LAW AND POLITICS IS LIKE WATER

We have all been led to believe that the British system of trial by jury is a wonderful example of justice being blind and all are equal before the law.  All are blind who continue to believe that.  It was only a century ago that an Appeal Court was incorporated into the system to counter miscarriages of justice and half a century ago that hanging was abolished.  As we are all too aware these modifications  were leisurely in coming into being and were not universally welcomed by vociferous if small minorities.  Miscarriages of justice still occur.  The Criminal Cases Review Commission has published its latest statistics:-   

Referrals and decisions (April 1997 – October 2023)
826 cases referred to appeal courts
803 appeals heard by the courts
566 successful appeals
222 decisions upheld
15 abandoned by applicant

These matters would have been heard originally by a jury in the crown court.  Prior to their retirement to consider their verdict the jury would have been advised that they must come to a verdict based only on the evidence presented to them; a simple enough instruction on the face of it but one in which the words of the judge have in recent cases been stretched to breaking point. The departure from decades of almost total compliance with such judicial direction became aware to the public by “the Colston Four”. In 2020 four defendants  all admitted to taking an active part in removing Edward Colston’s statue and disposing of it in Bristol Harbour as the prosecution had alleged. Their defence to the charge lay in why the statue had been removed.  Colston was a slave trader who invested heavily in his native city. They were cleared of criminal damage. Last month nine climate change protesters were cleared  of causing £500,000 worth of criminal damage to the windows at the headquarters of HSBC bank in London. They were acting under the name of Extinction Rebellion.  Sally Hobson, prosecuting, said: “They accept that on 22 April 2021, they went to the HSBC building armed with hammers and chisels and they also accept that they used those tools to break the windows – they were responsible for the damage. “The value of the damage caused is in the region of £500,000 and additional security measures caused further expenditure so as to ensure damage was not caused again.  “Although the defendants accept they caused the damage, they deny that their actions amount to criminal conduct. Simply put, the damage was caused during a protest and the defendants say that they were lawfully justified in doing what they did.  “We say that whatever the purpose behind them causing the damage there was no lawful excuse for doing so. It was, we say, unlawful conduct outside of a lawful protest.”  Criminal damage is lawful if the defendant believes the owner of the property consents to the damage (as found in section 2 of the Criminal Damage Act 1970).  

There have been other similar cases.  In 1982 Clive Ponting was acquitted of breaching the Official Secrets Act despite admitting to leaking documents relating to the sinking of the Belgrano during the Falklands War. The judge directed the jury that Ponting’s duty lay to the civil service and that he had no viable defence.  In 2007, Toby Olditch and Philip Pritchard were acquitted of sabotaging US bombers at the outset of the Iraq war. The defendants suggested that the bombers would have been used to commit war crimes. 

Lords Devlin and Thomas in 1956 and 2011 respectively agreed that even when the evidence is overwhelmingly to convict, the law does not prevent juries from returning a perverse verdict. The Bar`s code of conduct does not allow a barrister to inform jurors of their right should they so wish to bring in a perverse verdict; it would constitute misconduct.  The logical conclusion is that a defendant in such circumstances in order to follow the examples of Ponting or the Colston four in arguing from that angle would have to be self representing.  That conclusion itself is somewhat paradoxical or Kafkaesque.  

There are some learned professors of law who argue that juries should have the right to hear arguments of perversity and not to be directed that only evidence presented in court should be considered in their coming to a verdict.  From my lowly position as a retired magistrate it`s my view that that argument would lead to not only more perverse verdicts but politically motivated verdicts examples of which are current offences against British companies or subsidiaries of Israeli companies on the pretext that they are acting against Palestinian interests.  

Law and politics are essential to our way of life.  Like water we cannot survive without them in combination but also like water too much can kill us. It`s also the case when the H is separated from the O2 the situation is combustible.  

It`s that time of the year again when a spurious date approximating to the winter solstice was allocated to the birth of a Jewish boy in Bethlehem, a village in Judea an area which is unfortunately less peaceful than it could be.  Nevertheless the message is clear: goodwill to you all and thank you for spending a few of your valuable minutes reading this and perhaps some previous offerings on this site.  

 

CRIMINAL BEHAVIOUR ORDER OR SOCIAL INNOVATION

 "Keep the bastards out of prison". It`s not too difficult to imagine that directive being given from one senior civil servant at the MOJ to his/her assistant. What might be surprising to many is that that conversation would have taken place in 2012 or 2013. By that time the original supposed deterrent to antisocial behaviour was ASBO; antisocial behaviour order beloved by prison governors because it reduced the tendency of having to allow for ever increasing numbers of miscreants being subjected to short custodial sentences in their already crowded prisons.  It was "sold" to magistrates and local councils as a method by which local nuisances both in noise and behaviour by local hooligans which might fall short of actual criminal behaviour could be contained without the high bar of trial and beyond reasonable doubt to prove guilt and local witnesses or council officers being able to submit anonymous statements.  

I suppose all that began with a new Tory government in place not long after the 1979 election. Home Secretary William Whitelaw had announced he was going full steam ahead on a key manifesto promise – the Short Sharp Shock. To a euphoric Tory party conference in October 1979, the urbane and aristocratic Whitelaw told delighted delegates that detention centres for teen lawbreakers would no longer be ‘holiday camps’.  This played on widely believed media stories of young hooligans leading cosseted lives behind bars.  “Life will be conducted at a swift tempo,” he assured the party.  The belief was that a regime of early wake up calls, military drill and manual labour over a three month period would shock young offenders out of a life of crime.  To break even the most determined spirit periods of recreation could be denied and  silence was the general rule with only 30 minutes of chat between prisoners permitted each day.  It wasn`t long before there was a rising disquiet amongst many  in the legal fraternity and pressure groups  that such sentencing did little to improve or deter criminal behaviour at the lowest end.  So in 2013 ASBO begat CRASBO later shortened to CBO or Criminal Behaviour Order. 

On 21/06/2016 I posted of my personal involvement in this historic legislation.  Generally I consider that this form of civil sanction [the breach of which is a criminal offence] is displacement legislation.  "Don`t commit an offence within our boundaries; go elsewhere to offend."  So from pillar to post the offending continues.  Breach of an anti-social behaviour order is triable either way with the maximum sentence for this offence in magistrates’ courts of 6 months’ custody and a maximum 5 years’ custody at the crown court.  

It seems that it`s taken eight years for the message, for what it`s worth, to get through to  Barnsley Council.  The offender in this case had previously been issued with another of these so called orders; a Community Protection Notice.  As far as I am aware the MOJ has no knowledge of the deterrent value of these civil orders.  It has been unable or unwilling to provide numbers of those breaching them and being subsequently convicted as above.  All that can be said, in my humble opinion, is that it reduces the burdens on police and prisons.  Whether or not such orders are another sign of outcomes determined by cost cutting or an innovative process to control low level but aggravating local misbehaviour is as much dependent on political opinion as social innovation. 

I HAVEN`T CHANGED MY OPINION

I have never sat on a jury.  Indeed many decades ago I received my one and only summons for that purpose but I had to request an exemption owing to my professional undertakings.  Now my intellectual and/or physical capacity according to the MOJ renders me unfit for such duties.  I must be content with voicing my opinions here and occasionally elsewhere.  A three person bench of lay magistrates is in effect a mini jury.  Its members have been trained how to consider evidence in a structured fashion supposedly simplified by the introduction of  Sentencing Guidelines introduced over a decade ago to  remove the effects of a perceived post code lottery in outcomes.  In some matters, as I have written previously, it seems only a matter of time until algorithms take over much of the human function but for the present most people`s experience of a court is in a magistrates court and their futures, for better or worse, in the hands of those selected for their apparent abilities to satisfy a selection process written by civil servants in the MOJ. 

Last month Grant Roberts JP was castigated by the Judicial Conduct Investigations Office; his [crime] misdemeanour was improper use of the internet insofar as, "had conducted an independent internet research on the defendant to assist him in reaching a decision." The full statement is available here. From the report a couple of points emerge in addition to the matters of principle which I will address. It would seem that the legal advisor must have been present in the retiring room to hear the then "innocent" admission by Mr Grant. From My earliest days on the bench following the examples set by those senior to me whose abilities impressed me I would request legal advisors to leave the bench in private to discuss any matter which required a decision after of course we had been advised of any facet of the law which was or could be pertinent to the matter in hand. Once I had assumed the middle chair most L/As were content except one newbie who insisted she must be present as she had always been at her previous court. After much reluctance she left us to discuss a post trial decision. She was never to repeat her interloping whilst I was sitting. Of course the situation re Mr Grant might have hinged on an absent L/A being informed by the other winger or the Presiding Justice of his junior colleague`s supposed inadvertent error.

Now let me offer a "what if" scenario which must occur at some if not many post trial decision making sessions. Every person in some form or another has specialist knowledge of something. At my former bench there were people from all backgrounds and occupations from bus driver to jeweller to teacher to builder to health professional etc. each with his/her own specialist knowledge; knowledge that others might need Mr Google to verify. The scenario continues: discussion centres around a witness`s oral statement which a bench member knows categorically is untrue. Does the magistrate inform his colleagues that with his undisputed knowledge the erroneous or lying evidence is false? If s/he does not and is questioned as to why he has come to a conclusion that perhaps is the minority conclusion a misjustice might have occurred. If, on the other hand, he does make his specialist knowledge of the topic a basis for bringing the false testimony to the discussion how different is that [in a particular case] much different from ascertaining a fact from the internet?

At this point I must make my own opinion clear. I remember exactly my own divulgence to my colleagues of a false statement made under oath by a defendant that I knew to be false from my professional expertise. My comment was recognised by my colleagues and adopted into our weighing the evidence. Was my action inappropriate? I did not consider it thus at the time and I haven`t changed my opinion.

CAN JURIES SPURN THE LAW?

A most interesting essay on whether juries can spurn the law in the Law Society Journal by Joshua Rosenberg can be read here.   

In due course I hope to discuss this with relation to magistrates.