UK AUTHORITARIANISM: AN EARLY WARNING

Speak to politically minded people in the United States of the separation of powers and they will immediately understand the meaning and significance of that phrase. They will quote from the Constitution; the document which to many of them is more important and significant  than the Holy Bible on which many were brought up and which is quoted  as their moral guiding light.  But it is not unlikely that the same phrase offered to the average citizen of these isles will produce no more than a frown and perhaps a questioning reply of "what"?  I exclude of course readers on this site from that criticism.  The UK lacks a written constitution; a phrase which found much favour during the recent regal festivities. The UK relies on a system of checks and balances to prevent against abuses of power. When the Tudors`, their predecessors` and finally the Stuarts` control of government through the doctrine of the divine right of kings finally ended in 1688 there was gradual constitutional change to representative government where there was at least in theory a separation of powers insofar as a  Parliament, an executive and the courts would each have its own perimeters exercising its powers accordingly. When there is or appears to be an imbalance in the powers of  these three constituents of that basic democratic system  whether in this country or abroad there is a fundamental threat to that democracy.  Such imbalances are currently happening in the United States where the Supreme Court populated by a Republican majority appointed by Donald Trump is in opposition to many states legislatures on the subject of abortion.  Israel, another country with what was supposed to be a fiercely incorruptible democratic system of government, was recently in constitutional turmoil over its supreme court`s overturning of government policies much to the ire of  right wing cabinet members. In all totalitarian states the executive branch has by various means usurped the powers of either or both the other two branches of government. There are those who thought that that sequence of events could never happen here; some are beginning to wonder.  

Justice and our courts have been described as a level playing field where an equality of arms allows the guilty to be punished and the innocent to be absolved.  The institutions to preserve this noble concept have been separated from the executive and appointed personnel have been tasked with ensuring it functions at arms length from the appointers. There are now questions as to how long this concept will continue to be the basis of our justice bedrock owing to the underlying precepts of the Victims and Prisoners Bill. This is  "a  Bill to make provision about victims of criminal conduct and others affected by criminal conduct; about the appointment and functions of individuals to act as independent public advocates for victims of major incidents; about the release of prisoners; about the membership and functions of the Parole Board; to prohibit certain prisoners from forming a marriage or civil partnership; and for connected purposes." (my bold).

Under the proposed legislation ministers would have the power to veto the release of dangerous prisoners repeatedly even if approved by the parole board.  In actual practice this could affect about 600 prison releases annually.  Murderers, rapists and terrorists would have a parole decision to release on license overturned by the executive.  It is not unlikely that such new government powers would be welcomed by the hang `em and flog `em brigade of the Right in and out of parliament.  Indeed some recent releases where dangerous men have committed further heinous crimes  will have reinforced that sentiment. Amongst those voicing their concerns at this worrying increase of ministers` powers are former Tory Secretary of State for Justice David Gaulke and former Tory Prime Minister John Major. 

What would be a positive step and yet allay the concerns of those who consider that sentencing for serious criminality is out of step with public opinion would be that the concept of automatic early release is abandoned.  Page upon page of the Sentencing Guidelines inform sentencers  how to relate all relevant circumstances of the criminal,  the crime, the victim and the law into time to be served.  Indeed that very process is tailor made to become "the computer says no" or similar scenario in the not too distant future.  Let convicts serve their full allotted sentence with early release determined solely by their behaviour in jail and their indications of rehabilitation. But that would require more jails, prison officers and probation staff and so much more money for a system which governments of all shades are parsimonious. 

With the current elective dictatorship of the House of Commons this blogger can only hope that there are still some Tory MPs who have a clear sense of what is best for this nation even if their hopes of re-election are slowly fading.  No doubt the other place will voice its objections.  In August 2019  Boris Johnson provoked a constitutional uproar when he announced plans to shut down parliament for five weeks daring opponents of his Brexit strategy to vote down his government.The government argued that the 2017-19 session was already the longest session of the UK Parliament’s history and that it was entitled to use the Royal Prerogative in this way. It explained that it intended to bring forward a Queen’s Speech to refresh its legislative agenda following the change of Prime Minister in July 2019. The Supreme Court maintained that this long prorogation significantly interfered with the constitutional principles of parliamentary sovereignty and parliamentary accountability. Such an interference required a “reasonable justification”. On the facts the Court concluded the government had not offered any justification for the prorogation’s length, let alone a “reasonable” one and accordingly the decision to prorogue was unlawful. This should provide a salutary lesson that this country is not immune to the surreptitious infiltration of authoritarianism at the highest level of government.  The current matter as outlined above is an early warning.  

ENGLISH JUSTICE HAS LOST ITS SENSE & SENSIBILITY//JUDGES SHOULD HANG THEIR HEADS IN SHAME

I make no apologies for returning to an item the first section of which was posted 7th March with subsequent addendums as the matter progressed.  For those unfamiliar with the case of Rex-v-Auriol Grey look here.  Last week at the Court of Appeal three judges rejected her argument that the sentence was excessive. The sentencing guideline on manslaughter can be read here.  One of the most contentious facts to emerge from the trial was the evidence given by Det Sgt Dollard for the prosecution. Under cross-examination by defence barrister Miranda Moore KC,  he said he did not have any evidence to "categorically" show the path was a shared cycleway.  The Highways Act 1835 prohibits cycling on a footpath which is by the side of a road and set apart for use by pedestrians only. Shared use pavements are not included in the act so if there's a specific cycle lane on a pavement it's legal to ride on it.  I have found no report to confirm the status of the pathway.  Ms Moore KC  argued that the sentencing judge had made findings of fact against evidence, stating it "came as something of a shock" he found the pavement to be a shared cycleway, despite the local council being unable to confirm that. There is no transcript of the appeal yet published but  But Mr Justice Griffiths sitting with Lord Justice William Davis and Judge Neil Flewitt refused to grant permission for Grey to appeal against her sentence concluding it was "not arguably manifestly excessive".  According to reports Mr Justice Griffiths said: "A blameless woman had been killed by the unlawful act of [Grey] with devastating impact upon the family she left behind and upon others including the entirely blameless driver of the car." He told the court the sentence passed "had to mark the gravity of the unlawful killing" while taking into account mitigating factors.  The sentencing judge Sean Enright had "placed very strong emphasis" on Grey's disabilities, he said. He added: "We do not consider that the recent psychology report calls for a greater reduction than was already given in this respect by the judge."

Nothing I have read since my original post has swayed me from my original opinion that the trial verdict was gross misinterpretation of the evidence, that the trial judge failed in his summing up to give full weight to the defence and that the Appeal Court judges have repeated the the folly of their junior colleague. 

But there is a further consideration about what this trial and its outcomes says about English justice.  It seems that government policy is to put victims even closer to the supposed centre of justice with the latest announcement The Victims and Prisoners Bill introduced 29 March 2023.  Justice is or perhaps in current terms was for decades represented as blind. Pressure from interested parties and failings within the police and prosecution services have led to actions by governments over the last two decades to once again achieve that balance which had certainly been out of kilter insofar as rape and other serious offending had been considered.   But like so much legislation in this country it has been slow in formulation and excessive in degree. In the case considered here there was not a single victim; there were two victims.  Whilst the guilty verdict is now closed it is surely the case that we have not heard the last of the outrageous sentence imposed at trial and rubber stamped by an Appeal Court which seems to have lost all sense and sensibility. If Auriol Grey has to wait for her sentence to be half completed next year before her release on parole can be contemplated then there should be hangings: English justice and those administering it should hang their heads in shame

 

ADDENDUM 8th April 2024

 

Rather belatedly I have become aware that on March 19th 2024 the "offender"  Auriol Grey has been given leave to appeal her conviction. Press announcement is available here.

  

THE BRITISH WAY IS BEST; ISN`T IT?

We are living in an age where from the innocuous to the prestigious on line connection is not just a requirement it is an expectation: from communication with His Majesty`s Revenue and Customs Service to many if not most medical services; from banking  to the Scottish Charity Regulator without a customer being on line by a fixed terminal or mobile facility communication is almost intolerable if not impossible.  But then we have the Ministry of Justice.  I was spared the issue of digital only benches by my retirement shortly before their introduction.  In difficult cases of alleged non receipt of court documents by a defendant we interrogated said defendant at length in our attempt to assess the credibility of his/her excuse.  Even in these distant days questions were asked as to why e mail or text communication from court to defendant was categorically not an option.  

Since the lamentous installation of the Single Justice Procedure this head in the sand approach surely must be coming to an end even for the ostriches at Petty France.   Latest figures available show that around  two thirds of those who were summonsed under the SJP did not submit a plea and only 3% pleaded not guilty thus enabling them to proceed to trial at an open court before three real magistrates or a District Judge (MC). Around 30% pleaded guilty. For those charged with speeding as recorded by a camera device about half did not submit a plea. Amongst those was the Archbishop of Canterbury last October.  A brief account of the process is as follows:when a car has been caught speeding either by fixed position safety camera or mobile hand-held device a NIP and Section 172 notice will be mailed to the address the car is registered at within 14 days of the offence being recorded. Reply must be made using the Section 172 notice to notify the authorities who was driving the car at the time of the offence and the fine paid within 28 days. A summons is sent by post to appear in court if these actions are not taken.  This is now usually a SJP court. It seems that the lordly archbishop and/or his staff were not in receipt of the appropriate paper trail.  His subsequent conviction was enacted in a secret court by a single JP aided by a legal advisor. The financial penalty was harsher than it would otherwise have been if he had made the choice, had it been given, of pleading guilty at the earliest opportunity.  For him and others the additional costs were of no hardship but for many with lower incomes such impositions would have and do entail financial sacrifice.  With primary school children increasingly in possession of a smartphone and its use ubiquitous amongst the general population more use of such facility surely must be a priority for such a high volume activity as low level offences?  In 2021, 98 percent of Britons aged between 16 and 24 owned a smartphone as did 69 percent of those over 65 years old.  And yet the MOJ still relies on analogue technology; i.e. a postal service which is deteriorating before our very eyes. 

A cynic might think that the avoidance of e mail and text in such circumstances is a deliberate ploy to ensure the conviction rate at SJP courts is as high as possible but that would not be the British way and we all know the British way is best, isn`t it?

THE BUTTERFLY EFFECT AND THE SHAMEFUL POLICING AT THE CORONATION

It won`t have escaped the notice of most people who don`t live a hermit`s life on a remote uninhabited island off the west coast of Scotland that there were, according to some estimates, 17,000 police on duty in London last Saturday.  For the legally minded the statement on the eve of the main event that "Our tolerance for any disruption, whether through protest or otherwise, will be low. We will deal robustly with anyone intent on undermining this celebration." was a clear warning from the Metropolitan Police that they were intending to exploit to the full their new powers enshrined in the The Public Order Act 2023 (Commencement No.1) Regulations 2023   which had received the Royal Assent a couple of days previously.  It stretches the bounds of credulity to assume the connection between the low key announcement of the new legislation and its intended implementation on the streets of London at the coronation was a coincidence.  

Personally I have taken a passive part in two demonstrations in Trafalgar Square where flags and placards were exhibited.  Police were there to ensure public safety but despite opposing voices the rallies were the epitome of peaceful protest.  I have also been delayed for over an hour on the M25 to my bladder`s consternation by protesters having glued themselves to the tarmac.  If a summary case involving the latter had come before me with appropriate evidence those involved in obstruction on the highway would likely have found the matter proved.  The law is there to be applied.  The coronation arrests were of an entirely different dimension.  To be charitable to the police it seems not unlikely that they just were not adequately trained in the nuances of the new legislation.  It also seems not unlikely IMHO that directions were given from on high that the world wide viewing spectacle must  not be hampered in any way by interference however peaceful which would upset the image of "Glorious Britannia". 

With regard to the event itself and the iniquity the high handed police actions have brought to those charged with projecting Brexit Britain as more than a symbol of power but a leader in combining the best traditions of yore with open arms for the future, there is now a world wide impediment to that former benign image.  Reuters and other highly considered foreign news organisations eg The Washington Post and France 24 have internationalised the crass actions of the police. And so to the reality of further police incompetence or impending governmental authoritarianism depending on an observer`s political take on the subject.  So far we know that 64 people were "detained" for offences including affray and breach of the peace. Four are appearing today at Westminster magistrates court.  Three female safety officers employed by Westminster council to assist any women in distress on the streets of  Soho were arrested "in possession of rape alarms" which, said the police, could frighten the horses: horses which have been trained to ignore ceremonial cannon fire, brass bands and bagpipes and heavy traffic.  Republic, to which I have been a donor, had six members arrested prior to the big event on spurious grounds that they possessed items which could be used as lock on devices.  After fourteen hours in detention they were de arrested and released without charge.  Doubtless we will have more information in the weeks to come about the consequences for the police of their high handedness.  

Public protest and harm to the public caused by said protest is the interface between permitted actions and behaviour on which a free society is constructed and authoritarian rule by the politically powerful.  It would appear that the salami slicing of our individual choices and freedoms under the umbrella of "victims` rights", facial recognition, political nepotism, uncontrolled immigration, failing health care for many, climate change hysteria, a justice system unable to cope with demand and "equality of arms" unavailable to the majority is enveloping us just as surely as woke attitudes in education poison young minds as ignorance seems to be an achievement and history is forgotten.  

The sad outcome of the last few days is that the legislation will not be repealed.  We are all now living under a law which has crossed that threshold from democratic freedoms to be protected to the state which must be the beneficiary of that protection.  All this from a supine parliament, supine because in 2016 the people of this nation were lied to by those they trusted and whose clown of a prime minister, alias the court jester, easily outscored the antisemitic  leader of Her Majesty`s Loyal Opposition to secure a once in a lifetime change in the political order. Truly that 2016 Butterfly Effect has reached unimaginable places with more to come.  

NOT PROVEN SCOTTISH VERDICT SHOULD BE RETAINED

Readers who are familiar with some of my rantings might be aware that I am of the opinion that sooner or later court proceedings will be televised in full and that the Scottish verdict of "not proven" is a unique but worthy inclusion in that which makes the Scottish legal system unique.  Last week the government north of the border proposed changes to the jury system and more controversially that the not proven verdict be scrapped.  Strangely enough I could not find any statistics on the rate of such verdicts. It would appear that rates of acquittal include both not guilty AND not proven outcomes.  Most recent numbers of interest:-

 Of interest are the following statistics:-

Over the last ten years, the most notable declines in conviction rates have been for: Sexual assault, down from 69% in 2011-12 to 66% in 2020-21, although the rate was 2 percentage points higher in 2020-21 compared to the previous year;

Rape and attempted rape, down from 53% in 2011-12 to 51% in 2020-21, although the rate was 8 percentage points higher in 2020-21 compared to the previous year;

As the perceived poor rate of rape convictions seems to have been the driver for this proposed fundamental change in Scots law it is perhaps worthwhile to consider a brief history of why in all the western world not proven  is available to juries who cannot find an offender guilty or not guilty the latter conclusion incorporating  a jury`s belief that beyond a reasonable doubt is too high a hurdle for conviction. 

Scotland’s three-verdict system is a matter of historical accident rather than conscious design. A 17 th -century procedural change meant that juries returned ‘special verdicts’ stating whether individual facts were proven or not proven rather than declaring on the guilt or innocence of the accused which was a matter for the trial judge based on the terms of the special verdict. A 1728 case, the trial of Carnegie of Finhaven, re-established the right of the jury to return a verdict of not guilty, but the language of ‘not proven’ remained and became an alternative form of general verdict in Scots law. The appeal court has consistently dissuaded trial judges from attempting to offer any explanation of the difference between not guilty and not proven when charging juries.  A mock jury study, published by the Scottish Government in 2019, found that even when verdicts of not proven were returned, the meaning or consequence of the verdict was not often understood. "In particular, jurors were not always clear how it differed (if at all) from a not guilty verdict."  More jurors thought that a verdict of not proven should be returned when jurors need to compromise to reach a verdict than believed a not guilty verdict should be used in that situation.  The study found: “Where the not proven verdict was discussed, there was inconsistency in understanding of its meaning and confusion over its effect. Figures released by the Scottish Government demonstrate that over 2015–2020, the not proven verdict accounted for 17.5 per cent of acquittals overall, but 30.5 per cent of all acquittals by juries and 14.7 per cent of all acquittals in summary cases. Recent figures for rape and attempted rape prosecutions indicate a 43% conviction rate and it is for these types of criminality that the pressure has been coming for the system change now being considered." 

In contrast statistics for the fourth quarter by the CPS for England and Wales are as below:-

the volume of suspects being charged for rape this quarter rose from 550 to 643, a 16.9 per cent increase 

overall, a 62.9 per cent increase in the volume of rape prosecutions from 1,557 in 2020-21 to 2,537 in 2021-2022

a 2.4 percentage point reduction in the conviction rate for rape cases from 70.7 per cent to 68.3 per cent.

The crime of rape is itself an enigma.  Homicide e.g. is legal in self defence  but only if that person reasonably believes that the killing was necessary in order to prevent an imminent threat, death, or serious harm to himself or herself.  Sexual intercourse is legal if consensual.  It is almost unique in being an activity where there is a fine margin between its being  legal and illegal. And unlike many other crimes there is rarely a third party witness. And thus it was that Rape Crisis Scotland took up the banner of seeking higher conviction rates for rape. 

But should a legal system in a democratic country be driven by conviction rate as opposed to proving the guilt of the guilty and acquitting the innocent?  After all the conviction rate overall in China is 99%. Although there have been relatively few studies on the conviction rate variables  vis a vis the authoritarian degree of government there are grounds for thinking that dictatorship increases severity and rate of punishment within a legal system.  If truth is the end point of a contested trial is it not more accurate where there is inability for a jury to be satisfied beyond a reasonable doubt or to be sure of guilt to pronounce that uncertainty?  As a presiding magistrate I was advised that the form of words preferred when  announcing the bench`s decision after trial was to say, "we find the case against you proved". Whether that advice was based on tradition or directed by on high I do not know but it also satisfied the truth when it was used in the negative. Perhaps such language tweeking  is required in the higher courts. 

The Scottish National Party is in political turmoil.  Like all such parties it is a nationalist and populist party. It has been rebuffed in its efforts on trans sexual politics.  It is failing its children whose educational standards were some decades ago amongst the best in Europe.  It has the highest number of drug addicts per capita in Europe. It is a failing organisation looking for causes to bolster its electoral appeal.  Interfering with the legal system as proposed is just a diversion from the reality of its political inability to deliver what is wanted by the people of Scotland.