There have been many discussions in the past about the viability of remote criminal trials within our criminal justice system both before and during this Coronavirus crisis.

During the technological revolution over the last decade wherein, all Crown Court trials have become paperless and all preliminary business is undertaken on the computer screen the Holy Grail for the converts has always been the remote criminal trial.

Driven by cost saving initiatives and significant court closures, the criminal justice estate has been devastated to such an extent that structurally they are either in breach of Health and Safety standards or a health hazard, or both.

Crown Courts across the country have had their workloads decimated, again in the name of saving money, with court rooms standing empty like mausoleums to what was an open, accessible and fair criminal justice system.

Even if you didn’t want to, you had the right to walk into a courtroom and see justice being done, albeit in the Queen’s name, but most certainly on your behalf.

Open Justice did not depend upon whether you had a laptop, knew how to use it and had sufficient connectivity.

The debate about the new drive to virtual trials seems to have forgotten this.

I was staggered in any event to see that JUSTICE were supporting an experiment into virtual trials, but my concern grew when I read of Jodie Blackstock, their Legal Directors “primary concerns”. It was not so much what they were, which I agreed with, “safe administration of justice, upholding fair-trial rights and effective participation” it was what JUSTICE did not seem to clearly acknowledge, the Open Justice principle and the rights of every citizen to be able to access a criminal trial.

Of course, many people do have computers, but some don’t. They may be part of some of our disadvantaged communities, who are socio economically vulnerable or simply not wanting to be a ‘Silver Surfer’. These people will be deprived of participation in the Open Justice principle.

Well, it could be said that few want to anyway. On many occasions the public gallery is empty. But that misses the point. The fact that some will be denied access is a fundamental encroachment of much that is pivotal to a democratic criminal justice system.

Lord Burnett of Maldon, the Lord Chief Justice is clear that crown courts will not be permitted to hear trials while lockdown is in force because juries could not participate remotely. He told The Times that he does not think it “is realistic to suppose that the jury could be in a different place from the applicants [sic] and the judge”, in short that he is against it, certainly as far as crown court trials go. That is reassuring.

But not all see remote trials as necessarily a threat to the essence of our open, fair and participatory approach to criminal justice. Mark Fenhalls QC an able and experienced prosecutor, leader of the South East Circuit and former chair of the Criminal Bar Association seems, in the view of this writer, dangerously close to accepting that remote trials are a way forward.

In a letter he sent to members of the South East Circuit and rehearsed in a recent Times piece he says “Deep cleaning of the courts to make them safe must be a priority…the next question is: who really needs to be in the courtroom for a jury trial? Having conducted hundreds of trials, and done jury service myself, I believe that the judge and jurors must be in the same room, but everyone else could be in a separate courtroom connected by a video link to facilitate physical distancing”.

Deep breath.

He goes onto say “If effective, Covid-19 antibody testing could form part of jury selection, and may permit judges, staff and lawyers to return to work”, via public transport I presume if, in the case of defence advocates they feel that it is their professional duty to be there and do not share Mr Fennells level of enthusiasm for the process.

“In most cases, witnesses could give evidence remotely, as could defendants, although some will prefer to attend in person” he opines.

I presume, in passing, that the manner of attendance is at the discretion of the witnesses and defendants. What a mess.

Apparently there is a preliminary report about, authored by Linda Mulcahy at Oxford University and Emma Rowden at Oxford Brookes. I left a message with Ms Mulcahy asking for sight of this report, I will let you know when I speak to her.

This report seems to suggest that the virtual courtroom treated defendants with “more dignity than when they are placed in an enclosed dock” and was “more democratic” than face to face trials.

This is an interesting observation as the abolition of the dock has long been a campaign associated with JUSTICE, and one which I have always supported and even raised in court. But it is a separate argument and to be utilised in this presently unseen report as a virtue of virtual courts is somewhat stretching the positives. This is all I have been able to find as to the reports opinions, I am sure there is more to it than that, but if the authors really are majoring on the democratic advantages of virtual trials, then I politely refer them to the earlier part of this blog.

Mark Trafford QC who took the part of the prosecutor in the test trial thinks that it is “capable of providing a fair and transparent jury trial with 20 or more participants”

Lets examine that.

Stanford v United Kingdom guarantees the defendants right to participate effectively in their criminal trial. The court does not identify any characteristics or attributes which meets the test of participation in this context which leaves the matter open to wide interpretation.

This will certainly include the right to be present and to fully hear and follow proceedings. European jurisprudence refers to the “very notion of an adversarial procedure” as entrenching the defendants right to fully participate.

I would not share Mr Trafford’s confidence that the virtual trial is Convention compliant. The defendant in their “democratic” virtual dock will not have immediate access to legal advice during the organic development of the trial, either to seek clarification or to have documents presented during the trial explained before him/her, especially if they are produced by a co defendant during trial, in or out of a cut throat defence.

One wonders in passing what the complexity of evidence was that JUSTICE put together for this test trial to take place within just 8 days of preparation and how many defendants were cosily sitting in their “democratic” virtual dock.

I do not intend to even discuss the unreliability of technology which can impact upon a defendants understanding and participation in their trial or the particular issues raised by the trials of vulnerable people.

Perhaps the single most fear I have in all this is the Trojan Horse point. Like a lot of Coronavirus Act provisions and the anticipated Apps which impact upon rights of privacy which we have jealously argued for over the years, once these things see the light of day, they will be hard to get rid of.

There are already remarks being made that many of the virtual hearing procedures already introduced, with the goodwill of practitioners, are likely to remain after the present crisis and no doubt, generally, that may be for the good.

Virtual Magistrates Court trials seem to be a given and are just around the corner given the Courts Department statement that in the case of Magistrates trials officials are working to introduce fully remote hearings as we speak. Be in no doubt, that once introduced they will not be removed post Covid and yet this seems to be an accepted development, with little or no discussion.

I am in no doubt whatsoever, that any concessions or compromises, as Mark Fennells puts it, in relation to criminal trials will be hard to undo, which is a particular reason why I was so surprised at the involvement of JUSTICE in this pilot. It is much easier to argue the retention of a system than try to change it and there will be no end of judges, lawyers and particularly politicians who will only be too ready to argue that it is perfectly fair to everyone.

I accept that none of those presently arguing for virtual trials are doing it with any degree of professional self interest for themselves or those who are struggling at this difficult time and that everyone is simply trying to come up with the best resolutions possible. They, like all of us are struggling to come to equitable solutions during an unprecedented period of time.

I entirely endorse the approach taken by the Faculty of Advocates in March of this year when they were opposing judge only trials as a way of getting their criminal justice system moving again when they said “Our considered opposition to the measures, especially trials without juries, will come at a personal cost to each of our members. The loss of work that a substantial period without trials will represent has an acute impact on every member of the Criminal Bar, each of whom is self employed. It would no doubt be selfishly convenient for our membership to welcome the early resumption of trials in the manner proposed. Yet we do not, and that should underscore the importance of the matters of principle set out in the preceding paragraphs”.

Finally, as is often the case, it is always the little things which stick in the mind. Jurors in crown courts are usually seen by the public should they go into the court. There was something deeply unsettling about seeing a screenshot of the JUSTICE test trial with the faces of the jury, those who could be deciding our liberty, blanked out. Something very unsettling indeed.

Earlier, in the second week of the Coronavirus lockdown, I tweeted a question, “Will Brits just arriving at @Gatwick_Airport from Peru be tested before joining the community?” This was in the light of a BA Flight just landing at Gatwick with those poor Brits who had been stranded in Peru. My question was particularly heightened by my own experience, some two weeks ago, when I was waved through customs at Heathrow from Gibraltar, with not as much as a hand wash, had I not asked to borrow one from an Officer.

Within a few minutes, in true Twitter fashion, I was chastised for raising the issue of testing the Brits just arriving back from Peru on the basis that testing was better directed to frontline services and that Peru was not a Covid “hotspot”. I was then told to “Pipe Down”.

This got me thinking. Let me say that it is not the first time and hopefully will not be the last, that someone wanted me to “pipe down” and that the merits of the debate between those of us who think that all our international borders should now have the benefit of testing, whether or not another jurisdiction is a “hot spot”  and those who think that because of the Governments lethargic response to getting testing equipment, we are compelled to make choices, is not a valid debate. Of course it is, it is a vital debate. It was the suggestion that the debate should not be articulated that gave me food for thought.

My mind turned to the authoritative observations of the former Supreme Court Judge, Lord Sumption, who told Radio 4’s World At One Programme that he thought that some policing of the present Covid crisis risked us falling into a police state. This caused a number of commentators on social media to politely suggest that His Lordship should have kept “schtum” as it was put and that making such critical remarks might make it easier for those who politically wished to undermine the judiciary and impugn their independence. In other words, that Lord Sumption should have “piped down”.

Again, I am not, in this piece, going to analyse the comments made by the former Supreme Court Judge. The question is, should he have made them?

In times such as this and thankfully, there are few precedents, governments place as a priority the seizing and maintaining of control over the population, or the herd, if you will.

This is, on one approach, absolutely understandable.

War time analogies are helpful.

The suppression of the Daily Worker newspaper by Herbert Morrison, the Home Secretary in 1941 was criticised by Professor J. S. B. Haldane. He asked what the newspaper’s crime was and concluded “A very serious crime indeed. It is the only newspaper that opposes the government.”

Neither do the government’s view have to be consistent. Churchill gave John Platts Mills, the left wing barrister, the job of running a pro Soviet campaign saying “I’ve been teaching the British people since 1918 that the Russians eat their young. Take as much money as you need and change the public perception of them”.

Quite understandably, public morale is at the centre of the “Pipe Downers” position. After Dunkirk there was significant concern about how the manifest weakness of the British fighting forces might affect morale back at home. As a result, a military event of blundering ineptitude was transformed into an English epic of heroic proportions. As Major General Mason-MacFarlane, Director of Military Intelligence told the British Press,  ” I’m afraid there is going to be a considerable shock for the British public. It is your duty to act as shock-absorbers.

As Michael Foot wrote with a number of other journalists ” A miracle is born. This land of Britain is rich in heroes. She had brave, daring men in her Navy and Air Force as well as her Army. She had heroes in jerseys and sweaters and old rubber boots in all the fishing ports of Britain…” Indeed she did, and women too, but all this was an example of dissent, “Piping Down”.

Of course, this is not a time of war and despite how it may feel, far from it. Young men and women are not being sent to the front to die in their thousands in battle and all that most of them are being asked to do is stay inside.

There is, nevertheless, a palpable threat in the Coronavirus and one which is being challenged by the government using wartime techniques of control, be it of how we wash, how we exercise or how we think.

In 2020, we live in a World awash with views and opinions, some sound, some not so sound. Voices of authority matter. I find myself disagreeing with much of what Lord Sumption has said since his retirement, but that does not matter. When he speaks, people listen, the media who are not simply acting as “shock absorbers” listen. Many pieces on the over reaction of the police is prefaced with the comments made by Lord Sumption. He has significantly helped to elevate the debate into the public sphere.

By “Piping Up” the arguments on both sides are made. Whichever one prevails, perhaps matters not. What does matter and matters profoundly is that we are still allowed the air to question, challenge and dispute.

None of this, in my opinion will affect the future of the judiciary. But even if it did, any hypothetical government who would seek to diminish the role of our judge’s as independent individuals, may find a lot more “Piping up”

It is in times of any National Crisis that anyone who might not act like the ‘Herd’ is made to feel vulnerable. We must cherish them because when all this goes away, it is most likely going to be some of them who will ask why we got into this disaster in the first place.

I read the section in the Tory Manifesto at page 44 with some interest.

Headed ‘Standing up for victims’ it reassured us that ” We will ensure that victims of crime are supported at every stage of the criminal justice system. We will enshrine victim’s entitlements in law, making clear what level of service they should expect from the police, courts and criminal justice system”.

All very reassuring and something which no one could possibly disagree with. Victims of crime, particularly serious crime deserve the unqualified support of any government, should they find themselves harmed or damaged by a crime or let down by any aspect of the criminal justice system.

This is what, for instance two of the victims of John Worboys sickening crimes expected from the courts. Indeed, the courts delivered when in 2014 the High Court found that Scotland Yard had a duty under the Human Rights Act to investigate serious violence against victims and could be held accountable by the courts if they failed to do so.

The decision was upheld in a strong Court of Appeal, by the Master of the Rolls, Lord Dyson and Lord Justice Kitchin, observing that it was “inescapable” that the High Court should find a breach of Article 3, the prohibition of cruel, inhuman and degrading treatment, against the police.

Warboys, otherwise known as the ‘Black Cab Rapist’ was gaoled for life in 2009 for viciously raping the two women. In fact, police now suspect that he carried out similar attacks on over 100 other women, with first reports emerging in 2002.

The Independent Police Complaints Commission identified serious mistakes made by the Met Police investigations into Worboys which allowed him to continue being a threat to women. The IPCC made 46 recommendations and came to a series of damning conclusions about the police investigation, they included, failing to search Warboys home which later revealed evidence linking him to a series of attacks and establishing a clear modus operandi, serious errors of judgment, the losing of a file, failing to interview key witnesses and insensitivity.

The criticism and failings were damning.

At this point though the victims had received some sort of justice for the sickening crimes committed against them and a degree of recognition and reparation for the crass failures of the police investigation. I suppose that it could be said that in the words of the Tory Manifesto, these victims of crime were stood up for, supported and vindicated by the courts.

That was until earlier this year.

In a rare step, the decision of the Court of Appeal [2015] EWCA 646 was taken to the Supreme Court, but rarer still, although it was taken by the police, it had, what turned out to be the critical support of the Home Secretary, Theresa May, yes, she of ‘Standing up for victims’. The grounds of appeal, drafted by the police were struggling to pass the threshold for the Supreme Court to become seized of the matter. Bulked up by the Home Office, the victims of Warboys crimes were now finding themselves hauled up before the court again.

The case, equally enthusiastically supported by Amber Rudd, who took over from Theresa May as Home Secretary was before the Supreme Court in March and we await the judgment.

The essence of the Home Office case by their intervention against the victims is that the lower courts were wrong to find that the police had a duty under the Human Rights Act to investigate serious violence against victims and could be held accountable if they failed to do so. Rather, Theresa May upon her intervention, argued that victims should not be allowed to use the Human Rights Act to sue the police and that the Metropolitan Police duties to victims are restricted to putting in place the necessary structure to investigate crime, but did not extend to the execution of any particular investigation.

So it is, that taxpayers money, no doubt drawn from a Tory ‘Money Tree’ is being used to perpetuate a case against victims of crime.

The significant and steadfast support by Theresa May, Amber Rudd and the Home Office of the police case against these victims, argues at its heart that the Human Rights Act should not be used to challenge particular police investigations. It shines a light upon the opinions of May, Rudd and the Tories on their dislike of the intrusive power of the Human Rights Act to challenge power and no doubt gives a clear indication that any proposed Tory Bill of Rights will certainly exclude future victims of crime seeking the judgment of the court in the way these two victims have.

One victim said “The experience of being disbelieved and failed by the police was as bad, if not worse, than being a victim of Worboys”.

The Home Office said “We do not routinely comment on on-going legal proceedings.”

May be, but would Theresa May like to comment upon whether her approach to this case is in any way consistent with her Manifesto on victims rights?

I am happy to meet her on the secluded Industrial Estate of her choice.

Recently, Magistrate Margaret Gilmour, wrote a letter to The Times from her perspective as a Magistrate for over thirty years.

In that letter, she made some criticisms of the Crown Prosecution Service, which were in direct contradiction to the more rosy picture painted by the Director of Public Prosecutions. In that letter, the Magistrate said that, “Anyone who goes into a Magistrates Court on any day, will see that the Crown Prosecution Service is in a state of disarray”, she also went on to observe in her court “shambolic administration” on behalf of the Crown Prosecution Service.

As a result of her letter an entity, presently unknown, complained to the Judicial Complaints Investigation Office (JCIO) about her observations. We have recently been made aware that the JCIO issued a formal warning against the Magistrate in that she, ‘failed to show circumspection and sound judgement expected of a Magistrate.’

It seems that the criticism made of Margaret Gilmour was not only that she put into the public domain her concerns and observations gleaned from thirty years’ experience, but that she also seemed to imply that she was speaking for other Magistrates.

A reading of her letter is instructive and although she refers to some generalities, it is plain that she is writing from her own perspective. Never the less, the matter seems to have irked the powers that be.
Much has changed since those Enid Blyton days of the Kilmuir Rules, which effectively gagged the judiciary.
These rules revoked in 1987, stated ‘so long as a judge keeps silent, his reputation for wisdom and impartiality remains unassailable.’ (Letter from Lord Kilmuir to Sir Ian Jacob KBE: 12th December, 1955).
We now live in a society drastically different from this time where inherent respect for the ‘Establishment’ and ‘Leadership’ is not to be taken for granted. Furthermore, the 21st Century brings with it a demand from society, not only for accessibility but for accountability. Other matters have significantly changed as well, including the increasing trends both for politicians and for those holding government office, including other positions such as the DPP, to use and utilise the media professionally and effectively.

Of course there is nothing wrong with this, the CPS and the DPP are to their credit, effective operators when it comes to getting their version of events into the press and into the media and therefore in the public mind. Consequently, both the judiciary and this includes magistrates, must also be able to speak and utilise the media and other public forums to present their important perspectives, particularly if they contradict or undermine that being presented by government or other official bodies.

Although the Kilmuir Rules were rescinded in 1987, there remained and still remains a tendency, most recently displayed by the ‘Gilmour Incident’ to baton down on judicial public opinion. Effectively, the JCIO has sanctioned this magistrate, not only for speaking out but also it seems, for contradicting an official line.
Indeed, relatively recently, Lord Neuberger stated in a speech to law students at Birmingham University in March 2012, that Judges were too eager to speak out and make their views known.

He used as a high water mark Lord Justice Stanley Burnton, who appeared on an episode of Masterchef to discuss his culinary tastes (BBC One, 22nd February, 2012).

On a more serious note, Lord Neuberger stated that judges should ‘be very cautious about publicly discussing the controversies of the day when speaking extra-judicially.’

It is trite to observe that whenever a judge or a magistrate or for that matter, any tribunal of law, makes a public statement, that it should be balanced, articulate and well sourced. But provided that this is so, 21st Century communication requires a significant loosening of the straight jacket.

The present debate about the Human Rights Act, as opposed to a Bill of Rights, is a case on point concerning serious constitutional issues. There has already been much written and spoken by the senior judiciary including, Lord Neuberger and the previous Lord Chief Justice, Lord Judge. This has been both informative and absolutely vital to counter point, balance and if necessary, contradict the numerous positions being put forward by politicians who are of course adept at using the press and media opportunity.

Furthermore, government and politicians are becoming more and more enthusiastic in their criticisms of the legal system, the law and indeed, the judiciary. Gone again are the days when politicians were deferential to the judiciary, and rightly so. But judicial reticence to speak out when it is in the public interest, is very much a creature of those more deferential days and there is a need now for a balance in public argument which can only be achieved by a rethink of the attitude towards judicial public pronouncement.

It should be said that the contribution of the judiciary, judges or magistrates, can also provide an important educational function. It would be very worrying indeed, if the general public believed everything they were told by either the press or politicians about what goes on in our courtrooms.

The Margaret Gilmour affair serves to remind us that we still have a long way to go when it comes to public debate in which our wider judiciary and magistrates can provide important perspectives and that for many the attitude of the JCIO towards this magistrate is harking back to those grey and austere days of Lord Kilmuir, when it was not even conceived in the way he wrote that a judge could even be a woman.

I read with considerable interest the posting of Tom Quinn, the Campaign Director of The League Against Cruel Sports on the Charity site, Civil Society.

Straight away, I drafted a rebuttal of his simplistic analysis and sent it to Civil Society, who, to date, have not posted it. It was a carefully calibrated piece and evidentially structured, so why it was not published is beyond me. I could not let Mr Quinn’s piece remain unchallenged .

Some background.

Members of League Staff, present and past, brought to my attention some serious allegations relating to governance and bullying at the League, including allegations of sexually inappropriate language. Some of this has appeared in the Press, but to date certainly not all of it.

I felt that as President of the Charity I had a duty and a responsibility to bring it to the attention of the Chair, Iain Blake Lawson and all the other Trustees.

Ultimately I was permitted to attend the Finance and General Purpose Committee meeting, although as the Chair reminded me, I had no right to attend as President unless invited by him. He duly invited me.

Within hours of being invited, Mr Blake Lawson called me to terminate this invitation for no explicable reason.

I immediately drafted an email which I sent to all Trustees informing them that the Chair was preventing me attending the meeting and told them that I had received a number of serious allegations which I would like to discuss with them. Not a single Trustee replied.

This is the email that I sent to Trustees on the 13th May 2015.

I continued to protect and represent the position of the Whistleblowers and fearlessly fought for their information to be investigated and brought to the attention of Trustees. There was a perception amongst a number of Staff past and present, articulated in a number of ways, including statements in my possession, that the League were not listening to them.

Indeed, at this time a proposed comprehensive staff survey was stopped by Mr Blake Lawson.

I would not be deterred from helping some employees who I considered courageous. One employee who spoke out supporting me after my removal as President was internally disciplined and threatened with summary dismissal and so I became very protective of these people.

In November I received a completely unexpected and brief letter informing me that I was “no longer President of the League Against Cruel Sports”, essentially saying that Trustees had decided to review all honorary positions in the Charity. On the 16^th December at about 20.50, Lorraine Platt the League Vice Chair telephoned me and during that conversation told me that she had cautioned the Chair and Trustees about my removal and had in fact, voted against it. She added that the reason for my removal was that I had pressed the cause of the whistleblowers. I should add that no other honorary positions have been reviewed or altered.

Earlier in November, Mark McCormick, League Communications Officer had messaged me on Facebook, which I still retain, stating in terms,” With Joe gone the campaigns team is flourishing with successes and Rachel is now going also. None of this could have happened without [the whistleblowers]….” Strangely, only a few days ago he was talking quite differently and using the terminology of Mr Quinn in his article, perhaps he had forgotten about his earlier message to me.

I had also spoken to Tom Quinn in a lunchtime meeting last year, when I informed him of staff concerns and the existence of serious allegations. I invited him to take a position on it, but he never got back to me.

This is the essential background to this sad affair which is necessary since Mr Quinn has decided to opine on the Civil Society site.

He seems to assert that all the allegations in The Times are politically motivated and seems to rely on an axis of conspiracy between the Murdoch press, the Tories and John Peel [not the disc jockey]. This analysis is flawed as it is childish and is better suited to the student debating chamber than real life. In fact the allegations were originally contained in a piece in The Observer, hardly a Murdoch minion and to date, not a right wing orientated paper.

Mr Quinn hides behind the important cause that the charity represents to avoid dealing with the issues and falls back on the cliché of ‘hatchet job’. He fails to deal with the accusations in any substantive form and certainly presents no documentary evidence to substantiate his financial rebuttal. May be we will see it soon. The Charity Commission will certainly have a wealth of documentation from the whistleblowers.

The concluding paragraphs of Mr Quinn’s piece crying Tory right wing attacks could not be further from the truth. And as for the journalistic friends that Mr Quinn says he has spoken to……I will not bother to comment.

In all, these are serious allegations which were not addressed………well they are not going away, and yes, for the good of the animals and leaving the League as an effective, experienced player in which we can all have confidence.

Human Rights are essential to any democratic and civilised society and establishing a system to protect them is vital, especially if that system is there to protect the citizen against the machinery of State. So far, so good.

But almost from the moment that the European Convention came into existence in November 1950, a process which inextricably led to the Human Rights Act 1998, the British Government has been expressing incredulity that it should have the temerity to apply to the UK.

Writing in 1956, Sir Hilton Poynton of the Colonial Office prefaced a document,

“recognising that we have got ourselves committed to this wretched Covenant and can’t get out of it now.” 

Yet now, probably for the first time since Sir Hilton bemoaned our association with the Convention there is substantive debate about whether the Human Rights Act and European Convention on Human Rights (ECHR) are fit for purpose and whether they should be replaced by a British Bill of Rights.

The debate about Human Rights in the United Kingdom goes way beyond ‘Brexit’ and whilst the rhetoric from various politicians about withdrawing from the European Convention on Human Rights [ECHR] might attract tabloid headlines, it really does not do this vital issue any sort of justice.

The Conservative Party has been ‘gunning’ for the Human Rights Act 1998 for years. They want to replace it with a British Bill of Rights. Referring to the Act as “Labour’s Human Rights Act” puts it in the centre of that political target.

But it would be wrong to think that the debate between keeping the Human Rights Act, replacing it with a Bill of Rights and withdrawing from the ECHR is purely played out down political affiliations. There are nuances to both arguments which are sometimes missed amongst the colourful, if misleading political rough and tumble and sound bites.

Sometimes, it is helpful to get back to basics.

It is common ground that Human Rights are vital in any democratic society and so it is equally accepted by all sides of the argument that we have to establish a system to protect them.

If we are to revoke the Act or remove ourselves from the ECHR the argument will only be won by convincing us, firstly, that the present regime is abusive, secondly, that the alternatives present an improvement, often defined as reasserting British Parliamentary Sovereignty and thirdly that in any event, many of the protections afforded by the Human Rights Act and the ECHR only apply to the disreputable or disgraced members of society, for instance prisoners and immigrants.

In fact, in recent years the most thoughtful and pertinent arguments have been eloquently adumbrated by two prominent Judges in the UK Supreme Court, Jonathan Sumption, recently elevated and Lord Neuberger who’s recent speech in Melbourne, Australia reasserted, in his view, the importance of the Human Rights Act and the Convention.

Back in 2011 Sumption observed in the F.A. Mann Lecture that the incorporation of the ECHR, into English law, through the Act, significantly shifted the boundaries between political and legal decision making, some of which raise major political issues such as immigration, penal policy, security, policing, privacy and freedom of expression. He continued that by giving legal effect to the Convention, we have transferred it out of the political arena altogether and into the domain of judicial decision making where public accountability has no place.

In essence, Sumption argues that the court in Strasbourg which decides upon ECHR cases is not democratic and has deprived the UK Parliament of its powers.

The reference to “unelected judges” is interesting, particularly as the UK has precisely that, properly justified as removing any perceived or real influence upon the judiciary to come to rulings as a result of inappropriate pressure that an elected position may bring.

But Sumption is not a lone voice on the ‘democratic deficit’ argument. The former Lord Chief Justice, Lord Judge recently wrote in the Bar trade magazine, ‘Counsel’ that the European Court of Human Rights was undemocratic and undermined the sovereignty of Parliament in favour of unelected judges. Lord Judge is consistent, having previously stated that the Human Rights Act should be amended to ensure that British Courts are not inferior to Strasbourg.

Perhaps the crux of all the anti-Europe arguments is the view that Strasbourg has simply gone too far, as Baroness Hale suggested last year, has over stretched itself.

The ECHR came into existence in the early 1950’s with the intention of stabilising Western Europe after a devastating World War and the threat of dictatorships and authoritarianism. It was also intended to meet the challenge of the Soviet Union and the advance of Soviet Communism. Since then there is a growing perception, even amongst senior members of the judiciary that it has over-stepped its brief and extended its influence into issues of which it has no business to be involved in.

The real catalyst for this and referred to specifically by Lord Judge, was whether UK prisoners should have the vote. As is often the case, the Strasbourg ruling has been widely misrepresented. It did not tell the UK to give every prisoner the vote, it said that the ‘blanket ban’ on all prisoners was in breach of Article 3 of the Protocol 1 [free election] but critically, the court said that the matter fell to the National Parliament to determine. Hardly a Strasbourg directive that Wandsworth, Brixton and The Scrubs should be filled with ballot boxes.

Taking this argument at its highest, is this a reason to repeal the Human Rights Act, let alone withdraw from the protection afforded to citizens by the ECHR? Many believe that it is little more than a controversial topic to be discussed over a pint, after work.

Baroness Hale has also expressed the ‘mission creep’ concerns about Strasbourg, although she still maintains that fellow judges would “regret” any decisions by a future government to repeal the Act. What she might have added is “let’s get some perspective on the argument”, emphasising in a speech at the LSE in 2013 that the existence of the Human Rights Acts forces courts to work out what is and what is not compatible with the ECHR which “has brought great benefits to the law and to a great many people.”

On the different question of whether the UK should pull out of the ECHR she highlights that this would necessitate the UK leaving the 47 member Council of Europe and the EU, acidically concluding “so I leave it to the politicians to decide whether that would be a price worth paying for it becoming easier to get rid of certain unpopular foreigners.”

Her conclusions are sound, the ECHR is a central Treaty of the Council of Europe, and no country could be a member of the Council that had not signed up to that Treaty, furthermore, no country can join the EU unless it is a member of the Council of Europe. The precedent for allowing a country to be a member of the Council but not subscribing to the ECHR would be intolerable.

In fact, the substantive attack on Strasbourg seems to be not against the general principles of the ECHR, but as Sumption puts it,

“…the Strasbourg Court have derived…by a process of implication and extension a very large number of derivative sub-principles and rules, addressing the internal arrangements of contracting States in great detail. Many of those sub-principles and rules go well beyond what is required to vindicate, the rights expressly conferred by the Convention.” 

Sumption argues for special treatment for different countries in particular the UK, where he asserts that there is no reason why the protection of Convention rights should necessary require the same measures in the UK which “has for many years enjoyed a strong tradition of public service, a high degree of participation in public life, functioning, democratic institutions and an independent judiciary, as they do in countries like say, Romania, Russia or Turkey…”

In other words, the built in margin of appreciation which already operates between different States when it comes to the interpretation of the ECHR should be made even more distinct, with particular reference to the UK. We should be getting special treatment, or more accurately, more special treatment than we already get.

So what are the alternatives and does a British Bill of Rights provide the answer to any of these criticisms?

Interestingly, many of those who have misgivings about the Human Rights Act and the ECHR do not think that a Bill of Rights is the panacea for all their ills.

Presently we live in a country which has no written constitution but enjoys Parliamentary Sovereignty. A judge cannot quash any statute enacted by the legislative and any decision made by a judge can be overturned by a simple majority in Parliament. That is still the case under the Human Rights Act. The Act is subordinate to the doctrine of absolute Parliamentary Supremacy.

Conveniently, a significant number of Bills of Rights around the world, unlike the Act do give courts power to strike down legislation and so it should not be assumed in the absence of particularity that a Bill is any more democratic that the Act.

All Strasbourg can do under Section 4 of the Act is to issue a declaration of incompatibility, that a domestic law is incompatible with Convention jurisprudence. Parliament is asked, although not legally bound by the Human Rights Act to remedy it.

In acknowledging that the Strasbourg Court does have significant influence upon domestic legislation, although no strike out powers, the court acts as a check on the domestic Executive, rather than as the academic, Francesca Klug succinctly put it “a primary law maker”. Reminding ourselves that amongst the nominated judiciary to the court there is able and active British representation, such a check upon Executive decisions should be seen as reassurance, rather than an unpalatable conflict. Surely we are not so naive to think that an unchecked government cannot seriously misread public opinion and at a time when the present government are attempting to restrict the UK citizens access to domestic Judicial Review to challenge executive decisions, removing yet another route to challenge Ministers is cumulatively undesirable.

A little over twelve months ago, Lord Neuberger told a conference at the Supreme Court in Melbourne, Australia that references to ‘unelected’ judges, the concentration on prisoners votes and asylum seekers had turned the Act into “something of a whipping boy”.

This timely and refreshing observation by one of the most respected judges of his generation, a Former Master of the Rolls and eminent Law Lord nails the public perception problems which the Human Rights Act and consequently, the ECHR are undoubtedly saddled with.

Years of inaccurate and at times hysterical and alarmist criticism of Human Rights Laws in popular newspapers, echoed by anti-European politicians has, without doubt concreted deep suspicions and distrust in the popular mind. Despite the fact that most of it is without foundation, evidenced statistically by the fact that the vast majority of domestic UK court judgements are upheld in Strasbourg does not seem to deter those who attack the Act and the Convention.

Of course, the reality is that much of the vitriol thrown at Human Rights has nothing to do with its ability to protect the citizen, rather that it is deliberately misrepresented as being ‘foreign’ and anti-British. The arguments are crystallising into a battle within the right wing of politics between different sections of the Tory Party as to who can be the most damning to “Labours Human Rights Act”. It is now down to a dirty short-term battle for votes in the forthcoming Referendum, which is in essence a battle for power. When the smoke clears on the conflict the loss to the UK, if we withdraw from the Act or the Convention will be both devastating and irreversible, both in protections offered to the citizen and the standing of the UK internationally.

Lord Neuberger went on to make clear that although, at times, he strongly disagreed with some Strasbourg judgments, there were very few of its decisions which he considered “misconceived”, re-emphasising that the occasional, high profile cases such as prisoners voting rights, regardless of whether the Strasbourg judgment is misreported, hardly represents the preponderance of fair, sensible and logical decisions.

Neuberger’s address in Melbourne is in many ways a mature ‘myth-buster’ in relation to the alarmist hype over Human Rights, and although he recognises the Sumptionite concerns about Strasbourgs, ‘democratic deficit’ he puts this into historical perspective, observing that “the development of pan European law after centuries, indeed millennia, of separate development and frequent wars, and with different political and legal traditions and different historical experiences and different traditions, was never going to be easy.”

He is clearly alluding to the world of November 1950 when the Council of Europe signed the Convention and the desire to avoid a future tragedy of World War.

Lord Neuberger could not have been clearer, “…the spectre of totalitarianism and invasion[was] fresh in their memories [they] were sharply aware of the need for strong, clear and codified set of human rights”.

The world has moved on in many ways, but in others, at the beginning of the 21st century we face many of the threats which were confronting those back in the 1940’s and 1950’s.

The increasing belligerence of Russia, typified in the Ukraine crisis is one example which some have used to draw parallels with the expansive politics of Nazi Germany in the last few years leading to the outbreak of the Second World War.

For many, now is not the time to be withdrawing from a Treaty with Europe, which signs the UK up to a Convention to protect Human Rights, either for the rights of the citizen, or for the message that would send out to the more bellicose Nations within European influence.

Of course, the member States of the Council have considerably expanded since 1950 and it is that proliferation of interests, society, culture and politics to which those such as Sumption point when suggesting that the position of Britain is not the same as those such as Turkey or Romania.

The point has merit, the very proliferation of those subject to the Convention and by being so, aligning them to a united position on the implementation of citizen’s human rights has, at times, diluted the relevance of the interpreted Strasbourg case law to Britain. Put another way, the aim of the Council to achieve a united Europe, committed to basic human rights norms in the aftermath of atrocities of war, has caused it to become a victim of its own success.

But, as Neuberger implies, this is no reason to revoke the Human Rights Act and certainly no logical reason to remove ourselves from the protections afforded by the ECHR.

Neuberger also ‘blows’ the myth about the UK Supreme Court having to follow every decision from Strasbourg. He states and it bares direct quotation “…there is the statutory duty in the Human Rights Act on UK judges, which is not to follow Strasbourg decisions, but to take them into account”.

He goes on, “…the Supreme Court said that it was not bound to follow every decision of [the Strasbourg court]. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the [Strasbourg Court] which is of value to the development of Convention law.”

Neuberger then makes probably one of the most pertinent comments in this whole debate and illuminates the real issue, that of judicial confidence in the UK.

It is the lack of a strong challenge by the UK Senior judiciary to Strasbourg decisions which gives the perception of subservience to Europe, even the misconceived view of loss of Parliamentary Sovereignty, rather than the dominance of the Human Rights Act, the ECHR or even the Strasbourg Judiciary. Lord Neuberger expresses the hope that “As we get more confidence with the passages of time, it is conceivable that we will take a more robust view”. He explains to UK Judiciary deferment to Strasbourg as rooted in the British Commons law heritage of precedent. “I think we may sometimes have been too ready to treat Strasbourg court decision as if they were binding determinations by a UK court whose decision were binding on us”.

He explains the UK judicial deferment to Strasbourg as rooted in the British common law heritage of following precedent.

In fact only a few rights are absolute under the Human Rights Act, the prohibition of torture, slavery and the right to a fair trial. The majority of rights are limited by a number of qualifications. In short, the State can lawfully interfere with a citizens human rights if it is in the interests of National Security, public safety or economic well-being of the country, for the prevention of disorder or crime, protection of health or morals or the protection of rights and freedom of others [used in the Occupy London case to trump their Article 10 Freedom of expression rights].

So it can hardly be cogently argued that the strictures of the Act or the Convention are wholesale inflicted upon the UK by caricatured European Judges, however graphic the image.

Only a few rights are absolute under the Human Rights Act, the prohibition of torture, slavery and the right to a fair trial. The majority of rights are limited by a number of qualifications. In short, the State can lawfully interfere with a citizens human rights if it is in the interests of National Security, public safety or economic well-being of the country, for the prevention of disorder or crime, protection of health or morals or the protection of rights and freedom of others [used in the Occupy London case to trump their Article 10 Freedom of expression rights].

So it can hardly be cogently argued that the strictures of the Act or the Convention are inflicted wholesale upon the UK by caricatured European Judges, however graphic the image.

So, if Neuberger is right, and as a matter of law, as one would expect from one of the most senior Law Lords in the country, he is spot on and the UK courts assert the power to come to their own decisions, if Parliamentary Sovereignty is unassailed as previously argued and if in any event, through margins of appreciation afforded to each country signed up to the ECHR and the fact that most ECHR rights are qualified and not absolute what would a British Bill of Rights bring to the table?

One thing is clear, whether we are in, out or shaking it all about in relation to the Human Rights Act or the ECHR, that will not prevent any UK citizen from engaging their rights under other European Treaties such as the International Covenant on Civil and Political Rights which prohibits countries from deporting people to places of torture, so those who wanted Abu Qatada deported to Jordan to face evidence obtained by torture will still be frustrated, Convention or no Convention.

The Government Panel who reported on the proposal for a British Bill of Rights backed the idea. Sir Leigh Lewis, Chair of the Panel and a retired Civil Servant with extensive experience in the Department for Work and Pensions stated that a Bill of Rights would help people feel as if human rights are “owned by this country, by the people of this country, by the Parliament of this country”.

Putting to one side for a moment that Britain was the central architect of modern human rights protocols in the 1950 Convention, with Winston Churchill at the front and that Parliament remains sovereign, what else can we extract from Sir Leigh’s sound bite?

Of course, it chimes closely with the public statements of the Prime Minister who constantly opines that European bureaucrats have too much power over human rights in Britain and fits neatly into the anti-European rhetoric, which no doubt we will hear more of as the European Referendum approaches probably in June. So much is clear. What is still somewhat opaque is exactly what sort of Bill of Rights is proposed by the Conservatives. Simply saying we want a British Bill of Rights is like saying we want an ice cream. The important and as yet unanswered question is, what flavour?

The previous Labour Government considered a Bill of Rights which introduced specific “duties” or “responsibilities” to sit alongside rights which were already guaranteed, such as the duty to obey the law and pay taxes. Some might add in the same vein, why not include motherhood and apple pie?

Cameron seems to be arguing for a wider margin of appreciation in relation to the rights of UK citizens. But beware, in practice this means less human rights for UK citizens than some others in Europe as we are not deemed by Government to need them because our administrations are so well developed, democratic and mature. Discuss.

Gordon Brown, so effective during the Scottish Independence debate has suggested that there be a “Citizens Convention” to decide proposals before they are put to the UK in referendum.

That debate will be very interesting, as Scotland has already expressed hostility to being bound by a Bill of Rights. Additionally, it is entirely unknown how the Tories seek to bring Northern Ireland into the fold which has already been working upon its own distinct framework for human rights.

The academic, Philip Alson analysed the common characteristics of a Bill of Rights. One of his objectives was to ascertain if it added anything to the Human Rights Act panoply.

He determined three characteristics of a Bill.

–              It provides for the protection of particularly important human rights. So does the Act.

–              It is binding upon government and can only be overridden with significant difficulty. The Act is more flexible and maintains Parliamentary Sovereignty.

–              It provides some form of redress in the event of violation. So does the Act.

Amidst the lack of clarity as to what a British Bill of Rights will look like, we should assume that it will be broadly an interpretive document of existing UK legislation. The Government has stated that the Bill could refer to proportionality of decision making and the need for a balance of rights and responsibilities. The concern is that this is ‘political speak’ for modifying presently held human rights.

In any event, there is nothing new here either, the Act already contains interpretive provisions and case law already requires the test of proportionality. To top it off, the Act specifically mentions the importance of responsibilities as well as rights.

The end game in all this is that the proposed Bill of Rights adds nothing and takes away a lot.

No one is suggesting that Strasbourg always produces judgments that we agree with, but if Baroness Hale is correct, most of the time it gets it right and after all, no one suggest that if the UK Courts occasionally come up with a ‘howler’ it should be abolished.

We should remind ourselves what it was like for citizens who wished to take their cases to Europe before the Human Rights Act. Before 2000, the rights referred to in the Act could only ultimately be enforced in Strasbourg. It was slow, expensive and a torturous process for citizens to exercise their rights. The Act enabled speedy and effective remedies for breaches of Convention rights. The Act made the ECHR enforceable by citizens, under its provisions these rights can be enforced by the citizens in UK courts. Rights against public bodies, rights against the government, rights which have forced governments to provide young men and women in the Armed Forces in conflict to be provided with the best protective equipment, the right of thought, religion and belief, the right to challenge authorities and bodies who discriminate on racial, religious and other grounds, the right for a child to be provided with appropriate education and the elderly to be cared for.

If the Government succeeds in distancing us from the Act and especially the ECHR, the opportunity for the citizen to enforce their rights outside the UK in the ultimate independent court will be lost. The Government will decide which human rights they wish to retain, which human rights the citizen can enforce and where the citizen can go to enforce them.

We should be asking ourselves, ‘and for what’?

In the white heat of the Euro Referendum campaign, the Human Rights Act and the ECHR, already battered by inaccurate and rabid attacks by some politicians, commentators and the popular media, weakened by ill thought out and at times deliberate misrepresentation could be an easy target for politicians seeking to keep us in Europe.

Now is the time for a close analysis and mature discussion on what it means to have the Act and the Convention. Such an analysis will surely reveal its importance to this country and establish that the singular most ‘Pro British’ decision we can make is to retain the Act and remain within the protection of the Convention.

If that means staying in Europe, then so be it.

Much has been written over the last few weeks about The Survey, The Ballot and The Misunderstanding, not to mention previous debates about The Deal and quite rightly, different views have been expressed, particularly across the Social Media.

Perhaps some will be greatly relieved that I am not going to repeat in any great depth what has been said, although I particularly commend the recent posts by the respected and intellectually independent journalist @JackofKent

I must begin by putting a few statistical records straight.

When Michael Gove attempted to undermine the turnout of The Ballot and therefore the ‘YES’ vote I expected the CBA to put him right. When the membership voted to accept The Deal the turnout was 1878 and Nigel Lithman, the then Chair of the CBA understandably used it as a decisive mandate to accept The Deal. The Survey which the CBA described in a Tweet on the 21^st May 2015 as representing a ‘strong turnout’ garnered 1385 voters. So when we learn that The Ballot attracted 1777 participants, I think it can be accepted that that too fits neatly into the ‘strong turnout’ category, and deserves to be treated with respect and not lightly interfered with.

Yet when Gove sought to immediately undermine the will of the CBA membership by criticising the turnout, we heard little defence of its legitimacy from its authors. Perhaps even more disappointing is that despite this strong turnout there are still concerns, presently coalescing around a CBA Executive meeting on Monday, that the will of the majority of CBA members who voted is at risk of being watered down if not cast aside.

Why is this view gaining traction?

The fiasco around The Misunderstanding is but a part of the cynicism in some quarters, an important part, but just a component.

A few facts about The Misunderstanding need to be made clear. Despite a number of posts and Tweets pontificating whether the CBA were invited to an important meeting with Gove last week, whether they were ‘not on an attendance list’ which rather implies they were invited but did not go, or whether, as Michael Turner suggests, the no show was all the fault of the solicitors, can be and should be debated elsewhere. To my mind, the important questions, which the CBA have steadfastly refused to answer were, given that Mark Fenhalls, the Vice Chair clearly knew that a CBA nominee was desired at the meeting, who did he nominate? If he did not nominate anyone, why not? Were the Chair, the Vice Chair and the Vice Chair elect so indisposed that none of them could go?

This was potentially an important meeting, which by all accounts saw Gove engaged with attendees. The CBA have been arguing for discussion and contact with the Lord Chancellor for weeks, surely here was another palpable opportunity to continue to develop that relationship. Is it so unreasonable to ask why no one turned up?

This background, the result of which was that the Criminal Bar were not represented at a meeting with the Minister, alongside solicitor colleagues at which joint Direct Action was inevitably discussed, leads me to the concerning conclusion that the CBA want out of any direct and unified action mandated by The Ballot, let alone The Survey.

This takes me to the Monday Meeting of the CBA Executive.

The new protocol presented to Gove by the solicitors last week is being fixed upon by some within the CBA to undermine the ‘YES’ vote. Posts on the Social Media have referred to it as ‘a game changer’. But we should remind ourselves of the terms of The Ballot. The question was:

‘Solicitors face an 8.75% cut to litigators fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1^st July 2015 until such time as solicitors decide not to take further action in respect of that cut? Yes/No’

In carefully calibrating that question the CBA ballot paper stated that it ‘is intended to give the executive a suitable mandate for its next steps. In drafting the ballot question we have sought to synthesise the spirit of the different resolutions that have been proposed and supported at recent meetings’.

This is important when the CBA Executive seek to apply their minds to the matter on Monday. The mandate provided by The Ballot echoing in many respects the will of The Survey which the CBA stated on the 21^st May ‘urged the CBA to take action to press the Government’, was not confined or restricted to any opt out which may be executively imposed at a later date and it certainly did not provide the CBA Leadership with any mandate to shift their support should any new developments take place. Both questions in The Survey and particularly The Ballot were clear and unequivocal and it would be unfortunate to say the least if the CBA Executive attempted to undermine the unity expressed in the questions and seek to interpret the will of the members who have now voted twice on the issue.

It would equally be just as worrying if any attempt were made at next Monday’s meeting to extend the start date for Bar involvement in Direct Action a further 14 days, say, from the present starting pistol of the 27^th July. Many would see that as a predictable, long grass tactic. Anything short of respecting the will of the membership, as expressed in The Ballot would further damage unity and trust between both sides of the legal profession, something that, be in no doubt we will need in the months ahead…… unless you believe in Gove’s flattery, a tactic he used almost word for word with the Teachers back in 2012.

As Tony Cross, the Chair of the CBA said in his Monday Message of 13^th May 2015, anticipating the result of The Ballot “…this vote is a truly seminal moment for the Bar”. It was and we should jealously defend its outcome from any attempt to undermine it.

The Chair of the Bar Council, Maura McGowen QC has made the controversial suggestion that defendants accused of “sexual crimes” should remain anonymous until after conviction.

It seems that this was laid out by the Chair on the Stephen Nolan Show on Radio 5 last Saturday http://www.bbc.co.uk/programmes/b01qlf9d and has been confirmed by the Bar Council, by way of Re Tweeting.

Although I understand the sentiment from where this position comes from and readily recognise the trauma caused to people who have serious unproven allegations thrown at them, sexual or otherwise, I simply cannot see how this can work.

There are a number of essential distinctions between the position of a defendant and that of a witness, the latter of which, in certain circumstances is entitled to anonymity.

Essentially, the criminal justice system in this country, despite political efforts to the contrary, is based upon the Open Justice principle. Only in exceptional circumstances is that resoled from. Adopting that central tenet, if a person is charged by the State with a criminal offence, the proceedings should be conducted publicly, as Re Times Newspapers Ltd [2009] 1 WLR 1015, put it “with all the consequences that that entails. It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted”.

The administration of justice is clearly in peril, as the courts have recognised, if a witness cannot give reliable evidence unless they are protected by a variety of special measures, including, ultimately anonymity, but this rigid principle is unlikely to extend to defendants.

As such, the Chair of the Bar Council seems to be proposing something which is entirely out of step with the trend of current legal thinking. Nothing wrong with that, I accept, providing that it is logical and practical. It is not.

I find the proposition difficult, if only in terms of its logic. Why “sexual crimes”? What, in relation to an accused defendant, distinguishes them from, say, the heinous allegation of child murder or even a less serious offence, which upon conviction could ruin a person’s career. For instance, an allegation involving dishonesty or breach of trust could be devastating if you had made your name upon adhering to such principles. If we are to have anonymity for “sexual crimes”, (and I pause to ask, if this means all crimes with even the slightest sexual content?), why draw the line there? If Ms McGowen is going to be consistent, then it should extend beyond those closed categories and be universal. If this were to be so, all defendants would be entitled to anonymity.

In any event, sometimes it is vital for the investigating authorities to make public the name of accused people. By doing so, significant evidence can be gathered and other, potential complainants identified and particularised in a single trial to enable the jury to have a clear representation of the extent and similarity of the allegations.

For all these reasons and accepting the understandable impulse to raise the concerns of an accused, the suggestion on defendant anonymity is misconceived.