MISS HENSHAW'S TRAVEL BLOG

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Hello All

I'm writing this first legal travel blog from the beach in Thailand. The sea is turquoise, the sand is golden and the hot sun is blazing a trail across the deep blue sky, which isn't sporting a single cloud. I'm in a very different setting from Manchester right now, but my home city is never far from my thoughts and I know I'll be glad to be home in July. Still, I'm having an amazing time. I'm seeing endlessly fascinating new cultures, beautiful scenery and meeting interesting people.

I have set myself a task to report back to you from courts in the places I visit. I will also attempt to speak to advocates about their experiences. So, in pursuit of my goal I went to Colombo Magistrates Court and Colombo Supreme Court in Sri Lanka.

The Mags was very rowdy, with police officers, defendants and solicitors milling around the court in a great crowd. As is often the case, the usher was the only person who seemed to understand fully what was going on. Eventually I worked out I was in the traffic court, which made me chuckle. I had formed the impression that Sri Lankan roads were pretty lawless places! People regulalarly overtake on blind bends, rush along on the wrong side of the road, undertake and speed.

I watched proceedings for a little while, but couldn't really make head nor tail of them, rather like the roads themselves! Next, we dropped into the Womens' Lawyers Association for a quick chat, before making our way over to the Supreme Court. I was heartened to see that there were a number of female advocates of all ages strolling around the grounds of the court, red-ribboned briefs under their arms and gowns slung about their shoulders.

On surrendering my passport I was ushered in to the cool, calm and rather grand surroundings of the Supreme Court. The setting could not have been more different from the lower court. All the advocates wore gowns and the judges wore full regalia, minus wigs. You could have heard a pin drop as I crept in to listen to an application for leave to appeal. All submissions were made in very eloquent English, with the usual references to "M'Lord" and "My learned friend".

We were granted an audience with an experienced advocate who set out the general mechanics of the Sri Lankan legal system. There are many similarities between it and the English approach, unsurprisingly, since the British ruled there for many years. My new learned friend explained that, unlike us, Sri Lanka has a codified constitution, introduced in the late '70s. In cases of criminal law, the magistrate's courts and the High Court are the only courts with primary jurisdiction. Appeals from these courts of first instance can be made to the Court of Appeal and, under certain circumstances, to the Supreme Court, which exercises final appellate jurisdiction. In all cases, the accused has the right to representation, and all trials must be public unless the judge determines otherwise for exceptional reasons. 

The vast majority of the nation's criminal cases are tried at the lowest level of the judicial system, the magistrate's courts. Cases here may be initiated by any police officer or public servant, or by any oral or written complaint to the magistrate. The magistrate is empowered to make an initial investigation of the complaint, and to determine whether his court has proper jurisdiction over the case, whether it should be tried by the High Court, or whether it should be dismissed. Magistrates' courts have exclusive original jurisdiction over all criminal cases involving fines of up to Rs1,500 (about 5 pounds and fifty pence) or prison sentences of up to two years. If the magistrate's court accepts jurisdiction, prosecution may be conducted by the complainant or by a government officer, including the attorney general, the solicitor general, a state counsel, a "pleader" authorised by the attorney general, or any officer of any national or local government office. At the trial, the accused has the right to call and cross-examine witnesses. So, it is similar to our system, but lay Magistrates are never used, it is always lawyers who sit on the bench.

One interesting facility is the provision for police officers to report both subjects and makers of persistent complaints for the purpose of having them dealt with by a Magistrate. In practice this can mean that both parties in a neighbour dispute can be hauled up before the Magistrate and disciplined by way of something akin to a bindover. The Magistrate can comment on the parties' various arguments and side with one party or the other if appropriate, the idea being that it prevents further complaints to the police. We're all familiar with those disputes where the police seemingly-arbitrarliy charge one party over another just to avoid further complaints. The Sri Lankan approach takes as the starting point the notion that both sides are equally guilty or innocent and the Magistrate makes any of a number of decisions about that.

Its an interesting idea, but may have inherent problems. Whilst there is no official system in place for this approach at home, its a practice that I have come across in Manchester Courts recently, where I have had judges bind over both defendant and complainant, and in one case a prosecution witness as well (further to that witness giving evidence). 

For criminal cases involving penalties over Rs1,500 or two years imprisonment, original jurisdiction resides with the High Court. The High Court is the highest court of first instance in criminal law, and exercises national jurisdiction. Prosecution must be conducted by the attorney general, the solicitor general, a state counsel, or any "pleader" authorised by the attorney general. During the trial, the accused or his or her attorneys are allowed to present a defence in a similar way to us. 

For only the more serious offences, including crimes against the state, murder, culpable homicide, attempted murder, and rape, the law provides for trial by jury. In such cases, a jury of seven members is chosen by lot from a panel elected by the accused unless the court directs otherwise. Both the prosecution and the defence have the opportunity to eliminate proposed members of the jury. The jury is required to reach a verdict by a majority of no less than five to two. 

Under the Prevention of Terrorism Act of 1979, the right to a jury was suspended for a wide variety of offences involving violations of communal harmony defined as incitement of one ethnic group against another. In cases where the law does not prescribe trial by jury, the judge gives the verdict and passes sentence at the conclusion of the hearings. As in the magistrate's courts, the accused has the right of appeal to the Court of Appeal on any matter of law or fact. 

On entering Colombo airport a big sign warns that the death penalty will be imposed for importing drugs. I asked about capital punishment in Sri Lanka and was told that, although it is still applicable, in practice it rarely occurs. In fact, I was told that in honour of religious celebrations and political progress, lifers are often released considerably earlier than their sentence dictates and that the general public often complain that sentences are not long enough.

Being a Judge in Sri Lanka can be a dangerous business. They require body guards since a judge was assassinated in 2004. The judge was returning home after sentencing a woman to life imprisonment for possession of drugs when he was shot dead. The barrister I spoke to had more immediate concerns, particularly with regard to getting paid. He complained that private clients (all his work was private) always struggle to pay up and yet his professional ethics prevent him withdrawing from a case. So far as legal aid work is concerned, only the youngest most inexperienced barristers undertake such work, since it is so poorly remunerated.

Amnesty International have ongoing concerns about the abuse of human rights in Sri Lanka, in particular in relation to persons displaced during the long conflict with the Tamil Tigers. Summary execution of prisoners of war by Sri Lankan troops have hit the headlines, along with the recent disappearance of human rights campaigners and journalists. Further, there have been complaints about the democractic process raised by the arrest of the opposition party leader General Sarath Fonseka. The election was imminent during our visit and I became very interested in the surrounding issues. I asked my barrister friend if he felt that the process was a fair one, and he referred to the UK system, saying that Sri Lanka inherited a keen interest in due process, fairness and the interests of justice from Britain. He took the balanced veiw that all systems have their pitfalls and rogues, but he thought in the main that the Judiciary were fair.

This was a sentiment echoed on my travels in India. It was felt that certainly the more senior judges were beyond reproach, although the news headlines carried stories of judges and barristers being bribed and therefore corrupt. I did not manage to visit the courts in India, but on one journey in a taxi I spotted a barrister on a motorbike. I immediately recognised him as a barrister, since he was wearing pinstriped trousers and had a gown flung over his shoulder. I tried to take his photo from the car and eventually he noticed us and pulled over to talk. He was a criminal advocate, on his way from the District Court (Crown) to the Magistrates'. He spoke little English, but it was clear that we were delighted to have met each other, particularly in such a chance way. We chatted for a while and took photos of each other, before the meeting was rudely interrupted by the police who threatened to fine everybody if we didn’t move along. The biking barrister hopped on his scooter (minus a helmet of course, nobody wears them) and disappeared, with his gown flapping in the wind. Its given me ideas about getting to court in future.

So, here's hoping that you are all well. I'm off for a cold beer whilst the sun sets over the bay.  Wish you were here

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