Hard Times

‘What we mustn’t do is just leave untouched a system that has grown astonishingly, making the poor extremely litigious’, said Kenneth Clarke, while Lord Chancellor and Minister of Justice in 2012. And there you have it. No trouble is too great to satisfy the legal needs of the spivs and oligarchs of the world, and we can build the spanking new Rolls Building for them to thrash out their disputes (the very name reeks of walnut dashboards and old money), but god forbid ‘the poor’ should have the impertinence to go to law over things that matter to them – like getting a decent roof over their heads, or their benefits paid properly, or not being exploited and unfairly sacked by their employers.  Better to deny them state support than indulge their uncontrolled appetite for litigation. Who knew that it was so pernicious a vice among ‘the poor’, like gin or bare-knuckle fighting? What ever will they want next?

‘Now, you know,’ said Mr Bounderby, taking some sherry, ‘we have never had any difficulty with you, and you have never been one of the unreasonable ones. You don’t expect to be set up in a coach and six, and to be fed on turtle soup and venison, with a gold spoon, as a good many of ’em do!’ Mr Bounderby always represented this to be the sole, immediate, and direct object of any Hand who was not entirely satisfied; ‘and therefore I know already that you have not come here to make a complaint. Now, you know, I am certain of that, before-hand.’  (Dickens, Hard Times, ch.11)

Enough said.

Put Your Case!

As an advocate, the last thing you want to hear your opponent – or worse still the judge – saying to you or your client is ‘that was not put’.

It’s a cardinal rule of advocacy that you must ‘put’ your case to the other side’s witness, tell them at least in outline what it is, to give them the opportunity to reply or comment on it. For example, in an assault case, the defence might be: I hit the complainant in self-defence because he was coming at me with a knife. If the advocate fails to ‘put’ that in cross-examination, and the defendant asserts it when he gives evidence, the jury will not be able to measure up what he says against what the witness would have said if he had been asked about it. The defendant will be asked why it was not put, and there are only two answers – either he has made it up and the advocate did not know about it when cross-examining, or the advocate failed to put it and so is incompetent or a chancer. If one has simply overlooked something important, the best and only thing to do is to admit it at once, and if necessary ask for witness to be recalled so that it can be put; when the dreaded words ‘that was not put’ are uttered and the advocate says nothing, the spotlight is on the defendant to explain it.

It applies the other way round: a defendant must be given the opportunity to respond to specific allegations that prosecution witnesses make against him, but this will normally have been done before it gets to cross-examination.

It’s a rule of basic fairness that witnesses, whoever they are, should have that opportunity. If the jury or judge hasn’t assessed how the witness responds to the opposing case being put, it becomes much harder to decide whether the allegation is true and the evidence for it reliable.

In a case of historic sex abuse, for example, where no significant evidence except the word of the defendant and the complainant survives after many years of silence, the defence is likely to be a simple denial, accompanied with the allegation that the complainant has invented the allegation for reasons of their own. The defendant’s case in 2013 may be that he accepts he was in a relationship with the complainant’s mother in 1983, but that he never touched the complainant, and she must be making it up. There’s nothing else to go, so the way in which the witness deals with the defence case, as put to her, is an important part of the evidence for the court to consider. As I suggested in an earlier post, the maxim ‘show don’t tell’ is a good one to follow in cross-examination, but if the defence is that the allegation is a fabrication, the witness must have the opportunity to deal with it squarely. A sincere and outraged denial can speak volumes about the witness’s credibility.

Now there’s no single right way to cross-examine; the advocate’s skill and judgment will guide them on how best to proceed with each witness. A too robust approach with an obviously vulnerable and fragile witness will look like what it is to the jury – bullying –  and will probably be stopped by the judge. It will rebound badly on the defence advocate and the defendant.  Nevertheless, the duty remains to put the defence case.

When the system works properly, each person plays their own role according to the rules. The defence advocate’s duty is to their client. However personally distasteful or unpleasant it may be, they have to be fearless on their client’s behalf. That does not mean that common decency and good manners go out of the window, but you can’t pull your punches either. You have to put your case.

The Best Defence?

In June 1996, a man named Milton Brown picked up a woman at a nightclub and took her to his flat where he threatened her with a knife and forced her to have sex with him. Three months later he threatened to strangle another woman unless she had sex with him, and he made her give him oral sex repeatedly, at knife-point, for about 12 hours. At his trial he sacked his lawyers and cross-examined the women himself.

They went through what the trial judge described as an ‘ordeal’:

The whole experience must for those women have been horrifying and it is highly regrettable in my view, and a matter of understandable public concern, that the law as it stands permits a situation where an unrepresented defendant in a sexual assault case has a virtually unfettered right personally to question his victim in such needlessly extended and agonising detail for the obvious purpose of intimidation and humiliation.

He tried to overturn his convictions and reduce his 16-year sentence, but the Court of Appeal were having none of it ([1998] 2 Cr App R 364). They gave guidance to judges on how to control defendants who represented themselves, but within months the government enacted Section 34 of the Youth Justice & Criminal Evidence Act 1999, which simply banned defendants from doing their own cross-examinations in sex cases.

Other parts of the 1999 Act introduced ‘special measures’ to protect witnesses in criminal trials of all kinds, including the use of pre-recorded filmed interviews to stand for evidence in chief, video-links so that the witness did not have to share the courtroom with the defendant, and screens in the courtroom to prevent them seeing one another. These measures are now used routinely and seldom excite comment or objection by the defence. To some extent, they mitigate the undoubted distress that comes with giving evidence in Court.

Over the years, training for police officers who investigate sex offences, and for lawyers who prosecute them, has developed and improved. It may not always be effective: some people lack empathy, sometimes best practice is not followed. Lapses from it are to be deplored. For any truthful complainant in a sex case, it must be horrible to go through the legal process however hard it tries to be accommodating, and it must take courage to face an advocate who tells you that you have made it up, or that you gave your full consent to what happened.

Is there is a better way of trying sex offences? If there is, it has to retain the all-important presumption of innocence and the requirement that the Court must be sure of guilt before it can convict. It would be deplorable if an allegation of a sexual offence was given a special status, that meant it was assumed in advance to be the truth, or needed less good evidence as proof. In a criminal trial, the decision whether a contested allegation is true can only be made after the evidence has been tested, and tested thoroughly If you lose the presumption of innocence, or permit convictions on weak evidence, you return to witchcraft trials, or Stalin-type show trials. We don’t want that.

So evidence must be tested. If my client says to me that the allegation is made up, am I to say to him – sorry, I can’t challenge the witness because it may cause upset, even grievous upset? Suppose the allegation was made up – say by a complainant afraid of admitting infidelity to a partner, or of a strict parent who would punish them for a forbidden relationship. Unless the evidence is subjected to rigorous testing, how will the jury find out? Everyone deserves the best defence.

The Barristers’ Code of Conduct provides

303. A barrister:

(a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other…

(b) owes his primary duty as between the lay client and any other person to the lay client and must not permit any other person to limit his discretion as to how the interests of the lay client can best be served.

And

708(g)[a barrister] must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person.

If you possess even a small amount of skill and judgment, it’s not difficult to fulfil your duties under para. 303 without offending against 708(g). If you do, the Judge will stop you at once and you may have to answer a charge of serious professional misconduct and face possible disbarment. It’s often unnecessary to make the direct accusation to a witness that they are lying: ‘show don’t tell’ is usually a far better way to make the point – by bringing out inconsistencies, inaccuracies, contradictions where there should be none – the clues that show the account under scrutiny may not be all that it seems. But sometimes the direct approach is inescapable, and justified.

Prosecutors will on occasion chase defendants up hill and down dale in cross-examination; aggression, sarcasm, accusations of lying are normal, and usually unobjectionable, because the aim is to get to the truth. Or if the truth is irrecoverable, to show at least that what the Court is hearing is not the truth.

A woman takes her life after giving evidence in a grim trial of serious sexual offences; it is of course an appalling tragedy. We do not know what made her do it. If it leads to improvements in the treatment of complainants at all stages of the legal process, then some good may come from it. But lowering standards and restricting the defence in sex cases would be a disaster.

 

 

Down, by Law

Secret trials; the continuing destruction of legal aid; over-regulation of the legal profession; the consequent withering of the Bar as a high quality referral profession for all but the richest; the curtailment of judicial review: the law is becoming more inaccessible to the citizen while the powerful are increasingly indulged and immunised from legal challenge and scrutiny. A product of joined-up thinking, or a thoughtless mess?

Secret trials: In November 2012, the unelected House of Lords came to the rescue and gelded the Security & Justice Bill, voting to give the Judge, not the Minister, the power to decide when national security concerns must force trials to be heard in secret. The government wanted – and maybe still wants – to be the judge in its own case on when it could withhold embarrassing sensitive material from the other parties. The spy services fear that what they do will be revealed in Court. They will be hampered, they say, and our allies will stop trusting us with their secrets, to our disadvantage. Those claims may well have weight, but without fully informed argument on both sides, how would a Judge assess it? As the Binyam Mohamed and continuing Mau Mau cases show, the spies have dark and potentially criminal deeds they would prefer to keep hidden. We would not have learned whether public officials whose salaries we pay have connived at torture and other crimes.

Legal Aid and the Legal Aid Sentencing & Punishment of Offenders Act 2012 (LASPOA). To make cuts of £350M from the Ministry of Justice’s £2bn budget, the Act takes many areas of law out of the ‘scope’ of legal aid: as from April 2013, however poor you are, the State will not pay or contribute to the cost of a lawyer if you need help in cases about housing, debt, private family law, employment, education, immigration, and clinical negligence. In a public ‘conversation’ in July 2012, Kenneth Clarke, then Minister of Justice, said in terms that public funding of these cases was not needed, as a matter of policy: the ‘taxpayer was funding a range of litigation that was not justifiable’, but nevertheless the most vulnerable would continue to receive assistance where it really mattered. That is unlikely to be true, because the other source of state-subsidised advice, the Citizen’s Advice Bureaux, have lost funding as well. It was only lawyers, Clarke maintained, who really stood to lose by the reform. Where legal aid remains available, it is heavily means-tested and the continual cuts in fees paid to civil and criminal lawyers have driven many of the ablest out of publicly funded work. (Perversely, criminal defendants with substantial assets that have been frozen, like Mr Asil Nadir, are not permitted to use them to pay their lawyers, and fall back on legal aid at great expense.) Already, more and more people are representing themselves, and inevitably their cases take longer to hear, delaying and denying justice to those waiting in the queue.

On the other hand, if you are an oligarch, or a rich libel tourist, you are welcome to our Courts and you will be indulged with any number of top Silks, and High Court judgments that run to hundreds of pages. If you are a corporation, you will soon be able to buy your way out of being prosecuted by entering a ‘deferred prosecution agreement’ with the SFO (when the Crime & Courts Bill is enacted), which grants you anonymity – you will confess your wrongdoing, pay up, and go about your business, and no one will know.  If you are a poor member of the public, or even just not very well off, and it’s a trivial matter of a court deciding whether you’re guilty of an offence, or you need to challenge a bureaucratic decision affecting your housing benefit or your employment rights – you will struggle for decent representation.

I still think that representing the poorest and the most despised in society is a good use of my skills as a lawyer. I don’t expect earnings in the Sumption league, but I’d prefer to be allowed to work without the witless interference of the regulators who are now forcing the absurd Quality Assessment Scheme for Advocates (QASA). If you want to know how absurd and destructive QASA is, read what Lord Justice Moses said about it in February 2012. It won’t assure quality: it will mark the beginning of ‘best value tendering’, a race to the bottom for price and quality in the provision of representation in criminal work.

Judicial review: the legal mechanism that permits interested parties to challenge administrative decisions taken by local and central government, and other public bodies. The Court has power to review the process by which the decision was made; not the merits of the decision. Government and public bodies have to act rationally and in accordance with the law. If they don’t, their decisions have to be remade. There’s much well-informed debate about whether the Courts have gone beyond their remit of examining process, and have poached on the government’s patch by re-deciding the merits; and the Human Rights Act is where the argument comes into sharp focus. Jonathan Sumption QC (as he then was) in the 2011 FA Mann Lecture and Sir Stephen Sedley in an article in rebuttal in the London Review of Books staked out the terms of the debate – both well worth reading. Their subtle and nuanced intellectual discussion about the separation of executive, judicial and legislative powers collapsed into the MOJ’s risible Consultation Paper. The calibre of the Paper in general can be measured by the reliance, in two instances, on ‘anecdotal evidence’ for things that the Ministry does not like, and a woeful lack of proper evidence. It has been roundly attacked, but will doubtless become law in a lightly modified form. Hence, fewer opportunities for the Courts to ensure that decisions affecting all or many of us are lawfully made.

Not being a natural conspiracy theorist, I see all of this as a series of hopeless and shortsighted bungles, unified only by the desire of the powerful to grab more powers at the expense of the rest of us, with no clear end in view. True, you can’t make an omelette without breaking eggs; but you can certainly break the eggs without getting the omelette.

2012 in review

The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.

Here’s an excerpt:

4,329 films were submitted to the 2012 Cannes Film Festival. This blog had 17,000 views in 2012. If each view were a film, this blog would power 4 Film Festivals

Click here to see the complete report.

Very Like the Sun

Once again, a story about ‘fat-cat’ legal aid lawyers appears, in The Sun on Sunday and the Sunday Telegraph (9^th December 2012), at the same time as the government faces a more militant profession, and a defeat in the House of Lords by peers – who would not tolerate the Ministry of Justice going back on a promise made during the debates on the Legal Aid Sentencing & Punishment of Offenders Bill in the summer.

When he was Minister of Justice, Kenneth Clarke stated in terms that public money was being used to fund litigation which it should not be funding – the policy was to stop it. If you can’t pay for a lawyer, represent yourself.  The concession that the government tried to withdraw until the House of Lords stopped them in December was to retain legal aid in a small number of Tribunal appeals in which there was a point of law to be argued. Points of law are not for the faint-hearted. If you have been sacked, or had your benefits withdrawn, and you take your case to a Tribunal, you have a major job on your hands on any reckoning. The other side will probably be represented. You won’t. You may not know there is a point of law in your favour. If the government manages to reverse the House of Lords in the Commons, you will not get legal aid for a lawyer to tell you.

That the story appears in a Murdoch tabloid and a traditionally Tory paper suggests a resumption of the unholy alliance between his media and the government that Lord Justice Leveson’s inquiry shone a dim light on. (It’s also worth remembering that News International attempted to get out of their contract with Andy Coulson to pay his legal fees in the criminal proceedings that he faces – had they succeeded, he would have been eligible for legal aid, so there’s a whiff of double-standards about the whole thing.) Whether the story was planted, or whether the Sun and Telegraph just happen to share the government’s contempt for legal aid lawyers, the truth is that this is a much-used diversionary tactic, to distract public attention away from this government’s policy of destruction of legal aid.

They are disenfranchising numberless individuals from access to justice. Access to justice needs access to lawyers – good ones, who know what they are doing.

Clarke also claimed that it was only the lawyers who were complaining, and only because the cuts would hurt their livelihoods. The first part may be true – but that is because we see what is happening, and others don’t. The second is a smear. It’s true that my livelihood will be affected, but I can see beyond that. The Criminal Bar sets itself high standards in competence and ethics, and lives up to them as well as any profession can. We have those standards for a reason – to ensure that the public interest is served in the critically important arena of criminal litigation. For a tiny number, the receipts in a given year are high – but that may be because it has taken years for the Legal Services Commission to pay up on old cases. For many, and especially beginners, the pay is derisory; for most, it is on the modest side of reasonable. But unless the pay is reasonable, the best and brightest will stop coming. When the fourth and fifth raters take over, those high standards will go. Guilty people will walk free and people will be in prison who should not be.

So don’t be fooled by the Sun on Sunday and its friends in government. They resort to this propaganda because they have no answer to the justified protests about what they have done.

Cruel Britannia by Ian Cobain

Anyone wanting an outline of the bi-polar disorder that affects official thinking about torture in particular and human rights in general should read Ian Cobain’s Cruel Britannia (Portobello Books, November 2012), and cross-refer to Lord Bingham’s The Rule of Law (Penguin 2005).

Kenneth Clarke, the last Minister of Justice, is still pushing the Security & Justice Bill. So far, he has failed to persuade Parliament that secret trials, in which the government alone get to decide what evidence should be made public, are a good idea. The spy services want their dark deeds kept dark. They dread being challenged with accusations of criminal or civil liability. Even if the government retreat a little on the Bill, there is likely to be more not less secrecy in legal proceedings that are deemed sensitive. Clarke’s successor, Chris Grayling, thinks the UK should seriously contemplate withdrawing altogether from the European Convention of Human Rights.

The idea that citizens have human rights that they can assert against public authorities in Court is, bizarrely, regarded as something foreign and disreputable. Very few politicians have stood up to defend the Human Rights Act, whose main objective was to allow UK citizens to use UK Courts to assert rights they had anyway, rather than go to Strasbourg. Now the heat is also on Judicial Review, the precious and entirely home-grown legal challenge to administrative decisions – not on their merits, but on the narrower basis that the decision-makers have failed to follow proper and lawful procedures. All the while, the continuing assault on legal aid denies poor citizens access to the law, which has grown into a forest of rules and regulations in so many areas that touch our lives, so that anyone entering it without expert guidance should abandon all hope.

In all these policies, and especially in the doublethink around torture, we can see what the late Bernard Williams condemned as ‘Government House utilitarianism’ in action. He used the term to characterise an account of morality given by the nineteenth philosopher Henry Sidgwick in his The Method Of Ethics. Sidgwick asked  ‘whether exceptions should be permitted from ordinary rules on Utilitarian principles’. He thought society was made up of ‘enlightened utilitarians’, an elite minority, who could live good lives by ‘refined and complicated’ rules with numerous exceptions; and everyone else, for whom this more sophisticated system ‘would be dangerous’. He said that

‘… on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’

Williams saw this as little more than organised hypocrisy, practised brutally by the British colonial elite in the Empire, for their own advantage.

Ian Cobain in Cruel Britannia shows that the British Government operated a policy of torture on its German enemies during and after World War II, and later in the colonial wars that ended the Empire in Cyprus, Palestine, Kenya, Malaya, Aden, and in Northern Ireland; and then in Iraq, and at arm’s length (but nonetheless) in the Americans’ so-called war on terror, with connivance at kidnapping for trial in the USA (euphemised to ‘rendition’) and the shipping of detainees for interrogation by the torture squads of numerous unsavoury regimes around the world (‘extraordinary rendition’). With forensic skills of a high order, through official records and by talking to witnesses and survivors, Cobain has traced the genealogy of torture methods, and of the men who twisted the minds and bodies of their prisoners, from 1945 to the present. The same methods of torture, and the same men and their pupils, reappear over and over again, in every location where Britain has used torture. The tortured had minimal redress. Government House routinely lied and destroyed evidence. It took 50 years for the Foreign Office to discover an archive from Kenya which they foolishly forgot they had (or they would surely have destroyed it too), and it took a Court order for them to disclose it to the elderly men and women whom British officials had starved, castrated, raped, and tortured in other ways that would have charmed the SS. Cobain’s account is not ancient history. We do not know what the Government gets up to in secret now, and lies about – in the name of its own utilitarian morality: the rest of us are not to be trusted with the truth about its view of right and wrong, and where its and our interests lie. We are to be discouraged from finding out.

I want it to be normal for Ministers and the people who work for them to be held to account, not just every few years at elections, but while they are in power. I don’t want to rely only on the brilliance of an Ian Cobain to tell me what has been done in my name. Government should operate on the basis that I and everyone else can readily assert our rights not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3 of the European Convention of Human Rights); not to be killed (Article 2); to have a family and private life that is not interfered with for no very good reason (Article 8); to express myself freely (Article 10); to practise my religion (Article 11); not to be locked up without due process of law (Article 5); to have a fair trial (Article 6). Having rights protected by law is a modest demand and, sadly, a modest protection against the State’s desire to get its own way at any price. But at least it is better than not having rights.

English law regards torture as ‘an unqualified evil’: so said Lord Brown in the famous 2005 case A and others v Secretary of State for the Home Department (No 2). But he was not immune from the bi-polarity which afflicts the subject. He said that the executive:

…has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. (emphasis added)

 Even Lord Bingham saw a distinction between the use in Court of evidence obtained by torture (never), and its value for intelligence purposes (as ‘duty’ required). In the same case, he said:

 I am prepared to accept…that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.

So even the most forceful contemporary defender of Rule of Law principles found that the fruits of torture have a lawful use, even if torture itself must be condemned. Banning torture-evidence in Court – where the public would find out – and the approval of its use for intelligence purposes – in secret – must have given the torturers and their masters in Government House great comfort. The proposed limitations on our ability to use the law to uncover secret wrongdoing mean that Ian Cobain’s book is likely to need regular updating.