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…

The Capital of the World

Capital, by John Lanchester (Faber & Faber, fiction, published February 2012)

London, December 2007.  It was the best of times, it was the worst of times.  The city was never more prosperous, more densely populated, more multicultural, more fashionable, artistically edgier, … more nervous.  Lehman Brothers was still a bank (…just), and the 7/7 bombings were still echoing in the headlines.  Then enters… Roger Yount: a super rich investment banker with the dream city job, a house in the country, skiing in Switzerland, summers in France, and Christmas… well, Christmas… patiently waiting for the one million pound bonus he not only thinks he deserves, but needs in the way the rest of us need the air that we breathe: otherwise this world of his, with it’s cloud capped towers and gorgeous palaces, will dissolve, like that selfsame air, into nothing.

John Lanchester is a writer of international standing and with a string of prizes to his name; but ‘Capital’, he says, is the book he waited his lifetime to write.  He takes the Government’s often repeated line ‘we’re all in this together’, holds a mirror to London, and says ‘no we’re not’: because for all the city’s teeming streets and houses, and the ebb and flow of countless people from every corner of the Earth marching as if to one tune, he concludes that London’s is an atomised population, where the life of each person is lived oblivious to those around them.

Now, I kind of get what he means.  Take Edinburgh, for example: it has long been said of Edinburgh that you can live next door to people for years without ever getting to know them, or what their lives are like.  It is in many ways, I suppose, quite a private place, Edinburgh.  Lanchester takes a similar idea – the fictional Pepys Road – and one by one shows the lives of the people in the houses (one of whom is Roger), and the Zimbabwean traffic warden who patrols the parked Lamborghinis like a crouching tiger, as as far removed from one another as crossing continents.  Rather than being all in this together, like the lost communities of yesteryear, these people rub shoulders without any regard for one another, like laser beams criss-crossing through darkness.

The plot thickens, as he skillfully introduces each new character: a budding premier league football star, newly arrived from Africa; the old lady who lives alone like Eleanor Rigby; the Polish builder, Spanish nanny, the Pakistani shopkeeper at the end of the road.  Every householder receives a mysterious message through their door, simply reading “We Want What You Have.”  What can it mean: a threat, an estate agent’s pitch, or perhaps even some kind of new art form?

I wouldn’t, of course, spoil the surprises, suffice to say that the plot is excellent and will have you at times laughing out loud.  In the end I urge you to read this book because it is easy: it’s written so well you hardly notice the pages turning, by a man who intimately knows the place, and for all its faults still loves it; and while perhaps not a very great book, it’s a great book nonetheless.

If you’ve got a kindle, or even if you don’t, you can buy it here:http://www.amazon.co.uk/Capital-ebook/dp/B0071LQMMG/ref=sr_1_1?ie=UTF8&qid=1335562114&sr=8-1 or why not call in to Blackwells on South Bridge? http://bookshop.blackwell.co.uk/jsp/editorial/shops/SHOP21.jsp.  You might even bump in to one of your neighbours.

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.

Syria in crisis

It was hard not to be deeply moved by the recent hospital bedside evidence of Sunday Times photographer Paul Conroy and the massacres he has witnessed in the Syrian city of Homs.  Mr Conroy, a veteran correspondent, describes the situation in Syria as a crime on a scale he has never seen before, involving the indiscriminate slaughter of women, children and old men by government forces loyal to President Bashar al-Assad.  He compares Syria with the Chechen capital Grozny, with Rwanda, with France during the First World War; and as he recovers from his blast injuries, breathing with the aid of an oxygen feed, he says ‘The time for talking is long gone, these people are dying as we speak’, but that ‘once again the world sits by and watches.  There should be an answer in this age.’

Weekend reports in the Canadian media, quoting figures provided by the Local Co-ordination Committees of Syria (an opposition activist network), estimate the death toll at close to 10,000 civilians, while the official United Nations figures are already in excess of 8,000.

But what if anything can the law, international or otherwise, do about this unfolding genocide?  And if the answer to this question is nothing, it is at least worth reflecting upon why that is so.

In Geneva on 29 February, the United Nations Human Rights Council passed a resolution calling on the Syrian authorities to put an end to human rights violations and allow humanitarian aid to be delivered into the country by the UN and other organisations.  37 countries backed the resolution while China, Cuba and Russia voted against it.  Ecuador, India and the Philippines abstained.   The Council also stressed the need to end impunity and hold accountable those responsible for human rights abuses.

The UN Council resolution followed a mid-February Cairo meeting of the 22 member Arab League, which called for international efforts to end the conflict.  At that meeting the League disbanded its own monitoring mission in the country, stating that it would ask the UN Security Council to form a joint UN-Arab peacekeeping force to oversee the implementation of a ceasefire.  In an impassioned address to the League, the Saudi foreign minister stated: “How long will we stay as onlookers to what is happening to the brotherly Syrian people, and how much longer will we grant the Syrian regime one period after another so it can commit more massacres against its people?”

Events in Syria follow the Arab Spring which has toppled a number of regimes; and for over a year now the struggle between the government forces of President al-Assad (a Ba’athist, in common with Saddam Hussein) and the popular uprising against his regime has played out in the world’s media.  In November the UN Office of the High Commissioner for Human Rights concluded that crimes against humanity may have been ongoing in the country since last March.  The alleged crimes included specific instances of torture and killing within a military hospital in Homs.

In May, President Obama made an Executive Order freezing all assets of President Assad under US jurisdiction.  Canada quickly followed suit, and days later the Council of the European Union also resolved to impose travel bans and an assets freeze on President Assad and nine other Syrian officials.  Both Turkey and the Arab League imposed sanctions in November; and in recent days the EU Council of Ministers has met again over the issue – however it has rejected any possibility of military intervention out of hand.  “We must be patient,” said Luxembourg’s highly regarded Minister for Foreign Affairs Jean Asselborn, “We will unfortunately have to accept to see enormously more victims, but military intervention would be worse.  It wouldn’t be thousands, but tens of thousands of dead.”

The highest level of international response to the situation in Syria is of course through the UN Security Council, whose five permanent members (The US, France, Russia, China and the UK) enjoy a right of veto against any concerted UN action.  But last October a Council resolution – which in effect proposed sanctions against Syria – was vetoed by Russia and China; and there is no prospect that either of those countries will change their position.  While sanctions have, therefore, been thwarted at the UN level, they appear to be already well implemented by the US, the EU and other countries and international bodies.  One thing is clear, however: lawful military intervention would require a resolution of the UN Security Council to that effect (such as was obtained in the case of Libya, with Russia and China abstaining).  As things stand, however, and bearing in mind the recent views of EU Ministers, such a resolution is highly unlikely.

Meanwhile, President’s Assad’s forces have begun shelling the southern city of Deraa; Turkey reports thousands of Syrian refugees pouring across its border; the United Arab Emirates, Bahrain, Saudi Arabia, Omar, Qatar and Kuwait have all joined in closing their Syrian embassies and denouncing the Syrian government; and the United Nations has this weekend announced a humanitarian mission into the country, which hopes to work in tandem with the Syrian government in obtaining ‘unhindered access to identify urgent needs and provide emergency care and basic supplies.’  “There is no time to waste,” says UN humanitarian chief Valerie Amos.

Through it all President Assad maintains that his troops are fighting armed gangs which are seeking to destabilise Syria; and he has been emboldened in that course of action by the continued support of Russia.  Much therefore rests on the position and enormous influence of the newly elected President Putin.

Brazil’s heart of darkness

THE River Xingu in Brazil, with a total length of 1,230 miles, is ten times longer than the Tay.

It is one of more than a dozen tributaries forming the Amazon Basin which, one after another, pour out their waters into that single, great river: each one winding its way through a combined area of more than three million square miles of dense, tropical rain forest. To put it in context, that’s just a fraction less than the entire land mass of the United States.

The Xingu joins the Amazon from the south, close to its Atlantic delta, and any picture of it tends to reflect the classic Amazonian image we all have: muddy waters snaking through forests so vast they are difficult to comprehend, while the indigenous people wave from their waterside clearings, or paddle close to the banks.

Of course, that image is only one aspect of modern Brazil. Another is Brazil’s ‘economic miracle’: the country clawed itself back from a financial abyss to the point, last month, where it edged ahead of the UK to become the world’s sixth-largest economy. Like all growing economies (and indeed, like many mature ones) Brazil needs energy.

Part of the solution, decided upon in 2010 by the Brazilian government, is a green light for the construction of what has been named the Belo Monte hydroelectric dam on the lower reaches of the Xingu. When completed, it will rank as the third-largest on Earth behind China’s Three Gorges dam (completed in 2006) and the Itaipu complex on the Brazil-Paraguay border (completed in 1991). It will see a vast stretch of the Xingu in front of the proposed dam dry up permanently, while a 200 square mile area behind it will be submerged. Following a tendering process, the Brazilian government last June awarded a licence to the public/private Norte Energia consortium to build and operate the dam.

The government has said the project will provide a source of clean, renewable energy, while indigenous groups and high-profile environmentalists (apparently including Sting, film director James Cameron and actress Sigourney Weaver) claim the dam will devastate wildlife, destroy the livelihoods of 40,000 people and deal a further hammer blow to the delicate Amazonian ecosystem.

Both prior to and after the June licence grant, those groups have backed legal action to stop the project going ahead and a confusing game of legal cat and mouse has ensued. Despite legitimate claims of lack of consultation among the people to be affected, and key failures brought to light in the environmental impact assessments, Brazil’s higher courts have given their blessing and in November confirmed the project can proceed.

While this is clearly a project which the government sees as vital to the national interest, the planning and implementation aspects appear fraught and rather crude when measured against European standards of planning law. For example, nothing akin to a public inquiry preceded the government’s decision, all the more surprising, perhaps, when reflecting that this is, after all, the Amazon rainforest which is being discussed. At least one federal judge last year pointed out that the Brazilian government, in its handling of the project, was in breach of its treaty obligations under the International Labour Organisation’s Convention 169 – a treaty that requires free, prior and informed consent among indigenous peoples regarding projects which affect their territories and livelihoods.

But can we be too judgmental of another sovereign state when it comes to the handing of what are, after all, its own resources?  I suppose it might be argued that detailed and exhaustive planning laws are the preserve of already overdeveloped countries with limited space; and that countries such as Brazil, having vast areas of unspoilt land, need not trouble themselves with the minutiae. But, standing back for a moment and considering how precious the wildernesses of the world are today, isn’t that more than a little ironic?

Russia’s modern Klondike

Ask if anyone has heard of the city of Tyumen and a Siberian silence descends. About the size of Edinburgh – and equally historic – it is more than 1,000 miles east of Moscow, in the country’s vast hinterland beyond the Urals.

It is the capital of Russia’s richest province (or “oblast”), stretching north from Kazakhstan to the Arctic, and, despite a  province-wide population density one-fifth that of Norway, this is the Klondike of the modern age, the land of black gold, with production levels already on a par with Texas – and rising.

Russia’s own super-rich have, of course, not been slow in opening up the region, but the biggest prospector from the outside until recently has been BP, which in 2003 set up TNK-BP Holding, a joint-venture company which now ranks among the ten largest oil companies in the world. In August, BP lost out to Exxon Mobil in a mammoth bid to join forces with Russian oil giant Rosneft. Crucially, BP’s direct bid did not involve TNK-BP, and a small but powerful group of Russian shareholders in the joint venture decided to sue. They raised two actions: one against BP, claiming $13 billion in damages for failing to include TNK-BP in the Rosneft bid, and the other against BP-nominated directors on the joint-venture board, claiming $2.8bn.

The actions were brought in Tyumen’s state commercial court (somewhat confusingly referred to as the Arbitration Court). The actions share some similarities with the form of a petition for unfair prejudice allowed in Scotland under section 994 of the Companies Act 2006, and the remedies available under section 996. In terms of section 996, UK courts, including the Court of Session, have a very wide discretion, including whether to allow the petition to advance at all – see, for example, the decision in the Chancery Division case of F&C Alternative Investments (Holdings) Ltd v Barthelemy & another [2011] EWHC 1731, paragraphs 1094-1107.

The Tyumen court has its own threshold rules, and applied them to dismiss the claims due to a failure to gather a sufficient percentage of the shareholding in support. BP, which has had its fair share of litigation difficulties, hailed the judgment as “a positive contribution to the investment climate in Russia”.

On the other hand, lawyers for the minority shareholders vowed to appeal, stating they had been given less than two hours to present their billion-dollar cases. “These court proceedings showed Russia still has a long way to go to meet international standards in corporate law”, said their lawyer, Dmitriy Chepurenko.

The decision firstly appears to demonstrate a willingness on the part of the Russian court to act swiftly and robustly in dealing with a commercial claim, in an area of law well known for its potential to result in lengthy, complicated and often futile claims (F&C being a case in point). Secondly, the Tyumen court has been a successful forum over the past ten years for the minority shareholders in unrelated actions, and so the decision, quite properly, appears to be without fear or favour.

Thirdly, the case perhaps gives a glimpse into the vast and increasingly sophisticated legal system of the modern Russian Federation which includes federal and regional courts, with constitutional, civil and commercial jurisdictions within its enormous reach (for the briefest of overviews, see the independent EU-Russia Centre’s website at http://www.eu-russiacentre.org).

If, to paraphrase Karl Marx, the legal system is simply a part of the capitalist superstructure, what if anything does that tell us about modern Russia?

India’s troubled justice system

On 5 May 1978 life looked wonderful for Susan Leigh Beer. She was just 17, but the Australian swimming champion was on the verge of a glittering international career, with the next step the World Championships in Germany.

Beer was holidaying in India with her parents and brother, relaxing in Delhi’s five-star Akbar Hotel. Just after 5pm, she decided to join her family in the hotel pool, and jumped into the shallow end – at which point her life changed forever.

As is stated in the decision of the Delhi High Court at paragraph 54 of 73: “ … it has been established on the part of the plaintiff that the cause of injury was the fact that the plaintiff jumped into the pool at the shallow end and that her feet slid forward on account of the bottom of the pool being slippery. This resulted in her head hitting the side of the pool which ultimately resulted in her becoming a quadriplegic.”

The smooth-glaze tiles, it was found, were covered in algae as a result of poor maintenance; and despite the best efforts of first Indian and then Australian medics, Beer was left permanently paralysed from the neck down.

A bit of good news (one might think, in the circumstances) is that Beer successfully sued and obtained decree for 50 million rupees (about £700,000), but only after a bitterly contested proof. That figure included an award for loss of future earnings, for pain and anguish, and for other familiar heads of damages. It was also inclusive of interest from the date of the accident. For those particularly interested, the decision can be found at http://www.indiankanoon.org and is apparently one of the highest awards for damages ever made in India – although it is perhaps less impressive by UK standards.

Now the bad news, which is that the first instance the High Court in Delhi delivered judgment, and granted decree, was on 3 March 2011 – just shy of 33 years after the accident happened and 29 years after the action was raised in 1982.

Mercifully, the defending party does not appear to have taken up its right of appeal to the Supreme Court of India – in which case one wonders if Beer would ever have seen a single rupee. Shocked? Don’t be, because the truth is that Susan Beer’s case is unexceptional in India’s beleaguered justice system.

Judges are severely overworked, and litigants are reported to delay proceedings quite easily by failing to appear, forcing hearings to be postponed. The country has the unenviable claim to the greatest backlog of unresolved legal actions in the world, recently estimated by one High Court judge to be in excess of 30 million cases. Just last month, 11 people were killed and 61 injured when a bomb exploded outside Delhi High Court in a cowardly attack on the criminal justice system.

And yet this is the world’s largest democracy, a favoured daughter of the common law and home to a booming economy which has reported annual growth of 5 per cent, even in these challenging times. What’s more, over the next ten years India is looking to invest £1 trillion in infrastructure; and that is a prize which, for many Scots firms, will be well worth the taking part.

Two things, then, may be worth bearing in mind: firstly, a client moving to, investing or working in India might be well advised to think ahead. It is perhaps simply stating the obvious to say that India is no place to litigate at the moment. Secondly, the new and internationally acclaimed Arbitration (Scotland) Act 2010 offers a robust alternative method of resolving commercial disputes. It is already common knowledge that both Indian and foreign companies operating in India are happily resorting to binding arbitration agreements, in an effort to deliver fast and effective justice at lower cost. An agreement to arbitrate in Scotland could be to everyone’s advantage, and might just help give India’s troubled system some vital breathing space.