Archive for July, 2010

Lib Dems fear guilt by association with Osborne


Liberal Democrat ministers have warned that the Conservatives will inflict lasting political damage to Nick Clegg’s party if voters think the coalition Government is relishing the task of cutting public spending.

Although the Cabinet has agreed to try to blame the cuts on its inheritance from Labour, senior Lib Dems are worried that some Tory politicians – including George Osborne, the Chancellor – give the impression they are on a Thatcherite mission to shrink the state.

One Liberal Democrat minister warned yesterday: “If we look as though we are enjoying it, we’re dead. We have to take people with us.”

Hahaha!  Lib-Dem support may well be below 10% soon….


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Well… after the decision today of a ‘strong’ Court of Appeal (LCJ, MR & P of QBD) it would appear that the MPs and a peer being prosecuted for expenses have run out of options to claim that Parliament should deal with them.

The Lord Chief Justice Lord Judge, Lord Neuberger, Master of The Rolls and Sir Anthony May, President of The Queen’s Bench Division, rejected argument by David Chaytor, Elliot Morley, Jim Devine and Lord Hanningfield, that they are protected from prosecution by parliamentary privilege. It is open to the four, who deny theft by false accounting, to seek to take their cases to the Supreme Court. The essence of the appeal was a submission that any investigation into their expenses claims and the imposition of any sanctions “should lie within the hands of Parliament”.

The judgment is essential reading for those interested in Constitutional Law and ‘Parliamentary Privilege’.  I had rather a good lunch reading the judgment.  I thought a light Italian red would be a fine accompaniment.  It was. A fascinating judgment with many cases examined – a pleasure to read from a lawyer’s point of view – and, no doubt, for those who wish to see MPs prosecuted.

Guido Fawkes reported:

+ + + Lord Chief Justices Rules + + +
+ + + MPs To Be Treated As Common Criminals + + +

That would be a fair assessment in the light of the judgment.  I quote the Conclusion…


  1. If we may respectfully say so, we are not in the least surprised that no attempt has been made by the Speaker or Lord Speaker to seek to intervene in these proceedings, nor even to draw the attention of the court to any potential difficulty in the context of parliamentary privilege, nor even to ask the court to reflect on the possibility that parliamentary privilege may be engaged.
  2. It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament. With the necessary exception in relation to the exercise of freedom of speech, it is difficult to envisage circumstances in which the performance of the core responsibilities of a member of Parliament might require or permit him or her to commit crime, or in which the commission of crime could form part of the proceedings in the House for the purposes of article 9 of the Bill of Rights. Equally we cannot discern from principle or authority that privilege or immunity in relation to such conduct may arise merely because the allegations are based on activities which have taken place “within the walls” of Parliament.
  3. The stark reality is that the defendants are alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege does not, has never, and, we believe, never would attach. If the allegations are proved, and we emphasise, if they are proved, then those against whom they are proved will have committed ordinary crimes. Even stretching language to its limits we are unable to envisage how dishonest claims by members of Parliament for their expenses or allowances begin to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties. In our judgment no question of privilege arises, and the ordinary process of the criminal justice system should take its normal course, unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege.
  4. The decision of Saunders J was correct. The appeals will be dismissed.

It being Friday and “Rive Gauche” Day for me…. I just have to share this remarkable story with you…

Naked trampoline man avoids jail sentence

A man caught jumping up and down naked on a trampoline has avoided a jail sentence.

James Burden, 55, was spotted by a neighbour in the garden of his Falkirk home at 0500 GMT on 25 March. Falkirk Sheriff Court heard Burden had his “manhood” in one hand and a cigarette in the other when the neighbour saw him.

Mike McMahon, prosecuting, said: “He told police he had gone out to the trampoline and had masturbated himself there.”

Asked why he did it, Burden told officers: “Just for the thrill of it.”

Well… there you are… life in Britain goes on and now the courts and parliament are in recess and the long vacation.  What will I be able to write about?  Have no fear… I shall, I am sure, as I holiday in Battersea Square, find something each day to explore.

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I do love the smell of hubris and schadenfreude in the morning….

Yahoo.. reports.

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I felt like a bit of Shakespeare tonight….

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The right to arrest war crime suspects

Guardian Letter 29th July 2010

[I have reproduced the Guardian Letter in full]

We are horrified at the proposals by justice secretary Kenneth Clarke to give the director of public prosecutions a veto over arrest warrants in private prosecutions for international crimes (Report, 22 July). The justice secretary’s statement appeared to question the ability of magistrates themselves to weed out flimsy cases. To imply that any previous arrest warrants were issued without judges being satisfied of the existence of serious evidence against the person concerned is an insult to the British legal system and the senior magistrates that preside over such cases. Involving the DPP risks adding a political dimension to a legal decision and introduces a source of delay when urgent action may be required to stop a suspect escaping justice.

Since we call on other countries to uphold human rights and international law, our legal system also has to abide by those principles, in particular bringing to justice those responsible for genocide, war crimes, crimes against humanity, torture and hostage-taking. It’s no secret that this move is the result of pressure from the Israeli government to try to ensure that ex-ministers and military staff will not have to face warrants for their arrest on entering this country.

Rather than bending to pressure to change the existing law, our government should be issuing a statement of intent that all those responsible for serious international crimes, whatever their nationality, will be brought to justice if and when the evidence supports criminal prosecution. The proposed changes will apply to everyone, making it more difficult to prosecute all suspects, whether from Israel or any other country involved in systematic human rights violations. Britain must not be seen as a safe haven for anyone suspected of committing such grave international crimes.

Sir Geoffrey Bindman QC

Daniel Machover

Louise Christian

Alexei Sayle

Miriam Margoyles

Keith Sonnet Deputy general secretary, Unison

Hugh Lanning Deputy general secretary, PCS

Sally Hunt General secretary, UCU

Kevin Courtney Deputy general Secretary, NUT

Andy Dark Assistant general secretar, FBU

Tony Woodley Joint general secretary, Unite

Simon Dubbins International director, Unite

Betty Hunter General secretary, Palestine Solidarity Campaign

Rev Canon Garth Hewitt

Benjamin Zephaniah

Lindsey German Chair, Stop the War

Daud Abdullah Director, Middle East Monitor

Chris Doyle Director Council for Arab-British Understanding

Mohammed Sawalha British Muslim Initiative

Farooq Murad Secretary general, Muslim Council of Britain

Diana Neslen Jews for Justice for Palestinians

Diane Abbott MP

Jeremy Corbyn MP

Emily Thornberry MP

Bruce Kent

Karma Nabulsi

Ahdaf Soueif

Caryl Churchill

John Austin

Eleanor Kilroy

Karen Mitchell

Victoria Brittain

Sarah McSherry

Katherine Craig

Ian McDonald

Penny Maddrell

Jackie Alsaid

Andrew Sanger

David Halpin

Bill Benfield

Yvonne Ridley

Andy Newman

Mohammed Asif

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Cameron and co tread carefully over Kashmir

Guardian: It is clear that every minister accompanying David Cameron on his trip to India has been told not to talk about Kashmir

LATEST…. Hague clarifies….! Not that I know anything about it… but I’d say that British foreign policy is  quite extraordinary at the moment….  Turkey, Gaza, Israel….. what next…. a fact finding mission to North Korea to see #BigSociety ?

UK PM cautions Pakistan over ‘terror exports’

BBC: Leaked documents accuse Pakistani intelligence of helping Afghan militants

British Prime Minister David Cameron has warned Pakistan not to have any relationship with groups that “promote the export of terror”.

Found pic on net… but cd not find owner… great pic!  Sorry if it is yours!

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The ‘debate’ on Times Higher Education Supplement about BPP getting ‘University’ status goes on…and on….

I don’t suppose that I added much when I posted this early this morning…
Charon QC 28 July, 2010

Yes… you are probably right. Governments of all complexions tend to be persuaded by the *Five millions flies eat shit – ipso facto, shit is good to eat* line of argument.

But there we are – that’s democracy for you – and just because a reasonable body of opinion tends to think that any teaching institution can be a ‘university’ however good (and BPP is good) doesn’t necessarily mean it is right .

Does it matter? No – not if you want every college in the country to become a ‘university’ on the premise that it is not part of the defining ethos of such an institution to be involved in research.

We shall see, in time, whether the term ‘university’ continues to have any real meaning. In the meantime – I shall nip orf to think of other things.

Always good to see Black Psyops in action… the above from Legal Week Student!

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My attention was drawn to a debate on The Times Higher Education Supplement website this morning about the new University status conferred on BPP

Comments on this on the THES website before I engaged are here, with the original story

I decided to put a number of points.  This is the exchange so far…..

Charon QC 27 July, 2010

Carl Lygo

Hi Carl

Let me deal with a number of points:

1. Freedom of Information Act

You state…”What you fail to mention above is that those bodies that inspect BPP are subject to the Freedom of Information Act and so the reports in relation to BPP are available. The QAA reports about BPP College are on the front page of our website, so you could not get much more public than that. Students are entitled to information through the Data Protection Act etc. We have an independent chair of our council, with independent members (who have a majority vote), with external examiners from Uk HEI’s, independent representatives on programme approval panels etc. So BPP has in place a lot of external scrutiny.”

It took me a great deal of time and prodding of your colleague Peter Crisp, CEO, of BPP Law School to get access to the QAA report. I had a range of excuses, including ‘The QAA report is a confidential document’ for his not being able to provide this – despite the QAA saying to me in writing that BPP was at liberty to publish if they chose to do so.

I wrote about this several times:
Below is a link to one of these pieces, from which it is possible to track back


For you to now trumpet that you publish the QAA report on the front of your website – when it took many months for you to do so is at best ironic at worst disingenuous.

The College of Law – for the record, published the QAA report into degree awarding powers immediately I asked for access to same.

They, too, are not subject to the Freedom of Information Act.

BPP is not subject to the Freedom of Information Act. I believe that both BPP and the College of Law should be subject to FOI

2. The Bar Vocational Course

It is well reported in the legal press that BPP was investigated by the Bar Standards Board for over subscribing on the Bar Vocational Course.

For the benefit of readers who do not follow legal education in detail – here is a short post I wrote covering this:


I understand that BPP law School is subject to what may be called ‘special measures’ or supervision for the next two years

This is Condition 1 from the Bar Standards Board report – please correct me if I have quoted inaccurately:

“Prior to making any offer for the courses commencing in Sept 2010, BPP must engage the services of an independent statistician or similar expert, (name and CV to be approved by the BSB) to review all available admissions data for the previous 5 years and clarify that in his/her professional opinion the number of offers that BPP wishes to make should not lead to over-recruitment. This certification is to be provided to the BSB before any offers are made, and thereafter the number of offers made by BPP shall not exceed the certified number. This procedure is to be repeated for the courses commencing in September 2011 and September 2012.”

I am delighted that BPP has got degree powers and university status – but it is right that your new university college should be subject to scrutiny.

Hopefully the Freedom of Information Act will apply – although peter crisp, CEO of the Law School in two podcasts he did with me – in the public domain – indicated that he would be quite happy for BPP Law School to provide the same information required of public sector institutions.

  • David 27 July, 2010 overfilling courses – an omen….While BPP has undoubtedly done a lot of good in professional training, the query from Peter above (Do BPP have to control student numbers as other institutions have to else find themselves under penalty) is interesting.There are controls of student numbers for all organisations, but BPP has already been pulled up for overfilling courses. The Bar Standards Board limits students on the bar training course for example, and BPP faced an enquiry and is only accredited to run the course in future on condition that they comply with the BSB conditions and recommendations.It remains to be seen if this new status will make them more or less responsible.
  • Charon QC 27 July, 2010 For the record… while I write ‘pseudonymously’ as Charon QC on my Charon QC blog – I am not anonymous.My name is Mike Semple Piggot. I have been in legal education for 30+ years – and, ironically, founded BPP Law School with Charlie Prior, then CEO of BPP Holdings plc, in the good old days of 1990.
  • I am not connected in any way with BPP or any other organisation – and I am delighted that BPP has got this status – but, equally, I think it only right that the College should be scrutinised, scrutiny which students and employers who pay the fees are entitled to expect?
  • Carl Lygo 27 July, 2010 If you look at the front page of our website under the text “Approval by the Privy Council” you will get the report I said was on the front page of our website. http://www.bppuc.com/BPP was founded by 3 Accountants, Brierly, Price and Prior hence the origination of the name.You can’t have it both ways – we have the BSB report in to BPP’s over recruitment on the BVC made public and yet you say we are not open to scrutiny.As I said before reports from QAA, BSB, SRA etc are all available to be inspected either from our website (in relation to the ACDAP/QAA report) or from the regulators website.

    I suspect we will be blamed for the dull summer weather next!

    Carl Lygo, Principal of BPP University College

  • Charon QC 27 July, 2010 Carl – I can’t find anything on your website about BPP being responsible for the recent spell of dull weather.I am quite happy to go back over the many months of correspondence I had with Peter Crisp to determine exactly how long it took BPP Law School to publish the QAA report.Final question: Do you feel that BPP University College should be subject to the Freedom of Information Act so that you are – to use a phrase BPP used when applying for degree awarding powers – on a fair and level playing field with the traditional public sector universities?

    A supplementary: Will you be asking David Willetts MP to put this in hand?

  • Charon QC 27 July, 2010 Carl: One last thought? : RESEARCHWould you agree with the proposition that a ‘University’ is traditionally regarded as engaging in both teaching and significant public research for the common good?

    If so – what plans has BPP University College got to engage in significant research in Law, health care, teaching et al (anfd any other degrees you decide to teach)?

    If you do not plan to engage in serious research to current public university standards would it be fair or unfair to say that the title ‘University’ is rather meaningless and is just a bit of puffery demeaning to the established sector?

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    Prisons minister says criminals could cut jail sentences by saying ‘sorry’

    • Crispin Blunt wants victims to confront offenders
    • Restorative justice would lead to ‘rehabilitation revolution’


    It seems, however, that Cameron has slapped this rather good idea down…..

    See John Hirst, writing on Old Holborn’s Blog – a thoughtful piece and well worth reading.

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    The bizarre case of Earl Spencer, his divorce lawyer…and seven little piggies

    The Daily Mail reports: “One of the country’s leading lawyers told the Earl that he had named his sow’s piglets after the character traits of a High Court judge – including ‘self-regarding’, ‘pompous’ and ‘pillock’….. The insults were revealed by Princess Diana’s brother as he prepared to sue the lawyer over the handling of his divorce. After the Earl handed £5.65million to his ex-wife last year, Sir Nicholas Mostyn emailed him about Lord Justice Munby, who heard the case.The keen farmer, now a High Court judge himself, said his sow had given birth, adding: ‘The piglets will be named: James, Munby, self-regarding, pompous, publicity, seeking, and pillock…’ The insults were included in a writ Earl Spencer issued last month in the High Court.”

    Bizarre indeed.  The Mail notes that Mostyn and Munby are, however, good friends…so there should be little difficulty between the learned friends.

    Fast-track deportations from UK ‘unlawful’

    BBC: The fast-track deportation of foreign nationals refused permission to remain in the UK has been declared unlawful by the High Court. A judge ruled that the Home Office policy meant people were being given “little or no notice” of removal and were deprived of access to justice…… Home Office lawyers argued that the deportation policy was “sufficiently flexible” to avoid any human rights breaches, and that detainees were given as much notice as possible before removal

    Well, on this occasion the High Court disagrees.  That’s the trouble with law… it can get in the way of new policies. Back to the drawing board again for the Home Office.  Given the number of Home Office ‘disappointments’ recorded in the press one wonders why the people working there don’t have a look at the law before acting or, at the very least, consult their lawyers.  Perhaps they do?  I’m not sure which is worse…not consulting the law in advance or acting after taking advice from the lawyers!

    The graphic above comes from a post I did on a quite remarkable statement by a lecturer at BPP recenttly….

    Actually, I take the “BPP is a sausage factory” criticism as a compliment – Katie Best, BPP Business School

    First private university in decades to be created

    BBP, wholly owned by US company Apollo, has been granted university status. Report

    It will be interesting to see what happens – the plan is to go into health and teaching degrees. Fees at BPP for their degrees, while not on the BPTC scale of nigh on 15k p.a. are likely to be higher than traditional universities – at least until traditional universities are allowed to put their fees up.  They are set, for the moment, at the same level as the maximum fees permitted to be  charged by traditional universities..  One of the problems that BPP will face, of course, is ‘currency and value’.  There is a pecking order of universities in the United Kingdom based on quality. There is not the same perception of law schools providing professional training at LPC and BPTC level  to anything like the same extent.  BPP University College will, I suspect, have to start at the very bottom of the university degree reputation pile – as they have no track record on degree teaching of any substance yet.

    The only issues of any worth considering are these: (a) Can BPP hack it in a competitive and well proven university degree sector? (b) Will a BPP degree be worth anything to employers? (c) Will BPP degree holders be able to compete with the very best students from the top universities? and (d) Will BPP be able to expand their business without damaging the reputation they enjoy for law and accountancy training?

    A fifth question could be: Does BPP University College plan to do any ‘research’ or is this likely to be a costly inconvenience to the business of running a business and  teaching?  These are the questions students and their competitors will and should be asking.

    Only time will tell.  It shouldn’t take long to get an objective market assessment.  I shall return to this shortly in more detail.

    As for Mr David Willetts’ statement  (The government minister responsible for the decision) …“I am delighted that, less than four months after coming into office, we are creating the first new private university college in more than 30 years.”

    This is serial bollocks, of course.  The Coalition government did not build BPP or Apollo.  They did.  All the Coalition government has done is rush into a decision.  We shall see if they get credit for doing so or criticism…in time.

    The BBC reports:”But Sally Hunt, leader of the UCU lecturers’ union, attacked the creation of the new university college as a threat to standards in higher education.

    “Today’s news could mark the beginning of a slippery slope for academic provision in this country,” she said.

    “Encouraging the growth of private providers and making it easier for them to call themselves universities would be a disaster for the UK’s academic reputation. It would also represent a huge threat to academic freedom and standards.”

    “Private providers are not accountable to the public and do not deserve to be put in the same league as our universities,” said the leader of the lecturers’ union.

    BPP University College of Professional Studies Ltd (The full name of the Institution)  – which I assume has to be the vehicle for this given the grant of degree awarding powers was to this wing of BPP – is NOT subject to The Freedom of Information Act and is therefore NOT accountable nor transparent.  It took me some time to get the QAA report from Peter Crisp, the Dean of BPP Law School.  This must change if there is to be an honest and fair ‘level playing field’ between public and private sector.  It is not known at this stage whether Mr Willetts has considered this aspect – or even if he had it in his mind when making the decision. The new University is not a British owned university.  It is owned by Apollo, an American firm.  This may or may not be a disadvantage…and does it matter?  We shall see.

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    Tweet of The Week!

    It may be the wine, it may be the Coalition government has finally got to me… but  Old Holborn’s tweet  made me laugh out loud….

    Gordon Brown resurfaces with call for African growth

    Guardian: At African Union meeting in Kampala, former PM says more ‘smart’ aid and investment in IT can set continent on track

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    Dudley poised to replace Tony Hayward as BP chief

    Telegraph: Bob Dudley is set to be named as the new chief executive of BP within 24 hours as the company launches the fight to repair its reputation and finances.

    I rather liked this quote from George W Bush….

    “It is clear our nation is reliant upon big foreign oil. More and more of our imports come from overseas.”

    Perhaps *underseas* would be more topical?  Christ knows what will happen if the Americans ever discover that Afghanistan is the richest source of Lithium anywhere in the world?

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    There has been a great deal of comment on Twitter, blogs, the mainstream press about the decision of the DPP not to prosecute in the case of Mr Ian Tomlinson.

    I extract below questions put by a very experienced lawyer – Simon Myerson QC – and my response.  You will appreciate that my response is no more than an attempt to consider issues.  I have no expertise in this field.  Simon Myerson QC is a very experienced practitioner and I am grateful that practising lawyers are prepared to comment on other blogs [Simon Myerson writes a very useful blog ‘Pupillage and How to Get It’ for prospective barristers]

    This is Simon Myerson QC’s comment on the original blog post

    Some questions, if I may:

    On what basis did the IPCC reveal its ‘recommendation’ to prosecute? The IPCC has no statutory obligation to recommend criminal prosecution and is not bound by the Code of Conduct for Crown Prosecutors. Did it have any business trying to dictate a course of action to the CPS?

    To what extent is the officer’s past relevant? His previous alleged misconduct might be admissible before a jury but it has to be relevant. Does it tend to show a disposition to act in a particular way? It seems impossible to say without knowing the details. I make the same observation about the casual assumption that the pathologist’s view must be flawed because he is facing criticism for unrelated matters.

    If these points are irrelevant, then many of the calls for prosecution seem to do nothing more than rely on a wish to see things a particular way – or the view that ‘he did it before so he must have done it this time’ – rather than the objective examination of the evidence which is generally agreed to be necessary before making serious accusations against someone. There is a whiff of hypocrisy here as the ability to take previous conduct into account is often said to be a bad thing. If anyone is adopting the view that it is ok to use it when the accused is a police officer, they ought to stop.

    As to manslaughter the rule is that the force must be unlawful (an issue of fact) and must cause some injury (another issue of fact) which causes the death (another issue of fact). In order to secure a conviction the Prosecution would have to make the jury sure of each issue. That the CPS decided that this was likely to be an assault is a view on 1/3 of the case. On what basis, please, is it being asserted that the decision that there is a less than 50% chance of success is a political one?

    The view that there should be a prosecution anyway, on the other hand does strike me as political. In most cases, a fair conclusion that a conviction was unlikely would be sufficient to ensure that neither the accused nor the family of the victim were put through the emotional wringer of a trial. My experience of experiments in justice where there is a trial without the likelihood of conviction test applying, is that this decision is the right one.

    Finally, it is depressing that in suitable political circumstances, a great many people who would otherwise argue that accidents can happen and that a rush to retributive justice is unseemly, can reverse themselves in an instant. I hold no brief for the police officer: it seems to me that the real issue is not whether he committed a minor assault (at worst) but whether he should have been permitted to regain his post after leaving the force once. That is a question for more senior personnel and it is being obscured in the quest to ensure that a man who pushed someone over when he did not have to, although in the middle of a riot, should face his trial for an utterly unintended and unanticipated consequence.

    This is my response to Simon Myerson.  I hope that Simon Myerson’s questions prompt further analysis.

    Simon Myerson QC

    Simon – thanks for your useful questions above.

    I am not, as you know, a criminal lawyer. My academic side has been in the field of Contract, Tort, and more recently an interest in civil liberties and human rights. Criminal Law, however, has long been of interest – but my expertise extends only to the extent of the ‘man on the Clapham omnibus reading Smith & Hogan’.

    1. I cannot see any bar to the IPCC making representations to the CPS but it is clear, from your first paragraph, that this is not the usual course of events

    2. Your point in relation to previous conduct is an important one and you are right.

    3. “As to manslaughter the rule is that the force must be unlawful (an issue of fact) and must cause some injury (another issue of fact) which causes the death (another issue of fact)….”

    It is clear from the statement of Keir Starmer QC, the DPP, that the CPS had little difficulty in forming a view on the first element. Indeed Starmer makes that point quite clear.

    “The first issue that the CPS considered was whether the actions of PC ‘A’ were lawful. Having analysed the available evidence very carefully, the CPS concluded that there is sufficient evidence to provide a realistic prospect of proving that the actions of PC ‘A’ in striking Mr Tomlinson with his baton and then pushing him over constituted an assault. At the time of those acts, Mr Tomlinson did not pose a threat to PC ‘A’ or any other police officer. Whilst the officer was entitled to require Mr Tomlinson to move out of Royal Exchange, there is sufficient evidence to provide a realistic prospect of proving that his actions were disproportionate and unjustified.

    Having concluded that the officer’s actions could constitute an assault, the CPS then considered the possible criminal charges…..

    The difficulty lies, as you point out, in the second and third elements of the offence. The medical evidence was not sufficiently clear to bring a prosecution with a realistic prospect of conviction.

    The DPP formed the view that while the conflict on cause of death between the pathologists would not have precluded the bringing of a prosecution “Dr Patel would have to be called at trial as a prosecution witness as to the primary facts.”

    The “CPS concluded that the evidence of those primary facts undermined the basis upon which the other experts reached their conclusions about the cause of death. As a result, the CPS would simply not be able to prove beyond reasonable doubt that there was a causal link between Mr Tomlinson’s death and the alleged assault upon him.

    That being the case, there is no realistic prospect of a conviction for unlawful act manslaughter.”

    This also precluded the bringing of a case – : “Assault occasioning actual bodily harm would require the prosecution to prove that the alleged assault on Mr Tomlinson caused him actual bodily harm.”

    A prosecution for ‘simple’ assault was time barred. The DPP does not give a detailed reason in that statement as to why the delay arose.

    It is widely believed – I have seen no documentary evidence – that there have been 1000 deaths on police custody without a single prosecution being brought. Sgt Smellie, in a widely reported recent G20 case,  was acquitted by a district judge of charges in relation to his conduct.

    The video evidence of PC Simon Harwood pushing Mr Tomlinson over is clear – the unlawful act referred to by the DPP.

    That it now transpires that Dr Patel is being investigated – and there were prior misgivings as to his competence – one wonders why Dr Patel was selected as the pathologist for such an obviously sensitive case?

    There are many commentators on blogs, twitter – and some in the media – who express discontent with police, ranging from the absurd to the well thought out and not unreasonable.

    The Police themselves have expressed misgivings about this case – and certainly the appointment of Harwood to the TSG, after difficulties experienced in his previous force, is a matter for investigation by Police.

    I do not see the decision of Keir Starmer QC as political. I see a DPP faced with a very real problem – but would it not have been advisable to accept the conflict between the pathologists and put the case to the jury? This hasn’t been fully explained by anyone – and is certainly beyond me.

    Would it have been  unfair as you suggest in your comment above?

    Given your particular experience as a Silk with many years of practice in the Criminal courts, you are able to give a view?

    Given the difficulties experienced in this case – a source of frustration to many and, I suspect, to the CPS also, it is clear that procedures need to be tightened up in terms of the recruitment of pathologists and procedures to ensure that time limits for bringing prosecutions do not expire. Or is that being unreasonable, neigh naive?

    There is a widespread feeling that had a member of the public assaulted a police officer from behind with a baton a prosecution would have been brought. Is that an unreasonable feeling?

    This case and the Sgt Smellie case have not done the Police any favours in terms of public perception – and it is that perception which becomes a political issue, not the law itself?

    It is important to get a clear understanding when important cases like this come along – but the newspapers don’t always get it right and, certainly, general commentators like me can only really try and report as we find. It is particularly helpful when specialists, with experience, are prepared to give of their time and put forward analysis.


    You may wish to look at these posts (and the comments) from law blogger Jack of Kent

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    Lord Shagger writes…..

    I have to say that I am baffled about Keir Starmer QC ‘s statement on Mr Tomlinson and the events surrounding it. As you know, The Guardian reported “The Crown Prosecution Service has admitted that the decision not to prosecute a police officer for the death of Ian Tomlinson rested on the evidence of a pathologist who has been officially reprimanded and is facing 26 further charges of sub-standard practices, including incompetently carrying out a number of earlier autopsies.” It seems that ‘Freddy’ Patel, the pathologist, was not terribly good at his job given the astonishing number of charges for sub-standard practices reported in the Press.  Why was he engaged to do the first autopsy?  Why did the CPS miss the six month deadline?  Why was “Advice to charge police officer over Ian Tomlinson death ignored” ?  It appears that there is a marked reluctance to prosecute police officers in Britain.  The problem with this and the Sgt Smellie case (not forgetting the 30 years it took to get the Police to make admissions on Blair Peach)  is that the reputation of the Police will go down.   Goodwill works both ways and while I accept that there are many police officers who are concerned about this, there are, unfortunately, many who are not and who seem to regard it as given that they will be able to err without fear of prosecution.  How did PC Simon Harwood, who had ‘anger management’ problems with another force, get into the Met?  We’re not talking about a desk job supervising bun eating  PCSOs here – we are talking the Tactical Support Group, the spiritual successors of the ill-famed SPG of old…in the eyes of some.  Is Keir Starmer up to it?  Not looking too good.

    I see that you covered good old David Davis’ nonsense about Brokeback Coalition. He’s right of course. Many of us are seething that we have to waste time with all these huggers from the LIb-Dems. Clegg doesn’t appear to know the difference between holding personal views and speaking as a Deputy Prime Minister.  Given that the Liberals haven’t had a taste of power since the days of Lloyd George I suppose he can be forgiven for not being wholly versed in the machinations of rule and government.   I rather lost the will to live after watching Clegg talking about his remarks about the ‘illegality of the Iraq war” on Channel 4.

    I rarely spend an evening at the Chien et Canard in Monaco without debating The Boer war with some retail millionaire. Sometimes we even get the odd rich parvenu or fugitive from justice, who didn’t find Spain to his taste or  who has decided that the Cotswolds is not a tax friendly environment,   who chips in with nothing of any value at all in terms of the conversation.

    Krishnan Guru-Murthy: You learnt a lesson at the Dispatch Box this week, you can’t really say what you think, you have to speak for the government rather than your own personal opinions on things like the legality of the Iraq War.

    Nick Clegg: I disagree on some things as hugely important and divisive as the Iraq war. People are still debating the Second World War, the Boer War. This is a debate that will run and run and run.

    I remember when I was at Eton many years ago…..some boys were so eager to impress that they had a certain slightly unctuous and creepy look about them. Cameron has that look and certainly seems to have swallowed much of the public school bollocks.  Usually old boys from public school get over their attachment to their old schools within a few years of being mocked by those who came after them when they keep turning up for events at the alma mater.  Cameron gives the impression that he is still keen to impress those in authority and hasn’t quite grasped the whole point of being Prime Minister…that he is The Authority.  But there we are.

    As for Clegg… I thought this quote from Hamlet might amuse…

    “In the most high and palmy state of Rome,
    A little ere the mightiest Julius fell,
    The graves stood tenantless, and the sheeted dead
    Did squeak and gibber in the Roman streets.”
    – William Shakespeare, Hamlet, 1.1

    I suspect that the end game will see Clegg wondering around some television station shouting…

    A vote ! a vote! my kingdom for a vote!
    Richard III. 5. 4

    Good to see that BP has started drilling off Libya. This will, no doubt, irritate those senators issuing invitations to all and sundry – who, sensibly, have declined an invitation to be humiliated in public by the Yanks – and will do wonders for the BP share price.  Timing, dear boy.. timing.  Timing is all…as every litigation lawyer knows.

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    Dear Reader!   Bonjour!,

    After a very pleasant evening last night, doing a spot of writing and catching up with my Rioja drinking, I decided to ‘stress test’ my bank by telephoning them to ask if a payment had come in.   I was put through to a call centre and passed the security checks.  I had waited for some time for this and the Rioja had taken hold.  The operator was taken by surprise when I ordered a pizza and then asked him what toppings he had.  He wasn’t very amused. I was a bit over refreshed and rather bored by the long wait.  It can be fun, sometimes, to be an awkward customer with banks.  I shall be writing to The Governor of The Bank of England to say that I am at my country’s disposal in these BIG SOCIETY days should he want any further bank ‘stress testing’ done.

    This morning, I rose rather earlier than usual at 4.00. I found many good stories on the online newspapers – NOT The Times of course now they have hidden by a paywall – and, at 7.00,  I walked up to have breakfast at the Battersea Grill near Battersea Bridge.  Unfortunately, I had forgotten that it did not open until 7.30 so I amused myself by buying some more Marlboros, checking my balance on the ATM machine in the newsagent and purchased The Indie and The Sun.

    I then saw a guy – almost certainly Nigerian from his accent – nicking tomatoes from a pile of small vegetable boxes left outside the cafe. [I have taught and met a lot of Nigerians so can generally recognise them – and very amusing most of them were!.  I am a fan of the louder Nigerians who laugh a lot.] The man appeared to be slightly drunk. He had an opened  can of cider in his hand.  I asked him what he was doing.  He became very abusive.  I asked him again why he was taking tomatoes which did not belong to him.  One of the waitresses arrived and opened up the cafe.  I told him to put the tomatoes back.  He became even angrier, told me that I could get *kill-ed* for doing this.  I’m getting a bit old for this sort of nonsense but I was relaxed – doing Karate and  Kendo in my youth for many years assisted (Not forgetting my ruthless exercise regime with Smokedo).   He was braced to throw a punch – which suited me just fine.  People who are not trained,  invariably are not balanced when they throw a punch. This is why it is a relatively straightforward matter to side step, grab the assailant’s wrist and use one’s other hand to snap the assailant’s elbow into a locked position and put them down.  The pain from the elbow and pressure applied to the nerves around the wrists drains the assailant’s enthusiasm for fighting fairly quickly. At which point, a foot on the neck tends to discourage further activity.  This is the theory of it – although, unfortunately, I had to use it with a pisshead many years back.

    Fortunately, I did not to have  to deploy such methods in middle class Battersea at 7.15 am. After calling me various names, saying that he would wait for me and punch my head in, that I could be *kill-ed* again,  I thought it  best to use the other technique of ‘command and control’ and tell him to  fark orf. Ludicrous man! He did and I settled down at my usual table to have an excellent English breakfast.  I was greedy this morning and asked for  some beautifully cooked chips!


    A quick return to The Staterooms to do some writing on my new Tort book. This, I have to say, had no appeal at all.  I did read the excellent blog post by lawyer and blogger  Jack of Kent about the win in the libel courts yesterday in the case of Kaschke v Gray, Hilton. This is a very important decision for all bloggers and I raise my hat to Dougans and Jack of Kent for their pro bono work on this, Osler and other matters.  Lawyers do not always get a good press.  These lawyers deserve a bit of praise and they certainly get it from me.

    It would be well worth your time, if you are interested in libel law or blogging, reading these:

    Victory for Gray and Hilton
    Jack of Kent blog post

    Judgment: Kaschke v Gray, Hilton.

    Kaschke’s response – which I have to say is rather dramatic.  I am, of course, allowed to express an objective opinion on what I have seen published on the internet.

    John Gray has become a fat ponze

    I came to the view that Ms Kaschke’s blog post,  in response to losing the libel application yesterday, was ‘dramatic’ simply by reading her own opening to her blog post… I quote…

    I have to let out the frustrations somehow that I collected today when I sat the High Court to listen to Stadlen J’s useless judgment.

    John Gray is just a fat ponze now, he is part of the political establishment, having gotten the Labour Party Councillor post. Alex Hilton has gotten away with his tactics and Robert Dougans looked like a clown who spend most of his time stammering and didn’t know what he was doing. Or maybe his bad conscience over how he tricked me out of my claim, finally caught up with him, it is possible that he still might have a tiny drop of humanity in him, but its not certain…..

    It goes on…..


    It would appear that Ms Kaschke did not appreciate my comment and giving her an opportunity to respond by linking to her blog post.

    Henchman?  Moi?

    I won’t, of course, be seeking any legal remedy for being called a *Henchman* – I have better things to do than waste my time on litigation.

    Guido Fawkes is usually on the button.  Here is his take on the matter:

    Court Report : Loonie Leftie (Tory Party Member) v Hilton & Gray

    And so to other matters…..

    Catholic church embarrassed by gay priests revelations

    Guardian: Vatican on defensive again after magazine exposes priests visiting gay clubs and bars and having sex

    And then I went orf to The Square to have an early morning glass of vin rose with my americano and some Marlboros. All in all, an unusual morning.  The day can only get better.  I plan to ensure that this is the case

    I asked yesterday on twitter: “To haircut or not to haircut……Whether ’tis nobler on the head to suffer the hacks and cuts of an outrageous barber….or look like Lear? ”  I enjoyed my visit to the choppers in Battersea Square.  A lovely Spanish hairdresser did the business…. I removed the tache myself some weeks ago.

    Pic right – I would not, after all, wish my readers to think that I am pictured top left.  That is my alter ego!

    Best, as always

    Enjoy your weekend



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    David Davis pub talk reveals Tory unease at the ‘Brokeback Coalition’

    • David Davis reportedly repeats alleged remark by Lord Ashcroft
    • Remarks echo criticism of David Cameron’s ‘big society’ policy

    Guardian: Unease on the Tory right over David Cameron’s coalition with the Liberal Democrats was highlighted last night in unguarded comments made by the man Cameron defeated in the 2005 Tory leadership campaign.

    David Davis is reported to have approvingly repeated a description of the partnership between Cameron and Liberal Democrat leader Nick Clegg as “Brokeback Coalition”, which he attributed to another senior Tory.

    Davis made his remarks during a private lunch with former colleagues from Tate & Lyle at the Boot & Flogger wine bar in Southwark on Thursday.

    The MP was reportedly overheard saying that Lord Ashcroft, the ex-Conservative party deputy chairman, had referred to the government as “Brokeback Coalition” – a reference to the Oscar-winning film Brokeback Mountain, about a gay relationship. Davis, whose remarks are disclosed in today’s Financial Times, said he had been misheard.

    I know The Boot & Flogger in Southwark rather well – a fine establishment for getting seriously over refreshed and for the seriously over refreshed!

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