The Barrister Bard

Somerset and the West Country are favourite retirement areas for wrinklies of all shapes and sizes, mainly from oop North, where the climate is less agreeable.

It is akin to the Elephant graveyard, where old bulls and cows come to die, and with the advances in medical science, are taking longer and longer to do so.  In the meantime, they clutter up the check out tills at their local supermarket, and drive home at 4 mph.  Bless them!

Summer time is also a time when the warmer weather brings out the worst in the Great British bull and cow, and no more so than the outfits on show in public.  Whilst this phenomenon is not confined to wrinklies, they do tend to stand out from the herd like a sore toe.  I have learnt to live with singlets, tattoos, shorts displaying legs that should never be on show, even in the privacy of the home, but I draw the line at bare horny feet, with discoloured and unclipped nails, encased in Resurrection sandals.

And where is Health and Safety when you need them most?  It cannot be hygienic under any circumstances for these feet to be paraded when food is being sold.

With this in mind, I have been researching the law on indecent exposure, and correct me if I’m wrong, but there seem to be two separate offences.  The first is the common law offence which, in general terms, covers all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.  These are indictable offences with unlimited fines and imprisonment.

There is also an offence of exposure under the Sexual Offences Act 2003, which on the face of it, seems to be confined to the male genitals.  If I am right, then there is no offence committed if a female exposes her genitalia.  A curious distinction, and possibly sexist.

I have concluded, sadly, that neither offence covers the indecent exposure of horny feet, and more’s the pity.  But let’s not be fainthearted.  Despite the swingeing cuts in public finances heralded by George Osborne, local councils are still recruiting for completely naff jobs.  So why not a horny foot inspector with ‘on the spot’ fines?

Something needs to be done, and done quickly, to stamp out, or on, this malaise before it reaches epidemic proportions.

It should be blindingly obvious to one and all that with the advent of the Coalition Government, there would have to be compromise between the Tories and the Liberal Democrats if a consensus was to be reached.

This meant that each Party had to abandon some of its “holy cows” which they had assiduously fed and watered during the election campaign.  With cuts in public expenditure and the priority of balancing the national books being an essential part of the agreed agenda, the change in Party policy should come as no surprise.

With this willingness to bend with the political wind comes the decision by Kenneth Clarke, the newly appointed Justice Secretary, to review our whole attitude to crime and punishment, and I for one welcome this decision.  I have argued in earlier articles that the “lock them up and throw away the key” mentality of Little England is misguided and doomed to failure, as the recent past has demonstrated.

The statistics are frightening.  In the space of fifteen years, the prison population has doubled to a record 85,000.  This is not because crime has doubled.  It is simply because sentencing courts in the recent past have been compelled to pass custodial sentences where other sentences were more appropriate.

Crime and punishment has historically been the preserve of the backwoods Tory, but not any more.  It was the outgoing Labour Government which enacted the Criminal Justice Act 2003, a disgraceful and wholly unnecessary piece of legislation, with the stated aim of making convictions easier to obtain and increasing custodial sentences by a factor of ten.

More statistics.  Approximately half of the prison population are serving sentences of 12 months or less.  It costs on average £40,000 per prisoner per annum to keep them locked up.  You do the maths as they say, and all this before you throw into the pot the enormous legal aid budget, in the region of £2 billion.

The argument advanced by Little England is that if you keep offenders locked up, it is safe to walk the street at night.  But with a few rare exceptions, every offender is entitled to release at some time in his life, before he dies of boredom in his cell, and to avoid reoffending, he needs support in the community at all levels.  Surely it is better to use our precious national resources to this end.

Allied to this root and branch review of prison law comes the clarion call to the police from Theresa May, the Home Secretary, to forget about ‘targets’ and concentrate on cutting crime.  Sadly, this message has fallen on deaf ears, the deafest being a handful of Chief Constables who clearly feel uncomfortable about any new initiative which might disrupt their cosy way of life.  Remember Ian Blair?  The enormous salary, subsidised housing benefits, an inflated pension pot, chauffeured cars, entertainment allowances and the best seats in the house, and all in the interests of serving London.

Amazingly, Julie Spence, the Chief Constable of Cambridgeshire, and one of the most vocal critics of this clarion call, stated, and apparently with a straight face, that just one third of her work is about cutting crime.  She went on to say that her task was to provide a 24/7 social service law enfarcement (sic) agency.  Worse was to come.  She had spoken to half a dozen chief constables and none had differed from her view!  Perhaps she should speak to the people who really matter – the victims of crime!  And speaking of cuts, Julie Spence would be high on my list when heads start to roll.

And what exactly had Theresa May said to ruffle Plod’s feathers?  “I know that some officers like the policing pledge, and some like the comfort of knowing they’ve ticked the boxes.  But targets don’t fight crime. Targets hinder the fight against crime. In scrapping the confidence target and the policing pledge, I couldn’t be any clearer about your mission.  It isn’t a 30 point plan.  It is to cut crime.  No more and no less!”

Amen to that!

Another one of those ridiculous surveys has seen the light of day. This one tells us that when women yawn, it doesn’t necessarily mean they are tired.  On the contrary, it could mean they are sexually active!  However, we are given little guidance on how to spot the difference.  Is she up for it, or is she dog tired?

Presumably nobody saw fit to include my wife in the survey, let alone get a second opinion from me.  Had these surveyors done so, they would have discovered that when my wife yawns, it means she’s tired, and on the rare occasions I have suggested a roll in the hay, I have been told firmly to put the mouse back in the house.

Talking of yawns, the High Court is on vacation, with a skeleton staff and a ‘vacation’ judge to deal with emergencies, but I am reliably informed that the newly created Supreme Court is still at it, and an example to us all.  I know this because they have recently handed down their judgment in the case of Austin v Southwark LBC, and I know you would want me to share it with you.

The justices, as they are now called, decided that a former secure tenant, who was in breach of the terms of a conditional suspended possession order but was continuing to occupy the property as a tolerated trespasser, had the right to apply for postponement of the date for possession to enable him to remedy the default, and thus to revive the secure tenancy.  But if that were not excitement enough, where the former secure tenant, and now the tolerated trespasser, pops his clogs, his right survived his death and could be exercised by his estate.

You heard it here first.  As is so often the case, the devil is in the detail, namely section 85((2)(b) of the Housing Act 1985.  For the aficionados amongst you, the case of Knightley was wrongly decided, and has hit skid row, so that’s a load off!

Talking of our lords and masters, the controversy over the Human Rights Act rumbles on.  First up to the plate came Lord Hoffmann, criticising Strasbourg of aggrandising itself by seeking to impose Pan European law. Then we had Lord Phillips of Worth Matravers, a lone voice crying in the wilderness, or at least I hope so, putting his considerable support behind the Act as the last bastion of a civilised society, and sounding wholly unconvincing.  Next came Lord Judge, the Lord Chief Justice, accusing Strasbourg of threatening to ‘assume an unspoken priority’ over English common law.  And finally, Lord Neuberger, the Master of the Rolls, warning foreign judges to show ‘a more acute appreciation’ of the independence of the English legal system. 

How many more times does it need to be said?  We don’t need Strasbourg, and we don’t need the European Court of Justice.

Too much has already been ventilated, by word and mouth, on the Human Rights Act, with proponents and opponents entrenched in their respective corners and never destined to meet half way.

In previous articles, I have advocated its repeal, and will continue to do so, despite the recent speech of Lord Phillips, the President of the newly created Supreme Court.  He argues for its retention, but he fails to persuade me.

There are essentially three issues regarding the Act.  Firstly, do we need a Human Rights Act at all?  Only if it can be demonstrated that the human rights of the subject were not satisfactorily protected before the Act can a compelling case be made for its retention.  Our human rights before the Act were not statute based, but had evolved over centuries by the sensible application of common sense and fairness.

Secondly, and Lord Phillips would have to accept, its implementation, especially by the High Court, has led to some curious and contradictory judgments which fall far short of a ‘golden thread’ running through our judicial system.

And finally, the Act derogates powers from our domestic law to Europe, and in particular to Strasbourg.  To many, the idea that Johnnie Foreigner knows more about our human rights than we do is anathema to many, and sadly, Europe has a poor track record.

I have recently been enjoined by the new coalition government to participate in the ‘Big Society’, and I am now getting emails from David Cameron and, most recently, from Baroness Warsi.  With this in mind, and doing my bit for the economy, I recommend the abolition of the nanny state ‘no smoking’ legislation, which forbids smoking in any public place.

I concede that this ban has reduced by a small margin the number of people who actually smoke, and some modest savings have been identified by the NHS.  But consider the facts.  Smoking, as with the consumption of alcohol, is not illegal.  Cigarettes, tobacco and cigars, are heavily taxed, and this generates substantial income for the Treasury.  The latest annual figures show the total amount raised is in the sum of £10 billion, not to be sneezed at.

But it goes farther than this.  Figures suggest that as many as 300 pubs and restaurants are closing every week, the more so in rural locations, where drink drive legislation has hit the hardest.  Many customers of these establishments are prepared to moderate their drinking, but to be denied a cigarette with their favourite tipple is a bridge too far.  The suggestion that smokers should stand outside in all weathers if they want to smoke is unappealing, and in the result, they are staying home.

Pubs and restaurants also make a sizeable contribution to the national coffers, as do all successful businesses.  They are also good employers of cooks, waiters, receptionists, front of house, cleaners and the like, and all this is being sacrificed on the altar of political correctness.

Of course there are those who go to a pub or restaurant, who don’t smoke, and don’t want to be in the same room as smokers.  No doubt the owners of these establishments appreciate this, and if not, they don’t deserve to stay in business.  Surely they can be trusted to find the right combination to please all their patrons.

So my advice to David Cameron and George Osborne is to ditch the nanny state, and like human rights, to leave it to common sense and fairness.

You couldn’t make it up if you tried.  Picture the scene.  Earlier this week, Mr. Justice Mitting presided over a Special Immigration Appeals Commission to hear the appeals against deportation of Abid Naseer and Ahmed Faraz Khan.  Both men, Pakistani nationals, had come to the United Kingdom on student visas, and within a matter of months, had immersed themselves in terrorist activities.  Naseer in particular was described by the judge as “an al-Qaeda operative who posed and still poses a serious threat to national security.”

However, after mature reflection, the judge ruled that even though deportation was conducive to the public good, this was not possible because of the risk that he might suffer torture at the hands of Pakistan’s Inter-Services Intelligence Agency [ISI].  This would breach his human rights under the Human Rights Act 1998.  His human rights?!  What about ours?!

Not surprisingly, Theresa May the new Home Secretary, was ‘disappointed’ by the ruling!!!

I have argued for some time that we do not need to ally ourselves to the European Convention on Human Rights and Fundamental Freedoms.  The fact that we did had little to do with English human rights and much to do with Tony Blair’s European agenda.  In 1997, after 18 years of Conservative Euroscepticism, Mr. Blair wanted to put down a marker and show solidarity with our European partners, and this was a good way to start.

I remember when the Act came into force, the judiciary to a man were appalled and wholly unpersuaded of its need.  Our human rights have developed over the centuries, going right back to the Magna Carta, and by 1998, nobody but Blair was arguing that they needed a European shot in the arm.  They were right, and the consequences of the Act have brought nothing but trouble and some ridiculous rulings, the most egregious of which having just been made by Mr. Justice Mitting.

In the past few weeks, immigration has been near the top of the most pressing concerns of the electorate.  Some, like the Rochdale ‘bigot’, voiced them, others, in the best traditions of the Silent Majority, were not so forthcoming, and the debate stuttered and faltered during the election campaign, immigration being the word that dare not speak its name.

The new coalition government has a serious conflict of interests to resolve if the likes of Mr. Justice Mitting are to be put back into their box.  The Conservatives campaigned for the abolition of the Act, the LibDems for its retention.  There has been some lofty talk of a Bill of Rights, but within the coalition there is a circle that needs to be squared, and for my part, the sooner this poisoned chalice is dashed to the ground, the better for sanity and the safety of our fellow citizens.

As for the ruling itself, there are three obvious consequences.  Firstly, a small fortune will now be spent by the police in keeping these terrorists under constant surveillance, and to add insult to injury, a third Pakistani from the same stable who was deported, also won his appeal in absentia, and is now free to apply to return to this country.  

Secondly, Pakistan has been branded a pariah State.  Yet this country is at the forefront of the war against terrorism in its own back yard, and needs all the help and support it can get.  Mr. Justice Mitting was told, but chose to ignore, that of the eight other detainees arrested by the police last April, all eight had returned voluntarily to Pakistan and were living unmolested by the ISI.

And finally, what of our own credentials?  It was not so long ago that the Press and Media were full of graphic accounts of our complicity in “extraordinary rendition.”  So when we ask for the extradition of alleged criminals and fugitives from justice, we could be met by the same absurd reasoning applied by Mr. Justice Mitting, namely that we are a pariah State with a recent track record in torture, in which case our application will be refused.

Somebody in government needs to do something quickly before we become the laughing stock of the civilised world, and an apology to Pakistan may not come amiss.