Death row cases – my experience and how to get involved

Competition for training contracts and pupillages has never been so fierce. Aspiring solicitors and barristers face cut-throat rivalry, not just from fellow vocational course graduates, but from graduates in previous years, whose qualifications remain valid for up to five years. Hence, with demand for positions at an all-time high, becoming a lawyer for a living requires a demonstrated commitment to the law in practice, as well as in theory.

Legal work experience is the key. In the UK, however, opportunities open to students are, for the most part, restricted to passively observing. Such opportunities are undoubtedly valuable, but can hardly be described as work experience. Therefore, aspirants need to get ‘hands-on’ with real cases. For those who can afford to go, there are opportunities for assisting over-burdened lawyers in the United States.

Death penalty cases

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

One might assume that capital defence work pays handsomely — after all, what could be more demanding than fighting to save the lives of one’s clients?

In reality, though, capital defence lawyers are the poorest paid in the business, earning less, on average, than the UK minimum wage, while resourced by a tiny fraction of the budget that is available to prosecutors. As a result, capital cases tend to attract sub-standard defence lawyers, who know they can get away with shoddy work because society takes the view that their clients are lucky to be represented at all.

There are, however, a small number of dedicated defenders who believe that the law should be faithfully applied, even in cases involving the worst atrocities. These lawyers are the most noble in the US, but with the best will in the world, one lawyer can only be in one place at any one time. Hence, two charities, Amicus and Reprieve, were set up to assist by sending dedicated law students to help. In 2009, I was fortunate to be one of those students.

After attending two training weekends in London, I was sent by Amicus to assist Glenn Swartzfager at the Mississippi Office of Capital Defence Counsel.

Boarding the plane at Heathrow, I expected to be home in three months — the minimum commitment required. Little did I know that, in fact, I had tasted my last cup of Tetley for the next ten months! I funded this time abroad with personal savings and credit. And being a part-time Open University student, I was able to take my legal studies “on the road.”

In a moment, I will discuss three cases that I assisted with. But first, I think it’s important to say a few words about managing expectations.

As a budding practitioner, you may be wondering what an internship would entail for you. The best answer I can give is: it depends. A lot of ground may be skipped by assuming you are a diligent, reliable individual with a knack for legal research and writing. If so, you can improve your odds of getting away from the photocopier occasionally by taking the following three factors into account.

The time of year is important. If you go during the holidays, you may find yourself working alongside other interns — who, like you, will be trying hard to get a taste of real lawyering. As an Open University student, my holiday occurred when most law students are back in class. This made a big difference. Therefore, if possible, I advise going when other students are unable to. A gap year is probably the best way to achieve this.

Execution dates may be relevant. The lawyer I worked for handled post-conviction appeals. I saw how life at an appellate office is quiet until just before a client’s scheduled death… then things become manic. This is when you could be sent to find last-minute witnesses, or asked to conduct research into possible new legal arguments. Texas kills the largest number of inmates per year, but, for this reason, it attracts the largest number of intern applications. Therefore, you may wish to consider a state other than Texas. Of course, if you are placed with a trial lawyer, execution dates will have no bearing on the work you do.

Building trust is essential. The onus is on you to prove that you are reliable. Many prospective interns say the right things to get the placement, but after arriving, a few find their motivation waning unless the lawyer is constantly patting them on the back. Work hard and have faith that your diligence will be noticed.

Lastly, it is worth remembering that even if your whole internship were to be spent at a photocopier, that would still count as ‘paralegal’ work for your CV, not to mention the glowing reference you could expect from a lawyer who had more time to fight for clients because of you.

I was involved in three cases — those of Gerald Holland and Joseph Burns, in which I helped to write clemency petitions (presented to the State Governor after all legal appeals have failed), and the case of Jeffrey Davis, in which I was sent to find mitigation witnesses.

Gerald Holland

Gerald Holland

Gerald Holland

A combination of violent temper, alcoholism and brain damage led Gerald to murder a young girl who stayed at his home. With his execution just weeks away, I was given two issues to investigate.

Firstly, Gerald was pronounced clinically dead at age 13 after falling asleep next to a leaking gas fire. His brain was starved of oxygen for a number of minutes. Tests later found indications of brain dysfunction. The jury was not informed. While brain damage could not excuse what Gerald did, it might have helped the jury to understand why he did it.

Secondly, jurors were overheard making comments which cast a doubt on their ability to decide impartially.

It took two weeks for me and another intern to track-down and interview former jurors, and to research mental deficiency grounds for the clemency petition. The Governor denied it within two hours. Gerald was executed by lethal injection in May 2010.

Joseph Burns

Joseph Burns

Joseph Burns

Joseph was known for being a gentle, compassionate person. Then one day, he was dragged into a bad situation without warning, and his fate was sealed forever.

Joseph stopped at a motel with a friend. The friend proceeded to attack the manager and rob the cash stored in the motel’s money box. The pair fled. Unfortunately, agreeing to accept half of the cash would make Joseph “death eligible” when the manager died from violent injuries, which included stab wounds inflicted by a screwdriver.

Everyone, including the prosecution, accepted that it was the friend’s idea to steal the cash, and everyone agreed that it was the friend who struck the first blow. However, the friend gave evidence against Joseph in return for leniency. After blaming Joseph for most of the violence used, the friend is now enjoying freedom. Joseph was not so fortunate.

The jury that sentenced Joseph to die was given no information about his benevolent past, including that he had three loving daughters who suddenly faced growing up without a dad.

It took two weeks for me and another intern to track-down and interview Joseph’s friends, former lovers and other persons to whom he still mattered greatly (including his three children), and to research/write grounds for the clemency petition. The Governor denied it within two hours. Joseph was executed by lethal injection in July 2010.

Jeffrey Davis

Jeffrey Davis

Jeffrey Davis

When painful events shook his life, Jeffrey resorted to binge drinking and drugs. This tragically culminated in Jeffrey shooting his girlfriend one night, during a drink/drug fuelled argument. Jeffrey fled the scene in her car. The prosecution later argued that this made Jeffrey’s crime a combined murder and robbery, thus making him “death eligible” — even though the car was stolen after the shooting, so the victim’s trauma was made no worse by the theft element.

Within hours, Jeffrey had turned himself in to police. He confessed, claiming to have acted in an altered mental state after injecting cocaine. Jeffrey’s crime shocked the small-town community, who, until then, knew him to be a man of good character.

Twenty years later, I visited his town and was able to gather sworn affidavits from many people who remembered him. A number recalled Jeffrey doing odd jobs for them without pay. Best of all, I found a lady who had worked at the jailhouse where Jeffrey was kept until trial. The lady recalled Jeffrey being allowed out of his cell to wash police cars (which often had guns inside), as well as being trusted to accompany her to the supermarket to help fetch supplies. This proved that Jeffrey could be trusted to serve life in prison, where he would pose no threat to guards or other inmates.

Jeffrey’s death sentence was quashed by the Supreme Court in 2012. He has since accepted an offer of life in prison without possibility of parole.

Want to get involved?

There is information about becoming an intern on the Amicus and Reprieve websites.

Richard Murtagh is an LLM student at the University of Birmingham, he studied his LLB at the Open University.

This article originally appeared in Lawyer2B on 19th August 2014. Available at http://l2b.thelawyer.com/careers/pro-bono/death-row-cases-my-experience-and-how-to-get-involved/3024582.article. It is reproduced with the permission of The Lawyer2B. We are grateful for their support in this.

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Peter Savory’s impressive advocacy style wins OU Law Society second annual moot

Law students from Birmingham, Sussex, Nottingham and beyond met at the University of Law in London on Saturday 16 August to compete in the Open University Law Society’s second annual novice moot.

The students faced a panel of judges including Suzanne Rab, a barrister at Serle Court Chambers, and Open University graduate Rebecca Penfold who is a pupil barrister at Dyers Chambers.

The moot problem concerned the application of s.76 Sexual Offences Act 2003, which states that there is a conclusive presumption of rape where the defendant has impersonated a ‘person known personally’ to the complainant in order to gain their consent.  Students had to argue whether this provision should include a situation where the defendant gains the complainant’s consent by impersonating a celebrity who the complainant is a fan of but does not have a personal relationship with.

After three rounds, Peter Savory, a W200 student from East Sussex, emerged victorious. Peter wowed the judges not just with his legal argument but also his impressive advocacy style.  He wins £25 of Amazon vouchers.

OU Law Society Moot winner 2014 Peter Savoury (centre) with judges Suzanne Rab (left) and Rebecca Penfold (right).

OU Law Society Moot winner 2014 Peter Savoury (centre) with judges Suzanne Rab (left) and Rebecca Penfold (right).

Commenting on his win, Peter said: “Saturday’s competition provided a terrific opportunity to put our legal learning to the test.  I’d like to thank the OU Law Society for organising the event and the judges for their insights and guidance as we progressed through the competition.”

Peter commenced his OU legal studies in 2013, following a long career in the classical music industry.  He has found the structure and flexibility of the course – with its programme of regular tutorials – ideal for someone returning to formal study after such a long break and hopes eventually to make a second career in the law.

The Open University Law Society  run a series of events for OU students throughout the year, including careers talks, mooting workshops and socials.  They also enter teams into external mooting competitions.  In 2013 OULS teams won the ICLR national moot as well as the Lexis Nexis Welsh National mooting competition.  Membership is £5 per year.

OU Law Student of the Year 2013

Southampton law student, Adam Paine, has been named as The Open University Law Student of the Year 2013 at a special event in Westminster.

OU Visiting Professor Cherie Booth (on right) presents OU Law Student of the Year 2013 award to Adam Paine (on left).

OU Visiting Professor Cherie Booth (on right) presents OU Law Student of the Year 2013 award to Adam Paine (on left).

30 year-old Adam Paine was presented with his award for being the highest achieving student of the year. The award was presented by leading barrister, human rights activist and Visiting OU Professor, Cherie Blair CBE QC and Head of The Open University Law School (OULS), Emeritus Professor Geoff Peters.

Adam started studying with The Open University (OU) in 2008, initially with the intention of finishing a degree in Politics, Philosophy and Economics. Adam was working full-time so he valued the ability to study law part-time. As he explains, “It wasn’t an option to study full-time, but I was keen to work towards qualifying as a lawyer as soon as possible as I am always conscious of the fact that I’m starting a career in law quite late compared to many. The OU has a reputation of being the best place for part-time study and the flexibility of the courses meant that I could study two at once during my Bachelor of Laws and finished it about a year earlier than anticipated. This ultimately brings me a year closer to starting work as a lawyer.”

Adam achieved a First Class (Hons) Bachelor of Laws and has now successfully secured a training contract with the Government Legal Service, starting in September 2014. “It’s a fantastic opportunity as it showed me that my route to qualifying as a solicitor is assured – assuming that I don’t mess anything up along the way! The Government Legal Service does a wide variety of unique work so it’s difficult to know what my role will end up being there. Ultimately, I am hoping to use the experience to pursue a judicial appointment, but that’s a long way off.”

Like many OU Law students Adam required dedication and discipline to complete his law degree, often working into the small hours to complete his studies. Adam found that “having regular tutorials was a great way to meet fellow students. It was an enormous help to know that others were in the same position as me, and to commiserate with them about the demands of the course and the dread of the next set of exams!”

Adam doesn’t consider himself a “typical” law student and attributes his academic and professional development to studying with the OULS. “I grew up on council estates, and my parents are not themselves professionals. I am enormously proud and privileged to have had the opportunity to follow my ambition of qualifying as a lawyer. I don’t think it would have been possible without the access to further education that the OULS provides to students.”

Commenting on his award Adam said:

“I’m genuinely surprised to have received the award for Law Student of the Year 2013 because I’ve never considered myself to be an exceptional student. I scraped by in my GCSEs and dropped out of my A-Levels in the second year. Back then, I didn’t consider myself as particularly academic and it was only after enrolling on the Bachelor of Laws that I realised how much I enjoy studying. It’s wonderful to receive an award for working towards something you are so passionate about.”

Reflecting on the evening and when asked what advice she would offer those who are considering and those who are new to the legal profession, Professor Blair said:

“The most important thing for all law students is to focus on achieving an excellent qualification and evidencing your dedication to academic studies and passion for law. I think that The Open University Law School students face a unique challenge: managing the demands of studying law with the pressures of their professional and personal lives in an amazing achievement.

“I would like to congratulate Adam for achieving The Open University Law Student of the Year 2013 and wish him every success in his career in the legal profession.”

Travels with a paper friend

SLSA 2014 at Robert Gordon University, Aberdeen, provided the next leg in the development and the travels of my paper, “Feel your dark way as I lead you, Father”: (re)imagining equity with law using Sophocles’ Theban Plays.  In short: it has come a long way.  The following section lifted from the paper’s abstract tells the story so far:

Using as illustrative Sophocles’ Theban Plays, primarily Oedipus at Colonus, and a psychoanalytic methodology, the following paper will aim to examine aspects of the familial dynamic between equity and law, with the aim of rendering problematic the maxim and embedded perception that “Equity follows the Law”.  Foundational to understanding this dynamic is how the two tenets traverse and negotiate both with one another, with third parties, as well as with the topography in which they operate and perform.

By a long way I’m not merely referring to the refinement of the paper’s core ideas and the structure of its arguments that have been meticulously developed over various iterations, although of course I hope this is the case.  Rather, a long way refers literally and somewhat apologetically to distance.  A short explanation is required…

Having started life on the outskirts of Milton Keynes in the autumn of 2013 the paper’s next stop took it (along with me) to Melbourne, Australia, for a doctoral forum hosted by the generous folk of Melbourne law school.  To be honest the attendees at Melbourne experienced the paper in a very raw state and it became abundantly clear to me following the forum that significant work was required to tighten-up the theory and its application to questions of the law of equity’s relationship to the common law, which I set against the background of (in the main) Sophocles’ Oedipus at Colonus.

Next stop, March 2014 and the neo-classical surroundings of the University of Virginia in Charlottesville, where my dulcet tones echoed through the corridors of power that line that institutions magnificent law school, as I delivered to the keen ears of the audience the paper’s conflation of law, classical drama and psychoanalysis.  After a few months in which I was able to address the concerns Australia had raised, the presentation in Virginia felt on track and the audience response was both encouraging and engaged – equity it seems, at least for some legal scholars, holds a significant place in their psyche, although not always for positive reasons!

And most recently to Aberdeen…for the day.

I thus attach a degree of personal guilt to a paper which I have otherwise enjoyed watching evolve during the last six months, because it has accrued such a substantial carbon footprint.  By my calculation at least 14,726 miles.  It has become imperative therefore to make this paper count, and reactions, albeit to a limited audience in Aberdeen, would suggest it may be reaching a conclusion.

The aim of the paper was neither to invent a new course of dealings between equity and the common law, nor to rewrite history as such – there is no academic validity in either of those.  Rather, by mobilizing the legal imagination via, in this instance literary drama, I want this paper to provide an alternative, critical avenue for those interested in the continuing development of equity, and legal scholars more broadly, to explore.  One which does not accept with any degree of complacency even the most seemingly settled concepts in law such as the equitable maxims.  To that end I am confident this paper has achieved a semblance of this modest task.

The possibility of publication may now be on the horizon.  But I’m not convinced this will signal the end of the line entirely for a paper which has equally become a favoured travel companion.  There are always more devils in the detail to be teased out.  Avanti!

Robert Herian

Lecturer in Law

School of Law, Open University

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2013: The legal year in review

2013 was a seminal year for legal education with the publication of the Legal Education and Training Review. It also saw the unprecedented step of lawyers across the UK refusing to attend court in protest against Government policy, and some ground-breaking new laws.

The Legal Education and Training Review (LETR) was a joint project between the Bar Standards Board, Solicitors Regulation Authority and the Institute of Legal Executives Professional Standards. Its purpose was to review legal education in relation to regulated and non-regulated legal services in England and Wales. The long-awaited LETR report was published in June 2013. Key messages of the report focused on quality and competitiveness, flexibility (including new pathways to qualification), talent management, ethics, new ways of working (including increased focus on workplace learning and the use of technology to delivery education), and the challenges of legal regulation. Three key recommendations were that further research was needed into how the Foundations of Legal Knowledge (the core part of the LLB) should be balanced, that there should be consideration of whether any amendment to those subjects is needed, and that assessment of legal writing, research and reasoning skills should be an integral part of the LLB. As these are important changes it will take time for Law Schools (including the OU Law School) to implement them so there will be no immediate impact on current students.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force in April 2013 introducing substantial changes to the legal aid system in England and Wales, whilst in Scotland the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013 introduced changes to criminal legal aid in Scotland. These changes to legal aid raised substantive concerns about access to justice and led to Scottish lawyers going on strike in 2013 followed by their counterparts in England and Wales in early January 2014.

The UK Parliament had a busy year passing 33 Acts, the most since 2010. Notable Acts include the Marriage (Same Sex Couples) Act 2013 which provides for same sex couples to get married, the Succession to the Crown Act 2013 which provides that succession to the Crown does not depend on gender, the High Speed Rail (Preparation) Act 2013 which gives the Secretary of State extensive spending power in relation to the preparation for HS2 and the Crime and Courts Act 2013 which includes changes to make the recruitment and operation of the judiciary more flexible and open to diversity. There was also extensive discussion surrounding the Draft Voting Eligibility (Prisoners) Bill which is the UK Government response to the ECtHR judgment on prisoner voting.

The legislatures in the devolved nations were also busy. The Scottish Parliament passed 14 Acts, most notably those relating to the 2014 Scottish Independence Referendum and the Land and Buildings Transaction Tax (Scotland) Act 2013 which will replace Stamp Duty Land Tax in Scotland. The National Assembly for Wales made good use of its power to legislate (introduced by the Government of Wales Act 2006) by passing 7 Acts, including the landmark Active Travel (Wales) Act 2013 which will make is easier for people to walk or cycle in Wales. The Northern Ireland Assembly passed 10 Acts, most notably the Criminal Justice (Northern Ireland) Act 2013. Also on constitutional note the date of Scottish Independence referendum was announced as 18th September 2014 and the Scottish Government published Scotland’s Future, its guide to what will happen if Scotland votes ‘Yes’ in the referendum. The Scottish Constitutional Futures Forum has provided extensive academic discussion on the issue of further devolution or independence for Scotland.

There were also some very interesting speeches by judges including Lady Hale on ‘What’s the point of human rights’, Lord Sumption on ‘The Limits of Law’, Lord Mance on ‘The Interface between National and European Law’ and Lord Neuberger on ‘Justice in an Age of Austerity’ as well as many high-profile cases, some setting important precedents or raising issues for further consideration. Also of interest was Prof. Alan Paterson’s lecture on the workings of the Supreme Court.

2013 set the foundations for what we will see in 2014 including potential change not only to the way legal education and training is delivered, but to how legal representation is provided and even potential change to the constitutional make-up of the UK. It will certainly be an interesting year.

Sources of further information / updates
Guardian Law http://www.theguardian.com/law
Times Law http://www.thetimes.co.uk/tto/law/
Law Society of England and Wales http://www.lawsociety.org.uk/
Law Society of Northern Ireland http://www.lawsoc-ni.org/
Law Society of Scotland http://www.lawscot.org.uk/
UK Court and Tribunal Service http://www.justice.gov.uk/about/hmcts
Northern Ireland Court and Tribunal Service http://www.courtsni.gov.uk/en-GB/pages/default.aspx
Scottish Court Service http://www.scotcourts.gov.uk/
UK Supreme Court http://supremecourt.uk/
Judicial Committee of the Privy Council http://www.jcpc.uk/
UK Human Rights Blog http://ukhumanrightsblog.com/

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The (Il)legality of the Use of Force in Syria

The past week has seen a major turn in relation to the ongoing civil war in Syria. Following an attack on civilian population near Damascus, which resulted in over 1400 deaths, allegations have arisen regarding purported use of chemical weapons in the attacks. The alleged use of chemical weapons (in particular sarin) in Syria, triggered off the strong reaction amongst various Western States, led by the US, who called for an urgent need for military intervention in Syria.

Whilst the results of an attack are tragically marked by high levels of human suffering and certainly invite moral considerations of intervention, the legality of a proposed military intervention is questionable.

The use of chemical weapons is prohibited in international law by the Chemical Weapons Convention    1992 (http://www.opcw.org/chemical-weapons-convention/), to which Syria is not a party. This however, does not mean that Syria may ‘get away’ with the use of chemical weapons. The prohibition is well-established under customary international law, especially under customary International Humanitarian Law which absolutely prohibits the use of chemical weapons in armed conflict, both of international and non-international character (see Rule 74, CIHL Study: http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule74, confirmed by the ICTY in Tadic (Jurisdiction) at para.499.). Given that Syria has been involved in non-international armed conflict when the use of chemical weapons took place, such conduct amounts to a breach of IHL. Furthermore, the attack in Damascus amounts to a war crime and crime against humanity, both falling under the jurisdiction of the ICC, and the situation in Syria may be referred to the ICC.

However, what may not be forgotten in the debate on intervention in Syria is that the use of force is prohibited in international law, bar two exceptions: when the use of force is in self-defence or when it is authorised by the UN Security Council under Chapter 7 of the UN Chapter. In context of the current situation in Syria, neither of the exceptions is applicable. The option of humanitarian intervention, alike one in Kosovo in 1999, has also been considered, despite being highly problematic, especially in terms of its compliance with international law.

At the moment of writing (2 September 2013), the military intervention in Syria appears to be illegal under international law, despite convincing political or moral arguments in favour of military action. Finally, what appears to be intriguing is the timing of intervention. The civil war in Syria has been continuing for over 2 years, with reports of killings, inhumane treatment of civilians and multiple human rights abuses (committed by both sides to armed conflict) being featured nearly daily in the world news. However, it appears to be the alleged use of chemical weapons that, once again (cf. intervention in Iraq in 2003) has grasped the attention of international community and motivated its (re)action- results of which are yet to be seen. 

Olga Jurasz

Lecturer in Law

School of Law, Open University

Preventing sexual violence in armed conflict – the role of International Humanitarian Law

War is neither pretty nor fair. It generates human suffering, which is borne primarily by the civilian population, as seen in Syria which, over two years after protests erupted against President Bashar al-Assad, continues to be torn apart by armed conflict.

With rising levels of indiscriminate violence and a death toll of more than 70,000 there is little to distinguish it from a full-scale internal armed conflict. Summary executions, torture, the unlawful targeting of hospitals and medical personnel, and the alleged chemical attack in March are just some of the tragic features of this conflict. But war does not happen in a ‘lawless vacuum’. There is a body of rules designed to regulate conduct in armed conflict and, vitally, to reduce the human cost of war.

International Humanitarian Law (IHL) governs the conduct of armed conflict. It provides protection to civilians and those no longer taking part in hostilities (the wounded and POWs) and strictly prohibits the targeting of civilians. Furthermore, all sides in armed conflict must choose appropriate means and methods of waging war that spare civilian lives. That is what IHL demands of them.

However, applying the principles of IHL has become increasingly difficult on the modern field of battle which today can be in the street, a market place and homes – all far removed from the understanding of conventional warfare as waged when the four Geneva Conventions were adopted in 1949 (followed by two additional protocols in 1977).

As of 2011, 194 States have ratified the four Geneva Conventions making them universally applicable. Although Syria is not a party to Additional Protocol II, it remains bound by the Common Article 3 to all four Geneva Conventions 1949 which specifically regulates protection of victims in non-international armed conflict. Article 3 sets out fundamental rules applicable to situations of non-international armed conflict which prohibit the vast majority of acts happening in Syria today.

While how war is waged has dramatically changed over the past 50 years, one of the oldest and most brutal weapons of war, rape and other forms of sexual violence continues to be employed in conflict. IHL specifically prohibits rape and other forms of sexual violence both in international and internal armed conflicts. Following its use during the Arab Spring, reports from Syria, including the Report of the independent international commission of inquiry on the Syrian Arab Republic confirm the widespread use of sexual violence. However, incidents of sexual violence often go under-reported by victims because of the social stigma and a culture of silence in relation to rape and other forms of sexual violence which still persist in many societies.

Preventing sexual violence in armed conflict was a key topic during the G8 Foreign Ministers’ Meeting earlier in April 2013. UK Foreign Secretary William Hague, who launched an initiative on Preventing Sexual Violence in Conflict in May 2012, said: “Our goal must be a world in which it is inconceivable, that thousands of women, children and men can be raped in the course of a conflict because international framework of deterrence and accountability makes it impossible”.

Notwithstanding the Foreign Secretary’s view, IHL remains clear about the prohibition on rape and other forms of sexual violence in international and internal armed conflicts. Indeed, for the past few decades nothing has changed in terms of the core rules of IHL. These rules applied during conflicts in the Former Yugoslavia, Rwanda and the DRC, all marked by exceptionally high levels of sexual violence. The only thing that has changed is a curious shift in political agendas, which has once again refreshed the long-running debate about the need to eradicate the use of sexual violence as a weapon of war, and not the international legal framework surrounding armed conflict.

Nonetheless, more than 60 years since the four Geneva Conventions were created, 15 years since the first successful prosecution by an international criminal tribunal of rape and a few UN Security Council Resolutions later, sexual violence in armed conflicts, including in Syria, continues to occur.

Does this mean that IHL is out of date and unfit to protect the victims of modern armed conflict? I do not think so. The rules of IHL are simple and clear, they prohibit the killing of civilians, torture as well as outrages upon personal dignity and rape. However, these violations continue as many of the perpetrators think they will go unpunished. This is despite the two decades of major developments in the field of international criminal law, which resulted in successful prosecution of perpetrators of war crimes, crimes against humanity and genocide at international level. During that time, rape and other forms of sexual violence were also successfully prosecuted by international criminal tribunals.

What is the way forward? The challenge lies in implementing and enforcing these rules by all parties involved in armed conflict. In the context of modern, asymmetrical warfare engaging in a dialogue with States as well as non-state participants seems the best way forward. But how and where does one begin to engage with these active participants in modern armed conflict, especially with non-state actors? And, more crucially, how does one convince them to obey the rules of IHL?

It is complex question and, to an extent, a political hot potato which requires resources, specialist staff, commitment and time. Lack of political will to comply with the principles of IHL is not an uncommon challenge. Furthermore, the practical difficulties involved in such a project should not be underestimated. After all, guerrilla fighters or other armed groups do not have offices in New York or Geneva and may not be easily convinced to engage in dialogue about the respect for IHL.

More than 60 years ago, the renowned international legal scholar Sir Hersch Lauterpacht, noted: “If international law is at the vanishing point of law, the law of war is at the vanishing point of international law”. Looking at the situation in Syria today, Lauterpacht’s observation might still appear valid. However, it is difficult to picture what modern warfare would look like without IHL – presumably even more gruesome, violent and destructive than it currently is.

Instead of demeaning the value of IHL, perhaps it is more important to focus the discussion on how to improve its enforcement in the 21st century. More effort and willpower is certainly needed to nurture respect for IHL amongst all parties to modern armed conflict. IHL is far from being outdated as some people may suggest.

Olga Jurasz
Lecturer in Law
School of Law, The Open University

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Legal Education – the way forward?

Background

The landscape of the legal profession and legal education is changing. The Legal Services Act 2007 and the Legal Services (Scotland) Act 2010 have created new opportunities and challenges, not least opening the door to alternative business structures. In Scotland the new education and training regime for law students is in its infancy, as is the new framework for paralegals. In England the outcome of the Legal Education and Training Review in England is anticipated in the near future.
In these times of change questions arise as to how education providers can best prepare their students to meet these challenges. Regardless of the qualification provided educators want their students to have the best chance of gaining employment and thus need to ensure that they are given the opportunity to develop the relevant practical and professional skills.

The aim of the workshop was to consider some of these issues and opportunities by disseminating good practice and developing ideas on how to provide flexible learning for paralegals and law students that enhances their employability. The workshop took place on 29th April 2013 at the Open University in Scotland, Edinburgh. The workshop was chaired by Alison Miller of the Open University Law School and was attended by 13 academics from a range of HE and FE institutions including the University of the West of Scotland, Edinburgh College, Staffordshire University, Scotia Law Training / Stirling University and the Open University.

Presentations
Rob Marrs, Senior Policy and Development Manager (Education and Training Policy) at the Law Society of Scotland outlined the legal professional and educational framework in Scotland. He highlighted that only about 50% of those undertaking an LLB in Scotland are doing so for vocational purposes, the other 50% use it for other purposes so it is worth bearing this in mind when designing legal education. He added that one of the attractions of the LLB is the transferability of the skills developed in the degree. He explained that the route to qualification as a solicitor in Scotland changed in 2011 to be much more outcomes focused.

The Diploma in Legal Practice (PEAT 1) now has learning outcomes which each student must meet. This not only benefits students, but also employers as they now know that anyone who is starting a traineeship will have to have met at least these minimum standards to have passed the Diploma. The focus of the outcomes is five-fold: professional standards; communication; ethics; business, finance and practice management; and legal knowledge. There is also increased opportunity for students to specialise within the Diploma with 50% of the modules within qualification being elective. This ensures that students can build upon their legal knowledge making them more employable within their chosen field.

The traineeship (PEAT 2) is also now based on outcomes which are set to hone the knowledge and skills developed on the Diploma. There is formal monitoring every three months against these outcomes. This provides an opportunity for trainees and employers to gauge progress and to address any gaps.
The educational landscape for qualified solicitors has also changed with more flexibility in how they implement the required 20 hours of CPD each year. There is more online provision and generally more availability of CPD options.

Rob noted that the current economic climate may be affecting legal education and training as the number of people undertaking the Diploma have been down year on year since 2008 (c.30% reduction between 2008 and 2012) however, whilst traineeship numbers are down 2% in 2012 from 2011, they are up on what they were a few years ago.

Rob went on to outline the changes for paralegals. The key change in this area was the introduction of the Registered Paralegal Scheme in 2010. The scheme was developed by the Law Society of Scotland in conjunction with the Scottish Paralegal Association. The motivation for introducing the scheme was awareness of the growing professionalisation of the paralegal profession and the increasing numbers of qualifications available. The Registered Paralegal Scheme provides a defined career path and a means of professional recognition for paralegals. The scheme has a number of legal domains (areas of specialism) in which paralegal can register. To be able to register they must hold a relevant qualification (as defined in the scheme, and then undertake a one year of training period. If, at the end of this period, they meet the competencies outlined in the scheme they can become a Registered Paralegal.
Rob highlighted that the legal market is changing – the introduction of legal process outsourcing (LPO) has potential to create a substantial change in the market and is already affecting Scotland with one large LPO company based in Glasgow. The introduction of alternative business structures, if it happens, also has potential to change the market and could lead to the creation of paralegal owned firms. The introduction of more mass providers (e.g. the Co-operative) will also influence the market and increase the number of paralegals required. This means that paralegal education will become increasingly important.
Whilst paralegals are not regulated at present, their supervising solicitors are and the Registered Paralegal Scheme does provide a complaints mechanism. If a Registered Paralegal is found to have breached the terms of the scheme then they can be expelled from the scheme. Rob noted that so far only 1 complaint has been received and it was thrown out as being unfounded.

Tommy Cuthbert, National Relationships Manager at Skills for Justice outlined the unprecedented change in the legal market in England and Wales and in Scotland. This includes the introduction of alternative business structures, changes to legal aid, the recession, increase in fees for legal education, mergers of firms and court closures.

He outlined the Skills for Justice work developing Modern Apprenticeships and the context in which these were being introduced. In England and Wales there has been a commoditisation of legal services and an increasing search for new talent, not just among graduates but more widely. This increase in non-solicitor staff has meant that more staff providing legal services are unregulated. Skills for Justice launched the Higher Apprenticeship in Legal Services to meet this need.

Tommy highlighted that the smart way to provide legal services at reduced cost was to maximise the use of non-solicitor staff, including paralegals. He outlined that only 3 key areas are required to be completed by solicitors, all other legal work can be completed by non-qualified staff. This opens up opportunities for employers and paralegals.

Tommy suggested that there is a need for a pathway for schools leavers to gain entrance to the Registered Paralegal Scheme. The Skills for Justice Modern Apprenticeship could provide this pathway. It is an employer led and designed opportunity which will test competence and knowledge through a recognised structure. This apprenticeship is still in development and Tommy invited delegates to get in touch if they were interested in knowing more about it or becoming involved in the development work.

Rosemarie McIlwhan, Lecturer in Law at the Open University, discussed the research she conducted in 2013 with Alison Miller (also of the Open University) on ‘The provision of paralegal education in Scotland.’ (available at http://www3.open.ac.uk/near-you/scotland/p8_1.asp) This research built on Rosemarie’s 2010 research on ‘The provision of legal education in Scotland’ which outlined gaps in legal education generally and highlighted the issue of paralegal education specifically.

Rosemarie outlined how their 2013 research draws upon a survey of paralegals, employers of paralegals and providers of paralegal education. The research highlighted the issue of the term ‘paralegal’. Whilst the term ‘solicitor’ is a protected term under the Solicitor (Scotland) Act 1980, the term paralegal is not protected. This means that anyone can call themselves a paralegal regardless of what they actually do or what qualifications they have. The Registered Paralegal Scheme goes some way to addressing this as to be a Registered Paralegal you must reach a certain standard.

Rosemarie outlined that a number of qualifications for paralegals were offered in Scotland. She highlighted that whilst these covered a range of levels on the SCQF (Scottish Credit and Qualifications Framework) scale they were mostly qualifications at first instance and there were no real opportunities for further educational development for paralegals. She explained that the research had highlighted this as a gap in provision both in terms of needs of paralegals and employers.

Rosemarie also highlighted that gaps in provision exist geographically and in terms of flexible learning. The current provision of paralegal education does not cover the Highlands and Islands, nor does it cover the South of Scotland thus those wishing to undertake qualifications in these areas would need to travel to be able to do so. This is an issue as most paralegals surveyed as part of the research stated that they had undertaken their education whilst in employment. This highlights the other gap in paralegal education, which is the need for flexibility. There are limited options in terms of flexible learning as there are only a few providers who offer distance learning and none which offer online learning. The research highlighted that these are key areas where paralegals and employers would like to see further development.
There are also subject specific gaps particularly in relation to the newer legal domains under the Registered Paralegal Scheme and also in terms of transferrable skills. There was a need identified, particularly by employers, for business and management skills. Rosemarie highlighted that this would particularly be relevant if alternative business structures are implemented in Scotland and paralegals are able to become partners in a firm.

Discussion

Delegates raised a number of questions and issues. It was queried whether there is a need for a ‘senior paralegal’ within the Registered Paralegal Scheme or whether a qualification pathway is required i.e. to recognise paralegal’s on-going educational development.

The issue of the perception of the paralegal profession provoked substantial discussion. Delegates were clear that being a paralegal is a profession in its own right and is not a step to becoming a solicitor nor is it a lesser role. Many delegates commented on working with paralegals that were more adept in the law than solicitor colleagues. However delegates also commented that in their experience some people do not recognise being a paralegal as a distinct career choice and view it more as being a frustrated lawyer. Delegates felt that the Registered Paralegal Scheme and other such initiatives would help to address this view. Delegates also noted that some graduates were using their LLB and Diploma / Legal Practice Certificate (LPC) to access paralegal jobs in the hope that this would lead to a training contract however that firms were being very clear that this would not happen.

Regulation of paralegals was also an issue where strong views were put forward. It was suggested that formal regulation of paralegals may be required in the future, particularly if all of the changes in the legal profession mean that paralegals are working more independently. It was discussed that regulation of paralegals would provide protection not just for paralegals, their employers and solicitors but also for the public. Regulation would ensure that a person using the term ‘paralegal’ was qualified and competent to a certain standard, rather than at present where anyone can use the term.

Delegates discussed whether there is a need for dual qualified paralegals in the same way as increasing numbers of solicitors are dual qualified. It was highlighted that in many areas paralegals are already qualified to work across the UK because the areas of law are the same e.g. employment law. However it was also highlighted that as there are differences in the legal systems it may be beneficial to offer a module on comparative legal systems which would introduce paralegals from across the UK to the differences in the legal systems and which would enable them to work in all jurisdictions. It was noted that University of London offer a MOOC (Massive Open Online Course) and the Open University also offer free online courses (OpenLearn) in this area.

The issue of ethics was also raised. This is a key anticipated outcome of the Legal Education and Training Review in England, but it is already a core professional practice outcome in Scotland for solicitors and paralegals. In this context the question was raised about the ethics of unpaid internships and whether as educators we should encourage or support students to undertake such work as a means of enhancing their employability or whether we should take the view that such internships are unethical (and potentially illegal) so it is not in our students’ best interests to be involved in such practice. It was noted that the Law Society of Scotland will shortly be publishing guidance for solicitors on the issue of internships.

We would welcome further discussion of the issues, in particular the following questions:
1. Is there a need for further educational opportunities for paralegals, for example higher level qualifications beyond SCQF level 10, CPD etc.?
2. Is there a need for paralegal qualifications to be recognised / transferrable across the UK?
3. How can FE and HE institutions best meet the needs of paralegals and other law students in the current economic climate in a flexible manner and still ensure that they are prepared for the legal market of the future?

To reply please email Rosemarie.McIlwhan or Alison.Miller. Both of these email address end in open dot ac dot uk.
The Open University in Scotland
May 2013

Internships – a legal minefield?

The use of internships has come to the fore over the last year or two. However what constitutes an internship is contested, with no agreed legal or social definition of the term. This makes the use of internships a legal and ethical challenge.

The debate centres on the role of internships and whether or not they should be paid. With no definition of “internship” the term has been used to variously describe a short-term placements making tea and doing photocopying; to medium-to-long-term activity managing specific pieces of work. Similarly there have been substantial differences in whether the payment, ranging from no payment or expenses only to national minimum wage and beyond. It could be argued that these ambiguities make internships attractive to employers; however exploiting this also opens up the employer to risk.

As stated earlier the definition of an internship is contested. Lawson and Potter (2010) recognise this and shy away from providing a definition but do suggest the key features of an internship to be length, time commitment, work expectations and contribution. They suggest that an internship should last for a substantive period of time, generally 3 months or more; that the intern work set hours, potentially full-time; the intern must complete a specified piece of work and that their progress on this is monitored and evaluated; and that they make a significant and valuable contribution to the organisation, usually by undertaking work that otherwise would have been completed by a paid member of staff (Lawson and Potter, 2010: 4-5).

These features highlight two issues which are of interest from a legal perspective; firstly the requirement to work set hours, thus implying that there is an element of obligation on the part of the intern and control on the part of the employer; and secondly that they undertake work usually undertaken by paid staff. Both of these points raise questions about whether the intern is an employee for purposes of the National Minimum Wage Act 1998.

Two concepts relating to staff are defined in the National Minimum Wage Act 1998. The first is that of “worker” and the second is that of “employee”. The concept of worker is quite broad and includes the narrower term of employee. To be considered a worker an individual must be working under a contract of employment or other contract which requires them personally to carry out the work. The Employment Rights Act 1996 defines an employee as someone who works under a contract of employment. Case law has drawn out a number of tests which are used to identify if someone is an “employee” including whether a mutuality of obligation exists; whether the employer has control over the work of the employee as well as whether a contract of employment exists and whether the individual must personally carry out the work. The terms worker and employee are particularly relevant as employees are entitled to more employment rights than workers, for example only employees are entitled to claim unfair dismissal; and are entitled to redundancy pay amongst other rights. Applying these tests to the key aspects of internships as defined by Lawson and Potter (2010) it can clearly be seen that an intern could be conceived to fall within the definition of worker, and potentially also employee. This is important, not only from the financial perspective of entitling the intern to national minimum wage, but also from the perspective of the additional rights which accrue from being employed rather than a volunteer.

The issue of payment of interns, although not the definition of intern itself, was considered in the only case on internships so far, Employment Tribunal case Vetta v London Dream Motion Pictures (2009, unreported). While Ms Vetta had applied for a film production internship post advertised as offering expenses only, the Tribunal found that workers engaged on an expenses-only basis are entitled to payment at least in line with the national minimum wage plus payment for the holiday they accrue. This would appear to clarify the position that unpaid or expenses only internships, where the intern is clearly doing work that benefits the organisation, are unlawful in terms of the National Minimum Wage Act 1998. At this juncture it is useful to note that failure to pay national minimum wage when it is due is a criminal offence in terms of s31 of the Act.
So what of the argument that interns and actually a type of volunteering. Again there is no legal definition of volunteer per se, however case law in this instance is more helpful. In X v Mid Sussex Citizens Advice Bureau [2009] EWCA Civ 340 on 10 March 2009; and Melhuish v Redbridge CAB IRLR (2005) 419 it was confirmed that volunteer agreements can be binding in honour only, i.e. they are not contractual; and that volunteers can only be paid reasonable out-of-pockets expenses. This position is also emphasised in Migrant Advisory Service v Chaudri EAT/1400/97 (28 July 1998) which highlighted that employers cannot escape their employment obligations by calling someone a volunteer, the tribunals will look behind the term to determine the actual nature of the role.

However for those organisations that engage volunteers a further complication exists in terms of the National Minimum Wage Act 1998. In trying to ensure that “true volunteers” i.e. those who wish to voluntarily donate their time and expertise, are not unintentionally caught by the provisions of the legislation, the Act defines a “voluntary worker” as “a worker employed by a charity, voluntary organisation, an associated fund-raising body or a statutory body; who under the terms of his employment is entitled to no monetary payments of any descriptions except reasonable expenses incurred in the performance of his duties; and no benefits in kind of any description other than the provision of some or all of his subsistence or reasonable accommodation related to his duties.” (s44(1) National Minimum Wage Act 1998). The question arises as to whether or not an intern constitutes a voluntary worker for purposes of the Act. Key amongst the issues here is the intention in relation to the internship, if there is an element of obligation on the part of the intern and control on the part of the employer, then this would likely be seen as an employment rather than a volunteering relationship and therefore would not fall under the definition “voluntary worker”. If the arrangement is less prescriptive with the intern under no obligation as to hours or work; the organisation would still need to be careful not to fall foul of the provisions around expenses and benefits in kind by only paying out-of-pocket expenses and limiting benefits-in-kind to those which are necessary for the role. Provision of additional benefits-in-kind or unsolicited expenses might be considered as payment and therefore imply an employment relationship (Melhuish v Redbridge CAB IRLR (2005) 419)).
Thus it can be seen that there are key differences between an intern as defined by Lawson and Potter (2010) and a volunteer as defined in case law. The most substantive of these is the difference in expectation or obligation. Volunteers are bound in honour only whereas the expectation on an intern (even where it is not contractual) appears to constitute a more substantial obligation. That obligation (to work set hours, on specific pieces of work as directed by the employer) would seem to indicate that in most circumstances an intern will fall within the definition of worker for the purposes of the National Minimum Wage Act 1998, as confirmed in Vetta v London Dream Motion Pictures (2009, unreported). The need for clarification of the law in this area would appear to be obvious, the question is whether there is political will to change it?

Rosemarie McIlwhan
Lecturer in Law
School of Law, The Open University

Rosemarie is a research consultant with the Third Sector Internships Scotland programme http://www.3rdsectorintern.com

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Death Penalty USA – News by Mike Farrell-Deveau

 

Interesting developments from theUSAin the campaign to abolish the death penalty.

 

Sunshine in Connecticut?

Yesterday on Thursday 5th April Connecticut state Senate voted to repeal the death penalty throughout the state, a welcome development in the continuing campaign against capital punishment in the USA, although the proposed repeal must still be passed by the democrat controlled state House of Representatives who are widely expected to approve. Interestingly and the only questionable issue with Connecticut’s actions here is the decision to retain the death penalty for 11 inmates on death row in the state rendering abolition non retrospective and for future cases only. This is questionable as it sidesteps the reasons for abolishing the penalty in the first place. None the less,Connecticut has taken a positive and widely publicised step forward.

 

As such should the Connecticut House of Representatives approve abolition, this will to 17 the number of states (plus the District of Columbia) that will have repealed capital punishment, a grouping which includes Alaska (1957), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Massachusetts (1984), Michigan (1846), Minnesota (1911), New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode Island (1984), Vermont (1964), West Virginia (1965) & Wisconsin (1853) (Although new Mexico holds the dubious distinction of maintaining a death row despite having abolished the death penalty due to not having made abolition retrospective).

 

This is however tempered by the fact that 33 states currently retain capital punishment and an associated death row including Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon (Note that Oregon Governor John Kitzhaber has admirably issued a moratorium on executions in Oregon, but this is only to the extent of his office and has not yet been legally repealed), Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wyoming, and out of order, last but certainly not least, the main capital state Texas.

 

Texas remains however the jewel in the crown of abolitionist ambition, the staunchest capital state, the one least likely to budge on executing, and possibly one of the states with more scandal in the name of capital punishment than any other, including the tragic case of Cameron Todd Willingham, executed in 2004 for allegedly killing his three children by arson, but for whom this conviction has been found since to be highly unsafe due to the fact that evidence of arson used was flawed and not suggestive of arson at all. This is bad enough in itself however there is evidence to suggest that an enquiry set up in Texas to investigate the possibility of a miscarriage of justice was derailed on purpose by the state Governor Rick Perry (Famously failed homophobic presidential candidate).

 

Of course the worst aspect of the Willingham case is that he is no longer alive to argue his own case, and no amount of debate, discussion, hiding of facts, curtailing of investigations etc can ever bring him back highlighting one of the fundamental flaws in the capital punishment system, among the many flaws it carries.

 

Other states currently debating repeal of capital punishment includeKentucky,KansasandCalifornia. It can only be hoped that the movement for abolition can gain positive momentum through these states.

The ongoing case of Linda Carty is continuing to attract attention. You may remember from my earlier post in November last year or if you watched the Channel 4 documentary last year ‘The British Woman on death Row‘ that Linda is British Grandmother with dual British / US citizenship currently on Texas’ death row following a highly questioned murder trial which can be read about in great detail on the Reprieve website here the upshot of which is that the conviction of Linda appears highly flawed due to a lack of proper representation, numerous glaring evidential errors, and the reliance on a highly questionable witness, one of the actual killers who in order to avoid the death penalty themselves gave unreliable testimony against Linda in court. Death penalty aside, on the face of such facts bringing the conviction into disrepute, a retrial at the very least is due in Linda’s case.

 

That is not to be the case however, and it is now being reported that Linda has lost a final appeal against sentence and that a date for execution by lethal injection could now be set at any time. This is a highly unacceptable situation, even more so in light of the Cameron Todd Willingham case mentioned above, which proves that not only is execution an unacceptable form of punishment, it is also one from which there can be no comeback should it emerge later that the conviction was unsafe as may well be the case here.

 

A number of things can be done should you wish to take action to assist in the campaign to stop the execution of Linda, all as published on the Reprieve website here, you can sign the petition for clemency, write a letter through Reprieve to the authorities in charge, write directly to Linda offering support, and follow numerous social media sites on the case.

I urge you to do so if you have not, and also to continue to support the many other organisations campaigning for the repeal of capital punishment in the USAand worldwide, a number of which can be found on the LawBlogOne Facebook page, and for which I provide a few links below, there are of course many others.

 

Mike Farrell-Deveau,

April 7th 2012

 

Campaign group links:

Reprieve

Amnesty International

Virginians for alternatives to the death penalty

The National Coalition to Abolish the Death Penalty (NCADP)

Execution Watch (Texas)

 

 

This is an edit of a post that appears on the authors blog which can be reached by clicking below:

 http://lawblogone.wordpress.com/

                         

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