The Barrister Bard

The Football Association is agonising over the role of John Terry, the Chelsea and England footballer, and the part he will play in the forthcoming European Championships.  These will be played in June and July, and on past form, the English team will be back home in short order.

 As you will know, Terry faces allegations of racial abuse, and his legal advisers have persuaded the court to list the trial after the final of the Championships.  So the FA is faced with the prospect of Terry leading out the English team with a serious charge hanging over him, but his supporters point out that he is innocent until convicted, and to strip him of the captaincy, or worse still, to exclude him from the team altogether, would be tantamount to an admission of guilt.

It is worth remembering how Terry finds himself before the court.  After a police investigation, the Crown Prosecution Service were consulted, and after the usual navel gazing, decided to bring the charge.  There is a standard procedure adopted by the CPS before they bring a charge.  After considering the evidence, which includes any statements in denial from Terry, the CPS has to determine if there is a reasonable prospect of conviction.  That is the key to this matter, and one that should not be overlooked.

Needless to say, the test applied by the CPS does not mean that Terry will be convicted, it simply means that there is enough evidence to place before the court and, if accepted, would be sufficient to found a conviction.  As the lawyers would have it, there is a prima facie case to answer.

So if Terry is to play in the European Championships, and especially if he is to captain the team, the world and his dog will know that he stands accused of racially abusing a black player during a football match.  There are now dozens, if not hundreds, of black football players throughout Europe, and the world and his dog will hold its breath every time Terry goes into a sliding tackle on a black opponent.

And what happens if a black player, having felt the full force of one of Terry’s trademark tackles, complains that he has been racially abused?  After all, there’s no smoke without fire, and Terry is placing himself in an invidious position.

There are two options: bring the trial forward to a date before the start of the Championships.  If Terry is acquitted, end of story, and he is free to get on with the job he does best without a stain on his character.  Or, the less preferred option, exclude him from taking any part in the Championships, and possibly damage even further England’s faint hopes of putting on a good show. 

And what if he is subsequently acquitted?  The FA will finish with egg on their faces, not the first time, and Terry’s legal advisers will almost certainly seek substantial compensation for their innocent and rightly aggrieved client.

Time to rethink the whole sorry mess! 

When the Coalition Government was formed, it was inevitable that Ken Clarke would have to be included in it.  As a Tory ‘Big Dog’ over many years, or as some might call him, a Tory ‘Old Dog’, it was better to have him inside the tent pissing out than outside pissing in. Theresa May, the embattled Home Secretary, bears testament to that. Ken came in with a brief to cut public spending, and the two obvious candidates were legal aid and the groaning prison population.  But the devil is in the detail.  Legal aid is being cut, but court costs are shooting up as litigants in person are trying their hand at advocacy, and judges are bending over backwards to humour them.  This means that the backlog of cases, already too long by half, will increase year on year as relatively simple cases become more and more protracted.  I have in mind one of my own cases, originally listed for one day, and now into its fourth day with no end in sight. The prison population is now greater than ever, with no signs of abating, so Ken has come up with a cunning new plan.  He will abolish the ill thought out indeterminate sentence of imprisonment for public protection, but as a quid pro quo to humour the Tory backwoodsmen and their ‘hanging is too good for them’ mantra, he will introduce a ‘two strikes and you’re out’ sentence for violent and sexual offenders.  They will receive an automatic life sentence, and presumably, as before, the judge will set the tariff.  Although not clear, I assume that with the abolition of IPPs, these ‘life’ sentences will be determinate. All this smacks of making law on the hoof and a knee jerk reaction to Joe Public.  For my part, I am in favour of the abolition of IPPs.  Experience has shown that the Parole Board, who have the last say on release, are often too timid in their approach, and if they are given any opportunity to refuse parole, they take it.   This has had far reaching and unintended consequences for the prisoner and the prison population.  In many cases, prisoners under this regime have served sentences well in excess of the maximum sentence allowed if the judge had passed a determinate sentence.  On any view, this is manifestly unfair. But the ‘two strikes and you’re out’ plan is yet another poorly thought out remedy to violent and sexual crime.  Do the judges really need the Government in the shape and form of Ken Clarke to lay down the law on sentencing?  Long gone are the days when judicial appointments were made on the golf course or the grouse moor.  Judges are now appointed on merit, although some might disagree.  They attend a stringent vetting process, and after appointment, they are subjected to sentencing seminars and continuous appraisal to keep them up to speed.  In short, they are professionals, not well meaning amateurs. As the Court of Appeal is so fond of reminding us, each case must be decided on its own particular facts, and it is a foolish and insensitive judge who ignores them.  To apply an arbitrary flowchart ignores any mitigating circumstances surrounding the offence, making otiose the attendance of counsel before sentence is passed. Still, if Ken is looking for cuts, this might not be a bad thing.

The government has decided to reduce the funds available to the Criminal Injuries Compensation Authority (CICA) by £10 million, much to the vocal dismay of the Victim Support Agency. At the same time, the government has decided to ban “referral fees”, which are controversial payments received by insurers, garages and even the emergency services in return for passing on the names and phone numbers of car crash victims to lawyers and claims management firms, also known as ambulance chasers. They have been blamed for helping to increase premiums by up to 70% over the past two years. The average comprehensive car premium rose more than 30% to £924 during the 12 months to June 30, according to the AA. The ban comes as the Office of Fair Trading said it is investigating high car premiums. Following an undercover investigation, a handful of Indian doctors have been offering false medical certificates, and in some cases death certificates, to enable false claims for compensation to be made. And finally comes the news that Rupert Murdoch of News International has authorised the payment of £3 million to the family of Millie Dowler as part of the phone hacking scandal, and yet they want more. The compensation culture has spiralled out of all control over the last several years.  It is all part and parcel of the “something for nothing” mentality which the outgoing Labour Government nurtured to display its caring credentials as the party of the people. The principles behind it may be laudable, but as we have seen time and again, the system is open to abuse, and it is being regularly abused. Ambulance chasers are an absolute disgrace.  They ply their tawdry wares on day time television, fronted at times by well known faces who should know better, and in collusion with doctors of dubious ethics, even the most minor injury becomes life threatening.  The advertisements border on the ludicrous.  Some twerp on an insecure ladder falls down and wants to blame anybody but himself, and an octogenarian driver who should never be behind the wheel of a car is shunted, and according to the advertisement, drives away clutching a cheque for £7,500, ready to cause another accident and ready to blame anybody but himself. I am not against fair and reasonable compensation where the case is merited, but the problem is that the dishonest applicants and their acolytes spoil it for the rest of us. I have done my fair share of personal injury cases following a motoring accident, and I am appalled at the time and money thrown at some of these claims.  In many cases the legal costs far outweigh the award of compensation, and in many cases the claim should never have been brought in the first place. Most honest and sensible people who suffer minor injury from time to time get on with the rest of their lives.  Some discomfort after injury is expected, but with the obvious exception of serious and life changing injuries, they live with the discomfort and get on with the rest of their lives, or at least they should. With criminal injuries, the CICA has been faced with an ever increasing number of claims, which they have addressed by making ever increasing awards.  Understandably, the government is trying to rein them in, to persuade them to use better judgment and less of the blank cheque approach.  We simply cannot afford to throw money around like confetti at a wedding. As for the Dowlers and the £3 million compensation, you can bet your bottom dollar that their “legal advisers” are telling them to hold out for more.  After all, as Rupert Murdoch is one of the richest men in the world, the Sky’s the limit if you’ll forgive the pun.   When greed, not need, becomes the driving force in the compensation culture, it is time for a complete rethink.

Somerset and the West Country are favourite retirement areas for wrinklies of all shapes and sizes, mainly from oop North, where the climate is less agreeable. It is akin to the Elephant graveyard, where old bulls and cows come to die, and with the advances in medical science, are taking longer and longer to do so.  In the meantime, they clutter up the check out tills at their local supermarket, and drive home at 4 mph.  Bless them! Summer time is also a time when the warmer weather brings out the worst in the Great British bull and cow, and no more so than the outfits on show in public.  Whilst this phenomenon is not confined to wrinklies, they do tend to stand out from the herd like a sore toe.  I have learnt to live with singlets, tattoos, shorts displaying legs that should never be on show, even in the privacy of the home, but I draw the line at bare horny feet, with discoloured and unclipped nails, encased in Resurrection sandals. And where is Health and Safety when you need them most?  It cannot be hygienic under any circumstances for these feet to be paraded when food is being sold. With this in mind, I have been researching the law on indecent exposure, and correct me if I’m wrong, but there seem to be two separate offences.  The first is the common law offence which, in general terms, covers all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.  These are indictable offences with unlimited fines and imprisonment. There is also an offence of exposure under the Sexual Offences Act 2003, which on the face of it, seems to be confined to the male genitals.  If I am right, then there is no offence committed if a female exposes her genitalia.  A curious distinction, and possibly sexist. I have concluded, sadly, that neither offence covers the indecent exposure of horny feet, and more’s the pity.  But let’s not be fainthearted.  Despite the swingeing cuts in public finances heralded by George Osborne, local councils are still recruiting for completely naff jobs.  So why not a horny foot inspector with ‘on the spot’ fines? Something needs to be done, and done quickly, to stamp out, or on, this malaise before it reaches epidemic proportions.

I like Jeremy Paxman, the presenter of Newsnight, and his confrontational and inquisitorial style.  His questions are incisive, and he doesn’t suffer fools gladly.  And let’s face it, he deals with more than his fair share.  So when he pontificates, I tend to sit up and listen, not so much about ill fitting underpants, but graver and weightier matters. He has recently gone on record bemoaning the fact that certain elements of society, the “have nots”, complain about being ruled by the privileged classes, the “haves”, and in particular, those who have been to public school and Oxbridge.  The fact that Paxman ticks both boxes himself is immaterial.  He argues that instead of bemoaning this selfless devotion to the greater good, we should welcome these Patricians in the finest traditions of the Greek Nation State. As we know, a fair proportion of the cabinet are Eton and Oxbridge educated, as is Boris Johnson, the Mayor of London.  The “have nots” argue that these patricians are out of touch with the common man, but as the saying goes: “You don’t need to feed from the trough to know how pigs live.” There is a fear in some quarters that well educated people are to be regarded with suspicion, that whilst they can choose almost any career and excel in it, the fact that they choose politics is somehow part of a hidden agenda, a self glorification at the expense of those less privileged. Into this negative equation is thrown the higher judiciary, who according to a recent survey, are also public school and Oxbridge educated.  The “have nots” bemoan the fact that there are very few women (only one in the Supreme Court) and not a black face to be seen.  Where, they ask, are the black lesbians, who according to their mantra, tick all the right boxes, regardless of ability and intellectual prowess? Those with long memories will remember the advent of comprehensive education, with the mantra that one size fits all.  The crass stupidity of this ill conceived destruction of secondary education was best summed up by John Prescott, who rose to power in the Labour party because he ticked all the boxes, and in particular, he was poorly educated with an enormous chip on his shoulders.  In those days of grammar and secondary modern schools, Prescott failed his entry exam into his local grammar school, and his response?  “If I can’t have the benefit of a good grammar school education, nobody can, so abolish grammar schools.”  And so it was. Some Nation States put their trust, and their fate, in the hands of illiterate peasants, most notably China and Russia.  And the result?  Collectively they accounted for the death, mainly by starvation, of over one hundred million of their subjects.  Mao Tse Tung and Stalin paid lip service to the principles of communism as adumbrated by the oft misquoted Karl Marx, whose Sisyphean labours produced Das Kapital and the concept that to each according to his needs, from each according to his ability.  Sadly for their subjects, or ‘comrades’ as they were known, both Mao and Stalin preferred Orwell’s Animal Farm, and the rest, as they say, is history. Back to Paxman.  Surely it is in the interests of good, and sometimes inspired, governance, that we turn to the best qualified to lead us, regardless of colour or creed, the more so in times of trouble.  If it’s a choice between the likes of Prescott and his camp followers, and Cameron, I know who I’d choose every time.