Recently in Stuart Pemble Category
This is my final blog for the Post. A combination of a lack of inspiration (this is only my fourth missive of 2012) and an appointment to be one of the editors of the Legal Notes section of the UK's leading property magazine, Estates Gazette, means that I need to hand the blogging baton onto someone else; in this case, an erudite and talented partner of mine at Mills & Reeve, Martin Brewer. Martin will be brilliant; in the meantime, I hope people have enjoyed reading my various thoughts over the years and that I haven't upset anyone too much.
More importantly, and in what I admit is a pretty unsubtle segue, I also hope you haven't been tortured. I really, really do. Which brings me onto the nub of what I want to say. Because torture - be it in relation to the horrific way in which Sami al-Saadi was treated following his rendition to Libya, or the evidence which might be used should Abu Qatada ever be subject to a fresh trial in Jordan - keeps on rearing it's very ugly head at the moment; and I am concerned that our political leaders (from both sides of the House of Commons) are guilty of turning a blind eye to its true horror.
Because, however vile and evil the crime is of which someone is accused, torture casts an evils shadow over everything it touches; especially the judicial process. I don't think I am saying anything radical or new here; and yet current news stories suggest otherwise. And, if you don't believe me, here's what the late and great Lord Bingham - who as a judge did more than any other judge I can think of to make legal sense of the increasingly complicated world in which we live and to protect our rights as citizens - had to say on the subject in The Rule of Law, the brilliant book published in 2010 just before his untimely death:
"In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the...courts were moved by three considerations: the cruelty of the practice as applied to those unconvicted of any crime; the inherent unreliability of the evidence in confessions so procured, since a person subject to unbearable pain will say anything which will cause the pain to stop; and a belief that the practice degraded all who had anything to do with it, including the courts if they received or relied on the fruits of such treatment."
Lord Bingham's view is that there are some things which are so abhorrent that they must not be tolerated, even where the safety of the nation is said to be at risk. If that means that someone who would otherwise be found guilty of a crime goes free until evidence not tainted by torture can be found to convict them, then that is a price worth paying. I am acutely aware that this may seem naïve in a twenty-first century world still scarred by the horror of September 11th, but two wrongs don't make a right. Is ignoring, condoning or actively supporting torture really any better than ignoring, condoning or actively supporting terrorism?
Having got that off my chest, all the best for a happy Christmas and 2013 and apologies for the fact that I didn't sign off on a cheerier note.
If you are still reading, then I'm assuming that neither the title of the blog nor the deluge of recent comment in the mainstream media and the blogosphere since Mr Assange's speech at the Ecuadorian Embassy on 19 August have put you off reading any further.
And I must admit that it is with some trepidation that I sit at my keyboard and type this blog. Because, amid all of the strongly-held views on the subject, I suspect there is one thing on which everyone can agree - Mr Assange polarises opinion like very few other public figures. He is either a hero protecting our fundamental freedoms or (according to a number of US politicians, including Vice President Joe Biden) a terrorist.
There seems to be little by way of middle ground between the two extremes; and I doubt that I can contribute anything to the debate that will actually change anyone's point of view. So I'm not even going to try.
Instead, I want to try to shed some light on the legal issues; starting with the line of argument that suggests Mr Assange has sought asylum in order to avoid being extradited to the USA where his human rights would be at threat because he may end up being tortured or face the death penalty. But, as is explained in this brilliant blog by leading QC, Francis FitzGibbon, that line of argument doesn't help Mr Assange's case. Not only was it not used by his (very distinguished) legal team in any of the hearings before English courts, but European law would prevent anyone being extradited to a country where they faced the risk of torture or death. Indeed, Mr FitzGibbon casts pretty persuasive doubts as to whether Mr Assange is entitled to asylum at all (notwithstanding the fact that it has been granted).
Even if those arguments are ignored, and you accept that Mr Assange is simply playing the best cards available to him, he is open to criticism as to his choice of potential new home. Although Rafael Correa, Ecuador's President, has issued a robust defence of his country's record on press freedom, it does not appear to be the most obvious home for someone campaigning for freedom of information at all cost. Mr Correa stands accused of appointing biased judges who impose unfair penalties on critical journalists and confiscating press computers. Perhaps even more worrying for Mr Assange given WikiLeaks's raison d'être, a proposed penal code attempts to prohibit Ecuadorians from releasing confidential government documents. Mr Assange appears to have gained political asylum in a country that could well lock him up for doing the day job.
Finally, and with apologies for slightly revisiting a point I made back in 2010 when this story first broke, contrast the position in Ecuador with that in Sweden, which still stands accused by Mr Assange's supporters of having trumped up the charges of rape, sexual molestation and unlawful coercion against Mr Assange for nefarious political ends. And yet this is despite the fact that Sweden remains one of the fairest and most just countries in the world.
And that's not me saying that saying that because I think Sweden's a nice place (although I do); it's the World Justice Project who's rule of law index uses 8 factors to assess the strength of the rule of law in 66 countries around the world (although Ecuador hasn't been reviewed). Sweden's rankings are breathtaking: (i) limited government powers (3rd best in the world), (ii) absence of corruption (2nd best), (iii) order and security (5th best), (iv) fundamental rights (1st), (v) open government (1st again), (vi) regulatory enforcement (number 1 again), (vii) access to civil justice (5th) and (viii) effective criminal justice (7th). By way of comparison, the UK's rankings are 9th, 16th, 14th, 13th, 4th, 6th, 10th and 13th. The USA's are 16th, 17th, 13th, 19th, 12th, 15th, 21st and 20th.
If Mr Assange is innocent, then Sweden seems the sort of place where criminal charges trumped up by the government to help silence someone awkward are most likely to fail. Indeed, if you really did face the sort of persecution that would entitle you to political asylum under the UNHCR's 1951 Refugee Convention, you could do a lot worse than ask the Swedes for help.
I can't help but feel that Mr Assange is on very weak ground legally: his arguments don't appear to stack up. Whether you think that matters or can be ignored revisits the hero/terrorist debate which I dodged at the start of the blog and I am going to avoid once again at the end.
Back in February, Michael Gove, the Education Secretary, told the House of Commons Press Gallery that there was a "chilling atmosphere towards freedom of expression which emanates from the debate around Leveson". And, when giving evidence at the Inquiry in May, Mr Gove went even further. He argued that free speech didn't actually mean anything unless people were offended some of the time.
In Mr Gove's view, there is no need to limit the "precious liberty" of freedom of expression because, for example, reporting details of an celebrity's indiscretions might contravene that individual's right to privacy. Freedom of expression wins every time.
But does it? And, perhaps more importantly, should it?
There is a clever jurisprudential way of trying to answer these questions, for which we have to thank one of the great legal thinkers of the early twentieth century - Professor Wesley Hohfeld. Despite dying tragically young (at 38), Hohfeld (who held chairs at both Stanford and Yale) packed quite a lot of scholarship into his life. His key legacy is the analysis of what we mean when we refer to something as a 'right'. Hohfeld thought that there are four distinct concepts, each of which could be referred to as a right. For the purposes of this blog, the two key ones are (i) what Hohfeld felt could properly be called rights and (ii) privileges or liberties; what in modern-day English can be thought of as freedoms.
In order for either to exist, Hohfeld thought they needed a correlative: without the correlative, you can have no right and no freedom. The correlative for a right is a duty imposed on another person to respect that right. The correlative for a freedom is the absence of a right enjoyed by another.
The fact that the correlative for a freedom is the absence of a right is key. Freedoms are things we all enjoy in any event and without any restriction. On the other hand, we only have a right to something if someone else is obliged to respect that right.
If you assume that terms used to describe free speech and privacy reflect Hohfeld's analysis, then the fact that we say freedom of speech as opposed to a right to privacy is intuitive, and suggests that Mr Gove is correct. Free speech is a freedom we all enjoy without restriction; but we only have a right to privacy if others are obliged to respect that right. On a Hohfeldian world view, free speech also wins every time.
Indeed, until the turn of the century, this was arguably the position in English law. The courts had a long tradition of upholding free speech, whilst resisting a right to privacy.
The Human Rights Act 1998 (which came into force on 2 October 2000) changed that. Article 8 protects the right to respect for private and family life; and article 10 protects freedom of expression. To make matters even more confusing, Hohfeld's distinction between freedoms and rights has arguably disappeared. Privacy and free speech are both categorised as qualified (and not absolute) rights - and each comes with correlative duty. When they are in conflict, a judge needs to conduct a balancing exercise considering the comparative importance of each and the reasons for interfering with them.
For example, if a celebrity who publically supports family values and monogamy is having an extra-marital affair, then the hypocrisy could help to persuade the court that press freedom should win the day.
So, what about the questions posed earlier in the blog? The first is easy to answer: the Human Rights Act means that freedom of expression does not now always triumph over an individual's right to privacy.
The second question - whether or not it should - will, in part, be answered by Lord Justice Leveson. My own view is that the press is too intrusive. I'm not sure that my civil liberties would be in any way compromised if the press felt able to let celebrities make mistakes in their personal lives in private, but I know many people who disagree with me.
For the moment though, the last word should go to Lord Justice Leveson. Yesterday's statement on the press reporting of the concerns the judge raised in private following Mr Gove's February speech, contains (at paragraph 18) an interesting comment on how the press respond to criticism of their conduct:
"...it is at least arguable that what has happened is an example of an approach which seeks to convert any attempt to question the conduct of the press as an attack on free speech."
If free speech really is a freedom as envisioned by Professor Hohfeld, people (including judges) must enjoy a "precious liberty" to criticise the Fourth Estate. The press can't use the same civil liberty both to defend their own conduct and deflect any criticism of it. After all, an argument that the press can enjoy free expression and that others in society must respect that at all costs is to admit that free speech is a Hohfeldian right and not a freedom.
To describe New Street Station as a blight on the face of Brum is probably being a bit unfair to the unpleasant things in the world that are merely blights. At best, you could describe it as a necessary evil - an awful lot of us use it (140,000 every day, double the capacity it was built to deal with) but I don't imagine anyone likes the experience much.
It will come as no surprise when I say that I can't wait until it looks like this (the first half of which will be open at the end of this year):
So, imagine how chuffed I was when, before Christmas, I was able to be shown around the construction site. I was particularly impressed to see all the work going on out of public view whilst keeping the station up and running with little (if any at all) disruption.
Had it not been a breach of healthy and safety, I would have taken my hard hat off to the team from Network Rail and Mace who are delivering the project. As of the time of my visit, most of the work had been in relation to the new atrium (roughly the size of two football pitches) in what was the second floor of the old NCP car park.
However, over Christmas, the project went into overdrive. Between Christmas Day and 27 December, engineers used a 700 tonne crane to lift out an old section of the Navigation Street footbridge and install the new parts which extend it all the way to Platform 12.
Christmas also saw a new tower crane at the front of the station, the removal of the old Pallasades link bridge and escalator above Station Street, preparatory work on platforms 1-7 to construct the foundations for new public space and construction of new train crew accommodation above Platform 1, all achieved whilst Brummies hit the sales or went to the panto at the Hippodrome (which, if you are reading this before 29 January, I would wholeheartedly recommend seeing).
In what are troubled times for the construction industry, the project is also keeping a lot of people gainfully employed between now and 2015. It will also provide 350,000 sq ft of new development to the south of the station and, once completed, is anticipated to deliver 3,200 new jobs (650 in the John Lewis store alone).
We are also going to get a transport hub fit for the 21st century; one which will not only help make the daily commute a lot more pleasant but will provide a far-more-welcoming first impression for visitors to the Second City. It's good to have some good news to look forward to.
But, every silver lining comes with a cloud and I must admit to one reservation about the project: that pesky John Lewis. My good lady has intimated that it is going to result in the hard-earned Pemble shekels being spent on never-knowingly-undersold household knick-knacks that I (no doubt foolishly and incorrectly) suspect we could do without. I suppose I shouldn't complain too hard: I have been given 3 years' advance notice.
I am a bit surprised that more hasn't been made of this story. In case you missed it - and, given the lack of fanfare, it wouldn't be surprising if you had - November's issue of olive magazine voted Brum as Britain's foodiest place. We beat Ludlow into second place with Melton Mowbray and Edinburgh sharing the bronze medal position on the, no doubt tastily-constructed, podium.
What little coverage I have seen ranges from this article by distinguished food writer Matthew Fort, who, whilst acknowledging Brum's strengths, manages to cast some aspersions on the impartiality of the judging to fighting talk from some Ludlow foodies who seem to be a bit peeved about their town being knocked off its perch after it had enjoyed something of a monopoly on the number 1 spot over the past few years.
Compare this lack of fuss with how worked up we can get about whether Brum or Manchester is really the Second City (for example, see Karl Edge's excellent blogs from the summer - here and here - or how Digby Jones's views on the debate were reported in the Red Rose County). To repeat a question asked by Karl, who really wants to be known as 'second' anything?
Whilst Brummies are undoubtedly a self-effacing bunch, perhaps now's the time to indulge in some well-deserved shouting from the rooftops. Because, when it comes to matters foodie, we are second no longer.
And it's not as if it's Visit Birmingham saying this. It's olive. Whilst I must admit that I'm not a regular reader of the "stylish, monthly magazine for food lovers who enjoy cooking, eating out and foodie travel", I've no reason to doubt its impartiality and it seems to have its finger on the fashionable foodie pulse of the nation. Indeed, it is sufficiently trendy not to have a capital O at the start of its name, something which seems to be the height of contemporary chic to a 40-something lawyer and aspiring pedant when it comes to grammar.
So, here's to Birmingham: the First City of Food. Whether it's fine dining restaurants you can actually book a table at, wonderful food shops (a special mention for Steve and his excellent team at Rossiters Butchers in Bournville, the regular suppliers of tasty morsels to family Pemble as well as photographic stars of the article in olive), Moseley Farmers' Market, our great and diverse heritage (the balti and the creme egg were both invented here; what's not to like about that?) or anything else that we or our foodie chums at olive care to shout about, it's official - Brum is best. Let's celebrate that fact.
It's perhaps not the most auspicious of starts to my first blog in a few months that it should begin with a health warning. But this one does: beware the lawyer called Stuart who starts pretending that he knows something about life at the sharper end of our justice system.
But all is not well in the legal profession and it's a serious issue that affects us all. As part of the Government's austerity measures, the budget for legal aid in civil cases is being cut by £350 million.
Brummies take note!
No less an authority than the Post itself has suggested that Birmingham "risks being branded a city of party poopers" because only 12 applications have been made to close roads so that people can hold street parties to celebrate the royal wedding.
This compares unfavorably with those street party animals in Solihull (where double the number have applied) and ranks Brum alongside Dudley (again, only a dozen applications have been received). Mind you, and given the difference in sizes between the two places, these statistics suggest you're way more likely to find a street party in 'Swinging' Dudley on 29 April than you are in and around the no doubt gloomy and miserable streets of the Second City.
Or are you?
Last week, our elected representatives - or rather those not themselves in prison or on trial for expenses fraud - blew a metaphorical raspberry in the general direction of the European Court of Human Rights regarding the vexed question as to whether or not convicted prisoners residing at Her Majesty's pleasure should be able to vote. The issue is certainly divisive, and the recent comments from the Court's President comparing the UK to the Greek military dictators of the late 1960s probably hasn't helped.
Much of the debate seems to be polarised along strongly-held ideological lines. Those to the right of the political centre consider enfranchising convicted prisoners to be an extreme and dangerous idea which attaches more importance to criminals than it does to their victims. The Prime Minister has said that even having to contemplate giving the vote to prisoners makes him physically ill.
In the run up to Christmas, Laurence Simons (a legal recruitment firm) produced a report highlighting (to quote Jason Horobin, a director at Laurence Simons) the "disturbingly regressive picture of the opportunities open to those wishing to get into the law". The report's title says it all: "Educated the expensive way: legal profession's elitism gap widens". Mr Horobin concludes, in pretty bleak terms, that "Social exclusivity is rife in the industry" and that "the under-representation of those who can't afford a silver-plated education is getting worse, not better".
I should come clean at the outset; I've been to Sweden. Twice, actually. Although both were school holidays in the dim and distant past - staying with the good friends of my Mum and Dad whose existence I feel I must own up to in the interests of full disclosure - I still have warm memories of the country. Stunning scenery, very friendly locals most of whom spoke great English and I went on my first-ever roller coaster there; that final revelation alone surely being enough to show why I think fondly of the country and its people.
But, and in order to stress my objectivity, not all of my Swedish memories are great. On the first trip, family Pemble got caught in the worst rainstorm of any of our lives. Rain drops were bouncing back above my (admittedly not that tall) 10-year-old head and I was literally soaked to the skin. On the second trip, our home got burgled; something I (illogically I admit) still blame the Swedes for (because that was where we were when our neighbours phoned with the bad news) as opposed to the unfriendly Dundonians who actually committed the crime. And, worst of all, in 1987 IFK Gothenburg beat Dundee United in the final of the UEFA Cup, denying the boys in tangerine our best shot at European glory.
And I imagine most people probably have favourable impressions of the place. It's seen as liberal and tolerant of minority rights, with excellent health and education systems as well as a generous welfare state and a hard-won reputation for neutrality in its foreign policy. The reaction of Fredrik Reinfeldt, Sweden's Prime Minister and leader of the very Swedish-sounding Moderate Party, to the recent car bomb in Stockholm, seems to sum the place up quite well: "We must safeguard the open society where people can live together side by side".
It is also (along with Denmark and New Zealand) ranked as the least corrupt country in the World. To quote from the Heritage Foundation's freedom index report:
"Corruption is perceived as almost nonexistent. Sweden tied with Denmark and New Zealand for 1st place out of 179 countries in Transparency International's Corruption Perceptions Index for 2008. Comprehensive laws on corruption are fully implemented, and Sweden has ratified the 1997 OECD Anti-bribery Convention. The constitution and law provide for public access to government information."
What's more, it has incredibly strong laws protecting press freedoms, which Julian Assange has acknowledged is why WikiLeaks hosts its servers there in the first place (although it does have to be said the main base for the server looks like a Bond villain's lair).
All of which makes me question the conspiracy theories about the attempt to extradite Mr Assange. Mark Stephens, Mr Assange's solicitor (who is, like me, qualified to practise in England and Wales, countries rated as being less transparent and more corrupt than the one he is resisting Mr Assange's extradition to) has said that "It is unlikely that even if convicted Assange will go to jail, so in those circumstances one has to ask oneself why are the Swedish authorities so dead-set that he will spend Christmas in jail? Do they have the genes of Scrooge?" Another supporter, the writer Tariq Ali, has gone further suggesting that "The Swedes are acting on behalf of a bigger power".
Am I the only one who thinks these allegations are somewhat harsh on Sweden and its citizens? All the evidence suggests it's just not that sort of place.