrants primarily ofCentral and South American origin. He wasable to report the incident to the authorities.While several members of the Zetas Cartelhave been arrested in relation to the massacre,many questions remain unanswered. TheTribunal was appropriately opened with thereading of the names of the 72 migrants,several of whom to this day remainunidentified.

The tribunal heard from two familymembers of victims of the massacre. The firstwitness was Angela from Guatemala. Herhusband, son, daughter, brother-in-law andthe daughter of her brother-in-law were

murdered in the massacre. She had seen newsof the massacre on TV and suspected theworst. She testified that she had received a callfrom a hostage taker demanding payment. Shewasn’t able to afford to make payment. Herfamily had emigrated for economic reasonsafter all. Shortly after she received several callsfrom the state authorities, each call advisingher that they believed to have found the corpseof a family member.

The second witness was Maria Gloria fromBrazil. She spoke of how her nephew hadchosen to emigrate to the US as an alternativeto a life of poverty, drugs and crime. MatoGrosso is a very poor region in western Brazil.Those who can, emigrate. Jean Charles deMenezes also came from that region. Thenews reached her family within days of themassacre however they had to wait twomonths before the body could be sent back toBrazil. For unknown reasons the body waserroneously sent to Honduras. When iteventually reached Brazil, Gloria and herfamily were advised not to open the coffin.Acting against that advice they opened it tofind that there were no human remains inside.

In addition to these two family witnesses,the Tribunal heard from various expertwitnesses, including a psychologist who visitsimmigrants in detention; General Gallardo, aretired army general who was imprisoned for

suggesting reform within the army to preventhuman rights violations; and Fathers Solalindeand Fray Tomas, priests who run migrantshelters and who dedicate their livelihoods todefending migrants. What was argued by allwitnesses was that the massacre of migrants atSan Fernando was not an isolated incident.The Tribunal also heard of clandestinecommunal graves in which the corpses of atleast 193 migrants were discovered in April2011 in the state of Tamaulipas.

Those who represented migrants’ rightsorganisations spoke of the extortion, torture,forced disappearances and deaths of migrants.It is publicly known in Mexico that the mostcommon form of transport to the US is on thefew freight trains which cross the country. Sodangerous is the journey that it is referred to asthe death train (tren de la muerte) or the steelbeast (la bestia). On average migrants makefive stops between the southern and northernborder of Mexico. On each of these stops theycan be expected to pay between $100 to 400US Dollars, in a country where the minimumwage is around £2.50 per day. Failure to paywhat is demanded by the gangs and corruptofficials will most likely result in being thrownoff the train. Serious injury or deaths causedby train accidents are common. In order toobtain medical assistance migrants must turnto the authorities who will deport them as

Extortion, torture and death: t Fiona McPhailreports from the preliminary hearing of the P

Pictures: C

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Pag

arza

SL65_pp28-29_mexico_print 14/10/2013 10:03


soon as the necessary medical treatment hasbeen carried out. Amputations are verycommon.

Within a week of the hearings thederailment of a freight train carrying around150 migrants in the region of Tabasco wasreported. The death toll is rising and it issuspected that those who survived the accidenthave sought to make their own way to avoidbeing caught by the authorities and deported.As these migrants are travelling illegally thetrain companies and the State denies anyresponsibility for them.

Those fortunate enough to not suffer traininjuries run the risk of being kidnapped andtortured. The tribunal heard thatapproximately 20,000 migrants aredisappeared per year. A Honduran mothertestified that her son left for the US in January2008 aged 17. She had initial contact fromhim and was then contacted by a third partydemanding money. She was provided with abank account number and contact number.She made several transfers until she wasadvised by phone that he was no longer there.Since then she has had no news of him. Shejoined the Caravan of Mothers who havemarched throughout Mexico demanding thatthe Mexican government take action andassist in finding those migrants who have beendisappeared.

It is argued by the prosecuting committeeon the Tribunal that this systematic violationof migrants’ rights through action andinaction, frequently resulting in the mostserious of human rights violations meets thecriteria of crimes against humanity and thatthe State’s immigration policies amount to theuse of death as a deterrent.

As well as witnesses from the States oforigin, the Tribunal heard from the receptorstate, the US. Representatives of HoustonUnited, a community based organisation insouthern Texas reported that while thenumber of migrants crossing the border haddeclined, most probably as a result of theeconomic crisis, the death toll had risen. TheUS authorities had reported 271 borderdeaths in Texas for 2012. It was stated thatthe real figure was mostly likely much higher.

The weight of the tribunal lay not only inthe breadth of its representation but also itsform. The mothers, wives and partners offamilies who have been separated as a resultof economic hardship and immigration choseto convey their pain through a theatricalperformance at the end of the first day. Thereare around 30 million Mexican and CentralAmerican women in such positions. Of thosewomen and girls who try to emigrate, six outof 10 are raped, report AmnestyInternational.

On the same day that the Tribunalcommenced, a migrant shelter in San JoseHuehuetoca was attacked. This was the thirdattack on a migrant shelter in five days,bringing home the dangerous reality faced bythose seeking to defend migrants. Several ofthose speaking before the tribunal in theircapacity as human rights activists had eitherbeen threatened or imprisoned for their work.

The victims and their defenders demandjustice. They demand the creation of DNAdatabases so that migrants can be identifiedand legislative reform that decriminalisesimmigrants. They demand greater protectionfor migrants in transit. Crucially however theyalso demand an end to the economic policiesthat keep their countries plunged in povertyand ultimately force the poor to risk their livesstriving for a more dignified life.

The prosecuting committee has until July2014 to finalise and conclude its arguments.Further to the two day preliminary hearing, thejury was persuaded that there is a case toanswer.

For further information on future hearingsplease contact Camilo Pérez-Bustillo [email protected].

Fiona McPhail is a solicitor from Scotland and amember of The Haldane Society. She iscurrently based in Mexico City.

: the price of migration to the US e Permanent People’s Tribunal held in Mexico City in August 2013

SL65_pp28-29_mexico_print 14/10/2013 10:03

Demonstrationagainst bus fareincreases, in SãoPaulo, June 2013.

Picture: Maria Ob

jetiva

SL65_pp30-37_brazil_print 14/10/2013 10:05

The third consecutive term of the leftist Partido dos Trabalhadores (Worker’s Party)Government was ticking along relativelycomfortably for Dilma Rousseff, ongoingcorruption scandals aside, until protests againsta bus fare increase in São Paulo triggered similaraction across the nation, drawing hundreds ofthousands of dissatisfied Brazilians onto thestreets in June 2013 to protest against a politicalsystem they see as corrupt and inefficient. Themassive demonstrations came as a surprise tomany observers. Brazil is the BRICS posterchild: a strong democracy and an optimisticemerging economy, ripe for investment andready for the future. The last time Brazilianstook to the streets en massewas back in 1992 tocall – successfully – for the impeachment of thenPresident Fernando Collor, the man who frozethe nation’s bank accounts.

Rousseff, a former militant involved inorganised opposition to the militarydictatorship – who was imprisoned andtortured for her activity – was quick to identifythe protests as a sign of the strength of ‘ourdemocracy’ and new ‘political energy’. Themiddle class is growing slowly and millionshave been lifted out of extreme poverty bysocial assistance programs initiated by thePartido dos Trabalhadores. However as people

move laboriously up Brazil’s skewed socialladder, they are hit by the expense of middleclass life, where private health care and privateeducation are standard, given the generallypoor quality of public services. In short peoplemight earn more but, while the cost of livingrises, they are seeing poor returns from theirgrowing contributions to the public coffers.

Rio de Janeiro, where the largest proteststook place, is the current focus of nationalambition. 300,000 people, or one milliondepending on who you listen to, came onto Rio’sstreets on 20th June 2013. Excessive marketingfor World Cup preparations and the 2016Olympics has grated on the population of a citywhere the cost of living has soared. While therehave been notable improvements in publicsafety, a less violent city is a more expensive city.A principal target of resentment is StateGovernor Sérgio Cabral, whose support hasplummeted to eight per cent in his second termof office. Once the initial surge of protests hadsubsided, demonstrators camped outside hishome in the exclusive Leblon neighbourhooduntil he moved, presumably at the request ofinfluential neighbours, elsewhere. Eduardo Paes,Rio’s mayor, although not unscathed, hasweathered the storm with more sagacity, makingconcessions and inviting protesters for talks.

Although the largest demonstrations werenot much short of an outpouring of generaldiscontent, there were some quick victories.Protesters in several cities achieved theirimmediate goal when local authorities,including Rio de Janeiro and São Paulo,announced a freeze on bus fare rises. In Rio,the State Government abandoned unpopularplans to bulldoze a school and an indigenouspeople’s museum to make way for a multi-storey car park near the Maracanã footballstadium and future World Cup final venue.Mayor Paes also guaranteed the futuresurvival of Vila Autodromo, a favela that wasearmarked for demolition to make way forOlympic development. These achievementsseemed unlikely before demonstrators took tothe streets.

But while the protesters scored some points,two incidents highlighted the longstandingviolence and human rights abuses suffered bythe country’s poor. On 24th June 2013,military police belonging to the BOPE specialoperations unit (portrayed brilliantly by JoséPadilha in his ultra-violent Elite Squad films)killed nine alleged drug traffickers in thesprawling Maré favela complex. One BOPEmember also died in this unauthorisedoperation which left residents without


It started with a bus fare increase...Rio-based Damian Plattanalyses 2013’s mass demonstrations in Brazil

>>>



electricity for 36 hours. Then in July 2013members of a police ‘pacification’ unit, basedin the enormous beachfront Rocinha favela,took a bricklayer called Amarildo into custodyduring a routine operation. He has not beenseen since. This episode was condemned at theend of August 2013 by the Rio branch of theBrazilian Bar Association, which, together withrespected local sociologist Michel Misse,launched a campaign to monitor andinvestigate killings and disappearances linkedto police activity in the city. Misse documented10,000 such incidents between 2001 and 2011.The average of one thousand police relateddeaths a year in Rio de Janeiro is more thantriple the yearly average for the whole of theUSA. The national truth commissioninvestigation of human rights abuses under themilitary dictatorship, which ruled the countryfrom 1964 to 1985, counts 540 disappearancesfor the whole country for that period. Misse’salarming figures exemplify the class chasm andviolence which hamper societal development inBrazil. While the mass marches pointed to thepossible existence of a youthful, informedmiddle class, eager to flex its muscle, the Maré

killings and Amarildo’s disappearance confirmthat Brazil’s most vulnerable populationcontinues to be at risk of human rightsviolations on a daily basis.

On a Friday evening in September 2013 I listened to three lawyers who have beenvoluntarily defending and accompanyingprotesters detained by the police. Carol,Clarice and Natalia tell a story which leaves medepressed. I left Rio for three months just as theprotests were beginning, and was enthused bywhat seemed to be a possible tidal change inpublic opinion, because for once it seemed thata critical mass of average Brazilians weretaking matters into their own hands. I wrote acomment piece for The Guardianwhere Icelebrated the fact that protesters appeared tohave avoided attempts by the traditionalBrazilian mass media to characterise them asvandals and rioters. Three months down theline it seems that the powers-that-be havesucceeded in their goal of criminalising theprotesters. Carol tells me that her mother, wholeaned out of the window to shout support inJune 2013, now sees them as meretroublemakers.

Protests against a busfare increase in SãoPaulo (below) triggeredsimilar action across thenation, leading tohundreds of thousandson the streets protestingagainst a politicalsystem they see ascorrupt and inefficient.

>>>

Pictures: M

aria Ob

jetiva



Her mother’s change of attitude appearslargely informed by violent TV scenes ofclashes as demonstrators face baton chargesand tear gas grenades. This began with thedispersal of the massive 20th June 2013 march,when military police charged protesters atdifferent points across the city centre. Becauseof this, the lawyers say, the largely peacefuldemonstration ended in mayhem. At this pointthe general public began to dissociatethemselves from the protests. I ask about anincident during July 2013. Shortly after thePope had left a meeting at the Governor’spalace by helicopter a protest outside turnedviolent. Both demonstrators and police filmedtwo men in t-shirts conspiring to throw petrolbombs. Other cinematographers capturedimages of what appeared to be the same menrunning behind police lines shortly afterwards.Threatened with arrest, one pulls out ID,waving it at confused ‘colleagues’. Theseimages led to allegations – fiercely denied – thatundercover police used violence against otherpolice in an attempt to destabilise thedemonstration. Bruno Telles, a 25 year-oldstudent arrested on suspicion of throwing the

first bomb, was released when TV images andpolice statements contradicted each other. Itlooked like someone wanted to frame him. Abackpack containing Molotov cocktails wasalso found at the scene of the protests. Itsowner is unknown. Violent episodes like thisled to characterisation of Brazil’s protests as‘riots’ in the international press, notably in TheTimes.

What happened with the episode outsidethe Governor’s palace, I ask? Was it reallyinstigated by undercover police? The lawyersthink it might have been, but tell me theinvestigation was archived. Really? But didn’tanyone follow up? We don’t know, they say,those were the days when the Pope was visiting– so much was going on. Since that momentnumbers on the streets have fallendramatically, down to a hard core of ‘BlackBloc’ anarchist style protesters, who are mostlyteenagers. The State Governor has introduceda law – unconstitutional, I’m told – to preventsuch demonstrators from using masks toconceal their faces. Public opinion is strongly infavour of such a measure: after all, who wantsto let vandals gain the upper hand?

Despite recent social advances, Brazil is stilla fiercely unequal society. It registered 46 dollarbillionaires in 2013, a 25 per cent increase on2012, according to Forbes. The protests, andthe belligerent State response, reflect thecontradictory nature of this emerging power.While a new generation struggles to find itsvoice and millions are lifted out of poverty,corrupt power structures and centuries-oldsocial conflict continue to hinder progress. It isno accident that Fernando Collor – thedisgraced former president impeached after themass protests of 1992 – holds court today atthe centre of power in Brasília, where he is aSenator. And while everyone knows where tofind Collor, no one will say what happened toAmarildo, and neither do we know who threwthe petrol bombs at police outside theGovernor’s palace.

Damian Platt was a Brazil Campaigner forAmnesty International between 1997 and 2005and is co-author of the book Culture is OurWeapon. He is based in Rio de Janeiro fromwhere he runs a consultancy service andpublishes the blog Culture is Your Weapon.

Liberdade, BeloHorizonte, 22nd June.Belo Horizonte (2.5minhabitants) – like anybig city in Brazil, thepoorest people cannotafford to buy a houseor an apartment.



No one could have predicted the events that took place in Brazil in June and July 2013,after a violent police crackdown against theprotests of the MPL (Free Pass Movement) inSão Paulo. The increase in the rate paid by theusers of public transport of 20 centavos of aReal, was the trigger for protests to occupy thestreets. The violent response of the militarypolice forces, rather than stifle the movement,caused it to spread like wildfire throughout thecountry, the focus of the protests no longerrestricted to the question of fare increases onpublic transport.

The demonstrations that shook theestablishment and created an inflection point inBrazilian democratic history had an urbancrisis as their backdrop. This urban crisis hasbeen highlighted in recent decades by thedeepening of socio-spatial segregation inBrazilian cities, which have increasinglybecome hostage to the logic of businessmanagement for the benefit of private realestate capital.

The advent of mega sporting events inBrazil, namely the 2013 FIFA ConfederationsCup, the 2014 World Cup and the 2016Olympics in Rio de Janeiro, has aggravated thecrisis in large cities. The construction worksassociated with these events have increased the

hegemony of private cars at the expense ofpublic transport, with the construction offlyovers, the widening of roads, and tunneling.

Thousands of poor families have beenremoved from their homes to make way forthese major infrastructure works, with noguarantee of proper resettlement. Suchremovals occur in total disregard to theinternational human rights treaties to whichBrazil has been one of the signatories. Socialmovements estimate that more than 150,000families will be removed due to these sportingevents in Brazil.

The mega sporting events are, in short, aclear expression of the so called notion of the‘city of exceptions’, where the city is designedfor profit and in which any sort of urbanstandard for the use of space can be relaxed infavour of the interests of real estate capital. Notwithout reason, the complaints related to theseevents surfaced during the protests. In BeloHorizonte, the State capital of Minas Gerais, thethree big marches that happened during theConfederations Cup, one of which hadapproximately 150,000 people, headedtowards the football stadium where the gameswere taking place. The violent police repression,aimed at protecting the so called ‘FIFAterritory’, resulted in the deaths of two people.

The issue of housing issue is of greatimportance in the context of this ‘urban crisis’,especially when considering the role of housingas part of the access to goods and servicesoffered by the city. In Brazil, the struggle forhousing also has a central role in popular urbanmovements, which often use the occupations ofidle property as a method of political pressureand popular organisation.

It is appropriate to emphasise the importantvictory achieved by the homeless movement inBelo Horizonte as a result of the June 2013protests in Brazil. After occupying BeloHorizonte’s City Hall, the movement managedto establish a channel to communicate andnegotiate with the local government, which haduntil then been closed to dialogue.

Minas Gerais is the third richest state inBrazil with the third largest GDP of all ofBrazil’s other states. Belo Horizonte, thecapital, has about two and a half millioninhabitants. Like any big city in Brazil, thepoorest people, especially those with householdincomes of less than three minimum wages,cannot afford to buy a house or an apartment,even with access to public subsidy programs forhousing finance.

The 1988 constitution of the Republic ofBrazil guarantees everyone the right to

What lies behind the ‘urban crisis’?Joviano Mayerand William Azalim look at the roots of the anger in Brazil

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‘Peace without a voiceis not peace, it’s fear!’20th June 2013, BeloHorizonte. Pi

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housing and provides that all propertyshould fulfill a societal function. Therefore, anabandoned urban property with a strictlyspeculative purpose, without any economic orresidential purpose, violates the constitution.However when homeless families occupy aproperty that stands idle without a societalfunction, in order to put into effect the right tolive with dignity, the State acts in defence ofproperty at any cost.

The judiciary, which is extremelyconservative and steeped in the notion ofproperty as an absolute good, has not yetincorporated the new constitutionalframework that amends the right to propertyfor the benefit of its societal function. Thus,decisions on a preliminary basis to grant arepossession order against communities thathave arisen from urban occupations arefrequent. The popular collectives of lawyersand public defenders who work for the legaldefence of these communities manage to, atmost, gain time in procedural motions to allowfor the consolidation of occupations. When thishappens, the issue becomes more political andless legal in the view of the authorities.

This is the case of urban occupations in BeloHorizonte where, in late July 2013, thoseinvolved in such occupations banded togetherto occupy the City Hall and demandnegotiations with the Government to preventthe displacement of approximately 3,000families in uncertain living situations.

These occupations were not recognised bythe Government, which refuses to provide suchbasic services as energy supply, delivery of post,sanitation, transport, health, education andurban infrastructure. The experience of theDandara community, where 1,200 families liveon land which has been occupied since April2009, exemplifies the Government’s response.

The direct action taken by thesecommunities in the seat of the municipalgovernment in Belo Horizonte, shortly after thePope’s visit to Brazil, lasted 32 hours andgained significant media coverage. Withinhours, the municipal authority had obtained acourt order to evict the protesters from CityHall. This would come at a high political price.

Many of the young people who had pouredinto the streets of Belo Horizonte in recentmonths camped out in front of City Hall and in

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Protests against theConfederations Cup,June 2013. The violentresponse of the militarypolice forces, ratherthan stifle themovement, caused it tospread like wildfirethroughout the country.

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a beautiful demonstration of solidarity blockedone of the city’s major avenues. A sea ofcolourful tents, painted with signs and sloganssupporting the protesters, was formed. A photoof a mother breastfeeding her son, who hadbeen denied entry by the police, through thebars of the headquarters of the City Hall waswidely shared on social networks. These eventswere to prove crucial in progressingnegotiations between the protesters and thelocal government. The immediate agreementreached was that the protesters would vacatethe building with the promise (transcribed inminutes signed by the Mayor) that urbanoccupations would be included in the zoning ofthe city as areas for land regularisation.

This experience in Belo Horizonte canprovide some helpful indicators of positionsthat can be taken by political groups thatcampaign in favour of socialism. For the socialmovements that had been involved locally,2013 was just a trial run.

In Brazil, as in many other countries, the citywas not always part of the analysis ofrevolutionary theory that traditionallyprioritised workers’ and peasants’ causes. The

protests in June and July 2013, in this sense,have a lot to teach the progressive forces ofsociety. Firstly there is the conclusion that thedemonstrations in recent months wereexceptional urban rebellions. The protests helpto provide a focus on urban issues within thecontext of the development of capitalism. Theyalso help to allow for the construction of atheory of urban struggle.

We only have to listen to the voices thatsounded in the streets to realise that the claimswritten on the signs and on the bodies ofprotesters are not just a direct result of thecontradictions forged on the factory floor. Thelogic of production and appropriation of spaceproduces its own contradictions that cannot beanalysed and understood as coming from thecontradiction between capital and labour, inthe strictest sense.

Understanding the contradictions that aretypical of the logic of space appropriation incities, within the frameworks of neo-liberalism,is a part of understanding the ‘urban crisis’, theultimate reason for these demonstrations. Andif the ‘urban crisis’ is the ultimate reason forthese demonstrations, which shocked both the

right and the left, it is necessary to empower thevictims of this ‘urban crisis’, those segregatedfrom the city. Part of this lies in favouring thoseclaims being made for urban reform, many ofwhich are already set out in the constitutionand laws of Brazil.

Progress towards recognising existingconstitutional rights is sadly slow. The ‘Statusof the City’, an important law which regulatesthe guidelines for the social functioning of citiesand the urban policy instruments of strategicplanning, has not yet been assimilated by thepolitical forces that act on the urban scenesome 12 years after its enactment.

A major challenge is presented to the left: tofully understand the urban phenomenon, todefy all its complexity, to unravel its peculiarcontradictions, the normative and institutionallimitations and the roles played by antagonisticactors and to, finally, walk the path of thevalued use of the city.

Joviano Mayer is a lawyer who works withsocial movements in Belo Horizonte, Brazil.William Azalim is an activist based in BeloHorizonte, Brazil.

Occupying the CityHall in Belo Horizontein July. The protestlasted 32 hours anddefied court orders.


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When 16 regiments of the New Model Armyput their names to an Agreement of the Peopleas the basis of a constitutional settlement of thecivil war between Parliament and the Crown, itwas a unique challenge to State power that stillresonates today, writesPaul Feldman.

Until then, history had always been prettymuch shaped by the ruling classes, withordinary people playing out supporting roles.Their views were not sought nor encouragedand their interests were assumed to be the sameas those leading change.

The English Revolution of 1640-1660,which ended the rule of absolute monarchy forgood and established the power of Parliament,was different. Here was one of the firstshattering social events of the modern age,involving the whole population in a titanicstruggle.

In England, a century after the protestantreformation, reading and writing was nolonger confined to the clergy. And access to theprinting machine led to a wide circulation forpamphlets and manifestos. The yeomanfarmers and the artisans of the townsincreasingly viewed themselves as independentthinkers.

These were the forces Oliver Cromwellturned to when early skirmishes with forcesloyal to Charles I ended in defeat for thedisorganised parliamentary forces. The NewModel Army was paid, trained and knew whatit was fighting for. Centuries later, it wouldinspire the creation of the Red Army.

During 1647, as the first civil war drew to aclose, the regiments who had done the fightingwere angered by attempts to disband them andsend them to Ireland. Parliament had failed topay their wages for some months. So theregiments elected agitators to represent them inwhat became the Council of the Army, whichincluded officers and commanders.

The agitators co-operated closely withpolitical activists and pamphleteers who weredubbed the Levellers. They helped draw up keydemands in several documents throughout thesummer of 1647. One was the Case of theArmy Truly Stated. By the autumn, they hadalso produced the Agreement of the People.

With the King detained, the Council of theArmy met at St Mary’s, Putney, in October forwhat were to become historic debates aboutconstitutions, natural rights, property andpower. The ‘Agreement of the People for afirme and present Peace, upon grounds ofcommon-right and freedoms’, to give it its fulltitle, shook Cromwell and the army grandeesto the core.

The Agreement was based on what wastermed ‘native rights’, considered by theLevellers to be inalienable rights that could betraced back to pre-Norman Conquest times.Not for nothing was John Lilburne, a keyLeveller, known as ‘free born’.

At the top of the Agreement’sgroundbreaking agenda was the rule of lawand the independence of the judiciary. TheAgreement suggested that power lay with thepeople and that Parliament should always besubordinate to the electorate. All in all, it setout the framework for a written constitutionand set in motion our long, unfinished strugglefor democracy.

The Agreement wanted members ofParliament elected in proportion to thepopulation of their constituencies; biennial

parliaments, which would be the supremeauthority in the land. Certain constraints wereplaced on Parliament: it was not to interferewith freedom of religion; it was not to pressmen to serve in the armed forces; it could notprosecute anyone for their part in the recentwar; it was not to exempt anyone from theordinary course of the law; all laws passed byParliament should be for the common good.The Agreement insisted: ‘These things wedeclare to be our native rights.’

The debates focused on who should havethe vote, with Colonel Rainsborough famouslydeclaring: ‘The poorest he that is in Englandhath a life to live as the greatest he, andtherefore… every man that is to live under aGovernment ought first by his own consent toput himself under that Government.’

Defending the existing limited franchise,Cromwell’s son-in-law Henry Ireton rejected

the claim. The vote was rightly restricted tothose who have ‘a permanent fixed interest inthis kingdom’, namely ‘the persons in whom allland lies, and those in corporations in whom alltrading lies’. He added that ‘liberty cannot beprovided for in a general sense if property bepreserved.’ Ireton summed up the bourgeoisnature of the revolution, with its emphasis onproperty and ownership and attacked theconcept of natural rights.

A second civil war erupted and the debateswere suspended. Nevertheless the Agreementspread like wildfire throughout the army. InNovember 1647, at an army rendezvous atCorkbush Field, near Ware in Hertfordshire,many soldiers wore the Agreement in theirhatbands.

Lilburne inspired a second version of theAgreement towards the end of 1648 which wasdue to go before Parliament in January 1649.

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This was overtaken by Parliament’s decision toput Charles I on trial for treason against thepeople. The King was executed at the end ofJanuary. England became a republic.Monarchy and the House of Lords wereabolished.

Lilburne, who had been a lieutenant colonelin the army, and his supporters were soonunder arrest for treason. They published a thirdversion of the Agreement in May 1649,smuggling it out of the Tower. Many regimentsadopted the Agreement and denouncedCromwell. The mutiny was put down atBurford in Oxfordshire in May 1649 and theLevellers demands had to wait to be taken upby the American and French revolutions.

There is a continuity of a people’s strugglefor democracy in Britain that runs through totoday from the 1640s, embracing the strugglesof Tom Paine and his supporters in the 18th

century, the Chartists of the 19th century andthe Suffragettes in the 20th century. TheAgreement of the People for the 21st Century(www.agreementofthepeople.org) waslaunched last year to focus on where we gofrom here.

Many argue that representative democracyhas turned into a corporatocracy, where thepowerful economic and financial interestsdecide what is in our best ‘interests’. To quoteAl Gore, our democracy has been ‘hollowedout’. The question then is, can the presentpolitical-state system be fixed? Or is it beyondreform and repair and time to conceive of amore advanced democracy for the 21stcentury?

In the preamble, our draft Agreement statesthat the British State political system isundemocratic and unjust in that:• The State is a highly centralised, alienating

power that has established itself above societyas a whole.• This power is exercised primarily on behalf ofdominant capitalist economic and financialinterests as demonstrated by anti-peopleausterity measures.• Legal authority does not come from thepeople as citizens, but from the Monarchy,Lords and Commons.• The House of Commons is a powerlessassembly rather than an independenttransforming legislature instructed by the willof the electorate.• Members of Parliament do not exercise anyreal control over ministers or civil servants.• A surveillance State secretly monitors andtracks the legitimate activities of activists, tradeunionists and protesters.• Local government has lost its relativeautonomy and is now reduced to carrying outcentral Government orders and decisions.• The State has abandoned primaryresponsibility in a number of areas includinghousing, higher education and care in older agein favour of markets for public services.• The State refuses to take steps to cut carbonemissions and other measures to meet thechallenge of climate change.• Power at national level increasingly existsonly in relation to an unaccountable, unelectedtransnational State that includes the EU, theIMF and the WTO.

The Agreement makes the case for atransition from representation without powerto a popular sovereignty, through the creationof an ‘inclusive written constitution’ that‘embraces the aspirations of the powerlessmajority’. We want to encourage the buildingof a new, nation-wide democratic traditionfrom the ground up through, for example,People’s Assemblies.

Building on our existing rights, the draftextends them into areas of social rights likehousing, health and education. The economicrights proposed include the right to co-operative ownership in place of shareholdercontrol and the right to democracy and self-management in all areas/activities of theworkplace. The Agreement suggests the right‘to live in an environment shaped by ecologicalcare and not profits’.

We are honoured that the Haldane Societyhas lent its support to the project, along withMP John McDonnell, the Real Democracyworking group of Occupy London andorganisations like the National Coalition forIndependent Action. Many individuals havealso endorsed the campaign through thewebsite and on Facebook.

There is much work to be done in turningwhat is a framework into an actual, livingconstitution. We need to involve as manypeople as possible, professionals and activists,in this project. As more and more rights arerolled back, undermined and frequentlyobliterated by a rapacious, increasinglyauthoritarian State, we can learn from history.Like the Levellers, we should be campaigningfor what we want, what we aspire to, at thesame time as defending in every way possiblewhat we’ve achieved.

Paul Feldman is a journalist. He has written thisarticle on behalf of the steering group of theorganisation Agreement of the People for the21st Century.

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David Renton’s thoughtful and trenchantarticle in Socialist Lawyer 64 has done us all agreat service, opening up questions of crucialimportance to the Haldane Society. That isbecause we are socialists, committed tosolidarity in resistance to the depredations ofcapital, and to fighting for its abolition. We arenot simply human rights defenders, thoughmany of us are active in a host of human rightsorganisations, for example the Bar HumanRights Committee and the SolicitorsInternational Human Rights Group.

What then should be our understanding ofthe discourse of human rights, which hasbecome something like a secular religion orsubstitute for religion? The practice of humanrights protection often looks worryingly likeEuro-centrism; European standards set againstUSA power politics or geopolitical mayhem.That was the issue in the notorious Kadijudgment of 2008, in which the EuropeanCourt of Justice (ECJ) annulled the decision,taken initially by the United Nations SecurityCouncil (as the Sanctions Committee) placingMr Kadi on a terrorist list. The ECJ did so inthe light of ‘the principles of liberty,democracy and respect for human rights andfundamental freedoms enshrined in Article6(1) EU as a foundation of the Union.’ That is,European principles.

So far as the UK is concerned, human rightsare liberal rights, the right of the individual todignity. In reality, even the Tories have noproblem with the Council of Europe’s ‘threepillars’; the rule of law, multi-party democracy,and the protection of individual human rights.As Adam Wagner wrote on 3rd September2013 on the UK Human Rights Blog, underthe heading ‘Why we would be mad to leaveour European Convention on Human Rights’:

‘It cannot be overstated how fundamentallyBritish the [European Convention on HumanRights] is. The included rights were basedlargely on those developed by the Britishcommon law, reaching back to the 1215Magna Carta and the 1689 Bill of Rights.After the Second World War, imposingtraditional British values on foreign legalsystems was seen as part of the victor’s spoils.British politicians “made a huge contributionto the drafting”, said Lord Bingham,“reflect[ing] values which we in this country

took for granted and which had, we thought,been vindicated by our military triumph”.

British politicians were instrumental indrafting the ECHR, building on the 1948Universal Declaration of Human Rights andolder British common law liberties. Sir DavidMaxwell-Fyfe, a Conservative politician andlawyer, drafted much of it after he had joinedthe European Movement on the invitation ofWinston Churchill.’

This conception of human rights has noplace for collective rights, for example therights of the working class, or even of tradeunions. The UK, like other common lawcountries, refuses to have anything to do withsocial and economic rights, and refuses toratify the Council of Europe’s Revised SocialCharter with its system of collective (notindividual) complaints by trade unions andNGOs to the European Committee of SocialRights, or the Optional Protocol to theInternational Covenant on Economic, Socialand Cultural Rights. The jurisprudence of theEuropean Committee of Social Rights, withmany decided cases, can be found at www.coe.int/t/dghl/monitoring/socialcharter/default_en.asp.

David Renton is not a liberal; he is arevolutionary socialist. He has made a finereputation as a lawyer fighting for workers’rights, and is well known for his 2012 bookStruck out: Why Employment Tribunals failworkers and what can be done.

What does he say? He writes that, drawingon Marx, a useful approach to the problem ofrights in the present situation:

‘…could be to disregard temporarily thesearch for further and better lists of rights inorder to focus on their revolutionary kernel:i.e. the right to a just outcome [my emphasis].Part of establishing a fair outcome dependson a system of expropriation.’

There is no disagreement between DavidRenton and me as concerns the need forexpropriation.

We differ in respect of what Marx actuallywrote. Indeed, Marx and Engels wrote verylittle on law, and even less on what a futurecommunist society might look like. DavidRenton asserts that after Marx’s acerbiccritique of the rights contained in the Frenchand American declarations of the late 18th

century, essentially the same rights as arecontained in the ECHR, in 1844 in his On theJewish Question:

‘Over the next 40 years Marx and Engelswere to sharpen this critique of rights anddevelop a richer sense of how an alternativesociety might work.’

In actual fact, Marx and Engels affirmed theopposite, in 1845 in The German Ideology.They wrote that:

‘Empirically, communism is only possible asthe act of the dominant peoples “all at once”and simultaneously, which presupposes theuniversal development of productive forcesand the world intercourse bound up withcommunism.’

And continued with one of my favouritepassages from their works:

‘Communism is for us not a state of affairswhich is to be established, an ideal to whichreality [will] have to adjust itself. We callcommunism the real movement whichabolishes the present state of things. Theconditions of this movement result from thepremises now in existence.’ (Their emphases)

Thus, they were and remained perfectlyclear that communism could only come aboutonce abundance, ‘the universal development ofthe productive forces’ had been established allover the world. They refrained from providingany blueprint for future society. Except that isfor another famous passage in the same work:

‘For as soon as the distribution of labourcomes into being, each man has a particular,exclusive sphere of activity, which is forcedupon him and from which he cannot escape.He is a hunter, a fisherman, a herdsman, or acritical critic, and must remain so if he does notwant to lose his means of livelihood; while incommunist society, where nobody has oneexclusive sphere of activity but each canbecome accomplished in any branch he wishes,society regulates the general production andthus makes it possible for me to do one thingtoday and another tomorrow, to hunt in themorning, fish in the afternoon, rear cattle in theevening, criticise after dinner, just as I have amind, without ever becoming hunter,fisherman, herdsman or critic.’

This is very far from being a serious visionof the future, but is instead part of a commenton the present.

Rights andwrongs

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Bill Bowringrepliesto David Renton, whoasked, ‘Do socialistsstill have an alternativeconcept of rights?’

Opposite page: ‘KarlMarx (Holzschnitt)’(1970) by RobertDiedrichs (1923–1995),German graphic artist,painter and illustrator.See more of his workat: http://commons.wikimedia.org/wiki/Robert_Diedrichs

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Furthermore, their Manifesto of theCommunist Party of 1848 says nothing abouta future communist society. Instead, the finalsection, Part IV, begins:

‘The Communists fight for the attainmentof the immediate aims, for the enforcement ofthe momentary interests of the working class;but in the movement of the present, they alsorepresent and take care of the future of thatmovement.’

Communists, therefore, struggle on theside of the working class in the present day.And Marx and Engels go on to specify theirattitude to existing parties in the variousEuropean countries. The class struggle hasnot gone away, far from it, and nowintensifies all over the world. In passing, it isof great interest that two recent Americanblock-buster films, Hunger Games andElysium, both depict bitter and bloody classstruggles in the future.

To return to On the Jewish Question,Marx condemned the bourgeois rights of theDeclarations, asserting that ‘…the so-calledrights of man, the droits de l’homme asdistinct from the droits du citoyen, arenothing but the rights of a member of civilsociety – i.e. the rights of egoistic man, of manseparated from other men and from thecommunity.’ That is, the man who wants tobe left alone by the State, principally to makemoney.

David Renton then, quite properly, turnshis attention to Marx’s 1875, 30 years later,Critique of the Gotha Programme – that is,the programme drafted by Lasalle for the newmass workers’ party, the German SocialDemocratic Party, an explicitly socialistdocument.

I disagree with David Renton’sinterpretation of Marx’s critique. Theprovision which attracted Marx’s mercilesscriticism was:

‘3. The emancipation of labour demandsthe promotion of the instruments of labour tothe common property of society and the co-operative regulation of the total labour, with afair distribution of the proceeds of labour.’

For Marx, this necessarily implies ‘equalright’, that is, bourgeois right. Undercapitalism, the worker receives remunerationaccording to the amount or quality of work

done. But, Marx insists, human beings are notequal at all, starting with their ‘…unequalindividual endowment, and thus productivecapacity’, that is, physical and mentalendowment. One worker is brighter thananother, stronger than another. And, Marxcontinues:

‘…one worker is married, another is not;one has more children than another, and soon and so forth. Thus, with an equalperformance of labour, and hence an equal inthe social consumption fund, one will in factreceive more than another, one will be richerthan another, and so on. To avoid all thesedefects, right, instead of being equal, wouldhave to be unequal.’

It is not, as David Renton suggests, that forMarx ‘…all universal rights… result inunequal treatment’. The point is that humanbeings are unequally endowed, and haveunequal personal lives. As Marx makes clear,his famous slogan ‘From each according tohis ability, to each according to his need’, canonly be realised ‘…after the productive forceshave also increased’ and ‘all the springs of co-operative wealth flow more abundantly’. Wenow know, as Marx and Engels did not, thatthere are severe ecological barriers toachieving abundance.

To sum up, Marx and Engels insisted thatcommunists fight in the present, we cannotpredict the future, and of course there is nocertainty that the working class will win.

Marx and Engels both drew deeply fromthe radical materialist Baruch Spinoza (1632-1677), for whom all transcendence,anthropocentrism, and teleology wereanathema. In 1841 Marx made extensivetranscripts, in Latin, from Spinoza, pages 233to 276 in Volume IV/1 (1976) of theMarx/EngelsGesamtausgabe, the MEGAwhich continues in production. And in theIntroduction to his Dialectics ofNature,written in 1883, Engels wrote:

‘It is an eternal cycle in which mattermoves… a cycle in which every finite mode ofexistence of matter… is equally transient, andwherein nothing is eternal but eternallychanging, eternally moving matter and thelaws according to which it moves andchanges. But however often, and howeverrelentlessly, this cycle is completed in time and

space… we have the certainty that matterremains eternally the same in all itstransformations, that none of its attributescan ever be lost, and therefore, also, that withthe same iron necessity that it willexterminate on the earth its highest creation,the thinking mind, it must somewhere elseand at another time again produce it.’

This is Spinoza. One can be quite surethat if the earthly paradise were everachieved, that would be the moment atwhich a passing asteroid would eliminate theplanet and all its inhabitants, workers andcapitalists alike. Something like Lars vonTrier’s film Melancholia.

To return to the question of rights. I thinkthat a strong case can be made for theproposition that each generation of ‘humanrights’ has its origins in revolutionarystruggle, and that is why they remain, unlikeblack-letter law, so powerful and soscandalous. The first generation of civil andpolitical rights, now enshrined in the ECHR,had their origin in the French and AmericanRevolutions, abhorred by Edmund Burke, thefather of English conservatism. We shouldtake our stand with Burke’s enemy, TomPaine, whoseRights of Man and CommonSense still read as a full frontal attack oncontemporary English political corruption.

The second generation, social andeconomic rights, were first treated as legalrights in the International LabourOrganisation which was created in 1919 as adirect response to the October revolution of1917. Haldane’s John Hendy and KeithEwing have shown how the UK shamelesslyviolates its ILO obligations. And the keyright of the third generation, the right ofpeoples to self-determination, was firstpromoted by Marx, Engels and Lenin, andcame to fruition in the anti-colonial strugglesafter World War Two. Self-determinationstruggles continue for the Irish, Basques,Kurds, Palestinians, and Tamils. That, forme, is the ‘revolutionary kernel’ of rights.

Bill Bowring teaches law at BirkbeckCollege. He is a barrister practising at theEuropean Court of Human Rights and isInternational Secretary of the HaldaneSociety.

“Marx and Engels insistedthat communists fight inthe present, we cannotpredict the future, and ofcourse there is nocertainty that the workingclass will win.”

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The 60th anniversaryof the beginning of theCuban revolution on26th July 1953, offersa chance to considerwhere Fidel Castrodrew inspiration fromand the ideas whichprompted his band of

guerrillas to mount an audacious attack on theMoncado barracks – headquarters of theCuban military dictator Fulgencio Batista, whohad seized power in an army coup in 1952.

Fidel studied law at the University ofHavana in 1945 on the advice of those whonoted his passion for argument. A worlddivided ideologically between capitalism andcommunism, stimulated a febrile politicalatmosphere at university. Two of his earliestuniversity friends belonged to the communistyouth and Fidel made his first overtly politicalspeech in 1946, criticising the dictatorship ofGerardo Machado, Batista’s predecessor.

Fidel was aligned with two main politicalgroupings at university – the MovimientoSocialista Revolucionario (MSR) led byRolando Masferrer and the UnionInsurreccional Revolucionaria (UIR) led byEmilio Trio. This was his revolutionaryapprenticeship being refined, where he learnedmuch about the nature of Cuban institutionsand how steeped in corruption and violencethey were. The two groups quarrelled andjostled for prominence on campus, whileoutside the corrupt President Ramon Grau SanMartin, an American puppet, seized power in1944.

Two of the key historical and politicalevents dominating students at HavanaUniversity and influencing their beliefs, ideasand perceptions of Cuba’s past and future werethe independence struggles of 1868 to 1898 ledby José Martí; and the revolutionarymovement of 1927 to 1933 involving formerarmy officers, students and governmentofficials that had led to the overthrow ofMachado. Fidel recognised that these wereincomplete shifts in fundamental power –simply replacing varieties of colonial rulers andcorrupt American puppet dictators. Fidelvowed to succeed in creating a truly

independent Cuba, aself-determiningcountry led by thoseon the side of themany rather than thefew.

In early 1947 Fidelbecame increasinglypolitically active,openly criticising

President Grau and Batista for their failedleadership and corruption. His political profile

was growing and he was seen prominently as aleading mourner at the funeral of the much-respected communist labour leader JesusMenendez, who had been shot dead by anarmy captain in Manzanillo.

In 1948, the Cuban Presidency passed toCarlos Prio, who with the influential armyofficer Batista, gave unparalleled freedom tothe American mafia who accelerated thedegeneration of Cuba into what became widelyrenowned as America’s brothel, where casinos,gambling and gangsterism flourished and theproceeds of organised crime were stashed awayfrom mainland American tax authorities.

Fidel was sent with a group from the MSRwhen he was twenty-one years old to assist inthe insurrection in the Dominican Republic,then under the ruthless American-backeddictator Rafael Trujillo. The Cuban insurgentsfailed and most were arrested but Fidelmanaged to escape by swimming across theshark-infested waters of the Bay of Nipe tomake his way to his father’s sugar cane estate.Back at university in Havana, Fidel swappedallegiance to the UIR and was nominated to the

Presidency of theUniversity SpecialCommittee on legalaffairs.

The pattern ofFidel’s journey to latersucceed inoverthrowing theBatista dictatorship in1959 was being

hardened. Fidel was now by no means anavowed Marxist, he gradually distancedhimself from the UIR and had little contactwith his communist friends. He later tells of theinfluence of Marxist-Leninist ideas and readinga part of Das Kapital, but implies that thesewere not forming part of any coherent politicalideology. What seems to have been of muchmore significance was to identify with thosefellow students and historical Cuban heroessuch as José Martí, and satiate his appetite forrevolution and insurrection.

In 1948 Fidel joined a group of studentsfrom different parts of Latin America to stage aprotest at the Pan American Conference inBogotá, the capital of Colombia, where theUSA sought to tighten its grip on thosecountries dependent on and economically andpolitically controlled by the USA. The studentdelegations harassed those attending theconference, with demonstrations, marches andleafleting delegates, attacking US colonialism.

During the frantic atmosphere and growingtensions the Colombian President, Jorge EliécerGaitán was shot and killed at a demonstration,enraging the poor majority of Colombians whosupported his attempts at liberal social reform.This triggered a wave of riots, violence, killings

and bombings in Bogotá. The Americansblamed communist agitators but there is noconclusive evidence they were particularlysuccessful in organising what was in effect anexpression of mass outrage against the murderof a much-admired President.

A police inquiry falsely named Fidel as acommunist agent sent to deliberately stir updiscontent. Fidel managed to reach the Cubanembassy underArgentineandiplomatic protectionand was flown back toHavana on a cargoplane. Fidel drewlessons from these twoevents, where heparticipated actively inan insurrection with anintoxicating mix of violent struggle, the actionsof massed crowds, and the inspiration ofGaitán’s oratory and mesmerising personality.

Fidel was by now immersing himself instudent politics and actively supporting thefight for independence in Puerto Rico. He wasalso demonstrating solidarity with otherstudent movements in Argentina, Venezuela,Colombia and Panama, which weredemanding an end to American colonial rulevia financed puppet dictatorships.

Eduardo Chibás left the Auténtico, theAuthentic Revolutionary Party of Cuba, and in1947 founded the Partido Popular Cubano(PPC – Cuban People’s Party) quicklybecoming better known as the Ortodoxo party.Fidel joined immediately, finding in Chibás yetanother hero who he followed with greatenthusiasm, regarding him as a man of thefuture destined to pave the way to Cuba’sindependence.

The Ortodoxo party soon established itselfas the first serious opposition to theGovernment, fully adopting the principles andvalues of the revered José Martí for anti-imperialism, socialism, economicindependence, political liberty and socialjustice. What is striking about this period inFidel’s life is his ability to identify with andfollow charismatic male figures who had thecapacity and personality to grasp the attentionof the masses. Thus his political personalitywas being melded with his underlyingaggressive personality, creating a formidablystrong union. Although the attack on theMoncado barracks in 1953 failed, Fidel neverlost sight of his goal and six years later in 1959,together with Che Guevara, his brother RaúlCastro and others, succeeded in overthrowingBatista and liberating Cuba.

Steven Walker is the author of Fidel Castro’sChildhood – the untold story, 2012,TroubadorBooks, ISBN: 9781780882154.

Self determinationSteven Walker looks at what influenced young Cuban lawyer Fidel Castro



Reviews

Undercover: The True Story ofBritain’s Secret PoliceBy Rob Evans & Paul LewisFaber and Faber (2013)

If you haven’t already read RobEvans and Paul Lewis’s book, orits extracts in The Guardian, thenperhaps you think that intrusivepolice surveillance does not affectyou? Or you may think that yourmembership of the HaldaneSociety of Socialist Lawyers,support for various anti-capitalistand/or justice movements andyour attendance atdemonstrations are nothing thatthe State would be interested in,let alone want to monitor, recordand analyse, right? Wrong.

What Undercoverimmediately makes clear is thatthere is no longer any de-lineationbetween the State’s legitimateprogramme to monitor anddisrupt genuine threats tonational security and their fetishwith infiltrating grassrootsmovements for justice and socialchange.

The authors tell the story ofthe previously unknown secretlives of police officers BobLambert, Peter Black, MarkKennedy, Lynn Watson, MarcoJacobs and a number of otherundercover officers orHUMINTS (Human IntelligenceSources) that were deployed bythe Metropolitan Police’s SpecialDemonstration Squad (SDS)founded in 1968.

Within the SDS hand-pickedofficers would ‘disappear into ablack hole for several years’,changing their appearance,assuming the identities ofdeceased members of the public,and creating new identities forthemselves as activists in order tolive by the SDS motto ofundercover policing, ‘bywhatever means necessary’.

Unlike other undercover policeofficers, SDS officers were notthere to gather evidence that couldbe used in court, or to be able towitness events in order to testifyagainst suspects under oath. Theywere simply there to feedinformation about politicalmovements back to their handlers,for as long as it was deemednecessary.

Few causes were safe, the anti-apartheid movement, Greenhamcommon, London Greenpeace,Youth Against Racism, NewhamMonitoring Project, the AnimalLiberation Front, CampaignAgainst the Arms Trade, and theSocialist Workers Party were allknown targets. Many have sincespoken out against the betrayal

they felt for the police’s underhandand un-regulated infiltration.

That police spies have targetedand penetrated the left is perhapsnot a surprise to many, but fewcan fail to be shocked by theauthors’ revelations that theMetropolitan Police had beenmonitoring the private home ofDoreen Lawrence, listening to thelegally privileged conversations ofDwayne Brooks and that officershad committed the most personalviolations by having intimaterelations with female activists,most with the tacit approval ofsenior officers. These revelationsprove that there is no longer anypart of our public or private spacethat is safe from the State’sintrusion.

Undercover poses searchingquestions about whether thedecades of deception were worthit? It also asks whether it can everbe justified to spy on those whoare arbitrarily defined as being ofinterest to the State for whateverreason they see fit? The answer toboth is clearly no. In the majority,the intelligence that went back tothe SDS handlers was simply ofpolitically committed activists,challenging the State hegemony. Itdemonstrates that the policetactics were simply anotherexample of the State’s ongoingprogramme of social controlthrough the designation ofdissenters as deviant or ‘criminal’.

Undercover is a vital exposé ofthe lengths that the MetropolitanPolice covert operations went to.However, it is not just the ‘classic’covert surveillance we should beconcerned about. Mostdemonstrators today are aware ofthe risk of being overtlyphotographed or recorded byintimidating ‘Evidence GatheringTeams’. The Court of Appeal inthe case of John Catt recentlyconfirmed the existence of apolice database containing namesand images and known associatesof demonstrators with noprevious convictions. Increasingtechnology also means that wenow give up a lot of informationthat could be of interest to theState for free to big corporationsin exchange for a virtual socialcontact. This is not to mention themeta-data that can be harvestedby the intelligence agencies,packaged, sold and analysed bywhoever is willing to pay theprice.

Fearless revelations byinvestigative journalists such asEvans and Lewis alongsidewhistle-blowers such as EdwardSnowden and Chelsea Manningshow us that we are only at the tipof the iceberg in understandinghow the State seeks to monitorand control our freedoms.Undercover is also a timelyreminder of the importance of thistype of quality journalism as avital mechanism for holding theState to account.Anna Morris

Uncoveringdecades ofdeception

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Reviews

A Very BritishKilling: TheDeath of BahaMousaAT Williams,Jonathan Cape,2012

This is a story of two Britishinstitutions failing Iraqi civilians.The culpability of the firstinstitution is well-known: Britishtroops detained and tortured nineIraqi civilians in Basra in 2003, oneof them – Baha Mousa – was sobadly assaulted he died as a result.Only one person – Corporal Payne– has been convicted of any crime.However these assaults were notcommitted by a rogue bad applesoldier. The torture session hadlasted two days. The Iraqis wereguarded by at least 15 soldiers.Fifteen to 20 soldiers were

responsible for forcing them intostress or ski positions, yellinginsults and abuse at them, hoodingthem and then punching, kicking,and battering them whileblindfolded. Other soldiersincluding senior officers and thepadre had wandered through thebarracks and must have observed‘the choir’: the detainees lined upand struck in succession. Thescreaming must have been audiblethroughout the barracks.

The second institution is thelegal profession. Obviously it is notfor lawyers to track down thetruth: a lawyer’s job is to defend hisor her client fearlessly, subject onlyto certain ethical restraints. It is the court process, assisted byadversarial advocates, that issupposed to get to the truth. Thecourt-martial of only sevensoldiers accused of assaultingMousa with such force so as tocause his death lamentably failedto get to the truth.

Andrew Williams provides adevastating account of how theadversarial system can let downtruthful witnesses. The Iraqi

witnesses – the surviving detainees– had not been prepared for theexperience of giving evidence; theywere doing so throughinterpreters, a process whichinevitably makes their testimonymore distant. As the witnessesbecame confused, and rambling, itwas hard for the prosecution toelicit their previous statementsfrom them. When they expressedemotion, it felt false and jarring toa British courtroom. Skilledcriminal defence lawyers were ableto make far too much of apparentinconsistencies. The second groupof witnesses were soldiers who hadbeen only too happy to help theprosecution when it looked likethey might be in the dock. Oncethey were off the hook and theircomrades were charged, theysuffered a collective loss ofmemory. The prosecution wasreduced to treating some of themas hostile witnesses. All sevendefendants were acquitted and themedia ran sympathetic storiesabout the ordeal they had suffered.The only convicted perpetratorwas Corporal Payne who had

pleaded guilty to inhumantreatment while contesting acharge of manslaughter. He musthave regretted that decision as hewatched his comrades walk free.

Three people shine through asdetermined truth-seekers. SirWilliam Gage conducted the two-year inquiry into the death of BahaMousa and was able to piecetogether an account of whathappened in the barracks in Basra.Phil Shiner, Vice-President of theHaldane Society, took ground-breaking cases to the SupremeCourt and Strasbourg in order toestablish that a full inquiry wasneeded and that human rightscould apply to the actions ofBritish troops abroad. AndColonel Daoud Mousa, Baha’sfather, had been seeking the truthfrom the moment he was presentedwith a death certificate thatcontained an inaccurate cause ofdeath for his son. He was let downby the court-martial and by mostof the legal profession, and onlyfinally found some justice fromWilliam Gage. Liz Davies

the war effort or cooperate with theauthorities to that end in any way –saw him imprisoned several timesbetween 1916 and 1919.

That is just one fascinatingdetail contained in Steve Allen’sbook Thompsons – A personalhistory of the firm and its founder.

Others include the account oflegal assistance provided to thePoplar Borough Councillors whowere jailed in 1921 for failing toset a rate, an act of resistancegrounded in opposition tounfairness in a system of paymenttowards the cost of commonservices provided across London.

As well as being at the helm ofthe foundation of the NationalCouncil for Civil Liberties in 1934,Harry Thompson also providedlegal expertise to the unemployedworkers and anti-fascistmovements of that decade.

While parts of the book mayonly be of interest to those familiarwith the firm’s internal life – theauthor himself worked there forover 30 years – the coverage of the

firm’s assistance to the trade unionand labour movement at keymoments in the 20th century willhowever appeal to a much wideraudience.

For example, in a powerfulchapter entitled ‘Dying for work’,the author documents the firm’sinvolvement in seeking redress forthose affected by workplaceaccidents and the campaignagainst the Workmen’sCompensation Act 1925.

Associated chicanery on thepart of employers and insurancecompanies had been a feature of asystem which had repeatedly leftworkers shattered by industrialinjury with no real choice but toaccept early and often inadequatesettlements in the decades beforethe welfare state.

Further afield, in an earlyexample of the firm’s involvementin supporting trade unionistsacross the world, legal assistancewas provided to defendants in acase known as the MeerutCommunist conspiracy trial which

arose after an upsurge in strikeaction in India in 1928/29 and aclampdown by the law officers ofthe British Empire.

The book includes an index ofkey legal cases in the areas ofpersonal injury, labour andemployment law in which the firmhas been closely involved. Thereferral to the same in the textreveals an organisation of manydeeply committed individuals andone imbibed with a clear politicalunderstanding and analysis of thechallenges facing working people.

Thompsons today has over1,000 staff and partners workingin an increasingly competitivemarket within a context of de-industrialisation.

However, as the author is keento point out, the firm has neveracted for insurance companies andremains ‘a special practice, a firmunited in its endeavour to act forthe trade unions, for workingpeople and the disadvantaged andoppressed’.John Hobson

Institutionalculpability

Thompsons –A personalhistory of thefirm and itsfounderSteve AllenISBN 978-0-85036-638-9Merlin

As the 100th anniversary of thebeginning of the First World Warapproaches, interest in those whoresisted the military conscriptionof the time is starting to grow.

One such radical dissenter wasWH (Harry) Thompson, whofounded the well-known law firmof the same name in 1921.

Harry Thompson’s actions asan ‘absolutist’ – a conscientiousobjector who declined to help with

A specialpractice



Reviews

FILM: Neighbouring SoundsDirected by Kleber MendonçaFilho, 2012

Neighbouring Sounds is a newtype of Brazilian film, a socialcommentary with no guns, nocorpses, nearly no favelas and thecountry’s official entry for the2014 Oscars.

The film’s gripping openingsequence is a montage of peasantsand their masters. Worn, leatheredfaces peer out with untrusting eyes,frozen in time in parchedcountryside. A crescendo ofpercussion – Boom-BOOM-Boom-BOOM – grows louder,louder, louder, until the still imagesbreak into the film proper, and theviewer finds himself in a completelydifferent universe, following a girlon pink roller blades, plastic wheelsclick-clacking on the surface of abrand new car park. She skates intoa fenced playground at the top of aresidential high rise. It’s crowded

with children, and alongside them,uniformed adults whose faces arerecognisably similar to those in thefaded portraits of the openingsequence. These are the modernserving classes: the nannies,cleaners, cooks, porters andsecurity guards.

Neighbouring Sounds tells thestory of two families who live afew blocks from the sea in Recife,in a claustrophobic world ofjagged high rises, right angles andbarred windows. The upwardlymobile Bia, played by MaeveJinkings, a frustrated housewife, isat war with the neighbour’s dog.She staves off frustration withlarge doses of marijuana, inbetween shuttling her children toand from Chinese and Englishlessons. A second, richer, family isrepresented by João, played byGustavo Jahn, a sympathetic,handsome late-twenty-somethingwho manages the many flats onthe street owned by hisgrandfather. While João begins anaffair with Sofia, and attempts torent out a flat in a building wherefloral tributes stand as remindersof a recent suicide, Bia takesdelivery of a 40-inch plasma TV,

and, in the film’s most violentscene, is attacked and punchedabout the head, inexplicably, by afemale neighbour.

Anthropologist Darcy Ribeirowrote that the proto-cell ofBrazilian life originated from thesocial structure organised aroundthe sugar mills, which date back tothe 17th century. The senhorwasthe governor of the lives of allthose who worked and lived there:those of his own family, the millworkers, and of course, the slaves.After João and Sofia visit hisgrandfather Seu Francisco, in thecountryside, at the decayed formersugar mill he still owns, theunderlying tension and uneaserunning through the film escalatesinto an atmosphere of puremenace. Bia’s daughter has anightmare about a horde ofthieves, dropping endlessly one byone into her garden in the dead ofnight. João dreams of a waterfallof blood. While the security guardsswap tales of random violence, Biaspies a lone black boy sneakingalong the rooftops in the dark.

Seu Francisco has made his wayto the city, swapping his formerplantation for urban real estate.

While the high-rise monochromejungle of Recife might look likeanother world, Ribeiro’s polarisedcast structure of the sugar mill isstill firmly in place. Everything isdifferent; nothing has changed.The urban domestic staff open andclose doors for their masters.Everyone knows their place;everyone is edgy.

Neighbouring Sounds, whichexcels in originality, observationand detail, captures a long awaitedmoment of possible opening inBrazil. But can the country reallychange? The sins of the fatherscontinue to dictate the lives of theliving. João is the quintessentialBrazilian stereotype of extremeaffability, and in his case, littleproductivity. Despite treatingpeople well, and entertainingheartfelt notions of justice, hereinforces the archaic class systemwith his lazy, easygoing platitudes.He greets termination of his loveaffair with Sofia with the samevague, passive smile he applies tothe rest of life. His grandfather,former senhor of the sugarplantation, continues to take allthe decisions, but for how long?Damian Platt

Original andgripping

The Innocent &the CriminalJustice System:a sociologicalanalysis ofmiscarriages ofjusticeBy MichaelNaughton,

Palgrave Macmillan, 2013

Naughton’s new book is expertlywritten. His experience gives hiswriting an engaging practical tone,while being squarely academic.

The book is divided intopractical sections coveringcausation, investigation and the(in)adequacy of redress. Withoutflinching, pillars of ‘British Justice’are shown in an unflashy way to bein fact, irrelevant to the actualworkings of the criminal justice

system. Innocent until provenguilty? Not when policeinvestigations are designed purelyto find evidence of guilt, defence ispoorly funded, and defendantsrendered passive by therequirement to work entirely to theagenda of the prosecution.

Much of the book rests on thefollowing definition: miscarriagesof justice are unfortunate,accidental, made in good faith but‘abortions’ of justice come aboutintentionally, in bad faith,maliciously. It is here that my onlydiscomfort with the book arose.These are both unavoidably wordswhich denote traumatic eventsoccurring exclusively in women’sbodies. Personally then, I foundthis analogy and its association ofabortion with wrongdoing jarring.The word ‘miscarriage’ may indeedbe insufficient – this may be then amissed opportunity to inventnewer, better terms more fit forpurpose.

The chapter on causes ofmiscarriages of justice describes acrucial aspect of this subject that israrely acknowledged: within oursystem it is not only possible thatwrongful convictions are broughtabout purposefully, by treatmentsuch as that meted out by corruptpolice to the Guildford Four andothers in the infamous cases, butthey can come about with none ofthe actors in the investigation orprosecution of a crime breakingany rules or perceiving in any waythat they are doing wrong. This isthe truly terrifying part of theproblem. The sociological aspect ofthe search by police for evidence toconvict a person, ‘tunnel vision’ asNaughton refers to it, is anexample of this. Confirmation biasmeans that evidence which wouldtend to prove a person’s innocenceis unconsciously filtered outbecause it goes against an originalassumption of guilt.

The last chapter of this book

gives Naughton’s ‘troubleshooting’recommendations for preventionof wrongful convictions in thefuture. The parole board’s attitudeto those who deny their guilt mustbe altered since it nowdiscriminates actively againstfactually innocent prisoners; theCourt of Appeal (CriminalDivision) must widen its ambit toassist the factually innocentwithout being restricted byprinciples of finality and jurydeference. The Criminal CasesReview Commission needs to getback its teeth and become aproperly independent investigatorybody. Compensation at currentlevels is woefully inadequate. Anidea that is simple but quietlyrevolutionary ends the book.Wrongful convictions will continueuntil the overriding objectivethroughout the criminal justicesystem becomes the safeguardingof the innocent.Elizabeth Forrester

Expertlydone


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RightsHuman

LecturesThursday 14th November 2013:

HaldaneSocietyofSocialistLawyers

All lectures at 6.30pm at the University of Law14 Store Street London WC1E 7DEwww.law.ac.uk/our-centres/london-bloomsbury/getting-thereAttendance is free. We hope that CPD points will beavailable (for £10), but please check in advance

Annual General Meeting and Lecture:Speaker: Phil Shiner, solicitor, Public InterestLawyers, doughty litigator against human rightsabuses by British troops, will be speaking on: UK human rights violations in Iraq and Afghanistan – the present pictureFollowed by Haldane Society AGM: reports,motions, elections of officers and executive

Tuesday 10th December 2013:How to be a Feminist LawyerSpeakers include: Elizabeth Woodcraft, family lawbarrister – other speakers to be confirmed

Further information from www.haldane.org

2013

-2014

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