Understand Your Rights. Solve Your Legal Problems
Following the Turkish President backing the return of the death penalty, Kristin Hausler, Dorset Senior Research Fellow at the British Institute of International and Comparative Law (BIICL), provides a response to the potentially monumental decision. The comments are based on a recent BIICL report on the rule of law in Turkey:
“It has been reported that President Recep Tayyip Erdogan says he is ready to reinstate the death penalty ‘if the people demand it’. This would be a step backwards as the death penalty was abolished in Turkey in 2004 (amendment to Art 38 Constitution) and the Turkish Constitutional Court has upheld the validity of the legislation abolishing it. In fact, there has not been any execution of prisoners since 1984. As the death penalty has been abolished under Turkish constitutional law (amendment to Article 38 of the Constitution), there would need to be another constitutional amendment to reinstate the death penalty, but to initiate constitutional reform, a referendum must be called by a ‘supermajority’ of parliament members (at present the AKP does not have such majority, which consists of 330 seats). There would then need to be the backing of other parties to do so.
“In addition, Turkey has also ratified Protocol No. 6 to the European Convention on Human Rights (ECHR) concerning abolition of the death penalty. While derogations to the ECHR can be made in time of emergency, in accordance with Article 15 ECHR, derogation from Article 2, which provides for the right to life, is not permissible. While Article 2 allows for deprivation of life in the ‘execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law’, Protocol No. 6 to the European Convention on Human Rights does not allow any derogation to it under Article 15 ECHR. Turkey would then have to amend its Constitution and denounce Protocol 6 of the ECHR, in order to reinstate the death penalty, which would be seen by the international community as a step backwards. All of the States which are party to the Council of Europe have signed and ratified this Protocol, except for Russia which has only signed it.”
(Source: British Institute of International and Comparative Law)
The American public faces significant, unmet legal needs that require considerably more innovation and other efforts to bolster access to affordable legal services, the ABA Commission on the Future of Legal Services said in a report.
The commission, releasing findings from a two-year study, offered 10 recommendations to build on past national efforts and to ensure that everyone has meaningful assistance for essential legal means. The recommendations call for sweeping changes to both the civil and criminal systems of justice.
One recommendation, urging state courts to adopt model regulatory objectives for the delivery of legal services, was approved as ABA policy by the House of Delegates in February. Other recommendations have been debated but not embraced by the Association, such as alternative business structures (ABS) for US law firms. As part of a broader recommendation, the commission said future “exploration” of ABS would be “useful.”
The commission’s10 recommendations, all accompanied by sub-recommendations and supporting materials, are:
(Source: ABA)
The augmented reality game Pokémon Go may have taken over the public consciousness but it is creating serious questions around the issues of privacy and property, says UK Tayside based solicitors and estate agents Miller Hendry.
The cultural sensation that is crashing servers, topping download charts, losing people off cliffs and generating plenty of news headlines is also directly affecting homeowners and dwellers, as well as business owners. Not only is there a privacy issue but there are question marks over the virtual space around a building and who, if anyone, owns it.
Business places, landmarks and places of cultural interest can unwittingly be designated as PokéStops or Pokémon Gyms – both essential stop-offs for players of Pokémon Go - with only the game’s maker, Niantic, deciding where these virtual pit stops will be. However, there is a distinct possibility that people may live in them, says Miller Hendry, which points to inhabited buildings such as stately homes and converted churches as examples.
And while so far businesses have reacted favourably to being PokéStops, Pokémon Gyms or a place where the Pokémon creatures have been spotted – with many seeing its potential marketing benefits – others are acknowledging that it creates problems.
Perth & Kinross Council recently posted a notice on its Facebook page asking that, in the interests of safety, people not enter its Friarton Recycling Centre, a place where Pokémon can be caught. “We have requested that the Pokémon be moved onto a more suitable location where trainers can go to battle in a safer environment,” said the statement.
Due to the inherent legal issues surrounding the game’s popularity, Miller Hendry is this week launching a series of blogs on the subject.
Alistair Duncan, commercial property expert at Miller Hendry, said:
“An example of where we may see issues arising is where a commercial business that is drawing Pokémon Go players to its premises, by being a PokéStop or Pokémon Gym or paying for one of the ‘lure modules’ that attracts the game’s creatures to it, shares the space with residences. The inhabitants could feasibly get uncomfortable with a large influx of people being around their places of residence with smart phones and camera capability, and at all hours of the day or night. And, of course, there’s also the issue of the business owner not wanting to take part at all yet having no choice, as happened with the Holocaust Museum in Washington and, just recently, Friarton Recycling Centre in Perth.
“Another concern is with private property owners living in a place that used to be, or perhaps still is, a landmark or cultural destination, such as stately homes, churches and converted buildings. There has already been a publicized case of a man living in a church which was considered a landmark and ended up as a Pokémon Gym. The subsequent crowds are an issue not just for the dweller but for his or her neighbours. It poses the question: in the case of virtual space, where does your property line end?
“And while the game’s maker, Niantic, has advised players not to approach private properties whilst playing the game, we have already heard stories of players who are doing just that – knocking on people’s doors and telling them they are searching for a Pokémon in or around the property.
“The last thing we at Miller Hendry want to do is curb people’s enthusiasm for the game, or put a stop to the fun. However, the popularity of Pokémon Go has generated concerns for property owners across the board, from private individuals to business owners. ‘No Pokémon Go-ing’ could well be the new ‘No soliciting’ sign. When virtual space around a home or business starts being used for marketing and advertising purposes – something we believe is not far down the line - there will be interesting legal battles over who owns that space.”
(Source: Miller Hendry Solicitors)
A new legal opinion, written by two former Justice Department officials from the Antitrust Division, argues that a merger between Bayer and Monsanto would violate the Clayton Act, a law enacted by Congress to curb anti-competitive business practices.
According to the white paper, a Bayer-Monsanto merger would also be in direct violation of a 2008 court order, where Monsanto was forced to divest itself of certain cottonseed and cotton breeding assets, which were sold to Bayer. If the merger proceeds, Monsanto would re-acquire these anti-competitive traits, thereby violating the US Department of Justice’s judgement.
The legal opinion points out that:
“A merger between Bayer and Monsanto is a five-alarm threat to our food supply and to farmers around the world,” explained Anne Isakowitsch, Senior Campaigner with SumOfUs. “This new mega corporation would be the world’s biggest seed maker and pesticide company, defying important antitrust protections, giving it unacceptable control over critical aspects of our food supply -- undermining consumer choice and the freedom and stability of farmers worldwide.”
SumOfUs, an international corporate watchdog, released the legal opinion as Bayer, a German chemical and pharmaceutical giant, increases its efforts to acquire Monsanto, one of the world’s largest producers of chemicals and farm inputs.
More than 500,000 SumOfUs members around the world have signed onto a petition opposing the potential merger of Monsanto and Bayer.
The legal opinion was written by Maurice E. Stucke and Allen P. Grunes, counsels at the Konkurrenz group. Maurice Stuck is a law professor at the University of Tennessee, with twenty years’ experience handling a range of competition policy issues in both private practice and as a prosecutor with the Antitrust Division of the US Department of Justice. Allen Grunes spent more than a decade at the US Department of Justice Antitrust Division, where he led many merger and civil non-merger investigations in radio, television, newspapers, motion pictures, and other industries.
(Source: SumOfUs)
The Charity Commission (‘the commission’), the independent regulator of charities in England and Wales, has recently published ‘Charities and litigation – a guide for trustees (CC38)’.
The prospect of taking or defending legal proceedings is often a difficult and complex matter for trustees that can present significant risk to a charity. This brand new guidance clarifies the issues that trustees need to consider when faced with litigation and helps them comply with their legal obligations as well as their duty to act in the best interests of their charity.
Decisions on whether or not to take or defend legal action should be made in accordance with the principles set out in the commission’s existing guidance on decision making, ‘It's your decision: charity trustees and decision making (CC27)’.
Trustees should also identify and address the potential risks and impact of litigation on their charity and its beneficiaries. In applying those principles to decisions involving litigation, the guidance highlights the need for trustees to take and consider legal advice, to assess the economic prospects of success or failure and the impact on the charity, and consider whether their intended actions are proportionate in all the circumstances and in the best interests of the charity. The guidance also indicates when trustees need to protect themselves against the adverse risk of costs and outlines alternative ways to resolve the issue in dispute that trustees should explore before legal action such as mediation and negotiation.
The guidance also contains detailed information on charity proceedings, a specific category of legal claim concerning the internal administration of charities which require authorisation from the commission. This includes how to make an application to seek the commission’s consent, to help trustees prepare for these typically time sensitive situations.
The commission finalised the guidance following valuable input from the Charity Law Association’s specialist working group.
Kenneth Dibble, Chief Legal Advisor at the Charity Commission said: “Legal action can present significant risk to a charity’s beneficiaries, assets, and reputation, but in some circumstances it may be the best or only option. This guidance aims to help trustee bodies reach a justified decision on litigation and crucially, to manage risk effectively by assessing the challenges and costs their charity might face and deciding how to deal with them.
“We encourage any trustees thinking of engaging in litigation to read our new guidance, apply the principles set out in our existing guidance on decision making, and to contact us as a matter of priority if they require our protection from adverse costs or authorisation to proceed.”
(Source: Charity Commission)
New online courts for civil cases designed to help make the justice system more user-friendly could be introduced, thanks in part to the work of a University of Exeter academic in the UK.
The courts would be for “low value” cases, designed so people can navigate the process of managing disputes more easily and cheaply.
It is hoped online courts will ensure delivery of faster and fairer justice for users by making better use of technology and modernising working practices. Disputes would be resolved early without a judge having to become involved.
Their introduction was recently recommended by Lord Justice Briggs, Deputy Head of Civil Justice, in the final report of his structure review of the civil courts.
The recommendation comes after a study by an expert group, including Dr Sue Prince, Associate Professor at the University of Exeter Law School, suggested online civil law courts would increase access to justice and streamline the court processes in England and Wales.
A significant number of cases that go to civil courts tend to be small claims generally under £10,000 or are disputes over money, or services, or low value personal injury claims. Businesses may also use small claims to reclaim debt.
Drastic cuts to legal aid have led to an increase in the number of people who are unable to afford a lawyer and have to circumnavigate the courts alone. Seeking help for everyday problems can be complicated and expensive in the current court system.
Professor Prince was part of an advisory group set up by the Civil Justice Council (CJC) to explore the role of online dispute resolution (ODR) in resolving civil disputes across the internet, using techniques such as skype, e-negotiation and e-mediation. The group published a report recommending that a dedicated state-run online court to operate alongside the traditional court system.
The UK Government has already previously committed £700 million to using technology to reform the courts system.
Lord Justice Briggs’ Civil Court Structure Review proposed the new online court and said it would improve access to justice and be simpler for people to use than the current court system. He endorsed the work of the Advisory Group.
Professor Prince said: “I am very pleased that Lord Justice Briggs has taken on board our proposals and the judiciary are so whole-heartedly in support of creating new online court systems. It would give more people access to justice and make the process easier to navigate for them.
“These are ambitious, innovative and exciting plans and I believe they could make the justice system simpler and more user-friendly.”
(Source: University of Exeter)
In a landmark asbestosis case, The Court of Appeal recently ruled that asbestosis sufferers could be entitled to proportional compensation from as low as 2.3% from negligent employers, based upon the number of years worked. The historic ruling confirms that proportional compensation is applicable even if the employer’s overall contribution to the condition was minimal and the entitlement was as low as 2.3%.
The ruling relates to retired electrician, Mr Albert Carder, who was exposed to asbestos whilst working at Exeter University. Although most of his asbestos exposure occurred earlier in his career, Mr Carder’s lawyers, Moore Blatch, calculated that his employment at the university contributed 2.3% toward his asbestosis.
The Court of Appeal has upheld the calculation and judgement made by The High Court in July 2015 that Mr Carder was entitled to compensation. But at the time Exeter University’s insurers appealed, arguing the proportion of the exposure was minimal and had made "no discernible difference to his condition."
Moore Blatch asbestos disease lawyer John Hedley, representing Mr Carder comments: “This decision is very important and will influence other asbestos cases. Whilst there is a long established principle around minimal contributions to asbestos exposure by employers, this case helps define what minimal actually means. We can confidently say this contribution can be as low as 2.3% or even less. Whilst the compensation is not substantial, it will help Mr Carder and the ruling will help many other people who are in a similar position.”
Mr Carder said: “It’s a huge relief for this case to have finally settled and to also know that I can return to court, should my condition deteriorate, which is of great comfort to me and my family. When I started my career asbestos was thought to be such a wonderful thing; unfortunately we were not made aware of the dangers.”
Mr Carder’s overall damages from his total exposure to asbestos were assessed at approximately £67,500, with the university’s contribution confirmed to be £1,713.
Mr Hedley believes: “This case has broader significance and could impact on a large number of other industrial disease and work related illness cases. The Defendant is trying to appeal again following the Court of Appeal’s decision so we would assume that the insurers believe the issue is important enough to invest significant sums in legal costs in trying to win. There is no way of estimating the total number of cases that could be affected, but it is reasonable to assume that it must be substantial.”
(Source: Moore Blatch)
The Serious Fraud Office (SFO), as Britain’s prosecutor of serious fraud, bribery and corruption cases, finds itself under attack from various angles if it ever missteps, particularly in high profile cases. One recurring source of pressure has been Theresa May’s long-held enmity towards the SFO, and her desire to incorporate it within the National Crime Agency (NCA). In February, it was announced by the then-Home Secretary’s spokesperson that the NCA would be given ‘power of direction’ over the SFO. Now that May is Prime Minister, the SFO will surely be worried for its future.
The SFO’s work has long been fraught with turbulence and controversy. One account of the first decade of its existence – 1988 to 1998 - documented a series of collapsed trials and failed prosecutions, a pattern which has continued in recent years, culminating with the botched investigation into the affairs of Robert and Vincent Tchenguiz, which dragged from 2011 to 2014 and led to a multi-million pound pay out.
More recently, the SFO has seen their long running ‘blockbuster’ investigation into Libor, fall prey to similar instability. Following on from the initial success of the conviction of Tom Hayes, currently appealing the 11 year sentence he received, the second trial represented a rude awakening. All six defendants were acquitted, leading many to question whether the SFO was fit for purpose.
The third Libor trial, however, marked more of a mixed bag for the SFO. While it resulted in four convictions, only one was a unanimous decision by the court, alongside two majority verdicts and a guilty plea. The other two cases resulted in no decision from the jury, and the SFO is currently preparing for a retrial. While this was heralded as a success, the SFO has currently achieved only five convictions out of 13 in their flagship investigation, at a present cost of £21,424,868.
Although David Green QC, the SFO’s present director, has worked to restore its battered reputation since his appointment in 2012, fundamental issues still remain. There is a high turnover of staff, especially problematic in investigations that often run for multiple years, and a difficulty in attracting high-calibre talent. In the Civil Service People Survey, only 23% of the SFO workforce felt their pay “adequately reflects” their performance. More damningly, just 18% felt they received reasonable pay when compared to those doing a similar job in other organisations.
It is unlikely that May’s opinions on the SFO will have changed since February, or that she will be willing, in these economically uncertain times, to provide the funding required for the SFO to remedy some of its fundamental issues. The simple fact is that, however effective the SFO may or may not be in dealing with specialised fraud, the NCA is simply cheaper to run. This could be the justification for May to finally dismantle the SFO, in spite of the recent Libor convictions and seizure of £20m in 2015 to 2016, during which time their spend was £58.9m according to their most recent accounts.
(Source: Steve Cochrane)
The dismantling and restructuring of Turkey's judiciary by the country's President, Recep Tayyip Erdogan, is in direct contravention of international legal norms and principles, as well as Article 138 of the Constitution of the Republic of Turkey, and must end, states the International Bar Association (IBA).
Further, the IBA leadership calls on President Erdogan to reinstate recently dismissed judges and prosecutors, including two members of the Constitutional Court and ten members of Turkey's highest administrative court.
As the culling of judges, prosecutors, journalists and members of other organs that constitute a democratic society continues, following the attempted coup of 15 July, and the space in which Turkey's citizens can voice dissent evaporates, IBA President David W Rivkin calls for President Erdogan to halt the arrests and limit the damage to the proper administration of justice in Turkey caused by his actions.
Mr Rivkin commented: “President Erdogan's fierce and unrelenting assault on Turkey's democratic institutions in violation of international law and the nation's Constitution has removed any credibility for his actions. The arbitrary job dismissals, suspensions and arrests of more than 60,000 Turkish citizens in under a week, the imposed three-month state of emergency and the intention to re-instate the death penalty are extreme by any measurement, and chilling in the absence of judicial recourse.”
He added: “Turkey's own Constitution states that judges ‘shall be independent in the discharge of their duties... No organ, authority, office or individual may give orders or instructions to courts or judges related to the exercise of judicial power’. President Erdogan should respect this clause, provide transparent evidence for the detention of individual judges or reinstate them. To the extent that judges or anyone else are charged with being members of a terrorist group, they are entitled to due process and a fair hearing. That includes allowing them to be represented by the lawyers of their choice and making sure that these lawyers are not subject to any intimidation by the government for taking on that representation.”
The IBA is receiving communications from Turkey and understands that under a new law, there will be fewer judges, and that new appointments will be carried out by the High Council of Judges and Prosecutors, which operates under the mandate of the Justice Ministry. Also, the new law provides that 25 per cent of members of the Council of State - Turkey's highest administrative court - are to be presidential appointments and that all existing members of the Supreme Court and Council of State are to be dismissed and new ones appointed in pursuance with the new legislative framework.
IBA Executive Director Dr Mark Ellis concludes: “By passing laws that will be difficult to repeal, President Erdogan's extreme actions can only be interpreted as an abuse of power. Certainly, the attempted coup called for an immediate response, but not at the abandonment of Turkey's Constitution nor international legal principles. As a member of the United Nations, Turkey has violated established international legal standards to which it must adhere. The Basic Principles on the Independence of the Judiciary states, ‘The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary’.”
He added: “The measures taken by President Erdogan have endangered the independence of judges and rendered the judiciary subject to political influence. This serves to undermine judicial impartiality, fundamental to ensuring the stability of Turkey's legal institutions, and has consequently diminished public confidence in both the judiciary and the government. President Erdogan should abide by the national, regional and international law provisions that affirm the necessity of an independent judiciary.”
(Source: IBA)
The Bar Council has responded to Lord Justice Briggs’ Civil Courts Structure Review.
Chairman of the Bar, Chantal-Aimée Doerries QC, said: “Efforts to modernise the courts and improve efficiencies in our justice system are essential. It is surely time to make a proper investment in our civil justice system for the future, to provide justice for all. We shall study this report, which contains many innovative recommendations, carefully, not least to assess its impact on access to justice.
“Any moves towards an online court for claims of up to £25,000 must avoid the risk of entrenching a system of two-tier justice whereby individuals opting to use a 'lawyerless' online court process could easily find themselves in litigation with big organisations which can afford to hire their own legal teams.
"Sir Michael Briggs is right to acknowledge that the success of the online court will depend critically on digital assistance for all those challenged by the use of computers, and on continuing improvement in public legal education.
"In reviewing these proposals, we must also assess what impact they may have on the world-renowned reputation of our legal system, which needs protecting more than ever in the current changing climate."
(Source: Bar Council)
