Last week saw a new event on the regional calendar – the first Manchester Legal Awards, run by Manchester Law Society. Eversheds scooped four of the 17 gongs, while Pannone and Addleshaw Goddard picked up two apiece. Roger Pannone also won an outstanding achievement award for his services to the profession, so let’s hope he has a large mantelpiece. Though Obiter can only dream of attending what was no doubt an Oscar-standard glitzy occasion, a glossy copy of the awards brochure did wing its way down south to humble Obiter Towers. Nominated teams were asked which musical group they would be and what their team’s song would be – reminding Obiter of those cringe-worthy moments when a politician is asked what is on their iPod so that they can ‘appeal to da yoof’. It turns out that law firms are no less excruciating than parliamentarians in this regard, and possibly even a bit more so. Eversheds said it would be Manchester Britpop band Oasis, with their hit Supersonic. Because, they reasoned, the competition can ‘cast no shadow’ over them, and with so many businesses asking ‘where did it all go wrong?’ in the last 18 months, they have helped their clients ‘roll with it’ by delivering excellence ‘all around the world’. Not knowing when to stop, they add ‘some may say’ we’re ‘supersonic’. Pur-lease. Burton Copeland, which won crime team of the year, picked Chariots of Fire by Vangelis because ‘we are a valiant team’, while DLA Piper, nominated in the same category, chose I Fought the Law by The Clash. Ho ho! More esoterically, Liverpool firm Goodman Harvey, winners of the property of the year award, went for the Beatles track I am the Walrus. Why? Apparently the team leader looks like one. Obiter leaves readers to determine whether the firms would pick up any votes with that lot.
Conflict of laws – Information technology – Authorisation In proceedings for infringement of copyright and database right brought by the claimant UK companies (F) against the defendant German and Swiss companies (S), the court was required to determine whether it had jurisdiction. F were engaged in organising professional football matches in the UK, and creating and exploiting certain data and rights in relation thereto. S provided live scores, results and other statistics relating to football and other sports to its customers via the internet. The copyright and database right at issue in the proceedings was alleged to subsist in a database compiled by F which comprised UK football match statistics. F claimed that, in assembling their data, S were copying data from F’s database. It was necessary for F to show a good arguable case of copyright and/or database right infringement in the UK in order to establish jurisdiction in the UK. It was S’s case that they performed no infringing acts, or indeed any acts at all, in the UK. S argued that there could be no infringement unless there was a good arguable case that what they were alleged to have taken by reproduction was itself protectable as a copyright work, in the sense that it could be described as the author’s own intellectual creation – matters such as goals, goal scorers, and red and yellow cards left no room for judgement or discretion, they were simply collected mechanically by an observer. Held: (1) F’s case was that the infringing act was the reproduction of its data by UK customers, and S’s authorisation of the act of reproduction by the customers. F had adequately pleaded a case of authorising reproduction by customers in the UK. Consequently, there was also an adequate plea of joint infringement between S and the UK customers (see paragraphs 28-41 of judgment). (2) S’s argument that the part alleged to have been reproduced did not amount to an intellectual creation was not supported by any evidence. While there might ultimately prove to be force in S’s argument, F had a good arguable case on the issue of reproduction of a substantial part (paragraph 49). (3) F had pleaded that S had extracted and/or re-utilised the whole or a substantial part of its database, within the meaning of regulation 16 of the Copyright and Rights in Databases Regulations 1997. Unlike copyright, there did not appear to be any provision in relation to database right which corresponded to section 16(2) of the Copyright, Designs and Patents Act 1988, which prevented ‘authorising’. F therefore had to show that S had done the acts in question, or plead some act of extraction or re-utilisation by someone else and rely on joint tortfeasorship. It was the end-users in the UK who would carry out any act of extraction in the UK, by downloading information necessary to allow S’s pop-up windows to appear on their screen. Despite the absence of a specific allegation to that effect in the relevant part of the particulars of claim, the particulars of claim viewed as a whole did allege sufficient facts for F to be able to maintain that customers had extracted the data in the UK. F had a good arguable case on the issue of extraction (paragraphs 52-62). The ‘re-utilisation’ issue raised a question of law, namely the place where ‘making available to the public all or a substantial part of the contents of a database by… online… transmission’ occurred, within the meaning of article 7(2)(b) of Directive 96/9. In the context of satellite broadcasts within the EU, the place where the act of broadcast occurred was where the signals were introduced under the control of the person making the broadcast into an uninterrupted chain of communication. That was known as the ‘emission theory’. There was no corresponding definition for either of the restricted acts in issue in the instant case. It was significant that the UK had adopted the emission theory for all wireless broadcasts, not solely satellite broadcasting. Article 7(2)(b) of Directive 96/9 and article 3 of Directive 2001/29 should be interpreted as meaning that the act of making available to the public by online transmission was committed and committed only in the place where the transmission took place. Although the placing of data on a server in one state could make the data available to the public of another state, that did not mean that the party who had made the data available had committed the act of making available by transmission in the state of reception (paragraphs 63-74). (4) The particulars of claim alleged sufficient facts to make out a case of re-utilisation by the two named customers. Applications granted in part. (1) Football Dataco Ltd (2) Scottish Premier League Ltd (3) Scottish Football League (4) PA Sport UK LTD v (1) Sportradar GMBH (a company registered in Germany) (2) Sportradar AG (a company registered in Switzerland): Ch D (Mr Justice Floyd): 17 November 2010 James Mellor QC, Lindsay Lane (instructed by DLA Piper UK) for the claimants; Hugo Cuddigan (instructed by Bird & Bird) for the defendants.
Jane Lambert (instructed by Public Access Rules) for the appellant; Stephen Davies QC (instructed by Eversheds) for the respondent. Practice statements – Proportionality – Remuneration – Trustees in bankruptcy The appellant bankrupt (B) appealed against a decision fixing the remuneration of the trustee in bankruptcy (R). B ran a small retail flower business. She did not keep up with her VAT payments and was made bankrupt on a petition by HM Revenue & Customs. R was appointed as trustee. It was agreed that B’s husband would purchase the business and assets for £10,000. In addition to the flower shop business, the other substantial asset in B’s estate was a half-share in the matrimonial home valued at about £165,000. B made an application for annulment of her bankruptcy. The claim of the Revenue was settled at £15,177. B’s bank was a creditor for a total of £10,347 on two unsecured accounts, a current account and a loan account. The annulment application was adjourned more than once. There were issues as to whether and, if so, how debts had been paid, and B was challenging the amount of the bankruptcy costs and disbursements. A meeting of creditors, attended by the Revenue by proxy, had resolved that R’s remuneration should be fixed by reference to the time properly given by him and his staff in attending to matters arising in the bankruptcy. At first instance, the district judge fixed R’s costs and remuneration at £20,354, with additional disbursements of £2,890, and assessed his solicitors’ costs at £23,086, together with a small amount for disbursements. On appeal the judge, sitting with two assessors, fixed R’s costs and remuneration, excluding disbursements, at £9,929 and assessed the solicitors’ costs at £10,038. R’s disbursements and most of the solicitors’ disbursements were also allowed. B argued that even the reduced figure for R’s remuneration was disproportionately high in relation to the circumstances of the bankruptcy, did not have regard to the Practice Statement (Ch D: Fixing and Approval of Remuneration of Appointees)  BCC 912 Ch D, and in particular to the principle that the remuneration of the trustee in bankruptcy should reflect and be fixed so as to reward the value of the service rendered by him, not simply to reimburse him in respect of time expended and cost incurred, and did not properly take into account the status of the trustee in bankruptcy as a fiduciary. Held: (1) The Practice Statement of itself could not make law on substantive issues or require courts to apply the guiding principles stated in it. But the Practice Statement was not an attempt to create a new set of principles, but a convenient means of gathering together in one place the principles to be derived from the Insolvency Rules and authority, Mirror Group Newspapers Plc v Maxwell (No1)  BCC 324 Ch D considered. The Practice Statement acquired authority as a statement of guiding principles if it was expressly approved and applied as such in judgments at an appropriate level, and it had been. Although the guiding principles were expressed to apply to applications for fixing and approving remuneration, it was clear that they would be applied also to a challenge, taking into account that the remuneration or its basis had been duly fixed under the Insolvency Rules by a relevant body, such as a creditors’ committee or meeting of creditors. A court hearing an application to fix or to challenge the remuneration of an office-holder should proceed on the basis that the Practice Statement was to be applied, except in so far as in the circumstances of the particular case the party objecting to its application showed that it would be wrong in principle to do so (see paragraphs 42-48 of judgment). (2) The principles set out in the Practice Statement should have been expressly applied, but that omission was not a ground for allowing the appeal. The judge applied what were fundamentally the relevant criteria. He examined in some detail, with the benefit of the assessors, the remuneration claimed and the work done, in terms of value more than time, bearing always in mind the need to arrive at a figure which was proportionate to the circumstances of the bankruptcy. It was not open to the judge wholly to disregard the time spent by R, both because it was a relevant, but not decisive, factor in any case and because the basis of his remuneration had been fixed at the meeting of creditors. In relation to the issue of proportionality, the number and size of claims and the number and value of assets was an important, but not the only, element in the circumstances of the bankruptcy. There were many ways in which costs could properly be incurred which were not related, principally or even at all, to the assets and liabilities of the estate. In the instant case, B’s conduct in relation to the application to annul plainly did increase R’s costs. As to the issue of hourly rates, B adduced no evidence as to local charging rates and the judge and the assessors must have had some knowledge of those rates. B had had the benefit of a detailed examination of R’s remuneration, resulting in a very substantial reduction. Applying expressly the principles in the Practice Statement, the result would not be materially different (paragraphs 86-90). Appeal dismissed. Helen Brook v Nicholas Edward Reed (trustee in bankruptcy of the estate of Helen Brook): CA (Civ Div) (Lady Justice Arden, Lord Justice Black, Mr Justice David Richards): 25 March 2011
Richard Milne (assigned by the Registrar of Criminal Appeals) for the defendant. Imprisonment – Length of sentence – Possession of firearm with intent to cause fear of violence R v Weaver: CA (Crim Div) (Lord Justice Laws, Mr Justice Openshaw and Mr Justice Hickinbottom (judgment delivered extempore): 5 August 2011 The defendant was a dairy farmer and owned a shotgun, which he had a licence for and used legitimately around the farm. The defendant and his wife (the complainant) attended a Christmas party. The defendant drank a considerable amount of alcohol. When the defendant and the complainant returned home, the defendant began to be aggressive. He took his gun, loaded it, took the safety catch off, pointed it towards the complainant’s face and said: ‘I am going to blow your fucking head off’. The complainant believed that it was his intention to kill her. That incident lasted a few minutes. The defendant then went outside into the garden and discharged the gun. The complainant managed to run away and telephoned the police. The defendant was charged with and pleaded guilty to possession of a firearm with intent to cause fear of violence contrary to section 16A of the Firearms Act 1968. There had been no history of domestic violence. The defendant and the complainant had an eight-year-old son, who had not been in the house at the time of the offence. There was a psychiatrist’s report which said that the defendant did not suffer from a psychiatric condition, but had just had an outburst of emotion. The event had occurred because of the specific circumstances of that evening and he did not think that the defendant posed a future risk to the complainant. A pre-sentence report assessed him as having a medium risk to a woman who he might enter into a relationship with. The defendant and the complainant separated after the offence and the complainant said she was still fearful and had recurring nightmares. The sentencing judge took a starting point of seven-and-a-half years’ imprisonment and deducted one-third for the guilty plea. The defendant was accordingly sentenced to four years’ imprisonment. He appealed against his sentence. The defendant submitted that the judge’s starting point of seven-and-a-half years had been too high. The defendant submitted evidence from a police officer who reported that he was a model prisoner and had taken an active part in instructing prisoners in farming. The appeal would be allowed. In the instant case, the defendant had to have appreciated the dangerousness of the weapon. He had intended to cause fear of violence and the offence was aggravated by the fact that it had occurred in a domestic context where wives and partners have a proper expectation that they will not be in fear of violence. The mitigating features of the case were that the defendant had been in lawful possession of the gun, the holding of the gun towards the complainant had only lasted a few minutes, the defendant had been in a highly emotional state at the time and his behaviour had been out of character. The defendant had no previous convictions and had an industrious life in farming. Reports from prison officers also showed that he was a model prisoner. In the circumstances, the judge had a difficult task in balancing the serious aspects of the offence against the positive character of the defendant and the risk of future offending being low. In the circumstances, the sentence was manifestly excessive as it did not fully reflect the particularities of the offence and the exceptional mitigation. Accordingly, the defendant’s sentence would be quashed and substituted with a sentence of four years’ imprisonment.
Andrew Mitchell QC and Jonathan Lennon (instructed by Rahman Ravelli Solicitors) for the defendants; Anthony Peto QC, John Law and Robert Weekes (instructed by Serious Organised Crime Agency Legal Department) for SOCA; James Eadie QC (instructed by the Treasury Solicitor) for the intervening party. Unlawful conduct – Violent disorder – Costs – Civil recovery proceedings Section 241 of the Proceeds of Crime Act 2002, so far as material, provides: ‘(1) Conduct occurring in any part of the UK is unlawful conduct if it is unlawful under the criminal law of that part. (2) Conduct which (a) occurs in a country [or territory] outside the UK and is unlawful under the criminal law [applying in that country or territory], and (b) if it occurred in a part of the UK, would be unlawful under the criminal law of that part…’ Pursuant to part 5 of the Proceeds of Crime Act 2002 (the 2002 act), the Serious Organised Crime Agency (SOCA) had the power to recover property derived from criminal conduct. SOCA had to prove that the property in question was obtained by unlawful conduct, or that it was property obtained in place of such property. Section 241 of the 2002 act required the court to decide ‘on a balance of probabilities’ whether it had been proved that any of the matters alleged to constitute unlawful conduct occurred. SOCA, in civil recovery proceedings, obtained an order for the recovery of property to the value of some £2m (the property) held by the defendants, D and his former wife, T. SOCA had obtained the order following a hearing before a judge sitting in the High Court, in which it had been held, applying the civil standard of proof, namely on the balance of probabilities, that the property was derived from criminal activity, including drug trafficking, money laundering and tax evasion in the UK, Spain, Portugal and other jurisdictions. The judge had so found notwithstanding that the defendants had never been convicted of drug trafficking. D had been prosecuted and acquitted of drug trafficking in Portugal, and similar proceedings against him in Spain had been brought but discontinued. The defendants unsuccessfully argued before the Court of Appeal that the application of the civil, rather than the criminal, standard of proof violated their right to a fair trial as guaranteed by article 6 of the European Convention on Human Rights, that section 241(3) ought to be interpreted to require the application of the criminal standard of proof (beyond a reasonable doubt), or alternatively, that a declaration, pursuant to article 4 of the Human Rights Act 1998, that section 241 of the 2002 act was incompatible with the convention, ought to be made. The defendants appealed to the Supreme Court on the article 6 point. It further appealed against the making of an interim receiver order, pursuant to section 246 of the 2002 act that they pay costs of a report by the interim receiver appointed by the court in respect of recovery proceedings against them. SOCA had successfully cross-appealed against the refusal of the High Court to make the order. The issues for determination were: (i) whether the application of the civil standard of proof to civil recovery proceedings brought following an acquittal in criminal proceedings breached the defendants’ right to a fair trial under article 6 of the convention; and (ii) whether an order for costs made in favour of SOCA against a person against whom a recovery order has been made under section 266 of the 2002 act could include the investigation costs incurred by an interim receiver appointed under section 246 of the act. The appeal would be dismissed. (1) If confiscation proceedings did not involve a criminal charge, but were subject to the civil standard of proof, there was no reason in principle why confiscation should not be based on evidence that satisfied the civil standard, notwithstanding that it had proved insufficiently compelling to found a conviction on application of the criminal standard. Where a person had been acquitted in criminal proceedings and faced subsequent civil recovery proceedings, article 6 of the convention applied only in circumstances where there was a procedural link between the criminal prosecution and the subsequent confiscation proceedings (see  of the judgment). Some of the Strasbourg decisions were mutually inconsistent and it was not easy to identify the principle in others. There were a number of cases, where the Strasbourg court had held that the presumption of innocence in article 6(2) was infringed by findings in subsequent proceedings that cast doubt on the validity of a prior acquittal in criminal proceedings. The common factor in those cases had been a procedural connection between the criminal trial and the subsequent proceedings. ‘Charged with a criminal offence’ had an autonomous meaning. Thus the fact that the 2002 act unequivocally designated recovery proceedings as ‘civil recovery’ did not establish conclusively that they did not involve the charge of a criminal offence. Nonetheless, the classification of proceedings under national law was one of three relevant considerations to which the European Court of Human Rights always had regard when deciding whether or not article 6(2) was engaged. The second was the essential nature of the proceedings, and the third was the type and severity of the consequence that may flow from the proceedings, usually described by the European Court of Human Rights as ‘the penalty that the applicant risked incurring’ (see , ,  of the judgment). In the instant case, there was no procedural link between the criminal prosecution and the subsequent confiscation proceedings. The acquittal was in Portugal and the recovery proceedings were in England. Furthermore, the evidence in the latter ranged much wider than the evidence that was relied upon in the Portuguese prosecution. The commission by the defendants in the instant case of criminal conduct from which the property that they held was derived had to be established according to the civil, and not the criminal, standard of proof. The starting point was the possession of property by the defendants, for whose provenance they had been unable to provide a legitimate explanation. There was an abundance of evidence which implicated them in criminal activity that provided the explanation for the property that they owned. It followed that the judge had rightly applied the civil standard of proof (see , - of the judgment). (2) Investigative costs incurred by a receiver and reimbursed by SOCA, including the reasonable remuneration of the receiver, were costs of, or incidental to, civil recovery proceedings (see  of the judgment). There was nothing in the 2002 act or the Civil Procedure Rules to prevent the cost to SOCA of paying an interim receiver from being part of the costs of, or incidental to, the civil recovery proceedings. In order to bring a claim for civil recovery under part 5 of the 2002 act, SOCA had to obtain sufficient information to demonstrate that property in the hands of the appellants was recoverable property within the meaning of sections 304-310 of the 2002 act. That required investigative work to be done. It was entirely reasonable to appoint an interim receiver to carry out the investigation and to hold the ring in the meantime. There was no statutory rule or provision that led to the conclusion that such costs were not costs of, or incidental to, the civil recovery proceedings. The investigation was an essential part of the civil recovery proceedings and there was no reason in principle why the costs of the receivership could not at the same time be costs of, or incidental to, the civil recovery proceedings (see -, ,  of the judgment). In the instant case, the costs which SOCA had been or was liable to pay to the receiver in respect of his investigation were costs of, or incidental to, the civil recovery proceedings and are in principle recoverable from the defendants (see  of the judgment). Gale and another v Serious Organised Crime Agency: SC (Lords Phillips (president), Brown, Mance, Judge, Clarke, Dyson, Reed): 26 October 2011
Follow John on Twitter Poison-pen columnists looking for a cheap shot can always rely on the ‘judges out of touch’ jibe. So it came as something of a welcome surprise to some to see the lord chief justice dealing firmly with the issue of Twitter in court last week. Not that he was prepared to refer directly to Twitter, instead using the quaint term ‘text-based communications devices’ (a tweet-ruining 34 characters). Stories referring to Twitter being allowed in the court room were a little misleading – last week’s practice guidance was merely a rubber-stamping of interim guidance from one year ago. It’s admirable that Lord Judge chose to intervene in an issue that clearly needs addressing. Let’s not kid ourselves: texts and tweets have been sent from courts for years – most of you reading this piece will probably have indulged at some point away from the gaze of the judge. This made the LCJ’s task a near-impossible one. The use of these devices (let’s call them ‘mobiles’ shall we?) by court users is inevitable, barring a draconian confiscation of every one as people enter. But the guidance will do little to address the dangers Lord Judge himself acknowledges are created by tweets from court. It is noted in his report that witnesses waiting to enter the courtroom will be able to read what is happening inside, helping to coach or brief them in ways that have always been prevented. There are also serious question marks over juries being granted access to inadmissible evidence from which they would normally be shielded. The guidance states that journalists are automatically allowed to tweet from court, the assumption being that they understand the laws of contempt and will edit their 140 characters accordingly. But what of legal bloggers? Do they count as members of the public or the media? It’s a grey area that has been granted no light here. Members of the public will have to apply to the bench for permission to tweet, a stipulation that will surely be abused in courtrooms across the land. It’s not difficult to conceal a phone while sitting in the public benches. And even if permission is sought and granted, how can the judge be satisfied that tweets are being kept within legal boundaries? Are they to impose hashtags for every case and monitor the live feeds on their own communications device? It is unworkable surely, and naïve to think that Twitter can be restrained from the courtroom. It is wise to allow the use of laptops and mobile phones, if only to prevent the absurd scuttling of reporters to and from courthouse press areas. Journalists should be allowed to write from the court, provided it is quiet and unobtrusive. But judges face an impossible task in regulating and supervising every tweet that emanates from the public benches. It won’t be long until a defence solicitor calls for a trial to be halted because of a rogue text or tweet. If it was a man with a megaphone threatening contempt laws outside court they would be stopped. Twitter can reach millions more people, but it’s a Pandora’s box that is near impossible to close.
Barristers and solicitors should share most of their training, the chair of the Bar Standards Board has proposed.Lady Deech (pictured) told students at Oxford University last week that the new structures in which lawyers can practise, and the severe shortage of pupillages, have called into question the way both branches of the profession should be trained.In comments which partially echoed Law Society president John Wotton’s landmark speech last week, she said: ‘I wish that intending solicitors and barristers could do most of the core professional training together and then branch out to the bar or solicitor side towards the end.’Speaking at St Anne’s College, where she was formerly a law tutor and then principal, Deech said the change would help those uncertain which branch of the profession to train for, as well as those who realise that they made the wrong choice.‘It cannot be beyond the wit of man to devise this,’ she said, noting that there is already an overlap between subjects taught on the Legal Practice Course and the Bar Professional Training Course.Deech said: ‘Something has to be done to ensure flexibility for those who are unsure of their future. At the very least, a person who wants to switch from one branch to the other should only have to take the missing modules and not the entire course from scratch.’Addressing the issue of fierce competition to join the bar, Deech warned that the BPTC costs about £16,000 and ends ‘with the very real possibility of never getting a pupillage’. She said the BSB’s planned aptitude test for those applying to do the BPTC would help the situation.Deech questioned whether the £4m spent on the inns’ annual scholarships, money which ‘goes straight into the pockets of the BPTC providers’, might be better spent funding more pupillages.She also warned that ‘urgent consideration’ should be given to the number of qualified law graduates with no job, who may come to resent the legal profession for excluding them.However, Deech stressed that the framework of legal education is fit for purpose, contrary to the suggestion made by David Edmonds, chair of the Legal Services Board, in November 2010. She said: ‘It is among the best legal educations in the world.’
Follow Eduardo on Twitter Eduardo Reyes is Gazette features editor When it comes to the topic of their legality, dictators are a surprisingly needy bunch, and Fiji’s current rulers are no exception. Following the Gazette’s report on the rule of law (or lack thereof) in Fiji , its attorney general, Aiyaz Sayed-Khaiyum, and director of public prosecutions, New Zealander Christopher Pryde, have combined shrill, if imprecise, denial with wide-eyed innocence. It’s worth unpicking some of the points made. The report, written by Law Society Charity chair Nigel Dodds, was based on his covert visit to interview numerous members of Fiji’s legal profession. It highlighted the recruitment of foreign lawyers to the judiciary and positions in the justice systems on short-term contracts, including lawyers from Sri Lanka. This clearly hit a nerve. The attorney general at first flatly denied this (‘there are none’ he told the Fiji Broadcasting Corporation, even though their names are a matter of public record). Pryde then changed tack, labeling Dodds a ‘racist’ for criticising the appointments. And the report was critical of the government’s decision to seize total control of admission and practice in the legal profession from the Law Society (issuing practising certificates and the equivalent of CPD points). Neither Pryde nor Sayed-Khaiyum address that point directly, though other establishment legal figures have in private correspondence to the Gazette. The pretext for seizing control of the professional body’s regulatory functions was that handling complaints against lawyers and the efficient issue of practising certificates needed improvement. In the report Dodds notes that the Law Society needed resources and outside help to overcome problems here – but that is rather different to arguing that the legal profession would benefit from being directly run by a government department that sits below a dictatorship. Two other concerns not yet addressed by Fiji are the cabinet directive preventing the instruction of specific law firms by state bodies, and the practice direction preventing any court from hearing a legal case against the government. Having branded Dodds a ‘racist’ (Pryde), and ‘a joke’ with ‘no integrity’ (Sayed-Khaiyum), Pryde issued an invitation to the charity, via the media, to make a return visit and interview senior judicial and departmental figures. If delegations with full access are now to be allowed in, that’s a significant success for Dodds and the Law Society Charity. A previous attempt to enter the country openly had met with failure. The interim regime (‘interim’ since a 2006 coup brought Commodore Frank Bainimarama to power, allegedly at his third attempt) turned down a request in 2009 from the International Bar Association to send a delegation to investigate the state of things. (As a comparator, even Robert Mugabe lets the IBA in to conduct interviews and discuss their concerns.) Hence the covert nature of Dodds’ original trip. Fiji’s ‘interim’ government is attempting some tricky footwork at the moment. Currently suspended from the Commonwealth, the government is trying to move towards a position of greater legitimacy – without giving up the ‘benefits’ of military rule. So martial law just ended, though the restrictions and powers that have replaced martial law have been criticised as equally – on some counts more – repressive. There is now a commitment to hold elections by September 2014, though the new year and the ‘lifting’ of martial law coincided with the arrest and detention of political opponents for alleged corruption. It may seem odd that military ogre types and their appointees also crave legitimacy. But it’s actually pretty common. Philippine president Ferdinand Marcos, no mean lawyer himself, brought in and maintained martial law in elegantly drafted legalese. And Mugabe, Lord Falconer told me after his 1999 visit to Zimbabwe for the IBA, has always been hyper-sensitive to accusations around ‘legality’ and the rule of law. The list could go on some way. The question here is not whether dictators are needy people, but whether or not that craving for legitimacy can be used to good effect in a country like Fiji. Let us hope it can.
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Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Get your free guest access SIGN UP TODAY Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters