DAMNED IF YOU DO AND DAMNED IF YOU DON’T

Immigration laws in this country are a shambles, and if today’s report in The Times is anything to go by, are being made on the hoof. It’s also a classic case of “Damned if you do, Damned if you don’t,” and no government, regardless of its political hue, is going to get it right all of the time.

I refer to the High Court’s decision to grant Judicial Review of the government’s decision to change the rules regarding skilled migrants, and their right to stay. Under the old rules, skilled migrants earned ‘brownie points’ [hang on, is that a racist comment?] on an upward sliding scale, so that after five years of honest skilled toil, they could apply for permanent settlement. In November 2006 the government changed the way in which these ‘brownie points’ could be earned, and eighteen months later, a pressure group calling itself HSMP Forum, creepy, finally woke up to the possible iniquities of this change and made their challenge in the High Court. So here’s another enigma on a conundrum set to run and run. The government tweaks, and the High Court tweaks back.

In the perception of the great British public, or at least those who can trace their ancestry back to the Second World War, immigration is a dirty word, coloured in black and white [hand on, is that another racist comment?] and never in shades of grey. If Johnnie Foreigners want to come here, then they come here on our terms, and not theirs, which, depending on your perception, is either right or wrong. If they are skilled, preferably white, speak good English, do not interfere with our women, are not a burden on the State, and behave themselves by going to the back of the queue and are at all times deferential, then they are grudgingly welcomed. But if they are coloured [oops!] have no skills, have funny foreign names, sport bushy beards, shout the odds five times a day from minarets, and want to blow us all up, they are definitely not welcomed, and shouldn’t be here in the first place.

To a fair minded society, these stereotypes do nothing but exacerbate racial tensions and distrust, but reconciling fears, real or imagined, in the perception of the great British public, is “camel through eye of needle” stuff, if you’ll forgive the pun.

I have some sympathy with the government in this latest challenge to its right to govern, simply because the thorny question of immigration to the greater glory of the nation is incapable of resolution, either short or long term. By its very definition, immigration policy has to be built on shifting sands, as the problem never stands still long enough for any sensible solution to be formulated and implemented and, at the same time, to pass the High Court test of ‘perceived’ fairness.

But where the government consistently scores ‘own goals’ is in the implementation of immigration rules. The great British public needs to be reassured that where foreigners, regardless of colour, creed or political persuasion, are here unlawfully, they should be expelled, as they are in any other civilised country. These endless appeals, and then appeals on appeals, which on average take as long as eight years, need to be addressed as a matter of urgency. And ‘urgency’ should be the buzzword. Perhaps then, the courts will get behind the government and help, rather than hinder.

THE INDEPENDENCE OF THE PAROLE BOARD

In these days of “if you can’t hang them, lock them up and throw away the key” approach to sentencing, more and more convicted criminals are finding themselves on the receiving end of indeterminate and discretionary life sentences. The most popular, and bobbing to the surface with monotonous regularity, is the sentence of imprisonment for the protection of the public, known as IPP. Whatever the rhyme and reason behind these sentences, it means that greater responsibility than ever is falling on the slender shoulders of the Parole Board.

For those of us specialising in the field of Prison Law, and who find ourselves appearing regularly before the Parole Board, the recent judgment in the case of Brooke & Anor (on the application of) v Parole Board & Anor [2007] EWHC 2036 (Admin) makes for instructive reading.

The judgment itself, delivered by Lord Justice Hughes, arose out of consolidated applications for Judicial Review of the Parole Board’s decisions affecting four claimants. One of the central issues raised, and addressed in the judgment, was the independence of the Parole Board. That issue was summarised by Lord Justice Hughes in the following terms:

“These applications are founded on the argument that upon examination, the Parole Board proves not sufficiently to enjoy the independence which is the essential hallmark of a court. It should be recorded immediately that nobody questions the independence of mind of the members of the Board. Nor does anyone suggest that in any single individual case any improper attempt has been made to influence its decision [my emphasis].” He continues: “What however is suggested is that the structure of the Board, and the way it is controlled by the Secretary of State, are such as it give it insufficient and real independence from the Executive.”

His lordship, ever mindful of the requirement of the transparency and fairness tests in English common law as well as the European Convention on Human Rights, concludes that the structure of the Board and its working relationship with the Executive fail these tests on both counts.

In reaching this conclusion, his lordship identifies three areas of concern affecting the independence of the Board:

1. Its members are appointed, funded and sponsored by the Home Office;
2. There is no security of tenure;
3. The Home Office is a party to the proceedings, and the Court of last Resort.

We are reminded that the Parole Board was a creature of Statute, namely the Criminal Justice Act 1967, and its status was, and remains, an advisory body to the Home Secretary (now the Secretary of State for Justice).

These concerns should not be lightly dismissed, but should be put into context. In my experience, oral hearings are conducted fairly and impartially. The prisoner applicant is given every opportunity to make representations, and is entitled to have present any and all relevant parties to the decision making process. Again, in my experience, these hearings meet the transparency and fairness tests without exception.

The decisions of the Board are given in writing within seven days of the hearing, and are invariably detailed and well reasoned. The findings and recommendations of the Board may not be well received in each individual case, but that, with respect, is beside the point.

Most important of all, and thanks to this transparency, the disgruntled prisoner can apply for judicial review, and assuming leave is granted, can challenge the decision of the Board.

Adopting that well know maxim attributed to Sam Mayer: “If it ain’t broke, don’t fix it,” I believe the system works well, and the concerns adumbrated by Lord Justice Hughes are misconceived.

LONDON BUSES

After a quiet week at the coalface, suddenly it’s London buses time, so much to tell you, so little space!

First off, and as previously trawled in earlier articles, Frances Gibb, the esteemed editor of Times Law, seems to be firmly back in the saddle again. And as icing on the cake, she’s actually made it onto Page 8 in today’s edition. Fame at last!

That said, her article is a bit ‘old hat.’ Not her fault, but she reports that the Lord Chief Justice, who when elevated to the peerage, chose one of the silliest nomenclatures ever entered in the Book of Heraldry, and straight from the pages of Brideshead Revisited, viz Lord Worth Matravers, has been beating the same sentencing drum featured in one of my earlier articles, and not a word of thanks do I get! Anyway, read the article for yourself, and tell me if he’s breaking new ground. The sad reality is that nobody in a position to do something about it is listening, and if these words of wisdom from Matravers are falling on deaf ears, what hope for the rest of us?

Next, I would be failing in my duty if I didn’t draw your attention to the recent decision of the Court of Appeal that English courts should construe contracts of insurance and reinsurance to give effect to the intention of the parties to cover environment damage, unless there were clear indications to the contrary, which is good news indeed! zzzzzzzz!!

Finally, I note a link at the end of FG’s article to timesonline.co.uk/law entitled “Read about the strangest cases known to law.” So I went online, and sad to report, I found absolutely nothing. Worse still for the fragrant FG, absolutely nothing about her! Law is not even mentioned under the list of editorial contacts, and when I searched her name, I got an error message.

But to spare you the same fruitless search, and if it’s strange you want, here’s a short quiz:

Who was the barrister who made legal history when he delivered his final speech to the jury entirely in verse?

Who was the barrister who called an Amazonian Blue Parrot from the grave to give evidence in a case of wanton pollycide? Let me give you a clue. Buy your copy of Toby Potts in the Temple of Gloom from Amazon.co.uk and turn to Chapter Five.

ALL ABOARD THE BANDWAGON

I read with a fatalistic air of resignation the lead story in The Times today, where somebody calling himself Bernard Hogan-Howe, I kid you not, and claiming to be the Chief Constable of Merseyside, was complaining about lenient sentences handed out by the courts to those convicted of possession of a firearm.

The thrust of Bernie’s complaint was that the mandatory five year sentence for the offence was not being uniformly imposed around the country, and by inference, Merseyside was no exception.

I have never been a fan of deterrent sentences, on the simple basis that they don’t work. Equally, I deplore attempts by politicians and the Bernies of this world to highjack the sentencing process. This should remain the preserve of the judiciary, without unwelcome and uninformed intervention from those pursuing their own agenda, and David Davis, the Shadow Home Secretary, does himself and his Party no credit whatsoever by climbing onto Bernie’s bandwagon.

Many years ago, I remember attending a debate on the restoration of the death penalty. It was a meaningless exercise, as battle lines were drawn up well in advance. The most memorable crass comment of the night was the remark that “if you hang them, they won’t do it again.”

The criminal element of our society who arm themselves with guns don’t read or write, so they don’t know anything about mandatory minimum sentences, and they don’t give a rat’s crap about Bernie or David Davis, assuming they’ve heard of them in the first place, which they haven’t, and they’re not alone. Of course, even their limited thought processes will tell them it’s wrong to carry a gun, worse still to fire it, but when they go out armed and looking for trouble, they don’t assume they’ll be caught.

It’s a fair assumption, as Bernie’s team in Merseyside have yet to make a significant arrest following the fatal shooting of 11 year old Rhys Jones last year, so what sort of a message does that send out to the gun toting criminal classes of Merseyside? Bernie should get his priorities right, get on with his job, and stop trying to shift the blame onto the judiciary for his own shortcomings.

Addendum: Excitement mounts to fever pitch. The fragrant and elusive Frances Gibb, the editor of Law Times, has re-emerged from Purdah and put her name to an article on Family Justice. I confess I dozed off after the second paragraph, but good to see her back in the saddle again. When I shook myself out of my bucolic torpor, my eye caught the advertisement on the same page for a commercial High Court Judge in Saint Lucia. I could almost feel the gentle breeze wafting through the Casuarina trees, the bare chested maidens carrying me shoulder high through the crashing surf, and a thundering great rum punch to greet me upon my arrival. Then I looked at the salary on offer in return for a considerable workload, and my thoughts returned to the day job, my dreams shattered. Never mind, there’s always tomorrow, and hope springs eternal!

MACCA v MUCCA

Inevitably, there has been a lot of comment in the media following the publication of the divorce settlement in the case of McCartney v Mills, and without exception, Ms. Mills has been on a hiding to nothing.

For those contemplating a wholesale raid on their spouses’ assets when love, and reason, fly out the window, there are a number of important lessons to be learned. For Ms. Mills, it’s too late, and besides, in her case these lessons were not there for the learning.

1. Instruct learned counsel. I’m not in the business of drumming up business for myself or my colleagues, but a reading of the judgment highlights the dangers of “DIY” advocacy. Whether or not Ms. Mills would have obtained a significantly larger share of the McCartney millions if she had had, and listened to, the advice of counsel, is a matter of debate, but of one thing I am sure. She certainly would have been spared the ridicule and disapprobation levelled at her for her unfounded and grossly exaggerated claims.

2. Strip the emotion from the equation. It’s difficult, sometimes impossible, to strip the emotion from the equation, especially where the aggrieved party feels wronged, but in almost every case, the court ignores behaviour as a relevant and aggravating feature, and the McCartney/Mills dispute was no exception. In reality, it’s an actuarial exercise, taking the assets of the two parties and deciding on an equable division by using a number of pre-determined tick boxes.

3. Don’t make claims you cannot support. Ms. Mills made a number of extravagant claims about her lifestyle and earnings before marriage, in an attempt to show how those earnings had been adversely affected during the currency of the marriage. She was asked repeatedly to support these claims with documentary evidence. For the most part she failed to do so, and where she did, the relevant documents simply exposed the specious nature of her claims. In so doing, it made her look ridiculous.

4. Don’t be too greedy. Of course, when dealing with the assets of the husband in the region of £400 million, it’s tempting to think Christmas has come early by several months, and to bury your snout in the trough. But if the claims bear no relationship to the eventual award, then you risk a bitter disappointment, and in the case of Ms. Mills, accusations of greed. I find it curious in the extreme that she was apparently satisfied with the outcome, given that her starting point was £120 million, and the settlement imposed was barely one fifth of this sum.

5. Accept the settlement with good grace, even if you have to do so through gritted teeth. When Ms. Mills doused her husband’s lawyer with water at the end of the proceedings, it was regarded by one and all as an “own goal” of monumental proportions, the media had a field day, and it simply confirmed the public perception that she lacked judgment.

On a more positive note, and if this judgment stands, there are signs, albeit small, that the courts are rowing back from the high water mark established last year when obscene sums of money were being settled on departing wives which bore little relationship to their needs or deserts. And just as importantly, it seems as if prenuptial agreements may, at last, find favour when the marital edifice comes tumbling down.