Reviews of Journal of Elder Law and Capacity; Trials: On Death Row in Pakistan (Buchanan)
Journal of Elder Law and Capacity

Publisher: Law Society of Northern Ireland
ISSN: 2632-3923

On the evidence of its first issue, this new Journal will be essential reading for everyone, everywhere in the British Isles, engaged or interested in any of the wide areas of law and practice within its intended coverage. Many in the British Isles regretted the demise of the Elder Law Journal. It is remarkable and commendable that the smallest Law Society in these islands, the Law Society of Northern Ireland, should carry through to fruition a remarkable initiative not only to replace ELJ, but to broaden the coverage “to include issues affecting vulnerable adults, including those with learning disabilities or personal impairments”.

Such is the intended coverage set out in the “Message from the Chair” in the opening pages of this first issue – the chair being the chair of the editorial panel, Linda Johnston, a solicitor and member of STEP who has practised in Northern Ireland for many years but is well known beyond that small jurisdiction, and who was perhaps the main driving force behind this initiative. It is a clear declaration of an intention to be the authoritative Journal for the whole British Isles that the very first article is written by Alex Ruck Keene, the only common member of the Mental Health & Disability Committees of the Law Society of Scotland and of the Law Society (England & Wales), reviewing recent and current reforms in adults with incapacity (mental capacity) law in all of the jurisdictions of the United Kingdom and Republic of Ireland.

Of the several themes reviewed by Alex, of particular interest in Scotland, as the Scott review commences work, is the question of how well the relevant parts of any particular legal system can handle uncertainty. As Alex summarises his views: “The better that they can handle it, the easier it is to come up with more creative solutions to problems which maximise the chances of getting the ‘right’ answer in any given situation. The more difficult they find it to handle it, the more rigid the approach that they have to take, and the greater the consequence for harsh outcomes in any given case.”

In his concluding contribution, Gordon Ashton reflects on his experience as both lawyer (latterly judge, and now retired) and carer in his long career, dominated by his concerns over access to justice for people with disabilities. Here again, is a strong Anglo-Scottish theme. It was Gordon’s idea to co-opt me as joint author (and very much junior partner) in writing Mental Handicap and the Law, published in 1992. That the book covered both legal systems drew a generous commendation from Lord Mackay of Clashfern in the foreword to the book. It is rather interesting to note the extent to which some of the styles offered in that book have become embedded in standard wordings still adopted by many Scottish firms, appearing in deeds of trust, powers sought in guardianship applications, and so forth.

Between Alex’s opening contribution, and the concluding article by Gordon, there is much of straightforward practical value. Dr Barbara English contributes in perceptive detail on the subject of capacity assessments, with invaluable advice for those who instruct them. Relevant observations and practical advice are provided by Mark Borland on advising clients who are considering disposing of their homes, while on the subject of where to go next Caroline Bielanska’s title speaks for itself – “Care homes: never judge a book by its cover”. A further practical item by Patricia Southern, mainly of relevance in Northern Ireland, addresses the issue of top-up payments and agreements in relation to residential and nursing home care. Also mainly of Northern Irish interest, but some general interest, is an article by Sheena Grattan on rights of residence from the perspective of elderly and vulnerable people.

An update at the beginning of this issue covers some news items not limited to Northern Ireland, and it concludes with some case notes with reports from both Northern Ireland and England & Wales. It is understood that for the future it is intended also to cover “particularly relevant and interesting” cases from Scotland.

On reading for review, it was noted that the right-hand margins of this first issue are not justified, and also that no form of citation was proposed. It is understood that it is now intended that right-hand margins should be justified in future, and that the editorial panel has agreed that the continuous citation should be “JELC”, to be included in the imprint section of the next issue.

Adrian D Ward, Email: adrian@adward.co.uk

Trials: On Death Row in Pakistan

Isabel Buchanan

Publisher: Jonathan Cape
ISBN: 978-0224102100
Price: £16.99 (e-book: £7.99)

In 2009, Pakistani lawyer Sarah Belal established Justice Project Pakistan, founded to help people on death row who had had no, or inadequate, legal representation. In 2011 she was joined by newly qualified Scottish lawyer, Isabel Buchanan. Isabel worked with Sarah for three years until renewal of her visa was denied. This book recounts her remarkable experiences.

When she began writing, there were at least 8,000 people on death row in Pakistan. The country’s former Minister for Human Rights estimated that roughly two-thirds of these people were innocent. One reads this with fascination – the horrid fascination which most of us could experience only by visiting the reptile house at the zoo. A system not just underresourced and creaking, but one riddled with corruption, where police torture is commonplace, and where the administration of justice can be swayed by all manner of external factors.

At the outset, Justice Project Pakistan involved itself only in capital cases. Later it became involved in the highly charged and dangerous business of blasphemy cases, dangerous as much for the legal representatives as for the accused. Want rid of a troublesome neighbour or business associate? Well, a strategically placed allegation that he insulted the Prophet may well keep him otherwise occupied, with extreme prejudice. One of JPP’s greatest successes was securing the release of 42 Pakistani detainees from Bagram in Afghanistan. You may not know of Bagram, but you will know of Guantanamo Bay. Isabel’s client was working on a project boring for water when he was detained by US Special Forces. As with people in Guantanamo Bay he was detained indefinitely without trial, effectively stateless and beyond the reach of justice. Until, that is, Sarah and her team intervened.

Lest we in the west become too sniffy about the flaws in the Pakistani system, heed Isabel’s words. “It is deeply concerning that America, home to one of the world’s greatest democratic revolutions, abandoned laws of evidence in deciding to detain these men.”

Isabel says that the book was born of frustration, in her case at having been effectively expelled because of her work. One tiny frustration for the reader is that in some of the cases described we do not know the outcome. Perhaps, of course, there hasn’t been one. That’s not so in the matter of Zulfikar Ali Khan. Sarah was advised to leave the country in the aftermath of the Taliban massacre in Peshawar’s Army Public School. While she was away, Khan was executed. Sarah took the first plane back.

The Author
Reviews edited by David J Dickson
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