HOGG OFF

Following my latest blog on Ellie Butler, I am saddened but perhaps not surprised to learn that the former Mrs. Justice Hogg has refused to explain her misjudgment.  On any view, an indefensible decision.

Attempts to explain Ellie’s murder and whether it could have been avoided are being investigated by Christine Davies, the Head of the local safeguarding children’s Board where Ellie and her abusive parents lived.  It is her duty to ensure, in so far as it is possible, that children in her area are not abused and killed, and any help Ms. Davies  can be given by those involved in Ellie’s case could prove vital.

What saddens Ms. Davies, and all of us reading the harrowing accounts of Ellie’s short life, is the fact that on Mrs. Justice Hogg’s direct order, the Board were prevented from offering any help or support or supervision when it could have saved Ellie’s life.  At the very least, the judge should explain her decision.  She obviously got it horribly wrong, but there might be exculpatory reasons for her decision.  I doubt it, as on the face of it she made a monumental blunder.  But if she doesn’t explain herself, we shall never know, and her silence will simply confirm our worst suspicions as to her competence.

I for one would like to know why the retired Mrs. Justice Hogg ignored the warnings and premonitions of Ellie’s grandparents.  Her grandfather is calling for an independent inquiry, I expect Ms. Davies would associate herself with that.  As things stand, any inquiry will have to do without Mrs. Justice Hogg’s contribution, such as it may have been.

DEATH BECOMES US ALL

Tony Nicklinson and the mysterious ‘M’ cannot have their miserable lives ended by medical intervention. This was the ruling given the other day by the High Court.  In Tony’s case, the question posed was whether a doctor could be prosecuted for murder if he administered a lethal injection, knowing that this was the oft repeated wish of Tony and his long suffering wife.

The judge ruled on the law as he found it, and that’s what judges are supposed to do.  Regardless of where his sympathies lay, and he could not have been deaf to Tony’s plight, it would amount to legalised murder and, if condoned, could open a Pandora’s box.  A somewhat simplistic approach, but understandable nonetheless.

In the recent past, the Courts have come close to interfering with the ‘human rights’ of individuals, using as their justification the Mantra that “each case must be decided on its own particular facts”.  Male circumcision was one, much to the consternation of the Jewish community, where the ‘snip’ without informed consent could be a breach of the infant’s human rights, and the sterilisation of a mentally defective woman was another.

Not so long ago, the Court of Appeal had to consider the thorny question of assisted suicide against the background of Dignitas, the Swiss clinic, where those wishing to end their lives can do so with dignity, surrounded by their loved ones. The presence of their loved ones gave rise to a possible charge and prosecution for assisting the suicide, so the Court, instead of determining the issue themselves, passed the buck to the Director of Public Prosecutions.  He, in turn, invoked the Mantra that each case must be decided on its own particular facts, and nobody, least of all the Court of Appeal, was any the wiser.

It is strange but true that until the Suicide Act 1961, it was a criminal offence to commit suicide.  Quite how you prosecute a corpse has never been satisfactorily explained, but this harks back to the days when the Catholic Church reigned supreme, and when suicide was a mortal sin, depriving the sinner of the chance to meet St. Peter at the pearly gates and casting him forever into the depths of hell and all that.

Whilst it may be right for the judge in the Nicklinson case to pass the buck to the government, in the unlikely event they may wish to amend the law of murder, I can see no reason why each case cannot be decided on its own particular facts. The only reason why Nicklinson is festering here instead of ending his life in Switzerland is that he is totally incapacitated except for his eyelids.  These are his sole means of communication, and as I understand it, effective enough to tell anybody who cares to listen that he wants to die.

One possible solution to this impasse is a Judicial Review, not in the accepted legal sense, but similar to an Inquiry, where all interested parties are represented, and if the judge, or judges, conclude that there is no prospect of recovery, and that Nicklinson, as a man of sound mind,  is able to convey his wish to die, it cannot be morally right to deny him his wish and keep him alive and imprisoned in a useless body.

I hope to God that if I find myself in a similar position, somebody will listen to me, respect my wishes, and allow me to die with dignity.  After all, according to my faith, I will go to a far better place, and I will take my chances with St. Peter.

Postscript: On the 22nd August 2012, six days after the High Court condemned him to live, Tony Nicklinson defied the judges, the doctors, and the pro-life opponents who prolonged his suffering, and died despite them all.

MURDER MOST FOUL

The government’s latest White Paper, concentrating as it does on women killing violent men, and the possible defences open to them, is an unnecessary distraction, ill conceived and simply complicates an already messy approach to this, the most serious crime on the statute books.

In 1965, the death penalty for murder was abolished, and as a sop to the “hang ‘em high” lobby, a mandatory life sentence was substituted, and it has remained ever thus. In addition, the sentencing judge is obliged to indicate the minimum term [known as the tariff] to be served before the offender can be considered for parole, or in some extreme cases, life without parole.

It is argued that in setting this minimum term, the sentencing judge can reflect the gravity of the offence, and introduce some degree of flexibility that is otherwise denied him.

This is all fine and dandy if it were not for the hoops which the convicted murderer must jump through when he applies for parole. It is not just the Parole Board that needs to be convinced, it is also the Secretary of State for Justice, whose input into the Board’s deliberations and findings can be crucial, and at times positively meddlesome. [See my earlier article The Independence of the Parole Board]

I don’t know if these sentencing judges are kept informed of the sentences actually served, I doubt it, and indeed, why would they? And does anybody check the time spent in custody against the recommended tariff? Certainly not the editor of the Daily Mail!

One example amongst many will suffice from my own professional experience, when I represented a convicted murderer before the Parole Board. He had murdered his landlady when in his late teens. There was nothing exceptional about the crime to attract maximum publicity. With his mandatory sentence of life imprisonment came a recommended tariff of twelve years. When I represented him, he had served thirty eight years, his entire adult life behind bars. It follows, as night the day, that the ‘tariff’ system doesn’t work.

But whilst sentencing judges are shackled with the absurdity of a mandatory life sentence, these injustices will remain.

The mandatory life sentence for murder should be abolished, with judges free to make the punishment fit the crime. This means determinate sentences should be available. In the most heinous cases, a life sentence will be appropriate, and sometimes without parole, but there should be a sliding scale, and not, as at present, one set in stone.

But I would go further. I would introduce the American system of murder by degrees, again to reflect the gravity of the act, together with the appropriate ‘tariff’. The French, que Dieu les bênisse, have crimes of passion, ideally suited to the wronged female, or male, as the case may be.

In this way, the punishment can indeed be made to fit the crime, and with greater flexibility comes greater fairness. The tariff will not be routinely ignored, and a measure of certainty for the serving prisoner will enter the equation.

By all means leave the offences of murder and manslaughter as they are, they seem to work well enough, offering as they do some limited scope for the endangered female. But the government’s approach is likely to do more harm than good, and is a recipe for confusion and worse still, real miscarriages of justice. For the average juror, the criminal process is complicated enough, without complicating it further.