About shadowofthenoose

A QC at 25 Bedford Row, London. I am also a Visiting Professor of Law at Cardiff University and a writer represented by Independent Talent who broadcasts and writes for TV, Radio, Stage, Books and Newspapers. Follow me on Twitter: @John_Cooper_QC and also see my website: www.john-cooper.info

Rebuttal of Tom Quinn’s Piece in Civil Society

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.email to lacs trustees

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 16th 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 Act or Bill of Rights: A Myth Buster.

Human-rightsHuman 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.

The Survey, The Ballot and The Misunderstanding

elections_in_occupied_country_cartoon[1]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 21st 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.

cba tweet

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 1st 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 21st 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 27th 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 13th 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.

We the Jury: The Case for Trial by Jury

jury_box[1]Over the last week, the debate about the place of the jury in the criminal justice system has occupied the minds of a great number of people.
The approach of those who seek to undermine, what has hitherto been a central, if not statistically limited strata of our trial process, has been to emphasise that the ability of randomly chosen citizens to decide issues of fact, apply the law as directed by the judge and come to a proper verdict has been exposed as deficient by a single jury in the Vicky Price trial.
Of course, we are immediately confronted here with the ‘knee jerk’ brigade who seem to be mounting an argument, the effect of which, is to weaken public confidence in one of the few remaining democratic and publically accessible parts of our legal system , upon a criticism of one jury. But we should never forget the wise words of Tony Hancock in his interpretation of ‘Twelve Angry Men’: “Think of your roots, think of your history. Magna Carta, what did she die for?” (and yes I know all the counter arguments re Magna Carta, but it is still funny).
I do not propose to examine the events surrounding the Price jury, not least because there is an ongoing trial. But we need to get some perspective pretty fast upon what could be a very damaging assault by some upon a crucial way in which the general public can engage and be part of our, their, trial process. In fact it is the only way.
Every year, about 480,000 people across the country are called and sit as jurors. The very fact that the former jurors on the Price trial received so much publicity is testament to the vast majority of jury members who go about their business responsibly, consciensiously and diligently. The fact that the Price jury made news was because it was news. Furthermore, and in the interests of clarity, before those who would undermine this process get their way, we do not even know, nor do I seek to know, whether the entire 12 of the Price jury subscribed to those notes ( some of which were perfectly sensible like the definition of ‘reasonable doubt’ which has troubled lawyers, both practicing and academic for many years and described by Penny Derbyshire in her Paper, ‘What can we learn from published jury research? Findings for the Criminal Courts Review 2001 [2001] Crim L.R 970 as a “direction.. almost universally seen as problematic”).
The overwhelming arguments in favour of our jury system have been made in a number of places. I discussed them last week on Newsnight www.bbc.co.uk/news/uk-21528308, as the debate reached its height and there is a wealth of discussion on the Social Networks developing and advancing the case for trial by jury.
One of the points I raised in that Newsnight piece was my concern about the alternatives. Primarily that alternative is a judge, with all the cynicism and baggage that comes with it. Some have suggested aptitude tests for the jury which in my view smacks of pre-selection and goes against every essence of the random nature of establishing a jury. In the vast majority of cases most members of the public are perfectly able to deal with the assessment of fact required for their duty service and to suggest in a narrow and defined number of trials that there should be aptitude or intelligence tests begs the question as to the criteria for introducing these tests, for instance is it any case with a financial element? Or just some that the lawyers consider to difficult for the general public? Even in writing this it feels some what arrogant to be even suggesting it.
Those who criticise the jury raise the fundamental argument that the jury may not understand their case, either on a factual basis and equally from a legal perspective. Putting to one side the taint of arrogance within this approach, bordering, as some have put it on snobbery, it follows that their concerns, they perceive, will be assuaged by judge only trials. Someone recently Tweeted to me “I would rather be tried by a judge than a jury” Would they?
Lets take the much debated Jubilee Line Trial, Rayment and others as an example of a previous occasion when the jury doubters held court. This trial collapsed in 2005 after 21 months when the prosecution conceded that the fraud trial was no longer viable. A central allegation against the jury was their lack of competence to try, in this case, long and complex trials.
It follows, of course with this argument, that this inability to fulfill their function is heightened in a short trial such as that of Price.
But upon close analysis of all the reseach, statistics and records relating to the work undertaken by the jury, this inability, either in long or short trials is just not made out.
In 1998 researchers conducted an simulation study of jurors’ comprehension of some of the evidence in the Maxwell fraud trial [1998] Crim L.R 763.
They concluded that  “cognitive unfitness” had not been made out as a reason to abolish trial by jury for complex fraud cases and specifically recognised  that the content of a case, properly explained by the lawyers and the judge, was not a problem for the jury.
The Auld Review of the Criminal Courts of England and Wales (2001) came to the view that if it could be established that the fact-finding role of a Tribunal could be better taken by an entity other than a jury then the justification for trial by jury would fall away. Yet in his Paper, ‘ Modes of trial: Shifting the balance towards the professional judge’ [2002] Crm L.R 249, John Jackson argues that, regardless of this, juries perform a valuable function in “reinforcing adversarial protections for the accused and this raises issues which go beyond the question of their competence as a fact-finding tribunal”.
Much of this approach takes into account the indisputable role, occasionally played by a jury in bringing in an acquittal, despite the liklihood of technical, legal guilt. Some would refer to it as justice, rather than a clinical finding based upon the law. It is something, quite properly, that a judge, with all his professional training and codes simply could not and should not do.
Instead of arguing from a perspective that the jury no longer fit into our sophisticated appreciation of the criminal justice system, we should be looking at this issue from an entirely different view. A democratic criminal trial process needs the participation of the people it serves. If there are problems in delivering this then it is the legal system which needs to adjust to maintain the contribution of the citizen it is servant to. Any required measures to assist the participation of the jury, such as cogent and clear presentation of the evidence and the arguments are a matter for the legal profession and it is to us, if criticism there be that it should be directed.
But we must remember, in fact, something near 98% of all criminal cases are decided by Magistrates. The arguments of the last few days relate to some 2% of our criminal trials. We should think very carefully before we throw away that rare but vital right.
As Humphreys J wrote in a 1956 Edition of the Criminal Law Review [1956] Crim L.R 434,
“I cannot bring myself to believe that there are any persons other than the inmates of a lunatic asylum who would vote in favour of the abolition of trial by jury in serious criminal cases”.
Well said that man.

Chair of the @thebarcouncil Eng & Wales tells Nolan show there should be anonymity for those people ACCUSED of sexual crimes until conviction.

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.

Sometimes we should be spoil sports: The need for public protest.

Earlier this week, Trenton Oldfield http://www.bbc.co.uk/news/uk-england-19733385 was convicted of ‘Causing a Public Nuisance’ by a jury at the Isleworth Crown Court. Previous instances of this rarely prosecuted offence include impregnating the air with “noisome and offensive stinks and smells” causing “a nuisance to all the King’s liege subjects living in Twickenham” But Oldfield was the man who had the temerity to disrupt the Oxford and Cambridge Boat Race last April, by choosing to take a swim, just as both boats were getting into their stride.
The prosecutor explained to the court that his actions had “spoiled the race for hundreds of thousands of spectators” and for this, the judge has adjourned sentence,commenting that she is not ruling out a prison sentence.
Of course, Mr Oldfield is not the first person to attempt to make a point by spoiling the fun of sports enthusiasts. Famously protestors dug up the crease at the 1975 Third Test between England and Australia in an attempt to bring to the publics attention that an innocent man had beensent to prison for robbery the year before. Only last year, that man, George Davis  http://en.wikipedia.org/wiki/George_Davis_(robber) was exonerated by the Court of Appeal and his conviction held to be unsafe. One of the men who vandalised the cricket field, Peter Chappell, http://www.wrp.org.uk/news/6398  was sent to gaol for his part in trying to raise public awareness in what has since been recognised as a gross miscarriage of justice. No doubt the Third Test, back in that rainy Summer of 1975 was “spoiled for hundreds of thousands of spectators”, but, nearly 40 years later, their sporting pleasure was nothing compared to the gaoling of an innocent man.
Similarly the thrill of horseracing was spoiled for many spectators when a suffragette http://www.bbc.co.uk/history/historic_figures/davison_emily.shtml threw herself under the King’s Horse and was trampled to death, but surely the spoiling of their fun was nothing compared to the denegration of women in that pre-vote era. Her tragic death, as she ran into the path of the galloping horse was borne of anger and frustration in an age since recognised as discriminatory and unfair.
Interestingly, one of the reasons why Oldfield swam out amongst the boats was that he objected to the government and Olympic organisers call for us to report anyone we suspected of planning a public protest during the Olympic period http://www.guardian.co.uk/uk/undercover-with-paul-lewis-and-rob-evans/2012/jul/24/police-need-intelligence-over-olympics-protests. For this he was charged with ‘Causing a Public Nuisance’. The ingredients of the offence are that he behaved in such a way that an injury was suffered by the public and potentially carries a life sentence http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/public_nuisance/. Of course, Mr Oldfield will not get life, but this rarely prosecuted offence may yet see him serving time.
In fact what Trenton Oldfield did during the last Boat Race was in the finest historic traditions of getting public attention at a big sporting event, for a cause which struggled to attract National interest, sympathy or appreciation. He has been treated in the same way as others before him, ridiculed and criminalised. The usual suggestions that a sporting venue is, in any event, no place for such behaviour has also, predictably reared its head and, again  predictably, venerated sports people have castegated the behaviour of the protestor.
We live in a Society which only tolerates public protest so long as it is clean, relatively quiet and does not inconvenience anyone. The moment it threatens or spoils our fun it becomes a police matter.
Ultimately, history treats the protestor far more equitably than the present.

THE SEX OFFENDER REGISTER REVIEW: MYTH AND REALITY.

There are few things more sensitive than sexual offences and how we
deal with sex offenders.

In the calendar of criminal offences, there can be nothing more
appalling than the sexual violation of any individual and the whole
issue, quite understandably triggers painful and volatile debate. Most
importantly, the victims of sexual offences are caused anxiety and
distress whenever the subject of sex offenders becomes a topic of
public debate and unless the issue is discussed accurately and
responsibly, there is the real risk that victims will be deterred from
reporting crimes to the police.

So it is that Ministers, Commentators and interest groups, including
the NSPCC http://www.nspcc.org.uk/, waded into this highly sensitive
area when the ruling in R (on the application of F by his litigation
friend F) and Thompson (FC) (Respondents) v Secretary of State for the
Home Department (Appellant) [2009] EWCA  Civ 792
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0144_Judgment.pdf
came into force a few days ago.

It does none of these groups any credit to analyse for a moment the
ill-judged, knee-jerk reactions which flooded onto the media. The
misinformation and at times downright hysteria coming from the mouths
of people who should know better was shocking. Furthermore, there can
be no excuse for it. I think that we can safely assume that Ministers
and Charities such as the NSPCC have legal advice and that the impact
of ‘F’ upon the way sex offenders are monitored in England and Wales,
was recognised as being marginal and certainly not worthy of the
hyperbole of the last few days.

Lets put a few myths right. Sex offenders still have to register as a
matter of compulsion. Sex offenders still remain on the list for life,
as they have always done and do not automatically come off it after 15
years. Sex offenders will have to convince a Police Force that they
are safe to come off the Register after 15 years of being on it in the
community and one can assume, having not been convicted of further
offences.

Listening to the rhetoric of Ministers and in particular Theresa May,
the Home Secretary over the last few days, it is not surprising that
vulnerable people, victims and those under threat, were shaken by what
they were hearing.

The problem is, that when it comes to sexual offending, politicians
have been brought up to take no chances… look what happened to Ken
Clarke for instance. Best deal with it in broad strokes so that there
can be absolutely no room for misunderstandings, or worse, the media
deliberately making it a crisis.

For a moment, for those who want a calm consideration of the
situation, let’s get to the facts.

By way of background to the legal foundations for the present
position, we need to go back to the Sex Offenders Act 1997
http://www.legislation.gov.uk/ukpga/1997/51/contents  and in
particular, Section 1(3)
http://www.legislation.gov.uk/ukpga/1997/51/pdfs/ukpga_19970051_en.pdf
. This laid down that there would be an automatic statutory
notification upon conviction of the name, address and date of birth of
the offender within 14 days of the conviction. This was to be given to
the police and that they should further give notification of any
address at which they would be staying for 14 days or longer.

Then came the Criminal Justice and Courts Services Act 2000
http://www.legislation.gov.uk/ukpga/2000/43/contents which reduced
notification time to 3 days and introduced a requirement that if the
offender went overseas, they should give notification within 48 hours
of travel to include details of the carrier, points of arrival, where
they were staying, date of return and point of arrival.

Both pieces of legislation were repealed and substituted by the Sex
Offenders Act 2003
http://www.legislation.gov.uk/ukpga/2003/42/contents  Section 82
onwards http://www.legislation.gov.uk/ukdsi/2012/9780111521403.
Take a look at this provision. It strengthens the already stringent
regime of the previous legislation and quite properly restricts any
movement and activity of convicted sex offenders comprehensively. I
make this point and lay out the historical development of these three
protective statutes, because listening to Ministers over the last week
or so, you could be forgiven for thinking that it has all been swept
away. It has not.

Victims of sex offences and those who may be on the edge of reporting
sex offences should know that the law provides for extensive
restrictions upon those convicted. Ministers do irreparable damage to
the criminal justice system when they imply otherwise.

A close reading of ‘F’ also makes it clear that the Supreme Court were
bolstering this protective series of provisions. Lord Phillips
confirmed in terms that it is lawful to monitor for life sex offenders
and everything that their Lordships said, marked and reiterated the
heinous status of sexual offending in the eyes of the law.

The case was not about whether sex offenders should or could be
monitored for life, it was a case decided upon the very narrow issue
of whether 15 years after release, some could apply for a review, as
to whether they might be removed from the Register.

As a matter of law, and quite rightly in my view, the Supreme Court
decided that being put on the Register for life, without the chance of
review was disproportionate when taking into account the provisions of
Article 8 of the European Convention on Human Rights http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-to-respect-for-private-and-family-life.html.

Proportionality was considered with reference to the leading authority
of De Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing [1999] 1 AC 69 [at page 80]
http://www.bailii.org/uk/cases/UKPC/1998/30.html , in that the
requirement in question should be no more necessary than to accomplish
the objective.

The objective is to keep Society safe. There was considerable
consideration in the case of whether sex offenders can ever be safely
let back into the community without close monitoring and this debate
continues outside of the Supreme Court. Perhaps reassurance can be
gained from official statistics for 2008 which suggest that
reoffending rates for sex offenders at 26.8% is lower than domestic
burglary [59.9%], and Robbery [38.1%
http://www.justice.gov.uk/statistics/reoffending/proven-re-offending].

As such, the Supreme Court ruled that no chance of review was disproportionate.

That is the reality. Of course some will say that there should never
be an opportunity of review, they would probably be the same people
who argue with passion that ‘the keys should be thrown away’. But
whether we like it or not, the ultimate protection for Society is
rehabilitation and sometimes, just sometimes, the odd sex offender
might persuade a policeman that that is possible. That is the top and
bottom of it and it seems to me that this debate is more a product of
the political conference season than responsible public reassurance.