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.”

Sentences on rioters should deter violence, not ostentatious acts of urination

Five people involved in the riots which occurred on March 21st in Bristol were sentenced yesterday. All received prison sentences and four out of the five deserved them. They had admitted throwing objects, and attacking both a police vehicle and Bristol’s central police station. Many officers were injured. In disturbances which lasted from early evening well into the night officers were struck, spat on, kicked and punched, some whilst defenceless on the ground. Some – with good reason – feared for their lives. Hundreds of thousands of pounds of damage was caused in damage to police property alone.

These were the four who deserved their sentences (details taken from the Avon and Somerset Police press release):

Kane Adamson, 21,  threw items including road signs, a road work barrier and an electric scooter at officers while he also threatened officers and repeatedly punched and kicked their shields. Jailed for three years and six months.

Brandon Lloyd, 21, pushed and kicked officers’ shields, cornered and assaulted a PC by kicking them, and threw items at and kicked the windows of the Bridewell Police Station, damaging the glass. Jailed for three years and 11 months.

Kain Simmonds, 18,  sprayed an aerosol in the direction of an officer’s face, kicked officers’ shields, kicked the window of the Bridewell and repeatedly struck a police van with an officer’s baton. Sentenced to three years and three months at a young offenders institution.

Stuart Quinn, incited others to attack police officers, throw items at the Bridewell and cause damage to a police van. Jailed for three years and three months.

The defendants appear to have been identified on police video footage, part of which was released after the sentencing.

The violence arose out of a protest against the Police, Crime, Sentencing and Courts Bill, which contains a great deal of lamentable new law. I have written in some detail on this blog about one particularly nasty aspect of the Bill aimed at Gypsies and travellers, but they are by no means the only objectionable provisions.

The Bill would also significantly extend the powers of the Police to prohibit or impose conditions on demonstrations and other public assemblies, to avoid what Clause 56 (11) calls “serious disruption to the life of the community.” What does that mean? The answer is that it means whatever the Home Secretary wants it to mean, because under Clause 56 (12) the Bill gives her the power “to define any aspect of an expression mentioned in subsection (11).” That alone is an extraordinary provision – though unfortunately less extraordinary than it once would have been – empowering a Government Minister to change the legal meaning of language as she or he sees fit. It is a type of legislation known to English lawyers as a “Henry VIII” clause, but given the potentially breathtaking powers it hands to government ministers to limit demonstrations it might be almost as accurate to call it a “Xi Jinping” clause.

None of that of course excuses the violence used against the police who are not responsible for the Bill, did not ask for it, and some of whom who may well, individually have had sympathy with many of the objections to it.

The violence was not just inexcuseable. It was also extraordinarily counter-productive: the Bill is aimed at controlling disruptive demonstrations. What better argument could Priti Patel have to demonstrate the necessity for additional powers than to point to one of the most violent political demonstrations of recent years in which brave police officers were targetted by demonstrators chanting “Kill the Bill”?

But the fifth defendant sent to prison did not deserve it. Yasmin Schneider – who identifies as non-binary and prefers the pronoun “they” – was given a 5 month sentence of imprisonment for “outraging public decency.” Their crime was that during the riots they urinated at the feet of the police. Should you wish to, you can see footage of one of the incidents at the end of the police video uploaded above. It is not especially disgusting to watch.

They were not charged with riot or violent disorder, or with any crime of violence. That was because the crime was not a violent one. It was an act of protest that many would have found distasteful, though to my mind at least it was a great deal less distasteful than chanting “Kill the Bill” at a riot when police officers were under sustained attack and fearing for their lives.

Why then was Schneider given a prison sentence?

As usual the full sentencing remarks have not been published, but the hearing was well covered by the Bristol Post. According to their report, Judge Patrick said that her actions “dehumanised the police” and that there was a “high degree of harm caused.”

One can understand that a defendant’s actions have to be judged in the context in which they occur. A single angry man on his own hammering on the outside of a police van is much less alarming than a man – like Kain Simmonds – doing so as part of a mob attacking the police. So it would be wrong to judge her as though she was a drunk caught short in the street after too many beers. In the context it was a calculated act of protest, and, given her plea of guilty, I suppose we must accept that the charge of “outraging public decency” was appropriate. It is, at least in my opinion, a dangerously vague common law offence (that is, it is not created by legislation) which criminalises – I take the definition from Archbold’s Criminal Pleading, Evidence and Procedure – “open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.”

There are no formal sentencing guidelines for outraging public decency and, as a common law offence, it theoretically carries an unlimited prison sentence. In practice immediate imprisonment is far from inevitable. Judge Patrick himself will be remembered by some for a 2014 case in which he imposed a suspended sentence on a man who tried repeatedly, though without success, to have sex with various sheep and cattle in front of outraged picnickers outside Tottenham Hotspur’s training ground.

In an earlier case (Hardy [2013] EWCA Crim 2125]), the Court of Appeal said that when sentencing a man for “displaying his semi-erect penis” by rubbing it on the back of a car and “shaking it up and down,” the courts should have regard to the sentencing guidelines for “exposure,” an offence under the S.66 of the Sexual Offences Act 2003, committed where a person “intentionally exposes his genitals, intending that someone will see them and be caused alarm or distress.”

It seems that Judge Patrick may have had those guidelines in mind, not least because of his use of the expression “high degree of harm caused.”

Where there is both a high degree of harm and high culpability, the sentencing guidelines for exposure suggest a starting point of 26 weeks imprisonment, although that would not necessarily be an immediate sentence, and it would in any case have to be reduced to give credit for a guilty plea. If either a high degree of harm or a high degree of culpability is not present the guidelines suggest the starting point should be some form of community order.

What are the factors that indicate greater harm and greater culpability? The guideline helpfully sets them out.

None of these applies, and in fact the exposure guidelines are perhaps not really very apposite to Schneider’s offence.

So how was it that the judge was able to conclude that public urination during a riot caused “a high degree of harm”? Certainly it caused no physical harm, and it seems improbable that any of the injuries suffered by the officers that evening were psychological injuries consequent upon seeing Schneider urinate. The judge fell back upon the nebulous assertion that urinating in front of police officers “dehumanised” them. Whatever that means, it is surely far better that during a riot a person should “dehumanise” police officers by ostentatious acts of micturition than by hurling a brick at them; or indeed by provocatively chanting “Kill the Bill,” something which nobody – so far – has suggested should be a criminal offence.

Moreover – at least judging by the report in the Bristol Post – Judge Patrick does not appear to have given much weight to the personal aspects of mitigation that Schneider’s counsel outlined to the court. These included homelessness at the age of 16, domestic abuse, pregnancy, a stay at a mother and baby unit, and what sounds like rather fragile mental health. Even if the judge regarded that mitigation as irrelevant, and because he is a humane and decent man I doubt that he did, it is still very difficult to see what an immediate prison sentence achieves that a suspended sentence coupled with some form of community order would not. If it is felt that only a harsh sentence would deter others in the future, surely it would make more sense to draw a sharp distinction between those demonstrators who used actual violence and those, like Schneider, who did not.

It is violence that needs to be deterred at political demonstrations, not tasteless or offensive acts of protest.

 

 

 

 

 

 

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?”

Barrister who breached Supreme Court embargo: “I felt I had no choice.”

I am grateful to Matthew for allowing me to reply to his blog-post regarding my contempt of court in breaking the embargo on the Heathrow judgment.

Imagine it is 2016 and you are in possession of a confidential report implying the cladding on Grenfell Tower meets appropriate fire-safety standards. You know that to be untrue. You might feel an obligation a) to sound the alarm; and b) to do so as loudly as you could (regardless of the breach of confidence).

What has that got to do with breaking the Supreme Court embargo on the Heathrow judgment? These were the key facts of our claim: Continue reading “Barrister who breached Supreme Court embargo: “I felt I had no choice.””

Piers Corbyn may be a crank but his treatment should worry us all

A “whiteout” is meteorological condition in which snow falling from the sky and snow whipped up from the ground is whirled by a gale into a disorientating blanket of whiteness in which there are no visual bearings and it is all but impossible to navigate. It is an apt metaphor for the blizzard of coronavirus regulations which have cascaded out of Whitehall (and of course Cardiff and Holyrood too) since March. A search of the www.legislation.gov.uk website reveals a mind-boggling 133 (albeit each Welsh regulation is counted twice in English and Welsh versions) separate pieces of UK legislation, nearly all of them statutory instruments. Thus we have such delights as the Health Protection (Coronavirus, International Travel) (Amendment No. 7) Regulations, The Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) (No. 2) Regulations 2020, The Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020 and so on. And on and on. It is enormously difficult to find ones bearings amidst all these constantly changing rules and regulations. As David Allen Green put it on August 14th:

There is not a lawyer or police officer in the land who any longer knows what is legal and not legal under coronavirus regulations. An absolute mess of a legal regime.”

Since August 14th matters have only got worse.

Piers Corbyn

It is not often that I have much sympathy with Jeremy Corbyn’s weather-forecaster brother Piers (or to give him his own rather baffling description LongRange WorldLeading weather+climate forecaster BIEuUsa. SolarLunar Method NotCO2! AmericanThinker Climate Predictor2010. Bro #JC4PM), or with any of the anti-vaxx, Qanon, and 5G conspiracists who participated in a rally against masks and coronavirus restrictions in Trafalgar Square on Saturday 29th August. As well as Mr Corbyn, they included the antisemitic conspiracy theorist David Icke and a small group who deployed a flag remarkably similar if not identical to that of the British Union of Fascists. These are not easy people to like, although no doubt there were some more reasonable folk amongst them as well.

Corbyn: £10,000 Fixed Penalty

Nevertheless the £10,000 Fixed Penalty Notice issued to Piers Corbyn as someone “involved in” the demonstration is disturbing. Mr Corbyn’s “FPN” requires him – strictly speaking one could argue it “invites him” but it is an invitation backed by a threat – to pay £10,000 for breaching Regulation 5B of The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, as amended. Continue reading “Piers Corbyn may be a crank but his treatment should worry us all”

Sir Roger Scruton RIP

There is often a mismatch between a person’s public image and their private behaviour.

It is sometimes forgotten that Sir Roger Scruton, who died yesterday, was a barrister. He was rightly honoured as a  bencher of the Inner Temple. He held strong and often unfashionable views on human rights – he believed that they were better protected by the common law than by conventions and statutes – and on the criminal law, where he sometimes advocated more severe punishments.

Yet in private Sir Roger belied this hard-line image. He made friends easily and without regard to political persuasion, colour, religion or sexuality. Nor could you have met a more decent, forgiving and – although he would absolutely detest the word being used of him – liberal man. A conservative, of course, should be pessimistic about human behaviour, indeed it is often pessimism that leads to a belief in conservatism. Roger even wrote a passionate defence of pessimism. Continue reading “Sir Roger Scruton RIP”

Do we need a Victims Commissioner?

On hearing the words “Dame Vera” most people will think fondly of the 102 year old golden-voiced Forces’ sweetheart. Those in the legal world, however, are more likely to conjure up a picture of the 69 year old flame-haired Fabian firebrand Dame Vera Baird QC, formerly a barrister in the chambers of radical lawyer Michael Mansfield QC, then a Labour MP and Solicitor General, then the Police and Crime Commissioner for Northumbria and now The Victims Commissioner for England and Wales.

Baird: poacher turned gamekeeper

In her early career Dame Vera usually defended those accused of serious crimes, but in more recent times she has used her various offices to campaign vigorously for changes in the law that make it easier to convict and imprison them. The former poacher has metamorphosed into a ferocious gamekeeper; it is not hard to imagine her prowling round the estate, setting man-traps, loading the spring-guns and inspecting the rotting cadavers of corvids gibbeted on the boundary fence.

For those who are not familiar with the office of Victims Commissioner, it is a statutory appointment of a person charged with the duty of “promoting the interests of victims and witnesses” and taking “such steps as she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses.” Continue reading “Do we need a Victims Commissioner?”

The many lies of Carl Beech and the folly of his supporters

It all started with Sir Jimmy Savile.

The platinum-blond disc jockey with a taste for shell-suits needs no introduction to British readers. To others it is enough to record that when he died in 2011 he was at first treated to obituaries that would have made St Theresa of Calcutta blush. He had been a television institution for decades, and when he had not been on television he had been visiting the sick in hospitals or raising huge sums of money, including according to some estimate up to 90% of his own earnings, to charity.

Then, within a few months of his death allegations started to emerge that he had abused children and women on a vast scale. Because he was dead, none of the allegations were ever tried in court but the press, so adoring of him while he was alive, now turned on him with the vehemence of a betrayed lover. The Guardian spoke, unusually, for the majority when it ran an extraordinary editorial comparing him not altogether favourably with Pol Pot, and calling for a public ceremony of commination, as “a ritual expression of public condemnation and disgust.”

The institutions with which he had been associated – mainly hospitals and the BBC – fell over themselves to apologise for his behaviour. Accounts of Savile’s wickedness were collated in various official reports and they were all accepted, without question, by a press that was now as indignant about his criminality as it had been fulsome in his adoration. Anyone – and there were a few – who dared to question so much as a single individual account was considered beyond the pale, even though some of the allegations against him bordered on the incredible. Continue reading “The many lies of Carl Beech and the folly of his supporters”

Lessons from the Ipswich Family Court: 7 mistakes that litigants in person often make

If only I had the near miraculous ability of Gordon Exall, editor of Civil Litigation Brief, to convert complex and often rather turgid case-law into manageably-sized blogposts of crystalline clarity. Sadly he hasn’t yet done that to the extraordinary matrimonial case of VW v. BH, and I doubt that he will because Gordon’s posts tend to be aimed at legal practitioners. The lessons of VW v. BH, a divorce case recently heard by HHJ Lynn Roberts at the Ipswich County Court, are more for those attempting to litigate without lawyers.

HHJ Lynn Roberts

Before we dive into the detail of the case, a warning: I really don’t know a great deal about family law. I tried my hand at it many years ago and found that I was pretty hopeless. If you want to read a blog by someone who really knows about family law, I would recommend either Lucy Reed’s Pink Tape (Lucy has also written the fantastically useful Family Court without a lawyer, a handbook for litigants in person), or David Burrows, who likes to concentrate on broader questions of family law policy.

What I do know is that the disputes are usually about money or about children. The days when the evidence from the latest celebrity defended divorce could fill the Sunday papers – seedy Brighton hotels with private eyes examining the sheets, hoping that the Queen’s Proctor would not smell a rat, and so on – have long since gone the way of co-respondent shoes. Continue reading “Lessons from the Ipswich Family Court: 7 mistakes that litigants in person often make”