Legal

State Snooper’s Ignore Our Legal Privileges

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Pol Clementsmith on why the rule of thumb overrides the rule of law in the latest revelations surrounding the illegal behaviour of our snooper secret services.


The UK government has conceded that it may have breached the European Convention on Human Rights (ECHR) by secretly intercepting legally privileged communications between lawyers and their clients. This intelligence gathering, by our unelected security services, which has been going on since 2010, might also have been used to prepare the government’s own legal defence against the very people who are suing them.

Lawyers for a Libyan politician, Abdel Hakim Belhaj, who was abducted in a joint operation by the CIA and MI6 are currently suing the UK Government over his rendition back to Libya in 2004. Belhaj and his wife, Fatima Bouchar, were secretly flown to Tripoli, along with Sami al-Saadi and his family, where they were tortured by Muammar Gaddafi’s security services. It is also believed that British intelligence officers took part in these interrogations.

MI6 office polThe government’s concession, which is as damaging as it is embarrassing, follows on from another investigation by the Investigatory Powers Tribunal (IPT) who recently concluded that the regulations covering the retrieval and retention of our private emails and phone conversations, intercepted by the US National Security Agency (NSA) and by Britain’s communications intelligence agency (GCHQ), were also a breach of our right to privacy.

The civil liberties group Reprieve has revealed, in papers passed to them, that our intelligence services have accessed sensitive and legally privileged communications between lawyers and their clients and may have used this normally protected information to prepare a case against them. Communications between lawyers and their clients enjoy a specially protected status under UK law.

Government sources are refusing to confirm or deny whether the Libyans were the subject of an interception operation. They insist the concession does not concern the allegation that actual interception took place and say it will be for the IPT to determine the issue.

Rachel Logan, of Amnesty UK, stated that: “We are talking about nothing less than the violation of a fundamental principle of the rule of law – that communications between a lawyer and their client must be confidential.

“The government has been caught red-handed. The security agencies have been illegally intercepting privileged material and are continuing to do so. This could mean they’ve been spying on the very people challenging them in court.”

Cori Crider, a director at Reprieve and one of the Belhaj family’s lawyers said: “For too long, the security services have been allowed to snoop on those bringing cases against them when they speak to their lawyers. In doing so, they have violated a right that is centuries old in British common law. Today they have finally admitted they have been acting unlawfully for years.

“By allowing the intelligence agencies free reign to spy on communications between lawyers and their clients, the government has endangered the fundamental British right to a fair trial.

“Reprieve has been warning for months that the security services’ policies on lawyer-client snooping have been shot through with loopholes big enough to drive a bus through.”

A government spokesperson said that: “The concession the government has made today relates to the [intelligence] agencies’ policies and procedures governing the handling of legally privileged communications and whether they are compatible with the European convention on human rights.

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“In view of recent IPT judgments, we acknowledge that the policies adopted since 2010 have not fully met the requirements of the ECHR, specifically article 8 (the right to privacy). This includes a requirement that safeguards are made sufficiently public.

“It does not mean that there was any deliberate wrongdoing on the part of the security and intelligence agencies, which have always taken their obligations to protect legally privileged material extremely seriously. Nor does it mean that any of the agencies’ activities have prejudiced or in any way resulted in an abuse of process in any civil or criminal proceedings.”

Cori Rider believes that: “It looks very much like [the government] has collected the private lawyer-client communications of two victims of rendition and torture, and possibly misused them.

“While the government says there was no ‘deliberate’ collection of material, it’s abundantly clear that private material was collected and may well have been passed on to lawyers or ministers involved in the civil case brought by Abdel hakim Belhaj and Fatima Boudchar, who were rendered to Libya in 2004 by British intelligence.

“Only time will tell how badly their case was tainted. But right now, the government needs urgently to investigate how things went wrong and come clean about what it is doing to repair the damage.”

The actions of our security services are a clear violation of Article 8 ECHR and subsequently Article 6 ECHR (the right to a fair trial). How is anyone supposed to mount a robust defence or a strong prosecution against this kind of government sanctioned eavesdropping?

The goal posts of legal privilege have been moved to a secret location. Our government is no longer operating within the rule of law. Do not phone, or take calls from, your lawyer. Never email them. Always meet your brief on a secluded park bench. If you do have to venture into your lawyer’s office use only coded gestures and prearranged signals. This may currently be the only way to ensure that your privacy isn’t breached.

Heads down, thumbs up, eh.


 

Moto Update #1

Spoke to Gary at Sandy Bloy motorcycles and it looks like my bike will need some TLC.

V rod stock 2

1. Back tyre – as well as being flat I’m going to need a new back tyre as the tread is very low.
2. Battery – although I bought a new battery last year it is not holding a charge.
3. Air filter – probably a good idea to replace this as the big V-twin needs a bucket of clean air to keep the liquid cooled engine in top form.
4. Reg plate – Gary will have to make up a new plate as my current one is not completely legal.
5. Service – the bike will need a complete service overhaul, new brake pads, filters, oil and fluids.

Gary is hoping to get the bike ready for me within a week or so, but as the weather is still not good I’m not in any rush to get out – especially with all the salt and grit on the roads. It’s my own fault as I haven’t been able to use the bike for a long time – but my studies, and student finances, took precedence.

At least I know that my beloved motorbike is in good hands.

To Green or Not Too Green?

That really shouldn’t be the question.

Pol Clementsmith on why taking a stand against any form of hegemony is good for Scottish Politics.

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Politics is a funny old game. I can only imagine what it must look like to the recently converted. Especially those who became involved during the Scottish referendum. The pro-yes parties, which included the Scottish Greens (SGP), the Scottish National Party (SNP) and the Scottish Socialist Party (SSP), have all seen a surge in the number of new members signing up. Mostly as a result of the disappointment felt by many yes voters last September but also because of a desire to engage in the political process.

Some people are surprised to learn that the Scottish Green Party had (and still has) a substantial number of paid up members who voted no last September.

Just take a moment to let that sink in.

That’s the kind of party we are. A simple majority of our members wanted independence and so it was decided that this was the direction we would follow. That’s how we roll in the SGP. That’s how we politic. We’re very democratic that way. I’d go so far as to say we’re a lot more democratic than some of the other parties who conduct their business under a centralised whip. Every single member has a vote in the Green Party and everyone has a voice. Every local party is autonomous and is free to make its own decisions. It’s called bottom up politics or, to use a much maligned and misappropriated phrase, people power*.

That’s why I joined the Scottish Greens.

The upcoming General Election on 7th May is not another referendum. After the upset of losing such a polarised debate there were many discussions about the possibility of a Yes Alliance. A cross party deal designed to break the stranglehold of the mainstream parties at Westminster. With the Greens, SNP, SSP and independent candidates all standing on a joint ticket. Or not standing at all in order to let the party with the potentially largest majority have the best chance of success. The problem with these discussions was that most of them took place in local hostelries. I was always a tad wary of going to any meetings to discuss this mythical alliance, not because I didn’t want to be part of what would have been an amazing force of cooperation, but because deep down I couldn’t shake the slightly nauseous feeling that party politics just doesn’t work like that.

A recent misconception, which is gaining ground amongst some political newbies (as well as some not so newbies), seems to suggest that the ‘non-SNP’ parties should call a halt to their political aspirations to give the SNP a clear run at challenging the most seats in May. Some of the Yes groups have even expressed their dismay that the SGP are even considering running candidates in certain constituencies. How dare the SGP continue to let their voters keep on voting for them? Some of these voices are quite vociferous in their belief that everyone else should take a back seat so that one single party can rule the political roost. I don’t agree with that position. Why should we work together to unseat a political hegemony in Westminster just to replace it with another one in Scotland? Even Lesley Riddoch agrees with my view that this might not be a good thing.

Whilst the referendum was an opportunity to join together and take a stand (over what was essentially a constitutional question about self governance) a general election is a very different beastie indeed. It was the SNP who drew a line under any kind of cross party alliance and decided to contest the election on its own. But when you think about it this makes perfect sense. We live in a democracy. We should all be allowed to vote for the party we most believe in. It might not be the same party that you believe in but hey, that’s politics.

The SNP and the Scottish Green Party are very different political animals (although you might not notice from the amount of Green policies that the SNP, and others, have decided to adopt). But as Mr Wilde once said, ‘Imitation is the sincerest form of flattery that mediocrity can pay to greatness’, which only reinforces how popular Green policies are with the voting public. This can be seen on the Vote For Policies website which has placed the Greens as the most popular party after more than half a million people responded to their survey (try the questionnaire yourself). Although many people ideologically agree with the Greens, they don’t always vote that way – either because they are unaware of the fact that they are covert Greenys, or they feel that under the current First Past The Post system, a vote for the Greens might not count for much.

Compare this natural public affinity towards Green policies and devolved people power with the SNP’s style of government. They maintain a very strict party whip that controls every SNP MP and MSP’s move. They only want to wield power at an executive level and, according to a recent Cosla report, they are the most centralised government in Europe. They are also a party of big business as usual. Hence, the SNP are the antithesis of the SGP. We want more devolution so that local councils and communities can raise their own taxes and make their own decisions on how that money is best spent. We have been inviting our members to make policy since we were called the People’s Party and we let our members vote on every aspect of party business. We’re campaigning for a universal citizens income, a minimum wage of £10 an hour (by 2020), and a Land Value Tax to replace the out-dated, and unfair, Council Tax. We don’t accept donations from big business and corporations (so that once we form a government we won’t be at the behest of these companies) and we rely solely on member contributions and fees and fundraising events, which is why we can’t stand candidates in every constituency. But hey, that’s our kind of politics. It’s called Radical Democracy and it’s coming to a polling station near you, in May. No more bland sound bite politicking, regurgitated and rebadged for mass consumption whenever an election rolls around. It’s time for real, tangible engagement (aka people power), exercised in our communities, by you.

Not voting Green because you think it will hinder another party’s progress is like agreeing to build more and more nuclear weapons until someone else decides to ban them.

It’s mutually assured hegemony.

We’ve all got one vote in May. Make sure yours is unilateral.


Pol Clementsmith is Campaigns Co-ordinator for the Dundee & Angus Green Party

Scots Blawg: Lexislex and Facebook: Hardley Legal

* Democracy is a composite Greek term, stemming from the words Demos (people) and Kratos (power),  literally; people power.

Digital Rights and Wrongs: Snapchattin’ in the House of Lords


Pol Clementsmith argues that where the principles of free speech, privacy and responsible anonymity are concerned, an open web, free from legislative back door snooping, is an essential digital right.

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The first widely known document concerning the protection of a class of people against interference from the State was the Magna Carta. This year is the 800th anniversary of the signing of the Great Charter in 1215 after King John’s defeat at the hands of some of his more rebellious Barons. However, as soon as John was a sword’s length away from the negotiating table he immediately petitioned Pope Innocent III who, upon realising the potential power of the document to unseat autocrats, of which he was undoubtedly one, absolved John of any duty to observe the terms of the document, accepting the King’s pleading that he had been cajoled into stamping the document under duress.

Lord Denning has described the Magna Carta as “the greatest constitutional document of all times […] the foundation of the freedom of the individual against the arbitrary authority of the despot”, and whilst the Magna Carta has been hailed as the inspiration for much of today’s citizen rights’ legislation (including America’s Declaration of Independence, the 1791 Bill of Rights and the Declaration of Human Rights in 1948), it was never actually signed at Runnymede. King John merely put his seal to it. It then went through so many edits, additions and revisions that it became a much altered, skinnier version of itself only becoming statute in 1297, a full eighty two years after its inception.

Fast forward nearly 800 years and we find ourselves at the opposite end of the law making spectrum where legislation-stuffing, often carried out at breakneck speed, is the new normal. Legislation aimed squarely at allowing the State to steamroll over our human rights with the noble aim of protecting us from the war on terror.

Following on from reaction to the recent attacks in Europe, we have witnessed yet another assault by our own Palace of Westminster on our right to online privacy. A House of Lords debate on the inclusion of the Snooper’s Charter into the waistline of the already bulging Counter-Terrorism and Security Bill (CTSB) has, for the time being, delayed the ongoing erosion of our right to communicate freely online and without fear of state intervention.

Four senior cross-party peers led by the aptly named Lord King launched a last ditch attempt (carved up as eighteen pages of amendments to the CTSB), to reintroduce the Snooper’s Charter before the general election which would allow our security services unbridled access to everyone’s web and phone use.

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The Open Rights Group has stated that the amendments contain a “series of threats to [our] digital rights” and are “nearly identical” to the failed draft Communications Data Bill of 2012 (the original Snooper’s Charter) which was rejected by a parliamentary committee who concluded that it was woefully inadequate legislation.

In supporting these reheated amendments, Lord King criticised those who called the measure a snooper’s charter as trading in “sanctimonious claptrap”, stating that, “we could easily see a Paris or a Belgium [attack happening in the UK]”. He then went on to expound that he was no “master of the internet”, and that, “I am not a Twitterer. I don’t know about Snapchat or Whatsapp, but the terrorists do…”.

King’s statements not only show his inability to understand the basic tenets of online communication but they expose his readiness to legislate the latest sound bite laws, like David Cameron’s impractical threat to ban encryption, without due care and attention to the fact that encryption is used everyday in thousands of transactions which keep us safe online and actually protect people who live under authoritarian regimes from torture and oppression. King eventually withdrew his amendments but added that he was likely to press the issue to a vote at next week’s report stage of the bill. We can only hope he didn’t Snapchat his intentions to the PM.

We have also witnessed similar sound bite scrambles by other European member states to allow greater access to our private communications by intelligence services – but last year the ECJ ruled that the controversial Data Retention Directive (DRD) was invalid citing an invasion of privacy by the State. Brought in to allow member states to compel communication service providers (ISPs) to collect and retain sensitive personal data, the DRD has been judged to contain a “wide ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data”.

The parliamentary assembly of the Council of Europe has also stated, in a recent report on mass surveillance, that existing British laws, which give MI5 and GCHQ wide-ranging powers to monitor our communications, are incompatible with our human rights. It argues that British surveillance may be at odds with Article 8, the right to privacy, Article 10 the right to freedom of expression and Article 6, the right to a fair trial.

The Electronic Frontier Foundation also shares my concern that in the wake of terrorist attacks, “we see governments moving swiftly to adopt new laws without consideration of the privacy rights being sacrificed in the process.” It is this swiftness to legislate-at-all-costs, as displayed in this week’s House of Lords debate that we should keep a weary eye on.

King John 1Meanwhile, the inventor of the world-wide-web, Tim Berners-Lee, believes that we need an online Magna Carta to “protect and enshrine” the independence of the medium he created and one that we all enjoy using today. His plan is part of an initiative called the Web We Want. It is asking for people to create a digital Bill of Rights in every jurisdiction; a statement of principles that would be supported by government officials, public institutions and corporations.

An outspoken critic of US and UK spy agency activity, in the wake of the Edward Snowden leaks, Berners-Lee has stated that, “unless we have an open, neutral internet we can rely on without worrying about what’s happening at the back door, we can’t have open government, good democracy, good healthcare, connected communities and diversity of culture.”

When the Magna Carta was eventually made into statute it had gone through a series of changes which reflected the ongoing aspects of the Barons and the Monarch’s needs. Thankfully, the most important sections, originally numbered 39 and 40 at Runnymeade, were retained and these have gone on to form the basis of the most important human rights legislation we now enjoy today:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

As Tim Berners-Lee insists, “It’s not naive to think we can have [a digital Magna Carta], but it is naive to think we can just sit back and get it.”

J.K. Simmons is on holiday.


Motorcycles and the Law

Get on Your Bike:

Today I took my first steps towards obtaining a legal traineeship.

My plan is to travel around Scotland, on my motorbike, delivering my CV to law firms along the way.

My aim is to stimulate interest in my desirability as a potential trainee and to hopefully open some doors to the next stage of my training. I’m also looking forward to having a good blether with other (legal) bikers along the way.

With the help of some savings and a little extra help from the bank of mum (thanks mum!) I have arranged to have my Harley Davidson V-Rod VRSCA picked up to be serviced by Steve and Gary at Sandy Bloys in Perth. It’s been sat in my rented garage, without power to maintain the battery, for a little longer (18 months) than I’d have liked. My motorbike has had to take a back seat whilst I completed my studies, but it now seems like the perfect time to resurrect my passion for motorbiking and combine it with my new found passion for Scots law.

There appear to be problems with the electrics but Harley are famous for this. Plus there is fuel in the tank that has probably gone off. Fingers crossed it hasn’t bubbled up into the carburetor. Steve arrived to pick him up and, due to a flat back tyre, we struggled to get the bike up the ramp and into the van. Once Steve had strapped the V-Rod down safely he set of for his workshop in Perth. Can’t wait to get the bike back.

Really. Can’t. Wait.

Follow my journey on twitter:

Check out Gary and Steve’s super service at the Sandy Bloy Website

Here’s how it happened in pictures:

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Open sesame

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V is for V-twin, R is for racing, S is for street, C is for custom and A is for the first of a new breed of Harley.

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Here comes Steve

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Sandy Bloy to the rescue

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Managed to get it up the ramp without too much bother

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My Beautiful 2006 Harley davidson V-Rod VRSCA 1130cc

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Flat back tyre didn’t help

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Steve managing the 5 point turn

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Where’s my motorbike gone?

V-Rod VRSCA Overview:

The VRSC was introduced in 2001 in a single model called the V-Rod. The V-Rod was developed to compete against Japanese and American muscle bikes. The “V-Rod” made use of the Revolution engine, developed jointly with Porsche that, for the first time used overhead cams and liquid cooling. Unlike other Harley production motorcycles, a 60-degree V-twin engine, the radiator and the hydroformed frame members support the round-topped air cleaner cover.

The fuel tank on the V-Rod is located underneath the seat, placing the rider on top of it, rather than the usual frontal placement. The “tank” in this case is dressing, hiding the frame. Loosely based on the VR-1000 Superbike, Harley-Davidson builds it as a platform for drag-racing competition machines. All VRSC models are produced at Harley-Davidson’s Vehicle and Powertrain Operations facility in Kansas City, Missouri.

Engine Spec:

Cubic Capacity (cc) 1130
Max Power (bhp) 115
Bore (mm) 100
Stroke (mm) 72
Valve Gear DOHC
Compression Ratio 11.3
Cooling Liquid cooled
Fuel Delivery Electronic sequential port injection
Stroke Type Four Stroke
Drive Belt

Bike Spec:

Length (mm) 2377
Tank (gallons) 3.7
Dryweight (kg) 271
Seats 2
Seat Height (mm) 688
Suspension Front Wide 49mm custom fork
Suspension Rear Polished one piece cast aluminium swing arm
Wheels Front 19 inch cast disc
Wheels Rear 18 inch wide cast disc
Brakes Front Four piston 292.1 mm disc
Brakes Rear Four piston 292.1 mm disc
Tank Capacity (litres) 14
Wheelbase (mm) 1715
Ground Clearance (mm) 141
Trail (mm) 99
Chassis Steel perimeter upper frame with hydroformed main rails and bolt-on lower frame rails, MIG welded

 

 

Why?

Whenever I tell anyone that I have recently retrained as a lawyer they tend to ask me the same question – why?

Why did you give up (what is presumed to be) a glittering showbiz career, rubbing shoulders with actors, with the chance of working in remote and beautiful locations with a bunch of talented professionals?

When I tell other lawyers that I have retrained, they ask me similar questions, usually adding their own versions of why. Why have you given up such a rewarding career to sit behind a desk? Why have you forgone the wonderful catering, the creative freedoms and the glorious and simple joy of creating?

My usual response is to quietly explain that I have always wanted to be a lawyer but that I never sat still enough, for long enough, to get the requisit grades when I was younger and I ended up travelling down a different road.

Filmmaking is an ardous task. It invloves months and sometimes years of preparation. Raising funding. Finding actors. Working with a highly skilled team of talented individuals. Searching for great locations. Finding great locations. Finding out you cannot use those great locations.

Obtaining film permmissions. Personal and public liability insurances. Dealing with multiple contracual issues, copyright issues, compliance issues, managing budgets and client expectations. Mulitple reasons for staying up late to finish tomorrow’s draft of the script. Multiple mornings where I’d get up at 5am to catch the best light of the day, after only a few hours sleep.

Fourteen hour days are common when you are on location. Getting through those days with a number of challenging meetings is normal. Solving problems on your feet with the help of others around you is all part of the process.

That’s why I loved it so much.

If any of this sounds familiar (especially to my lawyer friends) then you’ll understand why I want to become a solicitor.


Welcome to my Scots Blawg:

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After a previously successful career as a director in the theatre and film industries I decided in 2009 to pursue a long held vision to study Scots Law. I have now completed an honours degree and finished my Diploma in Legal Practice. I am currently searching for a traineeship. This blawg will document my attempts to obtain one.

I am the kind of person who thrives in a team environment with high levels of responsibility and a challenging, varied and rewarding workload. I understand how the media works and can bring lots of experience and contacts within the film, television and theatre industries to your practice.

So, if you’re looking for a dynamic and rewarding relationship with your next trainee then please get in touch:

Pol Clementsmith LL.B (Hons) DipLP MSc

Click here to email me