Changing the law on prostitution

November 20 2008

The government’s review of the law on prostitution has not been universally welcomed: I’m going to be kind to it, for the most part. I think there are some really good recommendations here, for instance, that it should be possible to prosecute a first offence of kerb-crawling, and that there should be greater powers for the police to close down premises. The review also suggests there should be more rigorous enforcement of the existing law – again, I agree.

Where the review has got it wrong, I think, is in being over-cautious about criminalising paying for sex. Ministers (including the Solicitor General Vera Baird) looked at the example of Sweden, where paying for sex is an offence, but have decided that wouldn’t work here – basically, because prostitution is too popular. Read the review if you don’t believe me. I think that is a serious failure of political courage – I agree with Fiona Mactaggart about it. And it’s this failure which has put the government in an awkward position because what it is proposing is making it a strict liability offence to pay for sex with someone who is ‘controlled’ by another.

The government sees that as an attempt to protect trafficked women – but I’m afraid it’s nonsense. It’s not that I feel sorry for the poor man who can’t tell whether a woman has been trafficked or not. The problem is this: why should one man get away free because the woman he pays for sex – perhaps insisting on not using a condom – happens to stand on her own feet, while another is prosecuted because some man is in the background about whom he knows nothing? It’s too random, and too arbitrary. And why should the penalty be so low, at only £1000 maximum, when some of these men will know they’re exploiting a trafficked woman? It doesn’t make sense. Yes, there’s been talk around this review of charging with rape those men who do know they’ve used a trafficked woman – but that’s not actually a recommendation of the review.

I’d be in favour of criminalising all payment for sex – and charging knowing exploiters of the trafficked with rape.

2008-11-20T08:44:00+00:00Tags: |

Three legal stories from France

November 19 2008

A hot week for legal news from France. First, if you remember the controversy over the annulment of the marriage of a couple from Lille – on the grounds that the wife had lied about being a virgin – then you’ll be interested that on Monday the Cour d’Appel in Douai reversed the ruling, saying firstly that virginity is not an “essential quality” of a spouse, and secondly that the husband’s annulment application was not in the public interest. The couple are still married after all, then; they now need either to go through divorce proceedings, or else to try an appeal on a point of law to the Cour de Cassation (generally in France you have a full merits appeal first to the regional Cour d’Appel, then appeals on points of law go to the Cour de Cassation in Paris). You may remember that the justice minister Rachida Dati at first defended the initial ruling before backtracking, and ordering ministry of justice officials to bring this successful appeal.

The second story is also about Dati, because hundreds of judges have signed a petition against her, complaining essentially of bullying, or “putting unacceptable personalised pressure” on them, as they put it. This all follows the suicide of a sixteen year old in prison in Metz, after which Dati ordered inspectors in, who proceeded to interrogate the local chief prosecutor and his deputy until one in the morning. The judges – actually this will be a mixture of judges and prosecutors, the system being different in France – say Dati’s policies are also confused, since she wants tougher, minimum penalties. Dati defends herself in an interview for Le Figaro today. Note the prominent photos of Dati in these stories: Dati fascinates and attracts men (even Englishmen), media and unfortunately, trouble.

The third story is that it looks as though the former prime minister Dominique de Villepin will face charges of conspiracy to make false accusations (complicité de dénonciation calomnieuse) in connection with the byzantine “Clearstream” affair. It’s almost two years since he was first quesioned, and over a year since his office was searched.

2008-11-19T13:11:00+00:00Tags: , , , |

Lord Bingham on the legality of the Iraq war

November 18 2008

So, Lord Bingham has given his legal view of the Iraq war: that the invasion was a serious breach of international law.

Is there anyone who hasn’t made up their mind about this already? I doubt it. Of course, Lord Bingham has had to wait until his retirement to make his view public, so can’t be blamed for saying this five years after the event. But I doubt his view has much impact now. All this was pre-Head of Legal, so I don’t think I’ve expressed a view on it; all I’ll say now is that I’m more sympathetic to the government’s legal advice than Lord Bingham is. I think the “revival” argument has something to it.

Saying anything at all in defence of the invasion of Iraq makes you feel as though you’ve done something very impolite.

2008-11-18T12:40:00+00:00Tags: , , , |

R (Bancoult) v Foreign Secretary

November 18 2008

I’m catching up here on a House of Lords judgment I missed a few weeks ago in October. Bancoult is the culmination of a legal saga in which Chagossians – the people cleared off the British Indian Ocean Terrotories of Diego Garcia, Peros Banhos and the Salomon Islands – have claimed that legislation made under the prerogative powers excluding them from the islands is unlawful. This time, the challenge was to section 9 of the British Indian Ocean Territory (Consitution) Order 2004.

If ever there were a case that turned on its own facts, I think this is it. The Lords decided by a 3-2 majority to allow the government’s appeal: the order is lawful, and Chagossians remain lawfully excluded from the islands. The government must be relieved, as must the U.S. military, which uses the islands.

Their Lordships were extremely divided on the issues, with Lord Hoffman thinking the order intra vires and infringing no common law right, rational and breaching no legitimate expectation, while Lord Mance saw it as ultra vires, beyond the scope of the prerogative since it breached common law rights, irrational and breaching a legitimate expectation. Phew. I’d say that the government just about scraped this, and that the fact that the Chagossians were cleared off the islands thirty years ago weighed considerably in the minds of the majority. I think it’s clear Lord Mance’s approach would certainly prevail if the government were to try excluding the population from a territory like this today.

Beyond this, legislative orders made under the prerogative are reviewable by the courts – all their Lordships agreed on that. Surprisingly, the government doesn’t seem to have argued that the order was unreviewable on the basis that it was made for reasons of defence. A tactical choice, that, surely.

2008-11-18T10:35:00+00:00Tags: , , |

Sir Mark Potter’s reference for Bruce Hyman

November 17 2008

John Bolch (getting his second reference in quick succession) has an interesting post on whether Sir Mark Potter should have given a reference on headed paper for Bruce Hyman, the barrister convicted of perverting the course of justice last year.

I don’t think there’s anything wrong with what Sir Mark did: I even think he’s wrong to be defensive about what he calls the “error” of the reference going out on headed paper. I rather admire Sir Mark for being prepared to support someone who is probably highly employable – though not as a barrister – but who faces a considerable hurdle now to getting any job.

Read my typo-ridden comment at Family Lore.

2008-11-17T14:00:00+00:00Tags: , |

Baby P: the blame game

November 17 2008

I completely agree (not for the first time) with John Bolch at Family Lore about the Baby P case. Of course anything councils can do to improve child protection systems must be done – it must be done regardless of the Baby P case. But the truth is that no system can ever guarantee that it will catch child murderers before they kill. To some people, that may seem a hopelessly defeatist, uncaring attitude: it’s not. I suspect those who insist we must ensure this never happens again have not thought sufficiently about the difficulty of protecting children to this extent.

What can be done, though, is to shift the culture away from one that protects parents and their rights, towards one that leans towards child protection. That’s the kind of cultural shift that inquiry after inquiry has called for (and by the way, I never think an inquiry is the answer to any problem) but that doesn’t happen because it’s actually an extremely radical demand. It doesn’t happen because, if we really had a child protection culture of the kind that would even approach making sure there are no more Baby Ps, there would be an outcry about how the rights of parents had been curtailed. Does anyone remember Dr. Marietta Higgs? What about the Orkney abuse scandal? If you’re serious about this, either you realise it’s just too easy and glib to shout your mouth off about the failings of local government, or you take a clear stand about whether they should always err on the side of taking care proceedings, or always err on the side of leaving children at home. Most armchair critics want it both ways.

That’s why I’m reluctant to join in with calls that “heads must roll”. In part, it’s also because (perhaps as a former central government official myself) I despise the instinct that wants officials to fall on their swords to protect politicians. Councils, like central government, are led by elected politicians, and they should take responsibility for systemic failures just as much as their officials do. In part it’s because I think we are irresponsible in the extreme in the way we simply attack and scapegoat social workers, who do a job much more difficult than the ones most of us do, and who are neither well paid nor glamorised for it. In my view, before anyone is tempted to criticise a social worker’s “failings”, they should reflect on why social workers are not paid what footballers, pop stars or investment bank employees are paid (were paid, maybe, in the case of the City), and what difference it might make if they were. Actually, I’m tempted to propose a special £100 addition to the council tax for anyone who wants to have a go at their local social workers.

Finally, I must mention the temptation to scapegoat the lawyers involved, as in this distastefully personalised Telegraph article which somehow manages to imply that singing in a choir is shameful negligence contributing to children’s deaths. Of course, some people may think that because I’m a lawyer, I’m always going to defend lawyers. Not really true, but not an accusation you can ever satisfactorily rebut, so I won’t bother trying. The actual recommendations about legal services contained in the serious case review are either minor and bureaucratic – about filing, timescales and recording – or else fit in with my concerns about resources – saying it’s important that newbie lawyers’ work is checked and that sufficiently experienced lawyers are recruited. East to say, that last one; more difficult to afford.

If anyone’s going to criticise the individual lawyer who advised there was insufficient evidence to take care proceedings, they need to explain in detail, referring closely to the facts and evidence, why that advice was bad.

Oh, and perhaps it’s worth thinking about the child care lawyers, often underpaid women, who are giving good advice, often saying care proceedings are appropriate, every day. They’ll never get any public praise for that, or anything like the financial rewards that “funds” lawyers get (for what public benefit? – answers welcome in comments) but risk one day, when the tabloid mood changes direction, being pilloried as faceless functionaries too ready to snatch children from their homes.

2008-11-17T01:09:00+00:00Tags: , |

Diane Abbott’s "42 days" speech

November 14 2008

While we’re on 42 days, let’s think back to when the Commons debated the issue back in June. At the time I thought Diane Abbott’s speech stood out; and I’m not alone, because it won her the Spectator’s Parliamentary speech of the year award. Here’s the text of her speech – I wish I could link you to a video, because her tone of righteous indignation and controlled anger was something to behold. Terrific stuff, that makes you think Parliament’s best days might not all be in the past. I remember saying so a few days later to Charon QC, and I think he’s right that Ming Campbell’s speech in the same debate deserves recognition, too.

2008-11-14T01:49:00+00:00Tags: , |

Met Police Commissioner v Raissi

November 14 2008

On Wednesday in the Court of Appeal, Mohamed Raissi successfully resisted the police’s appeal against his successful action for wrongful arrest and false imprisonment, having been arrested shortly after 9/11 together with his brother, Lotfi, and his sister in law. It seems the police had little basis for his arrest; none, really, beyond his being Lotfi’s brother, and close to him.

Highly relevant to the non-closed 42-days debate, this case.

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