TOP OF THE POPS

It’s been a rag bag sort of week on the law and order front, so I’m struggling to add to your store of knowledge on matters of great import.

Let me take a moment to ventilate one of my bêtes noires. Have you noticed how many people, and some who are otherwise quite articulate, use the expression “you know” almost all the time in conversation? And does it irritate you as much as it irritates me? I mean, if “I know,” then why tell me? And if I don’t, then why make an assumption on a false premise? I am told by my nearest and dearest that I’m overreacting, and to go with the flow. So I will.

So back to the plot. I read recent reports that the judiciary are, you know, on a collision course with the government, yet again, over “terror” legislation, and specifically, executive powers to freeze bank accounts, stop paying benefits and, you know, control the spending of people designated as terror suspects. The thorn in their side is the ubiquitous Mr. Justice Collins, yes him again, who is expected to deliver an adverse ruling on Thursday, with the government threatening to, you know, rewrite relevant
sections of the Counter Terrorism Bill, so deux doigts to the learned judge. I suggest a re-reading of my recent article Quis Custodies Custodiet before battle lines are hardened and, you know, positions become polarised. Nobody wins in this clash of the Titans.

Frances Gibb, Legal Editor of The Times, is back from the dead, and suddenly all over us like a rash. Her latest offering in the Law Times, co-authored with Alex Spence, is to compile a list of the top 100 most powerful and influential lawyers in Britain. I think she means Top Judges and Lawyers, as topping the list is Lord Bingham of Cornhill, or ‘Tom’ to our impish scribe, who has been a judge for the past twenty eight years. Now I have the highest regard for ‘Tom’, which will come as no surprise as I climb the
greasy pole to fame and fortune, but check out his photo! No disrespect intended, but he looks as if he’s on an away day from the twilight home for the bewildered.

Surprisingly, to some at least, no room in the Top 10 for Mr. Justice Collins!The biops for some of the entrants in the Top 10 make for interesting and colourful reading. Lord Carlile at Number 7 is noted for successfully defending Paul Burrell on charges of dishonesty. Now wasn’t he the same Paul Burrell who was a witness at the recent Diana/Dodi circus? The worm turns! The entrant at Number 10, whom I confess I’ve never heard of, is described as “a ruthless rottweiler.” Not very flattering for him or rottweilers, you may think.

Sadly, and a glaring omission, is my absence from the Top 10, and proof, if proof be needed, that these surveys are not worth the paper they’re written on, especially as one of the judging panel boasts the unlikely name of Gary Slapper.

Finally, we are enjoined to go online, a fruitless exercise if ever there was, to discover the identities of the remaining ninety. I wonder how many of my aspiring colleagues, judges and lawyers alike, have taken the plunge. For my part, if I’m not in the Top 10, then it’s not worth the candle, but I’d love to know, you know, who scrapes in at Number 100. Still, to paraphrase Oscar Wilde, there’s only one thing worse than bad publicity, and that’s no publicity.

HEALTH AND SAFETY GONE MAD

Just when I thought it was safe to go back into the water, along comes another piece of useless legislation to disturb my Karma, and to prove, if proof be needed, that this government is legislating simply for the sake of it.

I refer, of course, to the Corporate Manslaughter and Corporate Homicide Act, a snappy title if ever there was, which came into force last week. I am told by the authors of this new Act that it makes it easier to prosecute organisations, predominantly charities, for negligently causing death without the need to find any particular individual at fault. In the region of 18,000 incorporated charities could be affected. Lord give me strength!

Since 1974, we have “benefited” from health and safety legislation which now affects every aspect of our daily lives. Some of it is obvious common sense, and some complete rubbish.

We’ve all read examples in the past of health and safety gone mad, and for my part, I didn’t know whether to laugh or cry. Remember the local authority that felled an avenue of beautiful and perfectly healthy horse chestnut trees, on the off chance that a child might run out into the road to collect conkers? Then there was the local authority that removed all its hanging baskets, just in case one fell and injured a passer by. And another that removed all its playground equipment? And the little old lady who was in the habit of planting a nearby roundabout with flowers, and had been doing so for thirty years, only to be told she must wear a hard hat and erect road signs warning approaching motorists. Then there was the children’s entertainer who was prevented from blowing bubbles as part of his act, as he couldn’t get insurance. The list is endless, and I’m sure you’ve all got your favourites.

As the Master of the Rolls once remarked, and I paraphrase, where is our spirit of adventure? It’s being snuffed out, full stop! A legal expert on the subject gives this advice to charities organising fund raising events:

“Make sure you have all the correct training, equipment and safety policies in place to cover any event you organise.”

Charities, more than any other organisations, raise millions of pounds each year for worthy causes, and thrills and spills are part and parcel of their fund raising activities. Two consequences could flow from this wretched legislation:

The cost of organising the fund raising event, to cover every possible exigency, could exceed the funds raised, so it won’t be worth doing it in the first place;

Those worthy causes, not funded by government, would lose out big time, and either the government would have to pick up the tab, which they won’t, or the charity folds.

One example known to me personally will suffice to highlight the plight of those benefiting from charitable donations, and who may be at risk with this asinine legislation. The St. Margaret’s Somerset Hospice has an annual bill of £3 million to service all their life and death enhancing activities. £2 million has to be found from donations. There are just so many tea and cucumber sandwich events they can host before they reach the point of diminishing returns and the donations dry up. And besides, what happens if
somebody chokes to death on one of their cucumber sandwiches? It doesn’t bear thinking about.

HE LOVES ME HE LOVES ME NOT

Domestic violence is despicable, we can all agree on that. It is violence invariably perpetrated by the husband on the wife in an unhappy and fragile relationship, where the wife has little or no chance of defending herself. It is invariably perpetrated within the family home, and often in front of the children, which makes it all the more despicable. It is almost always fuelled by alcohol and pig ignorance.

No less a luminary than Sir Mark Potter, President of the Family Division of the High Court, is concerned at the dramatic drop in the number of complaints from battered wives since the advent of the Domestic Violence Act 2007, which brought criminal sanctions into what was formerly the preserve of the civil jurisdiction. He wonders why. Really?

Time and again in my professional practice, I encounter battered wives, many of whom have sustained serious injuries, who are unwilling to support a prosecution, be it criminal or civil, and amazingly, they take these pig ignorant and alcohol fuelled husbands back into the family fold, and so the vicious cycle begins again. The Police get fed up with having to act as peacemakers when they should have better things to do, and the CPS and the courts get thoroughly exasperated, not least by the waste of public time and money.

The battered wife has very few options available to her. A small number decide to end the relationship, and with their help, the violent husband can be removed from the scene long enough to give the wife a chance to rebuild her life. But with the pig ignorant husband seething with resentment and ready to settle the score as soon as he is released, even a change of location well away from her former life, perhaps even a change of name, may not be enough to save the wife, and few indeed can simply pick up
sticks and move away. These wives will be spending the rest of their lives looking over their shoulder, and that’s no way to live.

So most of these sad victims resign themselves to the fact that they will never be rid of their violent partners. They delude themselves into believing, or at least hoping, that their violent husbands will see the light and turn over a new leaf, and whilst waiting for a conversion of damascene proportions, they prepare themselves for more of the same.

The Domestic Violence Act, whilst well intentioned, was set up to fail, and it doesn’t take rocket science, or meetings with the Justice Secretary or surveys amongst the lower judiciary, to tell us what we all knew in the first place.

Criminal sanctions and imprisonment are not the answer. At the risk of overburdening the already overburdened probation service, these violent husbands need counselling. There are excellent courses available on anger management and alcohol awareness, to name but two, which should be compulsory. These, coupled with injunctions available within the civil jurisdiction to exclude the husband from the matrimonial home until he has passed the various courses, summa cum laude, are the best way forward
in tackling a distressing and seemingly intractable problem.

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.