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This was almost certainly a breach of international law and Turkey has the right to take charge of a criminal investigation

Will the rule of law be applied to Israel this time? In principle, it is unlawful for a state to enforce a blockade against ships that are flying the flag of another state on the high seas. The only exceptions to this would be if the blockade were mandated by the UN security council acting under chapter VII of the UN charter. The basic principle under customary international law as regards ships in international waters was set out by the permanent court of international justice in the SS Lotus case (1927):

"... vessels on the high seas are subject to no authority except that of the state whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no state may exercise any kind of jurisdiction over foreign vessels upon them."

While international law does allow for exceptions to the above rule, entitling warships to interfere with ships flying the flag of another state while in international waters in limited circumstances, those exceptions do not apply to the events of 31 May. Indeed, a 1988 treaty (to which Israel is a party) criminalises the unlawful and intentional seizure or exercise of control over a ship by force, and all connected injuries or deaths.

If the Israeli boarding of the ship was illegal, then arguably the passengers were entitled to act in self-defence against the invading commandos. If so, they could use reasonable force to defend themselves, the amount of force permitted being determined by Turkish law.

And that is the point: it is clearly Turkish criminal law that can and should predominate from this point on. The Mavi Marmara is a Turkish-registered ship and was travelling peacefully in international waters when Israeli forces boarded it. At least one of the dead civilians is reportedly a Turkish citizen. The Turkish authorities have the absolute right to assert that their criminal justice system take sole charge of a criminal investigation.

Turkey is therefore perfectly entitled to demand that all evidence, including the identity of all Israeli naval and other forces, is handed over to its criminal justice authorities for a full investigation and that Israel allow Turkish law enforcement officials unimpeded access to the Israeli suspects. Israel is after all a party to the 1959 European convention on mutual assistance in criminal matters.

If Israel were to refuse, the UN security council, if concerned about a threat to international peace and security, could then back Turkish and international demands to this effect in a chapter VII resolution. The question therefore arises: will Turkey and the international community require Israel to comply with the rule of law on this occasion?

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]]> http://www.legalnewscentral.co.uk/2010/06/02/who-will-bring-israel-to-book-over-flotilla-attack-daniel-machover/feed/ 0 http://www.legalnewscentral.co.uk/2010/06/02/benelux-leader-appoints-new-head-and-board-member/ http://www.legalnewscentral.co.uk/2010/06/02/benelux-leader-appoints-new-head-and-board-member/#comments Wed, 02 Jun 2010 13:22:00 +0000 Legalweek http://www.legalweek.com/legal-week/news/1652233/benelux-leader-appoints-head-board Suzi Ring legalweek

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We should applaud Sir Nicholas Wall's decision to make public the reasoning of the usually secretive court of protection

"Can a distinction be made between a wise act carried out by a madman, and a senseless act of folly carried out by a man in full possession of his wits? Wisdom and folly are surprisingly close." Michael Foucault's observation lies at the heart of the problem doctors and lawyers face in demarcating this boundary.

Last week Sir Nicholas Wall, the president of the family division of the high court, made a rare public judgment disclosing insights into the usually secretive inner workings of the court of protection (COP), which makes "declarations about whether someone has the capacity to make a particular decision". The COP, as the public guardian, is empowered to make decisions behind closed doors that it regards as being in its wards' best interests, including giving coercive medical treatments such as sterilisations, abortions and vasectomies. In light of these decisions as to what is in a patient's "best interests", the legal safeguards for patients take on much greater significance, as they only have real meaning if they also allow you to refuse treatment.

In this case, the court ruled that a 55-year-old woman did not have capacity because she suffered from two phobias, one of which was nosocomephobia – a fear of hospitals, which must be a fairly common anxiety. Having disclosed or exhibited this and also her needle phobia, she was duly diagnosed and deprived of her capacity and will receive invasive surgery for cancer. In accordance with the legal test set out in the Mental Capacity Act 2005, she was deemed unable to make a capacious choice because her medical conditions impaired the functioning of her mind to make any decision about her treatment.

Consistently, the courts have opined that capaciousness should not be confused with the actual decision made by the patient, however grave the consequences. To usurp this hallowed presumption offends patient autonomy. A doctor's challenge requires empirical testimony that a patient is experiencing a condition that interferes with their brain's ability to make a functional – rather than a rational or wise – decision. An anorexic is force fed against his or her will on the basis of his or her underlying psychological condition. Note to self: be less cavalier in telling doctor that I have never had an operation as am terrified of having an anaesthetic and have in the past avoided hand surgery on this basis.

However, some beliefs confound empirical analysis. One patient thought her blood was evil "because it is red". Clearly irrational, she disclosed: "It carries evil around my body. Although the blood given in transfusions is perfectly healthy and clean once given to me, it mixes with my own and also becomes evil. Therefore the volume of evil blood in my body will have increased and likewise the danger of my committing acts of evil." Mr Justice Charles ruled her incapacitated and suggested that "it seems to me that this assertion and belief is a misconception of reality". The judge thought her views capable of being "alternatively symptoms or evidence of incompetence".

If one considers the refusal itself as a symptom or evidence of some underlying misconception of reality to challenge capaciousness, consider Emma Gough, a Jehovah's Witness. Aged 22, she had complications following the birth of twins and refused a life-saving blood transfusion on the basis of an incoherent, if not bogus, religious belief, leaving her two children without a mother. Religion is not a medical condition but clearly can strongly direct an arbitrary decision to refuse treatment based upon a personal morality that is a misconception. Would the doctors have adopted the same approach if a patient suggested they were a member of a Jedi Knight sect, something no less rational than religion, to make the same decision?

In seeking to protect patients from benevolent but paternalistic doctors who may intuitively disagree with their patient's choices, it is important that the legal response to this Foucauldian conundrum the rules are clear, coherent, applied universally and transparent. Sir Nicholas Wall's decision to open these closed doors should be welcomed. For my part, I will simply say nothing about my phobia and deprive the doctor of the ability to challenge me – unless of course they come up with a medical condition for that.

]]> http://www.legalnewscentral.co.uk/2010/06/02/the-court-of-protection-opens-its-doors-stuart-andrews/feed/ 0 http://www.legalnewscentral.co.uk/2010/06/02/homosexual-police-officer-threatens-woman-over-anti-gay-taunts/ http://www.legalnewscentral.co.uk/2010/06/02/homosexual-police-officer-threatens-woman-over-anti-gay-taunts/#comments Wed, 02 Jun 2010 10:47:02 +0000 Telegraph http://www.telegraph.co.uk/news/uknews/law-and-order/7796507/Homosexual-police-officer-threatens-woman-over-anti-gay-taunts.html http://www.legalnewscentral.co.uk/2010/06/02/homosexual-police-officer-threatens-woman-over-anti-gay-taunts/feed/ 0 http://www.legalnewscentral.co.uk/2010/06/02/career-clinic-how-do-city-firms-get-away-with-paying-30k-less-than-us-rivals/ http://www.legalnewscentral.co.uk/2010/06/02/career-clinic-how-do-city-firms-get-away-with-paying-30k-less-than-us-rivals/#comments Wed, 02 Jun 2010 10:37:58 +0000 Legalweek http://www.legalweek.com/legal-week/advice/1652084/career-clinic-how-city-firms-away-paying-gbp30k-us-rivals Legal Week legalweek

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In court, Watts's legal team argued that there was no case to answer as the four woman he is accused of sexually abusing were not safe witnesses

Jim Watts, 57, a former disability bus driver, is serving a 12-and-a-half year jail sentence for sexually assaulting four severely mentally and physically disabled women.But there are serious concerns, raised by his legal team, that Watts, a married father of two, has been the victim of a gross miscarriage of justice, and that his case could serve as a significant deterrent to people thinking of working with severely disabled people.

Watts's trial last October was described throughout by the judge as "highly unusual". None of the women could give evidence in court. Two (referred to as women 2 and 3) were able to give evidence via video link – one communicated by looking up for yes and down for no, the other used a computer and voice synthesiser. Another of the women could not communicate at all, and the fourth had had a severe stroke.

None of the women, along with the North Devon care home and Watts's employer, can be named, for legal reasons.

Watts maintains that the charges of rape and sexual assault against him are a weird fiction; that the Crown Prosecution Service (CPS) allowed an unsafe case to go to trial; and that the judge directed the jury away from compelling evidence that would have led to acquittal. His appeal starts next month and it is understood it will be heard by the lord chief justice.

When Watts was sentenced, the CPS issued a statement making much of the use of "expert intermediaries" and video links used to help the women give evidence. Yet, in some cases, detailed allegations about Watts's abuse were not the women's own words, they had to rely on images provided by police and care home staff, and identify their abuse and abuser using pictures of care staff and sexually explicit images.

Watts, with his grey beard and ponytail has the look and dress of a world-weary country singer. He used to sing and play guitar in local pubs, as well as being a bus driver, tree surgeon, electrician and driving instructor. He has volunteered as a Samaritan and an "appropriate adult" supporting vulnerable youngsters in custody.

Emotional visit

I met him at Exeter prison, earlier this year, on an emotional visit with his wife of 35 years, Su Bennett. Watts's voice cracked when he told me: "I didn't do anything."

He explained that he had been a driver for the care home for more than two years. He worked 12 hours a week, taking residents to pub lunches and for carriage drives at an equestrian centre. He would help with feeding but did not get involved in dressing or toilet duties.

He says that he believes his case has done great harm to the recruitment of staff in care homes: "Many people I know have ceased to work in care. They have told me, 'If it can happen to you it can happen to any of us.' One described working in a care home as 'swimming with sharks'."

The story starts when a volunteer carer told the care home manager that Watts "tickled" a woman's breasts over her clothes as he was putting on her bib to feed her in a crowded pub. Watts says that he and the volunteer would sit back-to-back when feeding the women and that she is simply mistaken. The severely disabled woman is unable to communicate at all.

The volunteer carer also said she heard a second woman scream when Watts was alone with her in the disability bus at the equestrian centre. But in court she said that what she heard was the screeching noise the woman makes when happy.

To commit rape, Watts says, he would have had to get the woman out of her wheelchair, undress her and take off her double nappy and then replace it, all while parked in a van with large glass windows in full view of a busy riding school. And, Watts explains: "I always took the woman back to the van first because of her wellknown allergy to horses."

Medical and forensic examinations of all four women could find no evidence of sexual or physical assault.

The third woman was mentioned to police by the care home manager after the volunteer spoke to him about her.

Watts was suspended from work in March 2008 but not interviewed by the police until June. After a nine-month investigation by the police's newly created North Devon protection of vulnerable adults team, he was charged with 13 counts of rape and sexual assault – in a pub, the van, the women's rooms and on a beach.

Watts worked part time and claims he was not there when the attacks were supposed to have taken place.

In court, his legal team argued that there was no case to answer as these woman were not safe witnesses. The rape charges were rejected but Watts was found guilty of six counts of sexual assault by a 10-2 majority.

Unreliable testimony

Watts's legal team says the judge failed to give jurors a fair summary of the case, making no reference to crucial evidence given by witnesses in court that would have demonstrated that the women's testimony was "unreliable".

The team will argue at the appeal that the police failed in the basics of interviewing witnesses with cognitive impairment, making no attempt to confirm that the women knew the difference between truth or lies, about anatomy or sexual matters, or to establish whether they understood the purpose of the interview, or its seriousness.

Both the women who gave evidence in court via video, according to an expert's report, had almost non-existent knowledge of sexual matters, or the physical difference between men and women. Woman 2 used a computer communicator, which she operated with a switch in the headrest of her wheelchair. She cannot read.

She was told by police and care home staff that pictures of staff and body parts, including sexually explicit pictures, had been added to her computer to give her the opportunity to "tell us if anyone had done anything to her that she did not want". The icons she selected were pre-installed with words or phrases, which were then synthesised to the court.

While there were computer icons for "yes" and "no" there was no icon for "I don't understand", or "I'm not sure", which the defence argued means she was forced to give an answer when she may not have understood the question or may not have had an answer to give.

In the police report of a witness interview, the officer said "victim 2" repeatedly hit the cursor on the "I'm scared" picture and "almost immediately disclosed she wanted to tell us something had occurred with Jim Watts". "[She] then disclosed that Watts had punched [the computer's pre-installed word] her in the anus with his penis and it had made her cry."

In the transcript of the interview, the police officer gives detailed descriptions. At one stage the officer says: "It's Jim Watts in the car. He's put his penis inside your bottom, your anus, on more than one occasion and you didn't like it. Is that right?" The woman answers "no". But the defence says it is not established whether she means "no it's not right", or "no I didn't like it".

The interview continues with allegations of rape and sexual assault being put to the woman only to receive seemingly contradictory "yes" and "no" replies. The interview is halted amid confusion when the woman starts communicating about other members of staff.

In her interview, woman 3, who, according to witnesses, uses not entirely reliable movements of her eyes to indicate yes or no, clearly does not understand the words "penis" and "vagina", says Watts's defence team. Yet the police statement says that she alleges that Watts forced the fourth woman and herself into sexual activities on numerous occasions including on a beach. But the defence says care home logs reveal that he had taken the two women out together only once to a pub with another member of staff.

In a video of her police interview played in court, the fourth woman got simple facts about her family and Watts's appearance wrong. Yet she alleged that Watts repeatedly raped her at knifepoint. She also claimed that she had told her husband, although he told the court he knew nothing of the allegations. She could not be cross-examined as she had had a second stroke before the trial.

Zara Svensson, Watts's solicitor, says: "I am amazed that at every stage somebody didn't step in and say this case is not safe."

Watts's wife says the last two years have been a nightmare not just for them but for the families who have been misled into believing their loved ones have been abused. "There has been no justice for these disabled women and certainly none for Jim," she says.

And she asks: "If Jim wanted to be a serial sex abuser why didn't he take up the home's offer of being a care assistant and have unlimited access to these helpless women?"

Meanwhile, Watts, a man who has never before been in trouble with the law, is in Exeter jail marked as an extremely deviant sex offender. He is writing songs, trying to stay sane. He even entered the prison poetry competition, its theme: the joys of life.

But he says: "I am angry at the cavalier way my life and good name have been taken from me."

The care home operator did not wish to comment on the case.

]]> http://www.legalnewscentral.co.uk/2010/06/02/jim-watts-is-serving-12-years-for-abusing-disabled-women-but-is-he-a-victim-of-a-miscarriage-of-justice/feed/ 0 http://www.legalnewscentral.co.uk/2010/06/02/morally-bankrupt%e2%80%99-sarah-ferguson-weeps-on-oprah/ http://www.legalnewscentral.co.uk/2010/06/02/morally-bankrupt%e2%80%99-sarah-ferguson-weeps-on-oprah/#comments Wed, 02 Jun 2010 06:53:35 +0000 Times Online http://www.timesonline.co.uk/tol/news/uk/article7142338.ece

]]> http://www.legalnewscentral.co.uk/2010/06/02/morally-bankrupt%e2%80%99-sarah-ferguson-weeps-on-oprah/feed/ 0 http://www.legalnewscentral.co.uk/2010/06/02/cost-of-new-economic-crime-agency-could-prove-prohibitive/ http://www.legalnewscentral.co.uk/2010/06/02/cost-of-new-economic-crime-agency-could-prove-prohibitive/#comments Wed, 02 Jun 2010 06:00:15 +0000 Guardian http://www.guardian.co.uk/business/2010/jun/02/economic-crime-agency-scheme-cost

Financial crisis threatens coalition government's ambitious scheme to consign multi-agency approach to history

The coalition government's much-vaunted plan to abolish the Serious Fraud Office and replace it with a super-agency to fight white-collar crime may never happen because of the financial crisis, it emerged last night.

Ministers are publicly committed to merging the SFO, plus part of the Financial Services Agency and the Office of Fair Trading, into one large economic crime agency that would tackle bribery, fraud and insider trading. Other departments, such as the City of London police fraud unit and parts of the criminal prosecution service, might also be folded in. However, the ambitious project faces potentially insurmountable hurdles in raising enough money to fund a reorganisation. Ministers are warning privately that the government's top priority is reducing the national deficit and that, in the circumstances, the agency scheme will have to be cancelled if it costs too much.

Treasury officials are working on detailed costings for presentation to a cabinet committee later this year. "The biggest problem is money," said one source.

George Osborne, the chancellor, promoted the idea of creating the super-agency while in opposition. He claimed during the election campaign that it "will sweep away the confused, multi-agency approach and create a single, focused body with the mandate, expertise and authority needed to tackle serious economic crime".

The super-agency would be responsible to a beefed-up Law Officers department, headed by the attorney general, Dominic Grieve. His deputy, the solicitor general, Edward Garnier, is known to be an enthusiast.

The FSA is funded through a levy paid by the list of financial companies it regulates. This consists of 29,000 firms involved in the financial services industry. The new agency would take over the FSA's enforcement arm, which costs around £40m to run. The 300-strong SFO, on the other hand, is funded by the taxpayer to the tune of £43m a year.

Ministers will either have to extend the levy in some way to fund the new agency or pay for it entirely from the public purse, a figure which could potentially run to more than £80m.

The reorganisation cost of abolishing the existing agencies and setting up the new organisation could also be high.

Setting up the super-agency would require new legislation. The government decided not to include this in the first programme of coalition bills outlined in the Queen's speech, and it is not yet clear whether the agency would be given new powers, for instance to impose liability on corporations, strike plea bargains, or offer immunity to whistleblowers.

One insider said setting up a new agency merely by "rearranging the Whitehall furniture" would be inadequate if the aim was to secure more convictions than the existing agencies.

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