Chinatown

Chinatown

 

“Forget it, Jake. It’s Chinatown.”

In Chinatown, the celebrated 1974 film noir, a private detective played by Jack Nicholson attempts to do the right thing for his client but his actions inadvertently do far more harm than good. The movie’s closing line sees a colleague asking him to walk away and put the events behind him. A cynical movie character struggling with that scenario is one thing, but how much more difficult must it be for a principled officer of the court? One of the problems facing our legal professionals recently surfaced in a real life “Chinatown” scene, and as with the movie it offered no immediate prospect of a happy ending.

Earlier this month a Crown court judge asked a defence barrister to search the Chinese restaurants of Cardiff for an interpreter after the agency contracted to provide one failed to do so, not once but twice. Liu Sun, the defendant, had been arrested for offences related to importing prohibited goods. She denied the charges, but was denied a fair hearing on two consecutive days when no Mandarin speaking interpreter was provided. His Honour Judge Burr, no doubt exasperated, made the request but it was refused. Understandably and fortunately. While it could open up a string of employment opportunities for catering staff, this isn’t a precedent we want to set.

Until February 2012, courts in England and Wales were at liberty to hire freelance legal interpreters from a national register. The decision to award a near monopoly to a single language service provider was intended as a cost cutting exercise, promising savings close to £20 million a year. A large part of the saving was to come from legal interpreters being forced to accept reduced rates from the only employer in the market. What else could they do?

The reality has been very different, of course. Skilled professional interpreters simply refused to be held to ransom and boycotted the process. A review started by the Public Accounts Committee in December 2012 uncovered tales of an interpreter register peppered with fictional names and even family pets. At regular intervals since then we’ve heard positive noises indicating that the ship has been steadied, but this Cardiff episode suggests that responsible legal professionals and their clients may be back to square one.

So what does the future hold?

Should pizza waiters be drafted in for Italian interpreting assignments?

Should sushi servers be called upon to mediate Japanese renewable energy trade deals?

Or should we draw a line in the sand and leave crucial linguistic tasks to suitably skilled linguists?

Skilled courtroom interpreters aren’t just speakers of a language. They are specialists, comfortable with the chosen mode of interpreting, with the terminology of their field and with the pressures of any given case. They are professionals, as much as the officers of the court they serve.

And like the solicitors, barristers and judges they work alongside, they have no appetite for scenarios where a client has been done more harm than good. They don’t want Chinatown. By working together, the legal profession and their support partners can deliver something very much better.

 

David Jones

Common Wealth?

union jack alarm clock

Major international sporting events aren’t just showcases for excellence and endeavour. They are also showcases for the cities and countries that host them. The opening ceremony of the 2008 Olympics left the world in awe of China’s capacity for the spectacular. Four years on, London put smiles on a billion faces with a Games that IOC President Jacques Rogge aptly described up as “happy and glorious”.

For the 2014 Commonwealth Games, which open tonight in Glasgow, the stakes are raised. With only eight weeks left until its independence referendum, Scotland has the opportunity to send a message to the world and to its own population.

A successful Games, and particularly a rush of medals, may well deliver an emotional boost to the independence campaign. But what of the colder, harder realities? What are the legal implications of a Scottish breakaway?

With so much at stake for Scotland and for the UK as a whole, it’s perhaps surprising that so many crucial constitutional questions remain unanswered. We’re accustomed to political opponents spinning the facts to suit their respective arguments, but in this case it’s not entirely clear what the facts are.

What would an independent Scotland’s currency be?

How soon, if at all, would it become an EU member state?

Would the new country be eligible for UN membership, and what would the implications be for the UK’s membership of the Security Council?

A yes vote on September 18th would trigger negotiations for a severance settlement with the UK Government with Independence Day to come in 2016.

Anyone drinking a toast on that day may struggle to make lawful payment for their drink unless Scotland’s currency issue is resolved. The SNP has argued that the pound belongs to Scotland as much as it does to England, and many pro-independence campaigners insist that a currency union between an independent Scotland and what remains of the UK can be negotiated. But the leaders and financial spokespeople of all three major Westminster parties have categorically ruled this out. And this week Scottish Affairs Committee Chairman Ian Davidson bluntly dismissed talk of currency union as a “dead parrot”.

Pro-independence campaigners are adamant that Scotland is effectively already part of the EU, meets all the requirements for membership and will be granted member status within their proposed 18 month transition timetable. Senior EU figures have questioned the realism of this timetable and some have questioned whether membership would be granted at all.

Former EU Commission President Jose Manuel Barroso has stated on record that it would be “difficult, if not impossible” for a newly independent Scotland to join the EU. But the pot was given another stir last weekend when an unnamed EU official was quoted as saying that Barroso’s successor Jean-Claude Juncker would not want Scotland to be kept out and that furthermore, Scotland would be regarded as a different case to other new applicants.

While Mr Juncker has no reason to do David Cameron any favours the report remains unsubstantiated, and any decision on Scottish membership would not be his to make. Added to that, the EU Project has at times appeared so close to exhaustion that any new members from 2016 onward may find themselves arriving at a party just as the drinks run out.

Any Scottish ambitions for full membership of the United Nations would be complicated by the UK’s permanent seat on the Security Council. This seat could be jeopardised by the perception of diminished UK status. While this clearly wouldn’t be in the UK’s best interests, it may not be in Scotland’s either. And the irony of a “United Nations” membership debate between nations choosing to disunite would be painful.

Some of the most persuasive voices in this debate have been those that remain relentlessly objective. As the representative body of over 10,500 solicitors the Law Society of Scotland has a vested interest in the country’s probity and prosperity, and Society President Bruce Beveridge proved to be a voice of unbiased reason. While others on both sides blustered, Mr Beveridge asked pertinent questions and offered cool judgement. When his term of office ended in May his successor Alistair Morris carried on in the same vein. By raising key questions on economics and education Mr Morris has brought welcome pragmatism and attention to detail to a debate that has often lacked both. It’s an example that others would do well to follow.

Scotland’s political and economic future is in the balance, and while sporting events in Glasgow may provide us with entertainment and even inspiration, they can’t obscure the fact that too many questions remain unanswered for comfort.

 

David Jones

The Good Fight

the good fight

 

A person steps off an aeroplane, a train or a ship. They set foot onto British soil, entering this country legally and in good faith. At what point do they become entitled to the same basic legal rights as a UK resident? At what point may they make a claim for Legal Aid?

Chris Grayling, the Lord Chancellor and Secretary of State for Justice, believes they should have to wait at least one year. He successfully drove a measure to that effect through the House of Commons, invoking the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Mr Grayling, the first leader of our judicial system in 400 years to have no legal background whatsoever, argued that this was a necessary move which would ensure public confidence in Legal Aid spending. Perhaps among some sections of the public it would. But should our laws, and the fundamental rights of those who visit these shores, be truncated to please those sections of the public?

Yesterday a specially convened Divisional Court, headed by Lord Justice Moses, ruled emphatically that they should not.

In ruling that Mr Grayling exceeded his statutory powers in devising the proposals and describing them as ‘unauthorised, discriminatory and impossible to justify’, the Court drew a clear line. Sweeping, potentially discriminatory changes are not to be ushered in through a legislative back door on cost-cutting grounds.

Mr Grayling might reflect that public confidence in Ministry of Justice spending, particularly relating to citizens born outside the UK, has taken a severe beating over the past two and a half years as a direct result of the Ministry’s own decisions. The appointment of a single agency to manage all courtroom interpreting services, devised as a cost-cutting exercise, brought chaos, spiralling costs and countless delays to trials throughout the UK almost from the moment the contract began in January 2012. With this in mind, any perception among the general public that non-natives are costing them money and taking advantage of their system hardly seems fair, and surely should not be pandered to.

The Divisional Court would presumably agree. It made clear its distaste for proposals that would deny support to vulnerable groups highlighted in specific, detailed examples.

Do we really want to deny basic support to the families of children with special educational needs, or to those individuals who lack mental capacity and need the help of others in any legal situation, or to those resident abroad who have been subject to serious abuses at the hands of UK forces?

 

Is that our law?

Is that our country?

 

If we see this as a point worth fighting for, then when Parliament won’t fight for it we should be thankful that the judiciary and the legal profession will. In this case we should be particularly thankful to the Public Law Project, who brought the test case, to John Halford and Stephen Grosz of Bindmans LLP and barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup.

And of course to the Divisional Court. This was Lord Justice Alan Moses’s final ruling before stepping down from the bench. Many of us would argue that it’s a fitting and impactful farewell, and a fine legacy. Never afraid to argue against political action that he viewed as unworkable or unjust, he has used humour as a powerful weapon. Last year he wrote a spoof application to become the next Lord Chief Justice including a 2,000 word essay which eviscerated the government’s legal aid proposals. He jokingly suggested that to save money judges should compete to produce the most judgments in the shortest time, and solve funding problems by accepting sponsorship from companies such as L’Oréal, Silk Cut and Virgin.

We can only hope that what a wise and principled man suggested in jest will never be embraced in seriousness by those more foolish.

 

David Jones

Is Familiarity Breeding Contempt?

mobiles phones

 

Once a year the Attorneys General of the UK, USA, Canada, Australia and New Zealand come together to discuss pressing issues of common concern. This week they are in London, and one question high on the agenda is how they can hope to preserve the integrity of the jury system when information prejudicing a trial is available to anyone at the click of a button.

Reviews of contempt of court procedures are taking place in a number of countries including the UK, and not before time. The Contempt of Court Act presently applied in British courtrooms was passed in July 1981, when Prince Charles was enjoying his final few days as a bachelor before marrying Diana Spencer, and the current leaders of all three major British political parties were still at school.

More significantly, in 1981 Britain was four years away from its first mobile phone call. Today 76 million devices are in use around the country and they are the search medium of choice for vast numbers of users. With so much information so readily available, it’s no surprise that jurors in British courtrooms have been jailed for researching cases on the internet and sharing their findings.

As we reach the mid-point of the second decade of the 21st century, social media channels have made each humble mobile phone an Aladdin’s cave of knowledge. Current figures indicate that Facebook’s 1.25 billion enthusiasts include 950 million mobile users. In addition, of the 650 million people who regularly share information on Twitter, 280 million do so via mobile.

How can juries fairly evaluate a case without being influenced by inadmissible evidence, when online access lays an abundance of such evidence before them whenever and wherever they choose to view it? And how can this area of law maintain its relevance and fairness while information service providers make one giant leap forward after another?

The existing contempt of court law bans any publication that might compromise a fair trial. But where in 1981 “publication” referred to a formal, easily trackable ink and paper process, in 2014 it covers any number of outlets. Those preparing for jury service are legally bound to do so without prior knowledge or opinion, effectively offering themselves to the court as a blank canvas. But their instincts might be to follow the routine so many of us follow almost every day in any number of situations, and run a google search on the case. A 2010 survey indicated that 12% of jurors admitted carrying out online research. It’s unlikely that this percentage has fallen over the past four years.

Discussions of online defamation often point out how thoughtlessly many social media users voice their opinions, treating a worldwide public forum like a gossiping session between friends. If that’s the standard for the information people put in, can we really expect discretion to apply the information that’s taken out?

So what’s the answer? Flexibility that acknowledges a new set of rules for a new set of communication tools? But how flexible should the law be, and how should it keep pace with changes that threaten to make legal updates redundant before they can even be put to the test? Perhaps an intensive period of education is needed, encouraging proper accountability for the things we all say and do. But how do you compel people to change behaviour patterns that are becoming more ingrained with every surf and tweet?

The legal profession is navigating this changing landscape with pragmatism and skill. Translation service providers need to help them through it by conveying their message with absolute precision, regardless of language or medium. If familiarity with information is breeding contempt for the existing law, then it remains the job of support partners to demonstrate that discretion and attention to detail still breed trust, in any language.

 

David Jones