TIME TO CALL IT A DAY

Many years ago, when most of you were not even a twinkle in your parents’ eye, the question of fault in the breakdown of marriage was all important, as much was riding on the outcome. Fault determined in large measure if the petition should be granted, and if so, how the marital assets were to be divided, who would get the Royal Doulton dinner service, and who would pay the extravagant court and legal fees.

We all remember the Duke and Duchess of Argyll in the fifties, whose divorce was the daily fare of the tabloids, with ever increasing and prurient revelations the one against the other.  Binky and Dilly, as they were known to their intimate and eclectic circle of friends, used every opportunity to stir the pot in the hope that this would influence the eventual outcome.  It was the stuff of Barbara Cartland and her chocolate box romantic fiction.

Some 25 years’ later, with Parliament as ever on the front foot, attempts were made to simplify the laws on divorce by introducing the notion of the irretrievable breakdown of the marriage, and five tests were enacted to bring this about.  The most controversial was the notion that the respondent’s conduct during the marriage had been unreasonable to the extent that the petitioner could no longer be expected to live with him or her or it, if you take into account the new and ever growing fad for transgenders.  Interestingly, adultery is a ground for divorce, but only if the adulterer is violating the sanctity of the marriage bed by having it away with somebody of the opposite sex.  Somebody of the same sex will not do, which smacks of discrimination to me, and the law is silent on having it away with somebody whose sexuality is indeterminate.

Against this squirming sack of sordid emotions is the recent and ongoing case of Tina and Tim Owens.  She wants a divorce on the simple ground that the love has gone out of the marriage and she finds her husband a royal pain in the arse.  He doesn’t dispute this, but as it’s not a ground for divorce, he doesn’t want one, and the court will not grant one. She has tried to reason with the High Court and the Court of Appeal, to no avail, and now she is appealing to the Supreme Court, a lottery if ever there was.

This has brought into sharp focus the absurdity of our present divorce laws, and calls for the introduction of a no fault divorce. There is  a vocal lobby, isn’t there always, calling itself Resolution, a national group of family law specialists, which advocates “the need to reduce conflict and support separating couples to resolve matters amicably, rather than forcing them to play a blame game where one or both of them thinks the marriage is over.  The simple fact is that the Owens’ case should not have been necessary, and only by implementing a no-fault divorce system can we ensure such a situation doesn’t happen again”.

Call me old fashioned if you will, but I believe in the sanctity of marriage and the solemn vows taken between spouses, and most important of all, the recitation that “whom God hath joined together, let no man put asunder”.  Marriage should be more than a good knees up and swilling copious quantities of alcohol, and if, in the cold light of day, it’s not a union made in Heaven, should they simply walk away, or work at making it a success?

I agree that the grounds for showing that the marriage has broken down irretrievably should be revisited, as in many cases they are patently absurd, but that’s no reason to throw the baby out with the bath water.

I have some sympathy for Tim Owens.  He has accepted that the long marriage may be past its sell by date, and he acknowledges this, but to simply walk away after so many years is defeatist and a denial of their marriage vows.

JUDGE NOT

I have never felt comfortable with the review of lenient sentences provisions, which allow the Court of Appeal to review sentences referred to them by the Attorney General, with the sole object of increasing them or converting community sentences into ones of immediate imprisonment.

Picture if you will how these so-called unduly lenient sentences are passed.  The judge will be either a Recorder or a full time circuit judge, so they will have had the benefit of experience within the criminal system.  They have to serve a minimum of 10 years at the coal face before they can apply to sit in loco judiciaris, and they start off trying piss ant cases such as shoplifting or gobbing in public to get the measure of the job so to speak.  If they behave and keep their noses clean, and most important of all, if they don’t upset the Lord Chancellor’s minions, then the Queen’s shilling beckons, and it’s a job for life.  Come the twilight when it’s time to retire, there’s the index linked pension to look forward to, and the chance to come back from time to time to relieve the boredom of gardening and too much daytime television.

Judges are also given a copy of Sentencing Guidelines, which they are expected to master, and which explain when to go in with the soft shoe and when to go in with the studs showing.  All in all, you may think, not much room for error or original thought.

Imagine my surprise therefore when I am told that last year, 190 cases were referred by the Attorney General to the Court of Appeal as being unduly lenient.  As an aside, the power to refer is also within the remit of the Solicitor General, but as nobody knows who he or should may be, it can be discounted.

The review of these unduly lenient sentences is carried out by judges of the Court of Appeal who know absolutely nothing of the trial process other than what they are told by the Attorney General, and he too knows absolutely nothing about the trial process.  Of course the miscreant whose sentence  is being reviewed has the benefit of mitigation provided by an advocate, who may or may not have been there when the sentence was passed.

It’s justice behind closed doors, to assuage the lust for condign punishment which is the life blood of middle England, that ignorant and bigoted swathe of the population that judges now have to humour.  Before all this nonsense of everybody and his dog having a shout, the principle of open justice to which I subscribe is that justice must not only be done, but must be seen to be done.

And what is achieved by these increases in sentence, other than blood letting and yet more prison overcrowding?  In my opinion, absolutely nothing.  We either trust our judges, who were there to hear the evidence and listen to the mitigation, or  we go down that well worn road travelled by countless dictatorships, where trial and sentence are conducted behind closed doors and there is no appeal.

Our judges are good enough, and experienced enough, and possessed of an abundance of common sense and fair play, to trust them to get it right, so let’s get rid of this odious backdoor kangaroo court and get on with the important task of making the system work.

 

THE LORD CHANCELLOR

A lively debate is taking place over the appointment of successive Lord Chancellors and the need, or wisdom, of having an incumbent who is legally qualified.  This lively debate reflects the recent decision of the Prime Minister, whoever that might be at any given time, to appoint laypersons to the office, and we have been treated in equal measure to Chris Grayling, Oiky Gove, Liz Truss, or is it Lynne Truss, I can never tell them apart, and finally to the present incumbent David Lidington, otherwise known as David Who.  They come and go with monotonous regularity, poor players who strut and fret their hour upon the stage and then are heard no more.

The historians amongst you will remember Thomas à Becket, back in 1172, who as the Archbishop of Canterbury was dispatched to his Maker with those oft quoted words uttered by King Henry: “Will nobody rid me of this meddlesome priest?”  Four knights did, and precious little thanks did they get for their grisly work.

But I digress.  Before taking holy orders, Becket also served as Lord Chancellor. He had no legal qualifications, indeed in 1170 legal qualifications were as rare as hens teeth, far more important was a well turned ankle and a winning smile, both of which Becket had in abundance, so he got the job.  Surprisingly, he made quite a fist of it, introducing the Court of Chancery modestly named after him, and his shoe size became the universally accepted measurement of one foot.

He also erected  a barrier, or bar, between him and the great unwashed, to keep them at arms’ length when the court was sitting, to reduce the threat of a bunch of fives from disgruntled litigants as well as keeping the overpowering smell of body odour to manageable proportions. Again for the historians amongst you, litigants who addressed the Lord Chancellor from the bar became known as barristers, and the rest, as they say, is history.

But back to the plot.  Do we need a Lord Chancellor who is legally qualified, or who has at least some legal experience and knowledge?  The clue is in the text of section 2 of the Constitutional Reform Act 2005, my favourite bedside reading. It is as instructive for what it doesn’t say as for what it does, and make of it what you will:

“A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.”

In other words, anything goes, so legal qualifications are an irrelevance.  On one view, nothing has changed since Thomas à Becket, so if it works, don’t fix it.  In some cases it didn’t work, the most obvious being the unfortunate Liz or Lynne Truss, who was appointed solely on the strength of a well turned ankle and little else.  The fact that she was a woman helped, but not enough to save her from the cull.

Speaking entirely for the thousands of barristers washing around the courts, it is the perception as much as the qualifications of the incumbent, or not as the case may be, where the rule of law now inserts itself into every corner of our lives, and the Lord Chancellor needs the authority and the gravitas of his office as never before.  Downgrading the qualifications downgrades the institution at the very time when respect for the law is at its lowest.

David Osborne is the author of three humorous books on the Law.  His latest, entitled Order in Court, is now available on Amazon and in all reputable bookstores.

THROW AWAY THE KEY

Before we wave goodbye to Mick Jagger, now Sir Mick Jagger, bastion of the establishment, how the worm turns, I was struck by his reaction to a night in Brixton Prison: “It was not particularly nice. Not to be recommended.” An understatement if ever there was.

For as many years as I can remember since I was called to the Bar in 1974, we had a number of stock phrases when mitigating on behalf of our client, one of which was the clang of the prison gate and not the length of the sentence that was the ultimate  deterrent, and so it was for Mick Jagger as it is for so many who are carted off and locked away.

It is one of the phenomena of the past twenty five years that successive governments have used imprisonment as the first, not the last resort, and sentences have got longer and longer  In case Jeremy Corbyn is tempted to point the finger at the Tories, some of the most draconian laws on crime and punishment were passed in 2003 by a Labour government when Tony Blair was in power and still in short trousers.

Despite vacuous statements about reducing the prison population, it hasn’t happened and will never happen unless we have a complete rethink.  In Mick’s case, he was sentenced as a first offender to 3 months imprisonment for the possession of four amphetamine tablets.  Whilst the judge could have been working to a political agenda, it was excessive and immediately overturned on appeal.

The statistics are frightening.  The prison population is higher than ever, and 40% are re offenders. So much for the concept of rehabilitation.  Almost all prisons are dangerously overcrowded, and the crimes being committed behind bars are worse than the crimes that  brought the inmates there in the first place.  The frightening mentality of the ‘lock them up and throw away the key’ brigade is depressingly familiar in Little Britain.

Another frightening statistic is that nearly 80% of prisoners are serving a sentence of 12 months or less.  They shouldn’t be inside in the first place, but judges have lost the power to be original and inventive, and must do everything by the book.  If that’s the case, time to throw away the book.

As I drive along motorways, or more to the point, crawl along motorways, I am astonished and depressed in equal measure by the amount of litter along the roadside. So why not use those convicted of petty crime to pick it up?  Far better than sitting in a cramped cell for hours on end doing nothing.

They say that a society should be judged by the way it treats its most disadvantaged citizens.  If that is so, we have a lot to learn.

DAMNED IF YOU DO…..

Two judges are very much in the news. The first is the aptly named Judge Block, the infamous judge now long gone whose only claim to fame was sentencing Mick Jagger in 1967 to 3 months’ imprisonment for possession of 4 amphetamine tablets. That sentence of imprisonment lasted less than 24 hours before Jagger was released from Brixton Prison pending an appeal.

The second more illustrious judge is the splendidly named and recently retired Sir Martin Moore-Bick, a former Court of Appeal judge, who has accepted the poisoned chalice, possibly to his everlasting regret, and has agreed to chair the public inquiry into the Grenfell Tower fire.

Whatever else, he brings to the task over 20 years of judicial experience, and with the obvious exception of some hooligan elements of the Labour Party and self-interested lobby groups, the appointment has been generally welcomed.

That said, the press muckrakers point to a case in 2014 when he upheld the decision of Westminster Council to rehouse a single homeless mother  50 miles away in Milton Keynes.  His decision was overturned by the Supreme Court.  The report of the appeal does not relate if it was the distance that was deemed unfair, or the relocation to Milton Keynes, the land of the concrete cows.  But when questioned by some newshound about this decision, Sir Martin made an obvious yet incisive comment applicable to all judges, high or low:

“The case is one of many that I have decided over my time as a judge,” Sir Martin said. “I have been a judge for over 20 years and, particularly in the Court of Appeal, one deals with an enormous range of work, much of which involves local government or central government. One simply reaches the conclusion that you think is right, applying the law as you see it, and that is the work of a judge. You can’t pretend to get every case right, at least in the eyes of the Supreme Court.” And perish the thought, even the Supreme Court gets it wrong from time to time.

No jurisdiction this side of the pearly gates can guarantee that judges are going to get it right all the time, indeed, it’s absurd to even think so. When I first started  out at the Bar in 1974, instances of judges getting it wrong were legion.  Less so today, where judicial appointments are rigorously vetted, to ensure if possible that the right candidates get the nod.

Those of you who know and love me will know that many years ago, I was considered unsuitable for judicial office because some minion thought I was intemperate.  Me!  Intemperate! Outrageous!

In his judgment to come on the causes of the Grenfell Tower fire, I doubt if Sir Martin will be all things to all people, and my advice to him is to drop the chair like a hot brick.  I suspect he is too much of a professional to do so, in which case he deserves our thanks, or at least the thanks of decent fair minded people,  but there will be elements who will seek to undermine him and to question his every decision.

Back to Judge Block.  He got it horribly wrong when he sentenced Mick Jagger, but getting it horribly wrong doesn’t, or shouldn’t, disqualify him from judicial office.  We hope he learned from his mistake, and moved on.

Judges have an unenviable task, underpaid and overworked, and a knighthood is poor recompense.  Time to show some gratitude, and time to support them in the difficult tasks ahead without constantly carping and belittling them.

Judges are the ultimate bastion of our democracy.

 

 

 

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