BarristerBlogger

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”

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”