International Bar Association, Dublin 2012

Published today in The Scotsman

There are bound to be a few headaches this morning in Dublin after the International Bar Association’s (IBA) opening ceremony and welcome party last night.

The party, in the city’s venerable Royal Dublin Society building, marked the beginning of the week-long annual conference attended by more than 4,000 lawyers from all over the world. Host cities in recent years have included the likes of Vancouver, Buenos Aires, Singapore and Chicago.

The IBA was founded in New York in 1947 and its early members devoted themselves to the principles and aims of the United Nations in order to make a real contribution to world peace and neighbourliness. They aspired to do this, for example, by seeking to improve the administration of justice under the law. Today, the IBA is a vast international organisation with a truly worldwide membership. The conference’s slick, 178-page doorstopper of a handbook lists hundreds of speakers taking part in dozens of events.

The keynote speaker for this year’s conference is Nobel Prize-winning economist Professor Joseph Stiglitz: after all, the profession worldwide has rarely weathered tougher financial storms. Other showcase events include Michael Mansfield QC and Martin McGuinness on the topic “peace after terror: rules or reconciliation?” and a range of experts debating issues such as “the euro crisis: thinking the unthinkable, the public perception of lawyers and lawyers against poverty”.

The main events aside, most of the conference is taken up with working sessions in areas as diverse as insuring liabilities in cyberspace, family disputes involving trusts, “construction projects from hell” and the fabulously titled “is water law a sexy career for young lawyers?” Rest assured, no matter how obscure the niche of expertise there is pretty much guaranteed to be something for everyone.

Lawyers can be a cynical bunch, however, and when work is demanding and times tough, glittering affairs such as this one can seem far removed from our earthy realities.

But leave aside the everyday demands of another Monday morning for a moment, and ask yourself this question: can we really afford not to participate in conferences such as this? I’m afraid to say that for a country with such a remarkable legal tradition, it is astonishing that Scotland and the Scots are so markedly absent from this international legal line-up taking place on our doorstep.

Minister for Community Safety and Legal Affairs Roseanna Cunningham, Advocate General for Scotland Jim Wallace and Brandon Malone from the Arbitration Centre are speaking tonight at a drinks and networking event. Tomorrow, the Law Society of Scotland is holding a discussion panel with speakers Stephen Mayson and Fraser McMillan from the Pinsent Masons’ Glasgow office on the changing face of legal services provision.

Elsewhere in the programme I can see three other brave souls (take a bow Philip Rodney at Burness, Shona Frame at MacRoberts and Grant Campbell at Brodies) – but that’s it from Scotland.

It’s in the very times when things are tough that reaching out becomes more important than ever. After all, if Scotland and Scots don’t take part on the international stage then how will we know how we’re shaping up in the world, and how will the world know about Scotland? If lawyers from Mexico, Egypt, China and Korea (to name but a few) are willing to make the effort to come so far, then perhaps we need to rethink our perspectives. Raising its profile on the international stage can only boost Scotland’s legal services industry. At the very least we might set a challenge and aim to have ten speakers at the next IBA conference, and if you’re under 35 there’s the chance to compete for an IBA scholarship and obtain a free conference place by completing an essay on one of a range of legal topics.

Next year the IBA conference will be in Boston, but sooner 
or later thoughts will return 
to a European venue. The last time the IBA held its conference in Dublin was in 1968. In those days it was held every second year. The only time it was held in Scotland? Edinburgh in 1962. If the Olympics 2012 surely taught us anything, it’s that great success can only come from great ambition. After all, why not?

Somalia’s Pirate Kings

 Published today in The Scotsman

Somalia is a part of the world which has become synonymous with piracy, particularly after the ordeal in 2010 of British couple Paul and Rachel Chandler.  It remains a huge problem in the region (basically the Arabian Sea and Indian Ocean) with EU data indicating seven large ships and 176 hostages are currently in the hands of pirates. There were more than 150 attacks on ships in 2011, a slight rise on 2010. It’s certainly lucrative, netting Somali pirates a staggering $146 million in ransom payments in 2011 alone.

A crackdown on an unprecedented scale (at least since the days of Pompey the Great) has followed, involving the US, China, Russia, India, Japan, the EU and Nato. Slowly, they seem to be gaining the upper hand.

At the same time as patrolling the seas, however, a number of authorities have been engaged in the prosecution of those pirates who have been captured. The US has been in the vanguard, with a Virginia federal court in April convicting Mohammad Saaili Shibin on charges of piracy. He was found guilty of being a “hostage negotiator” in the hijacking last year of the US yacht SV Quest, together with a German merchant ship, and sentenced this month to 12 life sentences. The four civilians on board the Quest were murdered, while those on the German ship were tortured in order to extract a greater ransom.

Those who did the boarding pled guilty and received life sentences, while those specifically involved in the murders will receive the death penalty.

The multilingual Shibin’s role as a negotiator, however, raises a unique point because he remained firmly on Somali soil throughout. His role, it seems, was to research the backgrounds of hostages with a view to calculating the appropriate ransom figure. Could he, therefore, be guilty of piracy? Is there such a thing as a land pirate?

Blowing the dust from the USA’s 200-year-old piracy laws, Shibin’s defence team maintain that only those who board and rob a ship on the high seas can be guilty of that crime. However, District Judge Robert Doumar, who heard the argument, opined that while an actual presence on the high seas was originally envisaged, the law had to evolve to embrace piracy in its modern form. The defence argument was therefore rejected.

Judge Doumar’s opinion appears to be strengthened by the fact that US piracy law otherwise refers to piracy “as defined by the law of nations”, and the main point of reference in international law is the UN Convention on the Law of the Sea which, at article 101, includes “facilitating” acts of piracy within the crime’s definition. While Judge Doumar’s opinion therefore appears correct, there is at least one other first-instance decision (of a Judge Huvelle) which reaches a different view. It accordingly looks likely that the US Supreme Court will in due course have to settle once and for all whether a pirate needs to take to sea.

As defence attorney James Broccoletti said: “He [Shibin] has never been on the high seas and so I think the Supreme Court’s going to have to decide in the modern era what piracy is, what the law of piracy is and what one has to do to be guilty of it.”

Of course, prosecuting attorney Neil MacBride was somewhat more blunt in his views post-sentence: “This case explodes the myth, if still it exists, that pirates are some kind of romantic, swashbuckling characters from Hollywood summer movies. This case showed that pirates are brutal, greedy, reckless, desperate criminals who will kidnap, torture and kill hostages in pursuit of their financial greed.”

Even Gilbert and Sullivan may have struggled to find the comic side of that.

An ever closer legal union?

An ever closer legal union?  Published today at The Guardian

Something interesting is happening to the legal services market in Scotland.

Firstly, like everywhere else, Scotland is feeling the effects of a double dip recession. This has shrunk the legal sector, dried up a good deal of commercial and domestic property work and left smaller law firms concentrating their billable time on wills, trusts and executries.

For the medium to large firms in the Scottish market, however, the seismic event of the past few years has been the falling away of work from the two most significant clients in the country: The Bank of Scotland and The Royal Bank of Scotland.

To give an idea of just how central this work is, I recall a discussion some years ago with a senior partner in one of Edinburgh’s grandest firms. He pointed out that in 1800 their two largest clients were the banks and that this was still the case over two hundred years later. Indeed, the decline of bank business in Edinburgh – which all the major firms share in — has been compared by some to Glasgow’s loss of heavy industry in the 1950s, or the disturbance of an ecosystem in which surveyors, lawyers, accountants and even sandwich shops have traditionally lived and thrived. Of course both banks are still very much present in the Scottish market, it’s just that the transaction work which they consistently provided may not return on anything like the scale it once was.

Despite these changes, however, there is a great deal for lawyers to be optimistic about: the market has dynamism and Edinburgh is growing again as an eminent financial centre with secure funds under management; it’s attracting headquarters for banks such as Virgin Money, Tesco and Green Investment; the city has over 700 established financial services firms; it’s building a significant reputation for technology start-ups with IPO ambitions; there’s oil and gas work and development; and it’s still one of the top places in the world to live, work and study.

But the thing which is most interesting in the industry at the moment is the rapid trend of mergers between Scots and English firms. The most prominent link up earlier this year was between McGrigors, one of Scotland’s lead firms, and Pinsent Masons. Others have followed: DWF and Biggart Baillie, Shoosmiths and Archibald, Campbell & Harley, DAC Beachcroft and Andersons. A number of other firms have featured in the rumour mill. The trend is a very significant one for a jurisdiction which has always been fiery about its independence: equally, however, its very independence from the rest of the UK legal sector has perhaps led Scots firms and their lawyers to underplay their hand on a wider stage.

Why are these mergers happening, and what are the incentives on both sides?

From the Scottish perspective, a link up with a strong London or regional player gives the strength and support of a larger firm in these tough economic times — for even the biggest in Scotland are small when compared to the likes of the magic circle firms. Many clients will have interests across the border, and it makes sense in those circumstances for the same firm to be able to offer a joined up service. For lawyers in Scottish firms, a link up with a global practice brings the potential to work and travel far beyond the jurisdiction’s traditional boundaries.

From the opposite perspective, merger with a Scots firm is likely to bring in a high quality team of lawyers with an established share in some very lucrative markets including, for example, oil and gas work. As an added bonus, for those working on high value London deals there will suddenly be the availability of a skilled team of commercial lawyers working out of Edinburgh, Glasgow or Aberdeen, who would then be in a position to share the workload at a competitive rate.

Overall, the trend of cross border mergers meets a number of needs on both sides, as well as being a timely reminder that despite obvious differences (such as land law) there is much which is shared across the two jurisdictions. After all, the Act of Union in 1707 gave Scots the commercial freedom to reap the benefits of England’s trade networks, whose doors had until then been closed to them; and it gave England the talent, drive and imagination of some of Scotland’s best people. The combined strength from working together across the border is greater than the sum of the separate parts.

Is this party cool, legally speaking?

Published today in The Scotsman

Everyone seems to have a smart phone or tablet these days and, not unconnected, just about every major legal jurisdiction now seems to have intellectual property disputes arising from their sale and development.

In a dizzying whirl of litigation over the last twelve months, from Germany and Japan to the United States, the Netherlands and England, the major players in the market (including Apple, Samsung, HTC and Motorola) have locked horns in attempts to obtain injunctions against the sale and distribution of rival products.  Success has been mixed.

In some instances, one company has been successful in one jurisdiction, only to obtain an entirely different or at least a conflicting outcome in another. While in essence the disputes have been about the designs and technologies used in mobile devices, the reality is that it is a battle for control or even a foothold in a multi-billion dollar worldwide market.

There are no definitive answers it seems, or at least there are a number of different ways of looking at the laws of patent infringement.

Some argue that the software designs and enhancements built in to each succeeding generation of devices have inevitably built upon those of the past; while others claim that certain features of ‘searchability’ and ‘functionality’ in devices are unique, and represent a recognisable development attracting their own intellectual property rights and legal protection.  Some issues relate purely to the appearance of rival devices but overall a very real concern in the industry is that if each company becomes entrenched in successfully protecting its own patents and designs, future breakthroughs and developments will become all but impossible in the way all the major players have benefited from in the past.

This month’s decision of Judge Birss QC, in the English High Court case of Samsung Electronics (UK) Ltd v Apple Inc. [2012] EWHC 1882 Pat, is a good example.  Samsung raised an action seeking a declaration that three of its Galaxy tablet models did not infringe a European Community Registered Design registered by and belonging to Apple.  Following an exhaustive consideration of many of the design features of both Apple and Samsung products, Judge Birss noted as follows:

“The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.”

Then, turning to the Samsung products he opined:

“The informed user’s overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.”

And so by way of this rather back-handed compliment and affirmation of judicial good taste, Judge Birss concluded that Samsung had not infringed Apple’s registered design.

The judge’s remarks have been a gift to satirists, or at least who those who hang around the Royal Courts of Justice. “Surely, that’s the last thing you want,” they chortled on BBC Radio’s Now Show, “judges basing their verdict on how cool they think the parties are. Older people just aren’t behaving the way we expect.” The thought led seamlessly on to the 50th anniversary of the Rolling Stones first gig.  If ‘gig’ is still cool.

The makers of the Galaxy products welcomed the decision, stating that it ‘affirmed our position that Galaxy Tab products do not infringe Apple’s registered design right.  As the ruling proves, the origins of Apple’s registered design features can be found in numerous examples of prior art.” And “Should Apple continue to make excessive claims in other countries based on such generic designs, innovation in the industry could be harmed and consumer choice unduly limited.”

Apple of course sees the position very differently, and the litigations pending in jurisdictions across the globe will continue to play out, with one highly significant showdown, again with Samsung, moving slowly toward a U.S. Federal Court hearing.  Apple has won the vital preliminary skirmish in securing an injunction against the sale of Galaxy products, a decision which Samsung is appealing in advance of the full hearing.  The stakes for both companies could not be higher.

Egypt’s supreme court must become jewel of the Nile’s institutions

Published today in the Scotsman – www.scotsman.com

In a country not known for its robust institutions, Egypt’s Supreme Constitutional Court served as a powerful symbol of independence for years in the 1970s and 1980s.

Egypt’s leaders – president Mubarak, and Sadat before him – initially allowed the court its place for political purposes. But the court seized that role and in some areas duly held the government to account. Sadly, the great court is today not the power it once was, following a plan to weaken it led by Mubarak from the 1990s onwards.

Perhaps the clearest measure of this was when the present chief justice, Farouk Sultan, was appointed in 2009, causing many eyebrows to be raised.

It was not just that Judge Sultan was appointed from a first-instance court below both the Constitutional Court and the appellate Court of Cassation, it was also the fact that his experience was in military and security courts, and the curiously titled “courts of ethics”.

All in all, the feeling grew that the Constitutional Court’s glory days were behind it, to the point where today it is openly known that a number of its judges are advisers to the Supreme Council of the Armed Forces (SCAF), the junta currently running the country since Mubarak was deposed and, in short order, arrested, tried and convicted.

The announcement yesterday of the outcome of the presidential election and the imminent investiture of Mohamed Morsi as head of state could put the Constitutional Court into the front line of civic life again.

Chief Justice Sultan is also head of the Presidential Elections Committee, at the centre of the delay in declaring the results. And with a mandate from barely a quarter of the electorate, President Morsi is likely to face many legal challenges as he tries to change the face of Egypt.

Everything has been happening in Egypt at the same time: the first free elections in the country’s history; a close-run presidential campaign albeit with a modest turnout; attempts to draft a new constitution; the declaration last week by the Supreme Constitutional Court that last November’s parliamentary elections are null and void and will have to be re-held at some point; the subsequent dissolution of parliament by SCAF; the slow demise of ex-president Mubarak; and now the presidential election results.

Perhaps this is not the easiest time to be a professor of  constitutional law at Cairo  University… probably just as well to dump the last few years’ lecture materials in the recycling bin.

In the midst of all the chaos, however, it is easy to forget how far Egypt has come in less than 18 months and that the country has almost arrived at the point where SCAF needs to honour its promise to hand over control of the government to the newly elected president – an event scheduled for this weekend.

In the parliamentary elections earlier this year, Egyptians voted overwhelmingly in favour of pro-Islamic candidates. Now they have voted for the Muslim Brotherhood candidate, Morsi, over  Mubarak’s ex-prime minister, Ahmed Shafiq.

It should come as no surprise that SCAF is perceived as supporting the more secularly inclined population as opposed to the Muslim Brotherhood – the military and the mosque have been two competing factions in Egypt for decades – with the third “m”, the mob, somewhere in the middle. Of course, the secular population is not a single bloc. It includes those who hanker after the Mubarak certainties as well as the enthusiasts for liberal reform.

When it comes to it, will SCAF freely hand over the country to its rival, Morsi? Somehow that’s difficult to imagine happening.

Shafiq, on the other hand, is cut very much from SCAF cloth, a military man, like Mubarak before him, with a liberal eye to the west.

So far, SCAF appears to be honouring its promise with regard to the transition to democracy and respecting the choice of  the electorate. But what, if anything, can hold SCAF to account, quell the election bickering, ease the passage to democracy and guard the country’s liberal and secular minorities?

What Egypt needs now, more than ever, is its Supreme Constitutional Court restored to operational independence and polished until it sparkles like a diamond amid the noise and confusion of so much change, so many competing voices and with an active legal profession which is confident that arguing a challenging brief will not risk personal safety.

Chief Justice Sultan, aged 70, will stand down on 1 July, probably to his great relief, and is likely to be replaced by Judge Maher El-Beheiry.

However, unless his court can once more stand apart from the junta, then who will guard the guardians of Egypt’s delicate Arab Spring?

Egypt at the brink of a new dawn

Published today in the Caledonian Mercury – www.caledonianmercury.com

  

After months of uncertainty, Egypt stands on the brink of a new dawn: but judging by recent developments, quite what the future will hold for the turbulent nation remains far from clear.

Firstly, there was President Hosni Mubarak’s dramatic resignation in February last year, bringing to an end his thirty years as the country’s leader (which followed the assassination of President Sadat in 1981).  There then followed in August his conviction by an ordinary Egyptian criminal court for failing to prevent the killing of protesters during the popular uprising which brought down his regime.  He was immediately sentenced to life imprisonment, and continues to serve that sentence in an Egyptian prison: however as this goes to press the 84 year old has been transferred to a military hospital in a critical condition.

After his resignation, the Supreme Council of the Armed Forces (‘SCAF’) became the de facto government; and in a statement issued at that time declared that it would both facilitate a transition to democracy and thereafter respect the will of the people as spoken through free and open elections.  That is something that has never happened since the founding of the Arab Republic of Egypt in 1953.

In recent months Egypt has quickly had to get to grips with elections for both the presidency and also the parliament – which was dissolved at the same time as President Mubarak’s resignation.  There have been many arguments about the right of those associated with Mubarak’s regime to stand in the elections and the country has become more openly divided on religious lines, with violent clashes involving Muslim and Coptic Christian communities.

Between November 2011 and January 2012 elections were held for 498 seats in the parliament’s lower house, the People’s Assembly (an additional 10 seats were filled by SCAF appointed candidates).  The result gave the Democratic Alliance, which is dominated by the Freedom & Justice Party (founded by the Muslim Brotherhood of Egypt) 235 seats.  The second largest party, the Islamist Bloc, gained 121 seats, with a spectrum of liberal parties thereafter gaining less than 100.

Elections to the upper house, the Shura Council, took place in January and February 2012 and the Democratic Alliance and Islamist Bloc took the lion’s share with 150 of the 180 seats, with liberals again making up the remainder.

With the parliamentary elections complete, the focus then turned to the presidential campaign and ultimately last week’s run off between President Mubarak’s ex-Prime Minister Ahmed Shafik (who has a military background similar to ex-Presidents Mubarak, Sadat and even Nasser before him) and Mohamed Morsi, chairman of the Freedom & Justice Party.  Again, as this goes to press, the result of the election is too close to call, with both candidates claiming victory [Mohamed Morsi has, amid dramatic scenes, now been proclaimed President].  Whoever wins, SCAF has vowed to hand control to the newly elected president on 30 June, but whether this will happen is far from clear; and veteran Middle East analyst Charles Holmes has written that it doesn’t really matter who the next president of Egypt is: that both are ghosts of the past, embedded in a clash between ‘military and mosque’.

The most significant development of all, however, was Egypt’s Supreme Constitutional Court decision of 14 June that the elections to the People’s Assembly were unlawful, a step which led SCAF to dissolve Parliament.  This has led to an outcry, mainly by the Muslim Brotherhood, which has the greatest to lose from fresh elections, and accusations that SCAF is engineering a coup d’Etat.  On the other hand, SCAF claims simply to be upholding its duty to govern in accordance with the rule of law.

In short, Egypt’s future remains as unpredictable as at any time since the first shoots of the Arab Spring; and the real issue, its foundering economy, remains adrift in the political storm.

Stephen O’Rourke, June 2012

Stair Society launches new website

The Stair Society, Scotland’s leading legal history society, has just launched an impressive new website: http://www.stairsociety.org/

Founded in 1934, the Society’s aim is to encourage the study and advance the knowledge of the history of Scots Law by the publication of original documents and by the reprinting and editing of works of rarity or importance.

The Society always welcomes new members, and the next annual lecture of the Society will be given in November 2012 by Professor Norma Dawson, President of the Irish Legal History Society & Professor of Law at Queen’s University Belfast.

Troubled times in Mexico

200 miles east of Mexico City on the Gulf coast lies Veracruz, the country’s main port.  Each year, millions of tons of cargo pass through its harbours, contributing to an economy which is ranked fourteenth in the world just behind Australia.  The traffic through the port is vast: but equally vast, it seems, is drug trafficking.

According to the CIA’s world fact book (easily found at www.cia.gov), Mexico has the world’s second largest cultivation of the opium poppy, generating a potential annual yield of 50 tons of pure heroin.  The Mexican government estimates the value of this trade at anywhere up to 50 billion dollars per year; and the country’s internal cartels play out a seemingly endless and bitter struggle for their share.

On 1 July 2012 Mexicans will go to the ballot box, electing a new president to replace the outgoing President Felipe Calderon: but sadly, however, the election debates have so far been characterised by personal accusations of corruption among the candidates, rather than any clear vision for the country.  And a vision is badly needed, as amply demonstrated by the tortured bodies of three young journalists, pulled ten days ago (on International Press Freedom Day) from a canal in Veracruz.  Their crime: daring to report on the city’s drugs trade.  There have now been nine journalists killed in the Veracruz area over the past 18 months, prompting UNESCO’s director general Irena Bokova to call for the Mexican authorities to do everything in their power to bring those responsible to justice.

The figures in recent years for attacks on journalists all across Mexico, however, are even more disturbing.  It is estimated that 50 have been killed or have disappeared in the last 5 years alone, the highest figure anywhere in the world: but even more concerning, it is alleged that in many instances those responsible are the very agents who should be combating the drug trade, rather than turning a blind eye, or worse.

But there is some good news.  In March, President Calderon’s government, in a vote unanimously backed by the Mexican Senate, amended the constitution to make attacks against journalists a federal crime; and in the run up to the presidential election, there is much focus on the extent to which the candidates will pledge to track down Mexico’s most wanted drug baron Joaquin ‘Chapo’ Guzman, the man who escaped from a Mexican federal prison in a laundry cart eleven years ago, and who has remained in hiding ever since.  And broadly speaking, while Mexico is today alive with drug related problems, these problems have only been brought to the surface by President Calderon’s commitment five years ago to a long term war on narcotics: a war he seems unfortunately far from winning as his presidency draws to a close.

Overall, the enormous issue of trafficking from Central and indeed Latin America seems to generate more questions than answers in today’s world, and many would point to radical solutions: but for the time being Mexico’s own attempts to face the issue seem paralysed.  In the words of Viridiana Rios, a Mexican PhD student at Harvard’s Kennedy School of Government: “Mexico is silent and blind and our leaders do not seem to care.  Our justice system is broken, it has no teeth.”

More than ever, Mexico needs a president with the vision and determination to help solve this unfolding human tragedy.

The history of the Crippen case

LaurenticA long, long time ago, more than a hundred years ago now, on a cold winter’s morning on Wednesday 23 November 1910, and just over a year before the Titanic plunged to the bottom of the freezing North Atlantic, an American homeopathist by the name of Hawley Henry Crippen was escorted to the grim gallows within London’s Pentonville Prison, and hanged.  History remembers him as ‘Doctor Crippen’, whereas in fact his American homeopathic qualifications had not entitled him to practice in England.

Just 30 days earlier, after the most sensational criminal trial in English history, he had been convicted of the murder of his American wife Cora. Despite the valiant defence advanced by Mr A.A. Tobin, KC** (later a judge), the trial judge Lord Alverston, the Chief Justice of England, had no alternative but to don the black cap and pronounce Crippen’s doom.  Before, during and after the trial Crippen repeatedly insisted that he was innocent: but all was now lost.  There was no appeal, that being a relatively novel concept at the time; and the case made the Crown’s star witness – the pathologist Sir Bernard Spilsbury – a household name, and the cornerstone of many future convictions in England in the 20s and 30s.

Part of the reason why the case was so sensational was that Crippen had fled England for Canada on board the Montrose, in the company of his lover Ethel Neave: but the keen eyed ship’s captain Henry Kendall had spotted them, and famously sent a telegram to Scotland Yard which read:

“Have strong suspicions that Crippen London cellar murderer and accomplice are among saloon passengers. Mustache taken off. Growing beard. Accomplice dressed as boy. Manner and build undoubtedly a girl.”

Chief Inspector Walter Dew of the Yard was promptly sent in hot pursuit on board the White Star line’s prize SS Laurentic* – a faster ship than the Montrose; and for days the newspapers kept the public on tenterhooks as the Laurentic, mile by nautical mile across the ocean,steadily closed in on the fugitives.

When both ships finally made their way into the St Lawrence River at Quebec, Chief Inspector Dew went aboard the Montrose in disguise.  He walked up to Crippen, and said:

“Good morning, Dr Crippen. Do you know me? I’m Chief Inspector Dew from Scotland Yard.”

To which, after a brief pause, Crippen famously replied:

“Thank God it’s over. The suspense has been too great. I couldn’t stand it any longer.”  He then held out his wrists for the handcuffs, …and the rest is history.

Surely these were the words and actings of a guilty man?

And yet there are a number of things about the Crippen case which pose problems.

In contrast to her bespectacled little husband, Cora Crippen was a larger than life character who dressed extravagantly: she was a musical hall performer, first in America and then England, and went by the stage name Belle Elmore.  They had a difficult marriage and rumour was, among Cora’s many friends at the Music Hall Ladies Guild, that Cora was not very happy.  Then suddenly she disappeared, without a word.

Nothing happened until Crippen, 48, was spotted by Cora’s friends socialising with his 27 year old secretary Ethel.  Worse, Ethel was seen wearing items of Cora’s clothing and jewellery.  Rumour grew, and Scotland Yard were tipped off.

When questioned, Crippen admitted that he had been evasive about Cora’s whereabouts because the truth was that she had left him for another man and he had wanted to avoid any scandal.  The police listened politely, then released him without any charge; and it was only then, a few days later, that Crippen and Ethel made their futile bid for escape. A reward of £250 was offered for their capture: the equivalent of about £100,000 in today’s money.

But why did he flee if he was innocent?

Well, the simple and perhaps obvious conclusion is of course that he had indeed killed his wife: but the single most important piece of evidence relied on in the case may also point to his innocence.

This crucial evidence came in the form of a small quantity of human remains found in the soil, under a flagstone, in the basement of the Crippens’ terraced house in Camden Town, London.  It was skin, and in rather a poor state of decomposition: but on one part there appeared to have been a kind of crease, or fold of some sort.  Bernard Spilsbury – at that time still a fairly junior doctor – had a good look at it; and concluded that it was undoubtedly a surgical scar.  Now, it was known from Cora’s medical records that she had undergone an appendectomy in America; and with that, the Crown case seemed as safe as the Bank of England.  Case closed, I hear you say.

But Mr Tobin was of course not so easily daunted. An experienced defence pathologist was instructed, and rather interestingly gave the opinion that a hair follicle was clearly visible along the skin ‘fold’, something that is not normally found on scars.  He concluded that the fold was not a scar, but in fact just a result of the way the skin had been crumpled during decomposition in the ground.

The scene was set for a dramatic showdown and as the barristers assembled in wig and gown before a packed Court Number 1 at the Old Bailey, all eyes were on Spilsbury: how would he stand up against the withering cross examination of the brilliant Mr Tobin, King’s Counsel?

For two days Spilsbury stood up to everything that was hurled at him, and famously brought in his microscope on the second day to peer at the skin once again.  But Spilsbury wouldn’t be shifted; and as Tobin finally retired from battle the young doctor, in charcoal pinstripes and sporting a carnation in his buttonhole, stepped from the court to the front page adulation of the press.  The verdict was inevitable, and his future was made.

But there is a twist in this tale.

In October 2010 David James Smith, author of ‘Supper With the Crippens’, brought the Crippen case back to Court 1.  Before the solemn audience, he opened his lecture as follows:

“The Crippen case held the entire Western world in its thrall for many months in 1910, and it has intrigued and fascinated lawyers, police officers and criminologists ever since. Until recently, Crippen’s guilt was rarely questioned but now, some people believe that he may have been wrongly convicted. This lecture, for which Court Number One is the ideal location, represents the perfect opportunity to review the evidence.”

Why?

Three things (why are there always three?)

Firstly, the famous piece of skin was preserved in the Museum Archives of the Royal London Hospital.  In 2007 working from a sample of that skin, a team of American forensic scientists from Michigan State University compared mitochondrial DNA from it with samples taken from Cora Crippen’s known surviving relatives.

The results were conclusive, said Dr David Foran, the head of the forensic science programme. “That body cannot be Cora Crippen, we’re certain of that,” he said.

Well,… perhaps Cora could have been adopted?  Unfortunately, however, the DNA sampling revealed that the material contained Y chromosomes, conclusively indicating that the skin was male.

There is always the possibility, however, that the sample had been mislabelled or mixed up in some way over the course of time – except the label seems clear enough:

The second thing is the suggestion – never verified, insofar as I can tell – that a witness statement was taken from a passer-by outside the Crippens’ home, from someone who described a woman very like Cora the day after she disappeared.  This witness apparently described her as standing on the pavement, with much luggage, about to get into a Hackney Cab.  What is known, however, is that there is a statement from a witness who described a woman bearing Cora’s description, who had tried to withdraw savings and arrange for the removal of large quantities of furniture and belongings from the house before her disappearance.

It is also now known that a woman with Cora’s stage name of Bella Elmore was living with Cora’s sister in New York many years later; and that when that woman’s history was traced, she was found to have entered the United States via Ellis Island in 1910, shortly after Cora disappeared.

There are a number of other issues and problems too numerous to go into here, but the third thing is this: if Crippen was innocent, why did he flee?

Well, the answer to that question may provide the key to the case.  Because of the fact that Crippen, despite his medical training, could not practice legally as a doctor in England, it is possible that he could have found other ways to earn a living.  A very obvious one, for the time, was as an abortionist.  This could explain the human remains in the basement, and could explain his decision to flee once he realised the police were taking an interest in him; after all, a conviction as an abortionist would, in 1910, have resulted in a significant prison sentence.  Furthermore, traces of the drug Scopolamine (also known as hyoscine) were found in the skin sample examined by Spilsbury, and it was the Crown case that this was the poison which Crippen had used on Cora; however Scopolamine had another use at the time, in the conduct of abortions.***

One problem with this theory, however, is that at the trial Crippen’s defence ran the line that the remains could have been in the house from before the Crippens moved there in 1905 – but if Crippen were truly an abortionist, one can see that it would perhaps not have helped his defence to bring that out, to put it mildly.

In the final analysis, therefore, it seems impossible now to say where the truth lies: but the case is of course now very firmly closed and really only a matter of interest to students of legal history…  and the famous waxwork of Doctor Crippen at Madam Tussauds’ in old London town, seems likely to remain very firmly in place.

*Just over six years later on 25 January 1917, the SS Laurentic sailed from the Royal Navy’s base in Lough Swilly, County Donegal, Ireland, having been commissioned during the First World War.  At the mouth of the lough the great liner, which had successfully pursued Crippen across the Atlantic with Chief Inspector Dew on board, disastrously struck mines which had been laid off Fanad Head.  The mines had been laid by a German U-80 submarine a few days before.  The great ship sank within an hour, taking with her 354 men out of a crew of almost 470,… and 43 tons of gold bullion.

** Crippen’s solicitor Arthur Newton had originally wished to brief the greatest advocate of his age, F.E. Smith QC (later ennobled as Lord Birkenhead) – but ‘Effey’ declined, preferring to defend Ethel le Neve in the separate proceedings brought against her.

*** The presence of scopolamine fitted the Crown case that Crippen was known to have ordered, and then on 19 January 1910 collected from Lewis & Burrows’ pharmacy on New Oxford Street, five grains of hyoscin hydrobromide… a quantity so large it had to be ordered from the wholesalers…

Chinese law – will they, won’t they?

Here in the West there is an assumption that things change very slowly in China.  The example often given is the exchange between US President Nixon and Chinese Premier Zhou Enlai during Nixon’s historic 1972 visit.  The topic of discussion was the French Revolution; and when drawn upon his views, Premier Zhou famously replied “it’s too early to say.”

There are two things which the story highlights.  Firstly, according to recent comments by President Nixon’s now retired translator Charles Freeman, Premier Zhou was actually referring to unrest in late sixties’ Paris.  The story accordingly demonstrates the power of myth: we prefer the idea that Zhou was commenting on the eighteenth century revolution because it fits with our preconceptions of China always making a long, considered assessment of world affairs – but is that a fair reflection of modern China?

Secondly, the story hints at scepticism on the part of China to embrace democracy and the building block principles of separate legislative, executive and judicial functions: but again, is this an entirely fair picture?

China’s legal system is playing catch-up with the country’s wider socio-economic changes, but there are signs nonetheless that the Communist Party dominated National People’s Congress – the world’s largest parliament – is gradually extending power to the intricate Chinese judicial system under the umbrella of the Supreme Court.

Last month both the President of the Supreme Court, Wang Shenjun and the State Prosecutor, Cao Jianming made their annual reports to Parliament.  The Supreme Court President noted the growth of intellectual property litigation, while the Prosecutor affirmed a continuing policy to tackle corruption, citing the examples of seven ministerial level officials and numerous civil servants being investigated last year.  Both senior officials also addressed international and domestic concerns about the criminal justice system, concerns which have caused Parliament to pass laws clarifying the position of detainees, a notoriously dark issue.

The plight of one of China’s most influential artists Ai Weiwei is a case in point.  The 54 year old is an outspoken critic of the State who, in April 2011, was detained moments before boarding a flight to Hong Kong and held in secrecy for 81 days.  In a separate incident, prominent human rights lawyer Gao Zhisheng simply disappeared for 20 months before his family were recently informed of his detention in a remote prison.  Only last week The China Post confirmed that his family had finally been allowed to visit him for half an hour.

While the law passed by Parliament has affirmed the right of the State to detain suspects without notifying their families, it is perhaps something of a small victory in itself that the legislature has felt the need to respond to both domestic and international pressure and regulate the practice.

Meanwhile in the commercial sector, from a standing start in Beijing twenty years ago, Decheng (now a top ten Chinese law firm) recently celebrated the attainment of 2,600 lawyers and staff in their offices across China and worldwide.  Decheng are far from alone: King & Wood, Grendall, Jun He and Guanghe are other Chinese firms which have likewise taken a firm hold in China’s rapidly expanding market economy.  At the same time international firms have been quick to open offices, with recent figures showing Baker & McKenzie now has 269 lawyers in the country, DLA Piper 140 and Lovells 111.  The domestic legal services industry is growing, and China has many thousands of university educated young people who return from the West each year and contribute to the knowledge economy.

All in all there are signs that the role of law, if not exactly the rule of law, is increasing: but perhaps, to paraphrase Premier Zhou, it’s simply too early to say.