Wednesday, January 18
This is not Justice
by
ContraTory
on Wed 18 Jan 2006 21:11 GMT
So, the two Thai fishermen responsible for the rape and murder of Katherine Horton on New Year’s Day 2006 have been sentenced to death.
It has been customary in those jurisdictions were the death penalty remains, for the ultimate sentence to be reduced to one of a life sentence were the crime is admitted and a guilty plea entered at Court. In fact, the principle of a routine reduction of sentence upon admissions being made and/or guilty plea being entered is common to many jurisdictions for many crimes, both serious and minor. A spokeswoman for Amnesty International, Sarah Green was reported to be “disturbed” that the death sentence had been passed upon the two men, Bualoi Posit and Wichai Somkhaoyai.
It is very disturbing. Leaving aside the indecent haste with which the whole trial process proceeded, it is very likely that the defendants were persuaded to enter guilty pleas for the sole purpose of avoiding the death sentence in the event their “not guilty plea” failed at trial. The intervention of the Prime Minister of Thailand, Mr Thaksin Shinawatra could not have been helpful.
No one can be criticised for drawing the conclusion that the death sentence was imposed for the sole purpose of protecting the tourist industry and had nothing to do with the perceived seriousness of the crimes committed. This is a case of Justice clearly not being seen to be done.
Sunday, January 15
Paul Reeve is Innocent!
by
ContraTory
on Sun 15 Jan 2006 23:24 GMT
I have been deeply disturbed by the case of Paul Reeve, the teacher whose appointment was authorised by a Minister, notwithstanding having been cautioned for an alleged offence relating to viewing pornographic sites containing unlawful pictures of under age children.
Let me state at the outset that I endorse many of the comments of Matthew Parris in The Times (14.01.06) and Simon Jenkins in The Sunday Times (15.01.06).
The problem I have is this. Given the nature of Mr Reeve’s “offending” I do not see anything wrong with his appointment having been approved after careful vetting by a Minister of the Crown. I understand how the public furore came to be and why the Government has found itself in hot water over the issue. However, save for the inadvisable act of allegedly viewing child pornography, following his caution being administered by the Police, Mr Reeve’s behaviour has been, to all accounts, blameless.
The exact details of Mr Reeve’s offending are not known; save that following his credit card details being associated with a child porn web site (as a result of Operation Ore) he accepted a caution from the Police.
The Police have strict guidelines as regards whether a suspect should be offered a caution rather than being prosecuted. Factors taken into account include the offender’s previous good character but more importantly the seriousness of the offence involved. A caution is not given where the offence might merit a term of imprisonment. This leads me to the irresistible conclusion that the “child porn” that Mr Reeve admitted to viewing was very tame.
The caution system is very useful in enabling the Police to dispose quickly of cases where the miscreant is “banged to rights” and has admitted the offence. Having said that, it is my experience that unfortunately people sometimes accept a caution in circumstances where they have a triable defence but wish to avoid publicity and the embarrassment of a trial. In Mr Reeve’s case it is easy to understand how he might have accepted a caution “just to get the matter over with”.
As Mr Reeve is now a “sex offender”, he is deemed to be a risk to children. On the known facts the risk that he poses must be so tiny or theoretical that in fairness he should not be barred from teaching children. Thus it was right that his case was carefully vetted and that he was cleared to continue teaching children. The decision of the then junior education minister Kim Howells was unimpeachable.
Much is made of the myth peddled by the Child Protection Industry that all sex offenders work their way up from viewing porn to actually abusing children. This is such dangerous nonsense. In the present climate, all cases must be considered upon their own facts, otherwise injustice results.
Tuesday, October 18
Sex case prejudice: A personal view
by
ContraTory
on Tue 18 Oct 2005 09:08 BST
Over the years, a significant number of women have confided to me that someone they had known, raped them. I had no reason to doubt that they were telling the truth; indeed the thought that they might not be had never even entered my head. The circumstances were depressingly similar. They had met ‘a friend’ for social purposes and returned home together ‘well oiled’. They had then been subjected to sexual intercourse against their will. None reported their ordeal to the Police. They were resigned to the fact that they would have been considered extremely foolish to have behaved in the way that they had. No one, they thought, would believe that they had not consented.
I was reminded of these women by a report today (17th October 2005) in The Times by Frances Gibb entitled “Sex case prejudice is still widespread” about speeches made at the recent Bar Annual Conference. We are told that a speaker Ken Macdonald QC reported that the low conviction rate in such cases was of ‘huge concern’. He argued that a reform allowing prosecutors to speak to their witnesses in advance of a trial would help. The Director of Public Prosecutions has commissioned research into whether expert witnesses might be allowed to speak in trials to counter myths about women’s sexual behaviour, such as “she must have consented because she had no physical injuries” and that “it was not common knowledge that women routinely returned to men who beat them up.”
It is reported that Professor Jennifer Temkin of Sussex University said “that the first findings of research among judges and lawyers that she had conducted for the Home Office showed that there was still widespread prejudice and a prevalence of myths about the way women behaved.”
“There was ignorance about the law, with many barristers not knowing that they could not question a woman about her sexual history without making an application to the judge….some judges also “totally misunderstand” the legislation. Juries, too were ignorant about the nature of child sex abuse and often could not believe what they were hearing….As a result, they sometimes had difficulty convicting.”
I admit to not having conducted any research in this matter. I have not been privy to the evidence that provoked the DPP into launching his research. I admit that I know nothing, save for that empirical knowledge gleaned from having been involved in the practise of criminal law during the course of the past twenty-five years. Perhaps I have been blessed by having quite by chance, instructed Counsel who had a very firm understanding of the criminal law. Perhaps too, the judges before whom they appeared were all exceptional in their grasp of the rules of evidence and the law. That they were is beyond doubt.
I must ask you to forgive me however for taking the view that Professor Temkin's assertions concerning the abilities of “many” barristers and judges’ are wholly unfounded. I am unable to accept that in a career spanning a quarter of a century, by sheer chance I have avoided the misfortune of crossing the path of one of these dinosaurs. It was not just barristers, judges and the jury who came in for criticism at the Conference.
Yes, the Police are at fault too. They fail (we are told by Professor Temkin) “to collect evidence in the “golden hour” when women first complained.”
Once again, this is not my own humble experience. Surrey Police seem to be competent in this particular regard. I recall Hampshire Police not being exactly slothful, either. The myth that to juries “no injuries” means “no rape”, is itself a myth. To whom is it “not common knowledge that women routinely returned to the man who beat them up?” In fact most women do not “routinely return”, though disturbingly a significant minority do. I knew that before I practised law. I am unexceptional, an “Ordinary Joe”. If I know it, the general public (the jury) know it too.
As a defence lawyer, I have been involved in cases where false allegations of rape have been made. These cases involved situations were the evidence proved the suspect was innocent. They did not proceed to trial. We have had reports in the media during the course of the past month or so of a case involving a woman having been convicted of perjury for making such false rape claims and another where the judge criticised the Crown for attempting to proceed where the evidence implicated someone other than the defendant. I do not want to dwell upon such cases because it is my prejudice (indeed professional experience) that far more women suffer rape in silence than “fit up” their former partners. The truth is that the public are aware of such cases. When sitting as jury they take seriously their duty to carefully weigh the evidence and not to convict unless they are sure the defendant is guilty beyond reasonable doubt.
The crux of the problem is not the perceived bias or lack of skill or understanding on the part of the lawyers, judges and jury. It is the very nature of the relationship between the victim and rapist. We know (because we have been told) that the vast majority of rape victims are the partners, girlfriends or friends of their attackers. Millions of years of evolution have ensured that members of the opposite sex seek each other’s company for procreational purposes. After a quiet evening out, the couple do not return to his or her flat so that they can just discuss the theories of Marx or Hegel. It is a courting process. When something goes wrong, it is one person’s word against another. I do not have any doubt that in the main juries sympathise with the victim. I have no doubt that they prefer her word to his. At the end of the day, without other evidence, the unpalatable truth is that upon the established facts the jury cannot be certain, so they must acquit.
I fear that yet again, rules will be changed to tip the balance in favour of the prosecution, and that will militate against a fair trial. There is implicit also in these criticisms of the jury system, that the public is not to be trusted to weigh properly the evidence in such matters; that we are prejudiced, ill educated, stupid even. It is not so.
That we must find a way to protect women and punish those who harm them goes without saying, but bending the rules to suit the prosecution, is not the solution.
Friday, October 14
A lot of fuss about nothing
by
ContraTory
on Fri 14 Oct 2005 16:10 BST
According to The Times today (14th October 2005) Recorder Oliver Sells QC described a decision by the Crown Prosecution Service concerning a matter appearing before him in the Crown Court as "deplorable, unprincipled and indefensible".
The case involved Barbara Allmey, aged 61, who had been charged with assault occasioning actual bodily harm against her daughter-in-law Vicky Allmey after allegedly scratching and clawing at her and biting her arm. The victim required hospital treatment and her arm was "left with a permanent scar". Some nine months after the event the Crown Prosecution Service decided to reduce the charge from an allegation of actual bodily harm to the lesser offence of "common assault".
The significance of this reduction in charge is that whilst the maximum sentence that can be imposed for common assault is merely six months' imprisonment, for actual bodily harm it is five years. When the Recorder refused to sanction the amendment of the indictment, the Crown merely offered 'no evidence' to the count of actual bodily harm, the inevitable consequence of which was that the charge had to be dismissed, and Mrs Allmey proceeded to enter a plea of 'guilty' to common assault. Sentencing Mrs Allmey for common assault, he the told the defendant, "This was at the top range of such common assault offences. The assault was extremely unpleasant, bordering on the vicious. Nothing could justify what you did." He proceeded to order Mrs Allmey to pay a fine of £800.00 and compensation amounting to £700.00. I know a little about such matters. Given that the victim suffered a "permanent scar", I think we are entitled to assume that the bite broke the skin. The proper charge was indeed one of assault occasioning actual bodily harm.
The Crown Prosecution Service stands by its decision, declaring, "The final decision was made by the reviewing lawyer following discussion with all parties." (my italics) So there we have it. There was a 'carve-up'. The prosecutors 'cut a deal' with the Defence. I think we can assume the Defence had good cause not to put their hands up to the ABH charge. The Crown seems to have thought so. I think we are entitled to trust competent and highly trained lawyers for the Crown and Defence to reach such decisions, after all they know more about the case than anyone else. The question by which I am bemused is this. If the maximum sentence for common assault is one of six months' imprisonment and "…this was at the top range of such common assault offences…" why did Mrs Allmey not receive a sentence of at least four months' imprisonment, rather than a financial penalty of £1,500.00?
I have little doubt that the sentence imposed by the Recorder was absolutely right, but this then begs a question. At the end of the day, the Recorder was not denied adequate sentencing powers to deal with the case. Was it really necessary for him to so disparage the Crown Prosecution Service when the final charge did do justice to the case?
Wednesday, October 12
We are not convicting enough criminals! (So now, anyone will do!)
by
ContraTory
on Wed 12 Oct 2005 09:20 BST
It was not Tony Blair who started it of course, because during the course of the past twenty-five years or more successive Governments have all had their ‘tough on crime, tough on the causes of crime’ theme. The refrain from politicians has ever been, that the Law unjustly favours the guilty.
I do not propose to deal with here the issue of what constitutes a ‘just sentence’ neither raise, other than in passing, the fact that a significant majority of defendants appearing before the Court dispose of their matters by way of a guilty plea. I am concerned with the fact-finding process called ‘the trial’, that formerly scrupulously fair hearing where the Court listened to all admissible, truly probative evidence. Call me old fashioned, even a pedant (no, please do, it will make you feel so much better) but I liked the good old days when evidence depended upon a witness telling the Court about what he had heard, felt or seen when the alleged crime was committed.
I am not a complete Luddite because established forensic science, including fingerprint (and now DNA) evidence has always had an important place too. For centuries defendants, mostly innocent but some guilty, have been pronounced ‘not guilty’ because the evidence was not strong enough. The evidence of real and probative value had simply not been sufficient to convince the Court of their guilt. The ‘New Labour’ Administrations since 1997 have rapidly eroded the prospect of a defendant receiving a trial as fair as had been the case in the past, by tipping the balance of what a Court could or should hear as evidence, in favour of the prosecution (along with numerous other ‘devices’ that I do not intend to dwell upon here).
It is hard to resist the impression that people proclaiming their innocence are considered by this Government as a nuisance. The whole system is degrading into a device by which alleged miscreants are processed as efficiently and at as little cost as possible before being recorded as guilty and receiving the appropriate punishment. I am surprised that Mr Blair’s Government, the most illiberal regime for many decades, does not bite the bullet and seek to change the onus of proof in criminal matters from one of ‘beyond reasonable doubt’ to the ‘balance of probabilities’. Perhaps it knows that such a course would cause uproar, because the true purpose of its purported plans to ‘improve’ the criminal justice system would be laid bare. It would be seen as a tawdry means by which the prosecution process is simplified to secure more convictions at less cost, and nothing to do about the lofty ideal of improved ‘Justice’, protecting Society and ensuring that the truly guilty are punished.
This Government now seeks to browbeat and criticise Judges for being weak on Crime. The Judges are the mere whipping boys for successive Administrations’ incompetence in dealing with the causes of crime during the last quarter of a century. Our judges are more than capable of defending themselves and our justice system from this latest unjustified attack and shall do so elsewhere, far more ably than I do here.
Friday, October 7
Lock 'em up and throw away the key
by
ContraTory
on Fri 07 Oct 2005 17:04 BST
"Four in a cell? What's wrong with that? They committed a crime and they have to be punished!"
"They have radios and television in their cells? I thought prison was supposed to be a punishment. It is more like a five star hotel!"
In these more enlightened, modern times a prison sentence has always been about loss of liberty as a punishment. Personal discomfort and lack of amenities are now unintended practical consequences of incarceration (and a lack of adequate funding for H M Prison Service.)
Our elected representatives seem to be seething at a decision by the "Grand Chamber" of the European Court of Human Rights in Strasbourg whereby our Representation of the People Act 1983 was found to breach the human right of prisoners to vote in a free election.
Mr John Hirst, a convicted killer, had brought the case but lost in our High Court. His successful appeal to the European Court of Human Rights was challenged by the Government. The seventeen judge sitting of the Strasbourg Court then found in his favour by 12 to 5.
Dominic Grieve, the shadow Attorney General is reported to have said that,
"…giving prisoners the vote would be ludicrous."
Lord Falconer, the Lord Chancellor, reportedly insisted,
"I can make it absolutely clear that in relation to convicted prisoners, the result of this is not that every convicted prisoner is in the future going to get the right to vote."
and,
"We need to look and see whether there are categories that should be given the right to vote."
Looking at the matter objectively, on the premise that the actual punishment is one of loss of liberty, what is the logical basis of the denial to a prisoner of any other comfort or right that is enjoyed or exercised by those of us fortunate enough not to have been imprisoned for a breach of the 'criminal code'? Other than the unthinking knee-jerk reaction that prisoners have 'done wrong' and so have received their 'just desserts', there is not any reason. Mr Grieve and Lord Falconer are wrong. It is not acceptable to allow a diminution of a prisoner's other rights merely because he has committed a crime (or crimes) that warranted the loss of liberty.
There has not been any significant argument concerning this issue either in Parliament or elsewhere. The time has come for a full debate. It is long overdue. Successive Governments have demonised the perpetrators of crime and this has tended to harden public attitudes concerning the manner in which we treat our convicted prisoners. In the light of this, it is only natural that the general public dismiss unthinkingly claims by prisoners to some comfort or right.
"It doesn't matter how heinous the crime, everyone is entitled to have the basic right to vote"
says Mr Hirst.
Right On.
Sunday, September 25
Reflections upon Life, the Law, Politics and Democracy (or not, as the case turned out to be!)
by
ContraTory
on Sun 25 Sep 2005 18:00 BST
Before I blogged a single word, I spent hours glued to my PC screen reading literally hundreds of fascinating blogs. It was clear that nothing I might have to say would be of any interest to anyone. Rather than cutting my losses there and then, I struck upon the idea that I should write articles including about my experiences within the practise of Law, more importantly presenting a critical analysis of what is actually wrong with the System (and point out that so much is right) and how it could be improved. My critique would have necessarily strayed into the world of politics, where I had proposed to make sharp criticism of Government, both Conservative and Labour. I did not have any illusions that my posts would be widely read, or read at all.
The drawback to my grandiose scheme was that such articles had to be highly researched, providing facts and figures (and referring to the source of such information) in order to be authoritative. Each article would have required weeks of preparation and posts would have been infrequent. That would be no way to run a blog, as the most prolific and successful bloggers produce entertaining material upon an almost daily basis. Thus, my Gerald Elvidge blog turned out to be a damp squib. It was very lucky that few, if any people read it. Most readers had visited the site probably only in the mistaken belief that it was one run by that Gerald Elvidge who lives in Cow Bay, Nova Scotia. Anyway, I felt that I had an obligation to preserve for posterity the one and only post on that blog, so here it is.
"The subtitle 'Reflections upon Life, the Law, Politics and Democracy' seems to promise something very grand, yet is very far from what I had intended to convey. Perhaps I sought merely to suggest that my postings would try not to be banal or trite but even of that there cannot be any guarantee.
This Blog does not propose to be a personal but also very public diary of my daily trials and tribulations. Neither does it propose to dwell upon a single issue. Rather, I intend a personal log of my feelings about matters which are truly within my area of experience, knowledge or expertise (as limited as they might be.)
I do not have any axe to grind but am indifferent to little. I relish the cut and thrust of argument and am no stranger to playing the role of Devil's Advocate. That my Web Log will be no more than a feeble parody of those I have enjoyed reading during the course of the past few months, I have no doubt. I do not suffer any delusions that anyone will ever visit this site but should they do so, I welcome and invite their comment.
So, let battle be joined."
|
This Month
| January 2006 |
| Sun |
Mon |
Tue |
Wed |
Thu |
Fri |
Sat |
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
|
8
|
9
|
10
|
11
|
12
|
13
|
14
|
|
15
|
16
|
17
|
18
|
19
|
20
|
21
|
|
22
|
23
|
24
|
25
|
26
|
27
|
28
|
|
29
|
30
|
31
|
The Old and not so old, Bill
Lies, Damned Lies and Statistics
Blogs of a Conservative Persuasion
Blogs of a Liberal Democrat Persuasion
Blogs of a Liberal Democrat Persuasion (Not)
Strange People who think of England
Shocking, Politically Incorrect Sites
Putting the record straight
Recent Visitors
lizhism - Wed 07 Dec 2011 05:30 GMT
Macky2024 - Sat 03 Dec 2011 07:30 GMT
williyamberry - Mon 21 Nov 2011 06:42 GMT
wangmingjun123m - Thu 20 Oct 2011 04:18 BST
liang - Tue 11 Oct 2011 07:45 BST
Recommended Local Business
|