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LAW STUDENT STANDS UP TO THE BRITISH GOVERNMENT (english)
by Prof.Dr. Eric Herring
03 Dec 2002
Of course, the law is political, and the politics surfaced quickly.
In October 2001, Jo Wilding, now a part-time law student at the University of the West of England (UWE) in Bristol, took pencils, medical supplies and textbooks to Iraq and returned from Iraq with dates, fig jam, date syrup, musical instruments and a few Iraqi dinars in order to raise funds for further humanitarian supplies. The export of such supplies to Iraq is not banned, as humanitarian goods are formally exempt from the sanctions. Importation from Iraq (other than of oil sold via the UN Oil For Food programme in which the UN controls any financial proceeds) of any goods is banned under the sanctions.
Posted to Indymedia Belgium by Dirk Adriaensens. Reposted here by Willem Jansen.
Prof.Dr Eric Herring was a peace inspector in Iraq april 2002.
Wilding did not apply for an export licence to Iraq and she did not declare the Iraqi goods to Customs and Excise until after she had sold many of them. She invited Customs and Exercise to prosecute her in a civil action, which it did, demanding that the courts permit them to dispose of the goods they had seized. The case came to court in Bristol on 2 December 2002 and I, along with more than fifty supporters of Wilding, attended. Wilding chose to defend herself. The Crown solicitor, Sutherland-Williams, was accompanied by a Customs and Excise officer and the Customs and Excise press officer.
The essence of the Crown's legal case was that she admitted that she had acted contrary to the Statutory Instruments requiring her to have a licence and to not import the goods; that the issue of human rights was not relevant; and that the magistrate was therefore required to grant the request of Customs and Excise. Sutherland-Williams pointed out that if she had applied to the Department for Trade and Industry (DTI) for a licence, it may have been granted, but she did not try to obtain one.
The essence of Wilding's legal case was that the relevant Statutory Instruments are secondary legislation which contravened two pieces of primary UK legislation, namely, the Genocide Act and the Geneva Conventions Act. This meant that the Statutory Instruments were ultra vires and had no legal effect. She therefore demanded the return of her goods. She did not apply for a licence because the issue at stake was not whether she could take those particular items to Iraq. Her argument was that the licensing system within the sanctions as a whole had operated in a way that failed to prevent a humanitarian catastrophe in Iraq and therefore it was in contravention of the Genocide Act and Geneva Conventions Act. In support of her position, she provided a document which she had written which quoted extensively from a variety of sources, including UN documents.
Of course, the law is political, and the politics surfaced quickly. Sutherland-Williams took the position that this was a straightforward case in which the only matter before the court was whether or not Wilding had breached the Statutory Instruments, she admitted she had, and so the court was bound to find in favour of the Crown. However, he spent a great deal of time sneering at Wilding ('she should summarise her main points if she has any', 'any law student could come up with a similar argument by copying it from a textbook', her submission is 'riddled with quotes some of which may be taken completely out of context'). He said that 'We are not here to address political issues' then immediately added 'maybe what is happening in Iraq is the responsibility of the regime'. He also managed to find four opportunities to refer to the fact that she was of no fixed abode and living in a variety of squats. The relevance of this to the Statutory Instruments is not obvious: its relevance to the notion that she was not a fit person is. When Wilding began her rebuttal on the basis of her supporting document, he interrupted 'We've read it - do you have anything new to add?'. He initially suggested that Wilding should be restricted to saying things which were not in her documents and then proposed to the magistrate that Wilding should be restricted to offering a summary. This despite the fact that in presenting his case he provided nothing new in addition to his documentation: he read out detail at great length, including information about who she travelled to Iraq with, what route she took, how much her ticket cost, and who drove her from Amman to Baghdad.
At no point did the magistrate, who is a lay person advised by a legally qualified clerk, restrain Sutherland-Williams. When Wilding commented that Sutherland-Williams had been arrogant and patronising, the magistrate rebuked her for calling him those things, not him for being those things. The magistrate allowed Sutherland-Williams to provide extensive irrelevant detail read out word for word from his documentation while requiring Wilding to summarise hers briefly. Having said that, the magistrate was also very gentle with Wilding and emphasised that she should take her time. The clerk put it succinctly for the magistrate: 'The question you have to decide is whether, on the balance of probabilities, the Statutory Instruments are legal or not'.
The magistrate found in favour of the Crown. The grounds asserted by the magistrate without any elaboration were that there is 'No evidence that the licensing system materially restricts the exportation of humanitarian goods to Iraq'.
The denouement provided further insights into the politics of the law. Sutherland-Williams requested that Wilding be required to pay £1,000 towards the Crown's costs to deter her and others from bringing about such court cases in future, in addition to simply ensuring that the taxpayers recoup some of their costs. Anticipating the point that Wilding, as a part-time student, would be unable to pay such an amount, Sutherland- Williams noted that in civil cases, costs may be awarded without reference to the ability of the losing side to pay. However, the clerk unexpectedly stepped in and informed the magistrate that deterrence is a matter for criminal cases and observed out that Wilding faced no criminal charges (though the Crown could have proffered them if it had wished to do so for her actions). He stated that, while winners should not be disadvantaged, losers should not be deterred from bringing suits, otherwise civil law would become the preserve of those who could afford it. This provoked a great round of applause from Wilding's supporters. The magistrate decided to award the Crown £100 in costs, which is only a small proportion of what Sutherland-Williams had demanded. This represented a symbolic setback for the Crown, especially taking into account the fact that, even before the magistrate gave a figure, Wilding had declared her determination to repeat what she had done and to refuse to pay whatever amount it happened to be.
A lawyer who had been sitting in court awaiting another case told Wilding before the verdict 'You have lost'. It is standard disempowering practice to represent to campaigners their actions as failures, whatever happens, and so it is important here to indicate the victories that day. In non-violent civil disobedience, as with all social situations, demeanour is a significant part of the process and the outcome. Sutherland-Williams came across as petty and vindictive, while Wilding's warmth and frequent happy smiles, and careful responses to the taunts directed at her, communicated a strong sense of rightness. For a winner, Sutherland-Williams left looking like a loser. The greatest victory of the day was that over fifty people did something positive in the face of the illegitimate power of the state that day, supporting Wilding in her action. As Howard Zinn put it:
If we do act, in however, small a way, we don't have to wait for some grand utopian future. The future is an infinite succession of presents, and to live NOW as we think human beings should live, in defiance of all that is bad around us, is itself a marvellous victory.
Wilding will feel emboldened and supported to act again, with lessons learned from how this action went. The local television and print coverage which resulted will have reached many people, and it may have been just enough to provide that last incentive to others to believe that they too can do something worthwhile. It is at least as plausible that social progress occurs from the bottom up through the cumulation of vast numbers of acts never even known about in wider society as through famous interventions from the top down.
Wilding intends to return to Iraq in January with more humanitarian supplies. If you want to send her letters of support or make a contribution, you can contact her on gurneyernie (at) yahoo.co.uk
Dr. Eric Herring
Senior Lecturer in International Politics
eric.herring (at) bristol.ac.uk
Department of Politics
University of Bristol
10 Priory Road
Bristol BS8 1TU
Office tel. +44-(0)117-928-8582
Mobile tel. +44-(0)7771-966608