Harry Miller has won an important battle, but don’t expect the College of Policing to change very much

This piece originally appeared (behind a pay wall) in the Daily Telegraph on 21 December 2021.

In January 2019 a woman – who can be identified only as “B” – contacted Humberside Police.

I would like to report an individual by the name of Harry Miller [she gave his work details]. Miller has been making transphobic remarks on his Twitter account under the handle @HarryTheOwl. These comments are designed to cause deep offence and show his hatred for the transgender community.”

Mr Miller believes that biological sex is immutable. His tweets – which were not directed at B – often made the same point, sometimes in rather coarse terms, as when he quoted a snatch of doggerel:

Your breasts are made of silicone
Your vagina goes nowhere
And we can tell the difference
Even when you are not there ….”

In 2014 The College of Policing had issued Guidance to all forces, informing them that they must record all “hate incidents.” In so far it was relevant to transgender people, a “hate incident” was defined as:

any non-crime incident perceived by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender ….”

Such records “must be made,” the Guidance insisted, “irrespective of whether there is any evidence to identify the hate element.” In the Looking Glass world of the College of Policing the police had a role to play even when there was no evidence of a crime having been committed, no reason to suppose a crime was likely to be committed, no identifiable victim and no evidence of hatred. Continue reading “Harry Miller has won an important battle, but don’t expect the College of Policing to change very much”

Did Boris Johnson break the law with the Downing Street party?

The Policing Minister, Kit Malthouse, was interviewed by Mishal Husain on the Radio 4 Today Programme this morning. At about 08.20 he was pressed on the party allegedly held in Downing Street shortly before Christmas last year.  He said that he had been “briefed” in preparation for the interview, and been assured that anything that happened was “within the rules.”

Ms Husain asked him how it could have been within the rules.  Mr Malthouse did not explain. He was not an investigator, he said, and if there was a party, which he was neither admitting nor denying, he was not at it. He simply accepted what he had been told which seems to have been the bare fact that it was “within the rules.”

There seems little doubt that a party did take place in Downing Street on 18th December 2020.  Although the reports have been described as “unsubstantiated, anonymous claims” by the Deputy Prime Minister, there has been no denial of their substance.

No-one from the government has attempted to explain the basis on which the party could have been lawfully held. That may be because there is no explanation, or it may be because the explanation is more embarrassing than silence.

I’m afraid what follows necessarily involves an uncomfortably close look at some rather turgid law. But this is a legal blog, so if you’ve read this far you may be expecting that. Continue reading “Did Boris Johnson break the law with the Downing Street party?”

What is the point of the new so-called “dog theft” law?

The government has introduced legislation to create a new offence of what it calls “dog theft.” If passed it will form one of the weirdest additions to the criminal law since the 1745 Profane Oaths Act.

Profane cursing, which the 1745 Act made a criminal offence was, no doubt, a common problem in 1745. The same cannot be said for dog theft in 2021 which is not a very common crime at all.

The number of dogs in the country is not known, but it has grown in the last 5 years and probably now stands somewhere between nine and twelve and a half million. The number of “dog thefts” reported to the police every year has hovered around 1,500, although as not all police forces record such reports the total is probably closer to 2,000.

Some of those reported “stolen” turn out to have been lost, run away, removed by an estranged partner or, as appears probable in the case of Rory Cellan-Jones 15 year old collie, Cabbage, taken by accident.

The idea that there are organised gangs of criminals cruising the country looking for family dogs to steal is widely believed, widely promulgated by people who should know better and unsupported by the evidence: it is an urban myth. Although puppies and a few adult dogs do have a significant monetary value, the vast majority of family pets have none, which is why thieves hardly ever steal them. That is why so many dogs are abandoned or given to dog shelters.
Continue reading “What is the point of the new so-called “dog theft” law?”

The Church of England’s Interim Support Scheme: opaque, unfair and an invitation to the dishonest to fill their boots

The Church of England has an appalling record in dealing with child abuse.

It formed the subject of one strand of the Independent Inquiry into Child Sexual Abuse.

The predictable conclusion was that:

The Church of England failed to protect some children and young people from sexual predators within their midst. In the past, the system of child protection was under-resourced. Safeguarding personnel were at times ignored and their advice overlooked, in favour of protecting the reputation of clergy and the Church. During the Inquiry’s hearings, senior leaders in the Church apologised for its actions, recognising that failings identified by this investigation and other reviews were “profoundly and deeply shocking.”

Within the Church, and even before the IICSA’s report was published, there was a laudable desire to make amends for past mistakes.

It would take time to set up a proper redress scheme for victims of abuse, but in the meantime, under the auspices of The Archbishops’ Council (an executive body and charity within the Church of England), the decision was taken in September 2020 to establish an Interim Scheme.

The purpose of the scheme was:

“… to enable the Church to respond in particular to those survivors’ cases which are already known to the Church, where the survivor is known to be in seriously distressed circumstances, and the Church has a heightened responsibility because of the way the survivor was responded to following disclosure.” Continue reading “The Church of England’s Interim Support Scheme: opaque, unfair and an invitation to the dishonest to fill their boots”

National Disclosure Week: an occasion for celebration?

You may not have noticed that last week was “National Disclosure Week.” I had no idea that there was such a week until the Crown Prosecution Service started tweeting about it last Wednesday.

That the CPS is taking its disclosure duties seriously is of course a very good thing. Continue reading “National Disclosure Week: an occasion for celebration?”

Insulate Britain protestors: this injunction will solve nothing. For once a crackdown might be justified.

How effective will the injunction obtained by National Highways against the M25 “Insulate Britain” protestors be?

It is seen as necessary because the criminal law alone is fairly toothless against such protestors.

On the face of it, S.137 of the Highways Act 1980 should be sufficient. This is what it says:

137.— Penalty for wilful obstruction.
(1)If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.

Protestors can be arrested and prosecuted for “obstructing the highway.” That is helpful for police, but the maximum punishment available is a paltry £1,000, and in practice very few protestors are likely to be fined anything like that amount.

The punishment might be trivial, but at least the law seems very simple.

There is a complication. The offence is committed only when a person obstructs the highway “without lawful authority or excuse.” Continue reading “Insulate Britain protestors: this injunction will solve nothing. For once a crackdown might be justified.”

Sentences on rioters should deter violence, not ostentatious acts of urination

Five people involved in the riots which occurred on March 21st in Bristol were sentenced yesterday. All received prison sentences and four out of the five deserved them. They had admitted throwing objects, and attacking both a police vehicle and Bristol’s central police station. Many officers were injured. In disturbances which lasted from early evening well into the night officers were struck, spat on, kicked and punched, some whilst defenceless on the ground. Some – with good reason – feared for their lives. Hundreds of thousands of pounds of damage was caused in damage to police property alone.

These were the four who deserved their sentences (details taken from the Avon and Somerset Police press release):

Kane Adamson, 21,  threw items including road signs, a road work barrier and an electric scooter at officers while he also threatened officers and repeatedly punched and kicked their shields. Jailed for three years and six months.

Brandon Lloyd, 21, pushed and kicked officers’ shields, cornered and assaulted a PC by kicking them, and threw items at and kicked the windows of the Bridewell Police Station, damaging the glass. Jailed for three years and 11 months.

Kain Simmonds, 18,  sprayed an aerosol in the direction of an officer’s face, kicked officers’ shields, kicked the window of the Bridewell and repeatedly struck a police van with an officer’s baton. Sentenced to three years and three months at a young offenders institution.

Stuart Quinn, incited others to attack police officers, throw items at the Bridewell and cause damage to a police van. Jailed for three years and three months.

The defendants appear to have been identified on police video footage, part of which was released after the sentencing.

The violence arose out of a protest against the Police, Crime, Sentencing and Courts Bill, which contains a great deal of lamentable new law. I have written in some detail on this blog about one particularly nasty aspect of the Bill aimed at Gypsies and travellers, but they are by no means the only objectionable provisions.

The Bill would also significantly extend the powers of the Police to prohibit or impose conditions on demonstrations and other public assemblies, to avoid what Clause 56 (11) calls “serious disruption to the life of the community.” What does that mean? The answer is that it means whatever the Home Secretary wants it to mean, because under Clause 56 (12) the Bill gives her the power “to define any aspect of an expression mentioned in subsection (11).” That alone is an extraordinary provision – though unfortunately less extraordinary than it once would have been – empowering a Government Minister to change the legal meaning of language as she or he sees fit. It is a type of legislation known to English lawyers as a “Henry VIII” clause, but given the potentially breathtaking powers it hands to government ministers to limit demonstrations it might be almost as accurate to call it a “Xi Jinping” clause.

None of that of course excuses the violence used against the police who are not responsible for the Bill, did not ask for it, and some of whom who may well, individually have had sympathy with many of the objections to it.

The violence was not just inexcuseable. It was also extraordinarily counter-productive: the Bill is aimed at controlling disruptive demonstrations. What better argument could Priti Patel have to demonstrate the necessity for additional powers than to point to one of the most violent political demonstrations of recent years in which brave police officers were targetted by demonstrators chanting “Kill the Bill”?

But the fifth defendant sent to prison did not deserve it. Yasmin Schneider – who identifies as non-binary and prefers the pronoun “they” – was given a 5 month sentence of imprisonment for “outraging public decency.” Their crime was that during the riots they urinated at the feet of the police. Should you wish to, you can see footage of one of the incidents at the end of the police video uploaded above. It is not especially disgusting to watch.

They were not charged with riot or violent disorder, or with any crime of violence. That was because the crime was not a violent one. It was an act of protest that many would have found distasteful, though to my mind at least it was a great deal less distasteful than chanting “Kill the Bill” at a riot when police officers were under sustained attack and fearing for their lives.

Why then was Schneider given a prison sentence?

As usual the full sentencing remarks have not been published, but the hearing was well covered by the Bristol Post. According to their report, Judge Patrick said that her actions “dehumanised the police” and that there was a “high degree of harm caused.”

One can understand that a defendant’s actions have to be judged in the context in which they occur. A single angry man on his own hammering on the outside of a police van is much less alarming than a man – like Kain Simmonds – doing so as part of a mob attacking the police. So it would be wrong to judge her as though she was a drunk caught short in the street after too many beers. In the context it was a calculated act of protest, and, given her plea of guilty, I suppose we must accept that the charge of “outraging public decency” was appropriate. It is, at least in my opinion, a dangerously vague common law offence (that is, it is not created by legislation) which criminalises – I take the definition from Archbold’s Criminal Pleading, Evidence and Procedure – “open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.”

There are no formal sentencing guidelines for outraging public decency and, as a common law offence, it theoretically carries an unlimited prison sentence. In practice immediate imprisonment is far from inevitable. Judge Patrick himself will be remembered by some for a 2014 case in which he imposed a suspended sentence on a man who tried repeatedly, though without success, to have sex with various sheep and cattle in front of outraged picnickers outside Tottenham Hotspur’s training ground.

In an earlier case (Hardy [2013] EWCA Crim 2125]), the Court of Appeal said that when sentencing a man for “displaying his semi-erect penis” by rubbing it on the back of a car and “shaking it up and down,” the courts should have regard to the sentencing guidelines for “exposure,” an offence under the S.66 of the Sexual Offences Act 2003, committed where a person “intentionally exposes his genitals, intending that someone will see them and be caused alarm or distress.”

It seems that Judge Patrick may have had those guidelines in mind, not least because of his use of the expression “high degree of harm caused.”

Where there is both a high degree of harm and high culpability, the sentencing guidelines for exposure suggest a starting point of 26 weeks imprisonment, although that would not necessarily be an immediate sentence, and it would in any case have to be reduced to give credit for a guilty plea. If either a high degree of harm or a high degree of culpability is not present the guidelines suggest the starting point should be some form of community order.

What are the factors that indicate greater harm and greater culpability? The guideline helpfully sets them out.

None of these applies, and in fact the exposure guidelines are perhaps not really very apposite to Schneider’s offence.

So how was it that the judge was able to conclude that public urination during a riot caused “a high degree of harm”? Certainly it caused no physical harm, and it seems improbable that any of the injuries suffered by the officers that evening were psychological injuries consequent upon seeing Schneider urinate. The judge fell back upon the nebulous assertion that urinating in front of police officers “dehumanised” them. Whatever that means, it is surely far better that during a riot a person should “dehumanise” police officers by ostentatious acts of micturition than by hurling a brick at them; or indeed by provocatively chanting “Kill the Bill,” something which nobody – so far – has suggested should be a criminal offence.

Moreover – at least judging by the report in the Bristol Post – Judge Patrick does not appear to have given much weight to the personal aspects of mitigation that Schneider’s counsel outlined to the court. These included homelessness at the age of 16, domestic abuse, pregnancy, a stay at a mother and baby unit, and what sounds like rather fragile mental health. Even if the judge regarded that mitigation as irrelevant, and because he is a humane and decent man I doubt that he did, it is still very difficult to see what an immediate prison sentence achieves that a suspended sentence coupled with some form of community order would not. If it is felt that only a harsh sentence would deter others in the future, surely it would make more sense to draw a sharp distinction between those demonstrators who used actual violence and those, like Schneider, who did not.

It is violence that needs to be deterred at political demonstrations, not tasteless or offensive acts of protest.

 

 

 

 

 

 

The evil lurking in clause 23 of the Nationality and Borders Bill

Immigration and asylum law is notoriously complicated and constantly changing.

In a recent Gresham College lecture, Lord Justice Haddon-Cave referred to an estimate from 2013 that immigration legislation and rules ran to over a million words – more than the total number of words in the Harry Potter series. In a case from the same year Lord Justice Jackson described the Immigration Rules and their numerous appendices as “having achieved a degree of complexity which even the Byzantine emperors would have envied.”

Things have got worse since 2013.

In 2017 a senior Immigration Judge described immigration law as:

A total nightmare. I don’t suppose the judges know any more about it than the appellants who appear before them.”

One of the very few people in the country who does know more than most appellants or judges is Colin Yeo. As he points out on his superb blog, statutory immigration law – not including the voluminous rules and codes of practice – is now divided between Acts from 1971, 1988, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014 and 2016. Each Act amends and re-amends existing legislation, thus adding yet further layers of complexity. Since he wrote that post, Brexit legislation has produced yet more statutory accretions.

The latest horror about to arrive is the Nationality and Borders Bill. Continue reading “The evil lurking in clause 23 of the Nationality and Borders Bill”

The Evil of Priti Patel’s Anti-Gypsy Legislation

What on earth has happened to Matthew Parris?

For the last thirty years or so he has produced beautifully written, persuasive columns on subjects from llamas to high politics, typically characterised by thoughtfulness, tolerance and moderation. Then, last Saturday he wrote an extraordinary piece under the headline “We should stop pandering to Travellers.”

It seems to have been prompted by the arrival of some travellers in a Matlock car park:

“… I’ve walked through the encampment many times a week for ages now. A scattering of Portaloos and wheelie-bins have arrived, more caravans recently, dogs on chains, and a string of steel barricades: the town is facing a serious loss of amenity and people worry — reasonably or otherwise — about security.”

Mr Parris concedes that the Travellers have done neither him, nor anyone he knows any harm. Nevertheless, “public anger is undeniable.”

Parris: Travellers have done me no harm

His central argument  was that “there is simply no place for the nomad [that is travellers and gypsies moving around the countryside in caravans] – in modern Britain.” Continue reading “The Evil of Priti Patel’s Anti-Gypsy Legislation”

The ordeal of Father Bill Bulloch

In May 1650 the “Rump” House of Commons passed an “Act for suppressing the detestable sins of Incest, Adultery and Fornication.”

Adultery by either sex became punishable by death, although if committed by a man with an unmarried woman it was deemed merely “fornication” with a sentence of 3 months imprisonment for a first offence (in a seventeenth century version of the “three strikes” rule it was death for a third offence of fornication). The Adultery Act was so successful in eliminating the detestable sin, that it during its ten years in force it only proved necessary to execute four women, and no men.

However, by 1660 its time was up. Other “Acts” of the Rump Parliament had included the abolition of the House of Lords and the abolition of the monarchy, so upon the restoration of both institutions in 1660 the Adultery Act was no longer recognised as being a validly created law. Since then adultery has not been a criminal offence in England and Wales. The misleadingly entitled tort of “criminal conversation” – it was not criminal and did not require any conversation – lingered on till 1857. Well into the second half of the twentieth century one could in theory obtain damages for adultery, but that ended in 1970. Adultery lingered on in law as a ground for divorce until last year, but with the enactment of the Divorce, Dissolution and Separation Act 2020 even that disappeared.

So it was a little odd to read in the Church Times last year that a Southend vicar, Father Bill Bulloch, was cleared of adultery in an English court. Continue reading “The ordeal of Father Bill Bulloch”