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INDEPENDENCE OF THE JUDICIARY

February 19th, 2017

I have no reason to believe that Lord Neuberger is anything other than a thoroughly professional and well respected Supreme Court judge.  His many attractors describe him as a man with a keen intellect and a willingness to listen to reasoned argument  even if he doesn’t follow it.

That said, it could be with a eye to his imminent retirement that he chose to enter the political domain and speak out against two of the four estates of our democracy, namely the Government and the Press.  He referred in particular to the Supreme Court’s ruling against the government in the Brexit appeal, and the Media criticism that followed it. I listened to some of the debate, dominated as it was by Lord Sumption’s colourful ties, but I was appalled to hear Lord ‘Don’t’ Pannick describe the Referendum as an irrelevance.  A crass comment and insulting to the many millions who voted and who thought they were making a difference.  At the end of the day, the Court failed to understand that the Referendum was all about the will of the people and not about Parliament.

Methinks this is a man who doth protest too much.  The Media are perfectly at liberty to criticise judges at all levels if they think they’ve got it wrong, and long may they do so.  This does not equate to an attack on the independence of the judiciary, but if Lord Neuberger feels that his detractors should remain silent,  he is overly sensitive.  He was also overly sensitive in criticising Lynn or Liz Truss, the Lady Chancellor, who knows absolutely nothing about the job, for failing to slap down these detractors.  It may be that the tabloid which branded the three High Court Judges as “enemies of the people” went too far, but if you want to be a judge, you have got to learn to roll with the punches.    To suggest therefore that media criticism of the High Court judges after they ruled last year that parliament not the government should trigger the process of leaving the EU “was undermining the rule of law” was wide of the mark and probably better not said.

He also went on to say: “They [politicians] could have been quicker and clearer. But we all learn by experience, whether politicians or judges. It’s easy to be critical after the event.”

Lord Neuberger continued: “If, without good reason, the media or anyone else undermines the judiciary, that risks undermining our society. The press and the media generally have a positive duty to keep an eye on things. But I think with that power comes the degree of responsibility.”  Amen to that.  Judges wield considerable power, and when they get it wrong, as they do from time to time, who is going to correct them?  It’s a self-perpetuating oligarchy, as judges for the most part don’t like admitting their mistakes.

Finally, to try and bring this unseemly debate to a close, his lordship made one telling and unintended remark, and I paraphrase: “With power comes responsibility.”  That responsibility is not confined to the Media or the Press, or Politicians, but extends to the judiciary.

It is not undermining the independence of the judiciary to hold it to account, and if, after mature reflection, it is plain for all to see they’ve got it wrong, it is a sign of strength, not weakness, to put it right.

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MEAL TICKET FOR LIFE

February 15th, 2017

When the Matrimonial Causes Act 1973 hit the statute books, it was devised to take the sting out of acrimonious divorces and concentrate instead on a fair division of the matrimonial assets. The tabloid press were far from amused, as many a copy was sold on the back of kiss and tell revelations of the great and the naughty, no more so than the Duke and Duchess of Argyll, hotly followed by John Profumo, Christine Keeler and Mandy Rice-Davies, with the emphasis on ‘hotly’.  What a joy!

But I digress.  With the passing of the Act, no fault divorces became the norm, although divorcing couples still had to jump through certain legal hoops to show that the marriage had broken down irretrievably, but that was more show than go.

Over the years, there have been two main issues emerging which have caused the courts to pause and reflect: what should be classified as matrimonial assets;  and when should the marriage be deemed to have ended so that a line can be drawn in the sand?

There are two recent cases that give rise to concern.  The first is the case of the wife who bought a property with her mother’s inheritance.  Her husband, who by all accounts appears a complete waste of space, argued successfully in the Court of Appeal that the property should be sold and the proceeds divided equally.  That did not amuse the wife, and she told the judges in no uncertain terms where they could stick their judgment.  Such was the vehemence of her tirade that the judges were forced to take refuge in their retiring room, leaving Old Albert of Securicor to escort her from the premises.  In fairness to the wife, the husband could demonstrate no good reason for any share of the property, let alone an equal share, save only that he had lived in it before they separated.  In every other respect, it belonged to the wife.  I agree.

The second case concerned the couple who divorced 15 years ago. As part of the divorce settlement, the husband gave the wife a lump sum of £230,000 together with a monthly maintenance payment of £1100.  Not bad if you can get it!  But the wife frittered away the lump sum on various foolish enterprises, and to make up for her incompetence, she went back to court and was rewarded with an increased monthly maintenance of £1440 for life!  That is not a misprint.  How on earth can that be described as fair and equable?  It can’t, but judges who appear to be totally out of touch with reality are persistently trotting out these unfair judgments which make them look foolish and discredit the law they are sworn to uphold.

Baroness Deech, you remember her of course, a cross-bench peer, is promoting a bill which would limit maintenance to five years except in cases of exceptional hardship.  This five year limit is apparently the law in Scotland, where prizing open the sporran in any circumstances is taken very seriously indeed and is being considered for an Olympic sport.

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

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WHO GIVES A FLYING ****?

February 12th, 2017

After a bad few months for judges — being called “out of touch” and “enemies of the people” and all that — Judge Daniel Pearce-Higgins scored a terrific public bull’s-eye this week when he ruled that using “pussy” as a swear word  is not a crime. We already knew this, of course, but it’s always nice to have it reiterated by an officer of the Supreme Court of England and Wales.

He had a defendant in front of him at Worcester crown court, charged with calling someone a “pussy”.  “That’s an offence, is it?” he asked in all innocence. “Good heavens. It’s fairly standard behaviour in life. I’m concerned that the criminal law is properly used, not to stop people swearing at each other. To call someone a pussy is impolite . . . but not a criminal act.”

The Crown Prosecution Service, as ever vigilant and the self-appointed guardians of  the moral fabric of society, took the Defendant to court charged with sending a malicious communication.  The judge lambasted them for wasting court time and money, and gave the Defendant a conditional discharge.  The case cost £3000, paid for by the long suffering taxpayer.

As a relaxed and habitual user of every badly-thought-of word available to us in English, I’m just trying to get my head around that. “Pussy” is short for “pussycat”. You call someone a “pussy” when they are behaving in the sort of wet or cowardly fashion one associates with a tiny domestic mammal. It isn’t a swear word at all.  If it was, it would be p***y.

But I can see the mistake that has been made there.  Because colourful language is still taboo in polite society, polite people (such as judges) often fail to understand its complexities. What happened, I think, is that Mr Pearce-Higgins, and possibly the insulted party, was thinking of the other kind of “pussy”. The kind that the US president thinks it is OK to grab women by. But that is a whole separate etymology and not what was meant at all.

I am frequently bemused about the delicate way in which the press describe particular swearwords, and this includes not just the broadsheets but also the tabloids.  They will happily roll in the shit when it suits them, and equally happily be economical with the truth, but when it comes to describing swearwords, the asterisk is de rigueur.  I have never understood the need for such sensitivity

When I was first starting out on my literary career with the publication of No Holds Barred by Ivor Bigg-Wigg QC, I was told by my publisher that if the character I was portraying used a swearword, I should write it as such and not hide behind a wall of asterisks.  So where the hero tells the villain to fuck off, that’s how it should be written. He doesn’t tell him to f*** off.

It was reported recently that a crown court judge was cleared of misconduct for swearing at a defendant who called her a c***. The judge told him: “Well, you’re a bit of a c*** yourself.”

So, I ask out loud, are swearwords any less offensive when peppered with asterisks or written as they are spoken?  The Defendant called the judge a cunt, not a c***.  And who gives a flying fuck? Or should that be a flying f***?

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.

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BASKET OF DEPLORABLES

January 29th, 2017

It is arguable that during the rough and tumble of the recent US Presidential election, there were two seminal moments.  The first was the brouhaha surrounding Hillary Clinton’s emails which showed a woman capable of playing fast and loose with the system and abusing her position of authority when she was serving as Secretary of State for Barack Obama, remember him?  But in the opinion of many commentators, her greatest mistake, and the one that cost her the Presidency, was to describe Donald Trump’s supporters as ‘a basket of deplorables’.  After many sharp intakes of breath from media commentators, it was pointed out that there were 58 million ‘deplorables’, all of whom could vote for Trump, and they did. Come in President Trump, goodbye Hillary. End of story!

But not quite.  These ‘deplorables’ for the most part were white, working class voters whose antecedents go back generations.  They had menial jobs, and were called a number of disparaging names, such as Backwoodsmen, Hill Billies and Rednecks. Trump and his Mexican wall struck a chord, as they believed that illegal immigrant labour was costing them their jobs, and they might be right. On top of that there is a newly released film Patriots Day reliving the horror of the bombing of the Boston Marathon in 2013 by two immigrant brothers who could best be described as ‘jihadists’.

These are some of the undercurrents running around the corridors of power as President Trump seeks to close his country’s borders, or at the very least, to weed out the undesirables.  On any view, it is a draconian step and one loudly criticised by the liberal establishment, with much placard waving, and chanting.  It can also be criticised as ‘one size fits all’, and that isn’t fair, as a number of perfectly worthy and respectable aliens are being excluded.  But the liberal establishment would do well to look beyond their placard waving and their chanting, and consider why this measure is desirable.  If they can see that far, they need look no farther than the Syrian crisis and the way it has affected Germany, France, Italy, Greece and Turkey, all overwhelmed by  refugees, some more needy than others, who swarmed over these countries with little or no thought of the consequences.

Some years ago, my wife and I were in Hollywood for the Golden Globes Awards, and we were staying at the Hollywood Hilton Hotel where the ceremony took place.  I was struck by the fact that at every level in this hotel, the staff were from Mexico, just down the road.  They paid no taxes, as they were illegal immigrants, and they took jobs which might otherwise have been done by the ‘deplorables’.

Finally, whilst the liberal establishment is hand wringing and bleating about human rights, they should remember that in this country, by far and away the most important issue of the referendum debate was immigration and our failure to control our own borders.  Our own ‘deplorables’ do not want an open door policy to immigration.  They do not want a Berlin, or Paris, or Nice, or Brussels atrocity on their doorstep, and if this means that some worthy aliens are excluded, it’s a price worth paying.

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UP TO SNUFF

January 29th, 2017

I have never felt particularly comfortable about professional engineering.  By that I mean devices chosen by the Ministry of Justice to promote candidates to higher office simply because of their colour, gender or creed, and regardless of their qualifications to fill the post on offer.

It started some years ago when the Law Society lobbied the then Lord Chancellor, it could have been the acerbic Scot Lord Clash of McFern, demanding access as advocates to all the higher courts.  Until then, these solicitors had rights of audience in the Magistrates Courts, where they felt most comfortable and could weave their magic and impress the court with their advocacy and adversarial skills.  The higher courts were the preserve of the Bar. Lord Clash, never a friend of the Bar, engineered their admission to the higher courts, in reality to break the Bar’s monopoly, but in so doing, allowed a rush of solicitors with little or no advocacy skills, to wash around the higher courts when, on any view but his own, it would diminish the reputation of the courts and the effective administration of justice. Despite a wealth of evidence to the contrary, it was determined that solicitors could apply for a higher courts certificate if they could satisfy the Ministry that they were up to snuff and, most importantly, they could pay the advocacy fee.

It is entirely possible that some solicitors can match the Bar in advocacy and adversarial skills, although in my considerable experience, I am yet to be convinced.  That said, with this professional engineering and a glut of lawyers from both branches of the profession, standards are plummeting. Lord Clash has little to be proud of.

And so it is with Queen’s Counsel.  In the not too distant past, it was regarded as a privilege and a mark of excellence to be appointed a QC.  Generally speaking, the appointment followed at least two previous applications, each time accompanied by a hefty application fee, with the candidate requesting references from big hitters in the profession and, with any luck, a high court judge.

Recent statistics show that of the appointments, men predominate as they have throughout the profession since time began.  However, there are moves afoot, with the connivance of Liz Truss, a female and the current Lady Chancellor, to professionally engineer future appointments to favour females.  I remember a colleague of mine making a highly amusing speech at one of the profession’s interminable conferences on how best to secure an appointment.  He concluded after a detailed statistical analysis that transgender candidates from one of the ethnic minorities stood the best chance of all.  His remarks may have been tongue in cheek, but beneath the humour lies a serious message, and it’s depressing.

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