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Sir Keir Starmer, the leading light in the Labour Party’s “Victims Taskforce” has suggested that in sexual and violent cases trial judges, instead of defence advocates, should question “young and vulnerable witnesses.” It is a revolutionary proposal and like most revolutionary proposals, profoundly dangerous.

In this country, as in all common law jurisdictions, the prosecution presents evidence to a jury, the defence tests it and an impartial judge oversees the process trying to ensure fairness to both sides.

Starmer’s proposal would shatter that system, hobbling the ability of the defence to defend and turning the judge from an impartial umpire into something approaching a continental juge d’instruction. Continue reading “Starmer’s idea that Judge should cross-examine witnesses in sex cases is alarming”

Over the last few weeks we have seen a more than usually large number of celebrities being cross-examined in the criminal courts.

Barristers, and increasingly solicitors, are taught how to cross-examine. On the other hand tips on how to deal with being cross-examined – whether or not you are a celebrity – are not so easily found.

It is, of course, completely forbidden for a lawyer to “coach” a defendant. He cannot suggest answers that his client should give. Nevertheless before going into the witness box most barristers will offer a few words of advice.

What is said usually boils down to this:

“Look the jury in the eye, keep your voice up and your answers short and simple; oh, and remember that once you’re in the witness box you can’t talk to anyone about the case, and especially not to your own lawyers, until your evidence is completed. Best of luck.”

All sound advice as far as it goes, but it doesn’t go very far. Continue reading “How to face cross-examination as a defendant”

 

Barristers on the Western Circuit, already annoyed at being made guinea pigs for the Bar Standards Board’s “Quality Assurance Scheme for Advocates” are alarmed that they have been singled out to participate in the first tranche of the BSB’s flagship “Numeracy and Statistics Initiative Scheme”.

Under the scheme, which will apply initially to criminal barristers called after 1995, barristers who wish to remain in practice will have to register with the BSB by 1^st January 2015 specifying the level of accreditation that they wish to obtain.

Under the scheme – already and inevitably dubbed “Nasti” by its detractors – the level of accreditation required will depend upon the type of law that the barrister wishes to practise. Continue reading “Barristers outraged at BSB plan to force them to take Maths tests”

As solicitors stop working for two days today in protest at the Government’s legal aid cuts the future for criminal lawyers looks very bleak indeed.

Barristers and solicitors have faced a “prisoners’ dilemma”. Thanks to the formidably intelligent Dan Bunting I can spot one even if I can’t solve it.

As I understand the dilemma in its basic form it works something like this. A number of prisoners are held by the police. They are unable to communicate with each other. If none of them confesses they will all be gaoled for 2 years. If all of them confess they will each be gaoled for 1 year. But if just one of them confesses and turns Queen’s Evidence he goes free, whilst the others are sent to a special private prison where they are banged up for 23 hours a day for the next 5 years, with 50 Shades of Grey their only permitted reading matter.

I may have misunderstood something there, and don’t begin to understand the various algorithms that can be brought to bear to solve it. But the negotiations over the future of criminal legal aid rather resemble a prisoners’ dilemma in which barristers and solicitors have been trying to get the best deal they can, while nervously worrying, and never quite knowing, what the others were up to.

However, in a macabre variation on the standard dilemma the participants in these negotiations resemble nothing as much as terminally ill prisoners on death row arguing with their jailers over the contents of their last meals. Continue reading “If this is a victory for the bar it certainly doesn’t feel like one”

According to Mr Grayling’s post on the Conservative Home website yesterday, opposition to his prison book and parcel ban consists of of “left wing pressure groups”.

His Conservative colleagues appear to disagree. The policy has “no backing from any quarter” according to one unnamed Conservative Minister quoted in the Daily Mail.

It is such an obviously stupid policy that it has in fact received support from almost nowhere outside the Ministry of Justice.

Anyone who has been inside a prison will have seen prominent signs near every entrance. As well as warning against the dangers of trying to smuggle contraband (which we must now assume includes Harry Potter or John Stuart Mill) they proclaim the reassuring mission statement of the Prison Service:

We keep those sentenced to prison in custody, helping them lead law-abiding and useful lives, both while they are in prison and after they are released. Continue reading “Grayling’s book ban is mean and nasty; his defence of it is typically disingenuous”

Tescos has very clear ideas of what it should and should not sell to teenagers. When 16 year old Liam Whelan tried to buy a packet of teaspoons from his local branch the self-service till refused to accept his payment. Pluckily the young lad took his case to the store manager, who refused to bend the rules. Liam even produced his moped licence which the manager examined carefully; to no avail.

At his age, with his licence, Liam could lawfully leave school, have sex, join the army, get married and ride his tuk-tuk all the way to Timbuctoo. What he could not do, said the manager, was buy a packet of teaspoons, or  even a single teaspoon, from Tescos. For that, he would have to wait until his eighteenth birthday.

The rationale for the no-teaspoons for teens policy, which Tescos have enforced for the last 5 years, may seem a little opaque and one struggles at first to think of exactly what Tescos think Liam might do if he managed to get his hands on a teaspoon, let alone a whole packet. Continue reading “Tesco teaspoon ban is long overdue”

Yesterday 23 year old Laura Cunliffe was sentenced to 14 weeks imprisonment for microwaving a kitten to death. Apparently the kitten, Mowgli, had attacked her pet goldfish so she put it in the microwave for 5 minutes. She realised what she had done after a minute and took it out. It died about 90 minutes later.

It is always unwise to comment on a case without knowing the full facts but,  on the basis of what has been reported, here goes.

This was an absurd punishment, not because killing cats is a trivial matter but because Cunliffe is quite clearly somebody who ought not to be in gaol. According to her solicitor she has suffered from psychotic depression for years and has been sectioned at least 20 times. As she was led away in handcuffs, one member of her family shouted: “She doesn’t know what’s happening – she hasn’t a clue.”

Psychotic depression is a nasty illness:

According to the United States National Institute of Mental Health:

“a person who is psychotic is out of touch with reality. People with psychosis may hear “voices.” Or they may have strange and illogical ideas. For example, they may think that others can hear their thoughts or are trying to harm them. Or they might think they are possessed by the devil or are wanted by the police for having committed a crime that they really did not.

People with psychotic depression may get angry for no apparent reason. Or they may spend a lot of time by themselves or in bed, sleeping during the day and staying awake at night. A person with psychotic depression may neglect appearance by not bathing or changing clothes. Or that person may be hard to talk to. Perhaps he or she barely talks or else says things that make no sense.

… those with psychotic depression usually have delusions or hallucinations that are consistent with themes about depression (such as worthlessness or failure), whereas psychotic symptoms in schizophrenia are more often bizarre or implausible and have no obvious connection to a mood state (for example, thinking strangers are following them for no reason other than to harass them). People with psychotic depression also may be humiliated or ashamed of the thoughts and try to hide them. Doing so makes this type of depression very difficult to diagnose.”

We do not know, of course, whether her psychosis contributed directly to her offence, although it seems very likely that it did. What we do know is that she is someone who is exceptionally mentally vulnerable and who now has to endure weeks locked up in prison.

She will be used to being locked up: although her solicitor’s reported claim that she has been sectioned twenty times sounds extremely unlikely.

But there is all the difference in the world between the therapeautic environment of a mental health unit and the punitive and sometimes violent environment of a prison. If she is indeed mentally ill, it is all but inevitable that prison will aggravate her condition.

Of course she should have some access to psychiatric help in prison but she will, in the main, be looked after by prison officers who – decent as many of them may be – have little or no training in how to deal with people with serious mental disorders. She will also be exposed to other inmates who are not selected for their sympathetic and enlightened nature towards the mentally ill. Many ,of them will probably take an old-fashioned and unnuanced line on cruelty to cats.

No conceivable good will come of the sentence. It is hard to imagine that anyone in the future will be deterred from microwaving a cat by the thought that they may receive a 14 week gaol sentence.  There may even be some unimaginative folk,  to whom the idea of irradiating a cat would not otherwise have occurred, who will now try it out.

Nor is there the slightest prospect that Miss Cunliffe will be “rehabilitated” or “reformed”. She will be mentally tortured for seven weeks and then released sadder and sicker than she was before.

English law has always excelled at dishing out cruel and pointless punishments. We have abolished the treadmill, oakum picking, the lash and the gallows.

It’s about time we now abolished gaol sentences for the mentally ill.

 

1. Assistant barman

2. EU special negotiator with Putin

3. Justice Tsar

4. Solar panel

5. Wind turbine

6. Drilling rig

7. Cavity wall insulation

8. Puppet
   

9. Poodle

10. Er, can’t think of another

This Friday, March 7^th the criminal bar goes on strike.

What is proposed is a day on which defence barristers will not work (save in exceptionally sensitive cases involving children or vulnerable witnesses), followed by an indefinite period in which they will not accept “returns;” that is they will not take over briefs originally given to a barrister who for reasons of another case over-running, illness, etc becomes unavailable.

Assuming that the “no returns” policy is applied by a large number of barristers – and all the indications are that support is practically universal – the effect will be virtually immediate. Many defendants will turn up at court to find that they have no advocate.

Judges will have to decide whether to insist that trials go ahead with unrepresented defendants. Most will refuse to allow that to happen. Even if they try to proceed prosecution barristers – mindful of their professional and ethical obligations – will refuse to prosecute trials in which defendants are unrepresented.

The disruption to the courts will be immense.

Good. Continue reading “Grayling’s plans for the legal profession are profoundly wrong. Why I support the strike”

Does Tescos want to encourage its customers to kill themselves? One would have thought not but for some time now some branches have been running a promotion that may well have that effect.

If it piled packets of cigarettes by the checkout it would rightly be vilified; it would also be prosecuted. So instead, it is – perfectly legally – piling up packets of paracetamol in the most prominent position possible, by the check-out queues.

Overdosing is the commonest method of suicide amongst women of all ages, and paracetamol is the drug most commonly used. There are, on average in England and Wales, over 120 deaths each year from paracetamol poisoning, most of which are deliberate.  Many are teenagers. Continue reading “Paracetamol should be more tightly regulated to prevent suicides”