FAMILY JUSTICE

As a barrister specialising in family and matrimonial law, I have followed with interest Camilla Cavendish’s “crusade” about the apparent iniquities perpetrated by the caring agencies and Family Courts when dealing with vulnerable children. In short, she asserts in no uncertain terms that the Law is letting down British children.

I must confess that I have never heard of Camilla Cavendish, so I cannot comment on her level of expertise in this difficult field, nor the reliability of her extensive researches. However, I can comment based on my own experiences, and in my opinion, many of her fears in practice are groundless.

I start with a self evident truth. Any child being abused by its parents must be removed without delay to a place of safety, and any child not being abused by its parents should remain with them, assuming a safe and secure family environment. That said, the caring agencies, and many find themselves under attack in these articles, are between a rock and a hard place. If they act precipitately, as perceived by Ms. Cavendish, they are roundly condemned as unfeeling and incompetent, and if they don’t act quickly enough, or not at all, there is a dead child to lament. So if I have to make the choice, I prefer precipitate action than no action at all.

The problem with “crusades,” now taken up in The Times leader today, is that they can unwittingly distort the truth by their very partiality, and nobody can accuse Ms. Cavendish of being impartial. She obviously feels strongly about injustices, real or imagined, and by inviting her readers to join her “crusade,” she and those of like mind will simply repeat her mantra.

Returning to my own professional experiences, I am quite satisfied that in Care and Adoption proceedings, everybody involved gets their chance to speak and make representations. The in depth reports from Social Services, CAFCASS, psychologists, psychiatrists, and the children’s Guardian ad Litem are disclosed to all parties well in advance of each hearing. The authors of these reports are always available in court to be questioned and challenged.

The Guardian’s role is essential, in that he or she is there to protect the best interests of the children who are the subject of care or adoption proceedings, and where they are old enough to express their own views, these are included in the Guardian’s report.

The judge, invariably a senior circuit judge, has a wealth of experience to bring to these proceedings, and nothing goes through “on the nod”. It is absurd to suggest that any application is well founded simply because it is made. It is subjected to the closest scrutiny.

I turn now to Ms. Cavendish’s two main complaints about the system, firstly that court proceedings are held in camera, and secondly that the judgment of the court is rarely made public. I agree with the present position, which denies access to the press and public. Proceedings involving children are always sensitive, and if parties are to be encouraged to speak frankly about sensitive matters, they are more likely to do so in private than in public.

As to her second complaint, I have some sympathy, particularly where the judgment of the court is subsequently challenged, and I would advocate making all judgments public unless they are compelling reasons to the contrary. However, each case must be considered on its own particular facts.

The one substantial complaint I have as a practitioner is the delay between the initial application and final judgment. The arguments in support of the present drawn out system revolve around the need for thorough and in depth research, that no stone should remain unturned. And Amen to that. But the system can, and must, be improved. It is unacceptable that CAFCASS takes up to sixteen weeks to prepare a report, and much the same criticism can be levelled at Social Services. The courts must also play their part. Sensitive cases involving children must be listed as a priority, and a much better and tighter timetabling regime introduced.

As for Ms. Cavendish, I do not question her motives or the zeal she brings to her “crusade,” but methinks the lady doth protest too much!

JUSTICE MUST BE SEEN TO BE DONE

The recent House of Lords judgment in the appeal of Iain Davis makes for instructive reading and considerable food for thought. It also provided a detailed and comprehensive review of the law, not just in this country, but in every country where the “common law” prevails, as well as the most recent European Convention cases.

Students and practitioners of the Criminal Law will recall that Iain Davis was convicted of the murder by shooting of two men at a New Year’s Eve party back in 2002. Davis’s defence was that he wasn’t there at the time of the shooting. The evidence used to convict him came primarily from eye witnesses, who were granted complete anonymity on the ground that they feared for their lives if their identities were revealed to the Defence. That complete anonymity included withholding their names and addresses, screening in court and even voice distortion, and it was successfully argued by Davis on appeal that he was unable to put his defence pace the usual broad brush suggestions that the witnesses were mistaken or lying, otherwise known as “the tissue of lies” approach to cross examination, favoured by hacks the world over.

Their Lordships’ judgment stirred the Press and Media into predictable responses, ranging from “double murderer set free” from the tabloids through to “justice must be seen to be done” from the broadsheets.

Screening and courtroom television links for witnesses have been with us for some time, and used more often than not with vulnerable sexually abused children. It makes for a sterile and somewhat artificial exercise in forensic cross examination, but no matter. However, Davis’s complaint was in marked contrast to this approach, where the witnesses are known to the Defendant but not confronted by him in open court.

As an aside, and on any view, Davis did himself no favours. He admitted to being at the party, but not at the time of the fatal shooting, he left the country shortly afterwards on a false passport, he gave no explanations when questioned by the police, and gave alibi evidence at his trial which he was unable, or unwilling, to substantiate with independent evidence, credible or otherwise.

So what does this judgment do for the investigation of crime and the successful prosecution of its perpetrators? Many violent crimes involving guns and knives are often committed within a close knit community, where criminals and victims and eye witnesses live cheek by jowl, and are all known to each other. The opportunities for intimidation and revenge are obvious. Whilst forensic science has a part to play, the best evidence will always come from eye witnesses, so every step should be taken to protect them. It was suggested in the judgment that the Government might wish to intervene, quite how I know not, and it seems to me a monstrous piece of buck passing.

For my part, I cannot see how our political masters can get around the objections identified by the House of Lords, as any proposed legislation is bound to fall foul of the common law principles of a “fair trial” adumbrated in the judgment, not to mention the European Court of Justice. There is an outside chance that the concept of “proportionality,” so beloved of that Court, might win the day, but I doubt it.

Surely the best qualified to strike a balance between the interests of justice and the right of the Defendant to a fair trial are the trial judge and jury, and further legislation will not assist. If, despite the usual rules of evidence and procedure, total anonymity is granted to witnesses, then the judge and jury are best placed to decide if the defendant can receive a fair trial, and if not, then the trial must be aborted. If the trial results in an unsafe conviction, the heavyweights in the Court of Appeal and the House of Lords will put right any injustice, real or imagined, and allow the appeal.

As their Lordships are fond of reminding us: “Each case must be considered on its own particular facts.” Amen to that.

PRESUMED INNOCENT

At long last, like a difficult forceps birth, The 42 day detention measure has emerged, battered but intact after a close vote in the House of Commons, but only with the reluctant support of Northern Irish MPs and who, according to GB, were promised nothing in exchange for their acquiescence in this nakedly political gerrymandering. And in the fullness of time, the measure will be overturned by the House of Lords, beginning all over again this danse macabre.

The fallout, with the resignation of David Davis, the Shadow Home Secretary, has been impressive. Lots of political and legal opponents to this measure who should know better have misquoted the Magna Carta as the bastion of our civil liberties, and no doubt we’ll be treated to a learned dissertation from David “Don’t” Pannick in The Times next week, so that’s something to look forward to.

David Davis’s stand on principle is not just about 42 days, it’s about the creeping and insidious erosion of our civil liberties. He cites the proliferation of CCTV surveillance, phone and email intercepts, disclosure of the defendant’s previous convictions, and the inexorable growth of a Big Brother society. He may have a point, and I shall follow the debate with interest.

But back to the 42 days measure, which is qualified by so many caveats that it’s virtually unworkable, and is therefore unlikely to be invoked. However, as I said in an earlier article, when it comes to a perceived present and immediate threat to life and limb at the hands of terrorists, then the defence of the Realm is paramount, and if we have to keep suspects locked up indefinitely, it’s a price worth paying, and no argument about the presumption of innocence will persuade me to the contrary.

I also find it perverse logic that an innocent man or woman can be kept incarcerated between charge and trial, sometimes for months, on the direction of a judge, without any compensation for loss of liberty once he or she is acquitted. That, apparently, is deemed acceptable behaviour by an instrument of the State, but if the police want to do the same, suddenly it becomes an issue of Magna Carta proportions.

But this “problem” so worrying to the likes of David Davis can be easily resolved. Simply change the rule that a suspect cannot be further interrogated once he has been charged. So long as there is a reasonable suspicion that the suspect has committed the offence with which he is charged, and not some trumped up device to keep him in custody, then the problem of detention for up to 42 days disappears. Once charged, the suspect falls under the supervision of the courts, where his continuing detention can be regularly monitored and directions given. That surely is the way forward in a civilised society, and a proper balance between the liberty of the subject and the protection of the public.

MONEY FOR NOTHING AND THE CHEQUES FOR FREE

Are you as irritated as I am at the number of spam emails arriving in my inbox telling me that if I’ve been injured in the recent past, I may be entitled to compensation, and to get in touch without delay?

It’s all part and parcel of the compensation culture spreading like a rash and at an alarming rate. As evidence of such nonsense, there’s a commercial on independent television, possibly run by the same spammers, and introduced by a feisty woman posing as a legal expert, telling me much the same. In the States they are known as “ambulance chasers,” tracking down accident victims and throwing business cards at them like confetti at a wedding.

The commercial runs two cameo videos of accident ‘victims,’ who each received the princely sum of £7,500 by way of compensation, stretching credibility to breaking point. The first shows some twerp up a ladder, the ladder suddenly slides back in best Buster Keaton fashion, dumping him unceremoniously on the ground, and the second, some old fart who should have surrendered his licence years ago, tooling along behind the wheel of his car with his thoughts on anything and everything except the road ahead, colliding with another car. In both cases, it looks, even to the untutored eye, that there was no basis, in fact or in law, for any compensation, let alone £7,500.

My experience in personal injury cases tells me that insurers are far too ready to cave in to wholly unmeritorious claims, and if I were a loss adjustor watching those videos, I would burst out laughing, not just at the stupidity of the claimants, but also at their temerity in bringing their claims in the first place.

The insurers blame the high cost of litigation as one of the reasons for caving in so readily, and they may have a point, but an unmeritorious claim will be dismissed, together with their reasonable costs, so there are times when it’s worth standing up to be counted. The courts could, and should, do more to list these claims for trial more promptly, instead of the inordinate delays under the present regime. I had a case the other day where the accident happened over three years ago, and with the passage of time, memories, especially for detail, inevitably fade.

Caving in simply encourages lawyers posing as ambulance chasers to spam emails and front television commercials, for the sole purpose of hounding these timid insurers into paying out and, to add insult to injury, if you’ll forgive the pun, paying their costs as well.

And the corollary to this spineless approach is higher premiums for us, the insured, and in extreme cases, no insurance at all. It’s time for a more robust attitude and a large dose of common sense.

CHILD’S PLAY

The papers and media are full, once again, of more senseless fatal stabbings on the streets, and sadly, hardly a day goes by without more of the same. I listened with resignation to interviews with teenagers who freely admit to going out armed with knives for self protection, on the spurious basis that when it comes to a confrontation, those who confront them will also be armed with knives. And so we go round and round in a vicious cycle of mindless violence. Quite why these kids are ‘out’ in the first place escapes me completely. It may have something to do with their mindless and vacuous lives and ‘attitude,’ but these fatal stabbings are reaching epidemic proportions, and short of a lot of political hand wringing and clicking of teeth, nobody seems able or willing to address this malaise.

Boris Johnson, the new Mayor of London, has promised to put more bobbies on the beat, which, if this is not just empty rhetoric, is a significant step in the right direction. Come the New Jerusalem, and were I to become the Beloved Leader, I would have a pair of bobbies on every street corner, with instructions to stop and search everybody with ‘attitude.’ As I wrote in an earlier article [All aboard the Bandwagon], it’s not the deterrence of a five year sentence of detention or imprisonment that will stop those with ‘attitude’ from carrying knives, it’s the fear of being caught. And stopping and searching at random has another obvious benefit. Once word gets out on the street, even mindless and vacuous morons will think twice before ‘tooling up.’

But even as I write, my dream of a New Jerusalem has been shattered by some Johnnie Come Lately popping out of the woodwork, in no lesser a personage than the Children’s Commissioner! Now hands up all those who even knew of his existence, let alone his name and his function. I thought so! So let me enlighten you, having seen and heard him for all of twelve seconds on the news the other evening. I think his first name is ‘Al,’ he’s a knight of the realm, and aren’t they all, and I suspect he earns a six figure salary. And that’s it, that’s all I can tell you about good old ‘Al.’ Anyway, to cut a long story short, ‘Al’ had the brass neck to suggest that random stop and search measures might inflame the situation rather than resolve it. Give me strength! And before you know it, some “special interests” forum will complain to the High Court that this is in breach of human rights legislation, and on present form, there’s an odds on chance their lordships will agree.

So I have two suggestions of my own. Firstly, abolish the Human Rights Act. On any view, it’s a complete shambles and unworkable. Secondly, abolish the Children’s Commissioner, who’s no good to man or boy, save the taxpayer a small fortune and let’s get back to the good old days when we set our own domestic agenda, when the police were allowed to police without constant interference, and when judges were allowed to run their own courts without Strasbourg telling them what to say and do.