A Step Towards Sanity 65
To my great surprise, the video recording of yesterday’s Court of Session hearing on the judicial review of the proscription of Palestine Action is still active on the court’s website, and you can watch it. I do not know how long this will last.
I have been used to the ludicrous restrictions on the English court hearings, where passwords were needed to access the video and it disappeared instantly after the livestream, despite these being public courts.
This in Edinburgh was a preliminary hearing on permission for a judicial review and the judge wished to consider only two questions:
Firstly, whether I had standing to bring the case.
Secondly, whether the Scottish court had jurisdiction in the light of the English judicial review.
I should be genuinely grateful for people’s opinions after watching the video, but my initial thoughts are these:
Firstly and most importantly, my legal team’s Note of Argument had asserted that they assumed that, as the judge only wished to have two points discussed, he was already satisfied on the most important point that this was a well-founded petition for judicial review with a genuine prospect of success.
The judge did not contradict this and the respondent (the UK government) did not contest this.
This is absolutely crucial. I am sure that the judicial review will proceed if the two points of standing and jurisdiction go our way.
Still more crucial, the UK government appeared almost to concede on standing, in the light of an affidavit from Huda Ammori, co-founder of Palestine Action, to the effect that I was involved in Palestine Action almost from the start.
The judge told my KC, Joanna Cherry, that she did not need to address him on standing. This appears to a certainty to mean he does accept my standing.
On jurisdiction, the UK government did not claim that the Scottish courts do not have jurisdiction. They also did not claim that the Scottish courts may not hear a matter being heard concurrently in England.
They instead fell back on two arguments. The first was the timing, convenience and cost (sic) of a Scottish judicial review. The judge appeared to give this short shrift.
The second argument – and it was the UK government’s main point – was “comity”. This was defined as “good neighbourliness between jurisdictions”, “politeness”, “courtesy” and even as mutual respect between labourers in neighbouring vineyards (honestly). The need to avoid “contradictory judgments” within the UK was advanced. All these were quotes from English judgments.
Joanna Cherry KC punctured this with one phrase: “that rather assumes the English court will get it right”.
She also directly quoted in full my own assertion from my own affidavit:
22. I am a Scot. I live in Scotland. Scotland is where I wish to publish my views in support of Palestine Action. Scotland is where my established Article X and XI human rights are being infringed.
23. I wish to seek the protection of the courts in my own jurisdiction against executive infringement of my rights within this jurisdiction.
24. As I understand it, the Scottish courts are not subservient or junior to the courts of England and Wales. Their opinion is equally valid and – crucially – the courts of Scotland have the absolute right to take a different view, even in a very similar or identical matter, to the court of England and Wales.
25. The disproportionate effect of the proscription of Palestine Action on individuals in Scotland has been appalling. Scores of peaceful people of entirely good character have been arrested on absurd pretence of “terrorism”.
https://www.facebook.com/reel/25520722000941647
There was a wonderful turnout of support on a cold, wet Monday morning at 9am. The court was packed. The judge promised to give a decision this week if possible, or very shortly thereafter.
As I said outside the courtroom, this was not about my standing or rights; it was about the abuse of the human rights to free speech and free assembly of everybody in Scotland. It was about those scores of decent people in Scotland being ludicrously treated as terrorists. It was about the lives of the hunger strikers. Above all it was about the right to act to stop genocide, and about the 100,000 or more Palestinians massacred by Israel.
The rigged judicial panel on the parallel case in England has still not delivered its ruling in their judicial review.
The jury is out on the Filton Six trial in Woolwich Crown Court, which includes the incident where a policewoman was unfortunately injured.
I have no doubt that what is happening is this: the Court of Appeal is awaiting that verdict and a massive media blitz of “Palestine Action Terrorists attacked policewoman with sledgehammer”.
After that it will quickly be announced that the proscription of Palestine Action has been upheld.
On the Filton trial, I do urge you to read the astounding defence speech of Rajiv Menon KC on behalf of Charlotte Head.
Here is a little bit of it:
So that’s what His Lordship said to you, and Ms Heer in her closing speech, on much the same theme, told you that the defendants who had given evidence had not raised any real challenge to the charge of criminal damage. I’m sorry, but it is not right to say that the defendants who gave evidence did not raise any challenge. They did raise a challenge. They maintained that they had a lawful excuse. That was their challenge. But what’s happened is that His Lordship has withdrawn that defence as a matter of law, and that’s the true position that we find ourselves in. Their challenge was lawful excuse and the court has withdrawn that as a lawful defence. So where does that leave you, the members of the jury?
You could be forgiven for thinking that His Lordship is in fact directing you, as a matter of law, to convict Charlotte, who I’ll focus on for now, of criminal damage. But you’d be wrong to think that. His Lordship is not directing you to convict. In fact, not only is he not directing you to convict, but he’s also absolutely forbidden from doing so as a matter of law. The law is crystal clear on this point. No judge in any criminal case is allowed to direct a jury to convict any defendant of any criminal charge, whatever the evidence might be. That is the law.
Please remember that fundamental principle at all times when you retire. Please don’t misinterpret anything in His Lordship’s directions or summing up (which will follow the defence speeches) as amounting to a legal direction to convict. That would be a terrible mistake to make. I repeat, His Lordship is absolutely not directing you to convict, because he’s barred as a matter of law from doing so.
The jury has every right to be confused about this because it is confusing. You have every right to think that the distinction between withdrawing the only available defence to a criminal charge on the facts, and a direction to convict, is at best a distinction without a difference. You have every right to think that the two effectively amount to the same thing. But the fact of the matter is they are absolutely not the same thing. They are fundamentally different. Let me try and explain it.
If you look at the legal directions and the first section, headed Functions Of Judge And Jury, you’ll see it’s quite lengthy. I’m not going to go through it point by point, but I’d ask you to read it carefully when you retire. All the directions in this document are important, but I’d suggest that the directions on the function of judge and jury are particularly important in this case. The key point to summarise is that the facts, and the verdicts you return having considered the facts, are solely for you.
So nobody, not even His Lordship, can direct you as to what factual conclusions to reach. Nobody, not even His Lordship, can direct you to convict. It’s as simple as that. That’s the law. So, for the avoidance of any doubt about this, I am absolutely not asking you to disregard His Lordship’s legal directions. On the contrary, I’m asking you to follow them, in particular this section on functions of judge and jury, and remind you that nobody, not even His Lordship, can dictate to you what factual conclusions to reach in this case, nor direct you to convict the defendants of any of the charges they face.
This is the one of the greatest legal speeches – including historical speeches – I have ever read. Its strength lies in its brazen defiance of the judge and brilliant footwork along the edge of contempt of court.
It is precisely what lawyers need to be doing to resist galloping authoritarianism and the complicity in it of the judiciary. I shall return to the question of what was withheld from the Woolwich jury about Elbit, just as soon as the verdict is in and I may do so without imprisonment.
I am afraid to say I still have to ask for donations. If we get a judicial review of the proscription in Scotland we are going to need to put in a huge fundraising effort for the actual review. If we lose the decision, I am liable to have the UK government’s costs awarded against me. Either way, this is about to get very expensive – which is of course precisely what the authorities rely on to crush opposition.
If we can spread the burden across enough small contributions, we can do it.
I am extremely grateful to approximately 670 people who have already contributed. Every penny helps, but please do not cause yourself hardship.
You can donate through the link via Crowd Justice, which goes straight to the lawyers, or through this blog.
https://www.crowdjustice.com/case/scottish-challenge-to-proscription/
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