A group of 120 “top lawyers”have signed a “declaration of conscience”stating they will not prosecute “peaceful climate change protestors” and will “withhold [their] services in respect of supporting new fossil fuel projects.”
Predictably the tax specialist and founder of the “Good Law Project” Jolyon Maugham KC is amongst the signatories, although the practical effect of his conscientious objection is limited. I’m pretty surehe has never prosecuted a criminal case in his entire career, and it would be remarkable if the CPS now decided to instruct him to prosecute a climate change protestor. The same can be said for the vast majority of the signatories, who also includeTim Crosland, director of the environmental pressure group Plan Bwho was recently disbarred for deliberately breaching a publication embargo on a Supreme Courtjudgment (you can read his justification for doing so on this blog). Another is Sir Geoffrey Bindman KC, a distinguished human rights solicitorand certainly someone who knows his way around a criminal court, but who at the age of ninety is unlikely to have the appetite to complete the soul-destroying process of applying to join the list of CPS approved counsel, on the off chance that he might then be sent a brief to prosecute a climate change activist which he could then dramatically refuse to accept. Continue reading “Why I do not support the barristers who are refusing to prosecute eco-activists”
Whilst we will not know for some time whether Mason Greenwood will resume his career with Manchester United, it is now clear that he will not be available for selection for HMP Strangeways next season.
Mr Greenwood – by all accounts an absurdly talented young footballer – had faced charges of attempted rape, ABH and controlling and coercive behaviour. The Crown Prosecution Service announced yesterday that they were discontinuing the prosecution:
“… a combination of the withdrawal of key witnesses and new material that came to light meant there was no longer a realistic prospect of conviction. In these circumstances, we are under a duty to stop the case.”
The Lord Chief Justice has been widely criticised by members of the criminal Bar for having appeared to take sides – the wrong side – in the profession’s current dispute with the government over fees. In this guest post Edward Henry QC reflects on how well the head of the judiciary has been able to perform his delicate high wire act between the twin pillars of the Judiciary and the State.
I have not had the pleasure of appearing before The Right Honourable the Lord Burnett of Maldon, Lord Chief Justice of England and Wales, and until 22nd June 2022 felt a certain affinity with the Chief. Unlike me, he sports a fine bouffant, a luxuriant helmet of Albino Sable, or Arctic Fox. In contrast, I am follicularly challenged, but were I to apply shaving foam to my shining pate, having rouged my cheeks (as I once did for the Soho Women’s Collective panto) a certain similarity could be approximated, provided I shaved off my beard.
We do, after all, share a trencherman’s physique, and because of our pleasing adiposity, I fondly imagined the Chief to be an excellent dining companion – his face is reminiscent of a jolly two bottler transported from the late 18th Century Augustan age, when flasks were smaller (of course) for he’s surely not a toper. Yes, our taste in Art was unlikely to be simpatico, vouched for by the fact that for many months (or so it seemed) a ludicrous email announced that the Chief had signed a print of the RCJ, which wheezed, as follows:
“The Royal Courts of Justice” has been published in a limited edition of only 950 prints – every one of which has been hand-signed and numbered by the Lord Chief Justice and the artist, to create a rare and historic legal collectible – which is already being referred to as one of the most important and valuable in British legal history.
Whom had the Chief endorsed by autograph? A modern Piper, Piranesi, or Palladio? Well, up to a point Lord BoM! When one inspected the dismal scene, the eye was met by a dreary, tea-bag-stained embarrassment. The referee, in the above boilerplate quote, must have been laughing all the way to the Bank – but only on the unlikely assumption that anyone had bought a copy. Whilst I would not question the Chief’s artistic taste (even judgement) his association with this particularly plain (at least to me) print project seemed perplexing until I read it was for charity, which (as you know, dear reader) covers a multitude of sins.
The Chief’s announcement on the CBA’s ‘Days of Action” suggests that his devotion to charity does not begin at home. After stating the obvious, that the Judiciary is to uphold the ‘Rule of Law’, he then unwisely rubbed his magic lantern and an intimidating spectre, muttering darkly of ‘wasted costs’, ‘referral to the BSB’ and ‘disciplinary process’ wafted from the spout. Having already professed (as he did before in his recent Slynn Lecture) that the Judiciary were not involved in the dispute between the Government and the Bar, the Chief’s aspirations to neutrality seemed to be surreally at odds with the actualité. In contrast, when contemplating the dearth of criminal practitioners in the Crown Court, during the course of the Slynn Lecture he delivered on 16th June, he said the following:
At the same time as the judicial capacity of the Crown Court has diminished in recent years, so too has the capacity of the legal profession to service the cases that we would wish to list. Of course, I shall say nothing of the current dispute between the criminal bar and the government and its potential to increase the outstanding caseload and reduce timeliness. But as the volumes of work in the Crown Court reduced over a period of about ten years and at the same time the remuneration available to both solicitors and barristers was either frozen or failed to keep pace with even modest inflation, the number of specialist practitioners on both sides of the profession diminished. We are now running the Crown Courts at about 25% greater a rate than we were three years ago. The legal profession has struggled to keep up in many parts of the country since the Crown Courts returned to pre-COVID levels of work during 2021. A growing number of cases in recent months listed for trial have been adjourned because either the prosecution or the defence have been unable to find suitable representation. That is a capacity issue and to my mind both the legal profession capacity issue and the judicial capacity issue demonstrate how important it is to ensure that any system that is vulnerable to ebbs and flows of work has sufficient resilience to deal with an increase in demand. The legal profession does not appear to have that resilience at the moment. Sorting out remuneration difficulties is an obvious first step. But it will take time for solicitors’ practices around the country to react and increase the capacity of their criminal teams. It will take time for the bar to reverse the trend of drift away from criminal law and increase the number of barristers willing and able to undertake criminal cases. There is an additional problem. The pool of suitably qualified lawyers is not only small, but it is being fished by many. HMCTS needs to recruit more lawyers as legal advisers in the Magistrates’ Court and elsewhere in the courts and tribunals service. The Crown Prosecution Service has been increasing its number of lawyers by recruiting heavily from HMCTS and the private sector. There do not seem to be enough criminal lawyers to go round. [Emphasis added]
This sober analysis was right on the money, or lack of it, but for the fact that rates have essentially remained static for 25 years, as opposed to ten, eroded by inflation, which now threatens to gallop away. Money isn’t everything, and most criminal practitioners aren’t motivated by it. Those who accuse us of cupidity are way off beam when so many critical tasks, including vital scrutiny of ‘unused material’ that might undermine the case for the prosecution, or potentially assist the defence case, remained excluded from the time the AGFS was introduced in 1997, until relatively recently. For 20 years the analysis of this material, fundamental to the fairness of the trial process, was conducted free of charge, the reward being the honour and responsibility of defending another human being.
Having, on 16th June 2022, succinctly stated the problem, the Chief’s announcement on 22nd June was surprising in its lack of deftness, and emotional intelligence. How are you going to retain practitioners or recruit new entrants if you appear to threaten them with an ermine veiled cudgel? Although the communiqué was couched in opaque language, nerves are frayed and emotions raw, so it would not be surprising if worthy advocates, at the end of their tether, might feel threatened, or see this as an instance of not-so-subtle intimidation? How do you reconcile the Senior Judiciary’s pseudo-Swiss stance with the heavy ordnance of referrals, mandatory reporting to the Presiders, and potential disciplinary proceedings? The apparent encouragement, however oblique, that wasted costs orders might be applied for by the CPS, pitting advocate against advocate? Could someone please tell us how someone with such political savvy, astute intelligence, and adroit skill, got it so wrong? Then I saw the answer staring me in the face.
In his Slynn Lecture, the Chief referred to the negotiations between the Judiciary and the Government that preceded the Constitutional Reform Act 2005. The phrase he used when describing them was ‘The Concordat.’ That term has unfortunate historic connotations that may be revealing, even sinister.
In 1929 Mussolini and the Pope agreed terms akin to a truce – resolving (uneasily and unsatisfactorily) the battle between the temporal and the spiritual worlds. The choice of the word ‘Concordat’, with echoes of Mussolini’s Concordat, The Lateran Treaty, may be revelatory (I do not say it is) of the untidy ambiguities and unresolved pressures that still exist between the ‘Independent’ Judiciary and The Executive. In stating this, I am simply referring to the tension between the Executive and the Judiciary, exacerbated by populism, without appropriating the historic context of that dreadful epoch. Such fatuous comparisons cause justifiable offence, but the Chief’s choice of word seemed uncanny.
The last few years, quite evidently, have been fraught with danger for the Judiciary. The Senior Judiciary have been vilified and castigated, accused of treason, with no less than Lord BoM’s predecessor being styled as an ‘enem(y) of the people.’ The Crown Court judiciary are frequently lambasted for ‘being soft’ when diligently, and responsibly adhering to Sentencing Guidelines, which are founded on powers conferred by Government. Maybe, our current Chief, confronted by this mayhem, feels constrained to attempt the improbable (indeed impossible) challenge of becoming a high-wire aerialist, walking the tight-rope ‘twixt those twin pillars of Judiciary and State, in full regalia, wearing paste-encrusted buckled pumps? How far his efforts can be reconciled with a more resilient definition of ‘Independence’, requiring a more forthright quality of virtù, I leave you to judge.
Lord Burnett was a stellar brief – he was junior counsel to the Maguire Seven and the Guildford Four inquiries. He made an outstanding contribution to them both, exposing that fathomless abyss of utter darkness into which our system of criminal justice had fallen. Has he forgotten what he helped to reveal? Can he not remember the degradation, and torture of the innocent, enabled by a dysfunctional system, which has been repeated in our more recent past with the horrifying Post Office Horizon scandal? We now need, more than ever, fearlessly independent Judges and advocates to uphold rights, especially advocates willing to defend against the odds, whenever the risk of oppression and abuse of power threatens our liberties. The Criminal Bar’s withdrawal of labour, paradoxically, is not intended to destroy but to preserve: to preserve not only the Independent Bar, but the Criminal Justice System itself.
When appointed, Lord Burnett became the youngest Lord Chief Justice since Lord Parker of Waddington, who (in 1959) stressed that the judiciary’s “positive responsibility [is] to be the handmaiden of administration rather than its governor”. The judiciary as handmaidens (you give me a gender-neutral alternative!) of the Executive conjures up a procession of docile, red dressing gowned, ghosts gliding on and off the Bench, more concerned to approve rather than inclined to protect the citizen against the misuse of state power. Has a new era of judicial deference, unthinkable, perhaps, to Lords Bingham, Woolf, and Phillips begun?
It is not encouraging.
I fear, without condemning the Chief, that Lord Burnett may have chosen the wrong path, at least for now. The Slynn Lecture sits ill with the missive of the 22nd June. That latter statement may not have been an emetic, but it was unpalatable. It was better left unsaid, just as it may be for others to judge if this article were better to have remained unwritten. So, I’d better put that dinner à deux on hold for now. The corked bottle should have remained uncorked. To my colleagues, my good, worthy, and courageous colleagues, I wish you strength. We shall all need it.
Edward Henry QC practises in serious crime, business crime and fraud. He is Head of Regulation at Mountford Chambers, and his regulatory practice involves the defence of financial institutions and professionals. Many years ago, he had a successful practice defending sex-workers, which led to his playing a pantomime Dame, or to be more precise an “Ugly Sister” in the English Women’s Collective of Prostitutes’ Annual Panto. His performance1 was so unconvincing (“abysmal”) that he was not asked to repeat it. He writes in a personal capacity, and his views should not be attributed to Chambers, but if he laughs (or pokes fun) at any mortal thing it is so he should not weep.
We now know that in Virginia it is defamatory to call Johnny Depp a wife beater, whereas in England, at least for the time being, it is not.
How could it be that on what was the same issue two courts could arrive at such contradictory verdicts?
The American verdict appears itself somewhat contradictory. Whilst finding mainly in favour of Depp, it did also make one finding in Heard’s favour. On one discrete issue, they found that she had not set up Depp in an “ambush” to fabricate hoax allegations of abuse. But that was a small crumb of comfort – albeit it has saved her $2M – in a decision that otherwise saw the jury exonerate Depp on the central allegation that he was a domestic abuserContinue reading “Depp v. Heard: Why did an American jury reach a different decision than the English judge?”
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 ….”
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.
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.