Fascinating facts about sharia, no. 2

July 4 2008

Here’s another good one from the learned Mufti. In answer to the question “what can the wife do if the husband refuses to divorce her?” he says:

The above verses are just some of the examples which indicate that the right to divorce has been given to men. There is not one verse in the Qur’an where divorce has been attributed to the wives. The same can be understood from the narrations of the Messenger of Allah (Allah bless him & give him peace).

One must always remember that Shariah injunctions are fully in conformance with logic, wisdom and are prescribed for the betterment of the society as a whole. We as Muslims believe that nothing has been ordained by Allah Almighty except that there is benefit in it for us. We are not from those that attempt to twist the rulings of Shariah in order to appease ourselves and the so called ‘modern world’.

He goes on to explain various “wisdoms” behind this position, many of which will simply delight feminists. To be fair, he does at the end say a woman can request an annulment from an Islamic court or council, but who will make up that tribunal? And don’t forget, a man needs no one’s approval.

2008-07-04T18:51:00+00:00Tags: |

Fascinating facts about sharia, no. 1

July 4 2008

As Lord Phillips helpfully pointed out in his lecture last night, in which he defended the Rowan Williams line, sharia is a set of principles ultimately based on the Koran. Good to know, eh?

But did you know that, in Islam, a man can divorce his wife by text message, even if he never sends her the text? That’s the view of Mufti Muhammad ibn Adam, at least. He teaches in Leicester. This is what he says:

a) If one merely typed the word “divorce” or Talaq” or “I divorce” etc on the phone as a text message or on a computer as email, without actually referring the divorce to one’s wife or taking her name, and also without sending her the message or mail, then in such a case divorce will only count if one intends it. The reason being is that this would be considered “informal” writing for which an intention is needed. It is similar to writing these words on a wall or piece of paper without actually addressing the divorce to one’s wife.

b) If one typed the word “divorce” or “talaq” etc as text massage or email and then sent it to the wife’s phone or email, then divorce will come into effect even without having an intention. The reason being is that, by sending the message or email to one’s wife, it becomes a formal writing of divorce in which having an intention is not necessary.

c) If one did not send the text message or email to the wife, but referred the divorce to his wife or took her name, then in such a case also, divorce will come into effect even without having an intention. It is similar to one issuing a divorce as formal writing without actually sending it to the wife. Referring the divorce to one’s wife and taking her name in it self becomes “formal” writing, hence divorce comes into effect even without intending it.

2008-07-04T10:28:00+00:00Tags: |

Lord Chief Justice supports the Williams nonsense

July 4 2008

There’s an eccentric side to Lord Phillips: I remember his speech to new bar students in 1992 in which he advocated our criminal justice system should adopt aspects of the French “investigative” approach to finding truth. Then there was his pretending to do community service back in 2006. Remember that? Now, though, he’s surpassed himself by lending his legal authority to the view, put forward by the Archbishop of Canterbury earlier this year, that Muslims should be able to resolve civil disputes including family cases, according to sharia law principles. I’m shocked, frankly. This is unfortunate, to say the least.

Lord Phillips takes the line, popular among defenders of Rowan Williams in February, that the Archbishop was “misunderstood”, and stresses that no one is advocating sharia courts which would order people’s hands cut off. That, I’m afraid, is pure spin and revisionism, whether or not Lord Phillips realises it. Overwhelmingly the criticism of Rowan Williams came from people who had read his lecture and did understand what he said: I did not imagine for a moment that flogging or cutting of hands was being suggested. The issue was the suggestion that family disputes could be resolved according to sharia principles. It’s not me and other opponents who misunderstand: it is Lord Phillips and other apologists for the Williams position who underestimate and traduce their critics. Lord Phillips used a passage of his speech to spell out in baby language what sharia is, and to dispel the myth that sharia courts might hand out terrible punishments. But no one ever thought Williams meant that. So why does the Lord Chief Justice treat us as idiots?

Lord Phillips wraps his message in silk:

There is no reason why sharia principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution.

I agree, and I said so in my original reaction to Williams. All very polite and reasonable, yes? No. Like Rowan Williams, Lord Phillips goes further. Defending Williams, he says

It was not very radical to advocate embracing sharia law in the context of family disputes

This is the crux. Islamic law on divorce and children is clearly discriminatory in favour of men and against women, yet the Lord Chief Justice of England and Wales says it is “not very radical” to propose applying it in England?

This dangerous idea is born of the idle musings of privileged, misguided men who have little idea of the lives of Muslim women and who prefer rubbing shoulders with “scholars” on trips to places like Oman. It must be firmly opposed by anyone interested in equality before the law and in gender equality.

As for Lord Phillips: if any public statement has ever shown the higher judiciary to be out of touch with society, this is it. Perhaps he knows he’s standing down soon, and has nothing to lose: if he were likely to hand around long, I’d say he should consider his position. Certainly, if these are his views, he is not fit to be the first President of a UK Supreme Court, a position it’s been suggested could be his. Nor would I like to see him sitting on that court at all.

2008-07-04T08:28:00+00:00Tags: , , , |

Criminal justice? A string of hopeless clichés

July 3 2008

You don’t often get TV criticism at Head of Legal, but last night’s episode of Criminal Justice, the BBC’s new five-part drama about a murder trial, requires comment. Lindsay Duncan played Alison Slaughter, leading counsel for the defence, and I think the BBC are damn lucky they got her to do it. I’ve seen her make Pinter comprehensible and compelling, and she even made the ridiculous part she was given dramatic, and even slightly credible, in an overplayed way. But once she left after about forty minutes the best thing about Criminal Justice had gone and it was more obvious even than it had been before that this was a tired, clichéd, naively idealistic-yet-cynical legal drama of the sort we really don’t need.

I’m not of the school that believes TV drama needs to be relentlessly true to life in its detail, so small inaccuracies like the fact that a remand prisoner had to wear prison uniform can pass, I suppose. And it’s possible he’d have had to share a cell with a convicted prisoner; I’d like to hear from those who know prisons better than me whether it’s at all likely he’d have had to share with more than one. But when the entire presentation of a trial is skewed so as show the system in its worst possible light (lying, corrupt policemen, barristers who despise everyone and make up the defence case) then I think there is a problem. The pity is that criminal trials are compelling and dramatic in themselves, without there be any need to tart them up like this.

It’s the clichés that really got to me: the hard-bitten defence solicitor with an estuary accent who just cares about results and is incapable of fastening his top button; the hard-faced woman barrister who looks down on the pathetic rest of the world; the biased judge; the fresh-faced “rookie” barrister who plays a blinder. You only have to look at the BBC’s guide to the various characters to see how familiar they are. Here’s one:

Hooch is an insightful, world-weary, once-violent criminal. He has finally learnt to stop fighting what he can’t overcome and has found a place for himself in the world as a “listener”.

Need I say more? Pete Postlethwaite, who plays Hooch, surely got his fill of this sort of stuff in In the Name of the Father, you might have thought. But no.

And apart from this, there was speechifying in the guise of cross-examination, recalling witnesses to force them to admit there’s a crucial missing bit of evidence, last-minute desperate appeals to the deceased’s friend to “help”, and a sneeringly arrogant prosecution counsel. If you’re going to make hokum, why not make out-and-out laughable hokum like Judge John Deed? At least that really is funny. I’m afraid this is an equally lazy and uninspired legal drama, but which unfortunately seems to have ideas about itself. I’m sorry this is the best new legal drama the BBC could produce as part of its courtroom dramas season.

2008-07-03T09:58:00+00:00Tags: |

Nearly Legal on Weaver

July 2 2008

Before my post yesterday, Nearly Legal wrote extensive comments on the case – I recommend a visit for anyone interested in the case. Nearly Legal has also commented here at Head of Legal.

I think the amendment Nearly Legal mentions must be this one (scroll down a bit for the debate), moved by Baroness Hamwee at Committee Stage in the Lords. Interestingly Baroness Andrews for the government opposed it, and tried to explain to the House why the government’s opposition to making registered social landlords under the Human Rights Act is consistent with its wish to bring care homes under it. She said it was all to do with history and the extent of regulation in the two sectors, plus the vulnerability of care home residents. But I don’t buy it at all: it seems to me that what care homes do and what RSLs do is pretty much analogous, and I can’t understand why one should be subject to human rights obligations and the other not.

2008-07-02T13:26:00+00:00Tags: , |

Functional public authorities under the Human Rights Act

July 1 2008

Jut over a year ago, the Lords settled the debate about whether care homes carry out functions of a public nature, and so are public authorities subject the the Human Rights Act; it decided, in YL v Birmingham, that they don’t, and aren’t. But that wasn’t the answer the government had wanted, and they’re going to get their way because the Health and Social Care Bill is due to get its third reading in the Lords today. Section 144 is the key provision: it provides that where a care home provides accommodation under (in England and Wales) the National Assistance Act 1948, it is to be taken as exercising a public function. So, the human rightsists have got their way. Lord Hoffman spoke in the House of Lords the other week about a “regrettable tendency” to see the whole of criminal justice in terms of human rights; I think that regrettable tendency extends to all areas of social policy, and I doubt this legislative change will actually help residents of care homes. They’d be better off with better regulation under the Care Standards Act 2000.

Perhaps no one should be surprised, then, if the courts retreat from YL and fall back into a rather mushy and expansive view of what a functional public authority is. An old government legal friend has drawn to my attention last week’s judgment in R (Weaver) v London and Quadrant Housing Trust in which the Administrative Court has decided, purportedly applying YL, that a registered social landlord is a public authority for human rights law purposes. Paras. 52-63 of Richards LJ’s judgment are the important ones. The key factors influencing his decision were the amount of public subsidy the Housing Trust receives, together with the fact that through guidance it in effect implements government housing policy; the fact that public housing stock has been transferred to it, and that it has a duty to cooperate with local housing authorities.

I am entirely unconvinced by this: the majority in YL saw the involvement of public funds and regulation as of marginal importance, and certainly not decisive. They thought something more was needed – like special powers to detain residents – before giving them accommodation in return for money could be said to amount to a public function. I think Weaver is not so much an application of YL as a retreat from it; and back we are in the old mush and fudge in which the courts used to look at the skein of relationships between the body in question and undoubted public authorities, instead of focusing of the nature of the functions it carries out.

Let’s see what the government thinks of the decision in Weaver. If it accepts the result, fine: at least it will be consistent with its policy in the Health and Social Care Bill (I can’t myself see any relevant difference between care homes and registered social landlords). If it doesn’t, then I’m afraid it has only itself to blame, and we’re likely to get into increasing legislative whimsy about what types of body should be subject to the Human Rights Act, and which not.

2008-07-01T13:04:00+00:00Tags: , , , |

R v G: charging policy and respect for private life

June 27 2008

The other reader request comes from an equally esteemed legal chap whose legal interests closely match those of Head of Legal and who finds early mornings equally or perhaps even more challenging. He asks what I think of the Lords’ judgment last week in R v G.

The facts are these. G was prosecuted for statutory rape of a girl under 13, under section 5 of the Sexual Offences Act 2003. It’s an offence of strict liability: you’re guilty if you have penetrative sex with anyone under 13, however old you thought they were, and whether or not they seemed to consent; and the maximum sentence is life. G admitted having sex, when he was 15, with a 12 year old; but he said she consented (not legally, obviously, but, if you like “practically”) and told him she was 15. He pleaded guilty, and was sentenced to a year’s detention, which was reduced on appeal. But the question that went to the Lords was whether charging him under section 5 at all was a breach of his article 8 Convention right to respect for his private life.

The argument ran in essence like this. The decision to prosecute engaged article 8 as it interfered with a sexual relationships which was on G’s version practically, if not legally, consensual. And it was disproportionate to charge him under section 5, as he could and should have been charged, on the facts admitted, with the less serious offence under section 9(1)(c)(ii), read with section 13, of sexual activity with a child, which for offenders under 18 carries a maximum sentence of only five years. Ergo, the prosecution and conviction breach his Convention rights. I think this argument raises two interesting questions: first, whether prosecuting this type of offence can ever be said to engage article 8; and secondly, how proportionality works.

Lord Hoffman took a very robust view of this appeal. At paragraph 7 of his speech he says

The… ground of appeal is that the conviction violated the appellant’s right of privacy under article 8. This is, on the face of it, an astonishing proposition. Is it really being suggested that a young person under 18 has a human right to have undisturbed sexual intercourse with a child under 13? If anything is likely to bring human rights into disrepute, it is such a claim.

and at paragraph 10 he makes this bold statement:

Prosecutorial policy and sentencing do not fall under article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights. It is a matter for the ordinary system of criminal justice. It would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.

Now, first, I have to say that I admire Lord Hoffman’s style, and am glad that someone else is as sceptical as I am of what he calls a regrettable tendency, and what I call human rightsism. But as he reads this post (as no doubt he and all their Lordships do, avidly, to see how their speeches have gone down) he’s going to be disappointed. I think he goes too far, here.

The mere fact that a statute creating an offence can be prosecuted without breaching Convention rights – that there are circumstances in which a conviction would be compatible with those rights – means that the legislation itself, the offence, is human rights-compatible. But it does not follow that each and every investigation, prosecution and conviction are compatible – any more than, say, the fact that surveillance powers may be compatible means each and every use or abuse of them complies with Convention rights. So I can’t, unfortunately, go along with Lord Hoffman on this one.

Lords Hope and Carswell take the opposite view to him, and decide that the prosecution was disproportionate; but I think it’s Lady Hale who gets this one right. She thinks article 8 is not engaged on the facts but decides not to dwell on this question – perhaps rightly, because I’m not sure it actually matters a great deal – but decides that the prosecution was in any event was justified and proportionate in the circumstances. She helpfully sets out the full facts, which are that the girl initially told police she did not consent in any sense, but objected to having sex with G. It was later, when she admitted she might have told G she was 15 and was reluctant to give evidence, that the CPS accepted G’s plea on the basis of the facts he admitted. Against that background, it seems to me difficult to criticise the CPS’s decision to go for the more serious offence. Lady Hale also sets the human rights issue in context: the girl has article 8 rights, too, which the law, the police, the CPS and the courts must all respect. Providing her with inadequate protection by punishing G unduly leniently would also risk breaching Convention rights. She agrees with Lord Hoffman on the result, of course, dismissing the appeal; and Lord Mance agrees with her.

The point on the article 8 issue seems to me to be that article 8 is not engaged by these facts: having sex with a 12-year-old girl is not the kind of sex (if you can call it that) which is protected by article 8. That’s not the same as saying that every kind of sex is taken out of article 8 simply by being criminalised, which is what Lord Hoffman’s approach would amount to.

I’m also interested in the implications of the case for proportionality, though, implications that many may find obvious, but that I think are often overlooked. It’s often suggested that the state must interfere with Convention rights in the least invasive way, so that if a small hammer is available to it it ought really to pick that up, rather than using any large or even sledge hammer. But it just does not follow that the mere fact that a less invasive interference is available makes choice of a more invasive one disproportionate. So here, even if article 8 does apply, the mere availability of a lesser charge does not make it necessarily disproportionate to charge under section 5.

2008-06-27T16:55:00+00:00Tags: , , , , , , |

That Burnham-Davis-Chakrabarti affair

June 27 2008

In my blawg radio silence earlier this week I received a couple of reader requests to deal with vital topics of the day. The first, from an estimable legal lady whose handbag bulges with law reports and Heat magazine, and who wants to know my view of the recent heart-melting ménage à trois involving the fresh-faced culture minister, the political Don Quixote of East Yorkshire and my former government legal colleague turned director of Liberty. You’ll remember that Andy Burnham suggested in an interview that David Davis was

having late night, handwringing, heart-melting phone calls with Shami Chakrabarti.

Chakrabarti threatened to sue, Burnham apologised after a fashion, and all involved have now “moved on”.

Well, my thoughts are these. First, it seems that Burnham’s comments came against the background of Westminster whispers about an affair between Davis and Chakrabarti: he must have been aware of the nudge-nudge implication of what he was saying. Second, I suspected from the start that the rumours were not just idle gossip, but had been circulated deliberately by Labour whips to discredit the anti-42 days campaign, and Diane Abbot on This Week (you can watch the programme for another six days: what she says comes after 2 mins. 45) was of the same view, saying that

elements in the government decided to spread the rumour…

She has a little bit more to say, too, about what Andy Burnham ‘s alleged to have been saying at a press party.

So I think this story shows how desperate Labour whips really were over 42 days, and are over the government’s position generally. Some people have accused Chakrabarti of overreacting, and I think if we were talking about normal life, that’d be a fair point; but I don’t blame her for what I’d call a tactical overreaction: making a big fuss and embarrassing ministers over this meant she and David Davis are probably politically stronger now, as a result of the affair (don’t sue, Shami! I don’t mean it!) and the government weaker.

I’m tempted to make some joke about detumescent ministers, but perhaps I’d better leave it.

2008-06-27T15:40:00+00:00Tags: , , |

Austrian Chancellor’s future referendum promise

June 27 2008

Iain Dale picked up this morning on a surprising move from the Austrian Chancellor Gusenbauer: he’s promised a referendum on any new EU Treaty which “affects Austrian interests”.

This is a bit more complicated than it sounds. Gusenbauer is in pretty desperate political straits: only the other week he was forced out of his position as socialist party chairman following a period of muttering that he couldn’t lead his SPÖ to another victory at the next elections, and a bad regional election result in Tyrol. Remind you of anyone? In Austria, as elsewhere or perhaps more than in most countries, Euroscepticism and the demand for a referendum have been gaining ground because of campaigns by populist newspapers and far-right parties but also because of genuine resentment among many citizens at not being consulted about anything since Austria joined the EU back in 1995. Gusenbauer is clearly trying to gain some ground by this surprising move.

I’m not sure it’s quite what it seems, though. I think Gusenbauer is protecting one flank with this populist move, while at the same time digging himself into what is effectively a determined “Lisbon or bust” position. It’s only days ago that he was suggesting there be a second Irish referendum, and this new promise applies not to Lisbon, but to any renegotiated treaty that might be put forward as a solution to the “Irish problem”. In other words, he is piling the pressure on Ireland by putting a spoke in any renegotiation.

2008-06-27T13:10:00+00:00Tags: , |
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