There is no prospect of bringing a private prosecution against Dominic Cummings.

When private prosecutions are brought for political purposes they very rarely end well. In fact, I cannot think of a single example which has done so.

Readers will remember the fate of Marcus Ball who amidst great fanfare launched a private prosecution against Boris Johnson over the Vote Leave campaign bus slogan. Boris Johnson was accused of misfeasance in public office. The case ended in the Administrative Court on 3rd July 2019 when Lady Justice Rafferty and Mr Justice Supperstone ruled that he had failed to reveal any criminal conduct by Mr Johnson. Mr Ball’s prosecution, they strongly implied, was “vexatious.” Continue reading “There is no prospect of bringing a private prosecution against Dominic Cummings.”

The Colston statue destroyers have no defence in law but they will never be convicted

What will happen to the demonstrators who threw the Colston statue into Bristol Harbour?

The Home Secretary has described the demonstrators’ behaviour as “absolutely disgraceful.” Clearly she hopes that they will be prosecuted and punished.

The law is on her side.

Criminal Damage

S.1 of the Criminal Damage Act 1971 provides:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

It is impossible to know the exact value of the statue, or the cost of repairing it (it has been sensibly suggested that it might be recovered from the harbour and re-erected in a museum), but it is very unlikely to have been less than £5,000. Anyone charged with damaging it would therefore have the right to elect trial by jury in the Crown Court.

Damaging a listed building

It was a Grade II listed building. According to Heritage England it is, or was:

A handsome statue, erected in the late C19 to commemorate a late C17 figure; the resulting contrast of styles is handled with confidence. The statue is of particular historical interest, the subject being Edward Colston, Bristol’s most famous philanthropist, now also noted for his involvement in the slave trade. Group value with other Bristol memorials: a statue of Edmund Burke, the Cenotaph, and a drinking fountain commemorating the Industrial and Fine Art Exhibition of 1893.”

The use of euphemism in the listing is remarkable: Continue reading “The Colston statue destroyers have no defence in law but they will never be convicted”

The standard of proof in criminal trials: Peter Hitchens is right, and Lord Goddard was wrong.

There was a rather strange report by Martin Beckford in this week’s The Mail on Sunday that judges have been told to stop using the phrase “beyond reasonable doubt” in directing juries on the standard of proof required for a conviction:

“… the latest edition of the Crown Court Compendium – written by the Judicial College, which oversees judges’ training – tells members of the bench they can drop the old term completely.

It states that when summing up a trial they must give a ‘clear instruction to the jury that they have to be satisfied so that they are sure before they can convict’.”

The Crown Court Compendium, for those who have not come across it, is an invaluable guide to trial judges. It includes a number of specimen directions, which are often followed by judges, but do not have to be. It is regularly updated, not itself to change the law, but to reflect changes that have been made by statute or by the higher courts.  This is the latest guidance on the correct direction to be given on the standard of proof.

Continue reading “The standard of proof in criminal trials: Peter Hitchens is right, and Lord Goddard was wrong.”

Lessons for open justice from the Marie Dinou case

Marie Dinou, the woman from York convicted of a non-existent coronavirus offence after being found “loitering between platforms” at Newcastle railway station was lucky to be charged with something newsworthy. Had hers been a mundane motoring charge it is highly unlikely that anyone would have spotted that her treatment by the police and the justice system was stupid, incompetent and unlawful.

Thanks largely to the press (The Times’s Fariha Karim and The Independent’s Lizzie Dearden deserve special mention) and Doughty Street’s Kirsty Brimelow QC, who was amongst the first to denounce the prosecution as misconceived, her conviction is to be reversed by application of S.142 of the Magistrates Courts Act 1980. This useful piece of legislation allows a Magistrates Court to reverse a conviction “if it appears to be in the interests of justice to do so.”

British Transport Police now concede they made a mistake in arresting and charging Ms Dinou, but their attitude immediately after her conviction was very different. Keen to let the world know that they had achieved the first railway arrest under the new Coronavirus legislation, they had issued one of those self-congratulatory press releases that prosecutors are apt to release, albeit they are normally reserved for the convictions of murderers, serial rapists and elderly ladies who have too many cats. Appropriately enough it was dated April 1st. Continue reading “Lessons for open justice from the Marie Dinou case”

Those British Isles lockdown questions answered

Do I have to stay at home all day?

No. You may leave home if you have a “reasonable excuse.” Unless you live on the Isle of Man (and possibly in the Bailliwick of Guernsey) where even a reasonable excuse is no excuse.

What is a reasonable excuse?

It is an excuse which is reasonable.

Can you give me any examples?

There are lots of excuses which are deemed reasonable throughout England, Wales, Scotland and Northern Ireland. The full list is quite a mouthful but here it is:

In these jurisdictions a reasonable excuse includes:

the need:

(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household)

(b) to take exercise either alone or with other members of their household;

(c) to seek medical assistance …;

(d) to provide care or assistance … to a vulnerable person, or to provide emergency assistance;

(e) to donate blood;

(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;

(g) to attend a funeral of—

(i) a member of the person’s household,

(ii) a close family member, or

(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;

(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;

(i) to access critical public services, including—

(i) childcare or educational facilities …;

(ii) social services;

(iii) services provided by the Department of Work and Pensions;

(iv) services provided to victims (such as victims of crime);

(j) … to continue existing arrangements for access to, and contact between, parents and children, …

(k) in the case of a minister of religion or worship leader, to go to their place of worship;

(l) to move house where reasonably necessary;

(m) to avoid injury or illness or to escape a risk of harm.

That seems clear enough. So I can leave the house to exercise as much as I want?

Maybe, but not necessarily, and probably not in Wales.

Why not in Wales?

For obscure reasons the Welsh regulations differ from those in the rest of the UK, and deem that it is reasonable to exercise “no more than once a day.” That does not mean that exercising twice a day is necessarily illegal in Wales. It does mean that if the matter were ever to go to court it would be for you to prove that you had a “reasonable excuse” for doing so. Perhaps if your intended run was curtailed after 5 minutes because you forgot your phone, then you might have a reasonable excuse to go back home and start again. But I expect others can think up more imaginative reasonable excuses.

The English, Scottish and Northern Irish regulations contain no such restriction, despite the Prime Minister’s initial broadcast announcement that exercise was to be permitted only once a day. However, the Prime Minister does not make law by ministerial broadcast.

But although there is no “once a day” rule in England, Scotland or Northern Ireland, you must still “need” to exercise in order to leave home legally under the exercise exemption. If you have no “need” to exercise, a zealous police officer, of whom there seem to be a great many, could still ticket you for breaching the rules.

What is a “need” to exercise though? Oh sorry, I’m meant to be answering the questions, not asking them.

You’ve got me confused now. I live in Wales, can I exercise more than once a day? Yes or no?

Oh alright then. No.

What about England? Can I exercise more than once a day?

Yes, but …

I don’t want to hear any buts. Yes or no?

Yes.

Scotland?

I’m not a Scottish lawyer but …

Oh for crying out loud, how difficult is it to give a straight answer?

Yes.

Thank you. Northern Ireland?

Yes

How about the Isle of Man?

I’m not a Manx lawyer, but …

Come on, just answer the question.

Yes, but …

I don’t want any buts.

This one is quite interesting.

OK, what’s the “but” about the Isle of Man?

In the Isle of Man you can exercise as much as you like, but it has to be just “one form of exercise.”

I’m sorry?

In the Isle of Man you can leave your home to exercise as much as you like but you must only undertake “one form of exercise per day.” Paragraph 5 (1) (c) of the Emergency Powers (Prohibitions on Movement) Regulations 2020

What does that mean?

You have to choose. Running. Walking. Bicycling. Gymnastics. Rock-climbing. You can do any one of them as much as you like and as many times as you like, but you have to choose which one and stick with it for that day. You can try a different form the next day if you like.

How many forms of exercise may I undertake in a week in the Isle of Man?

Seven. But not all on the same day. And don’t say “that’s not reasonable,” there is no exemption for leaving the house with a “reasonable excuse” in Manx law.

How can I go rock-climbing unless I can walk to the rocks?

You can go by motorbike. The Isle of Man is good for motorbikes and criss-crossed by roads. The rules say you can leave home “in order to undertake one form of exercise per day,” so I imagine biking to the rock face would be permitted. Just don’t try walking or running there. Anyway, we’re getting diverted.

No, no, this is really interesting stuff. Isn’t riding a motorbike at 120 MPH round a twisty mountain road a form of exercise?

I suppose it could be, yes. But maybe not if you just rode the bike very slowly and cautiously.

How about Jersey?

Ah, Jersey. The rules say you can’t go into any public place at all until 8 a.m. on 13th April, unless you’re an authorised officer, or travelling to your place of work, or if you’re under a legal obligation to go somewhere.

So in Jersey I can’t exercise outside at all?

You can if you have a reasonable excuse.

What is a reasonable excuse?

I’m not a Jersey lawyer, but my hunch is that it means an excuse that is reasonable.

Is exercise deemed a reasonable excuse?

No, it’s not deemed to be a reasonable excuse in Jersey, but it’s not deemed unreasonable either. It all depends.

So can I exercise in Jersey?

Jersey law is silent on the point. Consult a local lawyer.

What about Guernsey?

There is a lockdown of sorts, but the Island’s Chief Minister has admitted that even he doesn’t understand it:

We have no rule book or precedents. There will be difficult judgments and nobody said it would be easy … and there simply has not been time in many cases to deliver fully fleshed out measures that covers every circumstance.”

At least he sounds honest. What about Sark?

All I know about Sark law is that it has the world’s smallest prison.

Is Sheikh Mohammed Al Maktoum a kidnapper and a pirate?

Money can buy the world’s best jockeys, trainers and racehorses.

As the judgment of the President of the Family Division in Re Al M revealed on Thursday, it can buy kidnappers who can be relied upon for their expertise and discretion when it comes to snatching one’s teenage daughter off the streets of Cambridge and flying her off to Dubai.

It can buy pirates who can kidnap your other daughter from a yacht in the Indian Ocean.

It can buy hundreds of malicious articles in the world’s press designed to “destabilise and harm” your ex-wife.

Sheikh Mohammed Rashid Al Maktoum, the Emir of Dubai, may have hoped that it could also buy him justice.

His Highness Sheikh Mohammed Rashid Al Maktoum

His decision to commence litigation against his wife now looks like one of the most foolish legal miscalculations since Jonathan Aitken promised to “cut out the cancer of bent and twisted and bitter journalism with the simple sword of truth and the trusty shield of British fair play.” Continue reading “Is Sheikh Mohammed Al Maktoum a kidnapper and a pirate?”

The Harman amendment: legislation as gesture politics leads to bad law.

Harriet Harman, the former solicitor-general, has put forward an amendment to the Domestic Abuse Bill which, she says, would prevent

a defendant, when he has admitted his actions caused injury, from arguing or raising the defence of consent, if the injuries resulted in GBH or death.”

It is likely to have no practical effect: as the law stands, apart from a few specific exceptions which Ms Harman’s amendment does not address anyway, the defence she describes does not exist.

This is her amendment to the Bill:

No defence for consent

(1) If, in the course of any behaviour which constitutes domestic abuse within the meaning of this Act, a person (“A”) wounds or assaults another person (“B”) causing actual bodily harm, more serious injury or death, it is not a defence to a prosecution that B consented to the infliction of injury.

(2) Subsection (1) applies whether or not the actual bodily harm, more serious injury or death occurred in the course of a sadomasochistic encounter.

According to the campaigning project We can’t consent to this – I hope this is a fair summary – there is an increasing tendency for men to use the “defence” that women they have killed, usually by strangulation, had consented to “rough sex.” As a result, they are either not charged, wrongly acquitted or convicted of the lesser offence of manslaughter; or are at least able to use the woman’s consent as mitigation and thereby to obtain a lighter sentence. The organisation has produced a list of women killed by their partners, where, they say, the defence was used.

Guardian columnist Joan Smith put the argument very succinctly:

“… men are seriously asking juries to believe “she asked for it”, even when what she supposedly “asked” for has ended in death. It is victim-blaming on the most brazen scale and the sole “evidence”, in virtually all of these cases, is the word of the defendant.”

Another columnist, Barbara Ellen called the defence” worryingly fashionable.

The campaign was begun in response to the trial of John Broadhurst for the murder of Natalie Connolly. Natalie died after suffering terrible injuries. Her body was covered with bruises, she had haemorrhaged from an injury to her vagina caused by the insertion and removal of a plastic bottle and had suffered a “blow-out” fracture of her left eye socket. Mr Broadhurst had told the police that most of the injuries (with the exception of the eye socket fracture) had been inflicted during consensual sexual activity. Although Mr Broadhurst was originally charged with murder, the CPS dropped the murder charge during the course of the trial. He pleaded guilty to manslaughter on the grounds of gross negligence and received a sentence of 3 years and 9 months imprisonment. Continue reading “The Harman amendment: legislation as gesture politics leads to bad law.”

Sir Roger Scruton RIP

There is often a mismatch between a person’s public image and their private behaviour.

It is sometimes forgotten that Sir Roger Scruton, who died yesterday, was a barrister. He was rightly honoured as a  bencher of the Inner Temple. He held strong and often unfashionable views on human rights – he believed that they were better protected by the common law than by conventions and statutes – and on the criminal law, where he sometimes advocated more severe punishments.

Yet in private Sir Roger belied this hard-line image. He made friends easily and without regard to political persuasion, colour, religion or sexuality. Nor could you have met a more decent, forgiving and – although he would absolutely detest the word being used of him – liberal man. A conservative, of course, should be pessimistic about human behaviour, indeed it is often pessimism that leads to a belief in conservatism. Roger even wrote a passionate defence of pessimism. Continue reading “Sir Roger Scruton RIP”

Should Jolyon Maugham be prosecuted for bludgeoning a fox to death?

Jolyon Maugham, the QC who has made a name for himself with his involvement in “lawfare” actions against the Government, woke up this morning, put on his wife’s satin kimono, went into his garden and bludgeoned a fox to death with a baseball bat.

He then announced what he had done on twitter.There is no mystery about why he killed the fox. It had come to eat his chickens, which he keeps in his central London garden. It entangled itself in the chicken-netting. Rather than try to disentangle it or call the RSPCA, he killed it with the baseball bat that he keeps at home to deter intruders.
Continue reading “Should Jolyon Maugham be prosecuted for bludgeoning a fox to death?”

Even if you didn’t support Boris Johnson there is no cause to despair

Congratulations to Boris Johnson. This is his victory, and I’m afraid it is an advertisement for what a flamboyant advocate, not afraid to dissemble and to stretch the rules can sometimes achieve.

There are plenty of reasons to worry about what he has in store, but even for those of us who did not vote for him there are also reasons not to despair, and even to be cheerful.

It goes without saying that Corbyn’s defeat has saved the country from the risk of bankruptcy, Venezuela-style . Practically any alternative was preferable to that.

So far the signs are not very encouraging but there is perhaps now some chance that after its catastrophic defeat the Labour Party will come to its senses, move back towards the centre, and begin to look like a credible government in waiting, or at least that it will provide a serious opposition.

And there are two other tiny crumbs of comfort. Continue reading “Even if you didn’t support Boris Johnson there is no cause to despair”