GIVE A DOG A BAD NAME

The Rehabilitation of Offenders Act hit the Statute books as long ago as 1974, and briefly as it turned out, it heralded a new dawn of sorts.  The Act was devised to ‘pardon’ criminals who had been convicted of relatively minor offences many years ago so that they could start afresh with a clean sheet.

Unfortunately, there were so many caveats built into the system that in many cases, the Act was meaningless.  These caveats included the seriousness of the crime and therefore the length of time during which the conviction remained ‘unspent’, and the nature of the offence itself and the extent to which it might impact on future employment.  This is relevant when the ‘spent’ criminal is applying for employment in sensitive areas such as working with children or vunerable adults.

For the most part, judges in the criminal courts ignored the Act on the ground that once a criminal always a criminal, and the offender’s rehabilitation was irrrelevant.  Those were what some called ‘the good old days’.

The Supreme Court has revisited the Act, with campaigners baying at the door.  It seems to go with the territory, there seems to be a campaign for almost everything, fronted by spokespersons of dubious provenance who bob to the surface from time to time and shout the odds like so many fishwives.

Two were in evidence to assist the Supreme Court; Unlock, a charity for people with convictions, and Just for Kids Law, the same but with a different nomenclature.  Whether they assisted the court or not is a matter of speculation.

Lord Sumption, a judge who needs no assistance, gave the lead judgment, and without going into the minutiae, ruled that the way some criminal records are disclosed is disproportionate and infringes human rights.  [If in doubt, wave the ‘human rights’ flag.]

Lord Sumption was considering individual cases, and therefore not painting with a broad brush, and for all purposes, the Act remains unchanged.  What it means, as did the Act back in 1974, is that each case must be decided on its own particular facts, otherwise known as a cop out.  The argument goes on, and it will be for individual judges to balance the interests of society with those of the miscreant, whose interests wouldn’t have to be balanced if he (she) hadn’t committed the crime in the first place.

The final word goes to the Chief Executive of JfKL, who bleated: “The government should now conduct a wide-ranging review of the entire criminal records disclosure regime for children and young people.”

Yeah, and if pigs could fly!

MONUMENTAL INCOMPETENCE

I am told that judges, lawyers and staff in the family courts may have to cut corners and exceed time limits because of the high volume of work, and by all accounts, it is a malaise spreading throughout the entire court system.

My recent experiences of the court service do not auger well, and whilst it is easy to blame ‘high volume of work’, much is down to incompetence. In addition, the increasing involvement of the litigant in person is a factor. If you make litigation ‘user friendly’ then you can hardly complain if litigants in person use it.

In the civil and family courts, legal aid is not readily available, a commendable attempt no doubt to keep costs to manageable proportions, so the litigant in person has little help beyond their local Citizens Advice Bureau and a handful of self-professed experts down at the Bull and Bush public house, where they know everything. Tempting though it is for judges to throw their arms up in disgust and dump the whole case in the rubbish bin, this is unlikely to find favour with the powers that be.

These and more are challenges to the court system, but the challenges arise primarily from monumental incompetence.  I realise that when I contact a court, either by email or phone, I am told in advance that court staff are not legally qualified and therefore cannot offer legal advice.  Fair enough, but invariably the purpose of my contact is simply a request for a progress report and an update, not unreasonable in the circumstances.  If I send an email, I get a computer generated reply which reads: “Thank you for your email which has been received by the court. We will reply as soon as possible,” but they don’t.  In one case, I sent 8 emails, all receiving the same computer generated reply, and nothing else.  I was subsequently criticised by a judge who reviewed my case and told me that the court staff were under considerable pressure and I should stop pestering them!  Unhelpful in the extreme, and if this is the prevailing attitude, what hope of reform?  Finally, in sheer frustration, I made an official complaint to the Ministry of Justice, which at least generated a prompt reply from the clerk to the court’s bankruptcy division.  As my case had absolutely nothing to do with bankruptcy, the reply was well intentioned if wide of the mark.

In June 1996 the Rt Hon Lord Woolf published a review of the civil justice system. His findings were that the civil justice system was too slow, too costly and too complex. As a result of this review legislation was made for the introduction of rules of court to be called the Civil Procedure Rules (CPR). The rules are to be made with a view to securing that the civil justice system is accessible fair and efficient, and the rules are both simple and simply expressed.  Sadly, they failed on both counts, and as they say, the road to hell is paved with good intentions.


After 3 years of navel gazing, the CPR came into force on 26 April 1999, and are now the bible of the civil law.  But what Lord Wolff and his committee didn’t envisage is that these Rules would take on a life of their own, to be analysed and gnawed over ad nauseam. 

I remember the good old days when judges decided cases not on the niceties of legal semantics but on good old fashioned common sense. I remember one judge in particular who denied Counsel access to law books on the basis that he was the law in his court, and that was that.  His view may have been extreme, but he was rarely appealed and there was little or no backlog of cases waiting for his determination.

We need judges to lead, not follow.  We need judges with imagination and the confidence to make decisions.  We need judges who are not afraid  of their own shadow.  And above all, we need judges with a mind of their own and not simply the mouthpiece of the civil service.  If the civil service want to remain monumentally incompetent, let them do so, but not on our time.

THE COMPENSATION CULTURE

The Criminal Injuries Compensation Authority (CICA) has just been reviewed by the affectionately named Baroness Newlove, and it doesn’t make for easy reading.

Before picking through her report, those of you with long memories will know that the CICA started out life in 1964, when you and I were wearing a younger man’s clothes. Its avowed purpose was to compensate victims of crime, a laudable aim, but easier said than done.

Baroness Newlove said her review found that the CICA was needlessly forcing survivors to repeat traumatic details.   That body seemed “calculated to frustrate and alienate” those it should be helping, she said.

The Ministry of Justice, which oversees the CICA, is considering the findings.

Victims of sexual or violent crimes, including bereaved relatives of murder victims, are able to claim money from the CICA to help them recover. That financial support can help them access counselling or improve safety measures around their home, or an all expenses holiday to New Zealand!

However, Baroness Newlove said the process of claiming support is often having a “detrimental impact” on their wellbeing.

Under the system, people need to provide details of the crimes against them including times, dates and addresses. I fail to see how this can be described as having a “detrimental impact” on their wellbeing.

“Evidence demonstrates that completing this part of the CICA application form is highly traumatic as it re-triggers memories of the incident,” the Conservative peer wrote.

That said, and it may be true in some cases, the CICA is handing out taxpayers’ money, and is enjoined to be vigilant in order to weed out the false claimants, of whom there are many. Those of us at the legal coalface will have our own first hand experiences, and unless nipped in the bud, large sums of money can be shovelled in the path of those who are wholly undeserving. The recent well publicised cases from the Grenfell fire disaster speak volumes.

“Yet, in every case,” she witters on, “the CICA apply to the police for a full copy of the victim statement and reports so the need for the victim to repeat their story on their application form is unclear.” It’s crystal clear to me.

The CICA has previously been criticised by campaigners for withholding compensation on arbitrary grounds. 

A Ministry of Justice spokesperson, having thumbed through his dictionary of well worn platitudes, said: “Whilst no amount of compensation can make up for the immense suffering endured by victims of violent crime, we are committed to ensuring that they receive the help and support needed to rebuild their lives.

“We take this duty very seriously, which is why as part of our victims strategy last year we pledged to look at the difficulties faced by some when applying for compensation.”

Its own review of the system is scheduled to report back later this year. I can hardly wait.

MAY IT PLEASE YOUR LORDSHIP

Chapter Three Part Seven:

AT THE BAILEY:

I accompanied Ham back to the robing room for the briefest of post mortems. I had to hand it to him, he had a skin like a rhinoceros, and seemed completely unfazed by the mauling he’d just received. ‘Well,’ he whined, ‘now you’ve seen the cut and thrust of advocacy at its highest level, has it whetted your appetite for a life of crime?’

Frankly, I couldn’t think of anything to say in reply.

‘I’m going back to Chambers,’ he continued. ‘I’ve brought my own sandwiches’ – no expense spared – ‘so I’ll see you later.’ And, with that, he was gone.

I watched him go. I would have liked to discuss the case, and perhaps learn something from what had gone wrong, but I judged that now was not the time. Instead, after performing the dance of the starched collars in reverse, I made my way up to the Bar Mess, the dining room set aside for barristers. Over by the window sat Sir Archibald with assorted acolytes, deep in animated conversation. Seeing no familiar faces, I selected the plat du jour and sponge pudding with custard, and sat down on my own, trying not to draw attention to myself. I had just finished when, to my trepidation, I saw Sir Archibald making his way over. I immediately stood up.

‘Please sit down, young man. Do you mind if I join you?’

‘I.. I.. I…’

‘I didn’t quite catch your name when we met earlier,’ he said, sitting down opposite.

‘Potts, sir, Toby Potts.’

‘Please, Toby, call me Archie,’ he said, smiling kindly. ‘And where is your pupil master?’

‘Gone back to Chambers to eat his sandwiches,’ I blurted out, immediately feeling disloyal.

‘Ah, that’s Berger for you, not one for socialising. Still, it takes all sorts. So, what did you make of this morning’s high drama?’

‘I was rather confused, to be honest,’ I said. ‘I don’t pretend to understand all the rules of evidence, but the case seemed to fall apart with the first witness. The prosecution made certain assumptions about her evidence that they were clearly unable to prove.’

Sir Archibald chuckled. ‘A very perspicacious observation.’

‘I mean, I hadn’t read the papers or discussed the case with Berger before going into court,’ Sir Archibald raised his eyebrows, ‘but it seemed an open and shut case.’

‘On the face of the papers, you are right. We all know Miss del Fabro earns her living staring up at the ceiling, but knowing it and proving it are not always one and the same thing. My advice to you, Toby, starting out on what I hope will be an illustrious career at the Bar, is that you can never over-prepare. Never assume that some fact or other will prove itself, always be ready to prove it, just in case your star witness loses the plot.’

‘So should Sir Adrian have been acquitted?’

‘Under our system of justice, yes. The prosecution must prove the guilt of the accused to a very high standard, and even if the guilty are acquitted from time to time, you don’t throw the baby out with the bathwater. Our system may not be perfect, but it’s the best we’ve got. God help us if our lords and masters get their way, and abolish trial by jury. Although it worked for the defendant today, can you imagine anything worse than being tried by Sourpuss on his own?’ I smiled deferentially. ‘And as for Sir Adrian, whatever else, he behaved foolishly, his career is in ruins, and he’ll never rise to high office again. That is his punishment, so justice of sorts has been done.’

Sir Archibald paused. ‘So, your first day with Ronald Berger? Can’t say I know him well, an honest journeyman rather than a shooting star. To quote Robert Louis Stevenson, “Here stands one who meant well, tried a little and failed much: that should be his epitaph.” Should make it to the Circuit Bench in a few years’ time.’

‘Really?’ The surprise in my voice didn’t go unnoticed.

‘Being a good or able advocate is no longer an essential prerequisite to judicial advancement, and more’s the pity. If you keep your nose clean, don’t upset anybody on the way up, and toe the party line, you’ve got as good a chance as the next man. Not so long ago it was different. Judges were appointed on ability, and usually after a distinguished career at the Bar. They had a feel for it, and the Bench was the richer for it. Sourpuss is a case in point. He can be intimidating, but despite his gruff manner he’s a good judge, and, above all, he’s fair. Nowadays, all sorts of nonentities are getting appointed.’ I laughed, and wished I hadn’t. ‘They get their idiot guides printed for them by the Lord Chancellor’s department, together with their specimen directions, and even their hours of sitting. You can’t get a feel for the case if you don’t observe human nature. It’s not what a witness says, it’s the way he says it, the body language, that can make the difference between truth and lies, conviction or acquittal.’

I sat transfixed as Sir Archibald glanced down at his watch. Should I ask him for his autograph, or perhaps a photo opportunity for posterity? What a story to tell my friends and parents – ‘This one is of me and my good chum Archie… you know Archie? The former Attorney-General?’ If only…

He stood up to go. ‘It’s been a pleasure chatting to you, Toby, but I’ve detained you long enough. Let me leave you with one final piece of advice – never settle for second best. Why be ordinary if you have it in you to be extraordinary. Good luck!’ And with that he was gone.

MAY IT PLEASE YOUR LORDSHIP

Chapter Three Part Six:

At the Bailey:

Ham smiled thinly. ‘Very well, my lord.’ Taking a deep breath, he plunged on. ‘Do you know the defendant?’ he asked, pointing to the dock.

This time Sir Archibald was up like a jackrabbit. ‘Again, my lord, and with respect to my learned friend, identity is in issue, and there has been no formal identification in this case.’

‘Is that right, Mr Berger?’ His lordship was not amused.

‘Well… er.’ Ham was going down for the third time, ‘Sir Adrian Browne is a well-known public figure, arrested in Argyle Square whilst persistently importuning for sexual favours…’

‘Yes, yes, that, as you explained in your opening address, is your case.’ Sourpuss was losing patience. ‘The question, however, for the jury, is can you prove it on admissible evidence? The jury are not remotely interested in what you say, it doesn’t amount to a row of beans.’

There was a long pause, the silence broken only by the ticking of the court clock, as Berger took stock of his hopeless situation. ‘But, but…’ he whined.

But, but will not do, Mr Berger. Have you any admissible evidence connecting the Defendant with Miss del Fabro, and, more to the point, any evidence that Miss del Fabro was even there on the night in question?’

Going down he might be, but Ham could picture his prosecution practice sinking without trace, and taking him down with it. He was not going to do so without a fight. There was now an irritable note to his whine. ‘My lord, had Miss del Fabro come up to proof, and given evidence consistent with her witness statement, the question of identity would not have arisen. She is obviously a recalcitrant witness, and I apply to treat her as hostile.’

According to my law lectures, still fresh in the memory, a hostile witness is one who is deliberately distorting the evidence, and who refuses to tell the truth. If Ham’s application was successful, he could cross examine Dolores and put her witness statement to her. I was also taught that a hostile witness was next to useless as a witness of truth, wholly discredited and unlikely to be believed by the jury. It was a high-risk strategy.

Sourpuss’s eyebrows had shot up like fireworks. ‘Do you agree, Sir Archibald?’ he asked.

‘No, my lord, I do not,’ came the reply as Sir Archibald rose from his seat. ‘My learned friend has not even begun to lay the foundations for such an application. A forgetful witness is not, and can never be, a hostile witness under any circumstances.’

‘Sir Archibald is quite right, Mr Berger,’ said Sourpuss, ‘and I rule against you. So where does that leave you?’

One last headlong rush into the Valley of Death. ‘I have another prostitute to call…’

Dolores was about to explode, but Sourpuss waved her down. ‘Mr Berger, this is intolerable. You have not proved that Miss del Fabro is a prostitute, so even if your next witness surmounts that particular hurdle, do you have any admissible evidence of a formal identification? I thought not,’ he continued, before Ham could reply. ‘And besides, where is your evidence that the defendant was persistently importuning for immoral purposes? “Persistently”, in my vocabulary at least, suggests more than once. Am I right, Sir Archibald?’

Sir Archibald rose with all the dignity that his high office and professional esteem could muster. ‘Your lordship is, as ever, a Solomon come to judgment,’ he purred. Game, set and match.

Sourpuss turned to the now totally bemused jury. ‘There you have it, members of the jury. On the admissible evidence called before you, the Crown haven’t even begun to establish a case for this defendant to answer, and I direct you to return a verdict of not guilty. The defendant may leave the dock without a stain on his character. I shall rise.’