July 6th, 2015

During my time in private practice when I was slogging away at the Criminal Bar, I was greatly influenced in my formative years by no less a personage than Ivor Bigg-Wigg QC, very much my alter ego.  I bought his learned tome, featured on the side panel of this Blog, entitled No Holds Barred and subtitled An Idiot’s Guide to the Art of Advocacy.  So much to learn, so little time.

With the news that the dock in criminal proceedings may be abolished, I refreshed my memory on what Ivor wrote all those years ago, and I quote: “At the beginning of the trial, the Defendant will take his seat in the bullpen, otherwise known as the dock.  This is a special place reserved exclusively for those accused of crime, and sets them apart from decent law-abiding citizens. Like a caged animal, he’s on show for the duration of the trial, and the object of the deepest suspicion and prejudice. If he’s innocent, then what’s he doing in there, surrounded by burly men in uniform?”

I remember my first visit to the Old Bailey, when I was still in pupillage, and I found myself in Court One. It was positively medieval, a relic of bygone days.  My overriding recollection was the prominence of the dock which dominated the court, with metal spikes protruding on all sides.  The only thing missing was razor wire!

It will therefore come as no surprise that I welcome the abolition of the dock.  However, there is a downside to this. It means that the lay client will be seated either beside me or immediately behind me, and well within earshot and gown tugging distance.  From the advocate’s point of view, when the lay client was penned into the dock, and usually some distance away and at the back of the court, he could safely be ignored.  In the new order of things, there is an odds on chance the professional and lay client will be seated with me, looking like three birds on a wire. In civil proceedings, where there is no dock, or certainly no dock in use, this has been the seating arrangement for many years.

On the upside, the lay client can give his advocate instructions ‘on the hoof’ so to speak, and with proper schooling, the effective use of the stage whisper becomes a valuable tool.  If the judge appears to be unsympathetic to the lay client’s case, perhaps a word here and there or the rolling of the eyes, comments such as ‘the judge is a complete moron’ or ‘he’s obviously not read the papers’, when uttered in an audible stage whisper, are worth their weight in gold. The advocate can look suitably horrified by this outburst, but the arrow  has left the bow.

With the abolition of the dock, let’s hope it’s the start of better things to come, when the law is dragged kicking and screaming into the twentieth century.

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June 30th, 2015

It was nearly five hundred years ago when Shakespeare penned the lines ‘let’s kill all the lawyers’ and little has been done over the centuries to displace that sentiment in the minds of those who come into contact with them and especially ‘end users’.

Michael ‘Oikey’ Gove is the newly appointed Secretary of State for Justice as well as the Lord High Chancellor, and for these important posts he brings with him the lessons learned when he was Secretary of State for Education and more recently, Chief Whip. For better or for worse, he brings with him no legal qualifications or experience, which some might say makes him eminently suited to the tasks that lie ahead.

If he didn’t know it before his appointment, Oikey now knows that the legal profession, both solicitors and barristers, is hopelessly oversubscribed.  The  latest statistics show that there is now one lawyer for every four hundred head of population, and as more and more immigrants, legal or otherwise, flood our shores, there are more and more lawyers qualifying to keep pace with demand. The major problem is that there is absolutely no demand for more lawyers, the profession is saturated, and still they come. To coin a phrase attributed to F.E. Smith, there are one hundred and fifty thousand lawyers with work for fifty thousand being done by twenty thousand.

There were two ‘game changing’ decisions in the recent past that have caused this imbalance.  The first was when the Inns of Court relinquished their monopoly on legal education, allowing dozens of colleges and law schools to offer a fast track to the Bar.  When I first came to the Bar in 1974, two hundred barristers were called at the same time.  Now it is closer to two thousand. The second was when solicitors persuaded the then Lord High Chancellor to admit them as advocates to the higher courts, claiming that to deny them would be to violate their human rights and equality of opportunity and much more besides.

The final nail in the coffin for the profession is the litigant in person, who drags down the system almost to a full stop.

Though I say it against myself, the profession is in need of urgent reform.  The delays are unconscionable, usually associated with the worst excesses of banana republics, the Chilcot Inquiry and Italy. The standard of advocacy is deplorable, with few advocates knowing how to cross examine a witness, and fewer still understanding the rules of evidence and procedure. The costs of litigation, both criminal and civil, are excessive, and the cost of legal aid to the public purse is hard to justify.

The profession needs to be streamlined without further delay. Fortunately for Oikey, he will face no real opposition to his reforms from anybody who matters.  As my profession was told back in the early 80’s, when we were complaining about legal aid fees, it we didn’t want to work for the fees on offer, there were at least ten others who would, so if you don’t like it, re-qualify as a plumber.  This was before eighty thousand Polish plumbers descended upon us clutching their tool bags and their English phrase books.

I was talking to a friend of mine who is now retired, and who acts as a witness support officer for his local court. He is appalled at the waste of court time, with cases called on, only to be adjourned because of one problem or another.  Witnesses who have attended and are expecting to have their say, are yet again sent home to return at a future date.  The remedy is simple – if the case cannot proceed, it should be dismissed.

In addition, there is this absurd belief that the judge must be kept fully occupied throughout the court day, so courts are routinely listing two trials per court.  The second trial, listed as back up, is called a ‘floating’ trial, and will only be called on if the first trial cannot proceed. This means that the second ‘floating’ trial must be ready for trial at short notice, which means that witnesses have to be warned to attend, as well as the advocates.

Finally, and whilst we still cling to the belief that trial by jury is the best way to try criminal cases, these potential jurors are summoned to attend court with no real prospect of being required.  They must be paid their expenses, and in many cases obliged to turn up every day for their two week service, only to return home unused and brassed off.

If he is determined to press ahead with his reforms, Oikey is spoiled for choice.  But he needs to emancipate the judges who have been shackled by so many administrative directives and regulations.  A competent judge is best placed to run his own court, not the civil service, and the only directive he needs to follow is to get on with the job he has been appointed to do.  In running his own court, he must be encouraged to stop prolixity on the part of advocates, and tell them when to shut up and sit down.  He must be allowed to take over proceedings where necessary, and above all, he must prevent interminably flatulent final speeches.  With proper management, a two day trial can be heard and concluded in two hours, especially if there is no jury to humour.

In this way, there will be no need to kill all the lawyers, they will simply fade away.

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June 24th, 2015

I am reliably informed that the Charleston Church massacre in the United States is the fourteenth such incident to occur during this current Administration, and the Administration’s reaction to this is exactly the same as it was to the previous thirteen: shock horror, a lot of hand wringing, sorrow at the needless loss of life, and a promise to review and amend the legislation which gives every adult American the right to keep and bear arms.

Those of us with a liberal-minded inclination living this side of the pond find it incomprehensible that this law can be defended as necessary and desirable in a modern democracy, as it fails both tests.  Of course if the criminally insane are determined to kill with impunity, they will find ways to do so, but by restricting the sale and ownership of guns it should at least make it more difficult.

The right to keep and bear arms goes back no doubt to the days of the early settlers when they were helping themselves to land owned by ‘them pesky redskin savages’, now renamed Native Americans, which I am sure comes as a great comfort to them after many years of abuse.  The saying that the only good redskin was a dead redskin did the rounds until comparatively recently, and they had to be exterminated so decent white folk could live in peace.  This myth was perpetuated by the advent of the Western, with John Wayne leading the charge, closely followed by Gary Cooper, James Stewart, Robert Preston, the Lone Ranger, Jay Silverheels, hang on a minute, how did he get in there? Then there was my all-time favourite Roy Rogers, not forgetting Gene Autrey, and Hopalong Cassidy. How the memories come flooding back as they gave the redskins a damn good spanking.  At the risk of appearing controversial, the redskins have to shoulder some of the blame for their sad demise.  In those early days of colonisation, when the pioneers were trekking west, the redskins would descend upon them like the proverbial Assyrian, but they would start ahooping and ahollering at least a mile away, more than sufficient time for the pioneers to form their wagons in a  circle and take defensive action.

Times have changed since the early settlers were land grabbing, or at least I hope so.  The Amendment to the U.S. Constitution, relied upon by every Redneck and Rambo to justify the keeping and bearing of arms regardless of the circumstances and regardless of the needless waste of life, was enacted on the back of the War of Independence, and the fear, real or imagined, that the infant Republic needed to be defended.  As I read the Amendment, it is directed at the collective and not the individual, hence: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The sad reality is that nothing of consequence will be done to avoid the fifteenth massacre, and many more besides.  There is the emotional issue of the backwoodsman mentality, but more important still, the enormous vested interests of the gun lobby. With a presidential election looming, no candidate will have the courage to face the gun toters down, it’s electoral suicide.

There are bigger fish to fry, and it’s hardly a life or death issue.  Or is it? Time to bring on Clint Eastwood, the all-American hero. President Eastwood has a certain ring to it.

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June 17th, 2015

With morbid fascination, I have been following the story of Rachel Dolezal, who after a lengthy and somewhat intrusive media exposure, has stepped down as president of the Spokane chapter of the National Association of Coloured People (NAACP).  Pausing there, and anxious as ever to be politically correct, surely Blacks are no longer described as ‘Coloureds’?  Didn’t the actor Benedict Cumberbatch get into trouble for doing just that?  I suppose it’s acceptable for Blacks to call themselves or each other Coloureds, but not Whites, or Honkies. Isn’t this discrimination?  It’s a racial minefield out there!

Anyway, back to the plot, which I confess I am struggling to understand.  Ms. Dolezal has been passing herself off as ‘black’ for the best part of a decade, and yet it is clear she is white. Her Mom and Pop have produced a picture of her in her early teens with blond hair and blue eyes. A more recent photograph shows her looking like a sun-tanned Barbra Streisand.

In her black persona Ms. Dolezal has worked tirelessly for her adopted race and has been a tireless campaigner for racial equality.  She even lectured on African-American history, grim reading indeed regardless of your colour, and stubbornly maintained her racial deception until forced to face the truth.

So why did she do it in the first place?  There are numerous instances in the USA of blacks passing themselves off as white, and Michael ‘Chalky’ Jackson was the most egregious example of this. For any Black living in the deep south, even today some fifty years on from bigoted hatred and prejudice, it’s hardly ‘welcome’ on the mat, and the latest  incidents of white police officers shooting Blacks dead and then lying about it show just how far racial equality has to go to achieve the impossible dream.

Not all of you may know that many years ago I graduated, summa cum laude, from McGill University, where I majored in Political Science and Sociology.  As part of my Sociology course, I read an interesting book (or so I was told) written by a Honky who blacked up and walked down Main Street USA to test the reaction of passers by.  The results were entirely predictable: the Blacks he encountered hardly gave him a second glance, but the Honkies either avoided eye contact, or crossed the street, or locked their car doors, or were downright hostile.  He then went home, showered down and did the same walk as a Honky.  Again, the results were entirely predictable.  I don’t know how many copies of his book he sold, but I suspect the author and his bank manager owed a considerable debt of gratitude to the course lecturer for recommending it.

But there is an important issue here that needs to be addressed: did Ms. Dolezal believe that her work for civil rights would not be taken seriously if she were white?  If she believed that, then her sacrifice has been in vain, as it belittles the whole concept of racial equality.  She compounded the damage in this deception by gaining custody of a black child and passing him off as her biological son.

Now that she has been exposed, she is regarded as a freak and a weirdo, and yet, she is surprised at the media reaction.  In her departure speech, she dwelt on the racial issues that still need to be addressed, but then added: “The dialogue has unexpectedly shifted internationally to my personal identity in the context of defining race and ethnicity.”

What did she expect?

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May 27th, 2015

I’m sure you missed me!  After a well earned break in the sun, I’m back in the saddle, ready to wield the hammer of the ungodly and hold high the sword of justice!

We left these shivering shores shortly after the General Election, well pleased with the result, and as we were in foreign climes surrounded by jabbering Johnny foreigners, our news of Old Blighty came from a glance at the front page of the Daily Mail, stacked unloved and unsold in the corner of our favourite bistro. With the greatest respect to all who buy this particular tabloid, it really is utter tosh!  At least the Sun has tits to liven up its take on the news, and makes no pretence to be anything other than tits and sport.  The Daily Mail likes to think it’s a serious rag, but it fails miserably.

Speaking of Johnny Foreigner, the only news I seem to have missed, and it interests me professionally, is the forthcoming debate on human rights and which, by all accounts, is beginning to hot up.  All the usual suspects have crawled out from under their ‘special interest’ rocks to preach doom and gloom and the end of civilisation as they see it. Amnesty International has even used its precious resources to take out a two page advertisement accompanied by signatures of their most virulent supporters, none of whom means anything to me.

Those opposing the abolition of the Human Rights Act clearly haven’t thought it through. The inference they draw is that we will abolish all human rights, which is absurd.  I prefer the words of wisdom uttered by Lord Judge in a recent speech to the Hay Festival under the headline: “Don’t let European Courts run our lives.” He goes on to make the obvious point (or obvious to me at least) that we in this country have enjoyed an enviable record of human rights going back to 1215 and the Magna Carta, and there is nothing Johnny Foreigner can teach us in this respect.  We simply do not need a court stuck in Strasbourg with poorly qualified judges, some of whom are political appointees with only a passing knowledge of the law, telling us what we can and cannot do.

If further proof be needed that the Human Rights Act should be replaced by our own Bill of Rights, I learn that the Scottish National Party, led by Nicola Sturgeon who isn’t even an elected Member of Parliament, is hoping to lead the opposition to its abolition, assuming she can get a word in edgeways now that her predecessor the loquacious Alex Salmon is back.

Curious in the extreme that the two most influential members of the Scottish National Party are named after fish!

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