The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
Hillsborough disaster trial collapses
Reported by Eleanor Aindow
The Hillsborough disaster trial recently took yet another hit as a judge acquitted two former South Yorkshire police officers and a solicitor of charges of perverting the course of justice following the disaster at the FA Cup semi-final on 15 April 1989, during which 96 Liverpool fans lost their lives. This ruling brings the 32 year fight for justice to a close.
Further to an investigation by the Independent Office for Police Conduct, the three defendants were charged in 2017 with perverting the course of justice. It was alleged that they had changed 68 police officers’ statements to withhold important evidence in order to minimise the blame on the South Yorkshire police force.
However, after four weeks of evidence, the judge, Mr Justice William Davis, ruled that there was no legal case to answer and dismissed the case. He stated that because the altered police statements were prepared for an administrative inquiry into safety at sports grounds and, as such, did not form part of a statutory inquiry where evidence is given on oath, it was not a course of public justice that could be perverted. He concluded that there was no fit case for consideration by the jury. This marks a final disappointment for the families of the victims, who have had to fight for justice for their loved ones since that fateful day 32 years ago.
The legal history is complex and convoluted. Despite Lord Justice Taylor’s inquiry in 1990 having determined that the primary cause of the fatalities was the failure of police control, the official verdict of the inquest jury in 1991 was accidental death. The match commander on that day, David Duckenfield, who opened the gates to the stadium which caused an influx of Liverpool supporters to rush into an already packed zone, claimed that Liverpool fans had forced the gate. This lie was reinforced by media worldwide, placing the blame on ‘drunk and ticketless’ supporters.
After years of fighting for the truth by families and survivors, the publication of the Hillsborough Independent Panel’s report in 2012 quashed the inquest verdict that the victims were killed accidentally. A further inquest concluded in April 2016 found that the victims had been unlawfully killed and that Liverpool supporters were not to blame. Jurors blamed police failures, stadium design faults, and a delayed response from the ambulance service. Duckenfield was later charged in 2017 with gross negligence manslaughter, but he was cleared in 2019 after a retrial. Thus, there remains no accountability for the unlawful killings of the 96 Liverpool supporters who lost their lives that day.
This blatant failing of the courts has caused many to call for a reform of the English justice system. The cover-ups, consisting of false, blame-shifting narratives, were briefed to the media just days after the tragedy, and were maintained by South Yorkshire police throughout the Taylor inquiry and the first inquest.
Greater Manchester Mayor Andy Burnham, who has been heavily involved in the campaign for justice, slammed the court decision. He argues that the ruling implies that powerful public servants cannot be held accountable for changing evidence provided to them, which risks encouraging further cover ups. He also states that the assertion of one expert witness that there is no ‘legal duty of candour’ on public servants at inquests has strengthened the already existing power imbalance between publicly funded authorities, represented by legal heavyweights, and the victims’ families, who typically have very minimal legal representation.
Liverpool FC have since released a statement confirming their continued support for the bereaved families, in which they highlighted that the 96 victims and their families have continually been failed in their pursuit for justice. An excerpt reads: ‘We have a situation in which 96 were unlawfully killed and yet no individual or group has been deemed legally culpable for their deaths.’
Israel, Palestine & international laws
The latest spark in the ongoing struggle between Israel and Palestine has raised pertinent issues of international law, including crimes against humanity, international human rights law and international law of war.
A 213-page report from Human Rights Watch accuses Israel of operating a system of apartheid in the Occupied Palestinian Territory, stating that “in certain areas … they amount to the crimes against humanity of apartheid and persecution”.
The term ‘apartheid’ is a deeply sensitive and morally loaded term, tracing its roots back to South African ideology from the 1940s used to promote a particular ideology and political vision of ‘separateness’ among the population. Dr Leonie Fleischmann, civil rights and social movement researcher, highlights the various implications of using a term such as ‘apartheid’ (as compared to, for example, ‘Israeli-Palestinian conflict’ or ‘Israeli military occupation’).
In 1973, the UN declared acts of apartheid as a crime under international law, through the Convention on the Suppression and Punishment of the Crime of Apartheid. In 2002, the Rome Statute of the International Criminal Court defined the crime of apartheid as a ‘crime against humanity’, requiring “inhumane acts … committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group’. For example, China and Saudi Arabia have also been accused of similar practices. Amnesty International also defined the abuses committed against the ethnic minority group, the Rohingya, by the Myanmar government as crimes of apartheid.
It is important to accurately label the ongoing conflict. Words have power. Language is another weapon in any kind of conflict, particularly international conflicts where the image and perception of states involved is especially scrutinised.
A separate, but related, set of laws pertains to the international law of war. As the New York Times reports, the latest spate of violence raises pressing questions about ‘which military actions are legal, what war crimes are being committed and who, if anyone, will ever be held to account’.
War crimes may only be committed during an armed conflict, whereas crimes against humanity can be committed both in times of war and of peace. According to international criminal law scholar Guénaél Mettraux, ‘a crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population; there is no such requirement for a war crime’.
The New York times cites experts who claim that both sides appear to be violating those laws. For example, Hamas has allegedly fired more than 3,000 rockets toward Israeli civilian cities and towns. Similarly Israel has subjected Gaza to such an intense bombardment, killing families and flattening buildings, that this may constitute a disproportionate use of force. Palestinian officials have stated that Israeli airstrikes on buildings in Gaza City on Sunday killed at least 42 people, including 10 children.
In and of itself, the killing of civilians is not illegal. However, the New York Times has cited experts such as Professor Akande who highlight principles such as discrimination between civilian and military targets, weighing the gains and losses of collateral damage, and the need to take all reasonable precautions to limit any civilian damage
Many of these principles are easier said than done. The conflict seems to have morphed into a war of attrition, and ‘endless loop of bloodshed’. As international news coverage of the events increase, winning the moral high ground in an impossible war becomes more important than ever.
The language used to discuss crimes against humanity and international war crimes is important. Words speak to different ideologies, political viewpoints, and moral overtones. Ultimately, however, without any concrete action, there seems to be no end in sight.
K e.a. and Others v Tesco Stores Ltd Case C-624/19
Reported by Jasmine Cracknell
Last week, the European Court of Human Rights (ECHR) confirmed that Tesco employees could rely on EU law in their equal pay claims against the supermarket.
The claims were brought in 2018 by current and former Tesco employees, who argue that they have not received equal pay for equal work contrary to the Equality Act 2010 and Article 157 of the Treaty on the Functioning of the European Union (TFEU).
The claimants, who are all women, believe their roles are comparable with higher-paid distribution centre workers, who are mostly men, and that they should therefore be paid the same, Tesco says that the roles are not comparable. It claims that for the purposes of s.79(4) of the Equality Act 20190, the terms of the respective employment contracts are not common. It also argued that Article 157 of the Treaty does not have direct effect in the UK in relation to claims based on work of equal value, so the employees cannot rely on this provision. Finally, Tesco claims it is not a ‘single source’ for the employment of store workers and distribution centre workers as they work in different establishments within the company.
The case was referred to the ECHR by the Watford Employment Tribunal for a preliminary ruling on whether the claimants could rely on Article 157 TFEU. As the tribunal’s request was made before the end of the transition period, the European Court continued to have jurisdiction on the matter despite the fact that the UK has now left the EU.
Art. 157 broadly states that roles will be comparable if men and women work for ‘the same establishment or service’ and the disparity in pay is attributable to a ‘single source’ who can rectify this disparity in pay, such as an employer.
The ECHR ultimately found that Tesco was a ‘single source’ as it employed both the store workers (who brought the claim) and the distribution centre workers and that it did not matter if the employees work in different establishments of the company.
The court also held that Article 157 is to be treated as having direct effect in cases where workers are claiming equal pay for work of equal value, meaning that it can be relied on during proceedings in domestic courts.
While the decision is a victory for the current and former Tesco employees who have joined the claim, the Court’s ruling does not mean that the women are entitled to equal pay yet. Whether the roles are comparable is only the first stage of the equal pay claim.
The second stage involves proving that the role of shop floor workers is of equal value to the role of distribution centre workers. The Equality Act 2010 says that even if work is not alike or equivalent, it can be equal if the level of skill, training, responsibility or demands of the working conditions are of equal value.
If the roles are considered to be of equal value, the claim will progress to a third stage in which the workers will have to prove that gender discrimination was the reason for any difference in pay.
As stages two and three are still yet to commence, it is thought that the case could drag on for some time, especially as Tesco states that it continues to strongly defend the claims.
The Tesco workers are being represented by law firm Leigh Day, which is also representing Asda employees in a similar equal pay claim. You can read about the Supreme Court’s decision in the Asda case in our briefing for the week commencing 29 March 2021.
Alleged violation of the “principle of primacy of Community law” by Germany
Reported by Emma Ducroix
Brussels has launched a legal case against Germany over an alleged breach of “the principle of the primacy of EU law” by the country’s constitutional court.
The core of the dispute is the German constitutional court’s 2020 ruling that the European Central Bank’s bond-buying programme could be illegal unless it was proven that each of the purchases were necessary. It was also claimed by the court that the ECJ had acted ultra vires (beyond its powers) by approving the bond-buying.
The ECJ had responded strongly at the time by issuing a statement stating that it “alone” had “jurisdiction to rule that an act of an EU institution is contrary to EU law”.
The “infringement proceeding” is the result of this ruling by the German federal constitutional court in Karlsruhe which it is claimed undermined the pre-eminence of the European court of justice (ECJ).
The German court had contradicted the ECJ by instructing Berlin to delay approval of a European Central Bank multi-trillion-euro bond-buying programme due to concerns that it was straying into financing member states, something it claimed was not permitted under EU founding treaties.
The constitutional court later ruled that the bond-buying could proceed, but in a statement on Wednesday the European Commission said the initial decision set “a dangerous precedent for [European] Union law, both for the practice of the German constitutional court itself, and for the supreme and constitutional courts and tribunals of other member states”.
“The German court deprived a judgment of the European court of justice of its legal effect in Germany, breaching the principle of the primacy of EU law,” a commission spokesperson said.
The German government now has two months to respond to a letter from the commission over the case, which could ultimately lead to hefty fines being issued by the ECJ in Luxembourg.
The commission spokesperson said: “It is for the member state to identify possible solutions. Any solution must be in line with EU law and respect the principle of the primacy of EU law.”
That response was a reflection the growing concerns in Brussels over the fragmentation of the EU’s legal order. The commission’s letter of notice to the German government in turn highlights anxiety in Brussels that the behaviour of the Karlsruhe court could encourage those in Poland and Hungary to act in similar ways.
“This could threaten the integrity of [EU] law and could open the way to a ‘Europe à la carte’,” a commission spokesperson said. “The last word on EU law is always spoken in Luxembourg.”
The ECJ has also made a series of rulings on Polish laws which have pitted it against Warsaw. In 2019, the EU’s highest court said Poland had broken the law when it sought to lower the retirement age for judges.
The ECJ found that a 2017 policy to lower the retirement age for ordinary judges in Poland was unlawful because it gave too much power to the executive, and that a decision to compel female judges to retire five years earlier than men broke EU equality law.
Both Poland and Hungary are also currently subject to article 7 investigations over claims they have undermined the rule of law, a process that could theoretically lead the countries to lose voting rights in the EU’s institutions.