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UNFIT FOR PURPOSE?

July 23rd, 2016

I remember many years ago, a defence barrister colleague of mine rose to his feet to deliver his final speech to the jury after the midday adjournment. “Members of the Jury,” he began unsteadily, “we’ve reached that stage in the trial when I address you on behalf of the Defendant, the learned judge will then direct you on the law, and you will then reach your verdict.  However, I am far too pissed to give a damn, the learned judge is notoriously ignorant of the law, and you lot look far too stupid to reach anything.”  He was led quietly away. Whilst he may well have been right on all counts, it wasn’t politically correct.

Which brings me effortlessly on to Liz Truss.  In case you  missed the clean up of the Augean Stables, she has replaced Brutus Gove as Secretary of State for Justice, and with it goes the appointment of Lord Chancellor (surely Lady?).  Some reservations have already been expressed about her suitability to fill both appointments.  Those of the backwoodsman mentality have expressed reservations about her sex, by which I assume they are referring to her gender.  The argument goes that she cannot be expected to stand up to crusty geriatric judges, almost all of whom to a man are men.

Pausing there, and I may need your help, am I allowed to refer to men and women as men and women, or is this sexual discrimination?  What happens if some or all of the men and women are actually transgender?  One suggestion I read recently is that they are referred to collectively as ‘zie’ instead of he or she. I could be wrong, but I think this was a serious suggestion, and not tongue in cheek.  Hang on, can I say ‘tongue in cheek’?  Doesn’t this have sexual innuendos? And does this apply to the fragrant Liz, and if so, how so? But at the risk of blundering on, can I describe our Liz as ‘fragrant’?  Doesn’t this typecast her as a woman, or can transgenders be ‘fragrant’ as well?

But there’s more: can I refer to ‘our Liz’ as ‘our Liz’, or is this patronising, the more so coming from a man (me)?  More to the point, am I a man, or am I also transgender?  Enough I say, lest I get dragged to the stocks.

Back to Liz, fragrant or otherwise, there are others who complain that she has no legal training or experience, and she hasn’t.  Those who wish to volunteer should form an orderly queue!  OMG, can I say that?

She is not exactly breaking new ground.  Her two immediate predecessors had no legal training or experience either.  Grayling wasn’t in post long enough to make any sort of an impression, even on himself, or should that be ‘zieself? But Brutus Gove, for all his recent transgressions, was making a fist of it before events overtook him.  He muttered darkly about abolishing the Human Rights Act and having our own Bill of Rights, hugely exciting, but of more relevance was his stated intention of reforming the prison service.  Ms. Truss has promised to continue these reforms, I say ‘continue’ advisedly as no serious reforms have yet to be implemented, but be warned, time is against her.  Our prisons remain seriously overcrowded and, according to the Chief Inspector of Prisons: “Far too many of our prisons have become unacceptably violent and dangerous places.”

As I have said before, treat human beings like animals and they’ll behave like animals.  It’s not good enough to lock them up and throw away the key.  Shorter sentences, education and rehabilitation should be the norm in a civilised society, not the exception.

As for the fragrant Liz, I am all in favour of women in the workplace.  It used to be called the kitchen, but that is positively antediluvian, and there’s a new life, a new dawn, and it’s time to move on. Hang on a minute: isn’t that plagiarism?  Apologies to Nina Simone, or should that be Michelle Obama, or Donald Trump’s present squeeze?  Sadly, I’ve forgotten her name, but whilst English is clearly not her language of first choice, she is very easy on the eye.  Oops, there I go again!

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

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FOR WHOM THE BELL TOLLS

July 11th, 2016

Tony Blair, one of the best postwar Conservative Prime Ministers we have ever had, has recently been heavily criticised following the publication of the Chilcot report, which cast some blame on him for going to war in Iraq with the Americans.  Out of the woodwork have crawled all the usual suspects, seeking to distance themselves from their role in the mission, and they do themselves no credit.  I refer in particular to John Prescott and Jeremy Corbyn, two who leave me cold, and with friends like these, who needs enemies?

The Report has taken so long to see the light of day it’s almost meaningless.  It’s almost as meaningless at the Saville Report, which took ten years and cost £100 million, and told us nothing we didn’t already know.  A complete waste of time and public money, and much the same can be said of Chilcot.  All this nonsense about leaving no stone unturned when what we need is a couple of pages highlighting the issues and the conclusions to be drawn.

We in this country seem to have a fetish about long-winded reports on this, that and the other.  As far as I can tell, it’s jobs for the boys, mainly the Civil Service, keen as they are to pass the buck and absolve themselves of any responsibility for anything.

Let’s put the record straight.  Tony Blair joined America in what he believed was a just war to rid the Middle East of a brutal and unpredictable tyrant. He was wrong in his belief that Hussain had weapons of mass destruction, but the end justified the means.  He and President Bush totally miscalculated the peace, as we in the west have done time and again, and in particular, the Americans cling to this naive belief that the world would be a better place if we all chewed gum, wore baseball caps and drank Coca Cola.  As an aside, I have never understood why golfers and tennis players, to name but a few, wear baseball caps when they are clearly not playing baseball.  But I digress.

On a more serious note, on the first July 1916 in the Battle of the Somme, British forces lost 20,000 dead, yes, dead, in one day of complete carnage.  Between March 2003 and May 2011, British forces lost 179 dead.  Whatever else, let’s try and keep a sense of proportion.  Every life lost in battle is a life to be mourned, but in many ways, given the mayhem of sectarian strife in Iraq, it is a minor miracle we didn’t lose more.

The Press and the Media have much to answer for, as they  sensationalise a Report that is totally devoid of sensation.  There may be lessons to learn, but pillorying Tony Blair is not only unfair, it’s unworthy even of the usual suspects.  Though the likes of Prescott and Corbyn may not understand the concept of honour, best to leave them squabbling on the sidelines and let decent people lead from the front.

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AFTER BREXIT WHAT’S NEXTIT?

July 10th, 2016

By all accounts, the constitutional lawyers, amongst whom I number myself, will have a field day, and ready, at the drop of a wig, to feed on the rotting corpse of the European Union.

Whilst I may have some reservations about saying goodbye to this Fred Karno’s circus, I won’t miss the European Court of Justice, which recently reinvented itself as a self-perpetuating legal entity with no external regulation.  I won’t miss the European Court of Human Rights and their ludicrous judgments.  I won’t miss the CAP, designed to pander to inefficient French farmers, of whom there are a legion.  I won’t miss the regulations from Brussels requiring us to grow straight bananas and cucumbers, and above all, I won’t miss the odious Jean-Claude Junket, the self-perpetuating President of the Commission.  I have yet to discover what he does for his basic salary of €304,212 per year plus an allowance for a residence equal to 15% of salary as well as other allowances including children’s schooling and household expenses.  I know that he can be unforgivably offensive, and he enjoys a tipple or seven at the expense of the long-suffering taxpayer, but what does he actually do?  And more to the point, does it actually matter?

But back to the plot.  Learned opinions differ on the European Communities Act 1972, the law that took us into the European Economic Community all those years ago and which is the instrument that adopts European laws into our domestic ones.  Now that we are leaving, the process of disentanglement is far from clear.  Some say that an Act of Parliament can only be repealed by a majority vote in the Commons and the Lords, and this is by no means a formality.  It would be ironic to say the least if the will of the majority of people who voted to leave the Union could be thwarted by our elected representatives.  Too soon to say.

First things first.  Assuming as I do that the Referendum is legally binding, it is by no means certain that Article  50, the ‘soldier’s farewell’ to Johnny Foreigner,  can be invoked by executive action on the part of the Prime Minister, whoever that  may be, or if this needs an Act of Parliament.  And as the ultimate nightmare scenario, this important decision might have to be determined by the European Court of Justice, one of the courts we are unceremoniously dumping.

Finally, and an issue close to my heart, we need to repeal the Human Rights Act 1998.  This was the Act that basically made UK laws and courts subservient to the European Convention on Human Rights and Fundamental Freedoms, honoured more in the breach than the observance.  Some would argue that it is the closest we come to a Bill of Rights, and should not be discarded lightly.  The ‘some’ will be Corbyn if he’s still around, which is doubtful, and the three MPs who support him, one of whom is of course Andy Burnham, our modern day equivalent of the Vicar of Bray.

On any view, brexiting has the potential to become a complete dog’s dinner.  Fortunately, we have more than our fair share of old dogs in Parliament and the Law to keep these balls in the air for months, if not years, to come, so watch this space and don’t hold your breath.  Something about fat ladies singing springs to mind, with apologies to Angela Merkel.  We’ve not see the last of her yet.

David Osborne is the author of three humorous books on the Law, and let’s face it, at times like these, we all need a good laugh.  His latest, entitled Order in Court, is now available in all reputable bookstores and on Amazon.

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MINE’S A PINT

July 1st, 2016

Sir James Munby is the President of the Family Division of the High Court, so grand enough to be addressed in Capital Letters.  When he speaks, practitioners and end users sit up and take notice.  For reasons best known to him, he has been reviewing the pilot scheme that allowed the media access to the Court of Protection hearings.  For those mired in ignorance, the Court of Protection makes decisions on financial or welfare matters for people who are non compos mentis and who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).  It is hard to imagine the clamour on behalf of the media to be admitted to these hearings, but it takes all sorts.

To nobody’s surprise, Sir James reported little or no change to the level of interest.  It’s hardly riveting stuff, even on a rainy afternoon.  He was addressing a conference organised by the Solicitors for the Elderly.  I’ve been around the houses a few times, but I’ve never come across such an organisation in my many legal travels, and I wonder who would want to use it, regardless of their age.

But of greater relevance perhaps to the proper administration of justice is the suggestion by Sir James, wearing his Family Court wig, that family court hearings could be open to the public.  “We must get away from a judge sitting on a enormous throne in a palais be justice,” he said.  Instead, he droned on, courtrooms of the future should be where they were needed, not in lofty palais be justice but, wait for it, town halls or public houses!

It’s been tried before.  The students of history will remember Thomas à Becket, who was King Henry the Second’s Lord Chancellor for a while.  He too decided to take his court, aptly named the Court of Chancery, to the people, as he travelled around the kingdom, sitting in town halls and pubs, and bringing justice to the Great Unwashed.  Needless to say, the smell was overpowering, but worse still, there was no sense of dignity or gravitas as litigants jostled around, clutching tankards of mead and jostling each other.  And when Tom gave his judgment, the loser was far from gracious in defeat, and with his mead-stained breath barely inches from Tom’s face, would utter the time honoured cries of “what is your fucking problem?” and “do you want some?”  It didn’t take long before open justice wore off, and Tom had a barrier, or bar, erected to keep disgruntled litigants at bay.  Those who behaved themselves and showed a smattering of legal knowledge were allowed to address him ‘at the bar’, hence the expression used by barristers ever since, practising at the bar.

My considerable experience tells me that litigants regardless of the legal discipline are more likely to accept with good grace adverse decisions if delivered by judges sitting on enormous thrones in palais de justice, rather than the tap room in the Ferret and Trouserleg.

Whilst liquid relief may help to soothe the savage breast, that comes later.

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

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HOGG OFF

June 24th, 2016

Following my latest blog on Ellie Butler, I am saddened but perhaps not surprised to learn that the former Mrs. Justice Hogg has refused to explain her misjudgment.  On any view, an indefensible decision.

Attempts to explain Ellie’s murder and whether it could have been avoided are being investigated by Christine Davies, the Head of the local safeguarding children’s Board where Ellie and her abusive parents lived.  It is her duty to ensure, in so far as it is possible, that children in her area are not abused and killed, and any help Ms. Davies  can be given by those involved in Ellie’s case could prove vital.

What saddens Ms. Davies, and all of us reading the harrowing accounts of Ellie’s short life, is the fact that on Mrs. Justice Hogg’s direct order, the Board were prevented from offering any help or support or supervision when it could have saved Ellie’s life.  At the very least, the judge should explain her decision.  She obviously got it horribly wrong, but there might be exculpatory reasons for her decision.  I doubt it, as on the face of it she made a monumental blunder.  But if she doesn’t explain herself, we shall never know, and her silence will simply confirm our worst suspicions as to her competence.

I for one would like to know why the retired Mrs. Justice Hogg ignored the warnings and premonitions of Ellie’s grandparents.  Her grandfather is calling for an independent inquiry, I expect Ms. Davies would associate herself with that.  As things stand, any inquiry will have to do without Mrs. Justice Hogg’s contribution, such as it may have been.

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