Category: Criminal Law

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.”

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”

The Batley Grammar School teacher should not be sacked for blasphemy

It is more than 6 years since the Charlie Hebdo murders. 12 people were shot dead in the magazine office, murdered by Islamists to avenge its publication of cartoons of Mohammed. Their “crime” was that they had committed blasphemy. Over the next three days a policewoman and 4 customers at a Jewish shop were also murdered.

In the immediate aftermath of the atrocity it became fashionable so say “Je Suis Charlie” in solidarity with the magazine. At least a million people, including the French President marched through Paris to demonstrate their support for freedom of speech. The British Prime Minister joined them, as did many other world leaders.

Even the Saudi Arabian ambassador attended the demonstration, which might have seemed a little surprising given the Kingdom’s well-known disapproval of blasphemy. However, Saudi Arabia does not endorse the extra-judicial killing of blasphemers. Instead – as with Raif Badawi – it punishes them with lashes and imprisonment, only very rarely with beheading, and then only after a trial.

In October last year Samuel Paty, a teacher was beheaded, again in France, after apparently showing his students some of the Charlie Hebdo cartoons of Mohammed. He had reportedly asked anyone who did not wish to see the pictures to close their eyes first. The precaution did not save him from a planned and premeditated attack by a religiously motivated mob. Continue reading “The Batley Grammar School teacher should not be sacked for blasphemy”

The prerogative of procrastination: what has happened to the Royal Commission on criminal justice?

A P Herbert once said “a Government department appointing a royal commission is like a dog burying a bone – except that a dog does eventually return to the bone”.

He was partly right of course, and many Royal Commissions have been used as a convenient means of burying subjects too difficult for governments to handle. Conveniently, they always take years to report, so they can be a useful way of transferring difficult problems to a future government. Often their recommendations have been ignored and in some cases Commissions have even been wound up before they have had a chance to produce any report at all.

However, Royal Commissions on criminal justice matters have tended to be rather more productive, and several have been instrumental in producing real and lasting change.

The Capital Punishment Amendment Act 1868, which abolished public executions, was introduced following recommendations in the 1864 – 66 Royal Commission on capital punishment.

In more recent times, the 1978 – 81 Royal Commission on Criminal Procedure led both to the establishment of the Crown Prosecution Service and to the passing of the 1984 Police and Criminal Evidence Act, two reforms of huge significance.

The 1991 Royal Commission on Criminal Justice made a number of recommendations that were not followed, but its important proposal for the establishment of a Criminal Cases Review Commission was accepted. That too was an important legacy, despite the CCRC’s recent troubles.
 Continue reading “The prerogative of procrastination: what has happened to the Royal Commission on criminal justice?”

How could Priti Patel reintroduce the death penalty?

There was a flutter of interest on Christmas Day when, in festive mood, the Society of Black and Asian Lawyers tweeted the following:

“A little bird at the @ukhomeoffice tells us @pritipatel has asked Civil Service to scope a policy paper on the restoration of the death penalty in the #NewYear2021 and the #Tories have the majority to do just that.”

In the past Ms Patel has expressed support for capital punishment. In 2006 she told the Mail on Sunday:

“If you had the ultimate punishment for the murder of policemen and other heinous crimes, I am sure it would act as a deterrent. We must send a clear signal to people that crime doesn’t pay. The punishment must fit the crime and yes, I do support capital punishment.”

In a BBC Question Time programme in 2011 she said:

“I have said this before and I will say it again, I do actually think when we have a criminal justice system that continuously fails in this country and where we have seen murderers, rapists and people who have committed the most abhorrent crimes in society, go into prison and then are released from prison to go out into the community to then re-offend and do the types of crime they have committed again and again.

I think that’s appalling. And actually on that basis alone I would actually support the reintroduction of capital punishment to serve as a deterrent, because I do think we do not have enough deterrents in this country for criminals.”

In fact, I’m not sure she has ever “said it again.” In an interview with the Mail on Sunday in 2019, asked about the death penalty she said:

“I have never said I’m an active supporter of it and [what I said] is constantly taken out of context.”

If her apparently contradictory public statements can be reconciled, and perhaps they cannot, her position seems to be that the death penalty should be reintroduced even though she has never actually campaigned for its reintroduction.

However, let us make the unsafe assumption that the Society of Black and Asian Lawyers are correct, and that she has commissioned a “scoping exercise” in the Home Office to advise her on the feasibility of bringing back the gallows. Brexit may have removed one potential obstacle: any moves to reintroduce hanging would have met with objections from Brussels; indeed it would have been unlawful under the EU Fundamental Charter of Human Rights, Article 2 (2) of which of provides:

“No one shall be condemned to the death penalty, or executed.”

Happily the team need not waste any time on the knotty problem of the exact status of the Fundamental Charter in UK law, because post-Brexit it has none.

So, aside from the many philosophical objections to the death penalty, what practical problems will Ms Patel’s scoping exercise into the establishment of a post-Brexit bloody code need to address?

The problems, even for a determined government with a sizeable majority, are considerable. Continue reading “How could Priti Patel reintroduce the death penalty?”