Header

Amanda Knox thought that the past several years were firmly behind her- sadly, she was wrong. Convicted of and imprisoned for the sexually motivated murder of British student Meredith Kercher in 2009, she was acquitted on appeal after several years in an Italian prison, and repatriated to America in 2011. To this day there is still some mystery surrounding Kercher’s murder- and the family is still seeking answers and justice.

An Italian appeal court has very recently overturned the acquittal, and is ordering a retrial based on issues arising from the initial trial. Will Knox be returned to Italy to face a retrial?

The question is one of extradition; can she legally be extradited to stand trial again? Under US law, it is unlikely. An extradition treaty between the two countries states that:

“Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.”

Additionally, US law still contains the concept of double jeopardy. As she has already been tried for the crimes she was accused of, the US have a great legal basis to deny Italy the chance of a retrial under domestic US law.

On the other hand, there is no doubt that the Italian courts have the right and legal basis to ask for her extradition due to the conduct of the initial case. With several flaws in the trial having been revealed, to prevent a miscarriage of justice it is vital that she and co- accused Raffaele Sollecito once again stand in the dock so the truth (a very hard element to unearth in this particular case) can be established once and for all. Under international law, and relevant treaties, they have a firm legal basis to get Knox back in an Italian dock.

If the request is made, and the US refuses on legal and diplomatic grounds to agree, then Amanda Knox will have an Interpol warrant against her, making her liable for arrest and extradition to Italy if she travels anywhere in the world.

Pending the release of the judicial reasoning behind the decision, both the US State Department and the Italian authorities are remaining tight lipped as regards any outcomes or extradition. Lawyers for both nations, and both families, will be turning on legal pinheads to establish whether the relevant statutes and treaties will allow such an action to occur- while a young woman waits with this uncertainty over her, and the family waits to see whether they have to endure the ordeal of new legal proceedings.

It was not too long ago that the Italian courts and diplomats were similarly debating the niceties of extradition- but from the other side. Two Italian Marines, Massimiliano Latorre and Salvatore Girone, while guarding an Italian oil tanker off the Kerala coast early last year shot and killed two Indian fishermen. Affirming that they genuinely mistook the fishermen for pirates who posed a clear threat to the tanker, they were tried in an Indian court for murder.

After solemn assurances were given by Italy, the two marines were allowed to return to Italy earlier this year to vote in the elections. However, in a dramatic about turn, Rome decided not to return the marines to India to resume the trial.

Subsequently, diplomatic temperatures rose exponentially in New Delhi and Rome. Indeed, the Italian ambassador was forbidden to leave |Indian, an act that in itself violates internationals law, the 1966 Vienna Convention and principles and convention surrounding diplomats.

A diplomatic crisis was narrowly averted when Italy reluctantly returned the two marines to Delhi, and the (ongoing) trial resumed. This was only after New Delhi gave solemn assurances of its own that the marines would not face inhumane or degrading treatment, or the death penalty if convicted.

Here, the law surrounding extradition worked differently. It is perfectly legal for a state to refuse an extradition request if there is a danger that by doing so the person extradited will face torture, a breach of human rights, or a death penalty as an outcome of legal proceedings. In this case, the marines potentially faced a death penalty for murder, and human rights issues were also cited by Rome. Additionally, the international legal concept of aut dedere aut judicare states that an accused individual must either be surrendered to the requesting state, or face trial for the same crime in their own state; Rome offered to put the marines on trial for the murders in Italy, a perfectly legally and diplomatically reasonable request. It must also be noted that the shootings are said to have occurred in international waters. Whilst the Italian government did go back on its promise to return the marines after the elections, they had good legal basis to do so on human rights grounds.

Can the successful extradition of Marines Latorre and Girone foretell what will happen in Knox’s case if such a request is made? For the marines, a perfectly good legal (and moral) case against extradition did not work. Knox, however, has rather shakier legal and moral grounds to resist extradition; but it is unlikely that the US will concede to her extradition on points of legality and diplomacy.

Ultimately, though, diplomacy and politics will play a large part in such matters; at which point the people involved in such matters become mere insignificant chess pieces on a board between the two countries, as greater national and international issues are at stake.

Whatever the decision, she will put up a great fight in resisting such an extradition so as to not stand in an Italian court once again, and for all parties to relive the nightmare- as will the two marines in India as they try to justify their actions and tactics, and to uphold the honour and proud traditions of the Italian Marina Militare.

Most people come to the GDL straight out of university, or have taken a year off, or are converting from a different jurisdiction or career stream. Overall, however, the people who choose the GDL are fresh faced and young.

 

Not so with me (and indeed others taking the course nationwide). It has been several years since I was last in the classroom, and the reintroduction to studying for this mature student has been interesting. It is strange going into a classroom as opposed to an office or place of work. It is odd adjusting to the carefree student existence after several years of structure; working days, working weeks, lunch breaks at certain times, essentially being part of the workforce with all that entails.

 

As you get older, your responsibilities accumulate; you might be married, have children, pets, mortgage and, bills etc. All the things the young, fresh faced students just out of university have yet to experience- and it will be a shock when they do!

 

For my younger GDL colleagues, they are mostly living at home, and still enjoy the student lifestyle. Myself and other mature students have to study, and fulfil the aforementioned responsibilities we have accumulated. Additionally, after having a career and deciding to convert to law, you are right at the bottom, a novice once again.

 

My younger colleagues may talk of times of ‘responsibility and management experience’ earnestly at interviews for that elusive training contract- but they have no concept of what that really means. Running the university squash team and being responsible for the day to day running of a restaurant are two very different things. Worrying about an exam is one thing; what about worrying where that delivery is? If you fail an exam, you can brush it off, re-take or similar. If that delivery doesn’t arrive- your company suffers, resulting in a loss of profits and angry clients.

 

There are a lot more concerns and worries that a mature student has to face up to as compared to a young student. Even if only by a few years, the perspective is different. Holding up a mirror to Life, a mature student sees things which a fresh graduate doesn’t, and vice versa as their priorities are different. It is with jealousy and pity that the mature student considers the fresh grad. Jealousy of that former carefree life which they themselves used to enjoy- pity that that eager young person will soon  encounter the realities and stresses of the Real World and will have to set aside their youthful mentality and energy.

 

It is then that the mature student can learn from the fresh graduate. Life, even for a mature student, should be enjoyed, not endured. The young ones concerned with partying and a carefree existence can only be an antidote to the seriousness and cares of the mature student’s world. They can teach the mature student how to laugh and have fun again, how not to be wrapped up and concerned with their inevitable worries, stresses and responsibilities.

 

As is often the case, the young and old need each other. The older mature student can help the young student with their life experiences and knowledge. The young student can teach the mature student that life should be enjoyed, not endured, and full of optimism.

 

To misquote a French proverb, “if the young [student] knew and the [mature student] could, there is nothing that couldn’t be done”.

Sometimes things happen without you realising.

When we all started the GDL, admittedly some of us had studied law as part of our first undergraduate degrees. Some others actually had law degrees from foreign jurisdictions, and were converting to UK law.

For some of us, though, this was our first introduction to law and the legal world. For some of us, simple concepts such as the different forms of case and statute analysis were totally strange to us. The three certainties of trust, basic agreement of contract, royal prerogative in constitutional law and other legal basics were to strange creatures.

It is amazing how far you come- without realising it.

At this stage, with most of the academic studying over, those who were inexperienced in law are now- not so inexperienced. The basic concepts are now very familiar to us- so much so that we refer to them, and apply them, almost without thinking. What challenges us now, and confuses us now, are now the more complex concepts.

Agreement in contract is straightforward- but misrepresentation? How a contract can be discharged by frustration- we almost welcome trying to establish whether there was agreement to form the contract in the first place!

It is inevitable with any course of study. What seems so complex when first encountered seems so straightforward looking back at it; you then build on that and learn something more complicated. It is also an issue of confidence; having the faith and trust in your mental abilities to be able to get to grips with and understand certain concepts (in our case, complicated legal theories). You have to believe that you can learn and master what is so unfamiliar and uncertain.

You can overcome such challenges, and accomplish anything, if you put your whole mind to it. Having that desire to conquer such challenges, pushing yourself that extra mile, will result in mountains becoming hills, marathons becoming hundred metre sprints- and complicated law becoming understandable.

The GDL is intensely demanding, and complicated. No-one, lecturer, student, or recruiter underestimates the demands that studying three years of law in less than year makes of the student. If it seems tough- it is meant to be. Just remember, that legal principle that you are struggling with will soon become understandable and familiar, and you will move onto more complicated matters, which in turn will become understandable.

It is easy to feel overwhelmed by the GDL, and to feel that nothing makes sense. However, it does make perfect sense- you just have to find the order in the chaos, and to remember that it is straightforward in the end. After a while, you will even forget what you were struggling with.

It is amazing what happens when you least realise it, without you even noticing.

What was so tough about the three certainties of trust after all? It’s third party liability that really gets me now!

A short time ago- well, relatively; the GDL does strange things to your perception of time- as a class we all trooped in warily to sit our first exam; European Union Law.

 

A few hours later, we all emerged- with sunnier and happier dispositions. The consensus amongst us all was a general sigh of “thank goodness that’s all done!”  Amongst myself and my colleagues there was an inevitable air of- relief. We were glad that EU Law was now over, done, finite; that was one less area of law to worry about. One down- but six more subjects to go.

 

Despite the fact that now six other areas of law were clamouring for our academic attention- the fact that the first exam and subject was out of the way was a lesson for us all. It was a reality check with how all of us were faring with the study of law per se. If you struggled with EU Law- how are you going to cope with the rest of the GDL? If you floundered with competition law- what about tracing and third party liability in trust law? If you struggled with the complications of free movements of persons underpinning a simple legal concept- what about getting to grips with leases, where similarly a simple property agreement has hidden depths of legal complications? Despite having finished with EU Law- its effects made us consider where we were academically.

 

That aside, EU law will affect all of our future legal careers as well. All embracing and complicated, we will encounter it at some stage in legal practice.

 

Whilst finishing with it, it has to be said that EU law is overly complicated. The concept of direct effect, the rules surrounding free movement of goods, etc all have very simple legal and political theories underpinning them. However, they sit uneasily on top of labyrinthine legal procedures, rules, terminology, legal tests, and developments. Such simple concepts could be easier backed (and studied!) with simpler rules and procedures.

 

In contrast to this, however, admittedly the EU court system is much simpler than many national jurisdictions. Based in Luxembourg, there is a court of first instance (a court where cases are initially heard), and an appellate court (a higher, or appeal, court). In most other EU jurisdictions, there are several layers of local, regional and national courts. Different courts hear cases on different areas of law- and the appeal courts are equally numerous. By just having the two courts, the CJEU is actually simple in structure. A similar benefit is the role of Advocate General; a neutral court appointed lawyer who presents independent and impartial legal opinions to the courts and judges on the case being heard. Such an independent advisory official could be of use in complex cases in national jurisdictions.

 

Despite the benefits of the EU court system, it is part of an inherently Byzantine, overly complicated and top heavy system of European administration. The official EU bodies (the Commission, the European Parliament, the Council, etc) are overly formulaic, stratified and the relationships between the bodies are overly complex. For example, the whole European Parliament is spread over three European cities! The whole nature of the European Union sprawls over 27 nations, and is sprawling, labyrinthine, serpentine entity which is badly in need of reform and streamlining.

 

For any law student in any EU nation, EU law is complicated, often contrary to national law procedures and principles- but is important and very relevant to any legal practitioner across the 27 nations. Contrary to popular opinion, EU law it is not supreme per se. Rather, central EU legislation and courts work together with national laws and courts. In theory, they EU courts and legislation are there to safeguard, protect and enforce he EU treaties, with national courts referring cases to the CJEU when guidance is sought on matters of EU law. In reality, the primary and secondary EU legislation is binding, as are the judgements of the CJEU, and often can and indeed do overrule national laws. It is a complicated relationship, though similar to two squabbling siblings as opposed to dictatorial parents controlling unruly children.

 

EU law, with its complications and serpentine nature is not an overly popular area of law for many UK law students. In my case, and in that of my colleagues, we are glad it is over; now we can, and very much need to, focus on the rest of the GDL.

One down- six to go…

The rule deriving from the leading case of Brutus v Cozens states that, in law, the ordinary meaning of words will be used, unless the facts or nature of the case dictate otherwise.

Sounds straightforward, doesn’t it? The reality is anything but straightforward. Many words or phrases have more than one meaning, or can be interpreted in different ways. Selling a consignment of whisky to a restaurant is an example; to a layman and ‘Scotch’ and ‘whisky’ are exactly the same. Any sommelier will tell you otherwise; from a personal memory of the industry, the confusion for someone outside the industry is understandable!  Another good illustration of the multiple meanings of words is President Clinton’s famous sentence where he said that ‘that depends on what the meaning of ‘is’ is’.

In contract law, words and their meaning take on a whole different dimension. Every clause, line, sentence and word has to be scrutinised and its impact and effect on both parties has to be considered. Both sides need to check for exemption clauses (excluding liability by one side or the other), need to make sure that the contract complies with statutory or regulatory requirements, is a fair contract under the 1977 Unfair Contract Terms Act, inter alia.

Both sides need to know and be certain that the contract drafter has clearly set out the precise agreement and consensus, in specific and unambiguous detail, of what both parties have agreed. Hopefully that will be reflected in the contract drawn up. Returning to our alcoholic analogy, the contract of sale needs to specify ‘single malt Scotch’ as opposed to ‘whisky’; the difference is the delivery of a valuable consignment of Laphroig as opposed to a few cases of Jack Daniels…

Every single word, along with their multiple meanings, counts.

Inevitably, some contracts will fail, with one side committing a breach of contract in some way or form. Then (more interplay with words!) the exact nature of the breach has to be ascertained, before trying to get the relevant legal or practical remedy. Perhaps one party might want to carry on with the contract, and want a court to enforce the terms of the contract. Perhaps in some instances a new contract is better, often, damages or launching a string of compensation claims are the best remedy.

A lengthy and costly law suit concerning compensation claims can then arise- all because of a term in a contract that was not adhered to.

Contract law- inherently complicated and dense, twisting and turning like a snake with multiple interpretations and understandings. And often hinging upon the meaning of a certain phrase or even an individual word.

Judicial decision making

February 18th, 2013 | Posted by admin in Law & Politics | Legal reflections - (0 Comments)

In a newspaper article this weekend, the Home Secretary criticised several judges (admittedly she writes that she is “a great admirer of most of the judges in Britain”) for ignoring rules concerning the deportation of foreign criminals. According to her, too many foreign criminals have been granted the right to remain in the UK, often citing provisions of Article 8 of the Human Rights Act- which safeguards the right to privacy and family life.

In support of this, Home Office figures obtained by Conservative MP Charlie Elphicke show that between 2011 and 2012 177 foreign criminal avoided deportation citing Article 8 or similar legal subtleties.

Quoting from her article, Mrs May stated that “it is essential to democracy that the elected representatives of the people make the laws that govern this country – and not the judges. Yet some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion.”

Whilst mentioning democracy, Mrs May forgot one vital point; judges are supposed to act that way.

In a democracy, the judiciary is supposed to be free and independent, and have the authority to challenge the executive, and the freedom to exercise their own judgement in court rulings. The executive makes law and statute, which the judiciary interprets and applies. The executive should not be able to control and interfere with judicial decisions; and the judiciary should not be able to overturn parliamentary decisions. It is an intricate and complex system of checks and balances which has been in use for centuries in this country.

As has been remarked previously, quite often law is a balance. Quite often, the actual issue discussed is not as clear as it seems. If foreign criminals allowed the right to remain allows the judiciary to assert their independence from Parliament, then -morally or ethically right or wrong- that is the balance which democracy enforces. If the Home Secretary wants the rules MP’s sent to judges definitely enforced- put them into statute.

Over the centuries, there have been any episodes where the judiciary and Parliament the two sides have quarrelled over who had what rights and powers (Burmah Oil, Jackson, etc). Mrs May would be well advised that the judiciary has always fiercely championed its independence- and that the relevant court and Parliamentary proceedings shows that the executive has yet to have a convincing and total victory.

 

Walking a legal tightrope

February 11th, 2013 | Posted by admin in Learning the Law - (0 Comments)

Whilst studying law, there are constantly some matters demanding your urgent attention like an attention seeking child.

Firstly, your course itself. Law is not easy, and the GDL particularly is very demanding with its sheer workload and pace. To quote a well respected equity lecturer, ‘this is a sprint, not a marathon’. There are also regular assessments and coursework essays which ambush you with their deadlines.  In addition, you have to have one eye on the future after your studies. Networking and finding work placements are vital parts of legal recruitments. Finding and applying for training contracts, LPC, BPTC or further academic study is both time consuming and vital, and works to as strict set of deadlines.

Outside that, pro bono work is very much encouraged at all levels of legal study and practice; but that is for another post. Suffice to say that that is another task to deal with on a regular basis.  Aside from that, everyone has their own interests, hobbies and extra curricular activities, be they law related or not. One of my fellow students plays football regularly- another one assists a Middle Eastern company with legal matters- I myself write for a variety of student and non student mediums. All of which make us who we are, and add to our student experience, but which you have to find the time and put in the effort.

It is fine balancing act, walking a tightrope whilst juggling all these conflicting pressures and demands.

Law schools thus prepare novice lawyers for the real world. Real lawyers have a similar balancing act to perform. Their working day centres round onerous and demanding case load, but with added pro bono work , being involved in legal recruiting, and contributing to legal academic debate with articles, books, speeches, et al. Many are also involved in legal and political pressure groups or lobby groups. Real lawyers have to walk their own tightrope, also juggling family and similar commitments alongside the above.

This balance is  fundamental to the concept of law- because that is often what the  law revolves around.

It is not just about balancing innocence versus guilt; the justice system for centuries has balanced the needs of society with the rights of the individual.  The courts have to balance the facts of a particular case with tried and tested legal theories and principles, and judges have to balance upholding traditional legal doctrine with allowing the law to develop where necessary. Times and societies change; the judiciary and  Parliament has to reflect that with legal procedure and laws, whilst preserving the essence of law and justice that has served us so long.

It is not for nothing that justice is so often portrayed via a set of scales; that sense of balance is a central concept of law and the legal profession.

Now that this post is done, what can I realistically accomplish before my next tutorial? And just to remind myself that the deadline for that equity essay is next Tuesday…

Full Circle for Europe?

February 1st, 2013 | Posted by admin in Law & Politics | News - (0 Comments)

It was no surprise to hear a Conservative Prime Minister stating his euro-scepticism recently.

What was notable, though, was his unqualified support for the EU in one area- trade. As have Tory leaders prior to him, he was very supportive of the trade and industry behind the EU political façade.

Again, that is unsurprising. Since its beginning in various politician’s speeches and  the 1950’s Schuman Plan experiment between Germany and France in fixing coal and steel prices, trade and production for mutual advantages, the EU in all its various guises has been concerned overtly with trade. In treaties past and present, a great number of treaty articles are given up to protecting free trade, encouraging competition, abolishing border tariffs, and the free movement of services.

Aside from the primary legislation of the various treaties since the Treaty of Rome in 1957, the secondary legislation of directives, regulations, and decisions have guarded and nurtured free trade like a mother with her child. In the times where the European courts have has to intervene, the case law reflects this dedication to free trade (its ruling in 1983 against Belgian customs warehouses charging fees a good example).

Even whilst studying EU law, the emphasis on trade is evident. Although the EU of 2012 is a legal, political, and economic giant of over 500 million citizens closely linked together, quite often what binds the Union together (and to a great extent legally) is this concept of free, trade unhindered by barriers or tariffs.

Since the economic foundations were dug, the EU monolith has been built on political union, the concept of European citizenship, a supreme body of law, and an unwieldy Parliament, all sitting uneasily together on top of an economic dream. The European public, for the most part, now sees the political interference and legal supremacy more than affordable cross European goods and services.

Perhaps David Cameron is right. Perhaps it is time to go back to the founding guidelines of the EU, and to focus and develop further that original emphasis on a bloc of countries engaging in, and indeed encouraging, free trade, as opposed to what came after.

These are times of economic stagnation, and nationwide fiscal troubles. This is no so more evident than in government, where the Chancellor and Treasury have been arranging sweeping public spending cuts for the last few years. With such cuts across all departments, it was inevitable that the Treasury would be looking at the Ministry of Justice at some stage. Despite the necessity, former Justice Minister Kenneth Clarke’s decision to announce cuts to legal aid was not amongst his most popular ministerial decisions.

The legal aid bill in 2010 was £2.15bn. The MoJ budget is £8.7bn for 2012, with £2.2bn of that for legal aid. Under Kenneth Clarke’s bill, savings of £350m to legal aid and £500m to social welfare law will be made.

The cuts will start taking place soon, and will not be across the board. Most criminal defendants and immigration and housing cases will still receive legal aid automatically. What is of great concern is that it is predicted by groups such asYoung Legal Aid Lawyers and the Legal Action Group that the poorest and vulnerable (e.g. victims of domestic abuse) will in future not be eligible for legal aid. The central Idea is that those most in need will get legal aid, enabling the MoJ to keep to Treasury targets. Much of the legal profession is critical of this measure of Mr Clarke’s, as are most legal pressure groups, and have lodged their vocal protests, both to him and his successor Chris Grayling.

A basic concept of democracy is that justice and legal assistance is freely and readily available to all citizens, not just those who can afford it. In effect, such a measure is to deny law and justice to certain sections of society.

1Law students are taught that law and order and justice are for all citizens. In a democracy, recourse to the courts and access to justice and a fair trial is not a privilege- it is an undisputed right. Such cuts to a basic civic right are contrary to the basic principles of democracy.

Such thinking forgets to include the human aspect. Many families, and many other claimants, will be denied justice; they will simply not be able to afford to bring claims. It is predicted the cuts will hit the Family Division very hard, making the legal journey through the family courts harder than they already are.

Budget cuts and similar austerity measures are indicative of the times, and are necessary. All departments over the next few years will have to make cuts, and make sacrifices as they make do with less money. Whatever the savings are for the Treasury, the costs in other terms will be high.

In this instance, the cost in an erosion of a democratic right is too high to pay.

Legal Choices

January 13th, 2013 | Posted by admin in About me | Learning the Law - (0 Comments)

There comes a time where you really take a hard look at everything around you, where you are, and where you want to go. That happened to me over the recent Christmas break from law school.

For most law students, there does come a time where you think- what am I doing? Is it really worth it? What will I get out of this? Such doubts are common for most, but by no means all, law students at some stage during their studies. Whilst enjoying the festive season, I was seriously having doubts; was the legal profession for me? Indeed, I very nearly dropped out of my course, so severe were my doubts.

Law is a very serious subject and profession, and is not an easy option. It demands a lot of commitment, both in and out of the classroom. You have to have a genuine love of the subject, to be fascinated by arcane, intricate details, to be prepared to put up with academic and non-academic demands at all hours. Additionally, to lay the foundations of a serious legal career, you need to invest a significant amount of time, effort, and money- and even then, given the legal recruiting maze, there are no guaranteed paybacks for that investment. It is a very rewarding profession- but a very risky profession to get into, full of uncertainty and disappointment.

You have to be certain that this is THE career for you. Whatever advice you seek, or information you receive- only you can make that decision. You make your own choices; so don’t choose anything that you cannot live with the consequences of.

For all of the many doubting law students, don’t worry- it is perfectly normal to doubt why you are studying law. It is intensely demanding- but it is similarly an intensely rewarding profession. The average law student will not see a legal career straightaway- but over time the rewards of choosing a legal career will be apparent.

You just have to remember that this is a long term investment- and as with all long term investments, they often have the biggest yields.

For me, after the Christmas merriment was done, it was with more resolution that I returned to the classroom. Whatever my doubts now- in the long run, law was definitely the path for me.