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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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SUFFER LITTLE CHILDREN

June 23rd, 2016

The tragic and wholly avoidable murder of Ellie Butler is up there with the worst of them.  This delightful yet totally vulnerable six year old girl was killed by her sadistic, violent and domineering father whilst her mother looked on, totally besotted by him and in fear of him.

Sadly, nothing unusual there, we professionals have heard it all before, where abused and endangered children are murdered by their parents under the noses of the so-called caring agencies. But what makes this so tragic is that the father had been convicted of abusing Ellie when she was only seven weeks old.  All the symptoms of the abuse pointed to shaken baby syndrome, but his conviction was overturned and Mrs. Justice Hogg went out of her way to exonerate him as a victim of a miscarriage of justice.  In addition, and to the astonishment of everybody, lay and professional alike, the judge issued an order informing all the agencies who might come into contact with Ellie that the father had been exonerated.  The effect of this order was to shut out the agencies and effectively give the father the power to dominate, abuse and ultimately kill his daughter.

Shaken baby syndrome is by no means universally accepted, but it is sufficiently well researched to explain criminal injuries that would otherwise go unpunished.  Even today, after decades of research, there is a handful of ‘experts’ who refuse to accept what is staring them in the face, and posit theories that are wrong and misleading.  As they say, somewhat tritely, for every expert positing an opinion, there is another one gainsaying it.

But my experience tells me that in these areas, there are often shades of grey and not just black and white, and where there might be an innocent explanation, the caring agencies are often best placed to provide it. If, as in this case, these agencies are excluded, an important safeguard for the abused child’s protection has been removed.

When I first came to the Bar, one of the early lessons I was taught by my senior colleagues was never to become emotionally involved with the case and the client.  This important rule applies to advocate and judge alike, and failure to observe it risks losing judgment.  This is clearly what happened with Mrs. Justice Hogg, and she must live with the consequences of her misjudgment.  That misjudgment was all the more astonishing when she ignored the warning of Ellie’s grandparents, who had cared for her for most of her short life.  They knew the father better than most, and certainly better than the judge, and when a return to the abusive father was being contemplated, they told the judge that she would have blood on her hands. A chilling premonition.

I doubt if Mrs. Justice Hogg will wish to defend her decision.  After all, it is indefensible, and in any event, she has now retired.  I do not doubt that in her many years as a judge, she has served well and honourably, but sadly, she will be remembered more for her catastrophic misjudgment in Ellie’s case than for any other reason.

Too late for regrets.

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GONE TO POT

June 18th, 2016

 “I HAD NEVER been into drugs, not even at university, where they were supposed to be freely available. Well, to be strictly accurate, I’d been offered a spliff at a party once, but, like all those people in high places who set such a good example for lesser mortals to follow, I hadn’t actually inhaled; according to my friends in the know, this defeated the object of the exercise.

In my professional capacity, drink and drugs formed a sizeable part of my practice, from yobs in town centres drinking themselves senseless, assuming they had any sense in the first place, to lowlife on dark street corners offering coke, and brown, and hash, and speed, and E’s and anything else that took your fancy. It was very depressing, as it was to the bobbies on the beat who found themselves in the front line, night after night, when they weren’t back at the station filling in forms.”

Reproduced by kind permission of Monday Books from May It Please Your Lordship by Toby Potts.

Banner headline in my newspaper: Make all drug use legal, say experts.  They must be on something! These ‘experts’ are two bodies describing themselves respectively as the Royal Society for Public Health and the Faculty of Public Health.  Question: why do we need two when none will do?  And are they related in any way to that strange woman, I forget her name, who claimed to be the Chief Medical Officer, and who wanted to ban us from drinking?

These experts tell us that an addiction to controlled drugs is the same as an addiction to alcohol or tobacco. “We don’t make a moral judgement on those.”  Don’t we?  Where have these experts been for the past several years?  We have laws banning smoking all all public places, and now all cigarettes are to be sold in plain packets.  We have laws banning drinking and driving, and now, almost all alcoholic beverages carry a ‘drink awareness’ message. In addition, the consumption of alcohol can and should be controlled by the vendors, whether supermarkets or public houses.  They must assume some responsibility in return for the profits they make.

Like Toby Potts, I have never tried any controlled drugs, be they Class A, B or C, but as somebody said, and it may have been me: “You don’t need to feed from the trough to know how pigs live.”   I am wholly convinced of their damaging effects, damaging not just for the user but also for those in their close proximity.  How many times in the recent past have we heard excuses for criminal behaviour blamed on drugs?

Besides making all drugs legal, these ‘cloud cuckoo’ experts suggest that young people should be given more education on the risk of drugs at school.  But these schools, especially inner city ones, are so overcrowded the teachers can’t hear themselves think.  They also call on the NHS to take over responsibility for dealing with addicts.  But the NHS is already in debt to the tune of £2.4 billion, so where is this extra funding coming from?

The fact that, according to some, we are losing the war on drugs doesn’t mean we should simply surrender.  There can be no excuse for the abuse of drugs or alcohol, and if this means the continued enforcement of criminal sanctions, then so be it.  These experts, like so many of their predecessors, simply don’t think it through, and an informed debate on drugs, crime and punishment is cheapened by these silly suggestions.  As for funding, let’s abolish these bodies and invest the money in reducing the NHS crippling debt.

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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QUIS CUSTODIES CUSTODIET?

June 12th, 2016

I was browsing the legal section of my newspaper the other day, and I came across Mr. Justice Blake. My informant tells me that he was elevated to the High Court Bench in 2007, and in 2010, one of the final acts of Jack Straw the outgoing Justice secretary, was to appoint him President of the Immigration and Asylum Chamber of the Upper Tribunal.  Sounds like something out of Gilbert and Sullivan!

Given the fact that immigration is now number one on the list of issues troubling the Great British electorate in advance of the Referendum, it is worth taking a minute or two to review some of the Chamber’s decisions.  By all accounts, it has not been all plain sailing.  Mr. Justice Blake has presided over a number of controversial decisions allowing undesirables to remain in the United Kingdom despite the government’s wish to deport them.  In some cases the Court of Appeal has intervened to overturn his judgments, the most notable of which involved a man called Rocky Gurung, originally from Nepal.  In 2012, the Court of Appeal quashed the ruling in which Mr Justice Blake and a colleague allowed him to remain in the UK, despite his conviction for manslaughter.  They said the original judgment suffered from an “error of approach” and looked like “a search for reasons for not deporting him”.  The decision landed Mr Justice Blake in a second controversy, only days after he was criticised for permitting an Indian male nurse to remain in Britain following a jail term for  indecently assaulting a woman patient.

The question needs to be asked – is he the man for the job? In asking the question and seeking answers, we know precious little about Mr. Justice Blake.  We know that before his appointment, he was a barrister in Matrix Chambers, made notorious by Cherie Blair.  We know that he is one of the co-authors of a definitive book on Immigration, and that’s about it.

I got to thinking, should we know more about the man before his appointment?  And not just about this man, but about all those who are appointed to sit in judgment on their fellow men, whether home grown, or Nepalese, or Indian, or Jamaican?  Times have changed since the days when these appointments were made on a nod and a wink over a pink gin at the Athenaeum.  Nowadays there is an appointment process which is altogether more transparent and overseen by the Judicial Appointments Commission.  It came into being in 2006, a relatively recent arrival, so logic suggests that Mr. Justice Blake applied to sit as a full time judge under its auspices.  But if he was deemed fit to judge when in fact he was not, is the system working?

Not for the first time should we look over the pond for guidance.  You will know that judges are elected in the United States in much the same way as politicians.  They put their names forward and allow the electorate to decide, not some unelected cabal.  They hold office for a determinate period, usually five years, and can then stand again.

I haven’t researched how it works in America, and whether the electorate is confined to those who are legally qualified.  Knowing America, I suspect it’s universal suffrage.  Whether that appeals to us remains to be seen. At the moment, there are approximately 200,000 lawyers, so that’s a starting point, but there may be some who, as they run, hear a voice in every wind, and snatch a fearful dread, so we too may have to adopt a wider electorate.  To coin a phrase adopted by Andrew Mitchell, we may have to run with the vox plebis. And why not?  There might also be a groundswell of support for allowing serving prisoners to vote.  After all, who better to judge judges than the recipients of their judicial wisdom, and judges with an eye on election or re-election might need to moderate their behaviour, in court as well as out.

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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TAKE HIM DOWN

June 11th, 2016

You may not remember, there’s no reason why you should, but in 2003 the Labour Government introduced the Criminal Justice Act, which sought to make a number of significant changes to the criminal justice system.  In amongst the seemingly endless tracts of legislation was the proposal that magistrates should be able to pass sentences of imprisonment up to a maximum of 12 months from the present maximum of 6 months, effectively doubling their sentencing powers.

This provision was never brought into force.  There were a number of reasons for this.  One, which carried little weight, was that this would reduce to a trickle all those petty cases where the accused has the right to elect trial by jury, such as the theft of a postage stamp, and where the young Bar could cut their teeth so to speak on advocacy and hold high the sword of justice.  This reason became increasingly meaningless after 2006, as solicitors applied in their droves to acquire higher rights of audience, and before you could say ‘wig and gown’, they were going shoulder to shoulder with barristers and persuading their clients they knew what they were doing.

The other reason bruited abroad was that magistrates have itchy trigger fingers, and tended to pass sentences of imprisonment more often than their senior colleagues in the crown court.  If they were given increased sentencing powers, or so the argument goes, they’d use them when a custodial sentence was not the most appropriate.

And finally, there is the argument that with overcrowding in prisons now reaching crisis point, trigger happy magistrates would place an intolerable burden on the penal system to the point of melt down.  But short sentences, at least compared with some of the absurd sentences being passed in the crown court, means that the miscreant is out before he has had time to settle into a life of crime behind bars, with violence, and drug abuse, and sexual exploitation, and radicalisation, and the occasional rooftop riot everyday events.  And with credit for an early plea of guilty, and time off for good behaviour, hardly time for the miscreant to unpack his bag before he’s released back into the community.  As you know, I am in favour of the ‘short sharp shock’ approach to sentencing.  It works, and what’s more, it doesn’t bed block.

Magistrates have progressed considerably since the old days when, after summary trial,  the chairman of the Bench would say: “We find there is a reasonable doubt, but we don’t see why you should have it.  Case proved.”

The rise of the District Judge as a permanent fixture in Magistrates Courts has also been generally welcomed.  Unlike their lay counterparts, District Judges are legally qualified and experienced.  They also sit alone, so less chance of  dissent on the Bench.  All in all, and according to feedback, the system is working well enough.

Is it time for a rethink?  Whilst this government is incapable of any think, let alone rethink, until after the 23rd June, at some stage thereafter, a decision will have to be made, and the Magistrates Association has recently raised the issue for mature debate and early resolution.

I suspect they’ll get neither, but I live in hope.

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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