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Archive for March 16th, 2010

After the bug of last week (which has not entirely gone – I now have an absurdly deep / croaky voice which makes podcasts just too absurd to contemplate..Think Paul Robeson on benylin) I decided to have a glass of Rioja for afternoon tea.  Normally I wait until well after 7.00 in the evening – but ars longia vita brevis and all that..

I like this….You be The Judge from the Criminal Justice System Online – it does what it says on the tin. [Hat Tip to Brian Inkster of Inksters for alerting me to this ]  You hear the case and decide the sentence…and then see if it bears any resemblance to the ‘real thing’.  Floggers, hangers and deporters will…however, be disappointed. Nothing for you here… but I am sure you can make your own arrangements for something more suited to your tastes by using Google.

And, if you fancy a shock to your central nervous system this wonderful pastiche by the politically astute and leading Photoshop artist..Beau Bo D’Or… it really is worth a look… but I did warn you.

On, temporarily, to more serious matters….. a bit of law, even.

Keir Starmer QC ruled last week that he could not prosecute Baroness Uddin because of a change in the rules by the Lords. One leading barrister takes a very different line.  I extract the full letter from The Times – with due apology for a full extract – because it is rather interesting.  Here is The Times online reference.

Sir,

The decision of the Director of Public Prosecutions not to prosecute peers who may have committed a criminal offence is said to have been brought about by a loophole (leading article, Mar 13). It is no such thing. It would appear to be an extraordinary failure by the DPP to understand what is required to prove a case. The obvious (but not only) charge would have been one of obtaining property by deception, contrary to s15 Theft Act 1968. In order to establish such an offence the prosecution would have to prove that a defendant dishonestly obtained property belonging to another by deception with the intention of permanently depriving the other of it.

The crucial aspect of the deception is the statement supposedly made by the peer that the address in question was that person’s main residence. Whether the address in question was indeed the main residence is a question for the jury. The opinion of someone else — eg, Michael Pownall, the Clerk of Parliaments — as to what constitutes the main address would not be relevant and would be no more likely to be admissible in evidence than Humpty Dumpty’s retort that when he used a word it meant what he chose it to mean.

If the decision not to bring charges was indeed brought about by the inadmissible opinion of the clerk that one visit per month would entitle a peer to designate that address as the main residence, the DPP should seriously consider his position.

Michael Cousens
Carmelite Chambers, London EC4

I am not a criminal lawyer..but is Cousen’s right? As always, I’d be interested in the opinion of practitioners in the field. It struck me, in the case of  Baroness Uddin for…in effect…. appearing to break the law … but a law circumscribed by definitions of  ‘a main address’  set down by the Lords  … that it would be rather difficult for the CPS to bring a credible prosecution. Over to you….

The Spurn of The Jedi

One of the great qualities of Rioja is that it allows me to read The Sun (and other tabloids) and not feel guilty.  It is probably also true that it is rather more difficult to read The Times, Indie, Guardian, telegraph et al after drinking a fair bit of Rioja..but be that as it may… there are no admissions being made this day by me.

The Sun reported..with the headline above…

A JEDI believer won an apology from a Jobcentre which threw him out for refusing to remove his hood.

“Star Wars fan Chris Jarvis, 31, was told he would have to leave if he did not take it down. Chris is a member of the International Church of Jediism – based on the sci-fi films – whose doctrine states that followers should be allowed to wear hoods. But when he protested, security escorted him from his local branch in Southend, Essex. He filled out a complaint form – and received a formal letter from the JobCentre Plus branch’s boss just three days later.”

Far be it for me…of libertarian leanings… to suggest that Chris Jarvis may well have a better prospect of success when he turns up for a job interview and keeps quiet about the fact that he is a Jedi.  I rather suspect that even the most liberal of Chambers would find it difficult to take a Jedi  on… but… you may know differently? Are there any Jedi barristers, clerks, supernumeries…Chambers butlers?

I am not a religious man…and I mean no offence by what follows to those who are… but I thought it might be interesting to match each of the main political leaders with a well known quote (albeit slightly modified for Clegg) from Jesus Christ….

And finally… may god have mercy upon my soul…mea culpa – but I just had to go back to that poster generating site… it woz the Rioja wot did it, M’Lud…

I may as well finish the bottle… an excellent way to ‘take afternoon tea’…. back later..perhaps….

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Shortfalls in CPS leads to hundreds of defendants avoiding trial

The Times reports: ” Failings in the Crown Prosecution Service (CPS) in London have allowed hundreds of defendants to go free without facing trial, inspectors have found. A hard-hitting report published today says that defendants are more likely to escape trial because of prosecution blunders than they are to be cleared by a jury.It found that prosecutors have been bombarded with management initiatives that forced them to neglect their core duty of bringing criminals to court. Case preparation was weak with a “lack of intellectual rigour” and poorly-instructed advocates having to prepare cases on the morning of trial.  As a result, more cases are dropped before trial than anywhere else in the rest of England and Wales — a total of 15.4 per cent compared with 11.6 per cent elsewhere. Some of these are abandoned unavoidably, such as witnesses changing their minds or new evidence coming to light, but others are down to prosecution failings.

Keir Starmer QC, the Director of Public Prosecutions, said he was confident that the performance could be turned around. “I am fully aware that CPS London needs to perform much better than it does now and making that happen is a process which I will be closely involved with,” he added.”

Inevitably, with cuts, we are going to see a deterioration in all public services and the criminal justice system – policing through to prosecution – is going to shoulder some of that burden, no matter how ‘tough’ the politicians talk in terms of ‘Law and Order’. Is this, partly a problem caused by the CPS taking work in-house and not relying so heavily on the independent Bar? When I interviewed Keir Starmer QC back in the autumn of last year for a podcast, he told me, inter alia, that he disagreed with the views of the independent bar that the CPS was too reliant on in-house prosecutors. Chickens and coming home to roost… part of the issue here?  As always, I am interested in the views of those who practise at the sharp end.

‘Misleading’ rape conviction statistic will not be dropped, says solicitor general

Britain’s low conviction rate for rape should continue to be highlighted according to the solicitor general despite the recommendations made in a report by Baroness Stern today.The landmark Stern review into the handling of rape complaints found that the common claim that only 6 per cent of rapes lead to a conviction was misleading and it should be emphasised that almost 60 per cent of those charged with rape are convicted.Baroness Stern said women might be put off by the low conviction rate and, in an attempt to encourage more women to report rapes, she suggested setting up specialist sexual violence centre within every police force area.

But Vera Baird, the solicitor general, said: “I do have reservations about ceasing to refer to the widely used 6 per cent figure, which reflects the percentage of reports that produce a conviction. “Although we don’t count any other offence in this way, it is particularly meaningful as it reflects the high number of rape victims who drop out before they get to court, and we really need to focus on that group, as Baroness Stern herself says.”

The Times

Police could face legal action over ‘unfair’ searches

It would seem that the Police have still not quite got the hang of policing with consent or a grip on the extent of their powers or the skill of using those powers effectively and sensitively.  The Independent reports: ” Police forces were threatened with legal action today as the Government’s equality watchdog said black and Asian Britons were still being unfairly targeted for stop and searches. Most constabularies in England and Wales are continuing to use the powers “disproportionately” against ethnic minorities, a review by the Equality and Human Rights Commission concluded.”

Are we in danger of running military campaigns through populist sentiment whipped up by the tabloids?

The Times reports: Giving soldiers human rights in war zones ‘will hamper battlefield commanders’

A mother’s battle to ensure that soldiers in war zones have their human rights protected will be challenged by the Government today as it argues that commanders will fear being sued for decisions made in the heat of battle. The Supreme Court will hear Ministry of Defence submissions over a landmark ruling that soldiers must be protected by the Human Rights Act when fighting outside their bases in countries such as Afghanistan and Iraq. Last May the Court of Appeal ruled in her favour, sparking concern among some commanders. Major-General Patrick Cordingley, who commanded 7th Armoured Brigade in the Gulf War and retired from the Army in 2000, said: “Life is hugely complex in battle situations and commanders cannot be expected to have to worry about every aspect of the Human Rights Act once they’re engaged in operations.”

The Ministry of Defence is worried that guaranteeing soldiers the rights and freedoms enshrined in the Human Rights Act when in an inherently dangerous situation would put an unreasonable burden on the Government and would affect the ability of commanders to make decisions that expose their troops to risk.

“British commanders engaged in battle with the Taleban in Afghanistan need to know that the decisions they take in hostile environments will not be challenged at a later date in the courts,” a spokesman for the MoD said.

Human Rights laws are fundamental to our society – although not all are convinced by a need for the Human Rights Act in its present form. There are dangers, however, in applying them in a way which raises the phenomenon of ‘unintended consequences’.  We have already seen how health and safety laws have hampered police in the execution of their duties – both for police officers and PCSOs – are we to go down the same route and hamstring commanders and soldiers in the field as well?   The problem, inevitably, is that there is a lawyer out there to put a case for every police officer, soldier or other public servant injured or killed in the line of duty – rightly, but are lawyers bringing cases too frequently which have no prospect of success and raising expectation in the mind of the victims and their families?  How far should the Human Rights Act and considerations of health and safety be applied to police and forces personnel – men and women who, after all, are not conscripted but volunteer, knowing the dangers and risks?

The base proposition  must be, surely, to ensure that our police and troops are properly equipped and trained to do the dangerous tasks we ask of them – but leave commanders and people in the heat of battle or criminal investigation to use their training  to best advantage without being worried that their reasoned and legal actions will result in legal liability later?

Cash rap for lawyer – The Sun

“a TOP-earning barrister was slammed yesterday for trying to increase his publicly funded fees.  Jeremey Rosenblatt had “brought discredit on the bar” in a payment claim which was “neither justified nor decent” a tribunal ruled. He was listed as the country’s highest-earning civil lawyer in legal aid in 2008, with an income of £500,000-plus.  London based Rosenblatt was found guilty of two cases of ‘discreditable conduct’ and cleared of three. The Bar Standards Board banned him from taking on new legal aid clients for three months.”

I phoned the Bar Standards Board to check the Sun’s report – only to be referred to Webber Shandwick who handle the BSB’s press and PR.I got through to an answerphone which, at 10.30 am, was a bit puzzling. While the BSB published the hearing and charges there is, as yet, no report on the tribunal’s findings on the BSB website.  This will, no doubt, go up soon. Curiously, and this may be pure coincidence… but after my phonecall to the BSB I tried to locate the BSB page with details of the hearing only to get a “404 Page not found”. Curious, indeed.

I always check acts when I see reports in newspapers about the behaviour of lawyers, in this case with the BSB.  I spoke to Webber Shandwick (using the cunning ploy of dialling their ‘direct’ number on their website,  and they provided me with a link to the story as reported in The Telegraph: Jeremy Rosenblatt: top-earning barrister guilty of inflating legal aid fee

The Telegraph report is interesting for it refers to ‘practices’  being encouraged by judges. The Telegraph noted: “The board said the barrister’s sense of personal responsibility was “anaesthetised by what he understood to be common practice”

Chambers and Partners, which publishes a directory of barristers and their chambers, describe Mr Rosenblatt as “a barrister with an uncompromising style” who “takes no prisoners” according to observers. Fluency of address and the will to win characterise this advocate, who “seems to have a tongue that runs on ball bearings”.

A tongue that runs on ball bearings?  I’ve heard of ‘silver tongued’ and ‘forked tongued’ but ball bearing tongued? What on earth does that purple prose mean?  A bizarre business.

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