IT’S THE LAW STUPID

I promised my many readers that I would not get dragged into the debate on John Worboys and his impending release.  Those who have had their say, and they are as thick as bugs on a bumper, have made informed, but mostly uninformed, contributions to the case, and there is little else to be said.

However, my contribution comes from the perspective of the sentencing judge and the evidence on which he relied in passing a sentence of imprisonment for public protection [IPP], and that is my, and his, starting point.

An IPP is supposed to reflect the gravity of the offence or offences, but falls short of offences that attract a mandatory life sentence.  The sentencing judge is obliged to pass a minimum term of imprisonment to be served before release, but beyond this, the convicted man remains in custody until the Parole Board determines otherwise.

In an earlier life, when I wore a younger man’s clothes, I appeared before the Parole Board on many occasions tasked with trying to secure my client’s release.  Let me assure those who are now complaining vociferously about Worboys, that the Parole Board takes its responsibilities very seriously, and in my experience, their starting point is to refuse parole.  At the hearing there are several present with an opinion to offer, from the prisoner’s wing officer to report on his general behaviour and his interaction with his fellow prisoners, to his social worker and, where applicable, the prison psychiatrist.  Hardly a stone is left unturned. In reality, those who receive an IPP are at risk of staying in custody well beyond their ‘tariff’ expiry date.  The most egregious example I had professionally was a client whose ‘tariff’ was eight years, and when I met him, he was in his thirty sixth year!  And according to the Grauniad, even as I write, there are 3300 IPP prisoners not knowing when or if they are ever going to be released.  The newspaper highlights the case of  man given a tariff sentence of 10 months but who is still in prison 11 years later. So to suggest that Worboys has been let off lightly is not borne out by the facts.

Another fact overlooked in all the posturing is that Worboys has actually served 10 years, so he has completed the tariff part of his sentence.  There may be an argument that the tariff did not meet the gravity of the offences, but there is an appeal mechanism available to the prosecution and which could have been triggered by Baroness Scotland, the then Attorney-General, whereby on her reference, the Court of Appeal could have revisited the sentence.  No such referral was made.

Worboys has been banned from ever owning or driving a taxi, black or otherwise, and once released on parole, he will be under strict supervision.  If he breaks the terms of his parole, he will be returned to prison.

Finally, a lot is being spoken about other alleged victims who were also attacked by Worboys and who are complaining that they were not included in the original prosecution.  They could have been, but the view of the Clown Prosecution Service is that their inclusion would have made the case unwieldy and served no meaningful purpose.  It is not for you, or me, or the judge, to speculate on how many others Worboys abused, the law is clear: a  man can only be convicted and sentenced on the available and admissible evidence.

There may be lessons to learn, but to coin a phrase from another sexual predator from across the pond: it’s the law, stupid.

David’s latest humorous book on the law entitled Order in Court is now available in reputable bookstores and on Amazon

STILL GAGGING FOR IT

The firestorm continues apace following my original blog of the same title and the Daily Mirror’s take on it.  Whatever else, it has got people talking about the issues raised in (alleged) rape cases, and most important of all, the issue of drink and drugs. Whilst my remedy for the resolution of this issue was not well received by the majority of women who have commented on it, I remind my readers that there is a real prospect of a miscarriage of justice if the prosecution are allowed to move the goalposts as Alison Saunders is suggesting.  I also remind my readers that a conviction for rape carries with it an immediate sentence of imprisonment, and trying to overturn an unsafe conviction is a protracted and uncertain procedure.

That said, the purpose of this update is to put this lively debate into proportion.  Excluding the Press and the Media, who often work to their own agenda and where truth can be a moveable  feast, the reaction of those leaving comments on my blog has been most instructive.  They divide almost equally along gender lines.  The women for the most part are strident in their condemnation.  According to the Daily Mail, leading the pack is Ms. Sarah Green, director of End Violence against Women Coalition, followed hard on her heels by Ms. Louise Pennington, of the campaign group Ending Victimisation.  By the very banner headlines under which they parade their prejudices, it is unlikely I shall find a balanced and reasoned argument.

The men have a different take on the issue.  I wonder if a brother organisation similar to Louise Pennington’s campaign group, but there to protect men from being falsely accused of rape, might find favour to redress the imbalance.

For the purposes of a headcount, I ignore the expletives and offensive comments, once again from women, which add nothing  to the debate and which have been deleted.  By the same token, I cannot comment on individual cases brought to my attention by men or on behalf of men, who claim they have been the subject of a miscarriage of justice.  I would need to know all the facts before reaching a conclusion.

You can read the comments left on my blog for yourselves and make up your own minds.

Postscript.  It seems that my timely intervention in the casual sex and consent debate is already reaping dividends.  Teenage pregnancies have fallen to their lowest rate since records began more than four decades ago. And it doesn’t stop there. There is a new government initiative to encourage discussions amongst children as young as 11 on difficult subjects such as rape, coercion, drink, and at what point teenagers are capable of agreeing to sex. You can thank me later.

SQUARE PEG

When asked how long is a piece of string, my late father, much exercised by home spun homilies, replied: “Too short to be of any use, and too long to throw away.”

With this in mind, my thoughts turn to Jack Straw, the Member of Parliament for Blackburn, and one of only three to have served continuously in cabinet since Labour came to power in 1997.

I find that an astonishing statistic, given his lack of political acumen, but as they say, the Labour Party is a broad church with room for all comers, as Michael Foot and Neil Kinnock would testify.

Another astonishing statistic for such an under achiever is the fact that he has occupied two of the highest posts in government within the gift of the Prime Minister to bestow, namely Home Secretary and Foreign Secretary, and he and I both struggle to think of anything he did to mark his card for posterity.

No, that’s not quite fair. One moment de verité springs to mind. He once observed that when Muslim women come to his surgery for advice, dressed from head to toe in some enormous bell tent, he would prefer it if they exposed themselves. Or I think that’s what he said.

In 2007, after a spell as Leader of the House of Commons, Jack Straw took the newly created post of Justice Secretary, and after some political trimming into the wind, also took over the responsibilities of Lord High Chancellor.

Given his track record, Jack Straw falls into the category of “good egg.” You know the type. Not good enough to make the team on merit, but generally a nice guy, and good enough to bring on the orange segments at half time, and make himself useful by refilling water bottles. So throughout his political career, it’s been a case of finding a job for Jack, even though, sadly, he’s a square peg in a round hole.

His time as Justice Secretary, where he is likely to remain until the General Election, has been a disappointment, even by his own modest standards. Most recently, he has fallen foul of the Chairman of the Parole Board, who described his decision to block the release of Ronnie Biggs as “irrational.” I suspect this was the last “straw” for Jack, who has now relinquished this remaining power, and not before time.

Eighteen months ago, in the Divisional Court, their lordships expressed concern about the independence of the Parole Board, given the right of the Justice Secretary to interfere in their decisions and override them. Their lordships expressed the opinion that confidence in the whole parole system could be undermined if this remained the case, an opinion echoed by the Chairman. He stated unequivocally that public trust in decisions concerning the release of prisoners could be undermined because of the political element involved.

There is more than enough concern expressed by the public over the early release of prisoners, especially by victims of crime and their relatives. But just as the emotive element should play no part in crime and punishment, by the same token it is in the public interest that the independence of the Parole Board is asserted without political interference.

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!