Says Eamonn Butler in The Times today, about the latest TV licence advertisement,

“It's time we citizens stood up against this state-sponsored intimidation, particularly now that anti-terror legislation is being used to spy on whether our dogs are fouling the pavement and that we're closing our wheelie-bin properly. And it's time we told our unelected officials that we don't much like “our town, our street, our home” being in their database - given their ability to lose it in the mail or leave it on laptops that they forget in the pub.”

It is more than fair comment to say that in recent years government has sought to criminalise an ever greater number of rule breaking activities and impose increasingly draconian penalties for “crimes” which though seen by the majority of the public as being worthy of some punishment are still considered by that same public as relatively  minor.  There is too much stick and not enough carrot.

“A key inquiry into the Met's handling of the Stockwell shooting has been shelved for political reasons”

proclaims the Evening Standard  today.

As I understand the situation, the publication of the report has been merely delayed…again, rather than actually “shelved”.  Nevertheless, any suspicion that the Government or one of its agencies might be suppressing a report, even temporarily, must be more damaging than the publication of the report, even if its findings are uncomfortable reading.

From having been able to successfully massage news for so long, Labour’s habit of walking into sucker punches has now become pronounced.

“Legal “vultures” are making £2 million out of the NHS each week” reported one Sunday Newspaper recently.

As usual, this figure was not put into context so as not to spoil a good story, but to quote Amanda Stevens, the vice president of the Association of Personal Injury Lawyers (APIL) who responded to the criticism in The Law Society's Gazette,

“It is insulting to imply that rectifying the harm caused to people who have been carelessly or recklessly injured is somehow wrong”.

Too right.

Writes Tom Uttley in The Daily Mail  today,

“If my guess is right, the great majority of fair-minded, reasonable Britons - those, anyway, who remember the cash-for-questions scandal that gave the Tory government such a bad name - will think: “Yes, of course. It's an established fact of history that Hamilton corruptly took money in brown envelopes for asking Commons questions.”

Guilty as charged, Mr Uttley.

Now reminded as to how the “brown envelope”  allegations came to be, I have revised my view.

Says James Swede, of solicitors' firm Darlingtons in a letter to the Law Society's Gazette,

“The Labour Party can accept funds without identifying the true source.  We, the legal profession, find ourselves bound by anti-money laundering regulation, which means that if we were guilty of the same offence we could face a lengthy prison sentence....”

It is right that our professions are bound by the very highest standards of integrity and that the penalties for failing to do so are harsh, but Labour should ponder why it believes that similarly rigorous standards (and penalties for breach of those standards) should not apply to those who purport to govern us.

It is a guiding principle in English Law that “Justice must not only be done, but must be seen to be done.”

R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259

Since 1997, the Government has honoured this general principle frequently only in the breach when arranging or overseeing an inquiry or review following some ministerial or departmental debacle, or alleged misconduct or lack of competence on the part of someone holding an appointed Office.  The investigation into the HM Revenue & Customs lost data fiasco is to be conducted by the Chairman of PriceWaterhouseCoopers, a company that undertakes sizeable projects on behalf of the Government.  Yesterday, the Metropolitan Police Commissioner Sir Ian Blair survived a no confidence vote by the Metropolitan Police Authority, a body that “exists to make sure that London's police are accountable for the services they provide to people in the capital”.  As it happens, it is a body where Government appointees outnumber the elected members.

Such inquiries might well be conducted with the utmost integrity and vigour, nevertheless the public's perception is just as likely to be that there has been a “fix”.  Any positive outcome for the Government or its placeman convinces few but more significantly does nothing to clear the air or settle the issue.  It is a simple matter for the Government to avoid such misperceptions by appointing patently independent inquiries or regulatory bodies, but it can do this only if it is fearless of the truth being outed.

Words fail me completely.

Julie Bindel reports in The Sunday Times today of the disinterest shown by the local Police and political authorities concerning the pimping of underage white girls by black and Asian gangs.  Apparently, cracking down upon such blatant criminality is seen as “contentious”, involving as it does, minority groups.  Says Aravinda Kosaraju, a researcher for the Coalition for the Removal of Pimping (Crop),

“What we are dealing with is gross criminality that should be confronted whatever the race of the perpetrator.”

According to Julie Bindel,

“A number of families affected by Pakistani pimping gangs have said that Police inaction and the refusal of white liberals to acknowledge the problem has resulted in more girls being at risk than ever before” (My emphasis.)

Says Ms Kosaraju,

“We are battling to get recognition that what we are dealing with is organised crime against children.”

There is a word for treating one group (in this instance white girls) differently from another purely on racial grounds.  Racism.

It suits this Government to boast that our citizenry has easy access to free or low cost legal advice.  Unfortunately, it does not want to pay for it.  However, rather than adopting the honest course of explaining that because of budget constraints it is either legal aid or the NHS (or defence, or education) the Government always seeks to blame greedy lawyers for the expense of the legal aid scheme.  Legal aid practitioners undertaking routine family work are paid a little more than a third of the private, high street rate.  Criminal legal aid lawyers are paid a little over a quarter of the going private rate.  The new costs regime being introduced by the Government’s quango, the Legal Services Commission, will result in legal aid practitioners receiving a pay cut.  The propaganda peddled by the Government, to the effect that legal aid lawyers are well paid and will be even more handsomely remunerated by way of the new costs regime, is worthy of Dr Joseph Goebbels.

The comprehensive legal aid system that we have in this country is the envy of the world, but if the Government doesn’t want to pay for it then it should say so and desist from attacking underpaid legal aid practitioners who have been the backbone of the system these past thirty years or more.

Legal aid bill 'highest in world'

Commenting upon developments in the Madeleine McCann case in Saturday’s edition of The Times, Professor David Cantor opines,

“It appears that the Portuguese police may have fallen into the trap of having first formed a view of who the guilty party is, then seeking out the evidence to support it. It is rare for people untrained in science deliberately to attempt to refute their own hypotheses: instead we tend to reinterpret anything that happens to fit in with the notion to which we have become increasingly committed.”

Lest the Portuguese Police take the rap all on their own, in all fairness it should be pointed out that this is a common failing of many Police investigations the world over, including those conducted by our own law enforcement agencies.

Why patterns of the past point to abduction by a stranger as most likely explanation

So, today in the High Court Mr Justice Beatson has upheld The Law Society's challenge against the Legal Services Commission (LSC) for having imposed unilaterally upon legal aid practitioners the new (and grossly one-sided) "Unified Contract".  Says the Law Society,

"The judge said that the LSC has breached Public Contracts Regulations 2006 and European Law in its reform of legal aid. Most significantly, the judge said that changes to the contract should not be made if they would, 'alter the economic balance of the contract to the disadvantage of those who have entered into the Unified Contract or to the disadvantage of some of them.'  The judge also noted that any proposed changes should be restricted to those envisaged by the initial White Paper. It is not clear at this stage how this will affect the LSC's proposals on fees and the Judge has granted the Law Society permission to appeal on the basis of public interest on this point…"

Well, this is what happens when you try to introduce ill conceived, half-baked reforms at breakneck speed.  It will be interesting to see the Government and the majority of the mainstream media spin this into a victory by lawyers (including the Judge) against the common interest.

A Home Information Pack, anyone?

"If services are cut as a result of the legal aid reforms I don't think I'm being unduly cynical in expecting the vast majority of media comment to accuse overpaid lawyers of letting down the public because the Government has stopped the gravy train."

Kit O' Brien

It is worth fighting to save the least loved branch of the welfare state - Jonathan Freedland

"A paedophile who raped a ten-year-old girl will be free in just four months after a judge said his young victim had dressed provocatively. Window cleaner Keith Fenn, 24, could have been jailed for life after twice attacking the girl in a riverside park,"

screams The Daily Mail this morning.  Mr Fenn it transpires, had pleaded guilty to two counts of rape involving a ten year old girl.   His co defendant Darren Wright, who had encouraged the commission of the offences, received a prison sentence of nine months after pleaded guilty to inciting the girl to engage in sex acts.  Paedophile, rape and attack are very emotive words.  One can imagine that even at this moment some dark shadow in government will be moved to draw plans to impose obligatory life-sentences for anyone convicted of rape involving a child under the age of sixteen years.  No doubt a stiffening of the law in such a manner would please Dr Michele Elliott of Kidscape who is reported by The Daily Mail as saying,

 "This sentencing is beyond pathetic, it is utterly derisory. For the judge to say that the way she was dressed in any way excuses a 24-year-old man having sex with her is disgraceful and ridiculous."

The NSPCC is reported to have added its two-pennies' worth,

"There's no excuse for having sex with a ten-year-old, no matter how she dresses."

Even the most cursory examination of the facts related by The Daily Mail  (and better still the original Oxford Mail report) show why the Judge was entitled, indeed obliged by justice to impose a short, rather than long, term of imprisonment. The defendants thought that the girl was sixteen years old.  It appears that the Crown accepted that presumption as being not unreasonable.  Mr Fenn was guilty of rape because as a ten year old, the Law deems the young girl involved as not being able to consent to sexual activity, thus notwithstanding that her involvement was consensual and not forced (in the true sense of the word) upon her, it was illegal.  The defendants did not realise that they were committing criminal offences. Nevertheless, that illegality has resulted in the defendants being sentenced to terms of imprisonment.  Harsher sentences would have been unfair.  His Honour Judge Julian Hall did justice to the case.

Oxford Mail - Judge claims paedophile victim 'dressed provocatively' - George Gaynor

Judge's mercy for the man who raped 'provocatively dressed' girl of ten

It is self evident that in matters appertaining to law and order, the Government has tended to dance (or rather, knee jerk) to the tune of the media.  It is frequently overlooked however, that a more insidious influence upon Government has been exerted by favoured focus and pressure groups.  Using their privileged access to Government, these groups have been able to set agendas and outmanoeuvre opponents. Presented with cogent argument and evidence refuting the efficacy of following a particular course of action, the Government chooses its moment and then ploughs on regardless. The Government’s desire to amend the law so as to ensure rape convictions are more easily secured is a classic example. Today, Clare Dyer, legal editor of The Guardian reports,

“The government is to press ahead with plans to reform the rape laws in an attempt to increase the low conviction rate, despite strong opposition from the judges who will have to put them into effect.”

The new devices that are thought will be effective include,

“a power for expert witnesses to give general evidence, not about the specific case, but about how rape victims generally behave, to dispel “myths” that might affect the jury's reactions and an automatic right to use the alleged victim's videotaped interview with the police in place of her main evidence at the trial.”

It is all going to end in tears.  Judges and advocates will all be painfully aware of their duty to ensure that the defendant has a fair trial.  Accordingly the worst excesses of the reforms will be mitigated.  Juries will suspect (rightly) that the legal system is bending over backwards to ensure a conviction and will react accordingly.  Thus the conviction rate will continue to hover at the current rate (between 5% and 6%) and the whipping boys, the judges and barristers, will again be described as “ignorant” and “devious”, respectively.

What the “reformers” fail to understand, is that action and reaction are equal and opposite.  The more they weight the system against the defendant, the more likely it is that the jury will smell a fit up and throw the case out.  Pressure groups have a skewed view of the world and can be forgiven their myopia, but Government must be more rational and must legislate on principle and compelling evidence alone.

Ministers defy judges on rape law reforms

Lovesick lesbian cried rape to frame an innocent

She cried rape, he must be guilty, right?

Barristers oppose 'dangerous' plans to reform rape law

Professor Jennifer Temkin rides again: devious barristers and ignorant judges

Government to load dice even further against fair trial

More nonsense from this partial New Labour Government

Our senior politicians might reflect how their headline catching pronouncements are interpreted abroad, as today’s article in Pravda about paedophiles and chemical castration shows.  One cannot help but suspect that something has been lost in translation.

Having discussed the purported success of chemical castration in Europe and some states in the USA, the Pravda article then continues incongruously about male pattern baldness:

“[Physical] castration prevents male pattern baldness if it is done before hair is lost, however, castration will not restore hair growth after hair has already been lost due to male pattern baldness...[and it] eliminates the risk of testicular cancer, and it may even reduce prostate cancer”

…nevertheless I’m minded to persevere with scalp massage and drinking cranberry juice, thank you very much.

Paedophiles will be castrated for their crimes in Britain

Joshua Rozenberg, Legal Editor of The Daily Telegraph, reports today of the response to the comments of Miss Barbara Hewson, a barrister, in the Bar Council's magazine Counsel regarding guidance issued to judges earlier this year by the Judicial Studies Board, which accepted the possibility that female judges, magistrates or tribunal members might wear the niqab, or veil, in Court.  Miss Hewson professed concern that the guidelines contemplated veiled judges and were “astonishing and subversive”, adding “the United Kingdom is not a sharia state.”

Responding, Fatim Kurji argued that,

“As for veiled judges and the suggestion that the “United Kingdom is not a sharia state”, this is what I call “the BNP argument”. It implies a woman who wears a niqab comes at the erosion of British values. Such an astonishingly offensive remark undermines the long-enduring libertarian values.”

I have always considered the question of female advocates or judges wearing a veil in Court as a non-issue, largely because so few would avail themselves of the opportunity.  From a practical point of view, the wearing of a veil by one party potentially limits the degree of interaction that would otherwise take place between judge and advocate.  Being able to see someone’s face greatly assists communication.  In Court, the quality of communication is frequently decisive. The wearing of a veil in Court would certainly be a significant departure from previously accepted practise.

Where I take issue with Miss Kurji is that Miss Hewson is perfectly entitled to make the points she has and by doing so has not presented “the BNP argument.”  It is not acceptable that anyone who challenges the orthodoxy of a minority group is accused routinely of prejudice or worse, branded as a bigot.

BNP jibe at lawyer who opposed veiled judges

Recently The Times reported that the Association of Chief Police Officers (ACPO) had created a team called Road Safety Support, to help the Police deal with the increasing number of drivers seeking to contest speeding tickets by citing “legal technicalities”. The legal technicalities included challenging whether a speed camera was properly calibrated, that speed signs were obscured or cameras had given false readings.  In many cases the Police have failed to secure convictions because they failed to comply with certain aspects of the law when enforcing speed limits.

It is curious that the Police find it exceptional that they must comply with the law when seeking to secure a conviction.  In this country, for centuries it has been incumbent upon prosecuting authorities to prove their case by presenting to the Court sufficient evidence of a defendant’s guilt.  Should radar equipment not be calibrated properly so that it records a speed of 33 mph for a vehicle travelling at 29 mph in a 30 mph limit, the driver is clearly not guilty of speeding.  Where a speed sign is obscured, natural justice requires that a driver unfamiliar with the area should not be prosecuted.

The setting up of this new unit is tantamount to the Police admitting that they were not exercising due diligence when presenting some of these cases to the Court and were failing to ensure that they possessed solid, reliable evidence.  It is nothing to do with “loopholes” and everything to do with competent evidence gathering and prosecution.

The Times - Speeding drivers with loophole lawyers

Tough on Liberty, tough on the causes of Liberty

Malaysia is a forward-looking, democratic country that abides by the rule of law.  It happens also to be a Muslim country.

According to the New Straits Times, at the High Court Registry in Shah Alam, the state capital of Selangor, on 14^th May 2007 a Hindu man, Mr V. Suresh, applied for a writ of habeas corpus seeking the release of his wife Siti Fatimah Abdul Karim (who I shall refer to, wrongly, as Mrs Suresh) from detention at the Baitul Aman Faith Rehabilitation Centre, where she had been sent by the Malacca Syariah High Court on 8^th January 2007.

Mr Suresh had married his wife according to Hindu rites on 10^th March 2004 at a Hindu temple in Malacca.  They lived together in Malacca and together had a daughter Diviya Dharshini, born on 19^th December 2005. The daughter was raised according to the Hindu religion.  By all accounts (and unsurprisingly) Mrs Suresh had professed the Hindu faith and had changed her name.  Following the marriage, she had attempted to formally change her name and religious status from Islam to Hindu and was advised by the Melaka Islamic Religious Department to make a formal application in this respect to the Malacca Syariah High Court.  The application was filed in late 2006 and the first hearing took place on 8^th January 2007.  Upon attending the hearing, Syariah Court officials detained Mrs Suresh and placed her in the Baitul Aman Faith Rehabilitation Centre.

You might think that my righteous indignation arises from the knowledge that this poor woman could be incarcerated simply for choosing to convert and practise the "wrong" religion. Whilst it is another example of how religious courts established to protect and advance the interests of their own faith cannot be trusted to apply justice without fear or favour, affection or ill will, in fact my ire is raised because in Malaysia, unlike the United Kingdom, its citizens still have an unrestricted right to apply for a writ of habeas corpus.

On 2^nd May 2007 a twenty-nine-year-old married female teacher, Jenine Saville-King, was found not guilty of eight charges involving alleged sex offences against one of her fifteen-year-old male pupils, at the conclusion of her trial at the St Albans Crown Court. Seven of the charges related to alleged sexual activity with a child and one, abuse of trust.

The Crown’s evidence involved not only the “victim’s” evidence, usually the only evidence available in a large number of cases involving sexual offences, but also Mrs Saville-King’s admissions of “having strong feelings for the boy” and of having sent six thousand text messages to him over a six-month period, including one hundred and thirty-one messages in a single day.  The Crown was able to produce records of these text messages as well hundreds of pages of MSN messages between the two.  Mrs Saville-King denied there had been any sexual relationship between her and the boy and claimed there had been only an emotional bond.  In effect, the defence attacked the boy’s character and called him a liar.  The jury duly deliberated upon the evidence and dismissed the charges.  I have no doubt that their decision was right.  Twelve of Mrs Saville-King’s peers weighed the evidence and found it wanting.  Anyone who read the lurid details of the trial published in the national press might raise an eyebrow, but bear in mind that press reports are supposed to entertain and juicy summaries never do justice to what is actually said in the court room. Every day the jury quietly made their notes, digested and balanced the evidence, gave all due consideration to what had been said, used their judgment and did their duty in reaching a just and fair verdict based upon all of the facts. At the end of the day, they preferred the account of Mrs Saville-King over the boy’s.

With good reason, there will not be any cry that justice has not been done, that young boys are being abused by teachers who are getting away with it.  Nor will there be any demand for a change in the law making it easier to convict defendants in cases of this nature.  How very different when the offence is one of rape by a male against a female.

After the trial, Mrs Saville-King described the allegations against her as “boastful fantasies and dishonest, spiteful untruths.”  Judges and juries sitting in Criminal Courts regularly face witnesses who give dishonest and untruthful testimony.  That these witnesses are found out depends upon allowing advocates to vigorously challenge their version of events, including putting to them matters appertaining to their character.  Humans tell lies, sometimes.

A seventeen-year-old teenager who made false allegations of rape against an Asian taxi driver, Aftab Ahmed, told her lies not “out of malice, but naivety and immaturity.”  Mr Ahmed did not suffer the ignominy of charge, remand in custody and the stress of standing trial, but he did lose his home, livelihood, reputation and found his family relationships and marriage under strain in the fourteen months it took for the lies of his accuser to be exposed in Court. The young lady in question received a four-month detention and training order from the Bradford Youth Court after admitting (very belatedly) a charge of perverting the course of justice.

Teacher cleared of having sex with pupil

Girl’s rape lie destroyed taxi driver’s life

The Chief Constable of North Wales, Richard Brunstrom's most irritating fault is that he almost always overstates his case, thereby undermining it.  Excessive speed is a killer, but there is inadvertent speeding and there is deliberate (often reckless) speeding. In failing to differentiate between the two he alienates those very citizens whose support he needs, just as with his beloved speed cameras.

It was unacceptable that he had not sought the permission of the families whose sons had been killed before showing photographs of their mutilated bodies to journalists and local authority representatives at a meeting to promote his Force's road safety work. Nevertheless, it is right that we be reminded of the consequences of irresponsible speeding and substandard driving, combined.  It is so easy to forget that in a collision, even when protected by seatbelts, airbags, collapsing bonnets and safety bars, the human body can suffer serious injury.  At high speeds it can simply disintegrate.

Shock tactics such as these should not be used too often lest their impact be weakened and relatives' permission for publication should be sought, always.  Had Mr Brunstrom not had the reputation of being the  "Mad Mullah of the Traffic Taliban" and with the permission of the relatives, perhaps he would not have caused such a furore.

Richard Brunstrom: Chief Constable and now humble Blogger

Since 1990, three hundred and six level crossings, approved by an arm of Government that did not have the legal power to do so, have as a consequence been erected illegally. Drivers who have been fined and had their licences endorsed with penalty points after being caught going through red lights at these crossings will now be able to challenge their convictions as they had not in fact committed any offence.

The Government is unlikely to disclose the location of these illegal rail crossings.  According to Dipesh Gadher of The Sunday Times, a Government source has said:

“We will try to make it as difficult and as expensive as possible for anyone to challenge us in the courts. Even though these drivers might have been wrongly penalised due to a technicality, we would use the moral argument that they were potentially endangering lives by ignoring a red light.”

Government has bungled.  It has not acted within the Law.  No matter how undeserving the appellants, they were not breaking the Law.  The Government should come clean and publish details of the "illegal" crossings so that the motorists involved can lodge appeals against their convictions.  In applying laws, rules and regulations approved by Parliament, Government owes us a duty to comply itself with those very prescriptions - to comply with the Rule of Law.  Relying upon "moral argument" when the Law is against you is a slippery slope.  The Government should do the right thing.

The BBC has highlighted a report prepared by Rob Allen on behalf of the Centre for Crime and Justice Studies that claims that too many children are prosecuted and criminalised.  Previously Mr Allen had been engaged for eight years as a member of the Youth Justice Board and as such it is safe to assume that he is well versed in the realities of child offending.  He considers that there should be greater emphasis on the educational, social and mental health needs of younger offenders. Mr Allen believes that we have become preoccupied with protecting the public from young people and that there is a growing intolerance of teenage misbehaviour of all kinds.

It is easy to dismiss Mr Allen's views as typically air-headed, left-wing liberal and soft on crime, but I happen to agree with him. More children are badly behaved, or allowed to be badly behaved than when I was a child.  Similarly, a growing number of young adults no longer appear to know how to conduct themselves responsibly in public.  The rule and convention abiding public have come to feel besieged and the howls of the tabloid press purporting to speak on their behalf has bullied successive administrations Labour and Conservative into "doing something about it".  The "something" has borne all the hallmarks of being knee-jerk, rather than being calmly and coolly considered whilst in possession of all the material facts.  It was inevitable that once the age of criminal responsibility was lowered, an increasing number of younger children would be sucked into the criminal justice system and most unnecessarily.

There are offences so bad that even a child should know that they are wrong, but nuisance and silly offending should not be the subject of criminal sanction.  "Pecking order fights" in the school playground now result in prosecution.  That should not be so.  Such behaviour represents a phase of male development.  It is ridiculous and wrong-headed to apply the same opprobrium or a criminal sanction to a playground scrap between two thirteen year-old boys as to a bar room brawl involving two men.  Hormones or whatever, it is a phase boys "grown out of" as they mature.  Only males with serious problems still fight by the time they reach their late teens and early twenties.  It is those individuals with whom the State ought to concern itself.

The BBC, in its usual impartial and helpful way, reminds us in its report of the age of various offenders who committed very serious crimes, children such as Jon Venables and Robert Thomson, Danny and Rickie Preddie and Mary Bell. However, these children were the exception to the rule.  It is important to point out that crimes of that  gravity committed by children occur very rarely. The murder committed by Mary Bell took place in 1968.  James Bulger's murder by Venables and Thomson took place twenty-five years later in 1993 and Damilola Taylor's in 2000.

In essence, most child crime is very small beer and is committed largely for reasons other than just plain "badness" or "poor upbringing".  Children can be immature and silly, behave irrationally, empathise with others to a limited degree only or not at all.  They possess all manner of "flaws" caused by their lack of life experiences which can limit their being able to behave well or responsibly in each and every social situation.

The truth is that in most cases "kids" just grow up.  "Special intervention" by the Court system is more likely to do harm than good.  The Nanny State should heed this research and just butt out.  The Shadow Home Affairs minister Edward Garnier should take note.

Michael Horsnell reports in The Times today about the case of Warren Blackwell who was convicted in October 1999 of indecent assault after a woman claimed that she had been attacked by him in the early hours of New Year’s Day, 1999. Initially Mr Blackwell had been sentenced to a three-year term of imprisonment. In March 2002 the Court of Appeal refused him permission to appeal and upon a cross-application by the Attorney-General arguing that that sentence was “unduly lenient”, increased the sentence to one of five years’ imprisonment. Following the involvement of the Criminal Cases Review Commission and fresh evidence coming to light, the case was referred back the Court of Appeal and yesterday Mr Blackwell’s conviction was declared unsafe.  The new evidence disclosed that the complainant had made “strikingly similar allegations” about other sex attacks, had an ability to lie and a possible propensity to self-harm.

The Government is very likely to change the law to make it easier to convict a defendant in cases of this nature.  In effect, the new rules that are being proposed will make it more difficult for defence lawyers to test an alleged victim’s veracity.

Better for ten innocent men to be convicted, than for one guilty man to go free.

Professor Jennifer Temkin rides again: devious barristers and ignorant judges

Bending rules to ensure higher conviction rates is fraught with danger

ContraTory rides again (or the case of a woman scorned?)

The Daily Telegraph

Two sisters, Joyce Burden 88, and her sister Sybil 81, are liable for a large bill in respect of inheritance tax when the first dies.  They have brought a test case against the Government before the European Court of Human Rights, claiming discrimination against heterosexuals.  The case is the first of its kind since the law was changed to allow gay and lesbian partners the same inheritance rights as married couples.

Property left by one spouse to the other or inherited by a married or civil partner is exempt from the tax. Close relatives, such as siblings and descendants, are not eligible to register as civil partners.  The sisters  claim that the inheritance tax laws breach their right to enjoy their property under the first protocol to the Human Rights Convention and the anti-discrimination provisions of Article 14.

The Government claims that,

“Couples enjoy a relationship of choice.  Siblings however, enjoy a relationship of consanguinity. Further, the relationship between siblings is for ever, whereas couples may part.”

Adding,

 “... a couple made a financial commitment by making a personal commitment to each other.  This was not the case with siblings.”

For political reasons, the European Court will find against the sisters but the Government's arguments are nonsense.  When the inheritance tax “breaks” applied only to the special relationship of marriage, there was a clear and obvious difference between “marrieds” and “the rest”. The only real difference between a married or civil partnership and that of the sisters is that it is presumed that there is or was a sexual element to the former.  Consanguinity is an irrelevance.  Here, the sisters chose to live together (initially to care for their parents) and have made a de facto personal commitment, including a financial commitment, to each other. As with all partners they could, if they wished, separate. Thus, there is no significant, material difference between them and any gay or lesbian couple living together.   In principle, they should win the case.   Once again this Government, in pursuit of its political agenda, has not thought through the blatantly obvious consequences of its legislation and caused considerable injustice.

Sisters go to court over 'gay bias' in tax laws

This could have come from the mouth of Tony Blair himself or any one of his Home Secretaries.

Draw attention to an “injustice” to a “victim” or against the “law abiding majority" and then drum up ill-informed public support for a change in the Law or procedure – change that never had been necessary until this incompetent, mindlessly tinkering  New Labour Government assumed power.

Before slamming (to use a word much beloved of the Press) judges or the criminal justice system, just bear in mind which Government enacted the “soft” sentencing laws and some of the procedures that  have to be applied.

Everything this New Labour Government touches turns eventually to dust.

Loss of confidence in courts taking legal system into dangerous terrain

Poacher who turned gamekeeper

I understand that one of the consequences of Mel Gibson’s outburst against the Jewish Police Officer who arrested him in Malibu for an offence of drink-driving last week was that one of his new projects, a mini series which was to have been entitled “Holocaust”, has now been shelved.[1]  This might prove to be good news.  Given his predilection for starring in epics whose historical accuracy was severely challenged in a very particular respect as evidenced in “Braveheart” and “The Patriot”, there was always the suspicion on this side of the Pond that Mr Gibson’s series might have sought to cast the English as the villains of the piece and the Nazis as poor schmucks who took the rap. Perhaps we should be thankful for small mercies.  In all other respects I wish Mr Gibson a successful and speedy rehabilitation.[2]

So, the Government has finally announced what it had already decided as long ago as 2004.  The Child Support Agency (CSA) is to be axed.

The original scheme was the brainchild of the Conservative Government of Mrs Thatcher.  It was designed to bring some semblance of consistency to the making of child maintenance assessments, get lawyers out of the process and thereby reduce the cost to the Legal Aid Fund and generally.  It was also to ensure prompt and complete recovery of maintenance assessments made, something that the Court system (usually the Magistrates’ Court) was criticised for not having done effectively. A new concept was introduced too, that any child maintenance assessment made should reflect the actual financial cost of raising a child.

Extraordinarily, the coming of the Child Support Agency glided beneath the radar of most of those professionals who could have pointed out that the idea had some very basic but fatal, flaws.  The very factor that made the wheel fall off in so many Court enforcement proceedings was rearing to cause similar mayhem within the child support system.  The only difference was that the Court had considerable experience in dealing with recalcitrant payers.

It was so obvious that the Child Support Agency should prove so ineffective in recovering maintenance from “absent parents”.  It was even plainer that the Agency’s staff would become demoralised by their inability to make the system work and the criticism to which they became subjected from all quarters by reason of that failure.  What was not so clear at first was that the Agency should prove to be such a monumental waste of money.   Nevertheless, even before John Major’s Administration had quietly slipped beneath the waves it had become patently clear that the concept of a Child Support Agency was “broke” and yet Mr Blair’s Government persevered with it for nine more long years.

Today we were informed by  Work and Pensions Secretary, John Hutton that the Agency will be replaced by a new “smaller, more focused” body as part of a radical reform of the maintenance system, but not yet.  We shall have to await the publication of a new White Paper later this year “setting out in greater detail the Government's plans.” 

The Child Support Agency saga is an all too conspicuous example of how incompetent this Government has become. 

I have always felt that there was something of the wailing siren about Richard Brunstrom. Not the police variety of siren you understand; rather that of Broadmoor when someone has gone AWOL.

Perhaps he is just the victim of a bad press.  If so, no doubt he will set the record straight in his new blog.

Brunstrom's Blog

Michael Horsnell's article in The Times

Association of British Drivers

BBC News - Brunstrom: Road to controversy

Jasper Gerrard meets Richard Brunstrom

In any liberal democracy, an independent, strong legal profession is allowed to defend fearlessly and robustly those who the State charges with criminal offences.  No matter how heinous the offence or how unpopular with public opinion the defendants’ cause, as a matter of course their legal representatives are expected to vigorously test  the prosecution case and unflinchingly put their clients’ case.

Arani & Co is a firm of solicitors that represents very unpopular clients.  By all accounts, they represent them very well, or at least well enough to make the Police and other elements comprising the State to take umbrage.  Now we are told that some of our representatives in the House of Commons have demanded that the Law Society investigate this firm, to establish whether they have acted throughout with the necessary degree of compliance with amongst other things, professional ethics.  Of course, it is very important that any profession is policed to ensure that it maintains the very highest standards, but my concern is this. Government, particularly this Labour Government, does not like lawyers (save those who represent its interests, almost invariably against Joe Public.)

It would be a simple matter to make an example of one firm which is unpopular with the public, a signal of intent that the HM Government is not going to have any truck with any other law firm that defends causes that it considers unpopular.  Defend who we consider to be indefensible and you will be investigated.  The message is all too clear.

Fran Yeoman reports in The Times today about a trial involving an alleged stalker namely a Maria Marchese, who is said to have terrorised a leading psychologist, Jan Falkowski, by bombarding him with threats and forcing him to cancel his wedding.  The Court was told that Ms Marchese ran a “prolonged and malicious campaign” against Mr Falkowski and threatened to kill the woman who was his fiancée, a Miss Deborah Pemberton.

I do not know anything about the case other than that which I have read in The Times report and for all I know, at the conclusion of the trial the jury might throw out the whole case against Ms Marchese. If the allegations are proven, the case is an example of how dangerously irrational a tiny minority of people can become when antagonised in some way.

We are told that part of Ms Marchese's campaign of harassment involved her making an accusation in January 2004 that Dr Falkowski had raped her at St Clement’s Hospital, East London, where he worked.  The prosecution discontinued the case against Dr Falkowski in August 2005.

I should like to know how and where Dr Falkowski's case appears in Home Office statistics.  I can make an educated guess.  It will be one of those cases recorded in that large catchall category "unsuccessful rape prosecutions"; a set of figures that are oft misunderstood by those of a lazy mind, myopic single-issue tendency or challenged critical faculty, as representing the mythical 94.4% of prosecuted rapists who escaped justice.

Frances Gibb reports today in The Times that,

 “Ken Macdonald, QC, the Director of Public Prosecutions (DPP), wants a comprehensive review of prosecution policy because of public concern that killer drivers often escape with a fine.”

We are informed that,

“A spokesman for the Crown Prosecution Service (CPS) said that the review, including wide public consultation, was being undertaken because of continuing concern about the prosecution of road traffic deaths.”

The consultation is in conjunction with the passage through Parliament of the Road Safety Bill, which creates a new offence of causing death by careless driving, with a maximum penalty of five years’ imprisonment.

It is important to consider what is meant by “public concern” and “wide public consultation”.  In the main, if not exclusively, “public concern” is that unrepresentative but vociferous cacophony that is passed off as principled argument by our tabloid press, single issue, largely anti motorist organisations and a Big on Talk, Small on Delivery Government that has lost control of its own political agenda.  The Labour Government’s understanding of “consultation” is the process by which persons of a like mind meet to agree that something has to be done and discuss what is to be done and how.  It is in short, the usual partial consultation stating the “vice” to be corrected and inviting “friendly” responses as to how to deal with “the problem” and not to discuss whether there is any real issue to address at all.  One of the organisations likely to make representations is the charity  RoadPeace. As an organisation supporting families bereaved by road accidents and ostensibly promoting “road safety” it suffers from the flaws of a single issue group.  Concentrating on a small number of cases involving horrific circumstances, its prime raison d’être is to argue that motorists who kill and maim should be punished with long terms of imprisonment.  Such consultations patently do not admit of any balance.

In its pursuit of what it perceives to be popular opinion, the Government has identified two “problems”.  As it is too difficult to prove the charge of dangerous driving, we are told that too often the prosecution prefers the lesser charge of careless driving, which results in the defendant motorist being fined instead of imprisoned.  The second problem is that even when a serious driving offence is proven the prison sentence, if imposed at all, is short.  We return here to that old chestnut low conviction rates.  In essence we are being asked to believe that soppy juries will not convict drivers of dangerous driving (on the “there but for the grace of God go I” principle.)  This is nonsense.  Juries will convict if the evidence is strong enough. The obvious fact is that in the majority of cases though the carelessness is manifest, dangerous driving is not.  Besides, what makes the Government think that whilst a jury would not convict a defendant for dangerous driving because the sentence would be one of imprisonment, it would convict in a case involving the new careless driving offence where the sentence is still going to be one of imprisonment?  It seems to me that if the soppy jury argument is correct, the jury will be reluctant to convict for the same reason when dealing with careless driving cases.

In truth, a defendant walking free is considered by Government to be a failure of the criminal justice system rather than a success; an innocent man tried by his peers and the prosecution case found wanting.  It is manifest that the real problem is the Government, as part of the machinery of the State acting in its role as the investigating authority (in the guise of the Police) and prosecutor (the “Crown”) does not like to lose or be seen to lose.   When the result does not please the Government, it is because the judge/jury/law/rules of evidence are wrong.

In plain English, in the main the Crown cannot secure a conviction on the serious charge of dangerous driving (which is imprisonable) because that charge is not clearly made out on the facts.  However, a small number of unrepresentative pressure groups aided and abetted by self-appointed “populist” commentators who shout the loudest, take the view that because someone has died as a result of a motorist’s manner of driving, that motorist has to pay with the loss of his liberty.  This is nothing to do with Justice but everything to do with revenge.

At this point, perhaps we should remind ourselves of what careless driving entails.  According to s.3 of the Road Traffic Act 1988, a person is guilty of an offence if he drives [a vehicle] on [a road] without due care and attention or without due consideration for other persons using [the road]. The standard of driving is widely accepted as being that of a reasonable, prudent and competent driver in all of the circumstances of the case.  The standard has an element that is to be judged objectively (the reasonable, prudent and competent driver) and one that is subjective (the circumstances of the case.)  In the case of R v. Krawec (1984)[1] Lord Lane C.J. stated that:

 “The unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty.  The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver; in other words, the degree of carelessness and culpability.  The unforeseen consequences may sometimes be relevant to those considerations.  In the present case the fact that the appellant failed to see the pedestrian until it was too late and therefore collided with him was plainly a relevant factor.  We do not think that the fact that the unfortunate man died was relevant to the charge.”

This is the whole crux of the matter.  A tiny error of judgment or lapse of concentration can lead to a person’s injury or even death.  The consequence of that minor error can be all out of proportion to the carnage caused.  It is unjust to render a motorist liable to imprisonment simply because his momentarily sub-standard driving causes death, but this is precisely the effect that the Labour Government’s new Road Safety Bill will have.  We all make errors of judgment when driving but most of us are lucky enough not to be involved in an accident. Only a few motorists are involved in an accident where someone is injured or even killed, but that motorist could be any one of us.

Prison should be the sentence of last resort when a driver has been convicted of a grave, inexcusable instance of dangerous driving.    It is completely unacceptable to attach the punitive penalty of loss of liberty for careless driving.  There was a day when only serious, hardened criminals faced the prospect of lengthy prison sentences for their wrongdoings.  Now it is proposed that we all should.

We are not convicting enough criminals! (So now, anyone will do!)

As the Home Office research conducted by the usual suspects has now begun to appear in the liberal legal press with the expected wringing of hands and gnashing of teeth, it was fortuitous that this article appeared in the press.  True to my promise, I shall continue to highlight the dangers of weighting the trial process against the presumption of innocence or by well-meaning but misguided procedural devices, rigging the evidence against the defendant.

Elvira Fairhurst, a teacher who was aged forty-nine years, had a four-month affair with a fourteen year old pupil in her charge.  The boy suffered from learning difficulties.  The affair came to light when a crane driver witnessed her having sexual intercourse with the boy in her car, in a car park.  She was jailed for four years after pleading guilty to eleven counts of sexual activity with a child.

By all accounts, until her frolics with the boy, Mrs Fairhurst was a regular churchgoer who had led a constructive and exemplary life.  The point of this article is not to dwell on her criminality.  The poor woman will be punished enough for her four months’ of madness.  It was perhaps a small mercy that she was a woman.  Had a male teacher so ravished a fourteen year old girl, we know that public reaction would have been wholly different; hysterical and disproportionate, in fact.  The point is this: when first interviewed by the Police, Mrs Fairhurst claimed initially that the boy had sexually assaulted or raped her.  On this occasion, the male had an independent witness who could testify to the contrary.

Let me state my position very carefully.  I believe that an effective Criminal Justice System should convict and punish[1] the guilty.  It follows that such a system must acquit the innocent. Any system that convicts the innocent cannot be described as a Criminal Justice System at all.

Alan Travis of The Guardian reported today that Home Office sponsored research indicates that barristers and judges are undermining rape reform.  According to Mr Travis,

“The research, published yesterday, says that rules introduced in 2000 to ban defence barristers from depicting rape victims as promiscuous have been “evaded, circumvented and resisted” with the result that the reform has failed to have any impact. The finding will be a further blow to Home Office ministers and the law officers, who have tried for years to find ways of boosting the low 5.6% conviction rate in rape cases (my emphasis.) The study of the case files of more than 400 rape trials says that defence barristers used “devious tactics” to ensure that evidence of the sexual history of the victim was raised in two-thirds of the trials that were observed.”

Also,

“the difficulty is compounded by the fact that almost half the judges interviewed by the researchers were unaware of the crown court rules setting out how the ban should work: "Some judges had only a vague knowledge of section 41 [of the 1999 legislation which contains the ban] and few non-legal practitioners and no complainants understood the new law.”

Worse still,

“Findings from case files, trial observations and interviews raise the possibility that both prosecution and defence share stereotypical assumptions about ‘appropriate’ female behaviour and that these continue to play a part when issues of credibility are addressed in rape cases”

and,

“defence lawyers still used evidence and “rhetorical devices” to impugn the character of rape victims and make their testimony less credible, and were often unchallenged by the prosecution or the judge.”

The authors of this Home Office sponsored report were Liz Kelly, Jennifer Temkin and Sue Griffiths.  Professor Temkin features in one of my posts late last year.  Since 1982 she has spent a considerable amount of time researching and writing about the crime of rape.  I suspect that she has a thing about the subject.  Certainly a Channel 4 Dispatches programme to which she contributed in March 2002 unquestionably made some people angry because of its perceived bias.

As a result of this research the Solicitor General Mike O'Brien has written to the criminal law procedures committee asking it to tighten the rules. Apparently the Bar Council has been put upon also to set up a training course for barristers involved in rape cases to ensure they deal with the issues involved with “greater sensitivity”.

I shall not revisit my thoughts about the issue of he purportedly low 5.6% conviction rate in rape cases.  Neither shall I make great play of the fact that since 1997 and the gradual politicisation of the Civil Service; research sponsored by Government departments seems to have been sought in the main from trusted sources known to be sympathetic to the view of the New Labour Administration.

Professor Temkin might be very learned and well researched in her chosen specialist subject but I detect the myopia of single issue-ism.  The findings of Ms Temkins’ research reported by Mr Travis’ are hard to believe.  We are told that “…almost half the judges interviewed by the researchers were unaware of the crown court rules setting out how the ban should work.”  It took me just seconds to access the relevant sections and narrative on my electronic version of Archbold, the Crown Court bible, the tome that each and every judge who sits in a criminal Court possesses at his fingertips.  If I can check the rules so easily and grasp their import, it is a fair bet that learned counsel and judges do routinely, too. Whilst I accept that applying the rules and ensuring that a defendant had a fair trial might prove a little fraught, particularly as ensuring a fair trial is the judge’s foremost duty, it is utterly implausible to suggest that almost half the judges were unaware of the Crown Court rules.

The weakness of nearly all academic lawyers is that not having had the opportunity to spend years at the “coal face” they never develop any significant insight into the human condition or any deep or meaningful understanding of what a real live trial involves.  It is not sufficient to attend a handful of specially selected trials here or there, making copious notes, poring over the transcripts and exhibits and picking holes in the advocates’ cross examination, submissions, speeches or the judge’s decisions or closing summary. It helps if you were present in the Police Station when the defendant was detained, interviewed and charged.  You might have to attend numerous preliminary Court appearances or make a succession of unsuccessful applications for bail. Proofing witnesses including the defendant, attending identification parades, examining and cross-referencing prosecution witness statements, appointing forensic experts on behalf of the defence, all provide an opportunity to gain that insight that allows you to make sense of the system and why it works the way it does.  It is whilst performing these functions that you might develop a sense of unease about the prosecution case.  On paper the defendant might look as if he is bang to rights but you might have a sense of there being something that isn’t quite right. That sense of unease may arise because having become acquainted with the defendant over a course of months (and probably having met his family, friends and girlfriend) it becomes incongruous that this defendant behaved in the manner alleged by the victim.  To the defence lawyers, the defendant is a human being whose life, career and future become worth defending. Thus whilst it is easy for some academic lawyers to form a view that the low rape conviction rate is irrefutable evidence that heinous monsters responsible for routinely raping thousands of  women each year are “let off” by the Courts, those involved in the process, including jurors, know different.

In a rape prosecution, it is almost invariably the case that the defendant must claim that the complainant is a liar.  For that reason, the cross examination is very robust and must be robust.  The judge understands this as does counsel for the Crown. The “character assassination” the feminists complain of arises from this process.   The complainant’s credit is being challenged, so when the defence cannot be conducted without being hamstrung by being barred from raising the sexual history of the victim (as will very often be the case) that evidence has to be heard.  It is insulting to the intellect of the jurors to suggest that a defendant can effectively destroy a prosecution case by falsely besmirching a truthful complainant’s character.  If the Crown’s case is strong, any character assassination will rebound upon the defendant.  Suggesting horrible things about the complainant has no effect unless there is something else about the evidence (the Crown’s evidence, not the defendant’s - he would say he didn’t do it, wouldn’t he?) which makes the jury think twice.

This discredited Government will no doubt continue to tinker with the rules in a vain attempt to increase conviction rates for rape and indeed all other offences.  The judges and barristers (both for the defence and Crown) will continue to use or allow evidence and “rhetorical devices” to impugn the character of rape victims and make their testimony less credible in an endeavour to ensure a fair trial.  Harry will become even angrier and just to prove our point people like me will increasingly flag and highlight cases where women are convicted of making false allegations of rape.

Towards the end of May 2006, animal rights activists discovered the secret location of the accommodation in the Cotswolds village used by builders working on the construction of Oxford University’s new £20 million laboratory in South Parks Road.  Speak, the group responsible for the Oxford University anti-vivisection protests, posted the address on the internet. The group had intended to demonstrate outside the men's quarters today. The demonstrations were already restricted at the building site by an injunction granted to the University. Furthermore, to prevent the activists from harassing the workers at their living quarters, the injunction had forbade anyone from following vehicles ferrying contractors to the site.  Now a High Court Judge has extended the injunction to cover the workers' living quarters. Although Speak says it uses only legal means[1] to protest against vivisection, there are concerns that high profile sympathisers such as Morrissey will encourage hard line activists to go beyond peaceful protest. However, Thames Valley Police seem unimpressed by such an argument.  They are reported to have said that they were not investigating the singer's comments because there was,

 "no reasonable prospect of getting anything out of it in terms of a conviction".

This limp response from the Police is unimpressive, not only because it is of dubious validity and will be seen as carte blanche by the protesters but also because as is so often the case, the Police forget that their brief is to not only to detect crime, but to deter it.  They can make their presence felt and show that they are not putting up with any harassment or intimidation against the workers by these “protesters”.

No one will have been upset by the twenty-eight year minimum sentence imposed upon two ruthless, sadistic killers who beat Jody Dobrowski to death for no better reason than because they disapproved of his lifestyle.

This is the first occasion upon which a judge had weighed the issue of homophobia in determining a minimum term.  As reports Dominic Kennedy of The Times today,

“The sentencing heralds a new era when murderers motivated by their victims’ sexuality will be jailed for twice as long as those convicted of other murders. Similar heavier penalties apply when the ground for murder is race, religion or disability”

It now seems that Stonewall, the gay rights group which campaigned for heavier than usual penalties for crimes involving homophobic hate crime, will now press for incitement to hatred of gays to be outlawed.

Call me self-centred, but I feel distinctly undervalued by virtue of the fact that had the defendants beaten and kicked me to death, the extinction of my life should have resulted in a substantially shorter life sentence being imposed, because I do not fall within one of those self-certified, minority, perceived victim groups.  Murder is murder.  It is discriminatory for a murder to be deemed more serious simply because the victim was singled out due to the fact that he was of a different race or gay.  Though single issue activists will argue that the murder of a victim simply because he was gay or of a different ethnic background is worse than when the killing was just because the victim wore the wrong football supporters’ scarf or was wealthy or whatever, they are utterly wrong.  The killers Thomas Pickford and Scott Walker richly deserve their twenty-eight year prison term, but that sentence should have applied no matter who they had killed in that manner.