Sunday, June 29, 2008

Dog poo, school districts and terrorism

Despite equivocal evidence as to their effectiveness, the UK has more CCTV cameras than any other country in Europe. A fairly high tolerance of surveillance has thus become part of British life.

Against this backdrop comes a bizarre, but not entirely unexpected example of the normalisation and extension of counter-terrorism laws: a law initially justified as a terror prevention measure is now being used by local councils to spy on residents for matters falling a long way short of serious organised crime.

The UK government said that the Regulation of Investigatory Powers Act 2000 was intended to provide:
"a statutory basis for the authorisation and use by the security and intelligence agencies, law enforcement and other public authorities of covert surveillance, agents, informants and undercover officers. It will regulate the use of these techniques and safeguard the public from unnecessary invasions of their privacy."

To this end surveillance was only to be authorised when "necessary", meaning on grounds that it was needed:
  • in the interests of national security;
  • for the purpose of preventing or detecting crime or preventing disorder;
  • in the interests of the economic well-being of the UK;
  • in the interests of public safety;
  • for the purpose of protecting public health;
  • for the purpose of assessing or collecting any tax, duty, levy or other imposition,
  • contribution or charge payable to a government department; or
  • for other purposes which may be specified by order of the Secretary of State.
The trick is that these powers extended to local authorities, some of whom have had a very interesting idea of what constitutes "crime" or "disorder".

We have so far seen examples where:
"a family in Poole in Dorset were tracked covertly for nearly three weeks to check they lived in a school catchment area"

(which, in fact, they did) and one council has admitted
that its officers were in the middle of an undercover operation using digital cameras and binoculars to catch those failing to scoop up their dogs' poo.

What is most worrying to my mind, though, is not the use of powers introduced to fight serious crime being delegated to local councils so they can snoop on poorly-behaved neighbours. Nor is it the blatant waste of resources. It's that this is proving popular in some quarters.

If those who will trade liberty for a little brief security deserve neither and will lose both, what is the fate of those who will trade liberty for slightly cleaner pavements?

Update: ICC Lubanga Trial

Mr Lubanga did not walk free on Tuesday. The International Criminal Court found his release would be premature while the Prosecutor goes on to appeal the ruling requiring disclosure of information initially gathered on terms of confidentiality.

As noted below, much of that information was provided by the UN and it is the UN which must waive confidentiality.

The Prosecutor has said of his appeal:

“The Foundations of the ICC have to be based on high standards and efficiency ... We will harmonise fair trials with respect for the institutions that provide information to us. The basic framework to solve this particular problem is settled with the UN and we will explain this clearly to the judges”.

I am ambivalent about this. If "the basic framework to solve this particular problem is settled" means that the UN will now allow the defence and the Court to see this material in a full and proper way, then that's fine.

If, however, the words "the basic framework ... is settled" and the worrying references to "efficiency" and "respect for the institutions that provide information" all add up to an assertion that existing practices are fine and all that judges require is a clearer explanation on appeal, then we have a real problem.

The right to a fair trial cannot and should not be balanced against "efficiency" of the value of the ICC's working relationship with the UN. If the ICC cannot proceed with a trial fairly (a different thing from "perfectly"), it should simply not proceed at all.

Whatever the outcome of the Lubanga appeal, it looks set to have consequences for the new ICC cases opening against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui.

Monday, June 23, 2008

The quiet, procedural death of the International Criminal Court?

Tomorrow, the first man expected to stand trial before the ICC – Thomas Lubanga - may simply walk away to board the first plane out of the Hague, following three years in prison and without his trial having ever officially commenced.

This staggering outcome follows from a practice of the Prosecutor’s office that the Trial Chamber described in a decision on 13 June as a “wholesale and serious abuse”. Without accusing the Prosecutor’s office of bad faith, it seems clear that a procedural device for collecting evidence under conditions of anonymity in exceptional and limited circumstances became the Prosecutor’s tool of first resort. As a result, the possibility of running a fair trial was fatally compromised.

Basically, in order to gather evidence, the Prosecutor’s office promised suppliers of information that the evidence they turned over would be kept confidential – even from ICC judges. The intention seems to have been that if any information was identified as needed to run the trial, the prosecution would go back to the suppliers and negotiate for waiver of confidentiality.

The flaws in this approach were:
  1. this is not what Article 54 of ICC Statute, on a plain reading, allows the prosecutor to do (they are limited to using confidentiality only to gather leads which might point to evidence for use in the trial);
  2. it meant the prosecution was not in control of the evidence, the witnesses were (and for “the witnesses” read “the United Nations”); and
  3. it left the prosecution wide open to a defence allegation that they were withholding potentially exculpatory evidence that they were obliged to disclose, thus preventing a fair trial.
Inevitably, the defence did make that argument and it had some justification. The Prosecution claimed, as a result of confidentiality agreements concluded largely with the UN, that it was beyond its power to put some 207 potentially relevant documents into evidence. Of these 153 were UN documents.

The prosecution’s argument boiled down to “well, in fact, nothing we’re withholding would materially aid the defence or alternative evidence is available, so it doesn’t matter.” The Trial Chamber, quite properly, asserted that it was for the Court, not the Prosecutor, to weigh the evidence and the defendant was entitled to all potentially relevant prosecution material, not a selection of it.

I have more sympathy for the prosecution argument that UN and NGO witnesses in the field work under difficult conditions and confidentiality was needed to secure their cooperation (para 26). However, the Prosecutor’s office made a damaging concession (para 72), saying in its own evidence:

Of course, there was never any intention ... that these materials were received only for lead [finding] purposes. The point was to obtain these materials as quickly as possible for the sake of the ongoing investigation and then to allow the Office of the Prosecutor to identify the materials it wishes to use as evidence and then seek permission.

That is, the Prosecutor took the view that he could grant confidentiality first, and ask hard questions later. The result was not only a clear breach of the Statute but he also lost the practical power to control evidence, effectively putting UN legal counsel in charge of deciding what would go before the ICC.

As a result the Trial Chamber found that “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.” This is utterly scathing judicial language.

The Chamber stayed the trial indefinitely and will hear an application for Lubanga’s release tomorrow. Unless the Prosecutor secures a wholesale about-face from the UN on the confidentiality of 200 odd documents, procedural justice seems to demand the defendant be released.

The Office of the Prosecutor must be a very unhappy workplace at present. If these are the realities of gathering evidence in the ICC, the prospects of any cases ever commencing seem pretty slim.

Saturday, June 21, 2008

Curse you rain!

I'm going to my first May Ball in two years, and its Coelacanth's first May Ball ever. Ah, May Balls and May Week.

... And of course it's raining. That typically English rain that if you stood out in it long enough would never be heavy enough to soak you through, but you would start to grow moss. How very familiar.

I have by now perfected the British obsession with the weather and so cross-referenced the hour-by-hour predictions on and BBC Weather. The consensus is, it looks as though clouds will scatter and there will be hints of sun from 7-ish until sunset around 11 pm - when it will commence to bucket down heavily until dawn.

Black tie, sturdy boots and a good umbrella are called for.

Sunday afternoon postscript:

So the weather was nowhere near as bad as forecast and much warmer than a lot of May Balls I've been to.

We were able to head in early and up to a friend's rooms in college for some drinks and snacks (and a little of the football) beforehand, and when the ball itself commenced there were only two or three light bouts of misting rain.

For one of those, we didn't need to put up umbrellas as we were safely queuing for black-tie laser tag in an inflatable grid of tunnels - probably a highlight of the evening. (Along with ceidhle dancing, some decent - and indecent - stand up comedy and money-less gambling that taught me I should never be allowed to bet the farm on blackjack.)

Of nine who set out, six made the survivors' photo at 5.30 am after which Coelacanth and I got to wander 10 minutes back home through the dawn-lit streets of Cambridge and sleep until lunchtime.

It was a beautiful morning, a low English summer sun streaming over everything through the rain-cleared air. I'd forgotten how much fun it is, sometimes, to be awake before the rest of the world.

Tuesday, June 17, 2008

Working hard, eating hard

(Above, Coelacanth's* allotment: further proof of creeping Englishness.)

"Can't blog, eating" would just about summarise the last few days.

On Saturday one of my favourite teachers from the LLM was kind enough to invite a few of us to lunch at his cottage outside Cambridge. It was great to get out into the countryside out of town. Highlights of the day (other than the conversation) included, "How many degrees does it take to get an iron bench from a shed to a corner of the garden?"; "Kissinger? Well, not all of us had breakfast with him earlier this year"; Coelacanth enthusiastically weeding a garden bed while an emeritus professor of Trinity College took photographs and finishing the sparkling wine before lunch. All very civilised.

Last night, however, was dinner at our favourite Cambridge restaurant, Alimentum. I love it if only for the fact its incredibly classy interior looks out over a busy road onto a pine furniture warehouse.

The food as, always, was really very good indeed. But the discovery of the evening was wine no.44 on their list: a French-style cabernet blend from, of all places, Lebanon. Big flavours, amazingly well-balanced and a surprisingly light body. Quite a find.

Yes, Coelacanth and I have become wine snobs. But we're self-parodying wine snobs. So that's OK.

(*If "Coelacanth" seems confusing, see comments to the last post.)

Thursday, June 12, 2008

End of the teaching term

“So, what do you do when you’re not teaching?”

There have been a couple of signs my first teaching year has gone well. Not all the course assessment forms have been processed yet, but I’ve scored well on the survey numbers I’ve seen so far. I’ve also had a lot of requests for reference writing, and I suppose students must think you’re OK – or somehow impressive – to ask for a reference. And, most pleasingly, some of my International Criminal Law students invited me for a drink, where the question above was asked.

In theory, I’m meant to be turning the PhD into a book. However, before I even get back to work on the book, by the end of this week I am meant to:
  • settle the marks on my exam with the second marker (done);
  • meet with my faculty-appointed mentor to check on my progress (done);
  • help draft an advice for a colleague (fun, but lots of work);
  • write a book review;
  • peer-review an article for a journal a colleague edits;
  • respond to queries from an author on the last article I peer-reviewed for a journal;
  • chat with a friend about a line of argument in their PhD;
  • speak with someone the faculty may be recruiting as a consultant/external teacher on a pilot project I seem to be taking the lead on; and
  • write a 3,000 word journal note on Somalian piracy (present draft over 5,000 words).

Still, I’m not complaining. It’s good to be busy doing things you enjoy, and the real upside of academic life is the variety and freedom to manage your own time.

Oh, and I’ve just discovered I may have committed myself to too much classroom teaching next year as I didn’t realise you get teaching credit for supervising new research students. Seems obvious that that should count as teaching once pointed out, though, doesn’t it?

Sunday, June 8, 2008

First time for everything

So, a month ago I was late for my first ever exam, the one I had set for my masters course.

As the course convenor I was obliged to be there at the start of the paper to make sure no students had problems along the lines of: “My exam paper appears to be missing/written in Chinese/the paper for another course/on fire, etc”. I also had to flip through the materials my students were allowed to bring in and check they hadn’t smuggled any forbidden knowledge in through notes in the margin.

It should be a reasonably easy thing to turn up to your own exam on time. Except, of course, the law school does not have its own exam hall and the central exam timetablers can send you pretty much anywhere. We also have a pretty spread out “campus”, which includes many anonymous-looking or poorly signposted buildings that could easily be just another office block.

Leaving - I thought - plenty of time, I set off in search of my exam. Despite the heat of the day (a rare full sun and 25 degrees centigrade in humid London), I’d worn a suit and tie. I think my idea was that students shouldn’t see me looking too relaxed while they had to face a masters’ exam. Whatever I had in mind, it didn’t work out well.

The street my exam was on was easy enough to find. No problem there. But as I wandered around the top of it, I noticed few building had numbers on display, and none of those numbers was high enough. I began to get edgy. I still had a few minutes up my sleeve, but not really enough to go back to my office, check details, and set out again.

I crossed a major road. The other side was a new street. I had a missing building on my hands.
Beginning to breath faster and perspire slightly, I pulled out my mobile to call my secretary. I say “my”, but she works for eight other people as well – mostly more senior than me. She has been around for a while though, and is a gold mine of practical information. Calling her would have certainly answered my problems.

If I’d had her number.

At this point, I did what any calm, collected young academic in a suit and hard-soled shoes would do in a crisis. I ran.

Three or four blocks later, dripping on the front desk at the graduate office, I panted out my problem and they pulled out the map of exam locations. I mentioned the street name.

“You do know that on that street the numbers run up one side to the main cross-road and then back down the other?”

Well, I did now. I’d showed up at the wrong end of the street. Good thing it was only another three or four blocks to run back.

I’ll say one thing about exam panic. At least it prevents LLM students noticing that their examiner, who’s seven minutes late, has just dried his shirt out by standing in front of the hand-drier in the men’s room.

Monday, June 2, 2008

Blogging revisited

Courting Disaster has been off-line for nearly 18 months – and let’s face it, it was hardly updating regularly towards the end of that time.

So, here we are: rebooted and hopefully updating two or three times a week.

In brief, the last eighteen months have consisted of:

  • moving house (yes, again!) in December 2006, to the most adorable part of Cambridge, Newnham;
  • interviewing for three or four teaching positions and being offered a lectureship at a London university;
  • submitting the PhD thesis in May 2007;
  • marrying the love of my life in Canberra in June 2007;
  • being examined on the PhD in August 2007;
  • starting the new job in September 2007;
  • crawling elated, scared and knackered by turns through a first term of teaching (while commuting from Cambridge);
  • graduating from the PhD and having a second wedding ceremony (well, a blessing) for UK friends and visiting Australian family in November 2007;
  • having a quiet Christmas in Dahab, Egypt;
  • crawling elated, scared and knackered – but generally more confident - through a second term of teaching;
  • writing questions for and administering exams (and there’s a blog in that!);
  • marking, marking and bloody marking exams (only 84 undergraduate essays, three dissertations, 92 exam scripts and double marking the same again);
  • proposing a couple of new courses;
  • getting the PhD turned into a book proposal, peer-reviewed, committee-approved and a contract issued with a publisher; and
  • oh, look it’s just about our first wedding anniversary.

Busy? Just a bit.