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Something to really care about. February 11, 2010

Posted by Fiona in Big things, Law.
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Well, we’ve already established that I think this whole business with the Durham Union Society is posturing of the highest order.  So what is there at the moment to get het up about?

This article, not at all inflammatorily entitled, ‘When the next bomb goes off in London, blame the judges’.  I’m sure you’re aware by now of my fangirling tendencies when it comes to the judiciary, but all that aside, let’s have a bit of a look at the law.

It being yesterday, I can’t get hold of the transcript of the decision in the Court of Appeal of R(on the application of Mohamed) v Secretary of State for the Commonwealth and Foreign Affairs yet, so this is based upon the High Court judgement*at [2009] EWHC 152.  We can tell from the fact that it’s ‘R (on the application of Mohamed)’ rather than just ‘Mohamed’ that this is a case of judical review, which means that the courts are being called upon to see if the Secretary of State, in this case David Miliband, the Foreign Secretary, was using the powers allotted to him by Parliament properly.  That is, when he redacted some of the evidence in Binyan Mohamed’s case, did he have the authority to do that under those circumstances?  It’s not, as the Telegraph seems to have jumped upon, a question of whether it was right for Mr. Miliband to redact some of the evidence, or whether it was better or worse as a matter of public policy or justice for him to have done so.  The only question the courts are allowed to ask in judicial review is whether the thing being reviewed was allowed to be done, by the person doing it, for the reasons he said, under British law as it currently stands.

Now, I really loved this case.  Partly because judicial review of things like this is really interesting.  Partly because closed judgements involving the Security Services being dubious are always controversy- and drama-filled and exciting.  Partly because it quoted some other old favourite judgements; the Belmarsh case about control orders under the Anti-Terrorism Crime and Security Act 2001, ex parte Simms, which is about freedom of speech with reference to people in prison, Shayler, which is about an ex-MI5 agent and the Official Secrets Act, and a good number of my favourite bits of judicial reasoning from the last few years.  This is the sort of case that makes me really happy, and can only be improved by fact that it quotes Lord Bingham extensively.  Top.

Anyway, the High Court found that the Foreign Secretary really didn’t have enough evidence that releasing the redacted information would damage national security to the extent that it was worth the loss of a fair trial in this case.  Particularly it cited Articles 6 and 10 of the European Convention on Human Rights, respectively to a fair trial and to freedom of expression.  Personally, I’m inclined to think that if they hadn’t had regard for these rights in particular, Mr. Mohamed’s lawyers would be outside the European Court of Human Rights like a shot pointing fingers at the British government from across the Channel, where there’d be some very unhappy bunnies with the UK’s conduct.

Interestingly, it’s not the content of the redacted information that’s the problem, politically, it’s the undermining of the relationship between the UK and the USA in terms of national security.  That is, essentially, a political question.  It’s a matter of public policy.  So why are they getting the courts to decide on it?  (I’ve just written an essay on this, so I could go on about it for quite a long time.  I’m therefore going to stop this right here.)

I recommend this article, because if there’s one thing the Times is awesome at, it’s legal commentary, and I couldn’t have put it better.

Unrelatedly, my camera has finally given up the ghost.  Therefore here is an artist’s impression of my current sock in progress – I just have to finish the toe.

Notice if you will the amazing colours, and the slightly distressing MASSIVE PURPLE STRIPE created by pooling on the heel.  I’m really upset about that.

*A quick precis for those not 100% up to date with the British judical hierarchy: when you first take a case to court, it might go to the magistrate’s court.  If it’s a bit more complicated, involves more serious offences, or is worth a bit more money, it might go to the High Court.  This is called the court of first instance, because it’s the first time the case goes anywhere.  The judges here are just called Judge Smith (Smith J), or whatever.  If you’re not happy with the application of the law at the court of first instance, you might then take it to the Court of Appeal.  The judges in this one are usually called Lord Justice Smith (Smith LJ).  If you still think you’ve been really hard done by, and the Court of Appeal gives you leave to do so, you can take your case to the new Supreme Court, which is the highest court in the UK, binding on all the ones lower down, and the judges are all Lords (Lord Smith), except for Baroness Hale, who’s a Maverick Like That (read, she’s a woman). Also, the reference [2009] EWHC 152 refers to where you can find the judgement – 2009 obviously is the year, EWHC refers to the records of the England and Wales High Court, and 152 is the page number. It’s not all Greek, I promise!

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Comments»

1. Flix - February 13, 2010

I am excited about socks, but law uses a lot of language and concepts that I can’t get my head round and I don’t know enough to even be able to ask questions.

2. Fiona - February 15, 2010

It is dastardly complicated sometimes – was this mostly clear, though? It’s so hard to tell, because I know what I’m talking about, whether other people are going to understand.

3. Jenny - February 16, 2010

This was mostly clear to me, yes :). And very interesting, thank you. We should have more of our Degree-ey stuff up on our blogs, I think. I might inflict how the brain maps our sensory perceptions on our brains on you lot reasonably soon. Right now, though, showertime.


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