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.
December 15th, 2016
I have argued before, and I argue again, that trial by jury is a lottery, and that can lead to a serious miscarriage of justice. I have argued before, and I argue again, that the average juror is not intelligent enough to grasp the legal and evidential complexities. It’s like putting the lunatics in charge of the asylum.
As if to prove my point, a recent survey of expert witnesses showed that nearly two thirds questioned the ability of the jury to understand scientific evidence, and 40% believed that such evidence should be heard and evaluated by the judge sitting alone. Other statistics show that we are close to the bottom of the league table in the so-called civilised world in basic education, numeracy and literacy. Put another way, most of our jurors are as thick as two short planks. In addition, it doesn’t help to lower the age qualification to serve on a jury from 21 down to 18. To do justice, a juror should be worldly wise and possess the wisdom of maturity.
Some years ago, I was prosecuting in a trial where much of the evidence turned on actuarial calculations which the Crown argued were dishonest. The jury needed to be reasonably literate and numerate. When empaneling the jury, the court clerk states that any objection to any juror should be made before he comes to the book to be sworn, which means before he opens his mouth. A bad call! In that particular case, one of the jurors couldn’t read the oath on the printed card, although he tried in vain, but it was too late to object, so he sat through nine days of evidence looking totally bemused and not understanding a word of it. Mark you, from the judge’s expression, he was not alone.
It was fellow members of the jury who alerted the court to the juror’s disability. In the event, he had to be discharged, a fresh jury empanelled and the trial had to start all over again. It cost the taxpayer several thousand pounds. And even if he had not been exposed, he could not have taken a meaningful part in the deliberations, and would simply have gone with the flow.
For the history buffs amongst you, you will remember that trial by jury came about in the days when the judge had no formal training, and needed all the help he could get. The jury was composed of gentlemen over the age of twenty one who were property owners. Women folk came along several centuries later. The jury had two obvious attributes: they knew something about the world; and they could read and write.
To tackle the problem of a poorly educated and immature jury unable to consider the evidence dispassionately, I propose that where the judge determines that the case he is about to try is complex and needs specialist skills, such as literacy and numeracy, he should try the case himself without a jury. When he delivers his verdict, he would be obliged to give a reasoned judgment which could be challenged on appeal, instead of the present system where the foreman delivers a two syllable verdict and promptly sits back down. There is no attempt by the jury to explain or qualify their verdict, and it is left to the judge to second guess. That can’t be right.
December 12th, 2016
During the otherwise turgid submissions of the Brexiteers in the Supreme Court, Lord Sumption’s ties brought much welcome relief. Every day he sported a different one, all colourful and eye-catching and a joy to behold.
When I was first called to the Bar, and for a number of years thereafter, dress code in court was rigorously controlled by the judiciary. If, in the opinion of the judge, you had transgressed the dress code, he would remark waspishly and in time-honoured fashion: “Mr. Osborne, I cannot hear you.” The dress code could be transgressed by the smallest distracting item. A gold watch fob, especially draped over an expansive belly, or a colourful handkerchief in the top pocket, could be sufficient to incur judicial displeasure. Worse still was Counsel wearing what was known in those days as a ‘lounge suit’, a lighter shade of the conventional dark outfit and with an unwelcome shine to the fabric. The ultimate transgression was appearing without a waistcoat, almost as bad as appearing without trousers.
The dress code has been relaxed over the years, mainly to accommodate the new breed of solicitor advocates who were unfamiliar with court dress and who were slow learners. This was the same breed who, when invited to a formal dinner party, and before taking their seats, would immediately take off their jackets and drape them over the back of the chair.
The problem with the remark “I cannot hear you” is that it is open to misinterpretation, the more so in the days before compulsory retirement, with the most tenacious judges going on, and on, and on. This could place the unwary advocate on the horns of a dilemma. Is he to assume that the judge is as deaf as a post, so he should speak loudly and slowly as if addressing a Spanish waiter in Benidorm, or does he immediately begin a thorough examination of his apparel, rather like an old dog doing a bit of self-grooming but without licking the testicles?
My advice? Best to do both.
November 23rd, 2016
The year was 1976, and I found myself in the USA. It was that time when the stench of presidential corruption emanating from Richard Nixon’s tenure of office was slowly beginning to dissipate, thanks in large measure to Gerald Ford. He was Nixon’s vice-president, chosen because he was uncontroversial and had no opinions to offer on anything. He was the perfect antidote to the crisis that had enveloped the White House, a safe and steady pair of hands. Plucked from relative anonymity, he made an ideal stand in president.
I remember it well. I was downtown in Omaha Nebraska, not on everybody’s itinerary of places to see, but agreeable nonetheless. I was having lunch with friends and acquaintances, some of whom were American, and the conversation turned to Gerald Ford. I repeated the oft-repeated joke that he couldn’t walk and chew gum at the same time, and my American acquaintances were mortified. It was one thing for Americans to make fun of their president, it was quite another for a goddamned limey.
But it doesn’t end there, as Hillary Clinton now knows to her cost. Americans are a mixed bag of squirming emotions when it comes to politics, and many of their prejudices make for uncomfortable listening. Their blinkered defence of their gun laws, or more to the point, no laws, are hard to justify, but I digress. During the American election, Hillary referred to Trump’s supporters as ‘a basket of deplorables’. It cost her dear. As one commentator pointed out, there are 58 million ‘deplorables’ in the USA, so it was foot in mouth big time.
I am a fan of ‘Have I got news for you’, it is satirical and at times acerbically funny, but every now and again it oversteps the mark. I refer to a recent episode which had as one of its guests Maureen Lipmann, you may remember her, but I wouldn’t be surprised it you didn’t. In her time she was the archetypal Jewish Momma, and in her time she was very funny, the more so if you like Jewish humour. The joke about the woman who slept outside a synagogue and woke up with a heavy dew on her is a particular favourite. I was surprised to see her, as I thought she was dead, but no matter. The opening part of the show invited the panelists to comment on the recent election of Donald Trump, and before you could say ‘Oy Vey’ she launched into an unpleasant, offensive and remarkably unfunny diatribe about Trump which had me cringing and reaching for the off button.
Satirical humour is often hard to achieve, as there is a fine line between satire and crass stupidity. Whilst American presidents in America are as much legitimate targets as anybody else, those targets don’t travel well, and personal invective becomes crass stupidity.
Maureen Lipmann is not alone in spouting crass stupidity. Boris Johnson is liked because of his informal and at times ‘off the cuff’ style of diplomacy, but there are times to act like the village idiot, and times to behave like a grown up. Like him or not, Donald Trump is with us for the next four years, so best to tread softly, give him the benefit of the doubt, and remember that the special relationship is more important now than it has ever been.
November 5th, 2016
A firestorm erupted yesterday when the High Court sided with “Parliament” against the Executive about Brexit and triggering Article 50. The three judges have received a verbal bollocking from the Executive and their ruling will be appealed to the Supreme Court. I say ‘Supreme’ but it isn’t, not so long as we remain within the European Union, as their judgments are subject to the European Courts. All very silly, but we’ve known that for several years and done nothing about it until now.
There was the all too familiar media circus on the steps of the Court, an American import we can do without, and fronted by a woman with remarkable teeth calling herself Gill Miller. Other than her name, I know nothing about her whatsoever. I knew a Dusty Miller, and of course the legendary Glenn Miller, and Mitch Miller, but Gill Miller was, until yesterday, a complete nobody. Whatever else, her orthodontist needs a commendation, but other than the teeth, her right to act as the spokesperson in the media circus completely escapes me. My researches tell me that she is neither a parliamentarian nor a lawyer, just the organ grinder’s monkey.
But enough of Gill Miller and her remarkable teeth, and back to the gravamen of the legal challenge. On any view as expressed by those qualified to express a view, the judges trespassed on the territory normally occupied by the Executive arm of the Government and they were wrong to do so. What on earth persuaded them to hear the challenge in the first place is beyond belief, as they were well “off their patch” to use a legal term, not to mention wide of the mark.
And now those seeking to redress the balance are accused of undermining the independence of the judiciary by criticising this ill-advised ruling. I beg to differ. Unlike Gill Miller, I am a graduate of Constitutional Law so I know something about the workings of our Constitutional Democracy and the division of powers between the executive and the legislature. Whilst the Judiciary have an advisory role when asked to advise, they do not, and must not, have an interventionist role. Over the centuries, Parliament has developed a series of checks and balances to ensure that it serves its citizens to the best of its ability, and it doesn’t need the Judiciary to shoehorn its way in. If any one of our 650 elected representatives takes issue with the government, there are recognised ways of bringing them to book, the most draconian of which is a vote of no confidence. As a footnote for Gill Miller and her camp followers, those 650 are elected, unlike the judges of the High Court, who are not elected but appointed.
I hope that wiser counsel will prevail, and Gill will be put back in her box. Hope springs eternal.
PS. Even as I write, some of my more slippery colleagues in the profession are urging Liz Truss to back the judiciary and stand up for their Independence. Humbug! As usual, these characters have an agenda of their own, all to do with self-advancement and very little to do with the high moral ground, so my message to Liz is stand firm, if the judges have got it wrong, as they have, tell them, as you have, and if that is an attack on the independence of the judiciary, then I am Daffy Duck!