BOTTOMS UP!

The High Court decision in favour of Max Mosley, and the award of £60,000 damages, comes as no surprise, but leaves me cold. Like many others, I followed the court proceedings, as no doubt did Mr. Mosley, sitting gingerly throughout on a soft cushion before emerging, smug and triumphant, on the court steps. On any view, a sickening sight.

At the heart of the case was the Human Rights Act 1998, a misconceived piece of legislation if ever there was, unleashing the European Convention on Human Rights into the due legal process. Suddenly, overnight, everybody had a drum to beat, and the noise was deafening. Adopting Clint Eastwood’s memorable quip in Dirty Harry: “Opinions are like assholes, everybody’s got one!”

It comes down to the conflict, real or imagined, between Articles 8 and 10, the right to respect for private life against freedom of expression.

Let’s examine the facts. Max Mosley, the Dirty Old Man of Formula One and a public figure of some prominence in the motor racing world, had been indulging in sadomasochistic ‘games’ for as long as he could remember with a variety of femmes fatales in the privacy of his own basement, and you can’t get much lower than that. But according to the News of the World, what made these sessions particularly offensive, and therefore newsworthy, were the Nazi overtones, barked commands in German and the frequent use of the word “Aryan.”

Mr.Justice Eady, in his wisdom, decided that the combination of these factors did not mock the victims of the Holocaust, which is an extraordinarily narrow and blinkered approach, and certainly doesn’t persuade me. I have consulted two dictionaries, Webster’s New World and the Oxford Concise, to research the meaning of “Aryan,” and both contain this definition: “(in Nazi ideology) a Caucasian not of Jewish descent.”

But whilst the News of the World justified its publication of Max’s sad sexual peccadilloes on the Nazi connection, I would go further and ask, rhetorically, why the private lives of the great and good should not be in the public domain? By their very prominence and positions of authority and public standing, aren’t we entitled to peep behind the curtain? If I were an F1 investor, surely I am entitled to know about the man running the show, warts and all. And surely the public and private persona are inextricably entwined? It tells us something about the man who seeks election to high office. It may not disqualify him, but at least we have the choice to vote for him or not. And the same applies to candidates for the leadership of the Liberal Democratic Party, or an incumbent Prime Minister having sexual intercourse with one of his ministers [female] in a lift, or a bulimic politician cavorting with his secretary.

Public figures in all walks of life place themselves above the common herd. They are better than us, better qualified to hold the high office to which they aspire. And whether they like it or not, we the public assume they are fit to serve, and above all, that they are honourable. And if they are found wanting by even the most modest standards of our morally lax society, it is in the public interest for us to know. For my part, Max and his fellow camp followers are fair game, and to trouser £60,000 simply sticks in the craw.

I hope the News of the World has the courage to appeal this questionable judgment and to continue the fight for freedom of expression. That freedom is under threat as never before, and needs to be defended without fear or favour.

I NO ME RITES

It’s enough to make strong men weep! I refer to reports on the topic of knife crime, now filling almost every page of the tabloids, and if nothing else, we’re not short of advice.

But what makes me weep is the response to the tentative suggestion that airport style metal detectors might be installed in schools to catch pupils carrying knives or other offensive weapons. The response is that this might be in breach of their human rights!!!!!!!!!! Even as I write, lawyers of indeterminate provenance are waiting in the wings, and might well be retained, on legal aid of course, by the loving and caring single parents of these pupils, no doubt to accompany them to the school gates and serve a writ on the unsuspecting headmaster [or should that be headteacher?]

Presumably, these are the same pupils who score extra marks in the SAT exams for spelling “f**k off!” correctly, and can, if the mood takes them, stab to death the headteacher at the school gates. How short are the memories of these misguided fools!

But what about the human rights of the teaching staff, or the law abiding pupils who risk injury, and worse still, death, if they “give the wrong look” in the playground? More like a war zone!

The sad truth is that we’ve lost a whole generation through the breakdown of the family unit, the irrelevance of the Anglican Church as a force for good, and the obdurate refusal of this and previous governments to tackle the appalling state of comprehensive education, where pupils can barely spell their own name [they get extra marks in their SATs if they can], let alone read and write fluently. So until the New Jerusalem, we have no option but to use the “sticking plaster” approach. But a sticking plaster is better than nothing, so my advice to these schools is to hold fast and tell the lawyers what they can do with their writs. Better still, invite them to spend a day at school. It’s a very sharp learning curve, but if it helps common sense to prevail, it’s a day well spent.

HAVE A GO? NO!

The question of “having a go” when you confront an intruder on your property has raised its ugly head again, and speaking for myself, I am none the wiser.

This “hot potato” has been sizzling away for the best part of twelve months, with the government encouraging us to be firm but fair, and the law enforcement agencies uncertain, as always, on how best to proceed. The nub of the debate centres round the degree of force that a homeowner can lawfully take, either to defend himself or effect a citizen’s arrest.

In America, the law is pretty straightforward. You trespass at your peril. The degree of force used is irrelevant, and the homeowner is perfectly within his rights to shoot you dead. And if you’re black, you’ll probably get a mayoral commendation as well, unless the mayor is black, in which case you may have questions to answer. The system may be brutal, but everybody knows where they stand. But here in Blighty, the law is far from clear, as Tony Martin would tell you. If you despatch a burglar to Neverland, you risk having to jump through the hoops to prove you used reasonable force, and chances are, the police will refer the matter to the CPS, and it rapidly descends into farce. One example will suffice.

The other day, I was offered the chance to “moonlight” for the CPS, acting as their agent in a relatively uncomplicated case of two drunks refusing to leave a nightclub when asked to do so. A confrontation ensued, the police were called, and the two drunks were charged with a public order offence. So far, so good.

When I arrived at court, the solicitor acting for the two drunks informed me that he had negotiated with the ‘reviewing lawyer’ an acceptable plea to a lesser charge, and was ready to proceed to sentence. In my naïvety, I immediately accepted the word of a professional colleague, but the court clerk entered a note of caution. Despite my thirty four years in practice, as I was an agent for the CPS, problems could arise if I had not checked back with the reviewing lawyer, so I was given access to a phone for this purpose, whilst the three justices drank copious cups of coffee and tackled The Times crossword.

It transpired that the reviewing lawyer was on maternity leave, working only two days a week, and couldn’t be disturbed at home. In her absence, nobody at HQ was in a position to make a decision, as nobody knew anything about the case. I was told to consult the CPS lawyer in an adjoining court, as he outranked me, so he had to leave his busy caseload and the sitting justices whilst he read the papers, made several phone calls, and awaited a decision. Eventually, a decision was made to accept the pleas offered and accepted by the absent lawyer, and we duly proceeded to sentence.

Two hours of court time were wasted. I am told that it costs the taxpayer £8000 a day to run a crown court, so work out for yourselves how much it cost to make a relatively simple decision.

Back to burglary and self defence. Unlike the American system, you risk prosecution, conviction and a lengthy prison sentence, as Tony Martin would tell you, if you overstep the mark. And where is that mark? Nobody seems to know, least of all the police and the CPS. Nobody seems to want to make a decision, and sadly, that applies to the new breed of judges as well. If you’ve had a go, odds on your fate will be in the hands of a jury, and there’s no guarantee you’ll leave court a free man.

So my advice, when confronting an intruder, is to barricade yourself into your bedroom, phone the police, tell them you’re a reviewing lawyer for the CPS, and with any luck, the boys in blue will turn up within the hour. But don’t hold your breath!

FALSE MEMORY SYNDROME

Memory and the Law is a report, just published by the British Psychological Society, retreading a well worn path that was made public many years ago by American researchers into the same topic, and which they labelled False Memory Syndrome. In this regard, the British research is hardly breaking new ground.

American researchers, when analysing the findings of professional consultants into clinically depressed and psychiatrically disturbed patients, found an alarming correlation between “auto-suggestion” and “unsubstantiated” allegations of abuse. In short, these patients believed they had been abused at one time or another in the dim and distant past, usually within the family circle, or sometimes within the wider circle of school, to explain their depression or mental illness, and even when it was pointed out to them that the alleged abuse could not have happened, they remained adamant that it had.

Not so long ago, there was a raft of prosecutions relating to the physical and sexual abuse of boys at approved schools in England and Wales going back to the fifties and sixties, and I was involved as defence counsel in some of them. Time and again, submissions that the trial should not proceed on the basis that the accused could not receive a fair trial fell on deaf ears, both at the court of trial and the Court of Appeal. The “reasoning” of these courts had a familiar theme to it, namely that an accused was entitled to an acquittal if the jury were not sure of guilt, that the trial judge was eminently well placed to ensure a fair trial, and that the delay, and the difficulties attendant upon it, was but “one factor” to be considered in the overall picture. All this, of course, is arrant nonsense when looked at in the round, and even a cursory examination gives the lie to this simplistic approach. It does the criminal justice system no credit whatsoever to pretend otherwise.

Imagine if you were living in Poland during the war, minding your own business and trying to survive, and then, fifty years later, somebody stood up, pointed an accusing finger at you, and swore on oath that you were a concentration camp guard working for the Nazis, and in that capacity, had perpetrated acts of unspeakable evil. And what is your defence? It is unlikely in the extreme, so long ago, that you can remember what you were doing on any given day when you were allegedly abusing prisoners, so your chances of calling witnesses by way of alibi are zero. And therein lies the injustice, because it places the onus on the accused to prove his innocence, and if his defence is that it didn’t happen, that’s no defence at all.

I am aware of comments made by Professor Gary Slapper, a professor of law at the Open University [The Times 11th July], supporting the present system. He states, and I quote: “The criminal justice system already has many good protections against unfair convictions!” I doubt if he has ever set foot in a criminal court of law, let alone practised at the coalface. If he had, he wouldn’t be making such an asinine comment, and his students are the poorer for this blinkered approach.

The immediate remedy for this patent injustice against those facing serious allegations brought many years later is to apply a period of limitation, in much the same way as applies to civil actions, where the limitation period is between three and six years. There are circumstances where judicial discretion allows a claim to proceed outside the limitation period, and I have no objections, in rare and extreme cases, for such discretion to be applied to criminal proceedings. But when it comes to deciding if the accused can receive a fair trial, it should be for the prosecution to prove, beyond a reasonable doubt, that he can, and not, as is the present case, for the accused to prove that he can’t.

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!