Jerry wrote:CopperLine wrote:YFred wrote:Jerry wrote:Let's not get carried away with this, it's not a done deal yet. Whilst I still believe the decision is likely to be in MrA's favour I still have a nagging doubt about the claim of bias. At the time in Court I saw the argument about actual and apparent bias as legal nit picking, now I'm not so sure. The importance of this difference is the test for apparent bias.
Ask yourself, as a fair-minded person, if you saw a Greek judge sitting on a case between a Greek speaker and another would you assume an element of bias. That is the question the judges need to address, they could decide there was apparent bias but the presence of the other judges negated this. Mr A's counsel countered the bias claim with lengthy and complex (to me at least) arguments. We do not yet know the judges reaction to them but they did not appear to "pull up" Mr Beasley in the same way they had Orams counsel the day before.
Politics probably wont come into it but we will never know if a delayed or fudged decision is the result of someone having a quiet word in another's ear.
Bill my have thoughts on this, I'm off for the day.
This sentence is the most telling. " We do not yet know the judges reaction to them but they did not appear to "pull up" Mr Beasley in the same way they had Orams counsel the day before." Judges are meant to ask searching questions to both lawyers and the lack of these questions to Mr A's side is not sounding as fair as it should have been. Does it?
YFredThe English legal system and court culture is generally different to that which you have presented. Judges
tend to ask questions of clarification, either to counsel or very occasionally to litigants themselves. Judges are not investigators - unlike some contintental traditions of investigating magistrates - and therefore are not, as it were, looking for the truth themselves. Assuming that a case has merits to go to court, then they are listening/judging between two (or more) stories or interpretations. They do not say to counsel "that's not a very good argument" or "that's a rubbish interpretation of law" or, therefore ask counsel questions which will assist counsel present a case. They're not there to help or hinder counsel. However if they are not sure what counsel means or is arguing they may ask clarificatory questions. So, for example, if a judge asks counsel some questions that could as easily mean that counsel is making a confused and confusing argument as it does that the judge is sympathetic to that line of argumentation. The judge's asking of this kind of question might not tell you at all which way s/he is leaning (formally speaking they don't lean either way until the composition of the judgment).
Having said that it is not uncommon to hear a judge intervening to indicate, more or less explicitly, whether a particular line will be heard. If there is a bad or poor argument - either in principle of even as a result of poor phrasing by the counsel - a judge may well tell counsel that they're wasting their time. On other occasions a judge may tell counsel "we've already heard that. Move on." Again that could be either a negative sign (frustration of the judge to the same argument/evidence) or it could be positive (encouraging counsel to make other points).
Experienced counsel will be able to 'read' judges and interpret everything from their body language to their inflection of certain words and phrases. Remember also that at this level - appeal court - the chances are that counsel have been before the three judges in previous cases, and they will certainly have discussed with colleagues the judges' record and temperament. (Also bear in mind class power : these judges are
all Oxford and Cambridge educated, as are most senior counsel, QCs. The appeal court judges are likely to have been the senior people from the chambers in which the current generation of senior counsel are now senior members. Their children will go to the same schools, share the same social circuit, share the same ruling class culture. This is how politics manifests itself in law, not really in the political biases that people normally think about. If you are not part of that ruling class culture then it is quite difficult to interpret the grunts, sighs and voice tones of the court ritual).
I don't know for sure, because I didn't witness the event, but the report that
" We do not yet know the judges reaction to them but they did not appear to "pull up" Mr Beasley in the same way they had Orams counsel the day before."
does not strike me as a problem or evidence of unfairness. I would 'pull up' counsel if they're trying to launch something that just will not fly. It is not fair to anyone, counsel included, running a forlorn hope.
Copperline is correct in his explanation of a judge's intervention in Court. This is why I suggested that Orams were on the back foot. They tried to introduce late evidence, they twice apologised for errors (one was a typo), I believe they made procedural errors and the judges were not having any of it. It has been better described as appearing to "clutch at straws".
Ms Booth said quite clearly there was no suggestion (or accusation) of ACTUAL bias, they tried to offer evidence of bias claiming that it was
apparent bias. Orams counsel, to my mind, dare not
accuse judge Skouris of actual bias they then tried to prove it was but called it something else - apparent bias. This is, according to the Bangalore Principles, was all they needed to do.
I must say that it is odd that some people persist in complaining when things don't go there way "saying it is not fair". Both sides have issues with each other. I cannot for the life of me see how the illegal acquisition and sale of property can ever be justified, excused or defended - wherever it happens on the island.
If the TCs fairly win legitimate claims in the European Courts I will applaud the result because the law will have prevailed as I hope it will in Apostolides v. Orams.
Absolutely agree with the sentiments expressed in the last couple of paras above.
It further seems very peculiar to me that some here and elsewhere, including Unofficial Muhktari Talat on several occasions recently, call for International Arbitration.
Well, haven't we had several cases of International Arbitration?
Arbitration, on several occasions, by the Senior Jurists of the ECJ and the ECHR? ... and these same people who call for this International Arbitration aren't they the first to throw tantrums and shout claims of "unfair" and "bias" when decisions of the world's leading jurists go against them?
There are several examples in the recent history of CyProb (you'll all be aware of them, covered many, many times here). Here is one of them... the matter of Varnava v Turkey.
Here's a brief summary ...
" Judgment of European Court of Human Rights dated 10 January 2008 in the case of Varnava and Others v Turkey - Greek-Cypriot Missing Persons
On 10 January 2007, the European Court of Human Rights (ECHR) delivered its judgment in the case of Varnava and Others v Turkey (Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90) by which Turkey was found guilty of violating the rights of nine Greek-Cypriot missing persons and their relatives. The nine were combatants, except for Savvas Hadjipanteli whose remains have been identified. They were all seen alive after their capture by the Turkish army in Cyprus and in Turkey where they had been transported as prisoners of war.
?he seven-judge panel of the ECHR’s Third Section, with only the judge from Turkey dissenting, held Turkey responsible for the violation of the following articles of the European Convention on Human Rights: ...(etc etc) "
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A matter resolved by International Jurists of the highest calibre (with the exception of the judge from Turkey of course). The interesting thing about it and some other similarly damning judgments against Turkey (again all will be aware of them) was that the sole dissenting voice amongst these learned jurists was...... THE JUDGE FROM TURKEY !!!!!!
There is the bias, a very real bias, no ifs or buts, no may be's, no "possible" bias, no "apparent" bias but BIAS- PURE AND SIMPLE! ...
....and which of our tantrum throwing usual suspects have picked up on and condemned this bias from the Judges Under Orders From Turkey, these judges from Turkey who break their oaths of office and know what is expected from them by the Motherland? These judges of little or no integrity who have been nobbled by Turkey ...
Not a single bleeding one of them!!
