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 breathtaking insouciance of the Rwanda judgment

Suella Braverman was wrong to say that yesterday’s High Court ruling “thoroughly vindicates” the policy of sending asylum seekers to Rwanda.

As the judges made clear – they often do in politically charged cases – their job is to say whether the Government has followed the law, not whether its decisions are sensible or humane.

The prospect of the scheme actually operating as intended remains distant, but the judgment may have brought Ms Braverman’s dream of a plane full of deportees flying to Rwanda just a little closer. Continue reading “The breathtaking insouciance of the Rwanda judgment”

Mr Justice Hayden was right to bring Archie’s futile treatment to an end.

Archie Battersbee’s life support was withdrawn yesterday, and his mother announced that he had died at 12.15 in the afternoon.

His parents have fought for his life with extraordinary determination. From their point of view it must have seemed as though the medical and legal establishments have unreasonably closed ranks to deprive their son of his last, incredibly slim, chance of life.

I think that view is wrong, but the questions raised by the case are agonisingly difficult.

Archie’s mother and her MP have suggested that there should be changes in the law surrounding end of life decisions for children, although exactly what changes she wants are unclear.

At present the law is clear enough to be stated in a single sentence and it is hard to imagine that anyone could sensibly disagree with it: what is best for this child? Continue reading “Mr Justice Hayden was right to bring Archie’s futile treatment to an end.”

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”

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”

Essex Court Chambers, genocide and the allure of Chinese money

Lawyers, and perhaps especially barristers like to speak of the high nature of their calling. We defend human rights. We give a voice to the voiceless. We fearlessly ignore all personal considerations and strive only to uphold the rule of law. We are independent and cannot be bought or bullied. “Do right, fear no-one,” as the Criminal Bar Association used to say quite often. Fine words indeed.

At the Commercial Bar – that rarified corner of my profession where chambers, and even some individuals earn millions from international litigation and arbitration – the principle seems to have been watered down to “do nothing to upset China.” Continue reading “Essex Court Chambers, genocide and the allure of Chinese money”

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”

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?”

Lessons for open justice from the Marie Dinou case

Marie Dinou, the woman from York convicted of a non-existent coronavirus offence after being found “loitering between platforms” at Newcastle railway station was lucky to be charged with something newsworthy. Had hers been a mundane motoring charge it is highly unlikely that anyone would have spotted that her treatment by the police and the justice system was stupid, incompetent and unlawful.

Thanks largely to the press (The Times’s Fariha Karim and The Independent’s Lizzie Dearden deserve special mention) and Doughty Street’s Kirsty Brimelow QC, who was amongst the first to denounce the prosecution as misconceived, her conviction is to be reversed by application of S.142 of the Magistrates Courts Act 1980. This useful piece of legislation allows a Magistrates Court to reverse a conviction “if it appears to be in the interests of justice to do so.”

British Transport Police now concede they made a mistake in arresting and charging Ms Dinou, but their attitude immediately after her conviction was very different. Keen to let the world know that they had achieved the first railway arrest under the new Coronavirus legislation, they had issued one of those self-congratulatory press releases that prosecutors are apt to release, albeit they are normally reserved for the convictions of murderers, serial rapists and elderly ladies who have too many cats. Appropriately enough it was dated April 1st. Continue reading “Lessons for open justice from the Marie Dinou case”