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BarristerBlogger Matthew Scott s Legal Comment Argument and Discussion. Comment Awards 2015 Best Independent Blog 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? Share this:EmailTwitterFacebookReddit 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. Share this:EmailTwitterFacebookReddit Tim Crosland says he has been a lawyer for more than 25 years, but he may not be one for much longer.For the last five years he has also been a trustee of Plan B, a registered charity which he helped to found, whose objectives are given at length in its governing document, but are more pithily summarised in its twitter profile as:“Taking legal action against the British Government to secure a safe climate future for people and planet.” He is a strong supporter of Extinction Rebellion, which he considers has achieved more in 18 months than other environmental groups achieved in three decades.He is the very model of a “left wing activist lawyer,” and if you are interested in his politics and you can face over 40 minutes of his preening self-righteousness then you can watch him talking to Extinction Rebellion’s Roger Hallam – not to be confused with the equally but very differently deluded Roger Helmer – hereOn Plan B’s website he is described as:“Tim Crosland, DirectorTim Crosland, Barrister, brings to Plan B expertise in international human rights, environmental law and litigation, and an inter-disciplinary, partnership-based approach to tackling climate change.” One of Plan B’s legal actions was against the government. Indeed it was originally against the previous administration’s principal unsafe pair of hands Chris Grayling, the former Secretary of State for Transport. Along with Friends of the Earth, Plan B argued that Mr Grayling had unlawfully ignored the Paris Climate Agreement when it designated the “Airports National Policy Statement” as government policy. The ANPS does not of itself grant planning consent for the proposed third runway at Heathrow, but it does set the “policy framework” in which the decision on that consent will be made. It is a framework that makes it more likely that the third runway will ultimately be built.Plan B lost in the Divisional Court, but last February it won in the Court of Appeal, which ruled that the Mr Grayling had not taken into account the government’s policy commitments on climate change as agreed to in the Paris Agreement.The Government – by now Mr Johnson was Prime Minister – decided not to appeal. In truth, their defeat in the Court of Appeal may have been rather convenient. It allowed the Prime Minister, who once made what now seems a possibly disingenuous pledge to lie down in front of the bulldozers to prevent the airport’s expansion, to avoid, or at least put off, making any decision about a contentious issue. By this stage, however, Heathrow Airport itself – Heathrow Airport Ltd – a company who very much did want the third runway to go ahead, had intervened in the case, and they did appeal, hence the case ended up in the Supreme Court.The judgment itself is not easy reading: those who want to follow the various arguments without getting completely lost will, like me, find the Supreme Court’s Press Summary a good place to start. There will be some who would find the Supreme Court’s video recording of the hearings interesting; but I doubt there will be very many. Mr Crosland represented Plan B, and did so, no doubt in a revolutionary gesture, wearing a suit but no tie. I would illustrate this with a screenshot were it not for the fierce legend at the bottom of the Supreme Court screen:“… re-use, capture, re-editing or redistribution of this footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.” It may sound rather hair-splitting, but he appears to have represented Plan B in the Supreme Court in his capacity as “Director of Plan B” rather than as a barrister. That, at any rate is how he is described on the first page of the judgment.Anyway, he lost. I say nothing of the merits of the decision. It turned to a large extent on an arcane point of statutory construction, namely the proper meaning of the phrase “government policy” in S.5 (8) of the Planning Act 2008. There is nothing in the judgment about the merits or otherwise of a third runway, and it makes no more sense to say that the Supreme Court supported its construction than to say that the Court of Appeal opposed it.As is normal with Court of Appeal or Supreme Court judgments, the parties were supplied with copies of the draft judgment a day or two beforehand. There are lots of reasons for this. It gives them a chance to check the judgment for mistakes or obvious factual errors. Correction of these might occasionally make a significant difference to the outcome; a draft, after all is just a draft. There may be consequential arguments, perhaps about the wording of an order or about costs. It is hardly fair to ask the counsel involved to address these without at least a little time to prepare. But the drafts are supplied on the very clear understanding that their contents are not to be made public until “handed down,” either in open court, or by being formally made public by the Court itself. It is a system that usually works well and does so, like so much in the legal system, on the basis of trust. Solicitors and barristers – whether they have won or lost can generally be trusted not to abuse it for personal or political advantage. Lawyers who believe that they have a monopoly of virtue are both tiresome and dangerous. Lawyers who cannot be trusted are a menace.Unfortunately Mr Crosland could not be trusted. The day before the Court was due to hand down its judgment, using the twitter account of Plan B, he denounced the Supreme Court’s decision. He described his outrageous breach of trust as an “act of civil disobedience.” He had, he said “deep respect for the rule of law and the vital role of the judiciary in holding power to account,” although only, it seems, when he wins. The Supreme Court, in upholding what he called Mr Grayling’s “treasonous betrayal of the young people of this country” had, he said, “betrayed us all.”  Talk of treacherous judges in the Supreme Court is reminiscent of President Trump, and it certainly does not sound very respectful. It is the mirror-image of the “enemies of the people” language that some of the British press engaged in during the Article 50 or Prorogation litigation.Mr Crosland knows that he – and possibly the charity whose twitter account he was using will face proceedings for contempt of court. The Court has already referred him to the Attorney General who we must hope will deal with the matter appropriately. Unfortunately he is a fanatic who will – Tommy Robinson-like try to use a perfectly proper prosecution for contempt of court to turn himself into a political martyr.The Court has also, entirely properly, referred him to the Bar Standards Board. It is almost inconceivable that they will not seek to discipline him. However, there is a bit of a mystery here. Despite describing himself as a barrister, Mr Crosland does not appear in a search of the Bar Standards Board register of practising barristers.It may be that he is an “unregistered” barrister. The law is not entirely straightforward, but is summarised on the Bar Standards Board website:“If someone is a barrister but they do not have a valid practising certificate, they are known as an unregistered barrister. Unregistered barristers are allowed to refer to themselves as “barristers” providing it is not in connection with offering or providing legal services. People who are not barristers may be committing a criminal offence if they describe themselves as a barrister. We may notify the police if we hear someone has been wilfully pretending to be a barrister.” Unregistered barristers, just like practising barristers, are subject to disciplinary proceedings. They too can be suspended, struck off  or otherwise disciplined.If Mr Crosland is indeed a barrister, and if he backs down, apologises and admits he was wrong then it may be possible for the tribunal before which he will eventually appear to take a lenient view. If he continues to grandstand and behave as though the ordinary rules of professional conduct do not apply to him because of the purity of his ideals I very much hope it will ensure that he is never able to work as, or call himself, a barrister again.  Share this:EmailTwitterFacebookReddit “This politically correct nonsense has to stop,” says Tim Loughton, Conservative MP for East Worthing Shoreham. Mr Loughton has been a vocal opponent of “political correctness” for years, whether manifested in local authority adoption policies, bans on employees wearing religious symbols, gender questionnaires for primary schoolchildren or gender neutral school uniform. The particular “nonsense” to which he is referring is the provisional recommendation in a consultation document from the Law Commission that the offences of “stirring up” racial or religious hatred, or hatred on the grounds of sexual orientation, should not be exempt from the criminal law when they take place inside a dwelling.Even if he has a point it is a little early to panic. The Law Commission is a statutory body charged with making recommendations for law reform, but it is not especially known for political correctness or indeed for pushing any particular political view. Its Chair and four Commissioners – three Professors a QC with an interest in tax and EU law and a Court of Appeal judge are hardly household names, unless your household is full of academic lawyers, and nor are they in any sense political apparatchiks or wannabe commissars. They cannot make law – that responsibility these days usually falls on Matt Hancock or, very occasionally Parliament – they simply make recommendations. Often the Government says “thank you very much” and files their reports in an oubliette where they are duly forgotten.So what has upset Mr Loughton is a tentative, provisional recommendation in a consultation, which might, or very well might not, lead in a year or two to a firm recommendation, in a report which the government of the day will quite likely ignore, and which in any event would require an Act of Parliament to implement. For the foreseeable future we will remain free to foment racial hatred in the privacy of our own homes, although confusingly, not if we do so by playing “a recording of visual images or sounds” which have the same effect: they are covered by a different section of the Public Order Act 1986 which does not have the “private dwelling” defence. Legal anomalies are heartily disliked by the tidy-minded Law Commissioners.The extent to which the criminal law should be involved in regulating freedom of speech is a very live issue. But it is not true that that Law Commission is especially in favour of restricting free speech. Indeed, it has at present another important consultation open on “Harmful Online Communications” which – albeit in cautious terms – recommends reform of S.127 (1) of the Communications Act 2003. That somewhat notorious subsection – which has its origins in legislation introduced in the 1930s to protect telephonists from obscene telephone calls – prohibits the posting of “grossly offensive” or “menacing” material online. Its vague terms have been used to prosecute, for example a joke tweet about blowing up Doncaster airport (albeit in the end unsuccessfully) and a man who posted footage of his dog performing a Hitler salute in answer to the command Gas the Jews (successfully). The Law Commission’s suggestion is that the scope of the offence should be reduced by restricting it to communications “likely to cause harm.” However, the specific proposal that has exercised Mr Loughton is in the separate Hate Crime consultation document. According to Mr Loughton:“What has the world come to when the principles of freedom of speech are now being trampled upon in conversations within your own home. There is a place to clamp down on hate crime, but within a family home it’s up to individuals to regulate how they converse.”It’s a legitimate point of view, but I think Mr Loughton’s worry may be based on a misunderstanding of what the Law Commission is suggesting.The crimes in question, the “stirring-up” crimes as they are termed, are not committed by expressing politically incorrect truths in family conversations. They are serious offences requiring either an intent to stir up racial (etc) hatred, or at least the likelihood that such hatred will be stirred up. They cannot be committed without (in the case of the racial hatred offence) the use of “threatening, abusive or insulting words or behaviour.” The “religious hate” limb of the offence requires threatening words or behaviour and it expressly excludes “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of its adherents ….”  The “sexual orientation” limb contains equivalent exclusions. Prosecutions require the consent of the Attorney General and they are rare. In Saki’s brilliant and deeply unsettling story The Unrest Cure, the local Bishop has visited a country house. The story is that he has done so in order to plan a Jewish pogrom.Concerned that the Bishop is spending too long in the library another guest asks:“Isn’t the Bishop going to have tea?”“The Bishop is out for blood not tea” is the sombre reply.It is revealed that he is planning to kill all the Jews in the neighbourhood (Saki, it should be noted, died while Hitler was still an unknown Lance Corporal). To massacre the Jews! … Do you mean to tell me there s a general rising against them? No, it s the Bishop s own idea. He s in there arranging all the details now. No-one would suggest that the Bishop’s activity – were it ever to be carried out should be lawful merely because it is carried on in a private house. Of course there is an important difference between actively planning a pogrom and “merely” stirring up racial hatred. So let us change the story just a little: if the Bishop – or let us change it a little further and make him a fanatical and anti-semitic Islamist imam holds a meeting in the library in which he calls in threatening terms for vengeance to be wreaked on the neighbourhood’s Jews because a prominent Jewish magazine has published an offensive cartoon, is it right that he should have a defence to a charge of stirring up racial hatred simply because the stirring-up of hatred took place in a private dwelling rather than in a car-park or a mosque? If you have any views on the issue, the Law Commission’s consultation is open until Christmas Eve.Share this:EmailTwitterFacebookReddit How much should sentencing judges rely on a victim’s assessment of the harm they have suffered in a crime?The issue was highlighted earlier this week when 27 year old Pavel Grushin arrived at Croydon Magistrates Court expecting to be sentenced for offences of sexual assault and common assault he committed at a party in the Royal Festival Hall last December. He was not legally represented, possibly thinking to himself “why bother with a solicitor” when the sentencing guideline suggested a community order, or at worst a short, and very probably suspended, prison sentence. But District Judge Julie Cooper did not sentence him. Instead she sent the case to the Crown Court where he faces a theoretical maximum sentence of 7 years and a probable sentence of around two and a half years imprisonment. “I suggest you instruct a solicitor” she told Mr Grushin, “you will need it.” In itself there is nothing especially unusual about that. Thousands of cases are sent from the Magistrates Court to the Crown Court for sentence every year. Your attitude might well be, so what? He’s just another drunken letch who thoroughly deserves to be locked up for as long as possible. Why should we care? The answer is that if you want sentencing to be carried out fairly and dispassionately over-reliance on Victim Personal Statements (sometimes called “Victim Impact Statements”) has the potential to cause serious injustice.These statements, setting out the effect that a crime has had on its victim, have become ever more ubiquitous at sentencing hearings over the last twenty or so years. They are sometimes drafted by the victim, perhaps more often by a police officer in consultation with the victim. Sometimes they can be very moving documents. Sometimes they can seem formulaic and predictable, although of course no-one would ever dream of saying so. Often they are out of date or so sparse as to be inconsequential. Occasionally they can be startling and unexpected as when the bereaved relative of someone killed by a driver pleads for a lenient sentence. Continue reading We need to think again about the effect of Victim Personal Statements on sentencing Share this:EmailTwitterFacebookReddit 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 CorbynIt 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 PenaltyNevertheless 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 Share this:EmailTwitterFacebookReddit When private prosecutions are brought for political purposes they very rarely end well. In fact, I cannot think of a single example which has done so. Readers will remember the fate of Marcus Ball who amidst great fanfare launched a private prosecution against Boris Johnson over the Vote Leave campaign bus slogan. Boris Johnson was accused of misfeasance in public office. The case ended in the Administrative Court on 3rd July 2019 when Lady Justice Rafferty and Mr Justice Supperstone ruled that he had failed to reveal any criminal conduct by Mr Johnson. Mr Ball’s prosecution, they strongly implied, was “vexatious.” Continue reading There is no prospect of bringing a private prosecution against Dominic Cummings. Share this:EmailTwitterFacebookReddit What will happen to the demonstrators who threw the Colston statue into Bristol Harbour?The Home Secretary has described the demonstrators’ behaviour as “absolutely disgraceful.” Clearly she hopes that they will be prosecuted and punished. The law is on her side.Criminal DamageS.1 of the Criminal Damage Act 1971 provides:“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.” It is impossible to know the exact value of the statue, or the cost of repairing it (it has been sensibly suggested that it might be recovered from the harbour and re-erected in a museum), but it is very unlikely to have been less than £5,000. Anyone charged with damaging it would therefore have the right to elect trial by jury in the Crown Court.Damaging a listed buildingIt was a Grade II listed building. According to Heritage England it is, or was:“A handsome statue, erected in the late C19 to commemorate a late C17 figure; the resulting contrast of styles is handled with confidence. The statue is of particular historical interest, the subject being Edward Colston, Bristol s most famous philanthropist, now also noted for his involvement in the slave trade. Group value with other Bristol memorials: a statue of Edmund Burke, the Cenotaph, and a drinking fountain commemorating the Industrial and Fine Art Exhibition of 1893.”The use of euphemism in the listing is remarkable: Continue reading The Colston statue destroyers have no defence in law but they will never be convicted Share this:EmailTwitterFacebookReddit There was a rather strange report by Martin Beckford in this week s The Mail on Sunday that judges have been told to stop using the phrase “beyond reasonable doubt” in directing juries on the standard of proof required for a conviction:“… the latest edition of the Crown Court Compendium – written by the Judicial College, which oversees judges training – tells members of the bench they can drop the old term completely.It states that when summing up a trial they must give a clear instruction to the jury that they have to be satisfied so that they are sure before they can convict .”The Crown Court Compendium, for those who have not come across it, is an invaluable guide to trial judges. It includes a number of specimen directions, which are often followed by judges, but do not have to be. It is regularly updated, not itself to change the law, but to reflect changes that have been made by statute or by the higher courts.  This is the latest guidance on the correct direction to be given on the standard of proof. Continue reading The standard of proof in criminal trials: Peter Hitchens is right, and Lord Goddard was wrong. Share this:EmailTwitterFacebookReddit 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 Share this:EmailTwitterFacebookReddit Enter your email address to subscribe to this blog and receive notifications of new posts by email. Email Address

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