Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

Attacks on the Article 50 judges are a disgrace

In the wake of the dramatic Article 50 judgment various Brexiteers have been venting their feelings.

On the front page of today’s Telegraph Nigel Farage fulminates against “unelected judges” and the “rich elite” that took the Article 50 case to court. Ian Duncan Smith accuses the judges of an “enormity” which “takes judicial activism to a new level.” Jacob Rees-Mogg says they have caused an “unnecessary constitutional clash.” Daniel Hannan compares Remainers to Western Communists who backed the Molotov-Ribbentrop pact: “they have gone from deriding parliamentary supremacy as a Victorian hang-up to posing as its defenders.” In a thundering editorial the Telegraph declared:

“The Court cannot simply pretend that the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote …..”

And these contributions have been mild compared to others. “Enemies of the people!” screamed the front page of the Daily Mail, an absurd and inflammatory headline that could have graced a 1923 Izvestia story about social parasites and Menshevik counter-revolutionaries in Leninist Russia; while Suzanne Evans, supposedly the more moderate of the UKIP leadership candidates appeared to call for the dismissal of the Lord Chief Justice. Continue reading “Attacks on the Article 50 judges are a disgrace”

Some rushed and barely coherent thoughts on today’s Article 50 judgment

Cases in the Administrative Court are often a bit like the Radio 4 programme You and Yours: of limited general interest. Whilst often very important for the development of the law, and for those immediately concerned, they lack the sort of immediate news value of – for the sake of argument – a rape trial involving an international footballer. Typically they will be about planning, or immigration or benefits.

This was different. It was about a question that has occasionally convulsed the nation since at least the seventeenth century: who rules Britain, Parliament or the Queen? In fact nobody contends that the Queen does so in person, but Her Government argued that the Prime Minister can do so by the use of Her prerogative. It was in fact a modern version of the Civil War, albeit conducted – in court at least – with courtesy and law reports rather than muskets and cannon balls.

No wonder the www.judiciary.gov.uk website was creaking under the strain this morning as it dealt with an unprecedented demand to download the Brexit judgment. Continue reading “Some rushed and barely coherent thoughts on today’s Article 50 judgment”

Conservatives should support the Article 50 litigants

The legal battle over whether Article 50 should be triggered by the Prime Minister wielding the Royal Prerogative (as the Government wants), or by an Act of Parliament (as the Remainer litigants contend is necessary) is proving to be a much tougher fight than many had predicted. The Government won a victory in Northern Ireland last week when the High Court ruled in its favour. Mr Justice Maguire ruled that Article 50 Notification would not breach the Good Friday Agreement. He tactfully declined to express any opinion on the English litigation which raises different issues. It is by no means certain that it will go the same way,

The Lord Chief Justice and his two colleagues will deliver judgment shortly, although it is virtually certain that the case will then go to the Supreme Court which has pencilled in a date in December. The outcome is unpredictable, and there is even talk that the case could be referred to the European Court of Justice to answer the potentially critical question of whether notification given under Article 50 is revocable. Although the demeanour of the judges has given little away, there is a feeling amongst some lawyers that a Government defeat is a real possibility. Continue reading “Conservatives should support the Article 50 litigants”

Mr Grayling is wrong about the Brexit dividend to station platforms

It is seldom a pleasure to hear the droning, humourless and untrustworthy voice of the Transport Minister Chris Grayling, and never less so than when he interrupts preparations for Sunday lunch.

Unfortunately I wasn’t able to get to the off button quite in time, so I caught Mr Grayling being interviewed by Mark Mardell on The World This Weekend. Yesterday was of course the day when Theresa May announced her Great Repeal Bill, and this was the subject of Mr Grayling’s interview. Before I pulled the plug on him I heard this exchange:

Q: I imagine there are lots of laws in your area of transport both in aviation & road transport that are affected by EU legislation. Any you want to get rid of?

A: Well let’s get back to some practical examples, there are EU laws around the running of railways about the height of platforms, for example. Our rail system, apart from HS1, is not in any way linked to the continental rail network, so there is actually no reason for us to have European platform heights, so that’s one area of regulation that could certainly change.

For some reason this immediately brought to mind lines from the Wilfred Owen poem “Futility,” written about a very different subject matter:

“Was it for this the clay grew tall?

—O what made fatuous sunbeams toil

To break earth’s sleep at all?”

All the sound and fury of the referendum battle, all the political blood that has been spilt, all the poisonous, dishonest and occasionally racist rhetoric: what has it achieved?

It has given us back the freedom to set our own platform heights. Continue reading “Mr Grayling is wrong about the Brexit dividend to station platforms”

Never mind rape myths, the criminal justice system is built on even more fundamental myths

These days no prosecutor is considered properly trained until they have attended a course to warn them sternly of the dangers of believing “myths and stereotypes” about sexual offences. The CPS website lists 10 such myths (defined as “a commonly held belief, idea or explanation that is not true”), including, for example:

“Rape occurs between strangers in dark alleys” (obviously it occasionally does, but the myth is that it only or mainly occurs in that way).

Or

“You Can Tell if She’s ‘Really’ Been Raped by How She Acts” (when, as the CPS correctly points out, reactions to rape are “highly varied and individual.”)

It is all to the good that any myth should be expunged by the cauterising effect of truth, but there are even more fundamental assumptions underlying the whole criminal justice system. They are these:

  1. Jurors can safely rely on the memory of an honest witness;
  1. Jurors can safely assess when a witness’s memory is mistaken;
  1. Jurors can safely assess when a witness is lying.

Unfortunately each one of these assumptions is a myth: a “commonly held belief that is not true.” Continue reading “Never mind rape myths, the criminal justice system is built on even more fundamental myths”

Mainly for Archers fans: Will the jury be allowed to hear from Jess?

I should apologise to Barristerblogger readers who are not Archers fans. I was one of you once but the drama of Helen Titchener’s attempted murder trial has dragged me in.

The question of the moment is this: will Jess’s evidence be admitted?

If you haven’t clicked away from this page already you almost certainly know the plot. Helen is on trial for attempting to murder her husband, Rob. There is no dispute that she stabbed him. The issue is whether she acted in self-defence. It is for the prosecution to prove that she did not.

Neither barrister is looking like an early candidate for silk at the moment.

Helen’s brief, Anna Tregorran, made a mess of the crucial cross-examination of Rob, when she allowed it to degenerate into an undignified shouting match, before the loathsome complainant managed to sob out the the last few heart-rending seconds of his evidence; whilst prosecution counsel, Mr Bywater, despite a confident start has foundered badly in his cross-examination of Helen. His tone has fluctuated between sneery (sometimes a perfectly proper tone for a prosecutor), hectoring and downright aggressive. It hit an absolute nadir when he appeared to suggest that because she had conceived Henry by IVF, her desperation to conceive another child meant she would have had an insatiable sexual appetite thereafter. Continue reading “Mainly for Archers fans: Will the jury be allowed to hear from Jess?”

Anna Tregorran is making heavy weather of defending Helen Titchener in The Archers Trial

Half the country was glued to their radios on Sunday night for the first day in the Archers Trial.

Prosecution counsel’s opening was suave and persuasive, whilst being perfectly fair – Julian Bywater correctly stressed, for example, that it was for the prosecution to disprove self-defence not for the defence to prove it.

Listeners were more concerned to see how Helen’s barrister, the troubled and intermittently drink-sodden Anna Tregorran, would rise to the occasion.

In preparing for the trial of the century over the past few months Miss Tregorran has certainly not been lacking in commitment: she has visited her client in prison innumerable times (for almost all of which she won’t be paid a penny).

On the other hand she has been remarkably unsuccessful on the two occasions when she actually appeared in court. She made an inexplicably unsuccessful bail application which has led to Helen spending the last 5 months in custody; and her performance in the family court was so lamentable that she was lucky not to be reported to the Bar Standards Board for conducting a case without the appropriate knowledge and expertise. Continue reading “Anna Tregorran is making heavy weather of defending Helen Titchener in The Archers Trial”

Judge Lower was right not to lift the Sexual RIsk Order on John O’Neill

We must wait until 22nd September to discover exactly what District Judge Adrian Lower has in mind for John O’Neill, the York man who, despite having been acquitted of a charge of rape, is now not allowed to have sex unless he gives the police at least 24 hours notice of his intention.

Mr O’Neill has been subject to a peculiar and, as far as I know, unique interim “Sexual Risk Order” since January. At a hearing yesterday the judge announced that he would be making a final order, although in the same breath he also strongly implied that he would amend its terms, describing the notice provisions as “wholly disproportionate” and “frankly unpoliceable.” Continue reading “Judge Lower was right not to lift the Sexual RIsk Order on John O’Neill”

Professor Jay was brave but wrong to agree to chair the child abuse inquiry

I hate to be Cassandra yet again, but Amber Rudd has made the wrong decision in appointing Alexis Jay as the new Chairman (and like it or not, “Chairman” is the word used in the Inquiries Act 2005 under which she has been appointed) of the “independent inquiry into child sexual abuse” (“IICSA”); and Professor Jay was wrong to accept the appointment.

This is not, as some have suggested, because a social worker like Professor Jay is in some way compromised when the Inquiry examines the conduct of other social workers. She has in fact been an inspector of social work since 2005, criticism of other social workers has been her business for some time and she is well qualified to comment on social work failings should she come across any.

Nor is it because of any personal failings. Many of those who have worked with Prof Jay speak highly of her, and her report into sexual exploitation in Rotherham between 1997 and 2013 has been widely praised. Continue reading “Professor Jay was brave but wrong to agree to chair the child abuse inquiry”

You don’t need to be a terrorist to commit a terrorist offence

I am grateful to a reader for pointing out that I have committed an offence under S.58A of the Terrorism Act 2000.

This morning the Daily Mail published a story about various senior police officers who have apparently been very well paid. Foremost in the Mail’s sights was Stephen Kavanagh, Chief Constable of Essex. Continue reading “You don’t need to be a terrorist to commit a terrorist offence”