Guest Post on Catalonia: Was the Spanish Supreme Court crushing legitimate dissent or properly upholding the law?

The decision to gaol the Catalan leaders has caused widespread outrage.

Is the outrage justified? When regional nationalist leaders openly defy the law, what is the proper response of central Government?

These are questions with which the Spanish Supreme Court has had to grapple. They may yet come to be asked in the United Kingdom.

In this thought-provoking guest post, Jaime Campaner, practising lawyer and Associate Professor in procedural and criminal law at the University of the Balearic Islands, does not provide all the answers, but he vigorously defends the Spanish Supreme Court from what he believes to be misplaced criticism.

Campaner: Argues that criticisms of Spain’s Supreme Court are misplaced

Last Monday, after months of open-court trial which everyone could follow on internet and TV, the Spanish Supreme Court delivered their judgment on the so-called “Catalonia case”, convicting the main defendants of sedition, misuse of public funds and/or contempt of court.

The first issue to highlight is that the ruling has been written to make it understandable for every citizen who might be interested in it, bringing the judiciary closer to the people.

The second point which should be explained, mostly in the light of the massive protests against the ruling, is that the defendants were not convicted for their ideas nor for exercising the alleged right to secede from Spain. They were convicted for avoiding compliance with legality in Catalonia and impeding the enforcement of court orders. To cite just one case (the ruling runs to almost 500 pages), there were mobilizations that exceeded the constitutional limits of the exercise of the rights of assembly and demonstration and which created a coercive and intimidating environment which prevented the judicial police from transferring the detainees, in accordance with their rights, to the building where the search and seizure was to be carried out as per a court ruling. Moreover, this search and seizure was hindered for over twelve hours. Continue reading “Guest Post on Catalonia: Was the Spanish Supreme Court crushing legitimate dissent or properly upholding the law?”

The Government should be careful what it wishes for from the Supreme Court

Barristerblogger is normally risk averse when it comes to commenting on great questions of constitutional law. I have always thought it is something best left to the experts: academics like Professors Paul Craig  or Mark Elliott, for example, or former Government lawyers like Carl Gardner or David Allen Green who know how these things work from the inside.  However, since everyone else has been putting their two pennyworth into the Prorogation cases, including “Britain’s rudest manDavid Starkey, perhaps I can throw in the contribution of a polite criminal hack.

1. The Supreme Court will be criticised whatever it does

If the Court upholds the Scottish Court of Session decision that the Prorogation of Parliament was unlawful it will be criticised for making a political decision.

If it upholds the English Divisional Court it will give a gift to Scottish Nationalists who will denounce a court made up largely of English judges for over-ruling the unanimous judgment of the highest Scottish court.

Incidentally, the decision to increase the number of judges hearing the case from 9 to 11 has increased the English majority from 5 – 4 to 7 – 4. (The “non-English” judges are Lords Reed and Hodge from Scotland, Lord Kerr who is from Northern Ireland and Lord Lloyd-Jones who is Welsh). Continue reading “The Government should be careful what it wishes for from the Supreme Court”

Did Carl Beech have a fair trial?

Mark Watts, former editor-in-chief of Exaro News, has written a long and detailed argument explaining why he considers that the conviction of Carl Beech was a miscarriage of justice. He points out that he is “a lone voice” amongst journalists:

While many journalists join in the official narrative, some who know otherwise in the national media either go along with them in a desperate attempt to protect their cowardly backsides or elect, understandably, to keep their heads down.”

As well as cowardly journalists who “join in the official narrative,” Mr Watts has particular contempt for what he calls “the falsely accused brigade.”

The falsely-accused brigade and its cheerleaders in the media have exposed their hypocrisy in their celebration of this trial. If they were genuinely interested in fair justice, they would not be ignoring the dubious way in which Beech was found guilty.

In truth, members of the falsely-accused brigade are not remotely interested in justice, but in proclaiming with a pseudo-religious fervour that they or their loved ones or their friends or associates are innocent of accusations of sexual abuse levelled against them.”

Mr Watts is rather vague about exactly who is in the “falsely accused brigade,” although presumably it includes Harvey Proctor, Lord Bramall and Greville Janner’s son Daniel. All three have fervently “proclaimed that they or their loved ones are innocent of accusations sexual abuse levelled against them.Confusingly, though, Mr Watts concedes that Beech’s allegations against anyone have no credibility,” in view of which it seems mildly ungracious to sneer at his victims for “proclaiming” their innocence. Continue reading “Did Carl Beech have a fair trial?”

Do we need a Victims Commissioner?

On hearing the words “Dame Vera” most people will think fondly of the 102 year old golden-voiced Forces’ sweetheart. Those in the legal world, however, are more likely to conjure up a picture of the 69 year old flame-haired Fabian firebrand Dame Vera Baird QC, formerly a barrister in the chambers of radical lawyer Michael Mansfield QC, then a Labour MP and Solicitor General, then the Police and Crime Commissioner for Northumbria and now The Victims Commissioner for England and Wales.

Baird: poacher turned gamekeeper

In her early career Dame Vera usually defended those accused of serious crimes, but in more recent times she has used her various offices to campaign vigorously for changes in the law that make it easier to convict and imprison them. The former poacher has metamorphosed into a ferocious gamekeeper; it is not hard to imagine her prowling round the estate, setting man-traps, loading the spring-guns and inspecting the rotting cadavers of corvids gibbeted on the boundary fence.

For those who are not familiar with the office of Victims Commissioner, it is a statutory appointment of a person charged with the duty of “promoting the interests of victims and witnesses” and taking “such steps as she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses.” Continue reading “Do we need a Victims Commissioner?”

The many lies of Carl Beech and the folly of his supporters

It all started with Sir Jimmy Savile.

The platinum-blond disc jockey with a taste for shell-suits needs no introduction to British readers. To others it is enough to record that when he died in 2011 he was at first treated to obituaries that would have made St Theresa of Calcutta blush. He had been a television institution for decades, and when he had not been on television he had been visiting the sick in hospitals or raising huge sums of money, including according to some estimate up to 90% of his own earnings, to charity.

Then, within a few months of his death allegations started to emerge that he had abused children and women on a vast scale. Because he was dead, none of the allegations were ever tried in court but the press, so adoring of him while he was alive, now turned on him with the vehemence of a betrayed lover. The Guardian spoke, unusually, for the majority when it ran an extraordinary editorial comparing him not altogether favourably with Pol Pot, and calling for a public ceremony of commination, as “a ritual expression of public condemnation and disgust.”

The institutions with which he had been associated – mainly hospitals and the BBC – fell over themselves to apologise for his behaviour. Accounts of Savile’s wickedness were collated in various official reports and they were all accepted, without question, by a press that was now as indignant about his criminality as it had been fulsome in his adoration. Anyone – and there were a few – who dared to question so much as a single individual account was considered beyond the pale, even though some of the allegations against him bordered on the incredible. Continue reading “The many lies of Carl Beech and the folly of his supporters”

Expert witnesses: a crisis in the criminal courts

Last month the House of Lords Science and Technology Committee published a report on the critical state of forensic science in the United Kingdom. Several private forensic science providers are close to financial collapse. At the same time the police are increasingly taking forensic science in-house – raising obvious questions of independence and impartialityor outsourcing it to unregulated providers that do not met minimum quality standards.

The evidence we received points to failings in the use of forensic science in the criminal justice system and these can be attributed to an absence of high-level leadership, a lack of funding and an insufficient level of research and development. Throughout this inquiry we heard about the decline in forensic science in England and Wales, especially since the abolition of the Forensic Science Service.”

Professor Claude Roux, President of the International Association of Forensic Sciences, told the Committee:

When I was a student, England and Wales held, essentially, the international benchmark. It was the “Mecca” for forensic science. Some 30 years later, my observation from the outside … is that it has been an ongoing national crisis and, at this stage, is more of an example not to follow.”

This report was alarming enough, but the problem with expert evidence in criminal cases goes much deeper even than the alarming House of Lords report suggests. Continue reading “Expert witnesses: a crisis in the criminal courts”

Pozner & Dodd: Cross-Examination Science and Techniques. A review

Cross-Examination: Science and Techniques

Larry S. Pozner and Roger J. Dodd

This is quite simply the greatest book on cross-examination that I have ever come across and worth every penny of the hundreds of pounds that it will cost you to buy. It is not easily available. The latest (third) edition is currently unavailable on Amazon, although rather strangely several second editions are, priced at about £600.00 new, or between £330.00 and £745.00 second hand. I was distraught when, just a few days after my copy finally arrived (stamped ex libris Filosa & Filosa attorneys at law 501 Main Street, Truth or Consequences, New Mexico) I left it in a taxi. Fortunately, thanks to the honesty and good sense of a London black cab driver, instead of flogging it on the dark web, or sending it back to Truth or Consequences, like a forensic pathologist he traced me through dental records, in this case a dentist’s receipt, in the same bag. Thank goodness for rotten British teeth.

It is written for an American audience, so some of the terminology is a little obscure. They have “direct” examination, we have “evidence in chief,” they “impeach” a witness, we “contradict” them, and so on. There are references to procedures that we no longer have in England and Wales, such as cross-examination at committal hearings. Voire dires, motions in limine and other pre-trial manoeuvres that we either don’t have, or that mean something different, crop up regularly. Our courts don’t have “podiums” to and from which counsel can walk while asking questions, more’s the pity perhaps. Continue reading “Pozner & Dodd: Cross-Examination Science and Techniques. A review”

Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.

Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of the police investigation. Mr Corbyn has described it as a “disturbing move.”

It is nothing of the sort.

No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed a standard form to give to complainants for use when investigating sexual offences.

It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.

Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked the more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict. Continue reading “Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.”

There are dangerously authoritarian tendencies in green politics

I am not going to criticise Greta Thurnberg but it would be wrong if the climate rebels of Extinction Rebellion and green political theorists were given a free ride because of our admiration for an undeniably impressive 16 year old.

As Extinction Rebellion was making its final preparations for its Easter campaign of civil disobedience, my brother Tom was selected as one of the Green candidates for the Euro elections that may not, but probably will, take place next month. He would make an excellent and hard-working MEP, and after waiting in Cornwall for years for the right wave to come along, a combination of indignation over climate change inaction and the Brexit debacle may now give him an opportunity to surf his way into power.

In the still improbable event that he is elected, I wish him well. As his political career takes off I will be content to be Piers to his Jeremy: an eccentric blogger brother of whom he is always slightly embarrassed. Continue reading “There are dangerously authoritarian tendencies in green politics”

Should a convicted man stay in prison if his accuser says he is innocent?

Last week in the unreported case of SB [2019] EWCA Crim. 569 the Court of Appeal gave its reasons for upholding a 68 year old grandfather’s conviction in a historical sex case, even though the only witness against him had told them, on oath, that he was innocent, and that she had lied at his trial. 

It was, with respect to the judges, the sort of decision that might cause people to say that the law is an ass.

In another separate, and very well reported, legal development last week, the inquest into the 1974 Birmingham pub bombings concluded with verdicts that the victims had been murdered by the IRA.

On the face of it the two cases are entirely unrelated. The case of SB may or may not be a miscarriage of justice; while the inquest was not directly concerned with the undoubted miscarriages of justice that followed the terrible events of 21 November 1974 when six innocent men were wrongly convicted of mass murder.

The link between SB and the Birmingham Six, is that in both cases the Court of Appeal decided to hear, and to disbelieve, evidence which ought to have led to their respective convictions being quashed. The Six were finally exonerated, while SB remains very firmly behind bars.
Continue reading “Should a convicted man stay in prison if his accuser says he is innocent?”