Assange to Exit Inside Diplomatic Bag?

Julian Assange has just been granted political asylum by Ecuador. The British Government says it has a legal duty to extradite him to Sweden to face trial there and that to carry out this duty it will if necessary arrest him in what is currently the Ecuadorian Embassy building. Ecuador says it supports Assange’s case that there is a further agenda to send him from Sweden to USA to face interrogation and possible charges over Wiki leaks.

The Guardian today has suggested 4 ways that he can get out of the country and rightly sees legal and practical problems with all of them. They range from Ecuador giving him diplomatic status (which could be challenged as it would not be regarded as genuine) to smuggling him in a diplomatic bag (which has been done before by a Nigerian apparently, but was wrongly labelled so he was caught – anyway, scanners would pick up a body at the airport and so the game would be up there).

A political minefield of course, but what is the legal position? Can the British Government make an arrest on embassy premises here?

There has been much talk about the Diplomatic and Consular Premises Act 1987.

This Act came about as a consequence of the shooting of WPC Yvonne Fletcher from the Libyan Embassy. It provides in section 1 that the Secretary of State can withdraw consent for premises to be used as an embassy (and therefore the police could enter under their normal powers) but only where it is permissible under international law and taking into account all considerations. The considerations listed would not themselves seem to be applicable in the Assange case as the safety of the public is not currently at risk nor is national security (remember the Act was a response to very different and tragic circumstances). However these considerations are expressly stated to be non-exhaustive, so in theory the Act could be used but would such use not set a dangerous precedent, namely that other embassies, including British ones, could also be ‘defrocked’ in the same way throughout the world, causing possible major diplomatic tensions?

It was wittily stated on Radio 2 this morning that Assange might eventually leave himself as he will get fed up with takeaways. Otherwise, the police will probably just sit and wait it out.

This picture of Julian Assange is by Valeriy Osipov

Follow @legaleagleIP

You are in contempt!!

You are in contempt!!

 

We often hear about judges jailing people for being ‘in contempt of court’. But what does it mean? 

A finding of contempt declares that someone has either disobeyed a court order or been otherwise disrespectful of the authority of a court.  The sanction is a fine by the court or in more flagrant disobedience, imprisonment.

Disobedience of a court order is the more clear cut of the two types.  Contempt in that sense comes about often in the context of injunctions, for instance domestic violence injunctions, which are ignored,  often with very serious consequences. In the context of serious domestic violence, injunctions have powers of automatic arrest by the police for breach,  attached to them when first made. Otherwise, an application has to be made for a ‘penal notice’ first and the order has to be served again, which makes enforcement more cumbersome but ultimately has the same effect.  

Injunctions can cover many other things. A few years back a woman, otherwise law –abiding, was jailed for failing to obey a final court order to cut her hedge. The whole basis of contempt is that justice will fall into disarray and will be worthless  if court orders are not followed and courts respected,  so it makes no difference how big or small a thing the contemptuous party was ordered to do.

 It is also contempt not to attend court after service of a witness order to do so.

In the wider sense of disrespect to a judge,  this can take many forms. In my criminal law days, I had a case when a young tearaway was finally imprisoned and his father uttered a threat to ‘get’  the presiding magistrate. That was clear contempt.  Many examples involve disruption of court process in various ways, ranging from such threats to speaking ‘out of turn’ or even yawning (although in such milder cases it is likely the judge will give a strong and probably repeated warning before finding the perpetrator in contempt) .  Others involve the press. It is a contempt of court to publish material which will prejudice a fair trial. This kind of contempt is defined by statute.

Contempt can even enter the political arena.  The ex-Northern Ireland Minister, Peter Hain, is currently facing a prosecution by the NI Attorney- General for writing in his autobiography that Lord Justice Girvan was ‘off his rocker’ in connection with his questioning of decisions by civil servants in an old case when he was minister.  Such a prosecution many think goes too far.  It is a opinion expressed in an historical memoir: even if no doubt it helps to sell the book too, so too will the prosecution.  This prosecution is actually for ‘scandalising’ the judge.  Another case of that was in 1900 when the editor of the Birmingham Angus was convicted of describing Justice Darling as ‘an impudent little man in horsehair’. Ouch.

YyO

Legal Tip for Parents whose Kids are at Uni

Most students at university share houses at some point. More often than not landlords want the rent and other covenants in the tenancy agreement guaranteed by parents. I was asked to sign a guarantee recently for my son’s accommodation. I was wary, partly because I had a case a few years back where a parent client was held to a guarantee to the tune of several thousand pounds when one of the other student sharers, not their son, had not paid then rent and worse still, that student sharer’s parent didn’t honour the guarantee either. It is one thing being held to account for your own son’s default, quite another to be held to account for a stranger’s. But that is exactly the form of guarantee I was myself being asked to sign for my own son’s new accommodation. So I decided to politely refuse unless the agent amended the guarantee to cover only my son’s portion of the rent, suggesting that the landlord could do likewise with the other 3 parents and would still have 100% of rent guaranteed. Lo and behold the agent straight away came up with another standard form of guarantee just in the form I requested. So maybe the landlord had been chancing his arm all along. Anyway, the story shows it pays to hold out sometimes when it comes to any ‘standard’ legal documents which are presented to you. You don’t have to be a lawyer to do that, although you may want to take legal advice.

Judgements on an Empty Stomach

Fortunately I have won a lot more cases than I have lost over the years - otherwise maybe it would be worth thinking of another career - but on the occasions I have lost, clients have sometimes suggested to me that maybe the judge had 'got out of the wrong side of the bed today' or 'not had a good breakfast'. It would have been too flippant for me to accept these as valid reasons rather than any weakness in my argument or its presentation, but some recent research quoted in The Times recently, suggests that these clients may have had a point.

Two researchers in Israel looked at more than 1,000 decisions by 8 judges over a 10 month period. The judges worked for 3 sessions a day, with a morning snack break (more than UK judges get methinks) and a lunch break. The researchers found that at the beginning of each session, a Defendant had a 65% chance of avoiding imprisonment, declining to almost zero before the end of the session and then raising again to 65% at the start of the next session. As the brilliant QC David Pannick says in his Times column, this is 'food for thought'!

Multiple Wives Inherit Man's Estate

A recent case highlighted that English law must recognise legal relationships created in other countries even when they are repugnant to our own customs, as well as the importance of making a Will. The case of Official Solicitor to the Senior Courts v Yemoh concerned a man from Ghana who had six wives legally recognised under Ghanaian law who died leaving several properties including property in England, thus six of the Defendants in the case were widows of the deceased. If the marriages had taken place in England of course, he would have been guilty of bigamy and only the first marriage would be valid if there was no divorce. The man left no Will (we lawyers would say 'he died intestate').

The case concerned the definition of 'surviving spouse'. Under section 46 of the Administration of Estates Act 1925, a 'surviving spouse' inherits a certain amount of their husband's assets, depending on the existence of the other relatives (i.e. children, parents etc – the rules are complex). However, in this case, the court held that there were six 'surviving spouses', so all who made claim to do so were entitled to inherit.

It no doubt made a considerable difference in this case, practically if not legally, that the deceased appears to have been a very wealthy man and so there was plenty to go around. It would be interesting to see how the court would deal with the situation of a man of relatively modest means who made a Will here, had assets here and had six wives to consider. It is also worth pointing out that the intestacy rules do not prevent a claim under the Inheritance (Provision for Family and Dependants) Act 1975 under which a spouse (amongst others) can make claims for 'reasonable financial provision', even though this Act is more familiarly used to challenge 'unfair Wills'. I think cases of this kind have the potential to cause a judicial headache for our senior judges.

Anthony Wooding
Head of Litigation Department, Kerseys

thanks for the feedback.....

We recently sought some feedback from diverse people on the new look of Kerseys website. Most of the comments have been positive and some 'constructively critical'. Quite a few of the suggestions for improvement we are aiming to incorporate over time. One or two have made suggestions to do things which we are not: we are not interested in presenting ourselves as slick, smooth, syndicated lawyers with lots of warm photos of models shaking hands and news items bought in from some anonymous legal news bank. We want to show what we do and actually come across as straightforward, professional approachable lawyers who are interested in the law as a developing, intellectual but practical subject; who know their stuff and who get stuck in for our clients without fuss. We hope our site, including our own news and blogs, reflects all that. Some have also said that's all very well but you need to sell yourselves too so we are adding a Recent Successes Page too.
However the most important feedback I have personally received (thanks Tim and Dave especially) was that I needed to tie my tie a bit better if it was going to be enshrined for a while in digital version on a website. So I turned to that excellent tome '85 ways to Tie a Tie', complete with it's intricate tie formulas, and have been practising the half windsor. Photos of the fruits of my efforts will appear shortly.