UP TO SNUFF

I have never felt particularly comfortable about professional engineering.  By that I mean devices chosen by the Ministry of Justice to promote candidates to higher office simply because of their colour, gender or creed, and regardless of their qualifications to fill the post on offer.

It started some years ago when the Law Society lobbied the then Lord Chancellor, it could have been the acerbic Scot Lord Clash of McFern, demanding access as advocates to all the higher courts.  Until then, these solicitors had rights of audience in the Magistrates Courts, where they felt most comfortable and could weave their magic and impress the court with their advocacy and adversarial skills.  The higher courts were the preserve of the Bar. Lord Clash, never a friend of the Bar, engineered their admission to the higher courts, in reality to break the Bar’s monopoly, but in so doing, allowed a rush of solicitors with little or no advocacy skills, to wash around the higher courts when, on any view but his own, it would diminish the reputation of the courts and the effective administration of justice. Despite a wealth of evidence to the contrary, it was determined that solicitors could apply for a higher courts certificate if they could satisfy the Ministry that they were up to snuff and, most importantly, they could pay the advocacy fee.

It is entirely possible that some solicitors can match the Bar in advocacy and adversarial skills, although in my considerable experience, I am yet to be convinced.  That said, with this professional engineering and a glut of lawyers from both branches of the profession, standards are plummeting. Lord Clash has little to be proud of.

And so it is with Queen’s Counsel.  In the not too distant past, it was regarded as a privilege and a mark of excellence to be appointed a QC.  Generally speaking, the appointment followed at least two previous applications, each time accompanied by a hefty application fee, with the candidate requesting references from big hitters in the profession and, with any luck, a high court judge.

Recent statistics show that of the appointments, men predominate as they have throughout the profession since time began.  However, there are moves afoot, with the connivance of Liz Truss, a female and the current Lady Chancellor, to professionally engineer future appointments to favour females.  I remember a colleague of mine making a highly amusing speech at one of the profession’s interminable conferences on how best to secure an appointment.  He concluded after a detailed statistical analysis that transgender candidates from one of the ethnic minorities stood the best chance of all.  His remarks may have been tongue in cheek, but beneath the humour lies a serious message, and it’s depressing.

THE QUALITY OF MERCY

It is hard to believe, but a 95 year old man has been charged with historical sexual offences against former pupils going back 50 years.  He appeared in court to enter his pleas, and his trial is expected to take place in January 2016, when in all likelihood he will be dead.  He suffers from Parkinson’s disease and was supported at court by his carer.

‘Care’ seems to be in very short supply in this tragic case, and I wonder aloud what possible purpose can be served by prosecuting him.  The hackneyed expression ‘closure’ is often used in these cases to refer to the alleged victims of these crimes or their family and friends, but I am far from convinced.  Even if true, surely there are other considerations in play to balance the absurdity of this prosecution.

Not so long ago, I was invited as a guest speaker on The Big Question, a Sunday morning programme with BBC 1 and fronted by that chap who sells double glazing or is it legal services on daytime television.  The ‘big question’ under debate would have interested the 95 year old defendant.  It was:  should there be a statutory limitation on bringing criminal prosecutions similar to the limitations in the civil law?  For those not in the know, in broad terms you cannot bring civil proceedings after the expiry of a certain number of years.  For personal injury, as an example, the limitation on commencing proceedings is 3 years.  For contract it is 6, and the same for tort.  The thinking behind these limitation periods is twofold: if you can’t get your act together within 3 or 6 years, it’s not worth the candle; and it ensures where humanly possible that those on the receiving end of a claim will remember something about it.  Imagine if you will the absurdity of bringing such a claim 50 years after the event, but this does not seem to deter the CPS.

It is also instructive to note that during the ‘Big Question’ debate, logic was in very short supply.  Irrational emotions ruled the day, in much the same way as many of the responses to my recent blog on rape and drink and drugs (She was gagging for it).  It is frightening the number of comments flooding in from people who hadn’t bothered to read my blog beyond the headline, or, if they had, chose to ignore it.

In the Big Question, I argued in favour of a limitation period of 10 years, particularly in historical sexual abuse complaints.  That seemed fair to the complainant as well as to the defendant, who would have an outside chance of properly defending the complaint, his memory would be relatively unimpaired by the passage of time, and there would be a reasonable chance of relevant witnesses willing and able to give evidence based on their own recollections.  That is fair and proper. If that cannot be achieved, then it is only fair and proper not to bring the prosecution.  It’s called the quality of mercy.  Surely it is better for 99 guilty men to go free than one innocent man to be wrongly convicted.  If you don’t agree, ask the relatives of Derek Bentley.

TIME TO DRAW THE LINE

I was having my hair cut this morning and browsing through an old copy of the Sun newspaper. Flicking past Page 3, I read that an alleged war criminal had been found and arrested in Austria, to face charges of genocide going back 60 years. According to the Sun, ‘alleged’ be damned, he’s as guilty as sin, but that’s the Sun for you.

Back home for a light lunch and a dose of afternoon television, I was treated to the exhortations of a minor celebrity fronting an advertisement for personal injury claims, and I was reminded of a show he hosted on BBC1 where I happened to be one of the guest contributors. The question for debate was whether there should be a Statute of Limitations for the criminal law similar to the civil law, whereby no prosecution could be brought after the elapse of a certain number of years.

Inevitably, the debate focused on sex offences perpetrated by adults on children and subsequently reported to the police many years’ later.  Before the War Crimes Act 1991 came into force, I believed I held the all comers record, where my client was accused, charged and convicted of sex offences against children going back some 40 years whilst working at a reform school.  He denied each and every allegation, but as all his potential witnesses were either deceased or untraceable, his defence fell on deaf ears, and as far as I know, he died in prison still protesting his innocence.

The debate on BBC1 was sterile and highly emotive, as it never touched on the potential injustice arising from fabricated complaints made for the sole purpose of securing an enormous sum in compensation.  In my case, one victim was paid a six figure sum, and others lesser but still substantial sums. It was also disclosed that one of the complainants had never attended the school, but with the help of a former pupil, decided to jump on the bandwagon.

In the televised debate, I supported the proposition that there should be a time limit unless there are exceptional circumstances, and I could think of none.  This includes war crimes. I was howled down.

I wonder if justice is served by having a defendant wheeled into court on a life support machine, barely able to raise his head or speak in his own defence, and having nonagenarian victims pointing the accusing finger at him and baying for his blood, or what is left of it.

In the civil law, the complainant has 3 years in which to bring a claim for personal injury, and 6 years for most other claims. The purpose of the Statute of Limitations is not simply to limit claims, but to ensure that the claim can be fairly tried.  Why should the criminal law be any different? How can it be fair for a defendant to defend himself properly, if at all, against grave accusations going back 60 years, when his only defence would be “it wasn’t me” and “it isn’t true”, and if convicted, to spend what remains of his broken life in prison?

That amounts to no defence at all.

TWELVE HONEST MEN AND TRUE

In one form or another, trial by jury has been with us for the best part of 800 years, although its metamorphosis into the present system is more a phenomenon of the past fifty years.

Today’s jury is drawn from both sexes, or all three if you include the ‘undeclared,’ the property qualification fell by the wayside some years ago, literacy is irrelevant, as it has been since the introduction of comprehensive education, the age qualification has been lowered to eighteen, and now, perish the thought, those traditionally excluded from jury service, such as judges and lawyers, have been brought on board. Can you imagine anything worse than a gaggle of lawyers pretending to be laymen?!?

The recent transatlantic airline bomb plot trial has led to a number of critical comments about the jury system. You will remember that after months of evidence trotted out to prove, beyond a reasonable doubt, that the ‘British’ Muslims accused of the plot were as guilty as sin, the jury failed to agree on the main allegation, and there is now talk of a retrial.

There are three possible explanations for the jury’s failure to convict. Either they were bored rigid, or catatonically stupid, or, perish the thought, the prosecution failed to discharge the required burden and standard of proof, or all three. Take your pick!

I have always thought it the height of arrogance for the prosecution to blame the jury for failing to convict, and as we are not privy to their deliberations, it is pure speculation of the worst kind. But when considering trial by jury, consider for a moment how it works, or doesn’t work, depending on your perspective.

The twelve are chosen at random, and there is now no right of peremptory challenge. You get what you’re given, warts and all, which, on any view, is absurd. To quote just one example, how can it be right, at the beginning of a complicated fraud trial, to have illiterate jurors on the panel? The American system of jury vetting is far better and fairer. As far as humanly possible, under their system, you get the twelve best suited to return the right verdict. As both the prosecution and the defence have equal input in the vetting process, it works fairly for both parties as well as the interests of justice.

Speaking of being bored rigid, especially in a long trial, I also question the need for the judge to sum up the facts as well as directing the jury on the law. They will have heard final speeches from the prosecution and the defence, and all the relevant issues will be placed before them, ad nauseam, so why go through it all over again? The judges should keep out of the evidential arena.

In the bad old days, when prosecution minded judges expected juries, who were there simply as window dressing, to do as they were told, there were a number of high profile miscarriages, the most notable of which remains the conviction and execution of Derek Bentley back in 1953. Lord Goddard, the trial judge, entered the evidential arena with all guns blazing, and was roundly criticised in the Court of Appeal some 45 years later, and rightly so, but too little too late.

Trials are getting longer and longer, although fewer and fewer able barristers are willing to conduct them at today’s knock down prices. A belt and braces approach routinely adopted by the prosecution leads to prolixity, which is counter productive, bearing in mind that the attention span of the average juror is in the region of ten minutes.

So is there a strong case for keeping trial by jury as we have it? Are these twelve honest men and true the bedrock of a civilised society and the bulwark against executive interference? I have my doubts. Judges, sitting with lay assessors where needed, are far better qualified to get at the truth, so long as they give detailed and reasoned judgments for their findings, as happens in the Court of Appeal. Conversely, juries are never required to give their reasons in support of their verdict.

With the abolition of trial by jury, potentially long trials will shorten dramatically, thereby saving the hard pressed taxpayer a fortune. So the choice is clear. Either embrace the American system of trial by jury, or abolish it as unworkable and unreliable.

THE GADDFLY HAS LANDED

Breaking news! Paul Gadd, aka Gary Glitter, is back in the UK, albeit under protest, and as I write, will be welcomed with open arms by the fragrant Jacqui Smith, our ineffectual Home Secretary, clutching a Sex Offenders Protection Order [SOPO] in her hot little hand.

I have the deepest reservations about the efficacy of these protection orders, on two grounds. They don’t work when they should, and I question the right of any government to subject offenders to draconian restrictions which, on the face of it, breach their Convention rights under Articles 3 and 8, the right not to be subjected to inhuman and degrading treatment, and the right to private life.

I remind myself that Mr. Gadd spent three years in the Ho Chi Minh correctional facility in Ho Chi Minh City, having been convicted by the Ho Chi Minh Supreme Court of sexually abusing under age girls from the Ho Chi Minh School of Spiritual Enlightenment. Is this a personality cult, or what!?! Whatever happened to good old Hanoi? Anyway, Paul’s three years in choky amounts to a six year sentence here in the UK, and time and enough to repent of his transgressions.

All this nonsense started with the Sex Offenders Act 1997, amended by the Criminal Justice and Court Services Act 2000, and further amended by the Sexual Offences Act 2003, but after all the huff and puff, nobody stopped to think it through. The need for this scattergun legislative overload was apparently in response to “public concern” over predatory paedophiles roaming our streets, ready to jump out on unsuspecting children. Until then, most “right minded members of society” thought that a peedofile [sic] was something to do with horny feet.

On latest estimates, there are now 30,000 on the Register, and at least half of them shouldn’t be there. The consequences of registration, as Paul Gadd is about to find out, are out of all proportion to the perceived risk that registrants are supposed to pose. It involves regular and constant monitoring of every movement, with visits from the police and the supervising officer at all hours of the day and night. Restrictions on contact with minors is understandable, but extending the definition of minors to young persons up to the age of 18 jars uneasily with the lowering of the age of consent to 16. And finally, there are restrictions on overseas travel.

If a determined predatory paedophile chooses not to conform, there is little the authorities can do about it. All he has to do is up sticks and move, and then ‘decline’ to register his new address. He may be picked up if he’s unlucky, but the chances are slim. He can change his name, his appearance [note to Paul Gadd, dump that ridiculous Ho Chi Minh goatee beard] and he’s foot loose and fancy free to commit further crimes if he’s so inclined, or better still, get on with the rest of his life.

There may be an argument for registering our most dangerous offenders, but this “come one, come all” approach isn’t working, and worst of all, it’s simply unfair.