Max Hardy reflects on a Spring evening when Birnam
Wood came to the RCJ.
News from Nine
.
Issue 3 December 2010
9 Bedford Row has a very close association with the
Kalisher Scholarship in that the former Head of
Chambers Mrs Justice Rafferty, Richard CareyHughes QC, and David Whittaker are all trustees. I
was therefore honoured last year to be asked
whether I would like to become the Secretary to the
Trust. Had I known how much work the post entailed I confess I might have thought twice about
accepting but in the event I am extremely glad that I
did. The Trust was set up in memory of the popular
Silk Michael Kalisher QC who died in 1996 when
still at the peak of his powers. It exists to provide
financial assistance to aspiring criminal barristers
primarily through the award of a scholarship to a
deserving candidate whose BPTC fees are paid for
them. This is done with the generous assistance of
the BPTC providers which, on a circulating basis,
host and pay for the scholarship. There are numerous other awards including an essay prize.
There were three Hamlets, including Toby Stephens,
which gave rise to the excruciating pun: ‘Toby or
not Toby; that is the question?’ Ray Fearon, one of
the Trust’s actor trustees, provided a sinister turn as
one of the murderers and the whole event was presided over by none other than Martin Shaw better
known as Mr Justice John Deed, another trustee,
resplendent in his ‘red dressing gown’ and full bottomed wig.
Over the last few years it was realised that for the
Trust to sustain a long term future it would have to
engage in fundraising. A tradition has therefore
evolved of an annual theatrical event. Under the
chairmanship of Anthony Arlidge QC and latterly
HHJ Kramer QC these events have grown in scale
and magnificence and this year’s event will take
some beating.
The Bar provided some stars of its own. Anthony
Arlidge QC proved a remorseless but fair prosecutor with Bob Marshall Andrews QC and Helen Kennedy QC providing redoubtable representation for
Macbeth and Lady Macbeth respectively.
The venue for the play was supposed to be Middle
Temple Hall but such was the popularity of the
event that tickets were sold out within hours and it
was soon realised that a bigger venue would be
needed. The RCJ certainly provided a fittingly
grand venue for a showpiece trial such as this was
and amplification ensured that the actors were not
undone by the difficult acoustic of a vast marble
hall.
As a sop to modern expectations of phone-ins and
viewer participation it was decided that the entire
audience would be the jury, fortunately they were
not sworn in individually. Needless to say defences
arising from PTSD and insanity ensured that the
jury was unanimous in its verdicts: Not Guilty.
The Great Hall of the Royal Court of Justice was
this year’s venue for the Trust’s biggest and best
event so far on Sunday 16th May. The play was
penned by Peter Moffat (Kavanagh QC, North
Square, and Criminal Justice) and was entitled ‘The
Dunsinane Two: being the trial of Macbeth and
Lady Macbeth’. The Bard quite rightly shared the
writing credits.
This was after some exposition by Simon Russell
Beale as Shakespeare and expert evidence from forensic psychiatrist Pamela Taylor and TV historian
Michael Wood. The event provided some much welcome light relief at a time when the Criminal Bar is
often distracted by more pressing concerns regarding its own future.
Securing the services of Peter Moffat, who gave his
time for free in common with all who participated,
was quite a coup as he probably has a keener understanding of the realities of life at the Bar than any
screenwriter alive. What is more he had recently
worked on a contemporary reworking of Macbeth
for the BBC and so his knowledge of that text was
also beyond reproach.
Chambers of Anthony Berry QC
Nine Bedford Row ■ London WC1R 4AZ ■ LDE 453
Tel: 020 7489 2727 ■ Fax: 020 7489 2828
Out of hours Duty Clerk:
07971 153 192
The cast that was assembled for this enterprise was
the stuff of an impresario’s wildest dreams and at
one stage the fear was there would be more actors
than roles to give them. Sir Derek Jacobi turned in
an excellent cameo as Banquo’s ghost. Matthew
Macfadyen and Maxine Peake, who played the leads
in Peter Moffat’s most recent Criminal Justice, were
Macbeth and Lady Macbeth.
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It is with real sadness that I must begin by remarking on the sudden and tragic death of Louise D’Arcy QC on October 22nd. Louise had just taken Silk this year and was to be profiled in this edition. She is much missed by
Chambers and discussions are under way as to how she should be best remembered. It had only been a matter of
days previously that Chambers received the sad news of the premature death of a former member David Williams
QC. Our thoughts are with both their families.
It has been a busy year for Chambers as this issue shows with the focus of this edition being on the successful International Conference held in the autumn. All at 9 Bedford Row wish you a happy Christmas.
Max Hardy
International Criminal Law: An
Emerging Market
The conference, hosted at BPP Law School’s Red Lion
Street Campus, touched upon various aspects of international practice, including recent developments in UK
extradition law; Joint Criminal Enterprise in War Crimes
Trials; The Special Tribunal for Lebanon; The International Criminal Court investigation into the situation in
Kenya under Article 15 of the ICC Statute; and the International Crimes (Tribunal) Act 1973 in Bangladesh.
Steven Kay QC began with an overview of the development of international tribunals from the early days of
Tadic at the ICTY in which he appeared as Defence
Counsel. Having been involved in the emergence of this
specialist area of law, he explained that at the outset of
the trial there were no international criminal law textbooks. During 1995-6, the Defence questioned the admissibility of hearsay evidence and mounted the first
ever challenge to the jurisdiction of the ICTY.
faced during his tenure as the head of the Criminal Defence Office and thereafter as head of the War Crimes
Division at the Bosnian State Prosecutor’s Office, he covered the difficulties of obtaining funding for the defence,
dealing with the backlog of thousands of unresolved cases
and the development of the reconciliation process. Toby’s
afternoon lecture, which focused on recent developments
in UK extradition law, triggered an interesting discussion
on the limitations imposed by the European Arrest Warrant scheme on national challenges to extradition proceedings.
The first substantive international topic of the morning
session saw Steven Kay QC speak about the creation of
the Special Tribunal for Lebanon (STL), which is mandated to prosecute those responsible for the assassination
of Rafik Hariri and other related terrorist attacks from
2004 onwards. He provided context by highlighting the
importance of key UN Security Council (UNSC) Resolutions for the Middle East from 1967-2005 and related UN
anti-terrorist legislation from 1998-2008. In addition to
addressing key STL provisions, Steven also explained the
background to the investigation conducted by the UN
Fact-Finding Mission – the first occasion on which the
UNSC has directly become involved in investigations of a
crime scene.
Next, Toby Cadman addressed the conference on his
involvement in the Bosnia and Herzegovina Human
Rights Chambers, a court modelled on the European
Court of Human Rights to deal with post-war human
rights violations and the Bosnia and Herzegovina War
Crimes Chamber. Speaking about the challenges he Continued on page 2
Members Of Chambers
Anthony Berry QC
Charles Garside QC
Steven Kay QC
Elizabeth Marsh QC
Richard Carey-Hughes QC
Paul Watson QC
Antony Chinn QC
Robert Fortune QC
Abbas Lakha QC
Ignatius Hughes QC
Lee Karu QC
Patricia May
Richard Germain
Roger Carne
Jane Lockyer
Shane Sheridan
Jane Mirwitch
Owen Williams
Derek Zeitlin
David Burgess
John Traversi
Louis French
David Hughes
Matthew Kennedy
Justin Rouse
John King
Adrian Amer
David Whittaker
David Young
Wayne Cleaver
John Cammegh
Simon Stirling
Jane Bickerstaff
Benjamin Squirrell
Peter Glenser
Jonathan Akinsanya
Edmund Vickers
Anita Arora
Samantha Cohen
Anne Faul
Lawrence Selby
Yogain Chandarana
Matthew Banham
Charlotte O’Connor
Camilla de Silva
Will Noble
Mustapha Hakme
Polly Darling
Toby Cadman
Stuart Jessop
Aisha Khan
Daniel Higgins
Sean Sullivan
Fayza Benlamkadem
Maximilian Hardy
Ruth Jones
Richard Paton-Philip
Harry Bentley
Helen Lyle
Carrie Shorey
Bethan Charnley
Senior Clerk
Michael Eves
Tihomir Mak, legal assistant at the ICTY in The
Prosecutor v Ivan Cermak shared his experiences in
respect of case management within the context of
international criminal trials. Focusing on the library
of knowledge to be processed in order to operate
effectively in international courts, Tihomir explained the types of electronic management tools
which include electronic disclosure systems; judicial databases; translation tracking services; Livenote, Casemap and Ringtail (an evidence management/publication system).
David Young, who has recently been involved in
training future STL defence counsel in both Beirut
and The Hague, concluded the Lebanon section of
the conference with a review of the four organs of
the Court and a detailed explanation of the Tribunal’s in absentia provisions. David highlighted the
controversial nature of the provisions of trials in
absentia internationally. Criticisms have centred on
the argument that trials in absentia violate Article 14
of the International Covenant on Civil and Political
Rights and Article 6 of the European Convention on
Human Rights, in particular, the internationally recognised right to be tried in your presence. A further
point of criticism relates to Rule 104 of the STL
Rules of Procedure and Evidence in respect of
which an accused will lose his right to retrial if he
attends only an initial hearing, but chooses thereafter
not to attend the remaining pre-trial and trial phase
of the proceedings.
Steven Kay QC next addressed the conference on
the current ICC investigation under Article 15 in
respect of 2007-8 Kenyan post-election violence.
Steven covered the factual background as well as
the test applied by the Pre-Trial Chamber to establish whether it was admissible as a crime against
humanity to give the Court jurisdiction. Particular
attention was paid to the dissenting judgment of
Judge Kaul, which contained a significantly different view of the requirement by which the Prosecutor had to establish “state or organisational policy”
behind the attack on the civilian population.
In the afternoon session John Cammegh, former lead
defence counsel before the Special Court for Sierra
Leone, spoke of his experiences representing Mr
Gbao and the harsh reality of the theory of joint
criminal enterprise (JCE). He described the concept
of JCE as a “dangerous tool” which in the “wrong
hands reverses the burden of proof”.
The conference concluded with a lecture by Steven
Kay QC covering recent developments in Bangladesh concerning the 1973 International Crimes
(Tribunal) Act (ICTA), which had remained unused
for nearly 40 years until proceedings were commenced this year against members of the opposition
Jamaat-E-Islami party. Steven highlighted amendments in 1973 to the Bangladesh 1971 Constitution
made by the ICTA that denied suspects the
right to
seek
Constitutional remedies
from the Supreme Court of Bangladesh. The ICTA
also flouts other internationally recognised fair trial
standards in international criminal law, such as the
right to challenge the composition and/or appointment of members of the bench. The death penalty
has also been retained.
John explained that in terms of his direct involvement in criminality, Mr Gbao was convicted of two
offences: planning forced labour and aiding and
abetting the assault of a UN peacekeeper. Under the
JCE theory, however, he was further convicted by a
majority of the Trial Chamber of a number of further crimes including extermination, murder and
rape. All of these crimes were committed without
any input from him and he was unaware of their
commission. The majority subsequently upheld the
convictions and 25 year sentence on appeal, notwithstanding HHJ Shireen Fisher’s dissenting opinion in which she stated that “The Trial Chamber’s
errors in respect of Mr Gbao’s mens rea is not simply a harmless mistake that can be rectified on appeal. Rather, because of this error, the entire legal
edifice constructed is so fundamentally flawed that
those convictions that rest on it collapse.”
Benjamin Joyes
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Case Roundup by Bethan Charnley
Re L [2010] EWHC 1531 (Admin)
Confiscation.
The value of gifts made by an offender are in addition to
the available amount, thus forming part of the recoverable amount even if in practice the applicant no longer
has rights over or control of those gifts. A certificate of
inadequacy is not available when an applicant is unable
to recover or release the value of gifts, notwithstanding
the fact that he has no rights in law over the gifted property. The Crown could take enforcement steps against
the donee.
R v Stephen Blathwaite [2010] EWCA Crim 1082
Bad character; CRIS reports
The trial judge was right to decline to admit CRIS reports as evidence of prosecution witnesses’ bad character. The appellant applied to cross examine the
prosecution witnesses about information contained in
CRIS reports. However, despite the evidence having
substantial importance in the case the CRIS report did
not have substantial probative value. This was because
the contents of the CRIS report was evidence of allegations having been made, not that the witnesses had
done what was alleged.
R v Varma [2010] EWCA Crim 1575
Confiscation
Despite disagreeing with its reasoning, the Court was
bound by the decision in R v Clarke [2009] EWCA Crim
1074 in that a confiscation order was not available after a
conditional or unconditional discharge. The Court certified a point of law and invited the Crown to seek leave to
appeal to the Supreme Court.
R v Dougall [2010] EWCA Crim 1048
Sentence; cooperation with police
For a defendant who has co-operated under the Serious
Organised Crime and Police Act 2005 s. 73 and where
the appropriate sentence, having regard to level of
criminality, and features of mitigation, combined with
a guilty plea, and his full co-operation with the authorities investigating a major crime involving fraud or
corruption, with all the consequent burdens of complying with his part of the agreement, would be 12
months’ imprisonment or less, the argument that the
sentence should be suspended was very powerful.
R v Kluxen, Rostas & Adam [2010] EWCA Crim 1081
Deportation of foreign criminals
Due to the effect of the United Kingdom Borders Act
2007 it is no longer appropriate or necessary for criminal
courts to make recommendations for the deportation of
adult foreign offenders who have been sentenced for a
single offence for 12 months’ imprisonment or more.
CPS v LR [2010] EWCA Crim 924
Abuse of process; disclosure of indecent images
The trial judge was right to stay the proceedings as an
abuse of process where the Judge had ordered the
Crown to disclose to the defence indecent images of
children which were the subject of the indictment and
the prosecution refused to comply with the order. Arrangements to provide defence lawyers with the relevant material for the sole purpose of discharging their
professional responsibilities to their client, and the
acceptance by them of access to such material for that
purpose, could not, in any circumstances, be regarded
as criminal.
For those sentenced to less than 12 months’ imprisonment courts may make recommendations for deportations, but cases where it will be appropriate to do so will
be rare.
The Court held that there is a consistent line of authority
to the effect that the test in Nazari [1980] 2 Cr. App. R.
(S.) 84 (a case involving the deportation of non-EU nationals) and the test in Bouchereau [1978] 66 Cr. App. R.
202 (a case involving EU Nationals) are substantially the
same. If the Court is considering recommending deportation, it should apply the Nazari test in tandem with the
Bouchereau test, there being no practical difference between the two. This is so whether the offender is or is not
a citizen of the EU.
Attorney General's Reference 101 of 2009 [2010]
EWCA Crim 238
Sentencing; possession with intent to supply
The Attorney General appealed against sentences imposed for possession with intent to supply class A
drugs. The Court gave guidance as to the proper application of Alfonso [2005] 1 Cr. App. R. (S.) 99. The
Court stated that the lower starting point in Alfonso
was applicable only in cases where (1) the defendant is
himself an addict, (2) he is out of work so he has no
honest possibility of income, (3) he holds no stock and
(4) the only supply that he has made has been in the
course of a test purchase by a police officer so that his
actions have not in fact increased the circulation of
dangerous drugs.
Both tests set at a high level the bar that must be cleared
before a recommendation for deportation can be made
When considering a recommendation for deportation the
following should be taken into consideration: the offender’s rights under the European Convention on Human Rights; the effect of the recommendation on other
innocent persons and the political situation in the country
to which the person may be deported.
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