Criminal Justice

Brianna Ghey’s Murder: Unpacking Transphobia, Offender Anonymity, and the Impact of Sentencing Remarks

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By Dr. Dimitris Akrivos, University of Surrey, and Dr Alexandros Antoniou, University of Essex

This blog post first appeared on The International Forum for Responsible Media Blog on February 27th 2024.

Photo via Shutterstock

The death of 16-year-old Brianna Ghey at Culcheth Linear Park in February 2023 sent shockwaves across the United Kingdom. On 20 December 2023, Scarlett Jenkinson and Eddie Ratcliffe were found guilty of Brianna’s murder, subsequently receiving life imprisonment sentences on 2 February 2024.

From the brutality of the crime to the debate over whether the perpetrators’ names should have been published and the speculation about the potential influence of violent media on their actions as to whether their acts had been influenced by violent media, this case is reminiscent of James Bulger’s murder over three decades ago. A notable difference, however, is that the victim in this case was a transgender girl.

Brianna’s murder against the backdrop of the trans rights debate

Official figures reveal a concerning surge in police-recorded transphobic hate crimes in England and Wales in recent years (11% up from the year before in 2022/23 and a staggering 186% rise over the last five years).  The latest Home Office report acknowledges that comments made by politicians and incendiary media discussions on trans issues might have contributed to this trend. In the current socio-political climate, where the polarisation between trans and women’s rights groups over gender self-identification can reach ‘toxic’ levels, there is a serious risk that victims like Brianna Ghey will – as the domestic abuse commissioner Nicole Jacobs warned – be ‘denied their dignity’.

Recognising the role transphobia has played in this violent crime is vital to tackling that risk. Yet, The Times were quick to ‘deadname’ Brianna, i.e. report the news of her murder using the victim’s pre-transition (male) name, triggering a strong backlash by trans advocates. Similarly, BBC News and Sky News also faced criticisms for initially failing to mention the victim was trans. Meanwhile, Fair Play for Women, a gender-critical campaign group which views sex as immutable, argued that the victim’s transgender identity was not relevant to stories about her murder and should have been omitted from them. Notably, Cheshire police did not consider the murder to have been motivated by hatred against Brianna’s transgender identity. DCS Mike Evans explained that Jenkinson and Ratcliffe had previously discussed killing other children, suggesting that, had they not been able to kill Brianna, they would have found another victim.

Why did Brianna’s murderers not remain anonymous?

Due to the defendants’ age, restrictions were in place throughout the trial to prevent the publication of any information likely to reveal the identities of the two perpetrators as the defendants in these proceedings. However, some controversy arose when the decision was made to publicly name the two teenagers at their sentencing. Mrs Justice Yip took the unusual step to revoke anonymity orders shielding the assailants’ identities, following an application by press representatives.

As there has been some misunderstanding around this issue, it is worth explaining how the anonymity orders worked in Brianna’s case. It will be recalled that the two perpetrators were tried before the Manchester Crown court, which is an adult criminal court – not a youth court (of note, a young person charged with murder cannot be tried or sentenced by a youth court because of the seriousness of the charge).  While there is no automatic ban on identifying individuals under 18 as being concerned in the proceedings of adult criminal courts, section 45 of the Youth Justice and Criminal Evidence Act 1999 empowers criminal courts to grant anonymity to a juvenile defendant, victim or witness in adult criminal proceedings while they remain under the age of 18. This power is not available to youth courts. The intention of Parliament in enacting this provision was to widen the scope of protection available to under-18s.

Section 45 allows an adult criminal court to impose a discretionary reporting restriction. If the court so wishes, it can choose to impose no restrictions at all. The law draws, therefore, a distinction between young people appearing in youth courts, who are automatically entitled to anonymity, and those appearing in adult criminal courts, who must seek a discretionary reporting restriction.

This is critical. It means that in a youth court, there must be a good reason for lifting the anonymity order which applies by default, whereas under section 45 of the 1999 Act, there must be a good reason for imposing – or continuing with the imposition of – the anonymity order. So, in the case of section 45, there is a strong presumption in favour of open justice, placing the burden of justifying reporting restrictions on the party seeking to derogate from this fundamental principle.

The defendants in Brianna Ghey’s case, both 16 at the time of their conviction, would lose the anonymity protection upon reaching adulthood in 2025 by operation of the law. In the meantime, however, a court may consider lifting or relaxing restrictions in two circumstances: either when the court is satisfied that doing so is ‘necessary in the interests of justice’ (section 45(4)); or when it is satisfied that the reporting restriction unduly limits the coverage of the proceedings and it is ‘in the public interest’ to remove or modify the restriction (section 45(5)). A list of factors to be considered in an assessment of where the public interest lies in such situations is provided in section 52 of the Act.

No judge takes such decisions lightly. As the Court of Appeal has previously emphasised, judges are tasked with meticulously weighing the competing public interest factors at play on the particular circumstances before them. So, neither the open justice principle nor a young person’s best interests automatically dictate the conclusion in a given case. Pre-conviction and during the trial, a defendant’s welfare is likely to take precedence over the public interest in disclosure. However, post-conviction and sentencing, factors such as the offenders’ age and the severity of the crime acquire particular relevance in determining whether publication is warranted.

As Mrs Justice Yip observed in Brianna’s case, ‘the shock generated by [her] murder and the circumstances of it has spread well beyond the local community, across the nation and indeed internationally. The public will naturally wish to know the identities of the young people responsible as they seek to understand how children could do something so dreadful. Continuing restrictions inhibits full and informed debate and restricts the full reporting’ of an ‘exceptional’ case.

But the lifting of the discretionary reporting restrictions under section 45 was driven not only by the sustained public interest in knowing the identity of Brianna’s murderers, but also because of the likelihood of continued media attention regardless of the timing of disclosure as well as the defendants’ extended custody and rehabilitation process into adulthood. While acknowledging the distress to the defendants’ families, Mrs Justice Yip underlined that the powers under section 45 were not designed for convicted defendants’ family members, and the risk of harassment to the defendants’ families was deemed likely regardless of the timing of identification. It was the combination of all these considerations that favoured publication.

Sentencing in Brianna’s murder as a catalyst for confronting transphobia

Brianna’s murderers were named the day they were sentenced for her murder. Even though Cheshire police had dismissed transphobia as a motivating factor, Mrs Justice Yip expressly recognised in her sentencing remarks that the crime had been, at least partly, driven by hostility towards Brianna’s trans identity. Distinguishing between the young offenders’ motivations, the judge determined that Jenkinson was primarily seeking to act out her ‘sadistic’ fantasies and had a ‘deep desire to kill’ while Ratcliffe was, in part, driven by transphobic sentiments. This hostility towards trans people had, according to the judge, been ‘undoubtedly displayed’ in the dehumanising language Ratcliffe used in the WhatsApp messages he had sent to Jenkinson, in which he described Brianna as a ‘femboy thing’ or ‘it’, revealing that he wanted to ‘see if it will scream like a man or a girl’.

Such messages make for a harrowing read and it is easy or even convenient for our society to brush off the transphobia reflected in them as merely the hateful words of one ‘bad apple’. The truth is, however, that Brianna Ghey’s murder has shed light on a harsh reality: abuse often becomes a distressing aspect of vulnerable trans individuals’ lives, even if this does not always escalate to extreme violence. The Conservative Government’s and the UK mainstream media’s trans-othering rhetoric has been repeatedly criticised by several international human rights organisations. Indicatively, the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, warned of the risks deriving from an ‘increasingly toxic’ anti-trans political and media discourse built upon ‘deeply discriminatory stereotypes […] based on ideas of predatory determinism.’ This ‘culture war’ against trans people has also been cited by the International Lesbian, Gay, Bisexual, Trans and Intersex Association as one of the reasons behind the UK’s continuous drop in its annual rankings for LGBT rights across Europe.

During PM Questions on 7 February 2024, Rishi Sunak faced a backlash after his remark about Labour leader Keir Starmer’s purported difficulty in ‘defining a woman’ while Brianna’s mother was in the public gallery during the exchange. Trans allies, including Brianna’s father Peter Spooner, expressed ‘shock’ and ‘disgust’ towards the PM’s ‘degrading comments’, calling for an apology which Sunak has refused to offer. Amid the increasing tensions between the two main political parties, it is vital that trans people’s lives are not reduced to a bargaining chip in their bid to win the upcoming general election. Despite the tragic circumstances surrounding Brianna’s murder, her story has the potential to catalyse a wider and more constructive dialogue on the consequences of ‘othering’ an already marginalised community. There are undoubtedly valuable lessons to be gleaned from this landmark case. The pertinent question remains: are our leaders prepared to heed them?

Dr. Dimitris Akrivos, University of Surrey, d.akrivos@surrey.ac.uk, Dr. Alexandros Antoniou, University of Essex,  a.antoniou@essex.ac.uk

From Judgment to Justice: Discussing the Implementation of International Judgments on Socio-Economic Rights in Johannesburg

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Dr. Casla’s visit to the South African Constitutional Court

By Dr Koldo Casla, Senior Lecturer in Law and Director of the Human Rights Centre Clinic

In the first week of November, I participated in a workshop on advancing the implementation of positive rulings on economic, social, cultural and environmental rights. The event took place in Johannesburg, South Africa, and it was jointly convened by Amnesty International and the International Network for Economic, Social and Cultural Rights (ESCR-Net). Taking stock of the discussion, some of us also held a meeting of the steering committee of the working group on strategic litigation of ESCR-Net.

The event gave us the opportunity to talk about specific examples of what is working and what not in strategic litigation around the world, with a particular focus on cases from Africa (South Africa, Kenya, Gambia and Malawi), but also from India (workers’ rights and the right to food), Canada (right to health of undocumented migrants), Ecuador (land rights of Sarayaku indigenous people) and Spain (evictions in the private rental sector).

The team deliberated on strategic approaches to address the challenges posed by the uncertainties associated with litigation and its enduring consequences. Emphasis was placed on the critical role of civil society in spearheading the identification of concerns and the implementation of judicial decisions.

We had the privilege of visiting the South African Constitutional Court, possibly the most important national court as regards the justiciability of socio-economic rights globally. The building is full of symbolism appealing to values of transparency, culture and accessibility of justice. It is built on top of the remains of a brutal prison of the apartheid regime. Gandhi and Mandela spent time there. The location is a powerful message about learning from the past to build a more promising future founded on the principles of the rule of law and human rights.

From the cells in the prison on Constitution Hill, where the Constitutional Court is located.

The occasion was also an opportunity to express solidarity with the Ogiek indigenous people in Kenya. Some of the community leaders were present at the workshop. Despite several rulings from the African Commission on Human and Peoples’ Rights, the Ogiek have suffered repeatedly violations of their human rights, including further evictions from their ancestral land.

An action in solidarity with the Ogiek people of Kenya, who have suffered multiple evictions and other human rights violations, as documented by the African Commission and Court of Human and Peoples’ Rights.

At the event, I talked about the UN Committee on Economic, Social and Cultural Rights (CESCR) as a venue for strategic litigation on housing rights in Spain. The Optional Protocol on Economic, Social and Cultural Rights was adopted in 2008 and entered into force in 2013. It allows individuals to lodge complaints in front of the CESCR against States Parties for violations of socio-economic rights. To this day, 26 countries have ratified this treaty. Spain was the third country to do so, the first one in Europe.

More than 90% of CESCR decisions concern Spain, and the vast majority of them are about the right to adequate housing. One of the most significant cases is Ben Djazia and Bellili v Spain (2017), where the CESCR made two big contributions to international human rights law: firstly, it established that the proportionality test applies to the private rental sector as well as the public one; and secondly, it ruled that the State had breached the principle of non-retrogression because in the background of the eviction there had been a large-scale sale of some 4,000 social housing units by regional authorities in Madrid to transnational real estate investment trusts.

Dr. Casla presented the Ben Djazia case at the workshop

Since 2019, Spain’s legislation has been amended several times, and some of those amendments have brought to life some of the recommendations of the CESCR. Not all recommendations have been taken onboard yet; in particular, the issues of progressive realisation and the adoption of a national plan have not been given due consideration.

However, judges are now given the opportunity to look at personal circumstances (while not obliged to do so), and there is an expectation of coordination between the judiciary and social services before an eviction is executed (but not a specific timeframe or duties on public authorities). Housing laws at regional as well as central/national levels have created additional duties for large landlords over small landlords, which the CESCR considers part of the proportionality test (López Albán v Spain, 2019).

The experience of strategic litigation on housing rights in Spain has taught us some valuable lessons.

Firstly, sometimes human rights progress comes from non-human rights litigation. In the case of Spain, the first major court victory was the Aziz case (2013), where the Court of Justice of the European Union ruled that foreclosure procedures must give judges the chance to look for potential unfair terms in the contract, opening the door to a kind of proportionality test. This ruling was based on consumer law (EU 1993 Directive), not human rights law.

Secondly, recent legal developments in Spain are a reminder that parliaments can play a central role in the implementation of international human rights rulings. After all, hardly anything can beat securing a majority in parliament for human rights-friendly legislation.

Thirdly, recent developments also show that in federal or quasi-federal countries, regions can indeed learn from each other in a sort of laboratory for democracy. As I show in Chapter 5 of Spain and Its Achilles Heels, I would argue that this is precisely what happened between several of Spain’s regional legislative chambers between 2013 and 2017.

Finally, we must not make perfect the enemy of the good. Not all of the CESCR recommendations have been implemented in Spain. The situation is far from perfect. Even those that have been implemented have been implemented only to some extent. However, in the spirit of joyful advocacy, it is important to celebrate victories when they occur, including partial victories, even if we do not achieve everything we may hope for.

Report urges Home Secretary to Reform Police Accountability

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Image credit: unsplash.com

Police accountability is paralysed by “ineffective and impotent” Police and Crime Panels (PCPs) that are powerless to hold Police and Crime Commissioners (PCCs) to account, new research reveals.

The findings, reported exclusively in The Times, come as six of the nation’s forces have been hit with special measures by regulators, the Met has been rocked by a series of controversies, and when the Home Office conducts Part 2 of the Police and Crime Commissioner Review.

Dr Simon Cooper of Essex Law School, has found that PCPs, introduced as part of flagship Conservative reforms in 2011 are “toothless”, leaving police accountability, for the first time in history, largely dependent on the one-to-one relationships between Chief Constables and elected Police and Crime Commissioners (PCCs).

As part of the study, Dr Cooper gained unprecedented access to senior policing figures including someone directly involved in introducing the current accountability model.

In his report, which will be published in Policing: A Journal of Policy and Practice, Dr Cooper urges Home Secretary Suella Braverman to launch an urgent review to “safeguard the accountability and governance of policing.”

He also recommends the introduction of binding contracts between PCCs and Chief Constables after finding the current structure is “unbalanced, untested and risky.”

‘Police Relational Accountabilities: The Paralysis of Police Accountability?’ is the result of a qualitative study based on 17 interviews with Chief Constables, PCCs and Chairs of PCPs across five police force areas as well as one person directly involved in introducing the current system and one of the most senior figures in policing at a national level.

Anonymous 90-minute interviews reveal an overwhelming view that PCPs, which are meant to support, scrutinise and maintain a regular ‘check and balance’ on PCCs, are “entirely impotent and ineffective” according to the report.

One PCC stated that “PCCs aren’t concerned or fearful of their PCP” with another saying “my mandate is from the people who elected me so sod the PCP.” Even PCP Chairs, whose only sanctioning power is to publicly shame a PCC, said “we are toothless” and “PCPs can’t do anything, there are no checks and balances at all.”

“The result is that for the first time in the history of modern policing, the accountability and governance of policing is rendered subject to the one-to-one relationship between a PCC and their Chief Constable. A relationship that could be fractious, dysfunctional, volatile or overly cosy,” explained Dr Cooper.

That risk is backed up by the interviews with one Chief Constable saying “I know some of my colleagues have awful relationships with their PCCs”. One of the most senior people in policing at a national level said that accountability rests “not just on the relationship but also on the calibre, experience and wisdom of the person elected as PCC and believe you me that varies enormously.”

Dr Cooper said: “The case of Cressida Dick, who one report has found was ‘constructively dismissed’ by her PCC, London Mayor Sadiq Khan, demonstrates what can happen when the relationship between a Chief Constable and their PCC breaks down, and reported wider problems in The Met Police show why an effective structure of police accountability is so vital.

“As laid out by one of the Chief Constables I interviewed, the current model for police accountability rests too heavily on a series of ‘ifs’: if the PCP is effective, if the PCC has principles and experience, if the Chief Constable is of the right character then it can be effective but this is not an effective or sustainable model for holding a modern police force to account.”

Dr Cooper’s previous work was cited by the House of Commons in its 2021 report on Police and Crime Commissioners and previous recommendations made by him were adopted by the Strategic Review of Policing in England and Wales in 2022.

This story was first published on the University of Essex’s news webpages and is reproduced on the ELR Blog with permission and thanks.

Police relational accountabilities: The paralysis of police accountability?

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Image by James Eades

In his new article published in Policing: A Journal of Policy and Practice, Dr Simon Cooper of Essex Law School examines the new relational accountabilities of Chief Constables, Police, and Crime Commissioners [PCCs] and Crime Panels [PCPs] in England and Wales. 

Referring to a number of recent reports and reviews, the discussion initially focuses on the effectiveness of these relationships and, in particular, the inefficiency of PCPs. 

Dr Cooper’s article develops current understanding, showing that PCPs may cause a new unforeseen consequence. Namely, the exercise of accountability and the governance of policing may be unusually reactive to the ‘one-to-one’ accountability relationship between PCCs and Chief Constables.

Such recommendations are made to strengthen the exercise of accountability and the governance of policing. Specifically, the Home Secretary is encouraged to review the Policing Protocol Order (2011) and issue a Memorandum of Understanding to ensure ‘effective, constructive working relationships’ are not just a quixotic pursuit but a practical reality that safeguards the governance of policing.

Dr Cooper’s research is all the more important in light of Her Majesty’s Inspector of Constabulary and Fire & Rescue Services finding in 2022 that there is an ‘atmosphere of mistrust and fear’ between PCCs and Chief Constables and The Police Foundation reporting ‘a crisis of confidence’, recommending ‘root and branch reform.’

The article can be accessed in full here.

Who Owns Justice? When States Refuse to Provide Justice, Let the People Make Their Own Justice

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By Professor Carla Ferstman, Essex Law School

Image credit: Aban Tribunal website

I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.

This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.

People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.

In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.  

People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.

In the case of the Aban Tribunal, the goal was to do all these things. And, to draw attention to the patterns of repression; impunity breeds recurrence and we are seeing this every day with the Iran Government’s brutal repression of the ongoing protests into the killing of Mahsa Amini. These tribunals can also serve as an end in and of themselves, by serving the goal of acknowledgement of wrongs and doing justice that otherwise would never had been done.

Who gets to decide what justice looks like?

What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?

Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?

In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.  

As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.

In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.

In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.  

Can justice exist without a government legitimising it?

In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a  government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.

Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.

But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.

It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.  

The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.

How to avoid the accusation of Kangaroo Justice?

There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.

The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.  

Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.

For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.

Conclusions

People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.  

The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.

Essex Research Informs Police Review

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Photo by Bruno Martins 

Research by Dr. Simon Cooper on police accountability and the role of Police and Crime Commissioners has been cited in a major nationwide review of policing.

The Strategic Review of Policing in England and Wales, which was conducted by the Police Foundation and chaired by Sir Michael Barber, has called for a radical shake-up of the way forces are run.

It cites research by Dr. Cooper, from the School of Law, which showed that the power of Police and Crime Commissioners (PCCs) to remove Chief Constables from office is having a “corrosive” effect on policing and police accountability.

Drawing on Dr. Cooper’s research, which was published in The Criminal Law Review (Issue 4, 2020), the Strategic Review specifically highlights his finding that a vital independent review process, meant to safeguard against a compromised PCC wrongly removing a Chief Constable from office, has only been used once since 2012 and didn’t impact the decision.

The authors of the report note that “such untrammelled power in the hands of one person has created job insecurity throughout the Chief Constable rank and this in turn has led to increased churn and reduced tenure.”

Dr. Cooper said: “Policing is at an inflection point. The Strategic Review comes at a time when public confidence is low and policing is under pressure. The Strategic Review will help shape the future of policing.

“The interviews I conducted find the PCC’s power to remove Chief Constables has already compromised the independence of senior officers. As currently formulated, the PCC’s s. 38 power creates an environment in which it would be possible for a PCC – effectively a layperson – to command, overrule and potentially even control a Chief Constable. We urgently require a Select Committee inquiry to re-examine the PCC’s power to remove their Chief Constable.”

Dr. Cooper’s research was based on a series of interviews with PCCs, Chief Constables, and members of Police and Crime Panels (PCPs), as well as the person responsible for introducing the current system and one of the most senior figures in policing at a national level.

This post first appeared on the University of Essex’s news webpage and is reproduced on the ELR Blog with permission and thanks.

Reparations Before The International Criminal Court: Who Are The Victims of Cultural Heritage Destructions and How Should Their Harm Be Addressed?

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Source: Wikimedia Commons

Ahmad al-Faqi al-Mahdi (Mr. Al Mahdi) was brought to the International Criminal Court to stand trial for his involvement in the destruction of several historical and religious sites in Timbuktu (Mali) during an armed conflict in 2012. This was the first time in the history of international criminal justice that an individual was prosecuted for the destruction of cultural heritage alone.

Following his guilty plea and conviction in 2016, the case moved on to the reparations phase where the focus was that of redressing the harm caused to victims. Therein, the unprecedented nature of the Al Mahdi case led to an equally unprecedented question: who are the victims of cultural heritage destruction?

Drawing upon her personal involvement in the case as a Court-appointed expert, Dr. Marina Lostal, Senior Lecturer at the University of Essex, has published an article explaining how this question was resolved and the practical challenges it posed during the implementation phase.

The challenges encountered are labeled as ‘monumental’ because they had one thing in common: the amount of theoretical thinking and reflection that they deserved was inversely proportionate to the urgency with which they had to be addressed and the precedent they would establish. To surmount this, drawing from the author’s background, the Trust Fund for Victims turned to academia and consulted with scholars.

The article focuses on three of such challenges:

(i) whether ‘unborn children’ should be included in the pool of victims given that cultural heritage is meant to be preserved for the benefit of future generations;

(ii) what place women ought to occupy in the implementation of reparations, despite the customary practices of side-lining them; and

(iii) the decision of whether to memorialize events surrounding the crime.

On the latter point, the article introduces the concept of ‘restorative agency’, a working principle that was adopted in the context of memorialization measures to ensure that victims are given a platform to decide, not a decision.

Lastly, Dr. Lostal’s article provides a framework to demonstrate the level of complexity involved in the implementation of any Court-ordered reparations and reveals some of the work of the Trust Fund for Victims, one of the Court’s least comprehended creations.

Article full citation: Marina Lostal, Implementing Reparations in the Al Mahdi Case: A Story of Monumental Challenges in Timbuktu, Journal of International Criminal Justice, Volume 19, Issue 4, September 2021, pp. 831–853, https://doi.org/10.1093/jicj/mqab064

Police and Crime Commissioners: A Dislocated Expectation?

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Image by James Eades

New research, based on exclusive interviews with high-ranking figures from across UK policing – including Chief Constables, PCCs, one of the most senior persons in policing and one of the persons involved with introducing PCCs – suggests a postcode lottery in police accountability. The calibre of individual PCCs is seen as the key factor in ensuring adequate oversight, with stark differences exposed between forces.

Dr. Simon Cooper, from the Essex Law School, gained unprecedented access to key figures from all sides, on the condition of their anonymity.

Dr. Cooper’s findings, which were published in Policing: A Journal of Policy and Practice and subsequently cited in the House of Commons Police and Crime Commissioners 2021 Report as well as House of Lords 2022 Report Police and Crime Commissioners: Powers and Functions, support the argument that the current system can work.

However, Dr. Cooper identifies a “significant anomaly”, with accountability dependent on the relative strengths of PCCs and Chief Constables and the relationship between the two. Success, in this respect, can be seen to “hinge on luck”.

Dr. Cooper said:

“These findings suggest a significant variation in how police accountability is administered around the country. While one Chief Constable described being regularly ‘grilled’ by their PCC, some Commissioners are seen as ill-equipped, ill-prepared and potentially ego-driven. The importance placed by the system on these single individuals suggests there is a real possibility that some Chief Constables are being held to account more effectively than others.”

One Chief Constable, identified as Chief Constable D, outlined the issues that exist when dealing with their elected PCC, contrasting it with the previous ‘tripartite’ structure, where Chief Constables would report to the Home Secretary and their local Police Authority:

“…there is a significant risk that the relationship (between PCC and CC) either becomes excessively hostile, excessively friendly or… there isn’t the balance, additional questioning or informing of the debate that a wider group would give. (…) Because of poor safeguards and governance arrangements it too quickly descends into personalities and subjectivity in which accountability becomes likeability, becomes re-electability. Accountability becomes all of those things it shouldn’t.”

Another Chief Constable, Chief Constable C, underlined the importance of the PCC-Chief Constable relationship, noting the impact of individual experience and characters:

“I have seen evidence of PCCs who are ill-equipped and ill-prepared and actually don’t have the skills to understand big organisations making sweeping statements and making assumptions about individuals without any basis whatsoever. I have also seen Chief Constables that do not want to adapt to a new way of working and will be very obstructive towards PCCs.”

Summarising the impact on oversight, Police and Crime Commissioner D asked:

“The question is can a PCC be played by a Chief Constable? They clearly could be and some I suspect are. I am quite sure that there are some Chief Constables who just pay lip service to their PCC.”

The current system was seen by some as placing an impractical burden on one individual. The lack of a ‘pool of different views’ limits opportunities for the PCC to moderate their thoughts and has the potential to leave the PCC either exposed or guided by advice from others, with no formal oversight role. PCC A commented:

“Presumably if it’s something they (the PCC) didn’t know a lot about they talk to a lot of people about it but you don’t see any of those conversations played out.”

In reality, one senior figure, Person Z, was left questioning the original design of the PCC system:

“For one person, even though they are elected, to replace the wisdom and contribution of 19 [Police Authority members] is a tall ask. There’s only one person [the PCC] providing scrutiny [of Chief Constables] and that’s a heavy responsibility, so in terms of scrutiny of course it’s a lot less. Palpably has it worked? No… I suspect PCCs might, in hindsight, be regarded as a blunder.”

Dr. Cooper’s findings suggest a need for the Home Secretary to review the Policing Protocol and for an Accountability Code of Practice to be issued. He said:

“This research encourages the Home Secretary to exercise their power and urgently review The Policing Protocol Order. In its current form, the PPO is overly broad, presumption-based, loosely-worded and generic, with a resulting impact on accountability.”

Dr. Cooper’s research is published at a time of a continuing debate on police accountability. The Police Foundation found a “crisis of confidence”, recommending “root and branch reform”, and Her Majesty’s Inspector of Constabulary and Fire & Rescue Services recommended a “profound and far-reaching police reform” and there have been calls for a Royal Commission.

Dr. Cooper’s research also found that in some instances the PCC model is viewed favourably when contrasted with its forerunner, with the previous bureaucracy and resulting backlog replaced by a “single point of decision-making” and a greater “visibility” of the decision-making process at a local level.

Other interviewees, however, suggested such appearances could be deceptive. PCC E commented:

“We have gained in terms of visibility but lost in terms of detailed scrutiny that the Police Authority was capable of.”

Dr. Simon Cooper’s article titled ‘Police and Crime Commissioners: A Dislocated Expectation?’ was published in Vol. 15, Issue 3 of Policing: A Journal of Policy and Practice and can be accessed via the publisher’s website here. The House of Commons report on PCCs, citing Dr. Cooper’s research (pp. 10-11), can be read here. The House of Lords report also citing his research (para. 1.3) can be read here.

This ELR post was updated on 10 November 2022 to reflect recent developments in the impact of Dr. Cooper’s research.

The Use of Digital Reconstruction Technology in International Law

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Photo by Sajad Nori

Digital reconstructions of crime scenes have been used more frequently in both domestic and international courts as technology becomes more developed and accessible to courtroom actors.

Though digital reconstructions can be beneficial, especially in the context of international criminal law, as they allow judges to visit crime scenes that would otherwise be too expensive or dangerous to travel to in person, there are inherent risks that come with the use of this novel type of evidence in a court of law.

Sarah Zarmsky, a doctoral candidate with the Human Rights Centre at the University of Essex, published an article titled ‘Why Seeing Should Not Always Be Believing: Considerations Regarding the Use of Digital Reconstruction Technology in International Law‘ in the Journal of International Criminal Justice (JICJ).

Sarah’s article explores some key considerations which arise if digital reconstructions are to be used in international criminal courts and tribunals, with an emphasis on the rights of the accused and effects on victims and witnesses.

The article argues that in order for fair trial standards to be upheld and for international courts to fulfil their roles not just as prosecutors of crimes, but as seekers of truth and reconciliation, digital reconstructions need to be approached with caution and analysed through a critical eye.

Sarah will present her paper as part of the Launch Event for the JICJ Special Issue on New Technologies and the Investigation of International Crimes, which will be held virtually on 9 November 2021 at 15:30-17:00 GMT.

This event will bring the authors of articles in the special issue together, including Essex Law School’s Dr. Daragh Murray who also contributed to the same issue and served as one of its co-editors, for a discussion of their key insights on the future role of technology in accountability processes. Those interested in attending can register here.

Basque Separatist Group ETA Lowered Its Weapons 10 Years Ago. Has Reconciliation Truly Happened?

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For too long, Basque society remained petrified and silent

Screenshot of YouTube/BBC video depicting footage of ETA members putting ‘arms beyond use’ in October 2011.

Ten years ago, on October 20, 2011, the Basque armed group ETA (Euskadi Ta Askatasuna, “Basque Country and Freedom”) finally declared “a definitive cessation of its armed activity.” This was what Basque and Spanish societies had long been waiting for.

It would take them until 2018 to formalise their dissolution, but October 20 is marked in the calendar as a day of liberation, especially for those whose lives were at risk. The Basque Country was finally going to have the chance to become a free and “normal” society like any other.

Jesús Eguiguren, one of the tallest figures in Basque politics in recent decades, was also relieved. Days after ETA’s much-awaited declaration, when asked what normality would mean to him, he said: “For me, it means the freedom to eat pintxos in the Old Town” of Donostia-San Sebastian, my hometown. Because of being directly threatened by ETA for his political opposition to Basque independence, the old town had been a no-go area for Eguiguren, but also for thousands more.

ETA was formed in 1959, during the Franco era, with the goal of seeking self-determination and independence for the Basque Country. Since the late 1960s, ETA was responsible for more than 850 deaths in the Basque Country and other parts of Spain. This figure underestimates the pervasive sense of fear caused by ETA and its supporters. In the last 15 years of their existence, ETA, through extortion and threats, specifically targeted politicians, academics, police officers, journalists, and civil servants who disagreed with their totalitarian agenda. Approximately 3,300 men and women were forced to live with police escorts.

The Basque Country is a region with a strong national identity divided between the north of Spain and the southwest of France. With fewer than three million inhabitants, it’s hard not to have known someone who paid a high price for being who they were, sometimes the highest of all prices—their life. In my case, this included a primary schoolmate, whose father—a police officer—was killed by the armed group; a teacher in the same primary school whose husband, a journalist, was murdered; a sport’s teammate’s father, who reluctantly moved to Madrid after receiving serious threats; one of my university professors, and my friend and former boss, the Basque parliament’s high commissioner for human rights between 2004 and 2014, Iñigo Lamarca, whose name appeared in one of ETA’s hit lists.

A lot has changed in the Basque Country in the past 10 years. Nobody’s life is at risk as a result of their politics, and that is no mean feat. My nephew and nieces, who are 11 years old, are blissfully unaware of the environment of low-intensity violence that permeated society up to a decade ago.

Basque society is still working out a public memory about that time. Victims of ETA’s violence have received recognition from public institutions, but social recognition has been much slower, and more timid. In towns and communities where Basque independence was the preferred political choice, ETA suspects were often treated like heroes. At the same time, credible reports of police torture were systematically dismissed by the Spanish government, tarnishing the public image of the State and its institutions. Despite multiple reports from independent investigators and international human rights bodies, the official line was, and largely remains, that the torture allegations against the police were simply lies spread by terrorists—ETA members.

Spanish public authorities and a sizeable majority in Spanish society have a long way to go to recognise that torture and ill-treatment were an obnoxious part of the anti-terrorist strategy in the 1980s, 90s and 2000s. As I explain in my new book Spain and its Achilles’ Heels: The Strong Foundations of a Country’s Weaknesses, these practices harmed the credibility of the police as a fully democratic institution and made life even more difficult for the officers who respected the rule of law.

In the 2000s, ETA was being cornered by the police, but the decline in popular support was a key reason why the group stopped their violence for good in 2011. In previous decades, ETA benefited from long periods of silence of large parts of Basque society who believed their discretion would keep them away from the attention of ETA and their informers. Outstanding exceptions must be noted, including the case of “Gesto Por la Paz” (“Gesture for Peace”), an organisation that convened silent rallies the day after each murder and on a weekly basis for 25 years, starting in 1986. It was a modest gesture that, nonetheless, required a large dose of bravery.

Over time, Basque society empowered itself to make it clear that ETA did not represent them. The sociological statistical survey of the Basque Country shows that fewer than 25 per cent of people totally rejected ETA in 1981, but that number went up to 60 per cent by 2000 and remained at that level for 10 more years, while ideological support for ETA was minimal in the 2000s (around 1-3 per cent).

The Basque Country has changed substantially for the better in a new spirit of calm, peace and rediscovered freedom. More time will be needed, however, to strengthen bridges and walk decisively towards reconciliation. Police officers, bodyguards, journalists and politicians were unjustly killed, and for too long the Basque society remained petrified.

In shifting public perception in Spain, a new film can potentially make a difference: Maixabel dramatizes the true story of Maixabel Lasa, a brave activist for peace, memory and reconciliation, whose husband was killed by ETA in 2000. A few years ago, Maixabel met face-to-face with the man who killed her husband. The killer had distanced himself from ETA in a difficult process of atonement.

Maixabel Lasa’s testimony is one of a handful of conversations during the last decade between ETA victims and repentant ETA members. Most of these meetings were held in private, but some of the participants are talking about their experience in schools, and conveying their emotions at other public events.

Other events have brought together victims of ETA, victims of GAL (state-sponsored terrorism of the 1980s), as well as victims of police torture. Also, pro-independence politicians have apologised for the damage they caused through their decades-long complicit silence.

Working out the past in a plural, inclusive and respectful way will take time, and the Basque Country only recently got rid of ETA’s yoke. Historical memory is a powerful reminder that freedom should not be taken for granted.

As my mum once said to me when talking about Basque peace and reconciliation, it’s shocking how quickly one gets used to normality, when people are not killed for their ideas.

This piece first appeared on Global Voices and is reproduced on our ELR blog under a Creative Commons Licence. The original post can be accessed here.