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!

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.