Category Archives: Justice

The trial of Lord Coe

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Imagine the scene: the year is 2022, and immediately following the expansion of the jurisdiction of the International Criminal Court, a shocked Sebastian Coe is indicted for aiding and abetting ecocide. In the early days of the trial, which begins just three months later, Coe (despite his advanced years) originally appears jaunty. His opening speech reminds the court that the London Olympics organisers repeatedly declared their Games the Greenest ever. And he speaks of the invaluable work done by the London Olympics’ Sustainability Partners. “I did nothing wrong, the Olympics did nothing wrong. This is a politically-motivated trial. But the companies in the dock, if you like, but I should not be here.”

Under cross examination, Coe’s front slowly drops. Taken carefully through the record of the primary Olympic sponsors, Coe is forced to except – on a company by company basis – that they were engaged in ecological vandalism.

The first morning of the cross-examination is given over to the activities of BP, the Olympic Games’ nominated “Sustainability Partner” and “Official Carbon Offset Partner”. Long before the Games opened, Coe grudgingly accepts, he personally was well aware of the part played by BP in the 2010 Deepwater Horizon drilling disaster, in which around 200 million gallons of crude oil were released into the marine environment of the Gulf of Mexico, killing sea-life in untold numbers. Shown image after image of dying birds, dead fish, ruined seascapes, Coe finally pleads for the images to stop. “Yes, I knew about Deepwater. Everyone did.” “It was the worst oil pollution in the history of the world and your response was to choose BP as a sustainability partner?” Coe shakes his head, mute.

The prosecution moves on to BP’s involvement in the mining of the Canadian Tar Sands. “We now know that by 2012 these alone were responsible for 10% of Canada’s carbon emissions; they kept the world’s car economy going beyond peak oil; and you made BP you Carbon Offset Partner?” Again, Coe declines to answer.

In the afternoon, the prosecution moves on to the other major sponsors of the games.

Dow Chemical had produced the poison gas used at Auschwitz. Its subsidiaries were responsible for the 1984 Bhopal Oil disaster which killed around 25,000 people in India. “I had heard about Deepwater, you couldn’t miss that”, Coe answers, “but by 2012 we considered Bhopal very old news.” The poison was still responsible for birth defects and premature deaths by the time of London 2012, the prosecution counters. “I was a sports administrator”, Coe says, “I knew the length of the track, and how to build a games. Neither I, nor I suspect anyone involved in administering London, gave a first thought to Bhophal.”

“They were your sponsors. You chose them. They were part of the public face of your Games.” Coe, again, refuses to answer.

Rio Tinto, the source of the gold, silver and bronze medals, had mined them in Utah, in a factory whose pollution caused hundreds of deaths each year. Coca-Cola and MacDonalds, the prosecutor continues, were largely responsible for the epidemic of obesity overtaking North America. “You personally authorised the largest the building of the MacDonalds in the world, right in the middle of the athletes’ village.”

In his opening, Coe had referred to the activities of the Olympic Delivery Authority which held annual safety, health and environmental awards, to show that the Games was beyond serious rebuke. Coe is now shown a list of the main prize winners at these “green” awards. One winner, BAM Nuttall, was a member of the construction industry covert blacklist, Coe accepts, while other blacklisters, including Carillion and McAlpine, were also involved in building the main Olympic sites.

Under further questioning Coe accepts that the Olympics games were seen worldwide by a population of billions, that the sponsors logos were ubiquitous in television coverage. He accepts that millions of people were encouraged to believe that the companies associated with the Games were themselves ethical. “And they were right to think so. If we hadn’t believed that ourselves, we would not have allowed them to be our sponsors.”

It is put to Coe that involvement in the Olympics “green-washed” companies such as BP, it bought them time, and held off the day when their crimes would be prosecuted. “You are not asking me now are you”, he counters, “to endorse their prosecutions, or my own?”

What about Meredith Alexander, the Games’ appointed “Ethics Tsar”, who resigned six months before the Games, in protest at the involvement of these polluters: didn’t her departure cause the organisers to re-think? “No”, Coe answers, “by that point we were bound by contractual arrangements with BP and others, we discussed breaking them, but the penalty clauses would have been onerous. You may criticise us, but we didn’t draft the contracts. The Games might have lost money. That would have been unacceptable.”

The prosecutor interrupts, “But you were already losing money at a colossal rate. When you won the bid, you said their budget would be £2 billion. By the Games itself, this had gone up to £23 billion, half of which was coming from general taxation.”

“Yes, I know that”, Coe says, “We were way over budget, and I didn’t want it to get any worse. Please, I’ve had to answer all your questions, let me explain in my own words” Allowed to continue by the Court, Coe sets out for the first time, what will turn out over succeeding weeks to be the central plank of his defence: “I know it is difficult after all these years, but you have to think back to the very different world in which we were operating. It was 2012, we were looking for sponsors. We needed to raise large sums of money. The distribution of wealth was much more concentrated then than it is now. The only available companies, capable of raising the tens of millions we wanted were large companies.”

“You have pointed out the poor environmental record of BP,” Coe continues, “but every large corporation at that time was joined to the same networks. They cross-invested. There was barely a company on the London Stock Exchange that wasn’t involved in mining, oil extraction, or military-related technology. Who else could we have gone too? You can criticise the London Organisers, but in 2012 every international sporting event was being organised in exactly the same way. We were the very most typical expression – no better, no worse than anyone else – of the capitalist economy of our time.”

 [first published in Socialist Lawyer, July 2012]

Fred Wigg Tower case: decision of HHJ Haddon-Cave

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The Guardian’s Olympic updater is reporting that the tenants have lost their judicial review of the MOD’s decision to place missiles on Fred Wigg tower:

“A group of council tenants have lost their high court battle to prevent surface-to-air missiles being stationed on the roof of their tower block during the Olympics. More details soon …”

“Mr Justice Haddon-Cave said the residents of the Fred Wigg tower had expressed “shock, anxiety and worry” over the prospect of missiles being stationed on top of their building, but they had been under “something of a misapprehension” about the nature of the equipment to be deployed and the risks deployment would bring.”

I understand that HHJ Haddon-Cave accepted that there was no consultation but found that there was no need to consult, as there was simply no alternative site for the missiles.

I will report more as I know it; the decision is not yet on Bailii, and as well as the actual judgment there may be developments in terms of appeals, etc.

UPDATE (Weds, 12.20) The decision is still not on Bailii, but Lawtel provides the following details:

R (on the application of HARROW COMMUNITY SUPPORT LTD) v SECRETARY OF STATE FOR DEFENCE (2012)

QBD (Admin) (Haddon-Cave J) 10/07/2012

ADMINISTRATIVE LAW – HUMAN RIGHTS – GOVERNMENT ADMINISTRATION – CIVIL PROCEDURE
CONSULTATION : COURTS’ POWERS AND DUTIES : DELAY : JUDICIAL REVIEW : NATIONAL SECURITY : OLYMPIC GAMES : PEACEFUL ENJOYMENT OF POSSESSIONS : PREROGATIVE POWERS : PUBLIC SECTOR EQUALITY DUTY : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : WEAPONS : SECRETARY OF STATE’S DECISION TO LOCATE GROUND BASED AIR DEFENCE SYSTEM ON TOWER BLOCK FOR OLYMPIC GAMES : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8, Protocol 1 art.1 : TOWN AND COUNTRY PLANNING ACT 1990 : TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) ORDER 1995 art.3

Residents of a tower block were refused permission to apply for judicial review of a decision of the Secretary of State for Defence to locate a ground based air defence system on the roof of their block during the Olympic games.

The applicant residents’ group (H) applied for permission to apply for judicial review of a decision of the respondent secretary of state to locate a ground-based air defence system, which included missiles, on the roof of the tower block.

H’s tower block was located in east London and had an unobstructed view of the Olympic park. Senior government officials had identified it as the only site suitable for the ground-based air defence system due to its proximity to the Olympic park and the vantage point that it offered. It intended to station the missiles on the tower block roof. No consultation took place and H were notified by leaflet in April 2012. The leaflet explained that the tower block was the only suitable site, the area would be permanently manned by armed guard and police, thus increasing security in the area, and that the missiles were safe. H made the instant application in June 2012.

H submitted that there had been (1) a failure to consult adequately; (2) a failure to comply with the public sector equality duty; (3) a breach of their rights under the European Convention on Human Rights art.8 and Protocol 1 art.1.

HELD: (1) A duty to consult arose in four limited circumstances: (i) where there was a statutory duty to consult; (ii) where there had been a promise to consult; (iii) where there had been an established practice of consultation; (iv) where in exceptional cases a failure to consult would lead to conspicuous unfairness, R. (on the application of Cheshire East BC) v Secretary of State for the Environment [2011] EWHC 1975 (Admin), [2011] N.P.C. 92 applied. Absent those circumstances, no duty to consult arose. The law would be slow to require a public body to engage in consultation where there was no obligation or promise to consult, R. (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, Times, July 21, 2008 applied. That was especially the case where there were military deployments under the discretionary powers of the Crown for the purposes of national security and defence of the realm. No statutory power to consult had been identified. The only other applicable regime affecting military deployments was the possible requirement for planning permission under the Town and Country Planning Act 1990, which did not require a duty to consult. Even if the temporary use of the tower block constituted a material change of use and required planning permission, which the secretary of state did not accept, planning permission was automatically granted by the Town and Country Planning (General Permitted Development) Order 1995 art.3 and schedule 2. None of the four factors present in Chesire had been identified, Cheshire applied. (2) The secretary of state had complied with the public sector equality duty; an environmental and disability impact assessment was carried out during the decision making process and had been taken into account. (3) The first duty of the government was to defend the realm and protect national security, R. (on the application of Marchiori) v Environment Agency [2002] EWCA Civ 3, [2002] Eu. L.R. 225 applied. The Crown had an obligation to protect the public’s art.2 rights, R. (on the application of Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 A.C. 182 followed. The purpose of the military deployment was to deter attacks. Article 2 considerations prevailed even if any interference substantially impacted on H’s other Convention rights, as the interference was necessary in the interests of national security. Article 8 and Art 1.Protocol 1 were qualified rights; their engagement did not mean that they had been breached. In order for there to be an actionable interference, a serious breach had to be shown, Gomes v Spain App no 4143/02, Dennis v Ministry of Defence [2003] EWHC 793 (QB), [2003] Env. L.R. 34 and Powell and Raynor v UK (1990) EHRR 355 considered. The proposed deployment would not affect H’s ability to use their properties, it was for a limited time and had been carried out in accordance with the law. (4) H had known about the deployment decision two months before making the instant application. Applications had to be made promptly, R v Director of Passenger Rail Franchising [1996] CLC 589 applied. That requirement was even more pertinent in the instant case. It had been incumbent upon H to make the application promptly, notwithstanding the funding difficulties encountered. H’s failure to do so had seriously prejudiced the secretary of state and public interest. (5) The Ministry of Defence’s voluntary engagement with the community over the plans had been immaculate. Had H properly understood the facts, the instant application would not have been brought. The missiles had been rigorously tested and judged safe, and were essential to the air defence plan. Further, H had been notified that their tower block was the only suitable site and the plan had been approved by senior government officials. H’s fears were unfounded: the presence of missiles would not make them a target for terrorists, nor did they interfere with their use of the tower block. (6) In matters involving national security and deployment of armed forces, the courts would be slow to review prerogative powers, R. v Jones (Margaret) [2006] UKHL 16, [2007] 1 A.C. 136 applied. The court recognised that there were aspects of decision-making which lay solely with the executive, namely national security, defence and foreign relations. The courts were ill-equipped to make such decisions, and they lay within the exclusive province of the executive.

The Fred Wigg Tower missiles case: a half-time summary

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I was in court 19 for 45 minutes or so of the case (c11.15-12) and am back in chambers now so can report the arguments in a little more detail.

Essentially, the residents say that the MoD has known about the Olympics for seven years. If it needed to station these missiles anywhere in the block, it should have warned the residents, and discussed the decision with them. It may be that the residents would have accepted the need for the missiles, or it may be that they could have assisted with the planning of them (eg by letting the authorities know what particular needs they have, such as in the event of an evacuation).  But there has been no consultation at all.

The Fred Wigg tower is an unsuitable location: as their barrister Marc Willers put it, “missiles in a residential block are like oil and water, they don’t mix”. The tower was subject to a fire at the end of the last year. It is not more secure, indeed rather less secure than a normal council tower block.

There is a fob system on the main entry door only, which residents disregard (and they simply let in anyone who rings). There is then asecurity guard who sits by the main entry door, and during 10 visits by the residents’ lawyers, the guard did not stop them once. There is then a lift, which gives open access to the floor immediately below the roof on which the missiles will be located. The soldiers guarding the missiles will be unarmed, although on the top floor (i.e. immediately below them) the MoD proposes to station a permanent contingent of armed police. The MoD’s ostensible rationale for this level of security is supposedly to protect the missiles from theft, in reality (the residents say) the MoD is worried about terrorists trying to attack the missiles: the missiles are a well-known and vulnerable target to anyone planning an attack. Over time, inevitably, the MoD will step up security at the block (eg by introducing metal scanners, and a permanent block at the entry. This is the sort of security that you need to protect missiles, but grossly over the top, and offensive to article 8 ECHR, for an ordinary residential block.

Several of the residents suffer long-term health conditions which can incapacitate them for hours at a time. In the event of an emergency (i.e. terrorist attack, or another fire in the building) they would not be able to join in an evacuation.

Even if the missiles needed to be placed “somewhere” in the vicinity, there should have been an assessment of the adjoining Wanstead Flats, which are a large, relatively empty, green space on which a scaffolding tower might have been fixed. This alternative would not have been ideal, and there might have been protests against it, but it would have been a better option than to put the missiles in the middle of people’s homes.

The MoD case by contrast is that the army has an untrammeled right to station missiles wherever it sees fit and there is no obligation to consult residents. There was an exhaustive search for suitable locations (the details of which the MoD will not disclose), and the Fred Wigg tower was the only site in London capable of acting as a sixth site to host the missiles and thereby providing general protection against terrorist attack. The missiles could not have been placed even 50 metres to the North, East, South or West.

There are elderly and infirm people in the block, but it is not a hospital. Generally, their health is not so bad that they would be incapable of evacuation in an emergency.

The missiles will not be used recklessly, and can only be fired by an order of the Prime Minister himself.

The current security locations, lax as undoubtedly they seem, will be maintained. There is no terrorist threat against the missiles, and no need for the security measures protecting the block to be stepped up.

It will follow from this summary that perhaps the least credible argument being put in court was the MoD’s insistence that simultaneously: a) London is under immediate threat from terrorists, so unusual security measures are needed, which you would only normally consider in wartime, and b) the missiles in particular (and therefore the residents) are of no potential interest to terrorists, and can be housed in a residential block without raising the merest possibility of a health and safety risk.

The hearing continues…

UPDATE: 5pm Monday. The case has now adjourned, and judgment will be delivered first thing tomorrow. Some (brief) further coverage, including a quote from the MoD is on the Guardian’s rolling Olympics new page here.

The Fred Wigg Tower case: listed in the RCJ today

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The Fred Wigg Tower case (i.e the Leytonstone missiles) is listed in the Royal Courts of Justice today. Details as follows:

COURT 19
Before MR JUSTICE HADDON-CAVE
Monday 9 July, 2012
At half past 10

Applications for Permission
CO/6767/2012 The Queen on the application of Harrow Community Support Limited v Secretary Of State For Defence

Charles Haddon-Cave QC, is an interesting choice: he was a barrister specialising in cases about shipping and aviation, and is the former chairman of the Air Law Group Committee of the Royal Aeronautical Society (i.e. at a sufficient level of generality, we can say that he is someone who is unlikely to be made anxious by the thought of proximity to military technology).

He also chaired the 2009 Nimrod review blaming military deaths on a culture of government cuts.

It is a “permission” rather than a “substantive” hearing – i.e. a hearing as to whether the residents have a case which the MoD must answer, rather than the final hearing of the Judicial Review.

I hope to be there for at least some of it.

Running for the 96

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Solidarity greetings to Dominic Williams and the other five runners who are raising money for the Hillsborough Families Support Group (HFSG) and the Hillsborough Justice Campaign (HJC) by running the route from Hillsorough to Anfield, which is equivalent to 3 marathons in 3 days.

I was not at Hillsboborough, but found myself watching the game on television, sobbing at the images of so many people killed for so little good reason. I was 16 at the time and had been a Liverpool fan for several years. I wasn’t from the city, but had adopted Liverpool  in part because so much of the city’s culture (comprising music, art and politics as well as football) was bound up with resistance to the Thatcher government, which I too loathed.

I had started going to football matches for the first time that season, and used to travel up from London to Liverpool by train, joining a group of regular Liverpool fans who made the same journey. I didn’t buy tickets in advance; you didn’t need to in those days.

I attended the match before, which was an away game conveniently in London against Millwall, and found myself talking to a man in his late 50s or early 60s, an amateur referee. He was kind and generous; he saw me as a young fan attending a game by himself, and took me under his wing.

The following game was Hillsborough of course, and it was especially poignant to see that among those killed was a former amateur referee John Anderson, aged 62. Looking back on the events of twenty years ago I have no way of knowing whether it was John who I had met at the game before.

In a sense, what does it matter? Whether I knew them or not, people had been killed who were a part of me.

This isn’t the place to go into the ways that the powerful in Britain worked together to ruin the lives of the Hillsborough survivors: first by spreading lies about them in the Sun, then by re-writing the rules of the tort of neligence so that the families could not obtain compensation from the police for what the police did that day.

It just seems right to me that people should still be fundraising for the campaigns which are needed if we are ever going to have full disclosure of all the records from the day; and that this campaigning should take the form of running.

More details of how to donate here; http://hillsborough-anfieldrun.co.uk/