Category: Criminal Law

It’s time to change the bad law used to prosecute Count Dankula

The prosecution of the online controversialist and comedian Count Dankula was a great mistake. Earlier this week he was convicted by the Airdrie Sheriff Court of sending a grossly offensive message by a public telecommunications network.

The Count, otherwise known as Markus Meechan, is a man of whom I had never heard, and nor, I suspect had you, until he made a video of his girlfriend’s pug giving a Nazi salute in response to him saying things like “Sieg Heil!” and “Gas the Jews!” Although showing the video must, I suppose, be regarded as a criminal act in Scotland, it is easily available online. Indeed, one of the predictable ironies of the case is that as a result of the prosecution it will have been viewed by millions more people than would otherwise ever have heard of it.

As a demonstration of dog training it is moderately impressive; as a comedy sketch it is embarrassingly unfunny, although of course comedy is a very personal thing. Some people, for example like Mrs Brown’s Boys, or that ghastly ratty comedian who gets paid millions through a Cayman Islands shell company. Continue reading “It’s time to change the bad law used to prosecute Count Dankula”

The Met has a problem with hate-crime. It can’t explain what it means.

The Metropolitan Police has a rather strange notice about “hate crimes” on its website.  It has attracted quite a bit of attention on social media.

Hate crimes and hate incidents

If someone commits a criminal offence and the victim, or anyone else, believes it was motivated by prejudice or hate, we class this as a ‘hate crime’. It means the offender can be charged for the crime itself and also their reasons for doing it.

If someone does something that isn’t a criminal offence but the victim, or anyone else, believes it was motivated by prejudice or hate, we would class this as a ‘hate incident’. Though what the perpetrator has done may not be against the law, their reasons for doing it are. This means it may be possible to charge them with an offence.

Let’s break this down, sentence by sentence. Continue reading “The Met has a problem with hate-crime. It can’t explain what it means.”

If Russia was probably responsible for the attack on Skripal, England should not play in the World Cup

In just over 3 months the World Cup is due to kick off in Moscow with a match between Russia and Saudi Arabia. Like all big sporting competitions the World Cup will be designed to show the host country in as good a light as possible.

Meanwhile in a Salisbury hospital Sergei Skripal and his daughter are fighting for their lives, having been poisoned by a nerve agent; and a Wiltshire police officer who went to help them is also in intensive care.

If Russia is shown to have been responsible it would be grotesque for the England football team to play any part in what the Russian government no doubt hopes will be a propaganda coup. Boris Johnson at first seemed to suggest that the team should not go to Russia at all, but he then “clarified” his remarks to the absurd idea that an appropriate response might be merely for “UK officials and dignitaries” not to attend the competition. “Try to kill our people and we won’t let you have our referees” seemed to be the message. Continue reading “If Russia was probably responsible for the attack on Skripal, England should not play in the World Cup”

Sergei Skripal: The Shadow Home Secretary speaks out.

Today’s Diane Abbott interview with Mishal Husain in full and unedited.

She could be the next Home Secretary.

Listen here at 2.41.15

Continue reading “Sergei Skripal: The Shadow Home Secretary speaks out.”

The proposed ban on circumcision in Iceland raises some uncomfortable questions about our own law

News that the Icelandic Parliament is to consider a Bill to ban male circumcision has sparked outrage across Europe, amongst Jewish, Muslim and even Roman Catholic leaders. The English translation of the relevant part of the Bill reads:

“[Anyone found] removing sexual organs [from any child or woman], in whole or in part, shall be jailed for six years.”

A spokesman for Milah UK, a Jewish group which campaigns to protect the right for parents to circumcise their children said:

“Jewish male neonatal circumcision – known as brit milah – is a non-negotiable element of Jewish identity, common to Jews from all backgrounds and respected in liberal democratic countries. For a country such as Iceland, that considers itself a liberal democracy to ban it, thus making sustainable Jewish life in the country impossible, is extremely concerning.”

Although the number of Jews in Iceland is tiny – about 250 – there are serious campaigns to ban male circumcision in other parts of Europe, especially Scandinavia. The issues involved are far from straightforward. Continue reading “The proposed ban on circumcision in Iceland raises some uncomfortable questions about our own law”

Wrongful convictions are a terrible risk in our frighteningly imperfect justicesystem.

There is a somewhat distasteful expression that prosecuting barristers occasionally use after a jury has convicted: “I potted him,” they will say to anyone who happens to be listening, usually with a faintly repellent smugness.

There is more to prosecuting than potting a defendant as though he were a celluloid ball, important public service though that can often be. Prosecutors also have a critical role in protecting the innocent. A good prosecutor should never take an unfair point, should never try to adduce clearly inadmissible evidence and above all should always disclose evidence that undermines their own case or supports that of the defence. The police too are under a duty to follow all reasonable lines of inquiry and to reveal what they discover to the prosecutor even if it undermines a case they thought they were building against a guilty man. Continue reading “Wrongful convictions are a terrible risk in our frighteningly imperfect justicesystem.”

The Parole Board may have got it wrong but it should not be intimidated out of making unpopular decisions

It is not surprising that the decision of the Parole Board to release the black-cab rapist John Worboys has sparked near universal outrage. The trial judge had passed a sentence of imprisonment for public protection (“IPP”), with a minimum term of 8 years imprisonment. That means that he could not be released until he had served at least 8 years, and thereafter could only be released if the Parole Board judged him “safe.” Once you take into account time served before his trial he has actually been in prison for over 9 years, the equivalent of a determinate sentence of at least 18 years imprisonment, significantly longer than the trial judge considered necessary for purely punitive purposes. Continue reading “The Parole Board may have got it wrong but it should not be intimidated out of making unpopular decisions”

The law on using a mobile phone while driving is an out of date and incomprehensible mess

There is a well-rehearsed school of legal blogging that goes down well with Barristerblogger’s many barrister, solicitor and law student readers. The way it works is this: find a journalist or politician who has said something stupid, as long as it’s vaguely related to the law it doesn’t matter too much what. Point out your victim’s ignorance of the law. Mock them and tease them for a thousand words, and Hey Presto, you have a blog that will be read and enjoyed by thousands.

It is a reliable formula and when I read Fraser Nelson’s piece for the Daily Telegraph about his court-room defeat on a charge of using a mobile phone while driving it seemed to me that here was just such an opportunity to brighten up the dead days between Christmas and the New Year. He is a shrewd and likeable journalist but his piece contains its share of legal nonsense, and he would be a good target for a “Journalist doesn’t know any law” post. Apart from anything else it would be a darned sight easier to write than the more serious business of a reply to Noel Malcolm’s short but brilliant attack on the European Convention on Human Rights.
Continue reading “The law on using a mobile phone while driving is an out of date and incomprehensible mess”

Liam Allan’s case shows why our criminal justice system is becoming a matter of national shame

Another day brings another terrifying near miscarriage of justice.

Liam Allan, a 22 year old criminology student, was yesterday cleared at Croydon Crown Court of a string of rapes against a woman who claimed that she “did not enjoy sex.” Mr Allan had always maintained that she had consented, and that her complaint was malicious.

The case collapsed after three days  when  analysis of the complainant’s mobile phone was finally revealed to the persistent prosecution barrister, former Tory MP (and now incidentally the renowned legal blogger) Jerry Hayes. It showed that amongst the 50,000 or so messages sent by the complainant (or to use the official term approved by the College of Policing, “the victim”) were messages to Mr Allan pestering him for sex, and fantasising about “rough sex and being raped.” Mr Hayes, a member of the independent bar rather than an employee of the Crown Prosecution Service,

Jerry Hayes: old school prosecutor averted miscarriage of justice

saw immediately that the messages destroyed the prosecution case, and invited the judge to find Mr Allan Not Guilty. The judge did so, and has called for an inquiry into why the messages were not disclosed earlier. Continue reading “Liam Allan’s case shows why our criminal justice system is becoming a matter of national shame”

Rolf Harris should have been given a retrial

I don’t know whether Rolf Harris is in fact a serial sex offender and last week’s judgment by the Court of Appeal leaves the matter in a thoroughly unsatisfactory state.

Before looking at the judgment in detail let’s put a few misconceptions to bed.

First of all, it gives no support to those who suggest that Rolf Harris is the victim of some sort of police or CPS conspiracy. It would be quite extraordinary if there had been and there is no evidence of it. It is true that there was a failure in the disclosure process. Some very old, and as it turned out rather significant, convictions of an important witness were not disclosed at the trial. They were not disclosed because the police had not found them. That does not suggest a conspiracy, it suggests at most a lack of diligence in seeking out old records. Faults in disclosure are endemic in our creaking justice system. Even today, when criminal records are fully computerised mistakes in criminal records are far from unusual. The relevant records dated from the 1960s, long before computerisation, and were found by the police on microfiche after the trial and before the appeal. It is hardly likely that they would have done so had they been part of a conspiracy to suppress the truth.

There are other criticisms of the police which appear in the judgment, or are at least suggested by it; in particular a certain lack of enthusiasm in looking for exculpatory evidence, but there is certainly nothing to suggest a wilful attempt to stitch up an innocent man. That is not to excuse the police of all blame: a lack of diligence in a case as serious as this is a worrying matter, but it is a great deal less worrying than evidence of a conspiracy to pervert the course of justice.

Secondly, the judgment gives no support to some of the unpleasant and unfair comment that has circulated about the original prosecution counsel Sasha Wass QC. There is no criticism of her whatever in the judgment, and no reason to think that she did anything other than a proper and professional job in prosecuting Mr Harris.

Thirdly, anyone searching the internet for information about the case may have come across the information that one of Harris’s jurors was a member of the Metropolitan Police. That is true, but it is not something that featured in the appeal. Opinions differ on whether police officers (or for that matter lawyers and judges) should be able to sit on juries, but the law is clear: they are unless they have some close connection with the investigation. (For what it is worth I have changed my mind on this issue after representing a man at a trial at which the serving police officer (whom I had originally and unsuccessfully asked the judge to exclude) turned out to be the only member of the jury with the wit to notice that the foreman, confused by the judge’s complicated “route to a verdict” direction, had accidentally returned a guilty verdict when they had in fact meant it to be not guilty).

The 12 charges of indecent assault against Mr Harris were based on the evidence of 4 different women. Evidence was also given of alleged criminal behaviour towards a further 5 women or girls which, because it took place abroad, could not form the basis of any charges in this country. The evidence of the 5 “extra-territorial” women was only summarised in the judgment and we have no way of knowing for sure whether the jury believed all or any of them, although given their unanimous verdicts of guilty of every count on the indictment it seems very likely that they were inclined to disbelieve anything Mr Harris said. Continue reading “Rolf Harris should have been given a retrial”