Monday, 21 July 2008

Civil liberties violated by electronic interception

European Court of Human RightsPublished July 11, 2008
Liberty and Others v United Kingdom(Application No 58243/00)
Before L. Garlicki, President and Judges Sir Nicholas Bratza, L. Mijovic, D. Thór Björgvinsson, J. Šikuta, P. Hirvelä and M. PoalelungiSection Registrar L. Early
Judgment July 1, 2008

Complaints by civil liberty organisations about secret interception by the Ministry of Defence of their external communications were not dealt with adequately under the Interception of Communications Act 1985 which had not been formulated with sufficient clarity to give individuals protection.

The European Court of Human Rights held unanimously the right to respect for private and family life and correspondence, as guaranteed by article 8 of the European Convention on Human Rights, had been violated.

The applicants were Liberty, based in London, British Irish Rights Watch and the Irish Council for Civil Liberties, both based in Dublin.

The case concerned their allegations that, between 1990 and 1997, their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, were intercepted by an electronic test facility operated by the British Ministry of Defence.

The applicants lodged complaints with the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal, to challenge the lawfulness of the alleged interception of their communications, but to no avail. The domestic tribunals found, in particular, that there was no contravention of the 1985 Act [partially repealed by the Regulation of Investigatory Powers Act 2000]

The applicants complained that the interception of their communications had breached articles 8 and 13, guaranteeing an effective remedy. The Court held:

I Article 8
The Court recalled that it had previously found that the mere existence of legislation which allowed communications to be monitored secretly had entailed a surveillance threat for all those to whom the legislation might be applied.
In the applicants’ case, the Court therefore found that there had been an interference with their rights as guaranteed by article 8.
Section 3(2) of the 1985 Act allowed the British authorities extremely broad discretion to intercept communications between the United Kingdom and an external receiver, namely the interception of “such external communications as described in the warrant”. Indeed, that discretion was virtually unlimited. Warrants under section 3(2) covered very broad classes of communications.
In their observations to the Court, the Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had their communication intercepted under a section 3(2) warrant. Furthermore, under the 1985 Act, the authorities had wide discretion to decide which communications, out of the total volume of those physically captured, were listened to or read.
Under section 6 of the 1985 Act, the Home Secretary was obliged to make such arrangements as he considered necessary to ensure a safeguard against abuse of power in the selection process for the examination, dissemination and storage of intercepted material.
Although during the relevant period there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, and although the Commissioner appointed under the 1985 Act to oversee its workings had reported each year that the arrangements were satisfactory, the nature of those arrangements had not been contained in legislation or otherwise made available to the public.
The Court noted the UK Government’s concern that the publication of information regarding those arrangements during the period in question might have damaged the efficiency of the intelligence-gathering system or given rise to a security risk.
However, in the United Kingdom, extensive extracts from the Interception of Communications Code of Practice were now in the public domain, which suggested that it was possible for the State to make public certain details about the operation of a scheme of external surveillance without compromising national security.
In conclusion, the Court considered that the domestic law at the relevant time had not indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications.
In particular, it had not set out in a form accessible to the public any indication of the procedure to be followed for examining, sharing, storing and destroying intercepted material.
The Court therefore held, unanimously, that the interference with the applicants’ rights had not been in accordance with the law, in violation of article 8.

II Article 13
The Court did not consider it necessary to examine separately the complaint under article 13.
III Application of article 41
The Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage caused to the applicants, and awarded them €7,500 for costs and expenses.
— Full text: http//www.echr.coe.int
Civil liberties violated by electronic interception
European Court of Human RightsPublished July 11, 2008Liberty and Others v United Kingdom(Application No 58243/00)Before L. Garlicki, President and Judges Sir Nicholas Bratza, L. Mijovic, D. Thór Björgvinsson, J. Šikuta, P. Hirvelä and M. PoalelungiSection Registrar L. EarlyJudgment July 1, 2008
Complaints by civil liberty organisations about secret interception by the Ministry of Defence of their external communications were not dealt with adequately under the Interception of Communications Act 1985 which had not been formulated with sufficient clarity to give individuals protection.
The European Court of Human Rights held unanimously the right to respect for private and family life and correspondence, as guaranteed by article 8 of the European Convention on Human Rights, had been violated.
The applicants were Liberty, based in London, British Irish Rights Watch and the Irish Council for Civil Liberties, both based in Dublin.
The case concerned their allegations that, between 1990 and 1997, their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, were intercepted by an electronic test facility operated by the British Ministry of Defence.
The applicants lodged complaints with the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal, to challenge the lawfulness of the alleged interception of their communications, but to no avail. The domestic tribunals found, in particular, that there was no contravention of the 1985 Act [partially repealed by the Regulation of Investigatory Powers Act 2000]
The applicants complained that the interception of their communications had breached articles 8 and 13, guaranteeing an effective remedy. The Court held:
I Article 8
The Court recalled that it had previously found that the mere existence of legislation which allowed communications to be monitored secretly had entailed a surveillance threat for all those to whom the legislation might be applied.
In the applicants’ case, the Court therefore found that there had been an interference with their rights as guaranteed by article 8.
Section 3(2) of the 1985 Act allowed the British authorities extremely broad discretion to intercept communications between the United Kingdom and an external receiver, namely the interception of “such external communications as described in the warrant”. Indeed, that discretion was virtually unlimited. Warrants under section 3(2) covered very broad classes of communications.
In their observations to the Court, the Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had their communication intercepted under a section 3(2) warrant. Furthermore, under the 1985 Act, the authorities had wide discretion to decide which communications, out of the total volume of those physically captured, were listened to or read.
Under section 6 of the 1985 Act, the Home Secretary was obliged to make such arrangements as he considered necessary to ensure a safeguard against abuse of power in the selection process for the examination, dissemination and storage of intercepted material.
Although during the relevant period there had been internal regulations, manuals and instructions to provide for procedures to protect against abuse of power, and although the Commissioner appointed under the 1985 Act to oversee its workings had reported each year that the arrangements were satisfactory, the nature of those arrangements had not been contained in legislation or otherwise made available to the public.
The Court noted the UK Government’s concern that the publication of information regarding those arrangements during the period in question might have damaged the efficiency of the intelligence-gathering system or given rise to a security risk.
However, in the United Kingdom, extensive extracts from the Interception of Communications Code of Practice were now in the public domain, which suggested that it was possible for the State to make public certain details about the operation of a scheme of external surveillance without compromising national security.
In conclusion, the Court considered that the domestic law at the relevant time had not indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications.
In particular, it had not set out in a form accessible to the public any indication of the procedure to be followed for examining, sharing, storing and destroying intercepted material.
The Court therefore held, unanimously, that the interference with the applicants’ rights had not been in accordance with the law, in violation of article 8.
II Article 13
The Court did not consider it necessary to examine separately the complaint under article 13.
III Application of article 41
The Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage caused to the applicants, and awarded them €7,500 for costs and expenses.

Ocampo's great gamble


The deep drama, for lovers of Sudan, that surrounded Luis Moreno-Ocampo's request that President Omar al-Bashir be indicted for genocide, war crimes and crimes against humanity was briefly interrupted, quite unwittingly, by state television yesterday a few hours after Ocampo spoke. First, we had Vice President Ali Osman Mohamed Taha insisting that the catastrophe in Darfur has nothing to do with the president: it preceded his arrival in power 19 years ago. Then television cut to Bashir, who is accused by Ocampo, chief prosecutor of the International Criminal Court, of personally masterminding an "ongoing" campaign of genocide.
Ocampo's initiative, Bashir said, was irrelevant because Sudan does not recognise the ICC. Nothing new so far; this is a standard (and irrelevant) government line. But then the president broke new ground. The chief prosecutor had been invited to Sudan, he said, and had seen the reality of Darfur for himself. Soon after, television centre cut in with the national anthem and random pictures of Sudanese landscapes.

Far from being a criminal mastermind in full control of the state apparatus, as Ocampo alleges, Bashir looked like someone rather out of the flow of things. The president, of course, got his facts wrong: Ocampo has never been to Sudan, far less to Darfur. Some ICC staff have visited Khartoum, to determine whether the government was organising genuine trials of its own (which it isn't), but none of them has ever been permitted to set foot in Darfur.

Despite the tremendous difficulties that have faced the ICC in seeking to determine responsibility for the horrors of Darfur, Ocampo has not pulled his punches. Last year, the ICC indicted Janjaweed leader Ali Kushayb and Ahmed Haroun, minister of state for humanitarian affairs, for war crimes and crimes against humanity. Outside Sudan government circles, not a single voice was heard questioning the correctness of these charges. In the case of Bashir, however, Ocampo has added the third charge of genocide – which human rights groups gave avoided – and will now have to prove that Bashir personally had the "intent [the italics are mine] to destroy, in whole or in part, a national, ethnic, racial or religious group".

Or, in Ocampo's own words, that the counterinsurgency that followed the rebellion in Darfur in 2003 was an "alibi".

A number of eminent lawyers have already questioned the wisdom of Ocampo's decision to go for broke. William Schabas of the rights centre at the National University of Ireland – a strong supporter of indicting the president, and considered by some to be the leading expert on genocide law – has said the "wise course" would have been to charge crimes against humanity.
"Genocide is reserved for the physical extermination of ethnic groups, and I think most observers would agree that's not what we're seeing here," he is quoted as saying in the Guardian. "This looks like a bit of grandstanding, popular in some quarters – but, if the judges follow the law, they will acquit Bashir."

Others, including Antonio Cassese, first president of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and a passionate supporter of the ICC, have asked why Ocampo chose to issue a public application, rather than a sealed warrant, if he was serious about prosecuting.

It was perhaps necessary to issue public applications for the first indictments last year, to give Khartoum the chance of cooperating with the ICC. But Haroun has neither been handed to the court nor stripped of his humanitarian portfolio. Rather, he has been given added responsibilities: on September 2 2007, he was nominated to the joint chairmanship of a fact-finding a committee on human rights violations and breaches of the transitional constitution in the south and north of Sudan; on November 18 2007, he was appointed to the force monitoring mechanism group of the Darfur peacekeeping force Unamid, established by Bashir himself.

If Bashir did not surrender Haroun, he is certainly not going to surrender himself. And arresting him is going to be difficult – not only because the ICC is not allowed in Sudan, but because Ocampo chose to reveal, in an interview barely a month ago, that he had plans to divert a plane carrying Haroun to the Haj in order to arrest him. The Sudan government learned of the plan, and Haroun cancelled his flight.

In the Pandora's box of uncertainties Ocampo has opened, one thing is beyond doubt: the president of Sudan is going to think twice before boarding any airliner now.

Ocampo has taken a maximalist position that he must now defend. First, to the pre-trial chamber of the ICC and the court of world opinion – most critically, in the Arab-Islamic world and on the African continent. Then, if Bashir is ever arrested, in a court of law. If Bashir is found guilty and convicted, it will be a victory for the ICC (if not necessarily for lasting peace and stability in Sudan).

But if he continues in power, and possibly is re-elected as president in elections next year, it will not only be a snub to the ICC. It will be an advertisment for impunity.

This article was first published on guardian.co.uk on Tuesday July 15 2008. It was last updated at 21:00 on July 15 2008.

Tuesday, 8 July 2008

Obama moves to the 'right'-what's left?


From The Times
July 4, 2008
Barack Obama's policy switches are giving the Left whiplash

The Democratic nominee's policy pivots are causing anguish among liberals. He is no fool
Gerard Baker

Change, it turns out, wasn't all that it was cracked up to be. Having campaigned for the past year as the agent of transformation, the man who would lead an historic shift in America's political direction, Barack Obama is discovering that there is quite a lot he likes about the way things are.
Since securing the Democratic nomination a few weeks ago, the only change coming from the Illinois senator has been in what he seems to stand for. Last month he dropped his opposition to a Bill before Congress that would give telecoms companies immunity from prosecution for carrying out illegal wiretaps on potential terrorist suspects.

He told a cheering crowd of Israel's supporters of his fervent commitment to the security of the Jewish state and added, for good measure, that an “undivided” Jerusalem should be the nation's capital. He said that he likes free trade after all, and that his primary campaign pledge to dismantle the North American Free Trade Agreement was a case of “overheated rhetoric”.

Last week he expressed support for a Supreme Court decision that struck down a ban on handguns and opposition to another that outlawed the death penalty for rape of a child.
This week he promised to expand President Bush's faith-based organisations initiative, a programme that channels funds to religious groups so that they can deliver social welfare services, which the Left regards as a heinous blurring of Church-State separation.

If next week he named Dick Cheney as his running-mate and revealed that he spends his spare time drilling for oil in wildlife habitats, the only surprise would be that it took him so long.

Of course there's nothing much new in what the senator has done. In the lexicon of modern American politics, it's called a pivot. You campaign hard to the party's extreme in the primary election, where the base voters tend to be. Then, when the nomination is secure and there are no more idealists to be humoured, you pivot back to the centre. The only difference is that in Mr Obama's case the pivot is so hard and so fast that the entire Democratic Party is suffering from whiplash.

A whimper of pain has gone up from the base. Those who really believed in the Audacity of Hope now fear a Timidity of Despair. Thousands of Obama supporters have signed a petition on his website begging him to reconsider his position on the illegal wiretaps - a seemingly minor campaign issue, but one that carries great talismanic symbolism for civil libertarians.

Left-wing commentators have raised the usual cry of betrayal. Arianna Huffington, that rare creature, a young conservative who moved sharply left in middle age, dubbed Mr Obama's move not realpolitik, but “realstupidpolitik”.

Conservatives, meanwhile, led by John McCain's Republican campaign, say that the presumptive Democratic nominee's pivot shows that, for all his talk of offering a new kind of politics, he is really just another cynical politician who will say anything to get elected.

I suspect that all this worries Mr Obama not at all. The louder the Left complains, the deeper the satisfaction at Obama headquarters.

Can you remember a time in, say the past 100 years, when the American people have rejected a presidential candidate because they thought that he was insufficiently left-wing? As for conservatives, they should be cheering Mr Obama, not complaining.

The Left had hoped that 2008 would be a watershed election, a long-awaited counterblast to the Reagan Revolution of 1980 and Newt Gingrich's Contract with America in 1994. And if there were ever a time when the country seemed ready to move left this was surely it. Democrats have a 20-percentage-point lead in opinion polls; those same polls show that almost fourfifths of Americans think the country is on the wrong track. The Republican Party today has all the appeal of a communicable disease.

And yet, on the issues, as Mr Obama understands, people are not so radical. On domestic prosecution of the War on Terror, on cultural issues such as guns and the death penalty, on religion's role in public life, perhaps even on trade and free markets, there is little evidence that Americans are ready to abandon their beliefs.

This is another example of how smart the Obama campaign is. They understand that the biggest impediment to an Obama presidency is lingering doubt about whether their man is a straight-down-the-middle American. Despite having a couple of bestsellers to his name, he is still something of a blank page to most voters, one on which his opponents are trying to doodle all kinds of unflattering portraits of an extremist.

So he is spending these dog days of summer reassuring interested but nervous voters that he is as American as the Fourth of July. And he is doing something else besides - looking ahead to his possible presidency.

A clever pragmatist, he knows that if he wins in November, he will face an overwhelmingly Democratic Congress, clamouring to push the country harder to the left. It would, irony of ironies, fall to President Obama to reassure the American people that he can hold those radical enthusiasms in check.

What is more, by abandoning so many left-wing totems, Mr Obama is emphasising that his promise of change is more than just a swing to the left of the old political pendulum; that his promise of post-partisan politics is a genuine one.

But there is a risk in all this repositioning. Mr Obama will almost certainly have to junk a lot more of the campaign baggage he has accumulated over the past year.

Two big plans look especially vulnerable. The first is his tax policy. This would raise the top marginal rate of federal income tax in the US on those earning $250,000 a year to more than 56 per cent. As the conservative Heritage Foundation pointed out in a report this week, that would put the US somewhere between Finland and Sweden in a league table of marginal tax rates. I doubt whether the American people really want to adopt a Scandinavian economic model, especially during a period of stagnation.

The other challenge is Iraq. Mr Obama continues to insist that Iraq is a failed war and says that he will withdraw all US combat troops within 16 months of taking office. But the closer the election gets, the less plausible it will be to refuse to acknowledge the success that US forces have had in Iraq in the past year.

If, as I suspect is highly likely, he drops these two big remaining planks from his platform, it might not just be the Left who will be wondering: what's left?

From The Times
July 4, 2008

Human Rights conference

The Annual Human Rights Law Conference, organised jointly by JUSTICE and Sweet & Maxwell, has become the central forum for analysing changes under the Human Rights Act.

The Human Rights Law Conference 2008
Building on ten years of the Human Rights Act
10th Annual Conference
Tuesday 21 October 2008
Holiday Inn Bloomsbury, London WC1N 1HT

6 CPD hours accredited by SRA / Bar Standards Board Standard fee: £375 + VAT. Special discounted fee for JUSTICE members: £299 + VAT

'The acclaimed annual event ensuring you are fully up to date with the latest developments in human rights law'

The annual JUSTICE/Sweet & Maxwell Human Rights Law Conference brings together the country's leading experts in human rights law: It has become the established forum for the consideration of legislation and case law from a human rights perspective.

Key features:
Keynote address by Lady Justice Arden, Court of Appeal
Review of the year by Nathalie Lieven QC
Plenary session on the first ten years of the Human Rights Act, led by Jack Straw, Secretary of State for Justice
Specialist interactive workshops - led by acknowledged experts
Criminal law, with Alex Bailinand Duncan Penny
The Equality and Human Rights Commission, with Professor Francesca Klugand John Wadham
Immigration and asylum, with Raza Husainand Laura Dubinsky
Human rights and the EU, with Jemima Stratford and Gerry Facenna
Judicial review, with Monica Carss-Frisk QCand Richard Gordon QC
The Counter-terrorism Act 2008, with Ali Bajwaand Professor Clive Walker
Deaths in custody, with Paul Bowen and Alison Macdonald
The right to privacy in an electronic age, with Timothy Pitt-Payne
What delegates said about the 2007 Human Rights Law Conference
'Excellent as always - thank you for a very useful and informative day'
'High quality speakers'
'The sessions by Alex Bailin and Alison Macdonald were superb and did exactly what I wanted from the day'
"An excellent opportunity to engage with others in my field"
'Very useful to see the interfaces of practical and academic issues'
To view full programme including a booking form click here
For further enquiries about this conference: telephone: 020 7393 7859 or email: http://uk.f870.mail.yahoo.com/ym/Compose?To=conferences@sweetandmaxwell.co.uk
The Human Rights Law Conference 2007 was held on Tuesday 30 October 2007.
For more information click here.For details of other upcoming conferences organised by JUSTICE and Sweet & Maxwell click here.

Sweet & Maxwell is the leading publisher in human rights law

Food crisis


It’s been called the silent tsunami1 – the global food crisis that is adding inexorably to
starvation’s daily death toll. With 862 million people in the world already malnourished,2
rocketing food prices are pushing another 100 million people into dire poverty.3
Weakened by want, they too will be at risk of the diseases that prey on the hungry, and
account for the 25,000 deaths4 each day that take place at present from hunger-related
causes.
This is a crisis of man’s making, not nature. Last year, according to the Food and Agriculture
Organisation of the United Nations (FAO), there was enough food grown to meet the
nutritional needs of every person on the planet.5
A ‘perfect storm’ has now arisen, however, in which underlying long-term problems
affecting agricultural production have been exacerbated by other factors, sending global
food prices soaring and causing acute shortages of staple foods in at least 37 countries.6
The FAO has warned that US$30 billion a year is needed to avert further shortages.7 As well
as humanitarian concerns, there are security implications too. With food riots in more than
30 countries,8 the FAO fears the very real prospect of conflict over food resources.
As ever, it is the world’s poor who are being hit the hardest. As much as 70 per cent, and
sometimes more, of their already meagre incomes must now go on feeding themselves and
their families.9 The plight of the very poorest, such as slum-dwellers, the displaced and those
with HIV, is of particular concern.
One major long-term cause of the shortages is that, in return for trade and aid, poor countries
have been forced by wealthy governments, and international financial institutions, to accept
a raft of trade liberalisation measures that have had a ruinous effect on their ability to feed
themselves.
As the international community struggles for a solution to the present crisis, Christian Aid
believes that fundamental changes are needed to the manner in which the international
community seeks to influence agricultural and trade policies in the developing world.
Policies that govern international trade and the lending of money to developing countries,
and underpin pledges of support and assistance, must be radically reviewed. Nothing
less than a pro-poor revolution in agricultural thinking is needed now to prevent such
emergencies recurring with remorseless regularity.
1 Fighting food shortages Hungry for change
Introduction
Causes of the crisis
The reason that a rise in global food prices matters so much
to the world’s poor is that many poor countries do not grow
enough food. Instead they have to buy their supplies from
abroad, and recently prices have more than doubled.
Even in countries that do grow sufficient food for their own
needs, consumers are also facing higher prices once other
factors such as rising transport costs come into play. In the
first three months of 2008 all major food commodities hit their
highest price in real terms for nearly 30 years.10
To understand the reason that the world’s poor have been
left helpless in the face of rising food prices, it is important
to examine the disastrous policy decisions forced on their
governments in recent years.
Imbued with a doctrinaire belief in ‘free trade’ as the
engine of growth, rich donor nations and international financial
institutions have made a number of key interventions.
Trade liberalisation
This has generally been imposed as part of a package of
‘reforms’ demanded in return for aids and loans. Poorer
countries have been forced to remove protective tariffs from
agricultural produce, leaving their markets open to heavily
subsidised food exports from richer nations. This system
undercuts local farmers and agricultural businesses, and
many have gone out of business. Donors have also forced
governments to reduce subsidies on agricultural ‘inputs’, such
as seeds and fertiliser, and lift price controls. Government
agricultural boards that would once have bought stock during
times of surplus to hold food in readiness for times of shortage,
thus stabilising prices, have been closed down. In Malawi, for
instance, any national grain surplus would once have been
bought from farmers and then used as a reserve during poor
harvests. More recently, however, the surplus has been sold
for cash (with the assumption that it would always be possible
to import grain during a crisis).11
State banks that would once have agreed loans for
agricultural production have also been closed.
The Economic Partnership Agreements (EPAs) that the
European Commission has endeavoured to push on African,
Pacific and Caribbean countries will only exacerbate matters.
In countries that have signed, these agreements will open up
free trade still further, depriving governments of the necessary
policy tools to protect and harness local productivity.
Under-investment in food production
Twenty years ago, some 20 per cent of foreign aid spent by
rich countries went to help agriculture in the developing
world. By 2006 that figure had fallen to less than 3 per
cent.12 Health and education projects took precedence.
Spending by African governments, meanwhile, is massively
tilted towards urban areas. Five years ago African heads of
government committed to allocating at least 10 per cent of their
budget to agriculture and rural development by 2008. This year
the African Union said data from 24 countries showed that just
six had reached that target. Average rural investment among
the 24 was 6.6 per cent.13 With food prices low for the past
30 years, there was an assumption that at times of shortage,
food could always be purchased elsewhere. While this remains
true – there is still enough food in the world to feed everyone –
it does not take into account the volatility of world food prices,
especially in times of shortage or as a result of hoarding and
speculation. Poor countries dependent on imports of staple
foods now find themselves without sufficient foreign exchange
to pay for these imports, and are again forced to beg for special
loans from the International Monetary Fund (IMF).
Cash crops
With the opening up of markets, donors and corporations have
promoted cash crops (such as flowers, tobacco or biofuels) for
export. The most productive land is then used to grow these
crops, squeezing out domestic food producers. Although the
intention has been to raise the incomes of marginal producers,
such crops have reduced agricultural diversity, and left countries
reliant on importing staples from abroad. Investing equally in
staple crop production would have reduced the risks of food
shortages and enhanced opportunities for development.
Small-scale subsistence farmers – including the more
vulnerable, especially women and members of marginalised
groups such as ethnic minorities – have been worst hit by the
effects of such policies. In the most extreme cases they have
been driven off their land and denied access to water and other
resources. Instead of protecting these vulnerable people, and
pursuing pro-poor policies to tackle exclusion, inequality and
hunger, governments have focused increasingly on ‘export-led
growth’.
As a result of this long-term under-investment in food
production, domestic farming sectors have been weakened,
and countries left over-reliant on expensive food imports.
Following the damage done to the agricultural sector, many
2 Fighting food shortages Causes of the crisis
US$30 billion a year is needed to avert future
shortages and potential conflict over supplies.
farmers are in no position to respond to growing shortages
when the supply of subsidised food stuffs from richer countries
stops.
In poorer countries, especially in sub-Saharan Africa,
which already struggled to produce enough food, agricultural
production has stagnated or fallen. Some sub-Saharan countries
have moved from being net food exporters to importers as a
result of trade liberalisation.
Roughly 65 per cent of the population of sub-Saharan
countries relies on subsistence farming,14 with the typical
farmer a woman with no fertiliser, no high-yield seeds, no
irrigation and no medication for her livestock.15 Such farmers
face real difficulties, but with the right support they can increase
production and sales.
Even middle-income countries such as Guatemala and
Egypt have gone from being food exporters to net importers
over the past 10-15 years.
The pattern has been followed elsewhere. In Sri Lanka,
food imports doubled between 1985 and 1998 following the
liberalisation of agriculture, while agricultural production fell,
leading to massive job losses in rural areas.16
In Jamaica, imports of vegetable oils between 1995 and
2000 were more than double the imports between 1990 and
1994, and domestic production fell by 68 per cent.17
When trade was liberalised in Haiti in the 1990s after
pressure from the World Bank and the IMF, rice production
slumped, precipitating a huge influx of heavily subsidised rice
from the United States.18
In Ghana, where tomato cultivation was widespread, World
Bank and IMF policy conditions led to the import of heavily
subsidised processed tomato preserves from the EU increasing
by 628 per cent between 1993 and 2003. Two local canning
factories were forced to close and, according to the Interchurch
Organisation for Development Cooperation, tomato growers
throughout the country ‘continue to face extreme hardship’.
Why now?
There are several key factors precipitating the current crisis.
Price of oil
The price of oil has more than doubled over the past year,
pushing up transport costs as well as the costs of fertiliser,
seeds, pump irrigation, food processing and other agricultural
necessities. Josette Sheeran, executive director of the World
Food Programme (WFP), said recently: ‘The world’s misery
index is rising.’ She had just returned from a trip to Kenya’s
Rift Valley where, with agriculture already seriously disrupted
by violence around the elections in December 2007, the cost
of fertiliser had climbed 135 per cent in a matter of months.19
That increase, along with rising prices for seed, and continued
instability, led farmers to plant only one third of the crops they
planted last year. Elsewhere in the world, higher prices have
simply meant less farming. ‘Farmers have no access to credit,
so when prices go up, they can’t afford to plant,’ said Ms
Sheeran.
Climate change
In recent years droughts and other extreme weather events
have hit some of the world’s main grain-exporting countries hard,
as noted by the Intergovernmental Panel on Climate Change in
its Fourth Assessment Report late in 2007.20 In particular, poor
harvests in Europe and Australia in 2006 and 2007 have led
to low levels of global stocks, especially of wheat and maize.
In all five of the countries in Latin America and the Caribbean
currently listed as in crisis and requiring external assistance –
Bolivia, Ecuador, Nicaragua, Haiti and the Dominican Republic
– flooding is one of the problems to have hit farmers.21 And in
Central America and the Caribbean, Bangladesh and Burma,
hurricanes and cyclones have destroyed entire harvests in a
single day. Across sub-Saharan Africa, more erratic rainfall has
led to drought and frequent crop failure. Scientists say that the
evidence that the climate is changing is ‘unequivocal’, with
greenhouse gas emissions caused by humans more than 90
per cent likely to be the main cause.22
Biofuels
US demand for ethanol as fuel, which has seen production soar
from 1,300 million gallons in 1997 to an estimated 6,500 million
gallons in 2007,23 has led to the diverting of maize from food to
biofuel throughout the Americas. Today ethanol is blended into
more than 50 per cent of the petrol sold in the US.24 On the
eve of the FAO summit in June, US Secretary of Agriculture Ed
Schafer defended the use of ethanol, saying biofuel production
had only contributed ‘2-3 per cent’ to food price rises.25 In May,
however, John Lipsky, first deputy managing director of the
IMF, said: ‘…biofuel policies in some advanced economies are
spilling over to the price of key food items, particularly corn and
soya bean. IMF estimates suggest that increased demand for
biofuels accounts for 70 per cent of the increase in corn prices,
3 Fighting food shortages Why now?
‘The world’s misery index is rising.’
Josette Sheeran, executive director of the World Food Programme
and 40 per cent of the increase in soya bean prices.’26
America’s growing demand for biofuel is having a
particularly devastating impact on Latin America and the
Caribbean. These two areas have relied heavily in recent years
on imports of maize from the US because of trade liberalisation.
The diversion of traditional crops to biofuel production also
gives rise to aggressive expansion of crops such as sugar and
African oil palm. In some countries this has led to subsistence
food producers being violently evicted from their land.27 Some
biofuels (for example jatropha) may have a role to play as part
of a sustainable, mixed-crop approach, helping to meet local
energy needs and protecting soil quality. However, commercial
biofuel plantations can push small-scale farmers off their land
and monopolise water supplies, squeezing out domestic food
production.
As a means of combating climate change, recent science
suggests that ethanol from maize does not actually produce
very significant carbon savings. Rich countries need to reduce
their use of all carbon-emitting fuels, including biofuels. The
overriding priority for the climate is to make deep and swift cuts
in emissions.
Market trends
Price volatility
From rice to soya beans, prices today are very volatile. The
factors accounting for this include the weak dollar, fluctuating
exchange rates and commodity market speculation linked to
future food prices.
Speculation
Commodity prices have been drifting upwards for the past sixand-
a-half years, a process that has recently accelerated. Hedge
funds moving in on this form of commodity trading recognised
the ‘extraordinary profitability’ of agricultural produce if food
shortages became prevalent.28 Michael Masters, a hedge fund
expert, told a US senate committee in May 2008: ‘You have
asked the question “Are institutional investors contributing to
food and energy price inflation?” And my unequivocal answer
is yes… What we are experiencing is a demand shock coming
from a new participant in the commodities futures market:
institutional investors.’ Masters said these included corporate
and government pension funds, sovereign wealth funds and
university endowments. Assets allocated to commodity index
trading strategies, he said, ‘have risen from $13 billion at the
end of 2003 to $260 billion as of March this year’.29 The prices
of the 25 commodities he included in his survey, including
nine agricultural products such as wheat, corn and soya beans,
as well as cattle and pigs, had risen by an average of 183 per
cent over the five years in question. So popular has this form
of trading become that several banks, including Barclays and
Deutsche Bank, have launched agricultural commodity index
funds. Part of the reason for this is excessive liquidity – too
much money is chasing a limited supply of commodity-based
assets. The result has been an increase in market values, which
has fed directly into price inflation.
Protectionism
Some major food-producing countries have begun to limit
exports during the present crisis to protect their own stocks,
cutting supply and raising prices still further.
Growing demand for meat
There has been increased demand for meat among the
emerging middle classes in some developing countries, largely
fuelled by increased prosperity and a change of eating habits.
Livestock requires feed. Raising cattle also utilises large areas
that could otherwise be used for crop production.
Population and urbanisation
Population growth is partly to blame for the inability of poor
countries to feed themselves. Africa is the worst hit by the
present shortages, with 21 countries at present in crisis and
requiring external assistance.30 The continent’s population
almost doubled between 1975 and 2000 to 794 million, and is
expected to show a similar increase by 2030.31
In Asia, where ten countries are in crisis and need help,32
the population increased by 1.2 billion between 1975 and 2000,
and is expected to do so again by 2030.33
And in Latin America and the Caribbean, where five
countries are in crisis and need outside intervention34, the
population grew by 187 million to 519 million between
1975-2000, and is expected to rise by a further 204 million35 by
2030.
But it isn’t necessarily the countries which have experienced
rapid population growth that are hungry now. China, which
accounts for a significant proportion of Asia’s population
growth, is relatively food-secure. With the appropriate
supportive framework, rapid population growth can generate
‘Biofuel policies in some advanced economies are
spilling over to the price of key food items, particularly
corn and soya beans.’
John Lipsky, first deputy managing director of the IMF
4 Fighting food shortages Market trends
It’s been called the silent tsunami1 – the global food crisis that is adding inexorably to
starvation’s daily death toll. With 862 million people in the world already malnourished,2
rocketing food prices are pushing another 100 million people into dire poverty.3
Weakened by want, they too will be at risk of the diseases that prey on the hungry, and
account for the 25,000 deaths4 each day that take place at present from hunger-related
causes.
This is a crisis of man’s making, not nature. Last year, according to the Food and Agriculture
Organisation of the United Nations (FAO), there was enough food grown to meet the
nutritional needs of every person on the planet.5
A ‘perfect storm’ has now arisen, however, in which underlying long-term problems
affecting agricultural production have been exacerbated by other factors, sending global
food prices soaring and causing acute shortages of staple foods in at least 37 countries.6
The FAO has warned that US$30 billion a year is needed to avert further shortages.7 As well
as humanitarian concerns, there are security implications too. With food riots in more than
30 countries,8 the FAO fears the very real prospect of conflict over food resources.
As ever, it is the world’s poor who are being hit the hardest. As much as 70 per cent, and
sometimes more, of their already meagre incomes must now go on feeding themselves and
their families.9 The plight of the very poorest, such as slum-dwellers, the displaced and those
with HIV, is of particular concern.
One major long-term cause of the shortages is that, in return for trade and aid, poor countries
have been forced by wealthy governments, and international financial institutions, to accept
a raft of trade liberalisation measures that have had a ruinous effect on their ability to feed
themselves.
As the international community struggles for a solution to the present crisis, Christian Aid
believes that fundamental changes are needed to the manner in which the international
community seeks to influence agricultural and trade policies in the developing world.
Policies that govern international trade and the lending of money to developing countries,
and underpin pledges of support and assistance, must be radically reviewed. Nothing
less than a pro-poor revolution in agricultural thinking is needed now to prevent such
emergencies recurring with remorseless regularity.
1 Fighting food shortages Hungry for change
Introduction
Causes of the crisis
The reason that a rise in global food prices matters so much
to the world’s poor is that many poor countries do not grow
enough food. Instead they have to buy their supplies from
abroad, and recently prices have more than doubled.
Even in countries that do grow sufficient food for their own
needs, consumers are also facing higher prices once other
factors such as rising transport costs come into play. In the
first three months of 2008 all major food commodities hit their
highest price in real terms for nearly 30 years.10
To understand the reason that the world’s poor have been
left helpless in the face of rising food prices, it is important
to examine the disastrous policy decisions forced on their
governments in recent years.
Imbued with a doctrinaire belief in ‘free trade’ as the
engine of growth, rich donor nations and international financial
institutions have made a number of key interventions.
Trade liberalisation
This has generally been imposed as part of a package of
‘reforms’ demanded in return for aids and loans. Poorer
countries have been forced to remove protective tariffs from
agricultural produce, leaving their markets open to heavily
subsidised food exports from richer nations. This system
undercuts local farmers and agricultural businesses, and
many have gone out of business. Donors have also forced
governments to reduce subsidies on agricultural ‘inputs’, such
as seeds and fertiliser, and lift price controls. Government
agricultural boards that would once have bought stock during
times of surplus to hold food in readiness for times of shortage,
thus stabilising prices, have been closed down. In Malawi, for
instance, any national grain surplus would once have been
bought from farmers and then used as a reserve during poor
harvests. More recently, however, the surplus has been sold
for cash (with the assumption that it would always be possible
to import grain during a crisis).11
State banks that would once have agreed loans for
agricultural production have also been closed.
The Economic Partnership Agreements (EPAs) that the
European Commission has endeavoured to push on African,
Pacific and Caribbean countries will only exacerbate matters.
In countries that have signed, these agreements will open up
free trade still further, depriving governments of the necessary
policy tools to protect and harness local productivity.
Under-investment in food production
Twenty years ago, some 20 per cent of foreign aid spent by
rich countries went to help agriculture in the developing
world. By 2006 that figure had fallen to less than 3 per
cent.12 Health and education projects took precedence.
Spending by African governments, meanwhile, is massively
tilted towards urban areas. Five years ago African heads of
government committed to allocating at least 10 per cent of their
budget to agriculture and rural development by 2008. This year
the African Union said data from 24 countries showed that just
six had reached that target. Average rural investment among
the 24 was 6.6 per cent.13 With food prices low for the past
30 years, there was an assumption that at times of shortage,
food could always be purchased elsewhere. While this remains
true – there is still enough food in the world to feed everyone –
it does not take into account the volatility of world food prices,
especially in times of shortage or as a result of hoarding and
speculation. Poor countries dependent on imports of staple
foods now find themselves without sufficient foreign exchange
to pay for these imports, and are again forced to beg for special
loans from the International Monetary Fund (IMF).
Cash crops
With the opening up of markets, donors and corporations have
promoted cash crops (such as flowers, tobacco or biofuels) for
export. The most productive land is then used to grow these
crops, squeezing out domestic food producers. Although the
intention has been to raise the incomes of marginal producers,
such crops have reduced agricultural diversity, and left countries
reliant on importing staples from abroad. Investing equally in
staple crop production would have reduced the risks of food
shortages and enhanced opportunities for development.
Small-scale subsistence farmers – including the more
vulnerable, especially women and members of marginalised
groups such as ethnic minorities – have been worst hit by the
effects of such policies. In the most extreme cases they have
been driven off their land and denied access to water and other
resources. Instead of protecting these vulnerable people, and
pursuing pro-poor policies to tackle exclusion, inequality and
hunger, governments have focused increasingly on ‘export-led
growth’.
As a result of this long-term under-investment in food
production, domestic farming sectors have been weakened,
and countries left over-reliant on expensive food imports.
Following the damage done to the agricultural sector, many
2 Fighting food shortages Causes of the crisis
US$30 billion a year is needed to avert future
shortages and potential conflict over supplies.
farmers are in no position to respond to growing shortages
when the supply of subsidised food stuffs from richer countries
stops.
In poorer countries, especially in sub-Saharan Africa,
which already struggled to produce enough food, agricultural
production has stagnated or fallen. Some sub-Saharan countries
have moved from being net food exporters to importers as a
result of trade liberalisation.
Roughly 65 per cent of the population of sub-Saharan
countries relies on subsistence farming,14 with the typical
farmer a woman with no fertiliser, no high-yield seeds, no
irrigation and no medication for her livestock.15 Such farmers
face real difficulties, but with the right support they can increase
production and sales.
Even middle-income countries such as Guatemala and
Egypt have gone from being food exporters to net importers
over the past 10-15 years.
The pattern has been followed elsewhere. In Sri Lanka,
food imports doubled between 1985 and 1998 following the
liberalisation of agriculture, while agricultural production fell,
leading to massive job losses in rural areas.16
In Jamaica, imports of vegetable oils between 1995 and
2000 were more than double the imports between 1990 and
1994, and domestic production fell by 68 per cent.17
When trade was liberalised in Haiti in the 1990s after
pressure from the World Bank and the IMF, rice production
slumped, precipitating a huge influx of heavily subsidised rice
from the United States.18
In Ghana, where tomato cultivation was widespread, World
Bank and IMF policy conditions led to the import of heavily
subsidised processed tomato preserves from the EU increasing
by 628 per cent between 1993 and 2003. Two local canning
factories were forced to close and, according to the Interchurch
Organisation for Development Cooperation, tomato growers
throughout the country ‘continue to face extreme hardship’.
Why now?
There are several key factors precipitating the current crisis.
Price of oil
The price of oil has more than doubled over the past year,
pushing up transport costs as well as the costs of fertiliser,
seeds, pump irrigation, food processing and other agricultural
necessities. Josette Sheeran, executive director of the World
Food Programme (WFP), said recently: ‘The world’s misery
index is rising.’ She had just returned from a trip to Kenya’s
Rift Valley where, with agriculture already seriously disrupted
by violence around the elections in December 2007, the cost
of fertiliser had climbed 135 per cent in a matter of months.19
That increase, along with rising prices for seed, and continued
instability, led farmers to plant only one third of the crops they
planted last year. Elsewhere in the world, higher prices have
simply meant less farming. ‘Farmers have no access to credit,
so when prices go up, they can’t afford to plant,’ said Ms
Sheeran.
Climate change
In recent years droughts and other extreme weather events
have hit some of the world’s main grain-exporting countries hard,
as noted by the Intergovernmental Panel on Climate Change in
its Fourth Assessment Report late in 2007.20 In particular, poor
harvests in Europe and Australia in 2006 and 2007 have led
to low levels of global stocks, especially of wheat and maize.
In all five of the countries in Latin America and the Caribbean
currently listed as in crisis and requiring external assistance –
Bolivia, Ecuador, Nicaragua, Haiti and the Dominican Republic
– flooding is one of the problems to have hit farmers.21 And in
Central America and the Caribbean, Bangladesh and Burma,
hurricanes and cyclones have destroyed entire harvests in a
single day. Across sub-Saharan Africa, more erratic rainfall has
led to drought and frequent crop failure. Scientists say that the
evidence that the climate is changing is ‘unequivocal’, with
greenhouse gas emissions caused by humans more than 90
per cent likely to be the main cause.22
Biofuels
US demand for ethanol as fuel, which has seen production soar
from 1,300 million gallons in 1997 to an estimated 6,500 million
gallons in 2007,23 has led to the diverting of maize from food to
biofuel throughout the Americas. Today ethanol is blended into
more than 50 per cent of the petrol sold in the US.24 On the
eve of the FAO summit in June, US Secretary of Agriculture Ed
Schafer defended the use of ethanol, saying biofuel production
had only contributed ‘2-3 per cent’ to food price rises.25 In May,
however, John Lipsky, first deputy managing director of the
IMF, said: ‘…biofuel policies in some advanced economies are
spilling over to the price of key food items, particularly corn and
soya bean. IMF estimates suggest that increased demand for
biofuels accounts for 70 per cent of the increase in corn prices,
3 Fighting food shortages Why now?
‘The world’s misery index is rising.’
Josette Sheeran, executive director of the World Food Programme
and 40 per cent of the increase in soya bean prices.’26
America’s growing demand for biofuel is having a
particularly devastating impact on Latin America and the
Caribbean. These two areas have relied heavily in recent years
on imports of maize from the US because of trade liberalisation.
The diversion of traditional crops to biofuel production also
gives rise to aggressive expansion of crops such as sugar and
African oil palm. In some countries this has led to subsistence
food producers being violently evicted from their land.27 Some
biofuels (for example jatropha) may have a role to play as part
of a sustainable, mixed-crop approach, helping to meet local
energy needs and protecting soil quality. However, commercial
biofuel plantations can push small-scale farmers off their land
and monopolise water supplies, squeezing out domestic food
production.
As a means of combating climate change, recent science
suggests that ethanol from maize does not actually produce
very significant carbon savings. Rich countries need to reduce
their use of all carbon-emitting fuels, including biofuels. The
overriding priority for the climate is to make deep and swift cuts
in emissions.
Market trends
Price volatility
From rice to soya beans, prices today are very volatile. The
factors accounting for this include the weak dollar, fluctuating
exchange rates and commodity market speculation linked to
future food prices.
Speculation
Commodity prices have been drifting upwards for the past sixand-
a-half years, a process that has recently accelerated. Hedge
funds moving in on this form of commodity trading recognised
the ‘extraordinary profitability’ of agricultural produce if food
shortages became prevalent.28 Michael Masters, a hedge fund
expert, told a US senate committee in May 2008: ‘You have
asked the question “Are institutional investors contributing to
food and energy price inflation?” And my unequivocal answer
is yes… What we are experiencing is a demand shock coming
from a new participant in the commodities futures market:
institutional investors.’ Masters said these included corporate
and government pension funds, sovereign wealth funds and
university endowments. Assets allocated to commodity index
trading strategies, he said, ‘have risen from $13 billion at the
end of 2003 to $260 billion as of March this year’.29 The prices
of the 25 commodities he included in his survey, including
nine agricultural products such as wheat, corn and soya beans,
as well as cattle and pigs, had risen by an average of 183 per
cent over the five years in question. So popular has this form
of trading become that several banks, including Barclays and
Deutsche Bank, have launched agricultural commodity index
funds. Part of the reason for this is excessive liquidity – too
much money is chasing a limited supply of commodity-based
assets. The result has been an increase in market values, which
has fed directly into price inflation.
Protectionism
Some major food-producing countries have begun to limit
exports during the present crisis to protect their own stocks,
cutting supply and raising prices still further.
Growing demand for meat
There has been increased demand for meat among the
emerging middle classes in some developing countries, largely
fuelled by increased prosperity and a change of eating habits.
Livestock requires feed. Raising cattle also utilises large areas
that could otherwise be used for crop production.
Population and urbanisation
Population growth is partly to blame for the inability of poor
countries to feed themselves. Africa is the worst hit by the
present shortages, with 21 countries at present in crisis and
requiring external assistance.30 The continent’s population
almost doubled between 1975 and 2000 to 794 million, and is
expected to show a similar increase by 2030.31
In Asia, where ten countries are in crisis and need help,32
the population increased by 1.2 billion between 1975 and 2000,
and is expected to do so again by 2030.33
And in Latin America and the Caribbean, where five
countries are in crisis and need outside intervention34, the
population grew by 187 million to 519 million between
1975-2000, and is expected to rise by a further 204 million35 by
2030.
But it isn’t necessarily the countries which have experienced
rapid population growth that are hungry now. China, which
accounts for a significant proportion of Asia’s population
growth, is relatively food-secure.
‘Biofuel policies in some advanced economies are
spilling over to the price of key food items, particularly
corn and soya beans.’
John Lipsky, first deputy managing director of the IMF
4 Fighting food shortages Market

Witness anonymity: a slippery slope


Malcolm Swift, QC
The decision this week to halt a murder trial at the Old Bailey follows a ruling on June 19 by the House of Lords that granting anonymity to witnesses threatened with intimidation could render a trial unfair. An accused, they said, had a right to confront his accuser. The ruling came in the case of Iain Davis, who had been convicted in 2004 of a double murder of two men at a New Year's Eve party in Hackney, East London. He can now seek to have his conviction quashed. Seven witnesses in the case had claimed to be in fear of their lives if it became known that they gave evidence against Davis. In this piece, Davis's barrister argues that the law lords were right.
"The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility may be in issue."

So said in 1986 a judge who would go on to become head of the New Zealand Court of Appeal. After those prophetic words were uttered, our courts began to descend that slippery slope. Witness anonymity became one of the means employed to satisfy the driving need to convict those accused of crime. The end justified the means.

It was to expected that the police would react to the law lords' decision in the Iain Davis case last week with scaremongering and calls for emergency legislation. It is also to be expected that this Government will, as always, pass some knee-jerk measures designed (if that is the right word) to reverse the effect of the ruling.
It is surely time to step back and reflect in a mature and careful way on whether anything can or should be done to alter the common law in so fundamental a manner as to deny the accused knowledge of the identity of his or her accuser.

Throughout history, attempts have been made to deprive the accused of this right, even though it is fundamental and a prime protection against unfairness. From time to time, judicial systems have succumbed to the temptation to curtail or to extinguish it. The temptation is usually borne of expedience and driven by a desire to assert some perceived need to protect the accuser. But the accuser is not on trial.

As soon as an accused is denied knowledge of the identity of his accuser, he is effectively handed the almost impossible burden of proving that a witness does not deserve the protection of anonymity but without the knowledge required in order to do so.

Witness anonymity invites perjury and insulates the perjurer from detection. The defence cannot test the witness’s credibility and reliability through investigation or effective cross-examination. The accused is denied access to the reputation of the accuser in the community; oblique motives and bias can never be ascertained; prior inconsistent statements to third parties cannot be discovered: prior relationships with the victim or with the accused remain hidden.

The law lords' ruling does not change the law in any way. It merely re-asserts a long-standing common law right which had been gradually undermined in recent years by claims for anonymity for witnesses who were (sometimes understandably) apprehensive about giving evidence. Many said that they feared intimidation or retaliation. The fear expressed usually assumed the guilt of the accused. The genuineness of those fears could never of course be tested.
The public may not appreciate that police applications for witness anonymity were conducted in conditions of secrecy. Prosecutors and policemen were able to see judges privately in the absence of defence representatives, to persuade Judges to grant anonymity on the basis of information that could never be verified or tested and to withhold any information from the defence that might tend to identify the witness.

In practice that meant that the accused would have little material with which to test the veracity of the witness and none with which to test credibility or motive to lie.

Contrary to the suggestion of the Assistant Commissioner of the Metropolitan Police, the ruling does not change in any way the use of special measures to protect witnesses. Witnesses may still have pseudonyms, screens, TV links, voice distortion and so on. The ruling simply means that the defendant must know the identity of his accuser in order to challenge the evidence effectively. That is common sense, not merely the common law.

The suggestion that inroads into the common law should be made because of a perceived increase in gun crime demonstrates the fallacy of the argument. Fundamental principles should never be sacrificed to expediency. The incidence of gun crime in the UK may be thought to pale beside past terrorism in Northern Ireland and in South Africa, genocide in Rwanda and in the former Yugoslavia and organised gang crime in the USA or in New Zealand. In none of those jurisdictions has it been thought necessary to deprive the accused of knowledge of the identity if his accuser. Instead, the witnesses are protected either by effective witness protection programmes or by controlled statutory exceptions to the common law right or both.

There are perfectly adequate and proper methods of protecting witnesses without hiding their identities. Those methods include setting up formal witness protection schemes, informal methods of providing protective surveillance and accommodation to witnesses, relocating witnesses and/or providing them with a new identity after the trial (some of these methods are already employed in the UK), and delaying disclosure of the identity of witnesses until the latest possible stage in proceedings where that is consistent with the rights of the accused.

Legislation that does not preserve the defendant’s confrontation rights, particularly his right to effective cross-examination, will be incompatible with Article 6 of the European Convention of Human Rights. Legislation may follow the New Zealand model, which attempts to define the exceptional circumstances in which anonymity may be permitted: (i) there must be no reason to believe that the witness has a motive or tendency to be untruthful, (ii) it must be possible to test credibility properly, and (iii) the accused must not be deprived of a fair trial (all of which in reality and in practice preserves the common law rule).

Another candidate is the model adopted by the International Criminal Tribunals and the International Criminal Court, which permit witness anonymity in the preparatory stages of the trial process but insist on disclosure of identity in sufficient time before trial to allow adequate preparation for cross-examination.

Let us hope that the Government does not legislate in haste only for society to repent at leisure.
The author acted for Iain Davis, the appellant in the House of Lords case last week

As we suffer, City speculators are moving in for the kill


Two years ago there was a music festival at Knebworth that was very different. At 'Hedgestock' 4,000 hedge fund managers and investors paid £500 a ticket for a weekend of rock'n'roll, champagne, laser clay pigeon shooting and seminars on arcane aspects of how to make even more millions. Some wore beads as part send-up, part veneration of Woodstock, 1960s hippies and 'hedgies' bound by the bond of anti-establishment love of liberty, as if the aims of getting stoned and making a fortune gambling in unregulated financial markets were curiously united. The Who played out the event, with proceeds going to the Teenager Cancer Trust.

'Hedgies' were the cool face of capitalism. This summer, a rerun of Hedgestock would be pilloried, and rightly so. Oil prices are spiralling higher and the plight of stricken banks, property companies and housebuilders is made more acute because of hedge funds' aggressive speculation. Last week there were fresh fears that the western financial order simply could not cope and global stock markets reeled. Hedge funds are emerging as one of the triggers of a first order crisis.

The scale of speculation is eye-poppingly huge. Since Hedgestock, hedge funds have become ever more important. The worldwide industry manages £1 trillion of assets and a leading hedge fund manager told me they are only a third into their growth cycle - another £2 trillion is to come. One cynic mocked that the only unifying definition of hedge funds is that they are vehicles to enrich the people risking others' money; with a 2 per cent management fee and a 20 per cent share in any investment profits, they certainly do that.

Hedge funds are rich enough to attract any of the great names in investment management and investment banking. New York has more than 120 hedge funds managing more than $1bn each, with London running it a close second with over 80, mainly based in Mayfair, Knightsbridge and Belgravia. Some 200 hedge fund partners in London make £20m a year, but for the partners who do well, annual earnings can be many times higher. In 2006 Nathaniel Rothschild made $240m from his Atticus Capital, while in 2007 George Soros's Quantum fund returned 32 per cent and netted him $2.9bn.

Their pitch to investors - from an insurance company such as Norwich Union, to company pension funds, sheiks, Russian oligarchs, the British aristocracy and anybody with sufficient cash - is simple. They set out to make a return of 30 per cent a year any way they can in no-holds-barred, hyper-aggressive financial gambling. They take positions in any share, financial instrument or commodity you can name. When they were small you could argue they were a justifiable irritant, challenging and punishing governments and companies alike, who had got themselves into unsustainable financial positions. But now they are becoming the mainstream, degrading the operation of capitalism, turning it into a casino, reducing people's lives to the chips.
It is fashionable among commentators to regard the Labour government as the epitome of uselessness, but occasionally there are signs of life. HBOS, Britain's largest mortgage lender, and Bradford & Bingley have come under organised attack from hedge funds as they try to raise money from their shareholders. Their shares were being sold to force down the price before being bought back - 'short-selling'. Chancellor Alistair Darling and the Financial Services Authority announced that sellers should disclose their identity. The results are revelatory. The hedge funds weren't even buying back the shares, they were 'borrowing' them from pension funds to manipulate the market. Ten per cent of the shares in Bradford & Bingley were in play, with HBOS only marginally less under siege. The Chancellor flushed the speculative princes of the hedge fund world - Harbinger, Tiger Global Management, GLG - into the open.

A spotlight has been shone on some very murky corners of the financial markets. There practices occur that challenge the very conception of what we consider a company to be, and the accompanying obligations of ownership. A multi-billion pound business has emerged in which shareholders lend their shares to hedge funds to be played with. For a tiny fee, a hedge fund will arrange to borrow shares from a great insurance company or pension fund which it proceeds to sell. Share-loans are believed to exceed a stunning £7.5 trillion.

What then happens is the opposite of a bubble, a kind of financial black hole. The hedge funds sell the shares simultaneously, and the downward movement becomes self-reinforcing, with companies raising money during a rights issue particularly vulnerable. This is why the government forced disclosure. The hedgies reacted as if they were in Stalin's Russia; their freedom to kill a company stone dead was being challenged. Let's not mince words, that is the aim, and it gets ugly and personal. A senior official told me that in one case some hedge funds had allegedly warned the banks underwriting one rights issue to abandon it or face speculative attack - mafia practice.

Neither are companies raising money the only target. A visit to the Data Explorers website (dataexplorers.com) gives you some idea of the extent of the nightmare. For example 10 per cent of the shares in housebuilder Barratts have been borrowed to be sold. Chief executive Mark Clare told The Observer he thought his company was the victim of a sellers' conspiracy. So it was, and is.

Hedge funds say they are only exposing real frailties, and that if the shares are undervalued, long-term investors will buy them. But financial markets do not work like that. They create bubbles and black holes of excess optimism and pessimism, which hedge funds set out to exaggerate. The impact on companies is devastating. British firms no longer have long-term owners who share their long-term mission and purpose. Instead their owners have become their enemies; as Clare says, hardly motivating.

American Senators Joseph Lieberman and Susan Collins have been holding hearings to investigate why the oil price is so high. One witness, hedge fund manager Michael Masters, argued that there were two identifiable sources of new demand over the past five years - from China and from speculation - both around the same scale. Without the speculation the oil price would still be below $100 a barrel. The senators are proposing that hedge funds, along with other speculators, should be prohibited from oil speculation - and they mention London by name. They said it is hedge funds in London's unregulated oil futures markets that are making middle America pay twice as much for its gasoline.

That is probably over the top, but there is a truth there. The price of petrol and the toughness of the credit crunch are being increased by the operation of hedge funds, as is the weakening of your job prospects as companies are forced into ever harsher behaviour. It doesn't have to be like this; the necessary changes in the markets and corporate ownership are fairly easy to make. They would make it harder for some very rich people to get even richer, but in the US and mainland Europe politicians are ready to contemplate that, partly to defend the legitimacy of capitalism itself. Only in Britain is nothing said, a sign, I think, not of our economic maturity, but political emasculation.

About this article
This article appeared in the Observer on Sunday June 29 2008 on p27 of the Comment section. It was last updated at 00:06 on June 29 2008.

Bush is trying to impose a classic colonial status on Iraq


Whatever the Iraq war was about, we were assured, it definitely wasn't about oil. Tony Blair called the idea a "conspiracy theory". It was about democracy and dictatorship, weapons of mass destruction and human rights, anything but oil. Donald Rumsfeld, then US defence secretary, insisted the conflict had "literally nothing to do with oil". When Alan Greenspan, former chairman of the US Federal Reserve, wrote last autumn, "Everyone knows: the Iraq war is largely about oil," he was treated as if he were some senile old gent who'd embarrassingly lost the plot.

That argument is going to be a good deal harder to make from next week, when four of the western world's largest oil corporations are due to sign contracts for the renewed exploitation of Iraq's vast reserves. Initially, these are to be two-year deals to boost production in Iraq's largest oilfields. But not only did the four energy giants - BP, Exxon Mobil, Shell and Total - write their own contracts with the Iraqi government, an unheard-of practice: they have also reportedly secured rights of first refusal on the far more lucrative 30-year production contracts expected once a new US-sponsored oil law is passed, allowing a wholesale western takeover. Big Oil is back with a vengeance.

It's a similar story when it comes to the future of the US occupation itself. The last thing on anyone's mind, we were told when the tanks rolled in, was permanent US control, let alone the recolonisation of Iraq. This was about the Iraqis finally getting a chance to run their own affairs in freedom. But five years on, George Bush and Dick Cheney are putting the screws on their Green Zone government to sign a secret deal for indefinite military occupation, which would effectively reduce Iraq to a long-term vassal state.

In April, I was leaked a draft copy of this "strategic framework agreement", intended to replace the existing UN mandate at the end of the year. Details of the document, which came from a source at the heart of the Iraqi government, were published in the Guardian - including indefinite authorisation for the US to "conduct military operations in Iraq and to detain individuals when necessary for imperative reasons of security". Since then, much more has emerged about the accompanying "status of forces agreement" the US administration wants to impose: including more than 50 US military bases, full control of Iraqi airspace, legal immunity for US military and private security firms, and the right to conduct armed operations throughout the country without consulting the Iraqi government.

This goes far beyond other such agreements the US has around the world and would shackle Iraq with a permanent puppet status. Not surprisingly, it has led to uproar in the country and opposition in the US, where congress will be denied a vote on the arrangement because the administration has chosen not to call it a treaty.

But it also evokes powerful memories in Iraq, which has been down this road before. After Britain invaded and occupied Iraq during the first world war, it imposed a strikingly similar treaty on its puppet government in 1930 in preparation for the country's nominal independence. Just as in George Bush's version, Britain awarded itself military bases, the right to conduct military operations, and legal immunity for its forces - though the proposed new US powers and restrictions on Iraqi sovereignty go even further than in the pre-war colonial treaty.

To add to this sense of imperial revival, the four oil companies now preparing to return in triumph to Iraq were the original partners in the Iraq Petroleum Company, which Britain gave a free hand in the 1920s to dine off Iraq's wealth in a famously exploitative deal. The Anglo-Iraqi treaty and those bitterly unjust oil concessions dominated Iraqi politics for decades, feeding riots, uprisings and coups until the monarchy was overthrown, the tables turned on the oil companies and the British were finally sent packing by the radical nationalist General Qasim in 1958.
The 50th anniversary of the 1958 revolution appropriately falls next month. But Bush and Cheney seem increasingly determined to force through both their security agreement and the stalled law for the privatisation of Iraq's oil industry before the US election. The signs are that, despite intense Iraqi opposition, a combination of strong-arm tactics, bribery and some watering down of the most extreme US demands may yet secure the full imperial package.

When Bush contradicted Iraqi prime minister Nouri al-Maliki earlier this month on the occupation deal and predicted: "If I were a betting man, we'll reach an agreement with the Iraqis," he sounded as if he knew what he was talking about - rather as he did when he explained a couple of weeks ago that he was "confident" Gordon Brown would not after all be cutting British troop numbers in Basra according to any fixed timetable. Meanwhile, Iraq's foreign minister, Hoshyar Zebari, is suddenly sounding similarly confident about "progress" on the oil law because "the Americans are very keen".

Perhaps they are all coming to believe the Bush administration propaganda that the surge has succeeded and Iraq is starting to "fix itself" in time for the US election, as the Economist's cover story put it last week. Much is still being made of the decline in US casualties and resistance attacks to 2004 levels, even though the factors behind that drop are widely acknowledged to be contingent and precarious. Given the carnage of the past few days alone - including seven US soldiers killed since the weekend and a Baghdad car bomb that butchered 65 people - as well as this week's withering US Government Accountability Office report on the administration's claims of "progress" in Iraq, any other view would seem perverse.

What is certain is that, if Bush's blueprint for indefinite foreign rule in Iraq and the takeover of its oil is forced down the throats of the Iraqi people, resistance and bloodshed will increase. Of course, it's true that the US and Britain didn't invade Iraq only for its oil. It was a projection of American power in the world's most strategically sensitive region, with oil at its heart, which has brought catastrophe to Iraq and great danger to the Middle East and the wider world. That's why the struggle to restore Iraq's independence matters far beyond its borders - it is a global necessity.

s.milne@guardian.co.uk
About this article
This article appeared in the Guardian on Thursday June 26 2008 on p33 of the Comment & debate section. It was last updated at 00:03 on June 26 2008.