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TRIAL BY JURY

December 15th, 2016

I have argued before, and I argue again, that trial by jury is a lottery, and that can lead to a serious miscarriage of justice.  I have argued before, and I argue again, that the average juror is not intelligent enough to grasp the legal and evidential complexities.  It’s like putting the lunatics in charge of the asylum.

As if to prove my point, a recent survey of expert witnesses showed that nearly two thirds questioned the ability of the jury to understand scientific evidence, and 40% believed that such evidence should  be heard and evaluated by the judge sitting alone.  Other statistics show that we are close to the bottom of the league table in the so-called civilised world in basic education, numeracy and literacy.  Put another way, most of our jurors are as thick as two short planks. In addition, it doesn’t help to lower the age qualification to serve on a jury from 21 down to 18.  To do justice, a juror should be worldly wise and possess the wisdom of maturity.

Some years ago, I was prosecuting in a trial where much of the evidence turned on actuarial calculations which the Crown argued were dishonest.  The jury needed to be reasonably literate and numerate.  When empaneling the jury, the court clerk states that any objection to any juror should be made before he comes to the book to be sworn, which means before he opens his mouth. A bad call!  In that particular case, one of the jurors couldn’t read the oath on the printed card, although he tried in vain, but it was too late to object, so he sat through nine days of evidence looking totally bemused and not understanding a word of it.  Mark you, from the judge’s expression, he was not alone.

It was fellow members of the jury who alerted the court to the juror’s disability.  In the event, he had to be discharged, a fresh jury empanelled and the trial had to start all over again.  It cost the taxpayer several thousand pounds.  And even if he had not been exposed, he could not have taken a meaningful part in the deliberations, and would simply have gone with the flow.

For the history buffs amongst you, you will remember that trial by jury came about in the days when the judge had no formal training, and needed all the help he could get.  The jury was composed of gentlemen over the age of twenty one who were property owners.  Women folk came along several centuries later.  The jury had two obvious attributes: they knew something about the world; and they could read and write.

To tackle the problem of a poorly educated and immature jury  unable to consider the evidence dispassionately, I propose that where the judge determines that the case he is about to try is complex and needs specialist skills, such as literacy and numeracy, he should try the case himself without a jury.  When he delivers his verdict, he would be obliged to give a reasoned judgment which could be challenged on appeal, instead of the present system where the foreman delivers a two syllable verdict and promptly sits back down.  There is no attempt by the jury to explain or qualify their verdict, and it is left to the judge to second guess.  That can’t be right.

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I CANNOT HEAR YOU

December 12th, 2016

During the otherwise turgid submissions of the Brexiteers in the Supreme Court, Lord Sumption’s ties brought much welcome relief.  Every day he sported a different one, all colourful and eye-catching and a joy to behold.

When I was first called to the Bar, and for a number of years thereafter, dress code in court was rigorously controlled by the judiciary. If, in the opinion of the judge, you had transgressed the dress code, he would remark waspishly and in time-honoured fashion: “Mr. Osborne, I cannot hear you.”  The dress code could be transgressed by the smallest distracting item.  A gold watch fob, especially draped over an expansive belly, or a colourful handkerchief in the top pocket, could be sufficient to incur judicial displeasure.  Worse still was Counsel wearing what was known in those days as a ‘lounge suit’, a lighter shade of the conventional dark outfit and with an unwelcome shine to the fabric.  The ultimate transgression was appearing without a waistcoat, almost as bad as appearing without trousers.

The dress code has been relaxed over the years, mainly to accommodate the new breed of solicitor advocates who were unfamiliar with court dress and who were slow learners.  This was the same breed who, when invited to a formal dinner party, and before taking their seats, would immediately take off their jackets and drape them over the back of the chair.

The problem with the remark “I cannot hear you” is that it is open to misinterpretation, the more so in the days before compulsory retirement, with the most tenacious judges going on, and on, and on. This could place the unwary advocate on the horns of a dilemma.  Is he to assume that the judge is as deaf as a post, so he should speak loudly and slowly as if addressing a Spanish waiter in Benidorm, or does he immediately begin a thorough examination of his apparel, rather like an old dog doing a bit of self-grooming but without licking the testicles?

My advice?  Best to do both.

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FOOT IN MOUTH

November 23rd, 2016

The year was 1976, and I found myself in the USA. It was that time when the stench of presidential corruption emanating from Richard Nixon’s tenure of office was slowly beginning to dissipate, thanks in large measure to Gerald Ford.  He was Nixon’s vice-president, chosen because he was uncontroversial and had no opinions to offer on anything.  He was the perfect antidote to the crisis that had enveloped the White House, a safe and steady pair of hands. Plucked from relative anonymity, he made an ideal stand in president.

I remember it well.  I was downtown in Omaha Nebraska, not on everybody’s itinerary of places to see, but agreeable nonetheless.  I was having lunch with friends and acquaintances, some of whom were American, and the conversation turned to Gerald Ford. I repeated the oft-repeated joke that he couldn’t walk and chew gum at the same time, and my American acquaintances were mortified.  It was one thing for Americans to make fun of their president, it was quite another for a goddamned limey.

But it doesn’t end there, as Hillary Clinton now knows to her cost.  Americans are a mixed bag of squirming emotions when it comes to politics, and many of their prejudices make for uncomfortable listening.  Their blinkered defence of their gun laws, or more to the point, no laws, are hard to justify, but I digress.  During the American election, Hillary referred to Trump’s supporters as ‘a basket of deplorables’.  It cost her dear.  As one commentator pointed out, there are 58 million ‘deplorables’ in the USA, so it was foot in mouth big time.

I am a fan of ‘Have I got news for you’, it is satirical and at times acerbically funny, but every now and again it oversteps the mark.  I refer to a recent episode which had as one of its guests Maureen Lipmann, you may remember her, but I wouldn’t be surprised it you didn’t.  In her time she was the archetypal Jewish Momma, and in her time she was very funny, the more so if you like Jewish humour.  The joke about the woman who slept outside a synagogue and woke up with a heavy dew on her is a particular favourite.  I was surprised to see her, as I thought she was dead, but no matter.  The opening part of the show invited the panelists to comment on the recent election of Donald Trump, and before you could say ‘Oy Vey’  she launched into an unpleasant, offensive and remarkably unfunny diatribe about Trump which had me cringing and reaching for the off button.

Satirical humour is  often hard to achieve, as there is a fine line between satire and crass stupidity.  Whilst American presidents in America are as much legitimate targets as anybody else, those targets don’t travel well, and personal invective becomes crass stupidity.

Maureen Lipmann is not alone in spouting crass stupidity.  Boris Johnson is liked because of his informal and at times ‘off the cuff’ style of diplomacy, but there are times to act like the village idiot, and times to behave like a grown up.  Like him or not, Donald Trump is with us for the next four years, so best to tread softly, give him the benefit of the doubt, and remember that the special relationship is more important now than it has ever been.

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GETTING IT WRONG

November 5th, 2016

A firestorm erupted yesterday when the High Court sided with “Parliament” against the Executive about Brexit and triggering Article 50.  The three judges have received a verbal bollocking from the Executive and their ruling will be appealed to the Supreme Court.  I say ‘Supreme’ but it isn’t, not so long as we remain within the European Union, as their judgments are subject to the European Courts.  All very silly, but we’ve known that for several years and done nothing about it until now.

There was the all too familiar media circus on the steps of the Court, an American import we can do without, and fronted by a woman with remarkable teeth calling herself Gill Miller.  Other than her name, I know nothing about her whatsoever.  I knew a Dusty Miller, and of course the legendary Glenn Miller, and Mitch Miller, but Gill Miller was, until yesterday, a complete nobody.  Whatever else, her orthodontist needs a commendation, but other than the teeth, her right to act as the spokesperson in the media circus completely escapes me.  My researches tell me that she is neither a parliamentarian nor a lawyer, just the organ grinder’s monkey.

But enough of Gill Miller and her remarkable teeth, and back to the gravamen of the legal challenge.  On any view as expressed by those qualified to express a view, the judges trespassed on the territory normally occupied by the Executive arm of the Government and they were wrong to do so.  What on earth persuaded them to hear the challenge in the first place is beyond belief, as they were well “off their patch” to use a legal term, not to mention wide of the mark.

And now those seeking to redress the balance are accused of undermining the independence of the judiciary by criticising this ill-advised ruling. I beg to differ.  Unlike Gill Miller, I am a graduate of Constitutional Law so I know something about the workings of our Constitutional Democracy and the division of powers between the executive and the legislature.  Whilst the Judiciary have an advisory role when asked to advise, they do not, and must not, have an interventionist role.  Over the centuries, Parliament has developed a series of checks and balances to ensure that it serves its citizens to the best of its ability, and it doesn’t need the Judiciary to shoehorn its way in.  If any one of our 650 elected representatives takes issue with the government, there are recognised ways of bringing them to book, the most draconian of which is a vote of no confidence.  As a footnote for Gill Miller and her camp followers, those 650 are elected, unlike the judges of the High Court, who are not elected but appointed.

I hope that wiser counsel will prevail, and Gill will be put back in her box.  Hope springs eternal.

PS.  Even as I write, some of my  more slippery colleagues in the profession are urging Liz Truss to back the judiciary and stand up for their Independence.  Humbug!  As usual, these characters have an agenda of their own, all to do with self-advancement and very little to do with the high moral ground, so my message to Liz is stand firm, if the judges have got it wrong, as they have, tell them, as you have, and if that is an attack on the independence of the judiciary, then I am Daffy Duck!

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BILL OF RIGHTS

September 14th, 2016

The word on the street has it that Liz Truss, the newly anointed Secretary of State for Justice and the Lord High Chancellor, has been advised to breathe new life into devising a Bill of Rights.  She told anybody who was listening that it was a manifesto pledge, as if that counted for anything, so it’s back on her agenda.  Question for you all – how many of you voted Conservative at the last General Election because a Bill of Rights was a manifesto pledge?  Yes, I thought so.

Others have flirted with the idea, most recently Oiky Gove, but then, with the whiff of high office in his nostrils, albeit fleetingly, he fell flat on his face and he and the Bill of Rights bit the dust.

The latest thinking along the corridors of power is that a new Bill of Rights should be a mirror image of the European Convention on Human Rights, which was incorporated into British law in 1997 with the Human Rights Act.  The reasoning behind this decision, if ‘reasoning’ is not an over-statement, is that Parliament would not agree to do otherwise.  Call me naive if you will, but doesn’t that defeat the whole purpose of a new Bill of Rights?  If we are lumbered with a Convention on Human Rights devised by Germany and France to ensure they never went to war again, then by retaining the Human Rights Act, we are burnishing our European credentials just when we thought we had dumped them for good.  All very confusing, the more so for Liz Truss, who has no legal training, doesn’t know her mens rea from her actus reus, and who will be relying entirely on her civil servants. ‘Yes Minister’ strikes again!

When she appeared recently before the Commons Justice Select Committee, she was asked bluntly by one of its members what the point was of scrapping the Human Rights Act but staying signed up to the European Convention on Human Rights.  Truss replied: “We were members of the convention long before the Human Rights Act.  The Human Rights Act is a fairly recent phenomenon.  What the British Bill of Rights will do is protect our rights but in a better way.”  But surely, Ms Truss, the Human Rights Act enacted the European Convention into English law, the two go hand in hand, you can’t have one without the other, so if you abolish the Human Rights Act, where does that leave the Convention? Her enigmatic reply? “There are big problems with the Human Rights Act that are nothing to do with the convention – problems have only emerged since the Human Rights Act came in.  We are still working on it and I don’t have details about the proposal.”  Quite so.  If for one am none the wiser.

For some time now, judges at the highest levels of the judiciary have argued that the Convention should be acknowledged where it is helpful to do so, and that the decisions of the European Courts should be duly noted, but they should not be binding on English Law.  In this way, our Supreme Court is what it actually claims to be, namely Supreme, so if our Supreme Court does not agree with its European counterparts, it will not follow its judgments, and will say so.

I may not agree with everything the Supreme Court has to say, and in this regard, I remember their pathetic judgement in the banks’ overcharging case, but that said they get it right most of the time, and if they don’t, we can set the Daily Mail on them, and if that doesn’t work, there is always the robust presence of Lord Falkner to put the fear of God into them.

There are many other more pressing matters in her in-tray to occupy Ms. Truss, whose learning curve is almost vertiginous.  Prison reform should be her first priority before there is a serious breakdown of law and order.  Then there’s the equally ludicrous inquiry into historical sexual abuse, but don’t get me started.  That’s worth a blog to itself.

This blog is dedicated to Alexa, the beautiful daughter of our very dear friends, who recently got married.  I wish her and her husband Paul every future happiness.

 

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