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The law of self-defence is easy enough to state.  It is much harder to apply in practice.

In a typical criminal case an argument breaks out in a pub. A punch is thrown. The situation escalates and a drinker smashes his glass into someone’s face causing deep cuts. He claims that he did so in the heat of the moment because he thought he was about to be stabbed.

Was his action lawful?

It is impossible to give a purely legal answer. It all depends on what the jury make of his explanation. If the jurors are sure that he’s lying when he says “I thought I was about to be stabbed,” and that in fact he just wanted to join in the fight, he will be convicted.

On the other hand if they accept that he may have thought he was about to be stabbed they will probably acquit him. A glassing is a terrible thing, but if the alternative is a potentially fatal knife in the ribs then it is the lesser of two evils. It would, though terrible, be a proportionate response to an imminent and terrifying threat. Continue reading “Hamas is a wicked organisation but that doesn’t put Israel above the law.”

Those attending His Honour Judge Kelson’s court in Durham on Monday 14^th April had an unexpected treat: a blazing row between a judge and a barrister. The confrontation ended with the Judge fining the barrister £500 for contempt of court. The barrister appealed to the Court of Appeal. He was successful in that the Court of Appeal ruled that the judge had failed to follow the correct procedure and quashed the fine. But his success came at the cost of a public condemnation of his behaviour, coupled with what the barrister might have found faintly unctuous praise for the judge. Continue reading “Ian West was rude to the judge, but let’s keep a sense of proportion”

The role of Attorney-General is an important one.

Constitutionally the Attorney-General is the Monarch’s lawyer.

As the Government’s chief legal adviser he (there has so far only been one female Attorney-General, Patricia Scotland QC), in practical terms responsible for providing legal advice on matters of vital national importance. Many will remember how Lord Goldsmith, the Attorney-General under Tony Blair first advised that an attack on Iraq would be illegal and then, amidst a maelstrom of political pressure, revised his opinion. Whether he was right or wrong matters not. His advice gave the green light to the 2003 invasion of Iraq by British forces. Had he continued to advise that an attack was unlawful it is probable that Britain would not have become involved in that particular adventure. Continue reading “Jeremy Wright is the least distinguished attorney general for two centuries”

Like everyone who has ever met or appeared professionally in front of her, I have huge admiration for Baroness Butler-Sloss. She is polite, humane, clever and immensely experienced. She radiates wisdom. All of these are qualities that mark her out as one of the outstanding judges of her generation. But her position as the judge chairing the child abuse inquiry is completely untenable. Continue reading “Butler-Sloss was a superb judge but she should stand down immediately”

It is perhaps the worst part of the job. You’ve lost. The police are jubilant and the Crown Prosecution Service is making the finishing touches to its triumphant public statement.

What’s the best way to describe him?

“A prolific sexual offender?”

A bit feeble. How about:

“A prolific and evil sexual predator?”

Better, but still not quite right. Leaves a bit of wriggle room.

I know, I’ve got it now:

“A prolific and evil sexual predator who has preyed on innocent children for decades.”

He may be taken down to the cells straightaway, or may be allowed his liberty for a few more days while reports are prepared.

What do you say when you reach the comparative calm of the interview room? Continue reading “Should Rolf Harris die in prison?”

Some people may assume that criminal barristers have some special insight into what goes on in our prisons. Yet although we spend a great deal of time and effort trying, as cheerfully as possible, either to put people into prison or to keep them out, most of us have little idea of what prisons are really like. We may visit prisons from time to time for conferences, or, less often perhaps, for disciplinary or Parole Board hearings. But neither an hour or two chatting optimistically to a client in a stuffy conference room, nor three hours supping the befuddling soup of parolespeak acronyms – NOMS, OASYS, MAPPA – that washes over byzantine Parole procedures give much idea of what months or years of incarceration would actually be like.

We get some impressions. People are often surprised to find that prisons differ from each other almost as much as schools. The campus-like Ford Open Prison, with its well-kept lawns (though it might be stretching it to call them “manicured”) and public school style cricket pitch has a very different atmosphere from a glowering inner city gaol such as (to name one I happen to be familiar with) Bristol. One suspects that the inmates of Ford, with a high proportion of fraudsters and three-quarters-rehabilitated murderers are also, on the whole and give or take the odd riot, a bit less rumbustious than the bruisers and low level drug dealers to be found in your bog standard local gaol. Continue reading “Our Prisons are disgusting and getting worse. Mr Grayling is responsible.”

Prosecutors, judges and governments have always disliked juries. They are expensive, unpredictable and uncontrollable. How much more convenient if they did not exist. In some ways the miniature democracy of a jury resembles another irritant to the governing class: the electorate as a whole. But whilst abolishing the electorate may be an unattainable dream abolishing juries is a much more practical objective and every few years a government tries to do just that. Juries in most civil cases are now all but extinct but repeated attacks on criminal juries – whether to try complex frauds or simple shoplifting cases have generally been repulsed.

The current government’s legal aid cuts will inflict terrible damage on the legal professions and the criminal courts but the Coalition has largely shied away from attacking the jury system itself. Continue reading “Why everyone’s got it in for juries. And why they are wrong.”

You go to court, you fight hard to keep your clients out of gaol or at least to keep the sentence as short as possible. All goes well and then, often almost as an after-thought a keen prosecutor or a zealous judge decides to impose some additional order designed to prevent re-offending; a restraining order perhaps or, as is these days almost de rigeur in sexual cases, despite the wise warning of the Court of Appeal in Smith, a sexual offences prevention order (“SOPO”).

You are a conscientious advocate and you will, of course, scrutinise the terms of the order carefully and make sure that everything is as clear and reasonable as possible. However, what tends to happen in practice is that your client assures you he has no intention of going round to his ex-girlfriend’s flat, or of going to swimming pools with children or whatever the order forbids him from doing. Its terms are readily agreed, or there may be a little desultory argument about some part of it. What very seldom happens is any serious argument about its duration. The attitude all too often seems to be “who cares, I’m not going to breach it so it doesn’t really matter how long it lasts.” Continue reading “Preventative Orders And The Law Of Unintended Consequences”

Paul Weston, the Euro Election Candidate who was arrested in Winchester over the weekend, is an anti-islamic racist. He is a former member of UKIP (for whom he was a candidate for the City of London at the 2010 general election). He ratted on them to join something called the British Freedom Party and then – emulating his hero Churchill – “re-ratted” to found his own party that he calls Liberty GB.

Since Mary Tudor married Philip II of Spain in 1554 not a great deal has happened in Winchester. The beautiful city where I grew up and where I have either lived or worked for most of my life rarely features much in the national news.

The River Itchen still flows quietly past the ruins of Wolvesey Palace, evensong responses echo through the choir of the cathedral and My Lords the Queens Justices still dispense justice though nowadays they do so in a hideous 1970s “Combined Justice Centre” rather than in the draughty Great Hall of the Castle.

And it may eventually be to that Palais de Justice that Paul Weston is heading if he is prosecuted over last weekend’s anti-Islamic speech from the steps of the City’s Guildhall. Continue reading “Paul Weston is a racist but that doesn’t mean he should be prosecuted”

Not content with prosecuting lonely old cat lovers, the mentally ill and innocent huntsmen the RSPCA has now turned its attention to young drinkers participating in the craze of “Neknomination.” Its first target was 22 year old salesman Gavin Hope who was prosecuted for drinking a pint of lager mixed with chilli, tequilla, egg and (this is meant to be the the funny bit) fish food, followed by his live pet goldfish. Mr Hope, whose talents perhaps lie more in sales than in public relations, unwisely posted his hilarious escapade on Facebook, whence it was brought to the attention of the RSPCA.

Although some of those prosecuted by the RSPCA deserve our sympathy it is hard to feel a great deal for Mr Hope. As a joke his stunt falls rather flat, and as performance art it is not quite as edgy as the German artist Milo Moiré who has achieved critical acclaim for publicly ejecting paint-filled eggs from her vagina onto a canvas. Continue reading “We shouldn’t eat our goldfish but the RSPCA was wrong to prosecute Gavin Hope for doing so”