The Barrister Bard

Bernard “Madoff with billions” has been sentenced to 150 years in prison, and at the ripe old age of 71, unlikely to smell the roses or feel the grass beneath his feet again before he shakes off his mortal coil.

The last time I revisited my portfolio, I was looking at the rates on offer from a variety of financial institutions, most of which were offering a return in the region of 4.5% gross.  My eye caught an offer from one of the Icelandic banks, I forget its name, with a return in excess of 8.5%.  And my reaction?  Too good to be true!  And I was right, as the bank in question went into liquidation.

I do not seek to condone Madoff’s crimes, but I do wonder what investors were thinking when they poured their money into his coffers.  By all accounts, these investors, or at least some of them, came from good backgrounds and were well educated.  These credentials in turn allowed them to earn good money from their endeavours, and were it not for compulsive greed, would presumably have invested sensibly and wisely.  I find their howls of grief and self pity disingenuous.

But more to the point, I am finding it very difficult getting my head round such a ridiculous sentence.  Madoff will be 221 by the time he is eligible to be released, which is something of a record on any view.  It reminds me of the elderly defendant who was sentenced to 10 years imprisonment. “I’ll be dead before I finish that sentence,” he wailed.  “Well,” replied the judge kindly, “do as much of it as you can.”

For the most part, I am a great admirer of the American system of justice, and above all, its transparency.  But a penal system that allows judges to pass these ridiculous sentences is flawed, and in the end, meaningless.  Perhaps somebody with insider knowledge can enlighten me, but for the moment, I remain totally bemused.

Here in Little England, when we abolished the death penalty, we introduced a mandatory life sentence for capital crime.  Over the years, this has been extended to include a variety of offences attracting a life sentence under the principle of public protection.  But a sentence of life imprisonment, with the very rare exception, does not mean what it says.  It is basically window dressing to mollify the relatives and friends of the victim, and gives Plod something to say on the steps of the court.  Judges have a flow chart, devised for them by the Ministry of Justice, where they are required to specify the minimum period of imprisonment to be served before the defendant is eligible for parole.  So we too have the theatre of the absurd, but at least there is  a light of sorts at the end of the tunnel, and an element of certainty.

Any sentence should temper deterrence and retribution with an element of compassion.  After all, if we treat human beings like animals, they become animals , and a civilised society is the poorer for it.

Two interesting reports highlight the difficulties of striking a balance between the competing interests of the prosecuting authorities and the rights of the accused.  The first is the House of Lords judgment against the State over control orders, imposed on suspects who have never been charged with a criminal offence but who are deemed to be a risk to the public good, and the second is the new guidelines handed down to judges to increase the rate of conviction in rape trials.

The House of Lords faced an unpalatable dilemma, and it was Lord Hoffman who came closest to admitting his discomfort in the judgement that followed.  They ruled that any suspect subject to a control order has the right to know the evidence against him, and in the absence of such evidence, a control order breaches his human rights.  But what about ours?

We all know there is an enemy within, call them terrorists or subversives or what you like, who are here under false pretences, and often false passports and false pretexts, whose sole aim in life is to wreak havoc on our society.  Thanks to the vigilance of our security services, many are identified at an early stage, but until they make their move, there is insufficient evidence to prosecute them.  But by their very definition, our security services work in dark alleys and smoke filled rooms, relying on informants, wire tapping and covert surveillance which, if their methods were to become public knowledge, would be self defeating.  For obvious reasons, our security services work in secret, the enemy within knows they’re out there, and it becomes a game of cat and mouse.  Who will blink first?

This unpalatable dilemma is exacerbated by our absurd deportation laws, surrounded as they are by rules and regulations and appeals and further appeals, and when, eight or so years later, the appeal process has been exhausted and the undesirables are ready to be deported, the authorities are obliged to find a country that will take them.  That country must be squeaky clean, it must conform to the Geneva Convention, the United Nations Charter and the European Convention on Human Rights, and more besides.  As most of the undesirables ‘fled’ from countries which would fail even the most basic tests on human rights, they remain as guests of Her Majesty, or, at best, finish up in Bermuda or on some deserted South Sea atoll.  Whatever else, this absurdity needs to be addressed as a matter of urgency.  If we don’t like them, put them on the first plane back from whence they came.  Why should we take the responsibility of ‘looking after them’?

The new guidelines on rape trials are ill conceived, and potentially dangerous in the interests of justice and the accused.  It’s all about increasing the number of convictions, which, we are told, are the lowest in Europe, and possibly the Universe for all I know.  But I have yet to be told why.  Surely this is the starting point if the government feels there is an injustice to be remedied.  My own professional experiences in rape trials underscore the folly of meddling in the deliberations of the jury and undermining their verdicts, and all with the stated aim of engineering more convictions.  The guidelines are also an insult to intelligence.  One, for example, enjoins the judge to direct the jury that a girl out on the town with a dress halfway up her bottom, stonking drunk and slumped in the gutter with legs akimbo, is no more likely to be consenting to sex than Little Miss Prissy Anne on her way home from a church social.  I mean, let’s get a reality check here!

For my part, the specimen directions given by judges in rape trials are already more than sufficient unto the needs thereof, and let’s face it, you don’t wave a red rag at a bull if you don’t want to be penetrated.  Better still, you don’t even step into the ring.

As to control orders, let’s stand firm in the face of adversity, and if the judges don’t like what they hear, don’t tell them.  As they say, what you don’t know can’t hurt you.

And another for the rest of us.

On one view, enough and more has been revealed in the press and the media about MPs expenses over the past few weeks.  They have been examined and picked over in minute detail.  Some claims like duck houses and moat clearing border on the theatre of the absurd.

But more serious “troughing” has come to light, and some MPs, faced with deselection, have fallen on their swords.  They are comforted in the knowledge that they will receive a ‘departure’ severance payment to ease the pain and a generous pension for life to reflect their selfless devotion to public service.

But what worries me, and I am not alone, is the recent decision that no MP will face a criminal prosecution.  The reason, such as it is, is specious in the extreme, and seems to focus on the problem of proving the necessary intent to defraud the taxpayer.  We are told that where MPs can “trough” at will, so long as it’s within the rules, then the Nuremburg defence is available to them, namely that they were only following orders, so to speak.

Comparisons between benefit fraud and fraud whilst in a public office have been made.  Benefit fraudsters usually start off within the law, claiming their proper entitlement, but when their circumstances change, such as finding a job or a partner, or both, they ‘forget’ to tell the benefits office, and keep claiming as if nothing has happened.  These fraudulent claims can sometimes amount to thousands of pounds over a period of time.  Once caught, almost without exception they face a criminal prosecution, and their defence that it was a regrettable oversight receives short shrift, and they are required to repay their ill gotten gains.

Contrast this with the MP, and there are several, who claimed interest on a mortgage that had been paid off eighteen months earlier.  His defence?  It was a regrettable oversight, and now that it has been brought to his attention by the disclosures in the Daily Telegraph, he will of course repay his ill gotten gains.  Call me simple if you will, but wherein lies the difference?

The problem with squaring this particular circle is the advice that the prosecuting authorities received when deciding not to prosecute even the most egregious examples of fraud on the public purse.  Their starting point would have been the law officers of the Crown, in the shape of the Attorney General and the Solicitor General. They are respectively Baroness Scotland of Asthal, who sits in the House of Lords and whose claims for expenses are not yet the subject of public scrutiny, and the utterly anonymous Vera Baird MP, who recently claimed £286 for Christmas decorations.  Both are political appointees, as is the Director of Public Prosecutions, who will have been told upon appointment that if he cleans his nose clean, nudge nudge wink wink, there’s a place waiting for him on the High Court Bench, and guess who makes the decision?  The Secretary of State for Justice!  So yesterday it was DPP David Calvert-Smith, today it’s the Honourable Mr. Justice Calvert-Smith, and now a knight of the realm.

There are clarion calls for a new broom to sweep clean the corridors of power, and a ‘root and branch’ reform of the expenses scandal now plaguing the body politic.  But those who know and love me also know that I like a bet from time to time, and I’m on a roll.  So here’s the bet.  I bet that after the Daily Telegraph has exhausted its ‘misappropriated’ CD Rom, and there are no more rabbits to be pulled out of the hat, it will be business as usual, and the new broom will be used to sweep this particular scandal under the carpet.  Any takers?

Two different but related reports have caught my eye this week.  The first deals with the ordeal of giving evidence in court, and the second with the apparent lack of support from a variety of agencies for alleged victims of rape.

Rape convictions in Little Britain are at an all time low compared with other ‘civilised’ countries, although I remember with wry amusement the ruling of the Court of Cassation in Italy that a woman wearing tight jeans cannot be raped, as she would need to assist the offender in removing them.  Viva la differencia!

The problems highlighted in both reports stem, in the main, from the system put in place to investigate allegations of rape through to the court room drama itself.  There are a variety of complaints, the most notable being that police officers don’t take victims seriously enough, if at all, it’s all “nudge, nudge, wink, wink” in the station hospitality suite, and even if they get past this first hurdle, there is very little follow up in the investigation itself.  Very little trawling for supporting evidence, tracking down witnesses and taking statements, and at best, a disinterested and cursory visit to the scene of the crime.  So it’s her word against his, with a few random pubic hairs thrown in for good measure, and according to the statistics, she comes a poor second.

I don’t believe the low conviction rate can be blamed on the jury, and in my considerable experience, I have rarely gasped in astonishment at a not guilty verdict.  One springs to mind, where the judge directed the jury that drink was no defence, and the jury acquitted my client on the basis that he was too drunk to know what he was doing, which rather defeats the object of the exercise.

But no matter.  Juries for the most part work on the evidence before them, and a distressed victim is not necessarily a credible witness.

There is certainly an argument for more support when victims and witnesses alike arrive at court.  We have what is euphemistically called a “witness support unit,” consisting of well meaning matronly volunteers to hand hold and wipe away the tears.  Of course they offer some comfort and a shoulder to cry on, but they are often as unprepared for the ordeal as the witnesses they are supposed to be supporting.  They are also programmed to regard defence counsel as the enemy.  In a recent case, after the female witness had finished giving her evidence in chief, and at the instigation of the victim supporter, she promptly sat down as I rose to my feet.  I remonstrated.  “You’re a big, lusty girl,” I observed in my usual caring way, “so why do you need to sit down?”  She stood up again, shaking visibly throughout my incisive cross examination, and my client was gloriously acquitted.  Pure coincidence!

From my perspective, there is no ordeal about giving evidence in court if the witness tells the truth.  As they say, the truth never hurts.  A very silly expression, but if the cap fits, wear it!  The truth, of course, is my client’s version of events.  Anything else is a tissue of lies.  So if the witness sings from my song sheet, she’ll be in and out of the witness box in no time at all, with my fulsome thanks for her attendance ringing in her ears.

Ordeal?  What ordeal?

So it’s with us, or not, as the case may be.  I refer, of course, to Swine Flu, and all the doom laden experts have been queuing up in the Press and the Media to predict the end of the world as we know it.  Pandemic is a word tossed lightly around, and it’s coming to a neighbourhood near you!  Professors of dubious provenance, as dry as sea biscuits and whose sense of humour was surgically removed when they collected their PHD, drone on interminably about Armageddon, it’s very depressing stuff.

I blame Mexico, where it all started.  There they have ‘swine’ not pigs, a subtle difference perhaps, but a difference nonetheless.

My family and close friends tell me I’m like a fine wine, I don’t travel well, but if I were to foray into foreign parts, I doubt if Mexico would be high on my list.  Even getting there augers ill.  The national airline of Mexico, I forget the name, but it’s probably Mexicair, is running a very curious advertisement in the national press.  There’s a picture of two passengers, presumably in business class, as their knees aren’t tucked under their chins, staring with rictus grins at a plastic tray containing the chef’s special.  If ever a meal were designed to attract an immediate dose of Swine Flu, this is it.  And to make matters worse, not a drink in sight!

Mexico is rapidly turning into the Benidorm of the Americas, attracting the Great Unwashed in search of sun, sea, sand, sex, sombreros and sangria, and all at rock bottom prices.  The economy seems to be rooted in the drugs trade, with peones being swatted like flies in violent turf wars by rival ‘barons’ vying with each other for control of the market.  The police in Mexico City have the unenviable reputation of being the most corrupt police force in the world, and that’s saying something, and the politicians are not much better.  I suspect it has something to do with the heat, the flies and the food.

To beat the remorseless spread of Swine Flu, we are being enjoined to observe even the most basic standards of hygiene whilst in public places.  It’s a sad indictment of homo ignorans that we need to be reminded about the dangers of free range sneezing, coughing or gobbing, or washing our hands after visiting the lavatory, or resisting the temptation to scratch our bottoms, or pick our noses.  We are also advised to avoid unnecessary bodily contact.  With whom, pray?  “Sorry, darling, not tonight!”

I was visiting a client in prison the other day.  He proffered his hand for me to shake, and I declined.  “Swine Flu,” I explained.  He recoiled in horror.  “Have you got it?”

With all this publicity, nobody, least of all the ‘dry as a sea biscuit’ professor, is telling me what are the symptoms.  The best being offered is that the symptoms are akin to ordinary flu, but then, as I have never had ordinary flu, this doesn’t help.  I have had influenza, a better class of malady altogether, but never the ‘flu’.

Finally, some elements of the Media are searching for a better and more socially acceptable epithet for Swine Flu.  I agree, so why not Porcine Influenza?  If you’re going to die, then die with dignity.