Archive for the ‘Civil Rights’ Category

If you’re looking for a tempered, adult review of the new Injunction to Prevent Nuisance and Annoyance (IPNA), then please, check out this most excellent post on the Justice Gap by Penelope Gibbs

http://thejusticegap.com/2013/12/new-asbos-attack-civil-liberties-young/

However, if you’re looking for an irreverent, bordering on childish review of the IPNA, then do read on…

The ABSI – anti social behaviour injunction – is soon to be laid to rest. As is it’s famous brother the ASBO – the anti social behaviour order. And instead is to be replaced with a variety of exciting sounding orders, Community Protection Orders, CRASBOs, Public Spaces Protection Orders. The list is endless.

Ladies and gentlemen, you are going to be clad in protective orders when you leave your home.

And the best of these orders is the IPNA.

Ah yes, for no longer will you be caused nuisance or annoyed, and if you are? To the County Court, an injunction, and the threat of contempt of Court for those who dare break their IPNA.

What’s that I hear you say?

We’ve heard it all before

The ASBO was supposed to prevent people leaving their dog mess and children playing football on non-FA approved premises. But, it failed. Children are still seen on the streets. The elderly are asked to donate to charity by people wearing onesies. Just this very morning Mrs Jones from number 42 was asking for signatures on her petition about the leisure centre, again.

How will these fiends be stopped?

Never fear, Theresa May is here! They will be stopped with the IPNA.

You see, the ASBO, it’s too liberal. The most recent Labour Government (known for their mild stance on criminal justice and unswerving commitment to civil liberty) were too soft.

For an ASBO one had to prove that a person’s conduct was likely to cause ‘harassment, alarm of distress.’ Forget that, too difficult, too high a threshold. The coalition laugh at that puny test. The IPNA, it’s new, it’s streamlined, it’s easy to get an order.

Now! The test for the IPNA is:  is conduct “capable of causing nuisance or annoyance to any person”

Ah yes, we’re getting somewhere. Mrs Jones, you’re going to get served, you annoy me everyday with that damn leisure centre petition.

Also, big problem with ASBOS was the standard of proof. You see, you had to prove, to the criminal standard, i.e beyond reasonable doubt that someone had committed anti-social behaviour. Yawn. As an Oxford jury once said: ‘we’re sure there’s a doubt, we’re just deciding whether it’s a reasonable one.’ ASBOs required evidence to make the Court imposing it, ‘sure’ that a person committed ASB. It’s such a high threshold, and requires things like evidence.

Never fear! IPNA IS HERE. That boring, feisty old high standard of proof has gone. The coalition have brought is crashing down.

Low, low, thresholds of proof

Forget proving it beyond reasonable doubt, now, just on the balance of probabilities. Is it more likely than not that Mrs Jones annoys me? HELLO.Bang

And don’t you worry, all those pesky lawyers won’t get in the way. The coalition are taking IPNAs and planting them firmly in the County Court, no duty solicitor to cry to when you breach your IPNA, no no, you’re going to JAIL. No legal aid, no liberals are going to stop these. It will be Judges who decide who gets an order, proper ones too, no Magistrates messing things around.  (oh, apart from in the case of those under 18 – that goes to the Youth Court – weird huh – never mind. And appeal from the Youth Court is to the Crown Court – even weirder)

Bang and the dirt is gone

He’s making a list, he’s checking it twice, he’s going to decide arbitrarily who is naughty or nice

It’s actually, amazing, an annoyance free life. I’ve been reading the Bill, section 1, IPNAs can be made against anybody 10 or over. Not too shabby, that’ll get the kids playing football at the end of the street.

Now with all this good news, there has to be some bad. And that’s section 4 of the Act. You see, private individuals can’t apply for IPNAs. Shame huh?

It’s fabulous, the police will be able to get injunctions against those smelly protestors and the council against those dog walkers on the green.

And it’ll just be so easy. That’s the best thing.

But it’s still broad, all you’ve got to do is get someone to listen, local authority, housing authority, police, TFL, even the environment agency. Don’t worry, I’ll write to them all about Mrs Jones from number 42.

Get your shares in G4S now, we’re gunna need more prisons

In 2010, Theresa May complained that ASBOs didn’t work, in particular they put people (especially young people) on a ‘conveyor belt’ to prison. Looking at this Bill, it’s just a licence for two things: (1) local authorities to answer banal, low level complaints with complete overkill, (2)  the police to injunct/enjoin people from doing annoying but perfectly lawful things: i.e peaceful protest.

The net result is that your liberty is threatened again.

And when it is threatened it seems highly unlikely that there will be any legal aid there to provide for a lawyer.

Contact your MP now.

FTD

 

 

I’m sure St Basil’s Cathedral is beautiful and that borsch grows on you, but, I don’t want to live in Russia. Nor do I want to live in Zimbabwe, North Korea, Iran or any other country that doesn’t recognise basic human rights.

I’m not asking for much: I want to live in a country where I can express myself freely without the risk of arrest, where I can practice my religion (or lack thereof), where I can live freely without unlawful interference of my property or person by the State, where I won’t be locked up without due process.

Theresa May said yesterday that the next Conservative Manifesto would promise to repeal the Human Rights Act.

As an aside, the Human Rights Act doesn’t actually give anybody any new rights. What it simply does is incorporate the European Convention on Human Rights directly into English law. I.e, you can enforce one of your ECHR rights in an English Court of any level, rather than having to go to every English Court and then go to Strasbourg. If you didn’t know, you have had ECHR rights since the 1950s, they were thought to be essential by great men and women: Churchill. Being a signatory to the Convention is a necessary condition before a nation is able to ascend to EU membership.

The ECHR is simple enough, google it, simple things like the right to life, the right to a fair trial. Things that you want, that you expect.

Let’s be honest, Theresa May isn’t saying that she doesn’t want you to have those rights. She’s keen to express herself and live freely without the risk of arbitrary arrest.

No, the truth is, that a poisonous section of our society do not like the universal aspect of human rights.

And that varies in degree:

Why should prisoners have rights? They committed crimes, they’ve been taken out of society.

Why should asylum seekers have rights? They aren’t in their home country, they’re guests in somebody elses.

Why should the unemployed have rights? They aren’t contributing economically to society, why should they be protected by it.

Uncomfortable yet? My skin is crawling.

What about disabled people with genetic conditions. Should they have the unfettered right to reproduce?

Or, what about the mentally ill? Or children?

Now I’m feeling a little sick.

The haves and have nots

Repeal the Human Rights Act, in reality we’re all have nots. Not being able to directly enforce one’s Convention rights in domestic Courts is not a positive thing. Nor, in reality to any of us benefit from the legal situation of suddenly extracting those rights from the system, especially when 10 years of common law decisions are based on the Convention having direct effect. Legal uncertainty is not a good thing, especially when it concerns the rights of the individual.

The citizens and the slaves

Those with a historic inclination would be probably say that the Magna Carta is the first real human rights document, and hoorah, it’s British. But, there is a simpler, much earlier document:

When Cyrus the Great conquered Babylon he freed all of the city’s slaves. He declared that all races were equal and that one was free to choose one’s own religion. That was in 539 BC.

My view is simple. There is a minimum standard that everyone deserves. If you decide that certain people don’t deserve that minimum standard then they are little more than slaves.

If you argue that not everyone deserves human rights, then be sure never to visit a country where human rights aren’t universal, as you may find yourself in that minority without protection.

FTD

I’ve never been a good spectator and I’ve never been a great athlete, the result is that I’m not the biggest fan of ‘sport’. Don’t get me wrong, I like international football and watch rugby and cricket, I’ll even throw a rugby ball about, or knock a few tennis balls about, but for me, that’s the extent of its impact on my life.

For some people, sport is much more important – fine, each to their own.

But I have to be honest, ‘sport’ and I use that big term, is annoying me at the moment. Not individual sports, but sport.

Sport is annoying me because it wants so much, but not really any responsibility.

Funding sport

Again, that big term, ‘sport’. And in this Country we have Sport England. Sport England have two roles, (1) they act a sort of statutory guardian for England’s playing fields, (2) they hand out money.

The money handed out, is not only money from the lottery, it is also money from the taxpayer. And, I don’t worry about it, sport is good for the economic well being of the nation and its physical health.

Great.

If you’ve got my money

Then, I object to it being spent to send athletes to a country where gay people are marginalised and brutalised.

After the Prime Minister has indicated that there will be no general boycott of the Russian Winter Olympics in Sochi, supported by Lord Coe.

Lord Coe who apparently said of boycotts: “They only damage one group of people and that is the athletes,”

The Winter Olympics give prominence, economic benefit and prestige to any country that hosts them. I do not believe that we, as a country, should financially support athletes who wish to participate in those games. Participation in those games is a form of endorsement of Russia.

My taxes ought not be spent endorsing homophobia.

The idea

is that sport and Government, or sport and society are somehow separate. That is why FIFA have got away for so long with allowing racism in football. It’s rubbish.

If sport wants Government money then it ought to stick by Government policy. And one would hope that Government policy is not: homophobia is fine. Rather instead, that we ought to strive for all forms of equality.

Sport has to start playing by the rules.

FTD

Come on then…you…

Posted: 30/05/2013 in Civil Rights, Legal aid
Tags:

It’s usually followed by a four letter expletive. I’ve noticed, in witness statements, charge sheets, nicking sheets, that a particular expletive will be in fashion for a time, before being replaced by something new to challenge the authorities with.

The changing expletive is usually the only matter of any interest in one of those trials. It quite sunk in to me how boring those trials were, when a prosecutor, a year or 18 months ago, with great theatrics, repeated back to a police officer,

‘And then the Defendant said to you, come on then you pussio’

No doubt the prosecutor was expecting a reaction from the three female Magistrates’, none of whom even batted an eyelid and could have yawned in unison.

And, I’m sorry that it’s boring, but I am going to do what my clients do.

I am going to posture. Chest is puffed out.

I am going to bend at the knees. Braces holding.

I am going to gesture with both hands. Cufflinks chafing.

And, I am going to exclaim:

Come on then Grayling… you….

Sarah Forshaw says I’m not allowed to be abusive. And, I don’t particularly want to be hauled up in front of the Bar Council for writing nasty words so…

Come on then Grayling you coward

Because more I reflect on the Government’s proposals for legal aid, more I realise it’s not really about the money.

Whole legal aid budget is something like £2.2 billion, before the knifing.

Foreign aid, which let’s face it, the general public like even less than legal aid, gets £8.8 billion and is nicely ring fenced.

I think £2.2 billion is around less than 0.5% of GDP.

Peanuts.

But you know what legal aid costs the Government most in? Oh it’s capital, but of the political variety.

Grayling’s pathetic spin

Grayling is spinning the legal aid cuts to his back benchers and Daily Mail constituents as: stopping wasteful and frivolous legal challenges by naughty people.

Yes, that’s right, I spend my days in chambers, penning judicial review grounds on top of judicial review grounds,

Judicially review the police for not giving my client a plaster after he tripped getting out of a police van.

Judicially review the prison service for not giving my client the correct tog of blanket in his cell.

Head to Strasbourg  first class to argue before the European Court of Human Rights that English prisoners should get playstation 3s.

Yawn.

It’s all propaganda and it’s cheap and rubbish propaganda at that.

But, it’s in response to something

You see, the problem with legal aid is this: at the moment, the financial reward is such that you can just about tempt decent graduates (with enough passion and interest) into legally aided work and away from privately funded work.

But the problem with decent graduates with passion, is they turn into pretty handy lawyers.

And handy lawyers can deposit a large amount of egg on a Governmental face.

Prisoners’ votes, Abu Qatada, Gary McKinnon, Julian Assange, bedroom tax  and so on…

Government loses in Court is hardly an attractive headline.

The cuts, especially in prison law are arrogant. The Government says, you don’t need judicial review, prisoners can sort out these problems within establishments. Well that is complete rubbish and well documented rubbish when you consider that the likes of HMP Rochester has a huge drugs and bullying problem. If they can’t sort out drugs and bullying, one doubts their capacity to sort out the nuances of securing a prisoner’s rights.

The cuts in prison law are about stopping prisoners challenging the decisions of prison authorities. They’re not about saving money.

And, can I just correct another piece of propaganda. High Court Judges do not hand out judgments for prisoners, or criminal defendants like sweeties to children. It is rare that any challenge succeeds.

And when does a challenge succeed? When a Government department has erred in law.

Being able to hold a Government department to account in Court is essential for maintaining the rule of law. And maintaining the rule of law, is the soul of democracy.

With Treasury Counsel commanding higher fees than we legal aid lawyers, with a conservative Court who does not quickly interfere with Government decisions and a prisoner-rights skeptic public, then Grayling has it all on his side.

It seems rather cowardly in the circumstances to take away the ability to challenge the Government away.

A cynic would wonder whether it was simply a case that the Government doesn’t want to risk losing face in the Courts anymore…

… or worse, that democracy and the rule of law come second to the view of the sky news red button.

FTD

Hypothesis

Sitting in his lab in Petty France, #FailingGrayling is planning his experiment in criminal justice. It’s simple. Save money. How? Reduce the number of criminal defence legal aid contracts. Take away the choice a Defendant has. Make it a race to provide the cheapest service possible.

Why this is an experiment

Let’s face it, the Government has always contracted out legal defence work. The English and Welsh legal system, minus a very small (and costly) attempt at a public defender system has always relied on the private sector to provide defence services to individuals facing prosecution.

What is being suggested has never been done before in England and Wales. (Nor, for reasons I explain below is it done in America – contrary to some comments that it exists in the US already).

I also want to say at this stage, the Americans write scholarly articles, study (!) our legal aid system in their jurisprudence classes as the model example – soon they won’t.

What is being suggested

Effectively, the Government want to contract out to fewer providers who compete to provide criminal defence over large areas. The Defendant (if entitled to legal aid) does not get a choice of provider, he is allotted a criminal firm who represent him from interview thru trial.

The contracts will be provided to those ‘firms’ (which can include people like Tescos, Eddie Stobart, G4S) who offer to fulfil the contracts for the cheapest price in the tender.

How it works at the moment

If you’re charged with a criminal offence you have three choices. (1) You pick a criminal defence firm with a legal aid contract, if entitled to legal aid, they represent you. (2) You choose a criminal defence firm and you pay them out of your own pocket (or in very few cases your professional body/ trade union/insurer pays.) (3) You represent yourself.

So, like the NHS choices policy, you can shop around, decide which lawyer you want and providing they do legal aid work  you can pick them. Or, you can pick a legal provider depending on what you can afford. Or, you go without.

How it will work

If you’ve got a job you’re unlikely to get legal aid. If you’ve got a mortgage it seems nigh on impossible.

If you’re lucky enough to get legal aid, you get Eddie Stobart allotted to you.

The effect

It’s important for the public to understand what #FailingGrayling is doing. There’s a few things which you need to know.

1) Choice. If you’re lucky enough to never come into the criminal justice system then you probably think, why should I care whether a criminal, or an accused person properly, can choose their lawyer. Well, the first thing you should be concerned about is, ironically, cost. There are families, individuals, who I have been representing since I’ve been in Barristerial nappies. They choose X as their solicitor and I am their barrister. The relationship that we have means that they trust my advice and they consider it and follow it. That relationship avoids trials when they are not needed and means that time (and such cost) can be saved within the system.

If you are lucky enough to get legal aid then you’d be sensible to shop around and choose a specialist solicitor to deal with your problem. A doctor is a doctor. They receive the same training.

The same goes for lawyers. A lawyer is a lawyer. However, we have layered training on top.  So, I am a lawyer. I am a barrister. As a barrister I am a specialist Court litigator.

I am a criminal justice barrister. So, I am experienced in a wide spectrum of law related to the criminal justice system.

I am a criminal defence barrister. In terms of criminal law, I have specialised from day dot in criminal defence. I was taught by defence barristers.

I have various areas of defence specialism, for example, I have specialist knowledge in protest law, various aspects of aggressive trading practices, etc etc.

It is wrong to think that my instructing solicitors are like GPs. They are not. They too have specialist experience. For example, there’s a small cadre of solicitors with protest law experience, there’s a small cadre of solicitor who specialise in different types of business crime and so on.

Grayling’s plan takes away choice. That has certain implications in terms of public funded criminal defence work.

The most obvious is that public funded defenders will have to be more general. More general they are, less specialist knowledge they will have, less specialist knowledge then weaker the defence a Defendant will receive.

It also results in a bit of a lottery in terms of representation. The bigger contracts will probably be more lucrative, so G4S may get South West  London. Comparatively, a smaller more traditional firm may get Cornwall. Post code justice will set in.

You’ve also got the horrible dilemma, is it right that some people can pay for an expert in a certain area can have ’em, if you’re on the legal aid, then you get what you’re given. Justice?

So the experiment will be, with no relationship with their lawyers how much money will be wasted through dithering/disagreement, how much court time will be wasted because a general criminal lawyer doesn’t know the detail in a specialist area and how many people will be convicted because their lawyer doesn’t have the necessary speciality.

 One of the great problems when this was attempted with family law was that highly specialised family law firms, i.e experts in childcare couldn’t get contracts despite their very high quality, why? Because for example they didn’t do legal aid divorce!

The Magic Circle law firms are of such a high quality because their partners and associates specialise in very narrow areas of law.

2) Quality

You’ll notice from the above that quality is at risk in terms of what a client receives.

The risk is wider though.

The experiment will have this effect: each solicitor will be faced with a choice, generally whether they stay in crime or leave it. If they stay, do they stay in a legal aid provider or do they switch to a private provider.

Quite frankly, some solicitors (especially the experienced ones) are not going to put on a Serco Defender uniform and compromise quality. Those more experienced solicitors will bugger off, be it into retirement, private firms, whatever.

Younger lawyers will retrain and go into other areas.

The death of so many firms of solicitors will send entire Barrister chambers into meltdown.

The impact of that is two fold:

a) The expertise will be lost over night. Justice is at risk because of this.

b) This is not an experiment, it’s a point of no return

Point of no return

Despite the fact that the public defender service in the pilot areas is more expensive than the local bar and local solicitors firms (proved), they are to be retained under the new system. Why? Because, the MoJ realise and recognise that the grand experiment might fail.

The problem is if it fails, that experience and expertise is gone. It can’t be got back over night. You can’t over night retrain a load of people up to be experts in the criminal law.

The other point, put well to me by my housemate  is that, this will only save money over a short period. Why?

He’s an NHS manager. His trust contracts out cleaning for example. There are thousands of cleaning companies, if BigCorp gets the contract, they can be undercut in the next tender by OtherBigCorp. Why? Because there is a large quantity of work, individuals can easily be trained to do the job etc etc, market forces can be easily applied.

The problem with legal services is, once you knock out all the small firms and small chambers they’re gone, they’re not going to be able to compete with the big boys.

So, BigCorp can price out all the smaller traditional providers in the first tender. In that three years, people will all go their separate ways. You won’t get anybody back with the necessary size to compete with BigCorp. As such, BigCorp will have no competition. Once BigCorp have no competition what will they do? They’ll put up their prices.

So, you give a monopoly to a private company who are providing less of a service than what existed previously.

But it wasn’t Armageddon in America

Comments in robing rooms and in some quarters of the legal press is that Grayling is proposing a switch to a public defender type system, like America.

I have worked in an American public defender office, can I briefly explain why the American system is totally different and wouldn’t work here:

Simple principle there, can’t afford a lawyer, one will be appointed for you.

i) They don’t contract out work in bulk. Rarely in some cities and counties, you still have a panel of attorneys, who are given a case on a rota almost and they defend you. These are mostly used in very rural areas.

ii) A lot of the better public defenders have to run on a mix of public funds and charitable donations. In particular the Death Penalty Defenders. This really is how the legal team at the Howard League and the Prisoners’ Advice Service work in this country.

iii) Public defenders proper. They are public appointed, Government employees who are contracted full time as civil servants if you like, to defend people.

So Grayling is not switching to the American system. If somebody suggests that to you, they are wrong. The catering in a hospital or a school isn’t the same as the entire criminal defence system!

This is, an experiment. And what has to be realised is that some experiments go wrong. The Government and tabloid press might see criminal lawyers as rats, but they’re wrong to think that you can experiment on us without a consequence.

Unlike rats, there are a finite number of us.

But like rats, we know when there’s a sinking ship.

I implore anyone in politics to challenge this experiment, the consequences of it going wrong will be dire for criminal justice.

FTD

In the outer atmosphere, hovering over Temple, the Evil Lord Chancellor (#failinggrayling) is building his legislative death star. Once complete it will rain havoc on the chambers below, obliterating them.

The publicly funded Bar has about the same defensive capacity as the average ewok. We shake our fists at the evil empire, as  MOJ civil servants maraud about Fleet Street in those big walker things crushing stray solicitors and counsel as they go.

There is though hope, Maura McGowan has shown herself handy with a light sabre, Sarah Forshaw and Michael Turner can aim a blaster gun. But still, the power of the dark side of the force is strong.

Return of the Jedi

The most memorable scene of all of the new Star Wars films is when young Darth Vader pops off to Jedi Elementary School and kills of all the ickle Jedi, bottom lips quivered world wide.

And the same is happening now. In March, most young Barristers have a follower hanging onto their coat tails. It’s a pupil barrister generally coming to the end of their non-practicing 6 months of pupillage and about to go into the big bad world and fight for justice.

As a form of informal training they follow about the young Barrister, pick up on tricks of the trade and generally learn when to sit down, stand up and speak and shut up. I know I’m older now, but, to me, there are less younglings about.

Every chambers seems to be advertising for 3rd sixes (barristers who have qualified but not been taken on as tenants) and there would seem to be a genuine thinning at the bottom end of the profession. Despite this, the Bar Council say that the number of criminal law pupillages has remained stable, despite this, not a single chambers outside of the South Eastern circuit offered a ‘criminal law-only pupillage’ this year!

In 2012, 58 criminal pupillages were completed. In the same year there were 88 new silks, at least 30 or so of whom are criminal barristers. The statistics are not good. The profession is not growing it is shrinking. Last year saw the profession lose a number of stalwarts to retirement tired of their treatment.

To borrow from a wise Rabbi

He who refuses to learn deserves extinction. 

And, the Bar simply have not reflected on their mistakes. Instead they have allowed the slow erosion of the profession.

Needed now is an old master, someone who has been where the Bar are, someone who knows how important they are to the preservation of justice and democracy in this country. A popular face to unite we Jedi and provide us with our Luke Skywalker to finally defeat the darkside of the force.

We are not going to find our Yoda in a swamp, nor even in a cottage in Buckinghamshire or Surrey. No, we are going to find them in a dusty chambers on the Strand. Somewhere, nestled in the Royal Courts of Justice is our Yoda. One of this country’s most senior criminal law Judges.

Time and time again, the Judiciary have shown that they can dance around politicians of all persuasion and now we need them to stand up for us. If the Judiciary come into the equation and start warning about access to justice (or lack thereof) then there is another powerful voice on side. Time for the Jedi to open their address books…

Word of caution

Asking the Judiciary to speak out and criticise the Government is, to an extent, contrary to democracy, contrary to the separation of powers.

However, the Government have fired enough broadsides at the Judiciary of late, (and more principle less playground FTD) if the Government get their way then access to justice will be limited to such an extent that the protections supposedly enjoyed in a democratic society won’t be enforceable.

So to the Judges:

You’re damned if you do and damned if you don’t

Or as Yoda would put it,

Damned you are if you do, damned you are if you don’t

FTD

‘Eddie fucking Stobart?’ Barked the Bearded Monogamist.

‘Eddie Stobart, Tescos, the Co0op, G4S, Serco’ I replied.

‘Eddie Stobart is a hauliers’ by now the Bearded Monogamist looked very confused indeed.

‘I don’t get it’ Said another friend

‘Basically, the Government will put criminal legal aid out to contract. Big companies doing the defending for the lowest price possible. For profit of course.’ I explained shortly, ‘in two years time, there will not be an independent criminal bar.’

‘Why do you never hear about this stuff.’  Asked our female friend.

‘Nobody really cares about criminal justice or legal aid,’

‘Until they need it’ we said in chorus.

‘Do you want me to protest for you?’

How it all started…

It started really at Oxford in 2006, before the economic downturn, law, accountancy, management consultancy, banking, were all relatively easy professions to choose.

In terms of the law, 80% signed up for the City. Pot luck really, they chose whichever solicitor’s firm best suited their personality, had the best freebies or dinners.

Another 5% signed up for the larger regional firms, not fancying a London way of life.

And 5% went for some type of Government job or similar.

The remainder went to the Bar. And all those who went to the Bar, even in 2006 were warned, the Criminal Bar was in the Government’s cross hairs in terms of funding.

Bearded Monogamist chose one of those jobs in the city. Went to a decent firm, got a training contract, did his conversion, they paid for his LPC and then he spent two years in the City. Having done so he promptly left.

He then joined a financial services firm. One which he has now exited.

Last night he was saying that I am his shining example, the person who chose a job he loved.

“Young people, nowadays, imagine that money is everything”

It was last night,  that I realised that criminal justice would not be saved by practitioners but by the general public.

For a start, culturally, we’ve a national predilection for stories of crime. Conan Doyle, Christie, Sayers, Ruth Rendell, Edmund Crispin (my fave) and Cole.

Rumpole, Kavanagh QC, Judge John Deed, Law & Order UK (questionable taste).

And, actually, we do have a national predilection for justice in reality. I wrote last year about how the NHS had become the new national religion: http://forthedefence.org/2012/03/01/the-church-of-the-nhs/ But, deep down, fair play, proper justice, man over government, they’re all very British beliefs.

Criminal justice

It’s not crime and justice as separated concepts which are of national interest. Criminal justice is part of our national identity.

The Christian conversion of England led to a transformation from a compensation culture in Anglo-Saxon law (yep, take out a man’s eye, you paid for it) to a more Christian conception of justice.

I saw the other day a twitter follower of mine who has for her description a passage from the Bible, Isaiah 1.17, translated variously as:

 learn to do good;
seek justice,
    rescue the oppressed,
defend the orphan,
    plead for the widow.

That Christian conversion was soon supplemented with the likes of Magna Carta 1215 and 1297

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers,

Followed by the Habeas Corpus Act 1679 and the Bill of Rights 1689 (or 1688 if you’re that way inclined),

Excessive Bail.
That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
 

Juries.
That Jurors ought to be duely impannelled and returned . . . F1

Grants of Forfeitures.
That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void.

So, criminal justice is part of our national identity. And y’all know what happens when you threaten, afternoon tea, the terraces, fish and chips and fair play. The British go to war.

Holy war

It is then a Holy War that the Criminal Bar need to fight. They need to show the public that part of national identity, our national religion is being put at risk by Grayling’s proposals.

There will be no Francis Bacon, Lord Mansfield, William Garrow, Thomas Erskine, Sir Edward Marshall Hall KC, Sir Charles Russell QC, George Carman QC, Dick Ferguson, no Michael Mansfield, no Kelsey-Fry, no Ed Fitzgerald QC.

Instead: a contracted defender, who protects for profits and works towards targets. Barristering in bulk. Soliciting to scale.

Justice will not be served by conglomerates who are more focussed on KPIs and undercutting rival contractors who might do the job cheaper.

Criminal justice can’t be contracted out like hospital cleaning.

Can I mention coin

It’s important to make something clear. The legitimacy of any war is undermined when there is a suspicion that it is being fought for profits.

I can say for my own part that I always knew I would be paid less than other parts of the Bar. And, I always knew that I would be paid less compared to those individuals who went to commercial law firms.

To give you an idea the difference at the moment is between £25000 and £30000 a year less. At the top-level, if I were to ever get there, the difference could be between £200,000 to £800,000 a year less.

Bearded Monogamist reassured me last night, in a public defender & private lawyer system, that the criminal bar would still survive in a smaller form and be paid for by private citizens and companies.

I actually believe that to be true. But, I signed up to a profession and a system where all were entitled to an ‘A’ grade defence, not only those who can pay for it.

And just as I won’t switch to being a ‘private’ only lawyer, I refuse to work for a company or firm who prioritise profits over performance.

I accepted the pay differential on the basis that I could do a job, in a system I believed in, with the only pressure being personal. My pressure being the professional performance I give for my punters. Not, pressure as to targets or performance indicators.

Ultimately

The criminal justice system has two purposes: protection and punishment. Criminal justice is about protecting the public, protecting it from people who breach the rules of society and from the excess of state authority. I.e, making sure politicians don’t lock up people they don’t like.

Punishment, or correction, is an aspect of criminal justice. Determining the correct punishment for a person should not have any financial aspect to it.

The Criminal Bar need to focus their argument not on pay, or even showing that we are good value for money. Those arguments have a distance, but with the majority of even the criminal bar earning in excess of the national average wage they need to show more.

The Criminal Bar must centre their argument and show that the injustices tendering would cause are against the British way of life.

Centuries of civil liberty are being put at risk by a man from who grew up in leafy Buckinghamshire, who studied history and then worked as a journalist and management consultant. A man who knows nothing about crime, is dodgy with crime stats and who compared Moss Side to the Wire.

We will win the war when we expose #failingGrayling as someone who threatens very British ideals.

FTD

So says Francis Bacon

No says the Officer in the Case.

The Officer in the Case is the person in charge of the investigation of a crime in England and Wales. Their duty, in law, is to investigate all reasonable lines of inquiry which may go to a Defendant’s guilt or indeed their innocence.

“Did you Detective follow all reasonable lines of inquiry in this case?”

“Yes.”

I then asked between 25 and 30 questions. Each was an obvious line of inquiry.

“Did you follow X line of inquiry”

No says the Officer in the Case.

“Did you follow Y line of inquiry.”

No says the Officer in the Case.

At my 29th question, Counsel for the Crown had his head in his hands. And the jury were shaking their heads.

“I shall ask again Officer, did you, considering my questions, follow all reasonable lines of inquiry in this case?”

“Yes.”

The case was promptly dismissed for want of evidence. Counsel for the Crown simply shook his head.

If you go down to the Court today you’re in for a big surprise

In localshire Magistrates’ Court, in Court 1 they’re prosecuting 47 people for TV license matters. In Court 2, they’re prosecuting 20 people who have children who refuse to go to school and in Court 3 they’re prosecuting a man for strangling his wife.

Despite the fact he strangled her (and strangulation is a risk sign for escalation of violence), he is being prosecuted for battery. A Crown Court trial is too expensive because his wife might not co-operate.

In Court 4, they’re prosecuting a man for stabbing someone with a glass outside a pub, it’s been charged as battery. A Crown Court trial is too expensive and while a jury might not believe the witnesses (they were all drunk) they should be able to get it home with a Bench of Magistrates.

Unfortunately in Court 4 the trial can’t get up and running. Nobody remembered to book a Barrister. The CPS don’t really prosecute themselves in Localshire Magistrates’ Court anymore as it costs too much to get the staff there. The Defence Counsel sighs, they can’t have a trial anyway, despite four listings, the disclosure they require hasn’t been forthcoming.

Everything by now has come to a grinding halt in Court 2. The Legal Advisor in Court has noticed a large legal issue with one of the prosecutions. The problem is the Defendant was deemed not to be entitled to legal aid and has no lawyer. The lawyer for the Local Authority is baffled, they are usually a litigator in the office, they don’t usually go to Court. Now they have to, the Chief Executive slashed the Counsel budget overnight.

Back in Court 1, the fourth Defendant explains how he can’t afford the TV fee as he lost his job as a supervisor at Localshire Inc. Of the 47 people facing the charge at least 10 will say similar.

In a back office, with formica furniture, the Justices’ Clerk is trying to compose an email to the rest of the Legal Advisors in the area. Her desk is covered with the diktats of the Ministry of Justice and competing guidance from the Justices’ Clerk Society. Her email pings with another crimeline updating with another High Court case about something going wrong in the Magistrates.

She tries to think how to draft the email. The local defence lawyers are having cases stayed for an abuse of process. The CPS are simply not serving things. The CPS are blaming the police. The police are blaming the CPS. Witnesses just don’t turn up to trials, nobody tells them there is a trial. She writes, ‘abuse of process cannot be used to discipline the CPS’, she doesn’t know what else they can do.

She puts disclosure on the ‘Court User Group’ agenda again.

Affirmation – Judicial

“I, ____________ , do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.”

Best of luck chap,

FTD

MRS PUTNAM: You think it God’s work you should never lose a child, nor grandchild either, and I bury all but one? There are wheels within wheels in this village, and fires within fires!

Replace Mrs Putnam with Phillip Schofield, he handed David Cameron a list this morning on This Morning and Cameron’s response: “There is a danger, if we’re not careful, that this could turn into a sort of witch-hunt, particularly against people who are gay and I’m worried about the sort of thing you are doing right now – giving me a list of names that you’ve taken off the internet.” Bravo, David Cameron.

Message boards, twitter, facebook are becoming the new finger pointed by the Salem girls and they’re picking on men, several of whom are gay.

I think the danger is real that there will be a witch hunt. And, I applaud the Prime Minister for warning of the risk.

My applause there endeth.

DANFORTH: The pure in heart need no lawyers.

So said Governor Danforth as he presided over the witch-hunt.

My applause ends for  the Government because at present there is a problem. The problem is that in the past we have not properly looked into child abuse claims. And when I say ‘we’, it is all of us because the child abuse has occurred within institutions, those institutions at present being identified as the BBC, various social services and so on. I say, ‘we’, too, because the institutions we employ to consider the abuse claims have failed to consider them properly. It would seem that is true for various police forces and the Crown Prosecution Service.

Here is the problem.

So, the abuse has happened within institutions and there is an institutional failure to detect, prevent and cure (by which I mean remedy) the abuse.

The unfortunate reaction has been this:-

1 x Scotland Yard Inquiry

1 x BBC Documentary

1 x ITV Documentary

3 x BBC investigations

1 x Department of Health investigation

1 x Director of Public Prosecutions Review

1 x National Crime Agency investigation

1 x Judicial led inquiry

Numerous individuals who are pointing the finger with the fervor of Abigail Williams.

PROCTOR: Your justice would freeze beer!

Everytime, one of these reviews, or investigations, or documentaries goes out and starts poking about it should not be seen as getting to the truth. Quite the opposite. Instead, it is trampling over a crime scene. And we all know, when you trample over a crime scene you destroy evidence, taint evidence and it can lead to perverse results.

So back to my original headline problem: the abuse has happened within institutions and there is an institutional failure to detect, prevent and cure (by which I mean remedy) the abuse.

My solution. All current investigations are frozen.

Instead,

Operation Yewtree is expanded. To beyond Jimmy Saville. Operation Yewtree will investigate any allegation of institutional sex abuse that a party wishes to bring. The Met Police can be supplemented by officers from local police forces. No police officer involved in the case will have been involved in previous investigations which were discontinued/stopped for any reason.

Operation Yewtree’s evidence will then be reviewed. Firstly, by CPS specialist sexual offences prosecutors. Should they find that there is a case to answer then the matter is referred to independent counsel. My suggestion is a small team of around 5 barristers led by a QC. Let those barristers be at the independent bar, let none of them be Treasury Counsel and let them make the decision whether to prosecute individuals independent of the DPP, the AG/SG.  (This avoids the suggestion of bias, avoids the CPS being accused of a cover up, or Treasury Counsel being encouraged/discouraged to prosecute).

Experts investigating, experts prosecuting. All experts with relative independence.

Now as to the institutional failings. Expand the remit of Mrs Justice Macur. She can investigate: the BBC, the Health Service etc etc and their failings. To do so, she’ll need investigators and she’ll need lawyers. So:

Team approach:

Justice, investigate the failings of the police and CPS. Lead lawyer: Actions against the police specialist with, Investigators: IPCC investigators and seconded CPS inspectorate. Lawyers: Independent barrister reviewing charging decisions.

BBC, investigate the failings of the BBC/Media. Lead lawyer: Employment lawyer/whistleblowing expert with, Investigators:  PCC (or whomever replaces them). Lawyers: Independent barrister reviewing employment/disciplinary/child protection decisions.

Health, investigate the failings of health social care providers. Lead lawyer: Childrens lawyers specialist, with, Investigators: Independent social workers, Local Government obudsman investigators. Lawyers: Independent barrister reviewing employment/disciplinary/child protection decisions.

All of whom report to Mrs Justice Macur in an open hearing. All interested parties are entitled to be represented. All evidence given under oath. Mrs Justice Macur has the power to order and require disclosure and summons witnesses.

PROCTOR: I have given you my soul, leave my name

Without proper, centralised investigation people will be accused of being child abusers when they are no such thing. Other people, will walk free of child abuse claims because evidence has been trampled over by amateurs.

Cameron, I applaud you for stopping a witch-hunt. Stop that and instead put something sensible and just in the place of it.

FTD

Happy Gunpowder Treason Day.

Thought today was a bank holiday? Once was….

The banter on twitter (twanter if you will) around lunch, was about @Fleetstreetfox and her latest offering in the Daily Mirror:

http://www.mirror.co.uk/news/uk-news/what-would-we-make-of-a-guy-fawkes-1417972

She asks what you’d do if you found an Afghan War Vet, in the cellars of parliament ready to let it blow? Would you shop him, or would you let him go.

The twanter (I’ll stop using it I promise) was, having said she’d let him blow the brick work (but not the human contents thereof) whether she’d have the fuzz knocking down the door, thumbscrews in back pocket, the rack being reassembled with Ikea-like instructions.

Does @Fleetstreetfox risk being nicked for treason? I’d like to see the local plod try and nick her in Norman French as indeed the Treason Act 1351 originally appeared.

Remember, remember, the fifth of November

Britain has a strange fascination with treason. I wondered why Halloween had never taken hold here as much as in the States, the answer is, it has a state supported rival: Guy Fawkes Night, or correctly Gun Powder Treason Day.

In fairness, today’s state isn’t so keen. But, in history, it got 250 years worth of support from both Church and State.

The celebration of national victory over traitors of the state being something thought worth a national day off.

And of course you could still receive the death penalty for treason as late as 1998!

And today, we still remember that a large plot was overcome and we still burn an effigy of the plot’s leader.

Is it time to throw treason on the bonfire?

You may have seen on TV or at court, criminal barristers carrying about a big red book. It’s called Archbold, effectively it is published once a year and is our criminal law bible.

There is still a chapter on treason, although it hasn’t been terribly long since 2009.

So yes, you can still be prosecuted for alarming the Sovereign…

But I think @Fleetstreetfox is quite safe, there has been no trial for treason since William Joyce in 1945.

Lord Haw Haw’s trial and the subsequent judgment in the House of Lords remains an important moment in English legal history and is still debated today.

Joyce argued he could not be guilty of treason as he owed the British Crown no allegiance, he argued he had no citizenship and so it was for the prosecution to prove that he owed a duty of  allegiance. Lord Porter agreed. Lords Jowitt, Macmillan, Wright and Simonds disagreed, have a British passport, then you owe a duty of allegiance until you renounce the protection of the Crown.

Joyce swung.

A nation can survive its fools, and even the ambitious. But it cannot survive treason from within.

My housemate gets very upset that the likes of Abu Hamza are not tried for treason. Afterall, he has argued for war on British soil and certainly sought the protection of the State.

Nowadays, there’s such a wide statutory regime with regard to terrorism and such like, there is no expectation that treason will be used any time in the near future.

Despite that, it is a particular kind of offending where a person turns against their own community and seeks to destroy it.

But, the difficulty today and that always has been in is this: some of country’s greatest patriots and heroes have been people who have sought to change Government or bring it down. From Wat Tyler to Emmeline Pankhurst.

Borrowing from a man we British called a traitor, “The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries

S0, I think that @fleetstreetfox is safe… and democracy safer when we’re encouraged to challenge and question our leaders.

FTD