QUIS CUSTODIES CUSTODIET?

I suspect the government are getting heartily fed up with the High Court, and all these judges muscling in on their territory. First we had Lord Justice Moses, he of wicker basket and Red Sea fame, lambasting HMG over their failure to act in the alleged corruption scandal surrounding BAe systems and the Kingdom of Saudi Arabia, and barely had we had time to digest the enormity of their criticisms when up pops another adverse judgment, this time at the hands of Mr. Justice Collins. He ruled that it was in breach of their human rights for service personnel to be sent into a theatre of conflict without being properly equipped. Quite who decides what is proper or not is debatable, but from the inference to be drawn, presumably the High Court. Is there no end to their talents?

Sandwiched between these judgments was another one, this time preventing the extradition of Abu Hamza to the United States, on the spurious assumption that the various American law enforcement agencies might give him a good spanking as soon as they lay hands on the poisonous cleric.

The extent to which the judiciary should act as a bulwark against the abuse, real or imagined, of executive power, has been a lively topic of debate since time began. Seen in black and white, citizens in a civilised democracy, where the division of the two estates still exists, are entitled to know that their elected representatives will act in their best interests and not abuse the power given to them at the ballot box. If their government is transparent, they can see and decide for themselves. If they don’t like what they see, they elect a new government. However, governments by their very nature rarely act in black and white, it’s always shades of grey. We all know that aspiring politicians, as soon as they’re elected, have the words “yes” and “no” surgically removed from their vocabulary, but it doesn’t make them corrupt or abusive, only boring.

Which brings me back to the recent spate of High Court judgments. Speaking as a citizen and not as a human rights lawyer, I’m delighted that we’re in bed with the Saudis as a partner in the intelligence war against al-Queda and their camp followers. I’m delighted that the Secret Services plant illegal listening devices to eavesdrop on the likes of Abu Hamza and others of his nihilistic persuasion, and if the price to pay is turning a blind eye, then it’s a price well worth paying!

As to the human rights of serving personnel, it won’t be long before some High Court judge rules that it’s a breach of their human rights to be shot at by the enemy! Leave the government to govern as best they can without having to look over their shoulder all the time for fear of some High Court judge jumping on their back! The division of the two estates is becoming increasingly blurred, and unless addressed as a matter of urgency, it will be the High Court and the judicial process that will lose credibility and respect.

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!