The Survey, The Ballot and The Misunderstanding

Posted on by shadowofthenoose
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spacer Much has been written over the last few weeks about The Survey, The Ballot and The Misunderstanding, not to mention previous debates about The Deal and quite rightly, different views have been expressed, particularly across the Social Media.

Perhaps some will be greatly relieved that I am not going to repeat in any great depth what has been said, although I particularly commend the recent posts by the respected and intellectually independent journalist @JackofKent

I must begin by putting a few statistical records straight.

When Michael Gove attempted to undermine the turnout of The Ballot and therefore the ‘YES’ vote I expected the CBA to put him right. When the membership voted to accept The Deal the turnout was 1878 and Nigel Lithman, the then Chair of the CBA understandably used it as a decisive mandate to accept The Deal. The Survey which the CBA described in a Tweet on the 21st May 2015 as representing a ‘strong turnout’ garnered 1385 voters. So when we learn that The Ballot attracted 1777 participants, I think it can be accepted that that too fits neatly into the ‘strong turnout’ category, and deserves to be treated with respect and not lightly interfered with.

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Yet when Gove sought to immediately undermine the will of the CBA membership by criticising the turnout, we heard little defence of its legitimacy from its authors. Perhaps even more disappointing is that despite this strong turnout there are still concerns, presently coalescing around a CBA Executive meeting on Monday, that the will of the majority of CBA members who voted is at risk of being watered down if not cast aside.

Why is this view gaining traction?

The fiasco around The Misunderstanding is but a part of the cynicism in some quarters, an important part, but just a component.

A few facts about The Misunderstanding need to be made clear. Despite a number of posts and Tweets pontificating whether the CBA were invited to an important meeting with Gove last week, whether they were ‘not on an attendance list’ which rather implies they were invited but did not go, or whether, as Michael Turner suggests, the no show was all the fault of the solicitors, can be and should be debated elsewhere. To my mind, the important questions, which the CBA have steadfastly refused to answer were, given that Mark Fenhalls, the Vice Chair clearly knew that a CBA nominee was desired at the meeting, who did he nominate? If he did not nominate anyone, why not? Were the Chair, the Vice Chair and the Vice Chair elect so indisposed that none of them could go?

This was potentially an important meeting, which by all accounts saw Gove engaged with attendees. The CBA have been arguing for discussion and contact with the Lord Chancellor for weeks, surely here was another palpable opportunity to continue to develop that relationship. Is it so unreasonable to ask why no one turned up?

This background, the result of which was that the Criminal Bar were not represented at a meeting with the Minister, alongside solicitor colleagues at which joint Direct Action was inevitably discussed, leads me to the concerning conclusion that the CBA want out of any direct and unified action mandated by The Ballot, let alone The Survey.

This takes me to the Monday Meeting of the CBA Executive.

The new protocol presented to Gove by the solicitors last week is being fixed upon by some within the CBA to undermine the ‘YES’ vote. Posts on the Social Media have referred to it as ‘a game changer’. But we should remind ourselves of the terms of The Ballot. The question was:

‘Solicitors face an 8.75% cut to litigators fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1st July 2015 until such time as solicitors decide not to take further action in respect of that cut? Yes/No’

In carefully calibrating that question the CBA ballot paper stated that it ‘is intended to give the executive a suitable mandate for its next steps. In drafting the ballot question we have sought to synthesise the spirit of the different resolutions that have been proposed and supported at recent meetings’.

This is important when the CBA Executive seek to apply their minds to the matter on Monday. The mandate provided by The Ballot echoing in many respects the will of The Survey which the CBA stated on the 21st May ‘urged the CBA to take action to press the Government’, was not confined or restricted to any opt out which may be executively imposed at a later date and it certainly did not provide the CBA Leadership with any mandate to shift their support should any new developments take place. Both questions in The Survey and particularly The Ballot were clear and unequivocal and it would be unfortunate to say the least if the CBA Executive attempted to undermine the unity expressed in the questions and seek to interpret the will of the members who have now voted twice on the issue.

It would equally be just as worrying if any attempt were made at next Monday’s meeting to extend the start date for Bar involvement in Direct Action a further 14 days, say, from the present starting pistol of the 27th July. Many would see that as a predictable, long grass tactic. Anything short of respecting the will of the membership, as expressed in The Ballot would further damage unity and trust between both sides of the legal profession, something that, be in no doubt we will need in the months ahead…… unless you believe in Gove’s flattery, a tactic he used almost word for word with the Teachers back in 2012.

As Tony Cross, the Chair of the CBA said in his Monday Message of 13th May 2015, anticipating the result of The Ballot “…this vote is a truly seminal moment for the Bar”. It was and we should jealously defend its outcome from any attempt to undermine it.

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We the Jury: The Case for Trial by Jury

Posted on by shadowofthenoose
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spacer Over the last week, the debate about the place of the jury in the criminal justice system has occupied the minds of a great number of people.
The approach of those who seek to undermine, what has hitherto been a central, if not statistically limited strata of our trial process, has been to emphasise that the ability of randomly chosen citizens to decide issues of fact, apply the law as directed by the judge and come to a proper verdict has been exposed as deficient by a single jury in the Vicky Price trial.
Of course, we are immediately confronted here with the ‘knee jerk’ brigade who seem to be mounting an argument, the effect of which, is to weaken public confidence in one of the few remaining democratic and publically accessible parts of our legal system , upon a criticism of one jury. But we should never forget the wise words of Tony Hancock in his interpretation of ‘Twelve Angry Men’: “Think of your roots, think of your history. Magna Carta, what did she die for?” (and yes I know all the counter arguments re Magna Carta, but it is still funny).
I do not propose to examine the events surrounding the Price jury, not least because there is an ongoing trial. But we need to get some perspective pretty fast upon what could be a very damaging assault by some upon a crucial way in which the general public can engage and be part of our, their, trial process. In fact it is the only way.
Every year, about 480,000 people across the country are called and sit as jurors. The very fact that the former jurors on the Price trial received so much publicity is testament to the vast majority of jury members who go about their business responsibly, consciensiously and diligently. The fact that the Price jury made news was because it was news. Furthermore, and in the interests of clarity, before those who would undermine this process get their way, we do not even know, nor do I seek to know, whether the entire 12 of the Price jury subscribed to those notes ( some of which were perfectly sensible like the definition of ‘reasonable doubt’ which has troubled lawyers, both practicing and academic for many years and described by Penny Derbyshire in her Paper, ‘What can we learn from published jury research? Findings for the Criminal Courts Review 2001 [2001] Crim L.R 970 as a “direction.. almost universally seen as problematic”).
The overwhelming arguments in favour of our jury system have been made in a number of places. I discussed them last week on Newsnight www.bbc.co.uk/news/uk-21528308, as the debate reached its height and there is a wealth of discussion on the Social Networks developing and advancing the case for trial by jury.
One of the points I raised in that Newsnight piece was my concern about the alternatives. Primarily that alternative is a judge, with all the cynicism and baggage that comes with it. Some have suggested aptitude tests for the jury which in my view smacks of pre-selection and goes against every essence of the random nature of establishing a jury. In the vast majority of cases most members of the public are perfectly able to deal with the assessment of fact required for their duty service and to suggest in a narrow and defined number of trials that there should be aptitude or intelligence tests begs the question as to the criteria for introducing these tests, for instance is it any case with a financial element? Or just some that the lawyers consider to difficult for the general public? Even in writing this it feels some what arrogant to be even suggesting it.
Those who criticise the jury raise the fundamental argument that the jury may not understand their case, either on a factual basis and equally from a legal perspective. Putting to one side the taint of arrogance within this approach, bordering, as some have put it on snobbery, it follows that their concerns, they perceive, will be assuaged by judge only trials. Someone recently Tweeted to me “I would rather be tried by a judge than a jury” Would they?
Lets take the much debated Jubilee Line Trial, Rayment and others as an example of a previous occasion when the jury doubters held court. This trial collapsed in 2005 after 21 months when the prosecution conceded that the fraud trial was no longer viable. A central allegation against the jury was their lack of competence to try, in this case, long and complex trials.
It follows, of course with this argument, that this inability to fulfill their function is heightened in a short trial such as that of Price.
But upon close analysis of all the reseach, statistics and records relating to the work undertaken by the jury, this inability, either in long or short trials is just not made out.
In 1998 researchers conducted an simulation study of jurors’ comprehension of some of the evidence in the Maxwell fraud trial [1998] Crim L.R 763.
They concluded that  “cognitive unfitness” had not been made out as a reason to abolish trial by jury for complex fraud cases and specifically recognised  that the content of a case, properly explained by the lawyers and the judge, was not a problem for the jury.
The Auld Review of the Criminal Courts of England and Wales (2001) came to the view that if it could be established that the fact-finding role of a Tribunal could be better taken by an entity other than a jury then the justification for trial by jury would fall away. Yet in his Paper, ‘ Modes of trial: Shifting the balance towards the professional judge’ [2002] Crm L.R 249, John Jackson argues that, regardless of this, juries perform a valuable function in “reinforcing adversarial protections for the accused and this raises issues which go beyond the question of their competence as a fact-finding tribunal”.
Much of this approach takes into account the indisputable role, occasionally played by a jury in bringing in an acquittal, despite the liklihood of technical, legal guilt. Some would refer to it as justice, rather than a clinical finding based upon the law. It is something, quite properly, that a judge, with all his professional training and codes simply could not and should not do.
Instead of arguing from a perspective that the jury no longer fit into our sophisticated appreciation of the criminal justice system, we should be looking at this issue from an entirely different view. A democratic criminal trial process needs the participation of the people it serves. If there are problems in delivering this then it is the legal system which needs to adjust to maintain the contribution of the citizen it is servant to. Any required measures to assist the participation of the jury, such as cogent and clear presentation of the evidence and the arguments are a matter for the legal profession and it is to us, if criticism there be that it should be directed.
But we must remember, in fact, something near 98% of all criminal cases are decided by Magistrates. The arguments of the last few days relate to some 2% of our criminal trials. We should think very carefully before we throw away that rare but vital right.
As Humphreys J wrote in a 1956 Edition of the Criminal Law Review [1956] Crim L.R 434,
“I cannot bring myself to believe that there are any persons other than the inmates of a lunatic asylum who would vote in favour of the abolition of trial by jury in serious criminal cases”.
Well said that man.
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Chair of the @thebarcouncil Eng & Wales tells Nolan show there should be anonymity for those people ACCUSED of sexual crimes until conviction.

Posted on by shadowofthenoose
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The Chair of the Bar Council, Maura McGowen QC has made the controversial suggestion that defendants accused of “sexual crimes” should remain anonymous until after conviction.

It seems that this was laid out by the Chair on the Stephen Nolan Show on Radio 5 last Saturday www.bbc.co.uk/programmes/b01qlf9d and has been confirmed by the Bar Council, by way of Re Tweeting.

Although I understand the sentiment from where this position comes from and readily recognise the trauma caused to people who have serious unproven allegations thrown at them, sexual or otherwise, I simply cannot see how this can work.

There are a number of essential distinctions between the position of a defendant and that of a witness, the latter of which, in certain circumstances is entitled to anonymity.

Essentially, the criminal justice system in this country, despite political efforts to the contrary, is based upon the Open Justice principle. Only in exceptional circumstances is that resoled from. Adopting that central tenet, if a person is charged by the State with a criminal offence, the proceedings should be conducted publicly, as Re Times Newspapers Ltd [2009] 1 WLR 1015, put it “with all the consequences that that entails. It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted”.

The administration of justice is clearly in peril, as the courts have recognised, if a witness cannot give reliable evidence unless they are protected by a variety of special measures, including, ultimately anonymity, but this rigid principle is unlikely to extend to defendants.

As such, the Chair of the Bar Council seems to be proposing something which is entirely out of step with the trend of current legal thinking. Nothing wrong with that, I accept, providing that it is logical and practical. It is not.

I find the proposition difficult, if only in terms of its logic. Why “sexual crimes”? What, in relation to an accused defendant, distinguishes them from, say, the heinous allegation of child murder or even a less serious offence, which upon conviction could ruin a person’s career. For instance, an allegation involving dishonesty or breach of trust could be devastating if you had made your name upon adhering to such principles. If we are to have anonymity for “sexual crimes”, (and I pause to ask, if this means all crimes with even the slightest sexual content?), why draw the line there? If Ms McGowen is going to be consistent, then it should extend beyond those closed categories and be universal. If this were to be so, all defendants would be entitled to anonymity.

In any event, sometimes it is vital for the investigating authorities to make public the name of accused people. By doing so, significant evidence can be gathered and other, potential complainants identified and particularised in a single trial to enable the jury to have a clear representation of the extent and similarity of the allegations.

For all these reasons and accepting the understandable impulse to raise the concerns of an accused, the suggestion on defendant anonymity is misconceived.

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Sometimes we should be spoil sports: The need for public protest.

Posted on by shadowofthenoose
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Earlier this week, Trenton Oldfield www.bbc.co.uk/news/uk-england-19733385 was convicted of ‘Causing a Public Nuisance’ by a jury at the Isleworth Crown Court. Previous instances of this rarely prosecuted offence include impregnating the air with “noisome and offensive stinks and smells” causing “a nuisance to all the King’s liege subjects living in Twickenham” But Oldfield was the man who had the temerity to disrupt the Oxford and Cambridge Boat Race last April, by choosing to take a swim, just as both boats were getting into their stride.
The prosecutor explained to the court that his actions had “spoiled the race for hundreds of thousands of spectators” and for this, the judge has adjourned sentence,commenting that she is not ruling out a prison sentence.
Of course, Mr Oldfield is not the first person to attempt to make a point by spoiling the fun of sports enthusiasts. Famously protestors dug up the crease at the 1975 Third Test between England and Australia in an attempt to bring to the publics attention that an innocent man had beensent to prison for robbery the year before. Only last year, that man, George Davis  en.wikipedia.org/wiki/George_Davis_(robber) was exonerated by the Court of Appeal and his conviction held to be unsafe. One of the men who vandalised the cricket field, Peter Chappell, www.wrp.org.uk/news/6398  was sent to gaol for his part in trying to raise public awareness in what has since been recognised as a gross miscarriage of justice. No doubt the Third Test, back in that rainy Summer of 1975 was “spoiled for hundreds of thousands of spectators”, but, nearly 40 years later, their sporting pleasure was nothing compared to the gaoling of an innocent man.
Similarly the thrill of horseracing was spoiled for many spectators when a suffragette www.bbc.co.uk/history/historic_figures/davison_emily.shtml threw herself under the King’s Horse and was trampled to death, but surely the spoiling of their fun was nothing compared to the denegration of women in that pre-vote era. Her tragic death, as she ran into the path of the galloping horse was borne of anger and frustration in an age since recognised as discriminatory and unfair.
Interestingly, one of the reasons why Oldfield swam out amongst the boats was that he objected to the government and Olympic organisers call for us to report anyone we suspected of planning a public protest during the Olympic period www.guardian.co.uk/uk/undercover-with-paul-lewis-and-rob-evans/2012/jul/24/police-need-intelligence-over-olympics-protests. For this he was charged with ‘Causing a Public Nuisance’. The ingredients of the offence are that he behaved in such a way that an injury was suffered by the public and potentially carries a life sentence www.cps.gov.uk/legal/s_to_u/sentencing_manual/public_nuisance/. Of course, Mr Oldfield will not get life, but this rarely prosecuted offence may yet see him serving time.
In fact what Trenton Oldfield did during the last Boat Race was in the finest historic traditions of getting public attention at a big sporting event, for a cause which struggled to attract National interest, sympathy or appreciation. He has been treated in the same way as others before him, ridiculed and criminalised. The usual suggestions that a sporting venue is, in any event, no place for such behaviour has also, predictably reared its head and, again  predictably, venerated sports people have castegated the behaviour of the protestor.
We live in a Society which only tolerates public protest so long as it is clean, relatively quiet and does not inconvenience anyone. The moment it threatens or spoils our fun it becomes a police matter.
Ultimately, history treats the protestor far more equitably than the present.
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THE SEX OFFENDER REGISTER REVIEW: MYTH AND REALITY.

Posted on by shadowofthenoose
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spacer There are few things more sensitive than sexual offences and how we
deal with sex offenders.

In the calendar of criminal offences, there can be nothing more
appalling than the sexual violation of any individual and the whole
issue, quite understandably triggers painful and volatile debate. Most
importantly, the victims of sexual offences are caused anxiety and
distress whenever the subject of sex offenders becomes a topic of
public debate and unless the issue is discussed accurately and
responsibly, there is the real risk that victims will be deterred from
reporting crimes to the police.

So it is that Ministers, Commentators and interest groups, including
the NSPCC www.nspcc.org.uk/, waded into this highly sensitive
area when the ruling in R (on the application of F by his litigation
friend F) and Thompson (FC) (Respondents) v Secretary of State for the
Home Department (Appellant) [2009] EWCA  Civ 792
www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0144_Judgment.pdf
came into force a few days ago.

It does none of these groups any credit to analyse for a moment the
ill-judged, knee-jerk reactions which flooded onto the media. The
misinformation and at times downright hysteria coming from the mouths
of people who should know better was shocking. Furthermore, there can
be no excuse for it. I think that we can safely assume that Ministers
and Charities such as the NSPCC have legal advice and that the impact
of ‘F’ upon the way sex offenders are monitored in England and Wales,
was recognised as being marginal and certainly not worthy of the
hyperbole of the last few days.

Lets put a few myths right. Sex offenders still have to register as a
matter of compulsion. Sex offenders still remain on the list for life,
as they have always done and do not automatically come off it after 15
years. Sex offenders will have to convince a Police Force that they
are safe to come off the Register after 15 years of being on it in the
community and one can assume, having not been convicted of further
offences.

Listening to the rhetoric of Ministers and in particular Theresa May,
the Home Secretary over the last few days, it is not surprising that
vulnerable people, victims and those under threat, were shaken by what
they were hearing.

The problem is, that when it comes to sexual offending, politicians
have been brought up to take no chances… look what happened to Ken
Clarke for instance. Best deal with it in broad strokes so that there
can be absolutely no room for misunderstandings, or worse, the media
deliberately making it a crisis.

For a moment, for those who want a calm consideration of the
situation, let’s get to the facts.

By way of background to the legal foundations for the present
position, we need to go back to the Sex Offenders Act 1997
www.legislation.gov.uk/ukpga/1997/51/contents  and in
particular, Section 1(3)
www.legislation.gov.uk/ukpga/1997/51/pdfs/ukpga_19970051_en.pdf
. This laid down that there would be an automatic statutory
notification upon conviction of the name, address and date of birth of
the offender within 14 days of the conviction. This was to be given to
the police and that they should further give notification of any
address at which they would be staying for 14 days or longer.

Then came the Criminal Justice and Courts Services Act 2000
www.legislation.gov.uk/ukpga/2000/43/contents which reduced
notification time to 3 days and introduced a requirement that if the
offender went overseas, they should give notification within 48 hours
of travel to include details of the carrier, points of arrival, where
they were staying, date of return and point of arrival.

Both pieces of legislation were repealed and substituted by the Sex
Offenders Act 2003
www.legislation.gov.uk/ukpga/2003/42/contents  Section 82
onwards www.legislation.gov.uk/ukdsi/2012/9780111521403.
Take a look at this provision. It strengthens the already stringent
regime of the previous legislation and quite properly restricts any
movement and activity of convicted sex offenders comprehensively. I
make this point and lay out the historical development of these three
protective statutes, because listening to Ministers over the last week
or so, you could be forgiven for thinking that it has all been swept
away. It has not.

Victims of sex offences and those who may be on the edge of reporting
sex offences should know that the law provides for extensive
restrictions upon those convicted. Ministers do irreparable damage to
the criminal justice system when they imply otherwise.

A close reading of ‘F’ also makes it clear that the Supreme Court were
bolstering this protective series of provisions. Lord Phillips
confirmed in terms that it is lawful to monitor for life sex offenders
and everything that their Lordships said, marked and reiterated the
heinous status of sexual offending in the eyes of the law.

The case was not about whether sex offenders should or could be
monitored for life, it was a case decided upon the very narrow issue
of whether 15 years after release, some could apply for a review, as
to whether they might be removed from the Register.

As a matter of law, and quite rightly in my view, the Supreme Court
decided that being put on the Register for life, without the chance of
review was disproportionate when taking into account the provisions of
Article 8 of the European Convention on Human Rights www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-to-respect-for-private-and-family-life.html.

Proportionality was considered with reference to the leading authority
of De Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing [1999] 1 AC 69 [at page 80]
www.bailii.org/uk/cases/UKPC/1998/30.html , in that the
requirement in question should be no more necessary than to accomplish
the objective.

The objective is to keep Society safe. There was considerable
consideration in the case of whether sex offenders can ever be safely
let back into the community without close monitoring and this debate
continues outside of the Supreme Court. Perhaps reassurance can be
gained from official statistics for 2008 which suggest that
reoffending rates for sex offenders at 26.8% is lower than domestic
burglary [59.9%], and Robbery [38.1%
www.justice.gov.uk/statistics/reoffending/proven-re-offending].

As such, the Supreme Court ruled that no chance of review was disproportionate.

That is the reality. Of course some will say that there should never
be an opportunity of review, they would probably be the same people
who argue with passion that ‘the keys should be thrown away’. But
whether we like it or not, the ultimate protection for Society is
rehabilitation and sometimes, just sometimes, the odd sex offender
might persuade a policeman that that is possible. That is the top and
bottom of it and it seems to me that this debate is more a product of
the political conference season than responsible public reassurance.