GIVE A DOG A BAD NAME

The Rehabilitation of Offenders Act hit the Statute books as long ago as 1974, and briefly as it turned out, it heralded a new dawn of sorts.  The Act was devised to ‘pardon’ criminals who had been convicted of relatively minor offences many years ago so that they could start afresh with a clean sheet.

Unfortunately, there were so many caveats built into the system that in many cases, the Act was meaningless.  These caveats included the seriousness of the crime and therefore the length of time during which the conviction remained ‘unspent’, and the nature of the offence itself and the extent to which it might impact on future employment.  This is relevant when the ‘spent’ criminal is applying for employment in sensitive areas such as working with children or vunerable adults.

For the most part, judges in the criminal courts ignored the Act on the ground that once a criminal always a criminal, and the offender’s rehabilitation was irrrelevant.  Those were what some called ‘the good old days’.

The Supreme Court has revisited the Act, with campaigners baying at the door.  It seems to go with the territory, there seems to be a campaign for almost everything, fronted by spokespersons of dubious provenance who bob to the surface from time to time and shout the odds like so many fishwives.

Two were in evidence to assist the Supreme Court; Unlock, a charity for people with convictions, and Just for Kids Law, the same but with a different nomenclature.  Whether they assisted the court or not is a matter of speculation.

Lord Sumption, a judge who needs no assistance, gave the lead judgment, and without going into the minutiae, ruled that the way some criminal records are disclosed is disproportionate and infringes human rights.  [If in doubt, wave the ‘human rights’ flag.]

Lord Sumption was considering individual cases, and therefore not painting with a broad brush, and for all purposes, the Act remains unchanged.  What it means, as did the Act back in 1974, is that each case must be decided on its own particular facts, otherwise known as a cop out.  The argument goes on, and it will be for individual judges to balance the interests of society with those of the miscreant, whose interests wouldn’t have to be balanced if he (she) hadn’t committed the crime in the first place.

The final word goes to the Chief Executive of JfKL, who bleated: “The government should now conduct a wide-ranging review of the entire criminal records disclosure regime for children and young people.”

Yeah, and if pigs could fly!

ANOTHER BRICK IN THE WALL

Some of you may remember Pink Floyd’s infamous song Another brick in the wall, which sold millions of copies and, intentionally or otherwise, rubbished formal education. A visit to the lyrics reminds me of one line in particular: “Hey, teacher, leave us kids alone.”

Against this background, I read the report of a ‘dinner’ lady at a state primary school who rescued Chloe, a 7 year old girl who had been tied up and whipped across the legs by four boys in the playground. Although the incident was entered into the accident book, there was no mention of whipping, it was not reported to the girl’s parents and the boys went unpunished. No surprises there!

Shortly after the incident, the dinner lady saw the girl’s mother, who was obviously in the dark, and reported the incident to her. When the school found out, the dinner lady was immediately suspended, and subsequently dismissed for breaching “pupil confidentiality.” Don’t laugh, it’s too serious for that.

But it gets worse. When the incident became public knowledge, the school issued a statement:

“We can confirm that, subject to an appeal, the dinner lady will not be returning to work.” And now we descend into farce. “The school’s priority remains providing the best possible education to all of our pupils and ensuring their development and wellbeing. We will continue to deliver this on a daily basis.” Complete, arrant and unmitigated nonsense! Thank Zeus that the dinner lady is suing the school for wrongful dismissal, and if she doesn’t win her case, I’ll eat my wig!

I remember, many years ago, representing a primary school teacher, and in the course of the trial, the Head Mistress, who obviously sucked lemons for a living, produced a copy of the rule book with the dimensions of a telephone directory. No wonder teachers don’t have time to teach, they’re in meetings, digesting the latest set of rules, and government targets, and when to wear riot gear, instead of supervising breaks in the playground. Where was the supervising teacher when this incident was taking place?

I asked the Head Mistress, in a spirit of enquiry, when it would be appropriate for a teacher to touch a pupil. Never, came the curt reply. I pressed on. What happens if a pupil is seriously injured? Answer: the supervising teacher must call for the teacher designated as the ‘first aider’. Can the ‘first aider’ touch the injured pupil? No. What happens if the pupil is bleeding to death? We call an ambulance.

This disgraceful incident follows hard on the heels of the latest government initiative to ‘vet’ everybody who may come into contact with children. And the result? One of this country’s most popular authors of children’s books, who used to visit schools regularly to read stories to them, has been banned from doing so until he has been vetted. And today I read of two mothers, both close friends and work colleagues, who have been banned from looking after each other’s toddlers, an arrangement they reached to allow both of them to return to part time work.

Somewhere down the line, there must come a point where adults can interact with children in the hope that they are not branded as closet paedophiles. And what of the children, for whom all these ludicrous rules and regulations are intended to protect? What price the age of innocence, when children as young as toddlers are taught to distrust adults in all shapes and sizes?

It’s a classic case of throwing out the baby with the bath water. Far better to use the bath water to drown the idiots responsible for these ludicrous rules and regulations, and give our children a better life.

LITTLE CHILDREN

Against my better judgment, my daughter persuaded me to watch a film entitled Little Children the other night. It starred the morose Kate Winslett, bucking for another Oscar and rapidly turning into the poor man’s Meryl Streep, together with an utterly forgettable supporting cast.

Basically, it’s a film set in Little Town America, where prejudices are as hard as granite, and into their midst is released a paedophile convicted of indecent exposure towards a minor, so hardly the crime of the century. LTA is on red alert, exacerbated by a self styled vigilante, who patrols the streets handing out leaflets and shouting from the rooftops. The film ends with the paedophile’s mother dying whilst trying to protect him from this concerted campaign of vilification, and he committing a gross act of self mutilation in the town park. All very gory and not suitable for family viewing.

I suppose the author’s message was that the paedophile was never given a chance to integrate into life in LTA, and was persecuted out of all proportion to his crime and the threat he might have posed. The oxygen of publicity all but suffocated him.

Which brings me seamlessly on to the modest reforms announced by the Ministry of Justice last year, and due to come into effect on the 27th April. In short, family courts are to be opened to the public, and by that, I mean the media, as the public, for the most part, are not remotely interested in watching dirty linen being washed in the full glare of publicity. But the ‘crusaders’ in favour of open courts have been told that judges will have the right to prevent reporting in certain cases, and to exclude the public and the media if they deem it necessary in the interests of justice.

The Times newspaper was at the forefront of this crusade, giving an inordinate amount of coverage to the views of one Camilla Cavendish, about whom I know nothing. The received wisdom from The Times commentators is that these reforms are likely to be still born if judges have their way, and CC and her camp followers have climbed back into the pulpit.

The Media, by definition, report the sensational and especially the prurient for mass consumption. If it isn’t sensational, they make it so, as this sells copies. But the Media are also slow to correct factual errors, witness their correction columns buried in the inside pages, where brevity is their watchword. Give a dog a bad name and hang it can so easily become reality, and where families are concerned, where raw emotions are never far from the surface, and with children being used as bargaining chips in bitter disputes between parents, the oxygen of publicity can indeed be suffocating.

Leave aside the real risk that with the media present, the truth will be concealed, or at least glossed over, how can families at war be helped if they are looking over their shoulders all the time, watching some news hound scribbling away, knowing that their every word may be reported and distorted?

In these days of global communications and hot press wires, Darren and Sharon squabbling over Kylie and Wayne can make for good headlines, especially if there are allegations of abuse, with all the trimmings. A quiet day in Fleet Street can turn a routine family case into a multimedia circus and do untold damage.

Finally, it is worth remembering that family cases often involve several hearings, especially if custody of the children is in issue. There will be reports from Social Services, Court appointed officers, the children will have their own guardian, possibly paediatricians, psychologists and psychiatrists, to ensure that no stone is left unturned in the best interests of the children. And the likelihood is that the media will become bored after the parties’ opening position statements, and so, several months later when the case concludes, the media will have exhausted their feeding frenzy and moved on. And what remains? Graphic headlines pillorying one party or another will never be corrected, and those pilloried will have to live with the stigma that was patently untrue and never of their making.

So I applaud the restrictions placed on open access to family courts. Presumably the media will have the same rights to challenge an exclusion order or a reporting restriction as they do routinely under the Contempt of Court Act 1984. It should be all about fairness. There is no room in the family courts for sensationalism, and long may it remain.

WALKING ON WATER

Following a recent hearing in the High Court, Dr. David Southall, an eminent paediatrician, has been reinstated by the General Medical Council [GMC], albeit reluctantly, and is now free to return to child protection work. The GMC had earlier found him guilty of serious professional misconduct, based on his involvement in high profile infant deaths, and struck him off the medical register.

Memories come flooding back of Dr. Southall’s involvement in the case of Sally Clark, who was convicted in 1999 of murdering her two children, but subsequently cleared by the Court of Appeal and released from prison in 2003.

Also involved in that case, and other equally high profile cases, was Professor Sir Roy Meadow. He was another outstanding and eminent paediatrician, and he too suffered the same fate as his colleague when he was struck off the medical register in 2005, again for serious professional misconduct. Following hearings in the High Court and the Court of Appeal, Sir Roy was reinstated in October 2006. It was a pyrrhic victory, as he had by this time retired. Following the final hearing, a spokesman for the Society of Expert Witnesses said: “Unless the justice system deals with the failure to handle conflicting scientific opinion, today’s judgment can only add to the growing exodus of experts prepared to assist tribunals.”

The complaints levelled against both experts centred on the extent to which their expert opinions were ‘coloured’ by their apparently flawed interpretation of the facts, described in Sir Roy’s case as “uncharacteristic honest errors in this difficult case.” As an aside, judges do it all the time during the trial process, colouring disputed evidence with their own particular interpretation of the facts, but experts are not expected to stoop to such questionable tactics.

When representing a person accused of crime, where the evidence against him is substantially or solely of an expert nature, the way forward is obvious and predictable. Assuming the accused denies the allegations, and by inference challenges the expert evidence, I immediately instruct an expert of my own. I make sure that he outranks the prosecution expert, or at least ranks pari passu, and believing, as I must, in the innocence of my client, the experts go head to head. There may be times when the defence expert agrees with the prosecution expert, in which case certain consequences flow, and attacking the expert evidence without any ammunition can be a sterile as well as a highly inventive exercise.

The judge must give a standard direction to the jury about the weight they give to expert evidence, and if he fails to do so, any conviction will be overturned on appeal. The judge will tell the jury that they are free to accept or reject the expert evidence, or any part of it, as they are the sole judges of the facts. Whilst experts bring with them a level of expertise beyond the common knowledge of the jury, their evidence must be evaluated in exactly the same fair and impartial way as any other evidence. Any advocate worth his wig and gown will seek to restrict any excessive or ‘colourful’ gloss which the expert might wish to put on the disputed facts, so “uncharacteristic honest errors” should be kept to a minimum.

Experts have an important role to play in the trial process, and without their input, the truth may never be known. In this regard, I have every sympathy with the spokesman for the Society of Expert Witnesses. If even the most eminent expert can be struck off, and thereby lose his livelihood as well as his reputation, is it worth the candle? By the same token, experts should take care when expressing opinions beyond their remit, and leave the obvious inferences to be drawn by the jury. After all, experts have not yet managed the art of walking on water, and are sometimes as fallible as the rest of us.

SILENCE IS NOT ALWAYS GOLDEN

When section 34 of the Criminal Justice and Public Order Act 1994 was enacted, it was greeted with enthusiasm by the prosecuting authorities, and with dismay by defence lawyers. After centuries of the right to silence by suspects being questioned by the police, where no adverse inference could be drawn, the 1994 Act changed this basic right and significantly moved the goalposts.

In short, section 34 removed from the accused the right to silence, although it was hedged around with certain caveats. Where an accused person fails to mention any fact subsequently relied on in his defence, and assuming there is a case to answer, the jury, in determining where he is guilty of the offence charged, may draw such inferences from the failure as appear proper.

The debate still rages as to its fairness, but it is now used routinely in criminal trials as added ammunition for the prosecution, the “nod and wink” to the jury, and why would an innocent man remain silent when he has nothing to hide?

Which brings me to the McCanns, briefly shifted from the front pages of the tabloids following the acquittal of Barrie George, but back again with a vengeance. All sorts of documents have now been released into the public domain for our collective edification, the conspiracy theorists are working overtime, and we are no nearer the truth.

The sad facts are well known. The McCanns left their three children alone in their Portuguese holiday apartment when they went out to dine at a nearby restaurant, and when they returned, only two remained. Their daughter Maddie had been mysteriously spirited away, never to be seen again.

As a former resident of the Algarve, and a frequent visitor over the past twenty years, I claim to have some first hand knowledge of the country. We even spent an agreeable fortnight in a villa overlooking Praia da Luz, so I know the area well, and I have some conspiracy theories of my own, which I am not allowed to share with you.

That said, the Daily Mail, that tabloid trumpet of truth, printed the 48 questions asked of Kate McCann by the Portuguese Police at an early stage of the investigation, not one of which she answered. I have read through the questions, and all are relevant and germane to the investigation. It matters not whether she was a designated suspect at the time, because she was innocent of any involvement in her daughter’s disappearance and presumably had nothing to hide but maternal stupidity bordering on disbelief.

I would have thought that she and her husband would have wished to give the police every assistance, the more so because the Portuguese Police seem to be slow on the uptake to say the very least, it may have something to do with the weather, but her decision to remain silent is curious in the extreme. Who can say what turn the investigation might have taken had she co-operated, but too late now for regrets. There may be times when silence is golden, but there are times when it’s better to stand up and be counted.