Why I do not support the barristers who are refusing to prosecute eco-activists

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 sure he 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 include Tim Crosland, director of the environmental pressure group Plan B who was recently disbarred for deliberately breaching a publication embargo on a Supreme Court judgment (you can read his justification for doing so on this blog). Another is Sir Geoffrey Bindman KC, a distinguished human rights solicitor and 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”

The Court of Public Opinion will need no rules of evidence before reaching its verdict on Mason Greenwood

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.”

It is no criticism of the CPS to say that this hardly begins to explain its decision. They are constrained by both the law and by good sense in what they are able to reveal. Continue reading “The Court of Public Opinion will need no rules of evidence before reaching its verdict on Mason Greenwood”

Do not fund Louise Raw’s crowd-funded attempt to prosecute Jeremy Clarkson

Antifacist activist,” Morning Star contributor, author and historian Dr Louise Raw, is raising money through a Go Fund Me campaign to see what legal action can be taken against Jeremy Clarkson, The Sun, or its editor. As readers will probably know, the reason for this is Clarkson’s 16th December Sun column.

The offending article has now been taken down. Quite rightly it generated thousands of complaints. It was a horrible little piece which should have been strangled at birth.  The Sun’s editor, like Mr Clarkson, should be ashamed of herself for publishing it.

Clarkson’s column

Mr Clarkson accused Harry of being a puppet manipulated by Meghan Markle. He has, said Clarkson, “no more control over what he says or does than Basil Brush.”

That was rude, but it was the next passage that caused the outrage:

Meghan, though, is a different story. I hate her. Not like I hate Nicola Sturgeon or Rose West. I hate her on a cellular level.

At night I’m unable to sleep as I lie there, grinding my teeth and dreaming of the day when she is made to parade naked through the streets of every town in Britain while the crowds chant ‘Shame’ and throw lumps of excrement at her.”

Apparently Mr Clarkson was making a reference to the television series Game of Thrones, though if so it was one that would have been missed by many of his readers including the many who, like me, have never watched a single minute of the drama.

He continued in somewhat milder terms, making a familiar argument: that Meghan Markle’s activities were likely to damage the Royal Family.

Because one day soon, my generation will all be dead, and we will be replaced by a new bunch who are growing up believing that Charles and William and Co are bullies who are waited on hand and foot by slaves, eunuchs and spin doctors.

Unless, of course, when Meghan takes her hand out of the ginger glove puppet, he remembers who he is and gives us ‘the’ truth.

Not hers.”

The Go Fund Me campaign

Dr Raw says that she “has a team of lawyers who have agreed to review the case.”

The Go Fund Me campaign is needed because the lawyers are not working for free.

It has an initial “goal” of raising £15,000. (I thought it was originally £18,000 but either I misread the amount or the team of lawyers has reduced its quotation). It has already raised over £13,000, including a first (anonymous) donation of £3,500 and one of £4,000 from a “Sandra Copeland.” These are quite extraordinary amounts of money for people to be giving merely to explore the possibility of litigation against Clarkson.

The “tentative legal grounds” which are being explored are these:

First, on the civil side – under the Protection from Harassment Act 1997.

Second, on the criminal side – under the provisions of S.4A of the Public Order Act 1986 and under s.127 Communications Act 2003.”

Dr Raw updated the Go Fund Me page yesterday to clarify that they are also considering a claim for “racial harassment under the Protection from Harassment Act 1997 and racism in the provision of a service.”

The Protection from Harassment Act 1997

Harassment” is a civil wrong (and potentially a crime) under the Protection from Harassment Act 1997. It is created by S.1 of the Act and consists of pursuing a “course of conduct” which:

(a) amounts to harassment of another; and

(b) which he knows or ought to know amounts to harassment of another.”

There are numerous difficulties with using this provision against Mr Clarkson.

The first is that harassment under the act, racial or otherwise, requires a “course of conduct.” A single newspaper article simply cannot amount to harassment. If there has been such a course of conduct it certainly has not been identified.

Describing the incident as “racial harassment” makes no difference, and in any case the article did not refer to Meghan Markle’s race.

And there is an even more fundamental problem with the tentatively suggested civil action:

S. 3 (1) provides:

An actual or apprehended breach of section 1 (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. [Emphasis added]

As far as we know, the Duchess of Sussex has not asked Dr Raw to help her bring an action. If the victim of the harassment does not want to litigate the issue, the chances of Dr Raw somehow succeeding on her behalf in a crowd-funded civil action are nil.

On her Go Fund Me page Dr Raw has invited others to contact her if they “felt harassed by the article or Jeremy Clarkson’s recent false denial.”

I’m not entirely sure what Dr Raw means when she refers to Clarkson’s “recent false denial.”  Presumably she means his expression of regret for his article, which was indeed something of a “non-apology apology.” Maybe so, but it makes no difference to the prospects of success of an action for harassment. Nor does it matter how many people say that they felt harassed by the article. The chances of a successful civil action for harassment remain zero.

A Criminal Prosecution?

What then of the chance of a criminal prosecution against Clarkson?

The two possibilities Dr Raw says her legal team are considering are S.4A of the Public Order Act 1986 and S.127 of the Communications Act 2003.

Let’s look at each of these.

S.4A Public Order Act 1986

S.4A of the Public Order Act provides:

(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.”

S.4A carries a maximum six month prison sentence.

Whilst it is more usually employed to deal with disturbances in the street, subsection (1) (b) does cover written material, although I have never heard of it being used to prosecute the author of a national newspaper article.

The legal obstacles to its use in this case are virtually insuperable.

First: the offence requires proof that a person actually has been caused “harassment, alarm or distress.” Without any evidence from the Duchess of Sussex to that effect any prosecution seems doomed to failure.

Perhaps Dr Raw herself, or some of her funders, might say that they themselves have been distressed by Mr Clarkson’s language? In theory the offence can be committed if abusive writing aimed at one person, in fact causes distress to someone else. But even putting to one side the difficulty of proving that Dr Raw or some of her supporters had in fact been caused sufficient “distress” to justify a criminal prosecution (trivial annoyance or upset is irrelevant, it has to be something which causes “real emotional disturbance or upset,” see R v. DPP [2006] EWHC 1375) it would be extraordinary to bring a prosecution without any evidence from the person who was the subject of the offending article.

Secondly a prosecution under S.4A would require proof that Mr Clarkson intended to cause someone (presumably the Duchess) harassment, alarm or distress. Mere recklessness is insufficient.

Freedom of speech

Thirdly, the words of the section have to be understood in a way that makes them compliant with Article 10 of the European Convention on Human Rights.

Whether you agree with Clarkson or not, his argument that the Duchess’s behaviour is likely to damage the Royal Family, and by implication the institution of the monarchy, was an expression of opinion on a matter of considerable public interest. However unpleasantly expressed, he was making a serious argument.

And feeble as the protection of Article 10 may be compared, for example, to the US First Amendment, both it and the common law do still provide considerable protection for freedom of speech. As Lord Justice Sedley famously put it in Redmond-Bate v. DPP [1999] EWHC Admin 733:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

Nobody could reasonably take from Clarkson’s article that he was actually encouraging a violent assault on Markle.

In any case, Clarkson is far from alone in the use of highly unpleasant and even violent language when discussing public figures. As Ross Clark rightly pointed out in Thursday’s Daily Mail (and I am well aware that the Daily Mail does not have clean hands when it comes to gutter journalism), nasty though Clarkson’s words were, equally or nastier things have been said or written by left wing comedians, journalists and politicians.

After a milk shake was thrown over Nigel Farage, the comedian Jo Brand said “why bother with a milk shake when you could get some battery acid.” Like Clarkson, it was clear that she was making a tasteless joke. Nobody could reasonably have taken her to be encouraging an acid attack on Mr Farage. Of course she was not prosecuted.

Phillip Pullman “jokingly” said “when I hear the name ‘Boris Johnson’ for some reason the words ‘rope’ and ‘nearest lamp post’ come to mind as well.” Nobody can reasonably suggest that Pullman was encouraging the lynching of Boris Johnson. Of course he was not prosecuted.

Clark gives various other examples. The point is not to encourage such language in public debate, but to point out that in a free society the law has to permit a wide degree of tolerance for cruel language and tasteless jokes. A society in which writers, journalists or politicians are constantly worried that they may be arrested, harassed or even imprisoned because of the risk that they might “distress” readers is not one in which I would want to live. Trading freedom of expression for freedom not to be offended would be a disastrous bargain. Dr Raw seems to consider herself a socialist rather than a liberal, but someone describing themselves as an “anti-fascist” to call for the prosecution of a journalist seems an uncomfortable nod in the direction of, for want of a better word, fascism.

S.127 Communications Act 2003

The final criminal option that Dr Raw’s team is investigating is a prosecution under S.127 of the Communications Act 2003.

Subsection (1) provides:

(1) A person is guilty of an offence if he –

(a) Sends by means of a public communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.”

This section has been used successfully to prosecute people for posting “grossly offensive” material online. Examples include the comedian who taught his pug to give a Nazi salute when he said “Gas the Jews,” and posted it doing so on You Tube, and the man who posted a video of the burning of a cardboard model of the Grenfell Tower. The first was convicted (albeit in Scotland, but Scottish law on this offence is identical to English), the second, after various shenanigans, eventually pleaded guilty and received a 10 week suspended prison sentence.

The use of S.127 in such cases has in recent years expanded far beyond its original purpose (in a predecessor to the 2003 Act) of criminalising obscene calls to telephone operators. Perhaps it has expanded too far: certainly those drafting the section would never have dreamt that it could be used to prosecute a newspaper columnist.

It provides the only remotely plausible route to prosecuting Mr Clarkson, or the editor of The Sun. Even so, the prospects of actually convicting Mr Clarkson remain extremely low.

Whether publication in a national newspaper’s online edition amounts to “sending a message by means of a public communications network”; and whether (if it does) Mr Clarkson (as opposed to The Sun, or its editor) can be said to have sent or “caused such a message to be sent” are interesting technical questions which might tempt Dr Raw’s legal team to charge a couple of thousand pounds before answering with confidence. (In my much cheaper and less well-researched view a newspaper’s website is probably not a “public communications network,” but both Twitter and Facebook unquestionably are; so whilst the writing and publishing of the column in The Sun would not be within the ambit of the offence, the posting of it on social media could be).

Ultimately though, even if this technical hurdle is overcome, the wished-for prosecution would come up against similar problems to any other prosecution. Freedom of speech means the freedom to offend Dr Raw and her supporters. The law does not exist to protect the sensitivities of newspaper readers. The fact that the column “was in bad taste, even shockingly bad taste” is not enough: DPP v Bussetti [2021] EWHC 2140 (Admin). Being “offensive” is not enough. It must be “grossly offensive” before the law will consider it criminal. That remains an exceptionally high bar.

And there is yet another problem.


The CPS will not instigate a prosecution unless there has been a police investigation, and the Police, through the Met Commissioner Sir Mark Rowley, have very clearly said that they have no interest in investigating Mr Clarkson.

Any prosecution will have to be brought privately (and presumably paid for by yet more crowd-funding, unless the mysterious Sandra Copeland is willing to bear the whole cost herself).  If the team of lawyers need £15,000 to advise on whether such a prosecution is possible, they will need tens of thousands more actually to undertake a prosecution.

Dr Raw will also have to make provision for paying the costs of Mr Clarkson and The Sun should her attempted prosecution fail.  It will be no good her saying “the crowd-funding has dried up I can’t pay.” She who brings a private prosecution bears the personal risk of paying for it.

When Marcus Ball’s doomed attempt to prosecute Boris Johnson for misconduct in public office crashed and burned he was left with personal debts of over £200,000 – despite having previously raised hundreds of thousands of pounds in crowd funding.  It is sometimes said of architects that no-one is so rich that an architect cannot reduce them to poverty: the same can be said about teams of lawyers, and from what little we know of them it can certainly be said about Dr Raw’s team of lawyers.

The Crown Prosecution Service

It is not particularly difficult to start a prosecution. Once begun, however, even if it is not struck out by the Court at an early stage, the Crown Prosecution Service has the power under S.6 of the Prosecution of Offences Act 1985 to take it over: the most common reason for doing so is to discontinue it. In 2019, for example, of the 49 private prosecutions referred to it, the CPS took over 32 and of these it discontinued all but 3.

The CPS has guidelines on the prosecution of online offences. The guidelines emphasise the need to have the Article 10 right to freedom of expression in mind when deciding whether to bring – or to continue – a prosecution. In the vanishingly improbable event that Dr Raw were to overcome every other hurdle, any prosecution of Mr Clarkson or The Sun could – and almost certainly would – be taken over and discontinued by the Crown Prosecution Service.

Money not spent

Any competent lawyer will be bound to advise Dr Raw that she would be exceptionally unwise to bring a case against Mr Clarkson. The chances of success are tiny, the risks are huge. 

It should not cost them £15,000 to tell her that.

So after receiving that advice there should be some money left over. If that happens, Dr Raw says that it will be donated to an (unnamed) domestic violence charity.

Of course there are many very deserving charities helping the victims of domestic violence. Donate to such charities by all means. But if you have any money to spare, why give any of it to Dr Raw’s lawyers first? I am all for giving money to criminal lawyers, but there is no reason to believe that these ones are particularly deserving of your generosity. Why not simply choose your own charity, or your own firm of criminal lawyers, or consider giving it to the Ukrainian armed forces? Whatever you do, even if you are as rich and generous as Sandra Copeland, don’t waste your money by giving it to Dr Raw’s crowd-funder.


I’ve been told by a number of people including the well-respected Liverpool solicitors Levins, and James Olivera-Agnew, assistant secretary to the Criminal Bar Association, that I’m wrong to say something on The Sun’s online edition would not be on a “public communications network.” I can see, now it has been pointed out to me  that whether or not The Sun itself is such a network (which it may well be), in order to be placed on the website it almost certainly has to be sent via one.    I gratefully  accept yhe correction, though it makes little difference to my overall conclusion.

Barristers’ on strike: should the Lord Chief Justice have gone ‘no comment’?

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.

Henry:  pleasing adiposity
Burnett: Albino sable
Picture: Catherine Baksi

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.

1 On stage

Depp v. Heard: Why did an American jury reach a different decision than the English judge?

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 abuser Continue reading “Depp v. Heard: Why did an American jury reach a different decision than the English judge?”

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?”

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.”