Tag Archives: Law

Courtroom advocacy in decline?

13 Nov

Previously, solicitors could only represent their clients in a magistrates court, whereas a barrister would represent the client in higher courts.  Now, solicitors can apply for different advocacy/representation rights and represent their own clients, and collect both fees. Barristers can now also apply for “direct access” to clients, but this is rare and relevant in only certain sectors.

I doubt the role of barristers is being challenged, however many claim that the junior bar is being deprived of work and ultimately the quality of advocacy will decrease as work is not passed on to those specifically trained and experienced in the profession.

The most significant question however is whether the blurring of the different roles has contributed to miscarriages of justice.  The Bar would argue it has. The Law Society itself has agreed their advocacy training is “not fit for purpose”. Apparent lack of familiarity with rules and courtroom procedure or advocacy generally may give an unfair advantage to the prosecution (or the defence if we’re talking about in-house CPS advocates).

With cuts in legal aid contributing to the decline of the “legal aid equality myth”, the justice system really doesn’t need any more obstacles.

Get rid of the “middlemen” (we can apply that to either profession actually) and reduce costs or encourage each to stick to their traditionally defined roles to ensure the quality of advocacy and therefore justice is preserved?

Issues with our Constitutional arrangement

20 May

Despite the fact I have 4 exams next week, here I am updating this thing…   I did write this a while ago though so I’m letting myself off. This is based largely on the wonders of my Politics lessons regarding the issue, however the concerns are as relevant as they could be….

The extradition of Abu Hamza and others         –           The Other Side of Human Rights Abuse

Although the public mood has unsympathetically called for the deportation of the alleged terrorists, the conflict between adhering to the absolute guidelines of the HRA, which Britain has accepted and incorporated into law, and carrying this out was clear. This particular conflict was highlighted by the Abu-Qatatada case. Following a 6 year detention, the ECtHR blocked his deportation to Jordan on the grounds that his return may lead to torture being carried out on him. However a recent European Court judgement has allowed for numerous terrorists, including Abu Hamza, to be extradited to the US as there would be no violation of either Article 3 or 5 in being held in solitary confinement. Although they have 3 months to appeal to the Grand Chamber, it is unlikely they will succeed even if they decide to do so

Although the European Convention of Human Rights is seen as the definitive document protecting human rights it should be noted that it’s ambiguous nature as well as the several “exceptions” for example for in the “interest of national security, protection of health, morals and reputation and the prevention of disorder or crime” actually give significant room for avoidance. The ECHR was originally drawn up in 1950 as an agreement between 12 nations to prevent the atrocities that had occurred during WW2 from reoccurring. However, over time, this sensible conclusion has diverged considerably, allowing many to take advantage of the system in the name of their “human rights”. The most common method, which ministers are currently commanding judges to do their best to amend, of such abuse is using the “right to a family life”. As a result of having relatives, or in reality any relationships including wives and girlfriends, even if their relationship is in reality limited, can be used to avoid deportation. A particular case, involving Take Aso Mohammed Ibrahim, a failed Iraqi asylum seeker who had killed Amy Houston in a hit-and-run, sparked anger from both the public and the prime minister as he could not be deported due to his “right to a family life” with his wife, 2 children and 2 step-children he had gained since moving to the UK seven years previously. Neil Houston, the bereaved father of Amy, claimed with bitter irony that he had taken away his right to a family life. There is hope that following a consultation on Article 8 of the Human Rights Act and amended immigration rules, this defense will no longer be acceptable. However, any consequence of changes in British law that conflict with the ECHR will undoubtedly be challenged by the courts, in particular the EcTHR.

This has led many, in particular David Cameron and his party to call for the introduction of a British Bill of Rights to replace the HRA and ECHR. This had been proposed earlier by the then Justice secretary Jack Straw who claimed that judge’s interpretation of the act had led to the creation of a “villain’s charter”. The Lib Dems who are in coalition with the Conservatives are in fierce opposition to such a measure, implying there may be significant difficulty in passing this controversial piece of legislation. Due to the doctrine of parliamentary sovereignty which Britain has held for hundreds of years as a result of the lack of codification in its constitution, all laws, treaties and so on including the ECHR are subject to the current parliament’s approval. Unless codification occurs rapidly, this parliament cannot bind its successors. In theory therefore, Britain is not subject to the impositions of the ECHR, as long as it is willing to abolish the HRA which would exclude the necessity of the ECHR being upheld by British law or subject to the ECtHR. The call for a British Bill of Rights can therefore only be applies successfully if we agree to revoke the Human Rights Act. This however, may have numerous consequences. It would retreat in providing justice external to national and cultural boundaries, the Scottish Human Rights Commission claimed it would be a regressive measure and would act as an attack on civil liberties as well as making government less accountable, however opposition claims that currently the power is in the hands on unelected judges in Strasbourg which is worse. Furthermore, there are worries it will not stop criminals taking advantage of Human Rights unless we also agree to withdraw from the treaty. It could act as a global signal arguably encouraging abusive practices and allowing countries such as Russia and China to avoid criticism for their action. Many argue that rather than replacing the HRA with new legislation, better interpretation should be encouraged. Currently, the interests of national security, such as in the recent case of Jordanian Islamic cleric, which is itself an exception to the ECHR, conflicts with another article of the same convention. The public mood has without a doubt shown support for the first and is justifiably angry with the current abuses of the Human Rights Act.

This is unmistakably a constitutional issue which provokes much debate. In its current state, the Human Rights Act does little to protect rights due to its ambiguous wording and exhaustive “exceptions”. By revoking it and introducing a British Bill of Rights, there is hope that the negative aspects of protecting human rights will be eliminated, and in addition to existing protections from the Magna Carta, Habeas Corpus, Petition of Right and Common Law, will serve to carry out the original aim of protecting the fundamental rights individuals are entitled to.