Flogging a 15 year old, lawful or awful?

A recent case in the Maldives has highlighted some disturbing breaches of human rights and has led to a large scale petition being launched calling upon the Maldivian government to address their laws with a matter of urgency.

The case revolves around a 15 year old girl being sentenced to 100 lashes in public and 8 months’ house arrest for having pre-marital sex with a man.

The 15 year-old girl, from Feydhoo island in Shaviyani Atoll in the Maldives, was arrested when police discovered a dead newborn buried in the yard of the family home. The investigation uncovered a disturbing set of circumstances that is unfortunately a common reality of sexual abuse in the Maldives. (Another Maldivian case)

During the investigation, it was established that the girl’s stepfather had been raping her for years. The girl’s mother had in effect, ignored the goings on and failed to protect her daughter from the stepfather. As a result of the ongoing abuse and rape, the girl fell pregnant.
Elements of guilt must have existed in the minds of the couple, as they removed the girl from school to prevent anyone finding out. The baby was born and immediately killed and buried.

I make no apologies for the graphic nature of this case, it is as reported and the full story needs to be understood to be able to determine the relevant issues in this case.

The stepfather and mother still have pending charges against them for the atrocities mentioned above, namely for murder and abuse, but the real sting in the tail is this:

The reason the girl has been sentenced to 100 lashes and 8 months’ house arrest is for an act of fornication with another man (other than her stepfather). However, that other man has never been named, come forward, or even arrested and some may argue that the ‘other man’ may not even exist.

The Law
Without over complicating the law of the Maldives, it’s legal principles are largely a Sharia-Common Law based system, as the Maldives are predominantly Islamic.
The offence with which she is charged, is the offence of ‘Zina’ which falls under the Islamic sexual jurisprudence of ‘Fiqh’, which is an expansion of the Sharia code. ‘Zina’ translates as ‘unlawful sexual intercourse, which includes: intercourse between individuals who are not married to one another and encompasses extramarital sex and premarital sex. interestingly ‘Zina’ does not differentiate between adultery and fornication (The term ‘Fornication’ has differing religious, cultural and societal meanings, in this articles context, it refers to the offence of ‘Zina’ as identified above).

The punishment by the Maldivian Judge is in line with ‘Qur’an 24:2′.

Many would clearly be appalled that a 15 year old girl will be subjected to 100 lashes, this is in fact in line with Sharia-Common Law, but it has been widely criticised by organisations namely Amnesty International and even a bill was laid before the Maldivian Parliament by MP Nasheed (the bill was on his blog site, but has been deleted by an unknown source according to his new blog here) updating the current law to reflect modern society and defines action to be taken against specific sexual offences.

It could be argued that the legislation in the Maldives in terms of Sharia-Common law, more likely than not, does not share the same elements of statutory interpretation afforded in this country. For example, was it the intention for this law to apply to 15 year olds? If statutory interpretation exists and considering the law surrounding consent and additionally the protection of a vulnerable individual who the law is designed to protect, the Judiciary would have a duty to interpret the intention of Parliament through the ‘rules of statutory interpretation’, of which three rules are used to assist the Judiciary: the Golden Rule, the Literal Rule and the Mischief Rule, however they are not strictly binding.

Whilst there is much criticism of the Judge for convicting the girl, he was following the law. In addition the punishment for that offence was according to Sharia-Common Law. The issues here are various, firstly the fact that the law does not reflect the age of the girl, secondly, the law of consent does not exist and finally the punishment for a child of that age is draconian.

The law clearly needs to be addressed to prevent an overtly unjust conviction and indeed to prevent punishment of young vulnerable children who should be protected. This girl is clearly already damaged as a result of the abuse and rape, and should not have suffer further humiliation or physical pain more than she has already suffered, consideration should be given to the ‘best interests of the child’.

Fortunately, ‘the government of Maldives has recently committed to protecting the 15-year-old, However ‘She is still at risk of being flogged and house arrest while the conviction hangs over her head.’(Source)

sign the petition here

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litigants in Person (LIP’s) cost implications of the legal aid cuts.

With cuts to legal aid taking place from 1st April 2013, there will no doubt be a rise in Litigants in Person (LIP’s) and many have identified that the courts may be over run with claims and the judicial process may slow down as a result, thereby causing further costs on the taxpayer in respect of delays in access to justice, which in turn could lead to little or no cost saving for the taxpayer at all. The legal aid cuts include, the withdrawal of the right to access legal aid in number of sectors including: family disputes, housing, debt, clinical negligence, welfare and employment.

However LIP’s must consider the following.

There are usually 2 parties to a claim, a Claimant and a Defendant. On occasion there can be more than one Claimant and more than one Defendant, making cases that little bit more complex. As a result, there will always be a successful party and an unsuccessful party(winner and loser respectively). That is inevitable.

Now that the legal aid cuts have taken place, it makes it increasingly more difficult to find funding to bring a claim or to even defend a claim. But there are hazards in both bringing and defending a claim and LIP’s need to be aware of these hazards and below I intend to highlight a few to allow LIP’s to make an informed choice.

Small Claims Court
In the small claims court it could be said that LIP’s are the rule rather than the exception, but that is not always the case, some claims in the small claims court are litigated by lawyers. However the Civil Procedure Rules have an overriding objective. Within that overriding objective, there are two aspects to note, they are: ‘ensuring that the parties on an equal footing’ and also ‘saving expense’ (Rules here).

This enables the small claims court to adopt a more informal approach (although there are still some formalities that need to be adhered to especially the ‘Small Claims Court Case Management Directions). However when it comes to costs, these are limited and offer some protection to LIP’s who bring a claim, although there are fees that may be payable (Fees) these are limited. It is worth noting that the small Claims court has a financial limit of £10,000 (from 1st Apr 2013)If the value of the claim you wish to bring exceeds this amount it will be litigated on the ‘Fast Track‘(financial limit of £25,000) or Multi Track, this is the general rule, however complex issues under £25,000 may be allocated to the Multi Track.

Fast Tack and Multi Track
When an issue needs to be litigated and the value is above £10,000, costs can generally be applied in the Fast Track and Multi Track. This is generally where they differ from small claims. In small claims, costs are not generally applicable and the general rule is that the loser pays the other parties fees. That is okay, if you win your case, as the other party will be required to pay the court fees you have incurred in bringing the claim(remember to include the fees in your claim). The general rule of loser pays is a predominant feature of the civil courts.

Where the problems lie, is that if a claim is litigated in the Fast Track or Multi Track process, there may well be costs to be applied if the successful party is represented by a Solicitor or Barrister. So, if you lose your case, you may have to pay the other parties costs. These can be substantial in Multi Track Claims.

Advice
If you are a LIP, and you want to bring a claim for more than £10,000 it may well be worthwhile seeking advice in the first instance before bringing a claim. By seeking advice from a Solicitor or even a Direct Access Barrister in the first instance, may provide you with the relevant information on whether your claim has any merit or any real prospect of success. What you think is a strong case, because you feel you have been hard done to, may not be a strong case in terms of what the law says. Additionally, if you are relying upon the court to provide legal advice when you get there, you may find that where you may be assisted with the process, the Judge is unlikely to offer any legal advice as this would not be impartial in the case. Therefore seeking and paying for legal advice in the first instance could save you thousands of ££ in the long run.

If you do not have the funds to pay for the advice to establish if you have a claim, then it may be worthwhile speaking with the CAB or even a local law centre or Law Clinic which offer free legal advice, others for your area can be found here.

If you do find yourself in court acting for yourself and the other party is represented, TALK TO THE LEGAL REPRESENTATIVE! Many issues can be solved at the door of the court, or even long before this, thus saving costs. Don’t lose your house because of stubbornness and thinking you have the strongest possible claim, when you may not understand the legal issues, do not get emotional, put emotions to one side and think logically and with a little bit of common sense and finally, make sure you take opportunities offered to reduce costs.

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Derek Acorah to assist in dead Russian lawyer’s Trial!

Every now and again, somewhere in the world, the bizarre happens in law. The commencement of a trial in Russia in the last day or two has sparked controversy. Sergei Magnitsky stands accused of assisting an investment fund to evade tax.

Whilst there does not seem anything controversial about the nature of the offence, the controversy surrounds the fact that Magnitsky is dead and died in 2009.

Magnitsky was imprisoned at the the time of his death, and he is alleged to have died under suspicious circumstances from pancreatitis. The allegations into his death suggest that he died as a result of being beaten and denied medical care. Russian Police are no longer investigating his death, due to ‘lack of evidence’.

Magnitsky was arrested while investigating the alleged theft of $230m (£150m) by interior ministry officials in Russia. He accused them of filing false corporate tax returns, after discovery of documents from Hermitage Capital.

Magnitsky whilst investigating these claims was then accused of helping Hermitage Capital evade $17.4m (£11.7m) in taxes.

The defence lawyer in this case made objections to the Judge, stating that he had not been given access to some documents and not had a reasonable opportunity to study the charges. The Judge dismissed the objections and even went as far as to say that “the court has the right to examine the case against the dead man including with the aims of rehabilitating him”!

The US has hit out at the Russians by passing the ‘Magnitsky Act’. The Act effectively blacklists those Russian officials accused of involvement in Magnitsky’s death. The Russian President (Putin) has introduced a Russian law barring Americans from adopting Russian Orphans. A little tit for tat and clearly the Russian response has been considered as a result of the impact of the case itself and has huge significance to the actual facts of the case!

Anyway, I have no doubts this will rumble on and I shall be keeping a keen eye on proceedings. In fact I am looking forward to the examination in chief and cross examination of Sergei Magnitsky, it is going to take the skills of a very good advocate to get out of this one, I wonder if Derek Acorah, is aware of this case, he could play a significant part.

What will be even more interesting, will be the rehabilitation as outlined by the Judge if Magnitsky is convicted!

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Ten Top Tips when studying Law

Ten top tips when studying law.

Many people when studying law either at UG or PG, never take advantage of some of the opportunities on offer at universities and locally. Universities differ, the optional subjects differ, the opportunities differ and generally they are all unique in their own way. Here are some top tips to give you the edge when studying law:

1. Check your emails/virtual learning environment.
This is vitally important. It is also important to check your university email daily. I often email opportunities or put them on our virtual learning portal. The types of opportunities include: CPD for Lawyers, opportunities to network, Guest lectures, important visits etc. If you want to get yourself known in the legal world, get known at university.

2. Get involved in Student Societies.
There are many people who put their name down to be a member of the student law society, pro-bono societies etc…so what, everyone does this! What recruiters are looking for is how you made a difference to that society, your involvement in it. Stand out from the rest by seeking out the positions within the society to make a difference and make that difference. Don’t just tag along, be pro-active.

3. Volunteering.
There are loads of opportunities, local to all universities that depend on volunteers. You could make a difference to somebodies life as well as your own. Look for local CAB’s, Victim Support, Youth Groups, advice centres etc. the more you can put onto your CV the better…but don’t forget to show why it is relevant e.g. ‘worked as a volunteer advisor with CAB, providing advice and guidance in consumer law issues, this allowed me to develop my legal knowledge in this area.’

4. Read…lots of it, it is good for you!
As well as textbooks, cases and journals, there are hundreds of bloggers out there that are very informative about recent developments in law and also recent developments in the legal profession. Understand things like QASA, OCOF, BVT. If you do not know what is happening in the profession, you may come across a little delusional. This is called commercial awareness.

5. Understand that there is more to Law than crime.
So many Law Students start their law degrees with very little knowledge of other areas of law. Brush up on the other areas, they are equally important. It is not all about programmes like Silks, Law and Order UK, or even Rumpole of the Bailey (if you are old enough to remember, or you could catch up on Dave or DVD!). There is so much more to law and equally a lot of the areas use the same skills.

6. 3rd year options.
Consider your 3rd year options carefully. Even in your 1st year it is worthwhile looking at the final year options. These can have an impact on your interests and future careers. Here at Teesside University we have Teesside Law Clinicas a 3rd year option, it is built into the degree and therefore carries credit value. It also provides you with the skills you will need when going onto the LPC, BVC or in practise.

7. Get a smartphone.
My Nokia 3310 does not have the capacity to keep me updated on the move. Modern smartphones can keep you up to date with emails, blogs and apps. There would then be no excuse for missing out on relevant information needed to be up to date and informed about what is going on around your area of interests.

8. Social Media.
Use it. Set up a twitter account, follow people on twitter. I don’t mean the likes of Cameron Diaz, although I have to say she has some interesting tweets, I mean QC’s, Judges, Solicitors in your areas of interest, Law associations, SRA, Bar Council, Bar Standards Board, Supreme Court, Lecturers etc. there are so many out there. I regularly blog, and upload a link onto twitter, these are regularly retweeted. This is a good way to view the musings and mutterings in the legal world, take advantage of it.

9. Use your Careers Service..
Careers Services in universities are free! Take advantage of them, update your CV regularly with their help, and tailor them to include legal work. Attend their talks; do not miss out on funding opportunities! The amount of people that come to me and say they missed out on funding opportunities to further their careers, still amazes me, especially if I ask them if they attended the careers talks and the answer is generally no. Use your careers service, book an appointment early on in your studies.

10. Finally, be the best you can be.
Studying Law is tough, you want the best possible degree, but you also want the best possible experience. It is all about your positive mental attitude. The study of law is a long journey and the best get through it and do well. Make sure you have enough in your toolbox to make sure it is you that makes it. Be tenacious and work smart.

I am sure there are many more tips that could be offered, however I have asked students who study law what they wish they knew and what they would do differently and adapted this list from it. Enjoy University, but you will only get out of it what you put in, both academically and experience wise. Ultimately it is down to you.

Andrew Perriman
Twitter: @andyperriman
Blog: lawblogist@wordpress.com

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Anonymity in serious sexual offences…time to change?

With the recent Sentencing Guidelines Council consultation on sexual offences closing to further comment on 14th March 2013, and the announcement that RADICAL measures to transform the way the criminal justice system tackles child sexual abuse (announced by Keir Starmer QC DPP on 6th March 2013), is it time to review the delicate issue of anonymity of defendants and victims in these crimes?

The Sexual Offences (Amendment) Act 1976 sections 4 and 5 provide for the anonymity of complainants in rape cases. The Criminal Justice Act 1988 amended the law on anonymity for complainants in rape cases so that anonymity commences when an allegation of rape is made to police and not as provided in the Sexual Offences (Amendment) Act 1976, when a defendant is formally accused. The 1988 Act also removed the anonymity of defendants in rape cases. There were further additions made in the Sexual Offences (Amendment) Act 1992 and the Youth Justice and Criminal Evidence Act 1999.

Each year, approximately 85,000 females report being a victim of the most serious offences of rape or sexual assault by penetration. Among males the number is 12,000. Despite the figures outlined only 15% of those offences were reported to the Police. From which prosecutions were mounted against 2,910 individuals, resulting in the convictions of 1,070 rapists who committed an average of 2.3 offences each. The figures suggest that just one major sex crime in 38 leads to a conviction for the offence (Source: MOJ)

What is even more disturbing, is that around 90 per cent of victims of the most serious sexual offences knew the perpetrator. Baroness Stern identified the large number of victims who knew their perpetrator in the ‘The Stern Review‘ in 2010.

“Rape can occur in a range of circumstances. Those usually referred to as ‘stranger rapes’, the sort of incidents most often reported in the newspapers, where the victim and perpetrator do not know each other, are a small proportion of rape cases. Most rapes are carried out by someone the victim knows. Much rape occurs in families… Vulnerable and powerless people are often the victims of men who identify them as easy targets and take advantage of their need for attention and affection.”

On the face of it, as identified in the legislation, victims have an automatic right to anonymity when they make their initial allegation to the police. Defendants cannot rely on anonymity at this early stage. However, that is not to say that an application for anonymity of the defendant cannot be made to the court.

Recently cases of serious sexual offences have hit the headlines in light of the allegations against Jimmy Savile. Whilst the circumstances in this case may differ as the allegations came out after his death, there are other high profile cases which have been in the press more recently, namely Dave Lee Travis who has been re-arrested and questioned by police and also the likes of Michael Le Vell (Kevin Webster, Mechanic in Coronation Street), who appeared in court having been charged with 19 offences, including rape of a minor. Anonymity has not been given.

There are organisations that advocate the naming and shaming of defendants in these cases pre-conviction. Their rationale for doing so is to effectively encourage others to come forward, who may have been subjected to the same type of offences as those of the victim. The danger here, is the consideration of the defendant in that if the charges are not proved by a jury of their peers, the stigma has been attached and could lead to the serious consequences for defendants at this stage of proceedings. There is, of course, the subject of false allegations, which in a ‘Trailblazing’ report, are not as common as first thought (report), however it is identified that: “Where false allegations of rape and domestic violence do occur however, they are serious: reputations can be ruined and lives can be devastated as a result. Such cases will be dealt with robustly and those falsely accused should feel confident that the criminal justice system will prosecute these cases wherever there is sufficient evidence and it is in the public interest to do so.” But does this go far enough when they have been named and shamed and the stigma is already attached? Is there smoke without a fire?

In conclusion, would there be a detriment to proceedings in serious sexual offences if anonymity was given to both parties until conclusion of the case? Is there any evidence to suggest that others who have suffered at the hands of convicted defendants would suffer a detriment or be encouraged less to come forward post conviction as to pre conviction as a result of anonymity?
There is also the danger of identifying a victim by identifying the defendant, especially if the defendant is known to the victim as outlined in approximately 90% of cases. Our communities are small and people guess or attach the label. How far do we go to protect the victim and the stigmatised defendant. There is a fine balance to make, but an important balance nonetheless. There is a clear argument for anonymity for both parties until the conclusion of cases of serious sexual offences, as both parties could have their reputations put through the mill if identified too early in proceedings and lives could be ruined both ways.

Additional info:
To share your thoughts on this, maybe you could get involved in the consultation, keep an eye on the CPS website or JUSTICE website, where a consultation may no doubt be launched in the very near future covering serious sexual offences from reporting through to conviction. Keir Starmer QC DPP has already identified the following:

• A clearing of the decks in relation to policy and guidance. All existing policy will be decommissioned, with one overarching and agreed approach to investigation and prosecution of sexual offences to be applicable in all police forces and agreed by the CPS. The CPS will also draft new guidance to ensure consistent best practice, which will be open to public consultation.

• Training will ensure there is no gap between policy and practice. The training will be hands on and provide practical advice to police and prosecutors about when a complainant can and should be told about other complaints, among other things.

• To propose the formation of a national “scoping panel”, which will review complaints made in the past which were not pursued by police and prosecutors, if requested.

Mr Starmer said: “There is an urgent need for an informed national debate about the proper approach to the investigation and prosecution of sexual offences.

“That debate needs to extend well beyond the CPS and the police. Above all, a national consensus needs to be reached on the issues.”.telegraph article

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BVT, QASA…OMG

Let me explain the purpose of this blog…it is purely my views, mutterings and ramblings and no more than my perspective. I am a law lecturer. I am a pupillage hunter. Even I am worried!

Firstly, let me identify a couple of things, the acronyms above are important, not just to those currently in practise, but also to those who have the ambition to practise. Like many, I have taken to the world of twitter and follow some very inspiring people, people who I would one day aspire to be as good as, if not better…if that is at all possible. Recently I have noticed a number of grumblings about the changes due to be implemented…if Grayling gets his way. Grayling is a man who has little understanding of the bar, it’s work and its envied reputation throughout the world. He even failed to understand the importance of QC’s in complex criminal cases and their necessity. But that is a side issue…he will learn, no doubt the hard way…anyway I digress.

Firstly I want to explain Lidl Law, also known as Best Value Tendering (BVT). Some on twitter have wrongly quoted that legal services will go to the highest bidder. Unfortunately that is not the purpose of BVT. BVT will evidently erode the criminal bar as we know it by tendering out work to the lowest bidder. Why? Well simply because the government feels the need to reduce the Legal Aid budget. It is understandable that savings need to be made, but at what price?

Well the price could be at the expense of access to justice and the rule of law. BVT contracts will be awarded to the lowest bidder for the services, after all, it is a money saving initiative.

I have previously made this analogy when the government announced that rehabilitation services were to be privatised and I repeat it here in terms of legal services:
The provision of legal services is not about packing things into boxes, to have an end product or dealing with inanimate objects without thoughts or feelings. It is dealing with people with emotions, thoughts and feelings, something which is potentially immeasurable. Not only is it immeasurable it is unpredictable and just like tendering out the rehabilitation service, tendering out legal services will not work for similar reasons. Services are different to goods.

The provision of services is individually tailored, to have this service eroded into call centres with KPI’s and set hours, simply cannot work. The overtime bill for the provision of the legal service will outweigh the savings under BVT (this is one of the many reasons it will not work) I cannot imagine that salaried BVTers, will put the hours in above and beyond their contracted duty, why would they want to, therefore leading to delays…diluting the swift administration of justice. Independent practitioners at the criminal bar put in those hours, not for the money but to provide a quality service…to survive at the bar and to continue the envied reputation that exists. Why is there an envied reputation? Well in my opinion it is based on quality. Which leads me on to QASA.

The Quality Assurance Scheme for Advocates (QASA) is due to go live (maybe!)…and is a great idea in principle…let me finish…but not in its current guise. Actually my view does not reflect this at all. I understand the need for a quality assurance scheme, but do not believe in reinventing the wheel, additionally I do not understand the principle of fixing things that ain’t broken!

A quality assurance scheme already exists and has existed for possibly hundreds of years. Good advocates get re-instructed…really, I do not need to expand on this any further it is clear and succinct. However I will.

To put this into perspective, I shop at Sainsbury’s. it is not the cheapest, but I believe, in my opinion, that the products are fresh, of good quality and the service is good, therefore I return. Tesco have not won me over and neither have Asda. I am in no means a snob, it is my personal choice.

When I get my car repaired, I go to a local garage, he employs 2 or 3 people. They are good, provide excellent service, and not always the cheapest, but they have won me over on the quality of what they provide.

It is my choice to go where I like for the services I require and products I need and want. I, like many others, have tried to save a few pounds by buying products that have not been up to standard and discovered it to be a false economy, as eventually I have had to buy the more expensive product that i should have bought in the first place because of its quality and reputation, skill and dedication. (BVT/QASA link).

So then, the OMG…I put this in, as any student or potential pupillage hunter may be at a quandary having read all the information that the press is failing to report…
The criminal Bar in my view, from the tweets and other information I have read, are quite united on these issues. Not only are they fighting to protect the status of the criminal bar, but they are fighting to preserve the criminal bar. Fighting to preserve access to justice and fighting for the rule of law. That is why it is important. It would be interesting, if it were possible, to hear the views of Lord Erskine on this issue and additionally Sir William Garrow, but alas tis not possible.

I salute the Criminal Bar Association for their call to arms and it is action like this the spurs me on to be part of that association, which recognises the dedication to the profession.

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