Huge pay rises for judges may stave off disaster but where will the judges come from in 10 years time?
The Top Salaries Review Body has announced that judges should receive a stonking pay rise. High Court judges – who sit near the pinnacle of the profession – should get an extra 32%, which works out at about another £60,000 per year, while middle-ranking, Circuit judges, who sit in most Crown and County Courts should get a smaller but still very helpful 22%, taking their salaries to a basic £165,000.
Some years ago Barristerblogger decided that he had slogged around the criminal courts long enough. He had imbibed enough of the elixir of wisdom that comes from prosecuting burglars in Bournemouth, mitigating the transgressions of sex mini-beasts in Swindon, and eating army packed-lunches in military courts from Bulford to Bielefeld. More to the point, with no pension provision beyond a mis-sold critical illness policy that would, at best, pay for 2 weeks off work if I was diagnosed with terminal pancreatic cancer, the time had come to rise above the blood and dust of the arena, to don a purple robe and to accept elevation to the judicial bench.
There were, of course, one or two preliminary details to be sorted out. The first of these was to get in some practice as a Recorder, a junior judge who is temporarily vested with most of the powers of a Circuit Judge and most of the privileges too, apart from the right to wear purple in court or, of course, the salary or (at that time) the pension.
Until not that long ago judicial appointments were done rather differently from the way they are done today. Things called “soundings” were taken, old-school ties adjusted and subtle hints dropped by friendly judges that So-and-So was a good chap (or rarely a chapess) whose time had come; and he would be quietly “sounded out.” If he showed interest – “Haha! Me? A judge? I’m sure no-one would ever think of making me a judge” – a few discrete background checks would be made, which went something like this:
“Know anything about Higgins?”
“He’s very sound. Wasn’t in my house, but a bloody good scrum-half.”
“What’s his practice like?”
“Prosecutes a lot, safe pair of hands.”
“No, happily married.”
“No more than normal.”
Then, Hey Presto, Higgins became a recorder. From there, if the presiding judge liked him and he was clever, lucky or cunning enough not to be appealed too often, a permanent appointment might follow and with it the coveted purple dressing-gown and almost complete security of tenure until it was time to close the judicial notebook for the last time and gratefully accept the solid gold pension. There was a certain amount to be said for such a system if you possessed, or at least were entitled to wear, an old school tie – if you weren’t a poofter of course, or a woman – but it can’t be denied that it had its flaws.
The modern system is certainly fairer, and on the whole I think it has produced better judges, although that may simply be that as one gets older the “old darlings” (as Rumpole called them) cease to be terrifying and start to become at first contemporaries, and then, gradually, terrifyingly brilliant young upstarts.
It begins with a form, in which you are asked to explain in excruciating detail “why I would make a brilliant judge,” although not quite in those words. It is not enough to say, diffidently, “oh, I don’t know, I think I could make a fist of it, but I would say that wouldn’t I?” Instead you have to blow your own trumpet. And it’s not enough to just blow it loudly, you have to demonstrate examples of how “decisive,” “independent,” “authoritative” and generally Solomonaic you are in your everyday life. To adopt the metaphor slightly, you have to praise yourself not just on the loud cymbals but also on the well-tuned cymbals.
This was not so easy, not least because I find it hard to make my mind up about anything and have never held any positions of authority at all, apart from captaining the chambers cricket team to a series of defeats so heavy that the once popular annual fixture eventually had to be cancelled. This was the first hint that the application process wasn’t going to be quite such a walk in the park. Days went by, then weeks while I racked my memory to think of a single example of where I had ever been more than averagely decisive – which obviously wouldn’t be good enough – and the more I tried to think of one, the less decisive I felt. All I could think of was that I was usually very quick to select items from the menu in restaurants, but that was hardly the sort of thing they were looking for.
You had to demonstrate “independence.” What did that mean? And then there was something about working in a team. Why would a judge work in a team? Surely, when you were on the bench your word was the law, never mind what any team thought. And how did you reconcile the two qualities anyway? The more you emphasised your independence the less you seemed like a team player, and vice versa.
Anyway, you get the idea. It’s painful and embarrassing and you don’t really want to put yourself through it unless you really, really want to be a judge.
The next stage was a written exam. You didn’t need to know any law as such: instead you are given an imaginary statute and rule book, and then asked to write judgments, under time pressure, on various imaginary scenarios, applying the imaginary law.
Somehow I bumbled my way through that and a week or two later the invitation arrived to go to a smart Westminster address for a day of role playing and interviewing.
The role playing involved a company of ham actors playing litigants, lawyers and witnesses, all of whom were doing their utmost to disrupt the quiet authority of the law that us judicial candidates were told to encapsulate. My court-room swiftly became an anarchic cockpit, as actors playing a diverse crowd of dissatisfied defendants, weeping complainants and incompetent lawyers shouted and swore at each other and at me, while a Lord Justice of Appeal looked on with thinly disguised contempt as I dismally failed to “show patience and courtesy” and even less to “assert authority when challenged.” After a few minutes my patience and courtesy had evaporated along with any vestigial authority, and all I could think of was to demand that the usher arrest the key troublemakers, which of course would have been neither correct nor even legal, but by then I was beyond caring. I was like a supply teacher being tortured by Year 9. Fortunately, the Lord Justice had seen enough and intervened to spare me further punishment. The interview that followed was another horror show, but we do not need to go there.
So you will understand, that although not cut out for judicial preferment, I have nothing but the greatest respect for those who are.
Unfortunately the very best ones are increasingly refusing to do the job for the pay on offer. In the most recent round of recruitment for High Court judges about one third of the positions was left unfilled, because the Judicial Appointments Commission could not find candidates of sufficiently high calibre. What’s more, many of the judges who were appointed wouldn’t have made the grade in previous years. The Commission grades appointable candidates as A (“outstanding”), B (“strong”) or C (“acceptable”), although I don’t think they are told which category they fall into (I can guess in my case). Until 2015 all new High Court Judges had been A class; since then some Bs have been appointed. Amongst the Circuit judges, the Commission says that it has already started appointing C grade candidates: 19 in 2016, rising to 43 out of 96 in the last round of recruitment. Moreover, many of the latest Circuit Judge appointments have been from District Judges who previously sat in the Magistrates Courts, which of course has itself weakened those courts. Before long some of us Ds (“poor”) and Es (“embarrassingly bad”) might have to be appointed, simply to keep the courts open at all, and while that may be good news for long-in-the-tooth supply-grade hacks who haven’t been able to afford to fund a pension, it’s not such good news for those who want to get justice in the courts.
Judges, or most of them anyway, deserve good pay for the extremely difficult work that they do. There is also, of course, a public interest in attracting the best talent with a high salary and other rewards, otherwise those able to earn good money as barristers and solicitors will simply not bother to apply.
So it is a terrible dilemma. There is no getting away from it: 32% (for the High Court Judges) or 22% (for the Circuit Judges) is a huge increase. Politically, it could not come at a more difficult time for the Government, just after Theresa May foolishly announced the “end of austerity” and just as Esther McVey admitted that some of the poorest people in the country are about to find their income reduced with the introduction of Universal Credit.
It will split the legal profession. Some will say – without even the merest whiff of self-interest, of course – that we need to pay top dollar to attract the best candidates. Other criminal barristers and solicitors, on the other hand, many of whom struggle to get by on £20,000 or £30,000 a year with huge debts to finance, will think that giving large pay increases to already comfortably-off judges is not the best use of scarce resources.
The criminal bar and the profession of criminal solicitor is, almost literally, dying on its feet. In the whole of mid-Wales there are, for example, (or were in 2017) just 11 criminal solicitors, most of whom were over 50, and over England and Wales as a whole the mean average age of duty solicitors is 47, and increasing every year, as their income continues to decline.
While judges ponder whether they will receive the full 32% increase, few criminal barristers, who have seen a 40% reduction in income from criminal legal aid in the last decade, are likely to be very sympathetic, even as the Government continues to squabble over exactly when a proposed increase of 1% (yes, 1%, not 11% or 21% or 31%) in their fees is to be implemented.
The criminal bar and the solicitors profession will probably not die altogether. Some barristers and solicitors will continue to work for pitifully low rates of pay. A few may be able to make a reasonable living living from privately paying clients. The independently wealthy will probably continue to represent criminal clients, because it can be a fascinating job. But do we really want to go back to the days when membership of the criminal bar, and the pool from which future criminal judges are recruited, is for practical purposes only open to the rich? And although I write about the criminal law because that is the area I understand best, barristers and solicitors acting for the poor in other areas of the law have seen their own, equally catastrophic, cuts in income.
Huge pay increases for judges may stave off disaster for a year or two, but they will do nothing to attract new talent into the law. Unless the government somehow finds the money to reverse the disastrous cuts in legal aid that the profession has endured over the last ten years, the result ten years from today will be a criminal judiciary full of independently wealthy, hideously over-paid, and over-promoted, Hooray Henries and Tim Nice But Dims. I’m not sure that overall that will be a good thing.
Freddie Pargetter got off lightly. He has no reasonable prospects of appealing his 12 month sentence
Regina v. Frederick Pargetter
APPEAL AGAINST SENTENCE
Assistance to the police
It has been the long-standing practice of the courts to recognise by a further discount of sentence the help given, and expected to be given, to the authorities in the investigation, detection, suppression and prosecution of serious crime: see, for example, Sinfield (1981) 3 Cr.App.R.(S.) 258 , King (1985) 7 Cr.App.R.(S.) 227 , Sivan (1988) 10 Cr.App.R.(S.) 282 . The extent of the discount will ordinarily depend on the value of the help given and expected to be given. Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal. If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial. Hence little or no credit will be given for the supply of a mass of information which is worthless or virtually so, but the greater the supply of good quality information the greater in the ordinary way the discount will be. Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed. For all these purposes, account will be taken of help given and reasonably expected to be given in the future.
(a) The category of “harm” (ranging from 1 to 4, with 1 being the most serious); and
(b) The “culpability” determined by Mr Pargetter’s role.
“I must take into account Mr Pargetter’s privileged background. Which would suggest he dealt in drugs simply because he could. He is not someone who needed to do it for financial gain or any other purpose which I am able to discern. It was entirely his own choice. Having dealt with a number of such cases previously, I have to say that I find this form of drug dealing the most inexcusable. With no purpose other than self-gratification, it is both reckless and uncaring of the consequences for its victims.”
A suspended sentence?
Pump Court Chambers Matthew Scott
October 1st 2018
The post Freddie Pargetter got off lightly. He has no reasonable prospects of appealing his 12 month sentence appeared first on BarristerBlogger.
An unusual trial took place in Swansea last week. Forty-eight year old David Hampson was convicted of breaching a criminal behaviour order and sentenced to three and a half years imprisonment. Mr Hampson’s peculiar modus operandi is to stand in the middle of a busy Swansea street and stop the traffic. It is annoying but not terribly serious behaviour. But he has been doing it since 2014. For his first offence he was given a conditional discharge, a magisterial slap on the wrist. He immediately re-offended again, and then again, and in due course was convicted in the Crown Court of the more serious offence of public nuisance. In an attempt to stop him once and for all, he was imprisoned and made the subject of a criminal behaviour order. This meant that if he obstructed traffic again he would face a possible maximum sentence of 5 years imprisonment. It made not the slightest difference. As soon as he was released he proceeded to stop the traffic again, “draping himself over a Royal Mail van with his arms outstretched and his face pressed up against the windscreen.”
In all, Mr Hampson has been convicted of carrying out this strange behaviour 8 times, starting in 2014. He has never offered any explanation, either while blocking the road, or during his various trials, all of which have been conducted without him offering a word of defence, explanation or mitigation. Even when he is in prison he very rarely says anything.
It seems very likely that there are some psychiatric issues going on, and in fact in 2016, after his seventh conviction, the court ordered him to be assessed by two psychiatrists. S.36 of the Mental Health Act 1983 allows anyone convicted of an offence to be compulsorily detained and treated in hospital, but only if two doctors agree that he is suffering from a mental disorder. In this case, one doctor thought he was suffering from schizophrenia and recommended treatment. The other thought he was just an attention seeker. As a result, the judge was unable to make a hospital order.
Of course, the problem is made more unfathomable by Mr Hampson’s reluctance to speak.
Courts these days are much more used to defendants who are “unfit to plead” because some mental impairment than with those who simply stand in silence. The test of “unfitness to plead” is in fact very restrictive, and many profoundly unwell and even psychotic defendants are nevertheless legally “fit to plead.” A well-known example of someone who was unfit to plead was Greville Janner, who was completely unable to understand what was going on because of dementia. Again, a finding of unfitness to plead requires the evidence of two doctors, and (since 1992) the issue is determined by a judge alone, without a jury.
A simple refusal to speak at all, even to enter a plea, is very much rarer.
It created a problem for the common law: if a defendant refused to speak, then he could not plead; and if he could not plead, a trial could not start and he could not be convicted. On the face of it that meant a guilty defendant could escape justice merely by keeping his mouth shut.
In some circles it is the done thing to hark back to a rather vaguely defined golden age, when proudly independent English judges always stood up for the individual against the might of the state. Michael Gove, for example, the former Justice Secretary, used to speak – probably still does – romantically of “traditional British liberties” created and defended by the common law. Roger Scruton has talked of our common law liberties being eroded by the European Convention on Human Rights.
“the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it.”
And of course, there is some truth in this rosy picture. But it is not the whole truth.
Generations of English lawyers have been brought up, for example, with the rather complacent belief that English common law, unlike inquisitorial continental law, was unsullied by torture. Sir John Fortescue, Chief Justice under Henry VI wrote in his De Laudibus Legum Angliae:
“The law of France prefers the accused to be racked with tortures until they themselves profess their guilt, than to proceed by witnesses who are often instigated to perjury by wicked passions and sometimes by the insubordination of evil persons. By such precaution and disingenuousness, criminals and suspected criminals are afflicted with so many kinds of tortures in that kingdom that the pen scorns to put them into writing.”1
Subsequent English jurists like Sir Thomas Smith, Sir Edward Coke and Sir James Stephens all liked to emphasise that torture was a nasty foreign practice, quite alien to the English. That was always a half-truth. If we leave aside – for a moment – pre-trial interrogations, Englishmen delighted as much as foreigners in thinking up imaginative and painful ways to punish and execute convicted felons.
Petty criminals were ordered to stand in the pillory or the stocks, where they would be tortured or left alone depending on the public mood. Witches and heretics were burned at the stake, poisoners were boiled alive, traitors hanged, drawn and quartered, and for many years travellers were liable to come across the foul smelling bodies of common criminals who had been slowly hanged and then suspended in iron gibbets, swinging and clanking in the wind.
And even the supposed common law prohibition against torturing prisoners to extract a confession was sometimes ignored, not least by those who most loudly proclaimed its existence. Coke, for example, was enthusiastic in his use of the rack to torture suspected Jesuit priests; and Guy Fawkes and his fellow conspirators were horribly tortured, at Coke’s direction, to extract information and confessions. He even insisted on making the already unspeakably cruel punishment of hanging, drawing and quartering worse by ordering that the plotters be dragged along the ground by horses to their execution.
What, then, was the common law solution to a defendant charged with a felony standing, like Mr Hampson, mute at the bar?
It was neat, though it would be stretching it to describe it as tidy. The mute prisoner would be subjected to “peine forte et dure.” He would be laid on the ground and crushed with heavy weights until either he agreed to enter a plea or he died. It was, according to Blackstone “a terrible sentence,” but it was quite different from the rack, and a punishment:
“which the law has purposely ordained to be exquisitely severe, that by very means it might rarely be put into execution.”
It was never a very common procedure, for those very reasons. Even so, against the obvious disadvantage of a slow and agonising death, there were some advantages to the defendant, and more particularly to his heirs, in choosing to be crushed to death rather than standing trial. Since there was no conviction, the defendant’s property would not be forfeit to the state. For others, refusing to recognise the jurisdiction of the court allowed them to make a powerful political or religious point.
If you go to the Bar Convent in York you can ask to see Britain’s most grisly religious and legal relic: the hand of Margaret Clitherow, who was pressed to death in 1586. It is displayed inside a glass case and normally kept locked away, but it will be brought out if you ask the nuns politely.
Clitherow – known to Catholics since 1929 as St Margaret of York – had been charged under the 1585 “Act against Jesuites Semynairie Priestes and such other like disobedient Persons.”
It required all “Romish ordained Jesuits &c” [“any Jesuit Seminarie Priest Deacon or any Religious or Ecclesiastical Person whatsoever”]to “leave the realm within Forty Days” (if the “Winde Weather and Passage shall serve for the same”). Once the forty day period was over, any remaining Jesuits were guilty of High Treason and anyone “who shall wittingly and willingly receive relieve comfort aide or maintayne” such a priest was guilty of a felony, for which the punishment was death.
Interestingly, the Act did not apply to all Catholic priests, but only to those:
“made or ordeyned out of the Realme of Englande or other Her Highnesse Dominions, or within any of Her Majestie’s Realms or Dominions,”
At least to me, the statute seems to to be full of similar surprising inconsistencies, and ambiguities some of which might pose problems for a conscientious judge.
The chief witness against Clitherow was a 12 year old Flemish boy who had been found in her house, sharing lessons with her children.2
In a procedure that passed for Achieving Best Evidence in Elizabethan England, the wretched boy was stripped naked by the Sheriff’s officers and “with rods threatened … unless he would tell … all that they asked.” The terrified child revealed the secret priest’s chamber in Clitherow’s house, which contained Popish vestments books and altar breads. Had I been prosecuting Clitherow, I might have been a little worried that this – though useful circumstantial evidence – fell short of establishing that any Priest seen by the boy was (as the Act required) “made or ordeyned out of the Realme of England etc.”
It was, though, enough for Clitherow to be arrested. She was paraded through the city and even dunked in the freezing waters of the Ouse with a recently erected ducking stool, before being locked, wet and shivering, in the Castle.
Eventually she was brought up before the court of Kings Bench that was to try her. As with today’s Administrative Court it consisted of two judges: Mr Justice Clench and the more junior Mr Justice Francis Rodes. Clench, “a sad and serious man,” seems, by the not terribly high standards of the time, to have been a relatively merciful judge. The same could not be said for Rodes. Also sitting on the bench were members of the City Council, who had little regard for the law and were determined to see Clitherow executed.
A few months earlier the same two judges had tried a man called Bickerdike on charges of “indiscreet speech and aiding a priest.” To Rodes’s disgust, the jury acquitted him. Soon afterwards he was again put on trial, apparently on almost exactly the same charges, but this time framed as High Treason. Rodes ensured that the jury did not repeat the previous jury’s mistake. He directed them, in terms that today’s Court of Appeal would be likely to deprecate:
“This traitor had too favourable and too scrupulous a jury in the town, but I trust you will look otherwise to him, being the Queen’s enemy and a notorious traitor.”
[An aside: How today’s Court of Appeal might decide the case:
“The learned judge was of course entitled to comment, and to do so if necessary in forthright terms, and this Court fully understands the pressures under which trial judges are placed when they are required to try cases of heresy. Nevertheless, it would have been better if this particular observation had been expressed in more moderate language. Furthermore, although evidence of the appellant’s previous acquittal on charges of aiding a priest was clearly relevant and correctly admitted, see R. v. Z  UKHL 68, it would have been better had the learned judge given the jury a somewhat fuller direction about the proper uses to which such evidence could be put. Nevertheless, our task is to step back and ask ourselves whether overall the conviction can be regarded as unsafe. The judge carefully identified the issues for the jury’s consideration. The prosecution case was overwhelming and in all other respects the judge is to be commended on conducting a difficult and demanding trial with impeccable fairness. The conviction is safe. We therefore have no hesitation in dismissing this appeal.”]
Even at the time there were many who thought there was some injustice in being tried twice on essentially the same charge, but Rodes brushed such concerns aside:
“We are not sent hither to scan and dispute the statutes,but to give judgment against offenders.”
It would not be a good line to take at an interview with the woolly liberals who sit on today’s Judicial Appointments Commission, but it was a judicial philosophy that proved personally lucrative. Rodes amassed a huge fortune and used it to build himself a magnificent house at Barlborough, near Chesterfield. It is now a Jesuit school.
When Clitherow appeared before the two judges she refused to plead. Clench entreated her to “put yourself upon the country” (in other words to plead not guilty and have a trial). She continued to refuse to enter a plea, probably to save witnesses, especially her own children, the horror of giving evidence against her.
Clench almost begged her:
“Good woman, consider well what you do; if you refuse to be tried by the country, you make yourself guilty and accessory to your own death, for we cannot try you but by order of law. You need not fear this kind of trial, for I think the country cannot find you guilty upon the slender evidence of one child.”
Perhaps he was sincere in his advice that she stood a chance if she stood trial. Perhaps she might have been lucky enough to encounter another favourable and scrupulous jury. Even if Rodes was disinclined to “scan and dispute the statute,” perhaps Clench would have done so. It is difficult to see, for example, how the prosecution could prove that any priest in the house had been “ordeyned out of the Realme of England.” Certainly he knew, and she knew, that she would almost certainly be executed in the most horrible way if she refused to plead.
The case was adjourned till the following morning. Overnight she was visited by a Puritan preacher, Parson Wigginton, who tried without success to get her to change her mind.
The following morning she again refused to plead, observing:
“I think you have no witness against me but children, which with an apple and a rod you may cause to say what you will.”
By now both judges were demonstrating their impatience:
“It is plain that you have had priests in your house by these things which are found, all traitors, rascals and deceivers of the Queen’s subjects,” observed Judge Rodes.
Parson Wigginton stood up and told the judges “you ought not to judge her to die upon this slender witness of a boy.” Clench was still inclined to give her a chance to think things over but Rodes had a more modern approach to case management:
“Brother Clench, you are too merciful in these causes,” he scolded,
“ Why stand you all the day about this naughty, wilful woman? Let us dispatch her” .
This seemed to do the trick, and the senior judge was finally persuaded to pronounce the awful common law procedure reserved for those who refused to plead:
“You must return from whence you came, and there, in the lowest part of the prison, be stripped naked, laid on your back next to the ground, and as much weight laid upon you as you are able to bear, and so continue three days without any food except a little barley bread and puddle water, and the third day to be pressed to death, your hands and feet tied to posts, and a sharp stone under your back”.
Clitherow replied that she “thanked God heartily” for this punishment. She was resigned to her fate, but still there was a chance that she might escape death: it was believed that she might be pregnant. Clench called for a jury of matrons – at his request, four women who knew her well – to be empanelled to decide the issue.
The matrons reported to Clench that she probably was with child. In normal circumstances that might have saved her, or at least have bought time until the baby was born.
The matrons’ verdict seems to have outraged both Rodes J. and most of the Councillors. Clench, Pilate-like, still refused personally to authorise the execution, and stayed it for a few days. After that he delegated the final decision to the Council. It is possible that he hoped that in the intervening period she might still agree to plead.
Despite a constant stream of visitors urging her to change her mind, she remained steadfast, telling them:
“as willingly as ever I put my paps to my children’s mouths, neither desire I to have my death deferred.”
The Council decided that, pregnant or not, she must die.
Her execution took place at the toll booth on Ouse Bridge. She faced it with extraordinary courage, showing more dismay at the prospect of public nakedness than of death.
She asked at least to be pressed in a linen smock, which she had sewed herself for the purpose. Sheriff Fawcett who was charged with carrying out the sentence refused even that small act of mercy, demanding that she remove all her clothes: “you must die naked, as judgment was pronounced against you,” he explained. She was made to lie on the ground. A door from her own house was then laid on her chest and four men hired for the occasion piled weights on it. She tried to cover her face with her hands: Fawcett ordered them tied. As Gerard Manley Hopkins put it in his fragmentary poem:
She held her hands to, like in prayer;
They had them out and laid them wide
(Just like Jesus crucified);
A sharp stone “the size of a man’s hand” was placed underneath her back and she was dead within 15 minutes, instead of the three days that the sentence envisaged. Fawcett had arranged for her body to be dumped on the town dung-heap. It was recovered some weeks later and her hand was cut off as a relic, and her body secretly buried.
The peine forte et dure remained the common law solution to those refusing to plead for a further 200 years after Clitherow’s death. Along with the rest of the common law it crossed the Atlantic, and was used in 1692 at the height of the Salem witch trials in Massachusetts.
In England the practice continued well into the eighteenth century, although most of those inclined to stand mute became disinclined once the judge ordered that their thumbs be tied and they be taken to Newgate’s “press room.”3 One who persevered in 1721 was a highwayman called Spiggot. The law at that time was that a person apprehending a highwayman was entitled to keep his horse and furniture. Spiggot refused to plead unless his horse was returned to him. As a result, he was stripped (in a demonstration of how much the common law had developed in the preceding 150 years, unlike Clitherow he was permitted “something to cover his privy members”) and laid face up, tied and spread-eagled on the floor of Newgate Gaol. He endured half an hour of torture, with 350 lbs of weight laid on him. When a further 50 lbs was added he “altr’d his mind and said he would Plead.” He was duly convicted (along with his Co-Defendant who had capitulated at the sight of the Press Room). Both were then hanged.
One of the very few who endured the Press until death was a man called John Weekes, who in 1735 was charged with murdering a young woman near Petworth. He was brought to Lewes Assizes, where he “pretended to be dumb … even though 4 or 5 persons swore they heard him speak,” suggesting that some sort of trial to determine if his silence was voluntary was held, although the Gentleman’s Magazine report is frustratingly vague about it. He was taken to Horsham Gaol and, “gradually press’d to death, continuing obstinately dumb until the last Moment.” Quite how gradual the process was is left to the imagination of the Gentlemen reading the Magazine.
The press was finally abolished in 1772 when Parliament passed the Act for the more effectual proceeding against Persons standing mute on their arraignment for Felony or Piracy. It provided that anyone refusing to plead would simply be treated as guilty. Then, in 1827 the position was reversed: a defendant standing “mute of malice” would be treated as having entered a plea of Not Guilty. Essentially this is the law today.
What then of Swansea’s mysterious Mr Hampson? A jury was sworn to decide if he was mute of malice or mute by visitation of God. As with John Weekes a number of witnesses swore that they had heard him speak: a prison officer said he had asked for a battery for his TV remote control, and a police officer that he had asked for a cup of tea. It took the jury just 9 minutes to find him “mute of malice.” The rest of his trial was then quickly concluded, with the same jury convicting him of breaching his criminal behaviour order.
Three and a half years? Opinions will differ, but to me this seems excessive. He endangers no-one but himself and is a nuisance to society, but hardly a menace. I would be astonished if he were not more in need of psychiatric treatment than punishment.
We may have moved on from the gallows and the press, but our criminal justice system is still a very imperfect thing.
1For a fascinating discussion of the history torture in English law see Danny Friedman Torture and the common law  EHRLR 180
2For a fuller account of the trial and execution of Margaret Clitherow see Katharine M. Longley The “Trial” of Margaret Clitherow Ampelforth Journal (1960) 75 p.335, much of which derives from a contemporary hagiography by Fr John Mush A True Report of the Life and Marterdom of Mrs Margaret Clitherow
3See Andrea McKenzie “This Death some Strong and Stout Hearted Man Doth Choose” The Practice of peine forte et dure in Seventeenth and Eighteenth Century England (2005) Law and History Review 279.
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A 28 year old Norfolk man called Marcus J Ball is trying to bring a crowd-funded private prosecution against Boris Johnson. He says that Mr Johnson lied while campaigning for the Leave campaign in the Referendum. Since he was at the time an MP (and until 9th May 2016 also Mayor of London) he was the holder of a public office. Mr Ball believes that lies told in the campaign mean that he has committed the offence of “misconduct in public office,” a serious criminal offence carrying an unlimited fine and potentially life imprisonment.
You can see his video here, in which he introduces himself as a “private prosecutor” and explains his case in more detail. Some will find it inspiring and rush to contribute to his prosecution fund. Others – and not just Boris Johnson political supporters – may be somewhat irritated by Mr Ball’s rather gloating tone, which they may find rather unseemly in a prosecutor.
He estimates the case will cost £2M.
Mr Ball has left East Anglia and moved to London in order to pursue his dream. His mission, he says is:
“… to set a legal precedent in the UK common law that prevents political leaders from lying to the public in future.”
So far, he says has raised over £145,000. Some of this is used to pay himself a salary, some has been used to pay the lawyers: one firm of solicitors and two Queen’s Counsel, to advise him. The first, David Perry QC, advised him that his case did not stand much chance, so he asked for a second opinion from another, Lewis Power QC, who has, apparently, advised that “there are reasonable prospects for convicting Boris Johnson.”
However clever his arguments, and he has put together a superficially persausive case, I don’t think for a moment that he will succeed, and more importantly I think he is seriously wrong to bring the case at all.
To explain why, we need to look at the case and the law in more detail.
First, an outline of the facts, as Mr Ball sees them.
Boris Johnson held public office during the referendum campaign which began on 15th April 2016. He was Mayor of London until 9th May, and an MP throughout the whole period. There is no question that these were “public offices.”
Next, Mr Ball says he lied during the campaign. With the instincts of a good prosecutor he is concentrating on the simple and memorable statement that “we send £350M a week to the EU.” It was not true, he says, because it failed to take account of the “Fontainbleau abatement,” the agreement whereby Britain’s notional gross annual payment of £18B (or about £350M a week) was reduced by £5B to £13B (about £250M a week). Importantly, says Mr Ball, the £5M was not a sum sent back from Brussels (a rebate), it was never sent at all (an abatement). What’s more, given the number of times the £350M figure was corrected, Mr Johnson must have known it was not true. So it was, he says, a plain and simple lie to say that £350M a week was sent to the EU.
Clearly it was a lie about a very important issue, and dishonesty of that sort by someone holding public office constitutes, he says, the offence of “misconduct in public office.”
These are uncharted legal waters. I am not aware of any case in the democratic world in which a politician has faced prosecution for lying about a matter of public policy, although plenty have done so.
So we need to have a more careful look at the law.
Misconduct in public office is a common law offence. That means its ingredients are not set out in any Act of Parliament, they must be deduced from case-law. There is nothing wrong with that in itself. There are still quite a few common law crimes, notably murder, some types of manslaughter and perverting the course of justice. It does not necessarily mean that their definition is any less clear than that of statutory crimes.
Nevertheless, it has not received anything like the attention from the higher courts that crimes like murder have done. Indeed, as a recent Law Commission consultation paper pointed out, the offence “fell largely into disuse between the late 18th century and the beginning of the 21st.” The result is that the ambit and reach of the offence are distinctly fuzzy around the edges. As the Law Commission puts it:
“The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.”
That said, it has received quite a lot of attention in recent years (it was, for example, much used, with results that can politely be called mixed, in the Operation Elveden trials arising out of allegedly corrupt relationships between News International journalists and police officers). Its scope was considered in most detail in a case unmemorably called Attorney-General’s reference (No.3 of 2003)  EWCA Crim. 868.
The facts of the Attorney-General’s reference were far removed from an allegation of a politician lying. They arose out of an allegation that police officers had failed in their public duty by “wilfully failing to take reasonable and proper care of an arrested person in police custody.” In fact the arrested person had died whilst in custody and the officers had also faced a manslaughter charge. The trial judge had ruled that they had no case to answer on either charge, but the Attorney-General brought the case before the Court of Appeal to ask for a more detailed and authoritative ruling on what the crime of misconduct in public office actually entailed. Somewhat reluctantly – because judges are generally unwilling to give broader rulings than demanded by the facts of the actual case they are considering – the Court agreed to give it. It is the closest we now have to an exhaustive definition of the law on misconduct in public office, although as with any authority it has to be understood against the background of the facts of the case itself.
After ranging over case-law going back to the sixteenth century (since you ask, Crouther’s case (1599) 2 Hawk PC 116 where a constable was indicted for “failing to make a hue and cry after notice of a burglary committed in the night,” a case which ought to terrify Police Commissioners who decree that scarce police resources are better devoted to logging online insults than making a hue and cry after burglars), the Court came up with the following definition:
The offence is committed when
“1. A public officer acting as such
2. wilfully neglects to perform his duty and/or wilfully misconducts himself
3. To such a degree as to amount to an abuse of the public’s trust in the office holder
4. without reasonable excuse or justification.”
So now we can see the legal outlines of Mr Ball’s case. There is no doubt that Mr Johnson was a public officer, if not as a Mayor then as an MP. If he wilfully told a lie that was surely misconduct, and the public should be able to trust their political leaders not to lie, particularly about something as important as leaving the EU. If it was in fact a lie, it is hard to see any reasonable excuse or justification for it.
Mr Ball has done a great deal of research, and his 97 page Brexit Justice Case Summary contains a comprehensive summary of the law, as well as a great deal of detail about (for example) when Mr Johnson repeated the £350M assertion, why it was not true and why he must have known it was not true. Once you get into the details things don’t appear quite so simple. I can’t say, for example, that I would much relish explaining to a jury the difference between a “rebate” and an “abatement,” or the accounting practice that involves notional sums of money being first included in and then deducted from EU budgets because of an agreement made by Mrs Thatcher decades earlier. It is all a long way from bodily fluids and fingerprints, but fortunately Mr Ball is unlikely to instruct me, even as the second of the two junior counsel that he thinks his case requires. On the face of it he has put together a pretty convincing argument that the £350M per week statement was intentionally misleading, if not an outright lie.
However, it is of course not enough merely to show that a person lied while holding a public office. He must also have lied while “acting as” an office holder. If, for example, Mr Johnson were to have lied to his wife about his whereabouts that would be a lie as an individual, not as an MP.
This requirement takes Mr Ball into more difficult territory. Mr Johnson was an MP while campaigning, but it was not his position as an MP or Mayor that enabled him to campaign. People who were not MPs were also campaigning during the referendum. Nor was he under any legal duty to campaign. These are significant points when the offence has often been explained in terms either of not carrying out or breaching a public duty imposed by the office. Mr Ball deals with the point in great detail in his 97 page document, largely because it seems to be an area on which he disagreed with Mr Perry’s advice (from which he quotes in part, while asserting “privilege” in respect of other parts). He points out, for example, that the Independent Parliamentary Standards Authority paid expenses to MPs to reimburse them for travelling on referendum related business, an indication he argues, that an MP would have been acting “as a public officer” when campaigning. On the other hand IPSA’s discretionary practice cannot possibly be determinative of a question of law.
It is perhaps no coincidence that there has not – sa far as I am aware – been a single prosecution over a politician lying about a matter of public policy in an election campaign. For hundreds of years it never occurred to anyone that the offence of misconduct in public office might apply to such cases. In fact, the courts have rightly gone out of their way to protect freedom of speech during elections. That is not to say the law could not develop to encompass such behaviour, the common law can be very flexible, but it would unquestionably be a radical new departure.
It would also be a departure in a new and profoundly unwelcome direction. Even before the Human Rights Act imposed a positive duty on courts to have regard to freedom of expression, the general direction of the criminal law during living memory has not been to extend but to restrict the ambit of speech crimes. Although plenty still exist, and although some “hate crimes” have been created by Parliament, over the last fifty years antique and common law criminal restrictions on freedom of speech have either ceased to be used or have been abolished. Obscene publications and displays, for example, are very rarely prosecuted now, unless they involve children. Lady Chatterley saw to that. Blasphemy and its unlovely twin blasphemous libel had a brief revival in the hands of Mary Whitehouse and her counsel, the sinister John Smyth (during the period he was prosecuting Gay News over a poem he was getting his kicks from caning evangelical Wykehamists in his garden shed), before being abolished by S.79 of the Criminal Justice and Immigration Act 2008. Criminal, obscene and seditious libel, were despatched by S.73 of the Coroners and Justice Act 2009. In S.33 of the Crime and Courts Act 2013 abolished the absurd offence of “scandalising the court” in England and Wales (it meant being rude about a judge), although it may linger on, I’m not quite sure, under the quaint description of “murmuring the judges” in Scotland and Northern Ireland. Mr Ball wants to develop the law in the opposite direction and to bring the criminal law into the very centre of political debate.
If the law was as Mr Ball believes it to be, it would mean every MP’s speech, and every slogan in a political campaign, would potentially be a matter for the police to investigate; indeed, they might be accused of “misconduct in public office” if they failed to do so. It would have a chilling effect on debate: get a fact wrong and your opponent will demand your arrest, and even if the police refuse, you will run the risk that a single issue activist will bring a private prosecution. Fanatics for one cause or another would be delighted to use the criminal law, or the threat of it, to silence their political opponents. In the battle for crowd-funding, the justice of a particular case will matter less than its popularity, or perhaps more to the point the ability of the prosecutor to mobilise his or her supporters on social media.
Those most in the firing line would not necessarily be minorities – after all Boris Johnson was in the majority – but inevitably it will be those promoting minority opinions who are most likely to be targeted.
What Mr Ball, with respect, does not seem to have appreciated is that a politician lying in a public debate about a matter of public policy is in no way comparable to the types of cases that have, until now, been understood to be covered by the offence. Almost without exception, office holders prosecuted for misconduct have done things secretly or at the very least not publicly. Part of the essence of the offence in practice has been either the private neglect to perform an official duty or the covert abuse of an official position for a personal or improper motive.
Politicians debating policy, on the other hand, are not doing anything private or covert or underhand. By definition they are making their points – good or bad, honest or dishonest – publicly, where they are scrutinised by their opponents. Of course they are constrained by law to some extent: the civil law of defamation, for example, and the criminal law of the Public Order Act. Mr Ball himself refers to S.106 of the Representation of the People Act 1983, which makes it “an illegal practice” to make “any false statement of fact in relation to [a] candidate’s personal character or conduct” if done for the purpose of influencing the election; but that is a tightly restricted, non-imprisonable, statutory offence, not a general prohibition on dishonest statements in debate. The law dates from 1895 and there are very good reasons why Parliament chose to restrict its scope to statements of a personal nature, as explained by Thomas LCJ in R. (on the application of Woolas) v. Parliamentary Election Court  EWHC 3169 :
“It was as self evident in 1895 as it is today, given the practical experience of politics in a democracy, that unfounded allegations will be made about the political position of candidates in an election. The statutory language makes it clear that Parliament plainly did not intend the 1895 Act to apply to such statements; it trusted the good sense of the electorate to discount them.”
Of course politicians ought not to lie, but the place to refute dishonest political arguments is in debate, not in a police station interview under caution, or in the Crown Court years later. Indeed, the very idea that political arguments should be “policed” by the state is alarming.
In fact, of course, the £350M claim was refuted in the referendum campaign as often as it was made. The Remain campaign and numerous journalists again and again pointed out that it was false and explained why.
If Mr Ball were correct then Boris’s crime would be one of arbitrary and inconsistent application. It would catch some politicians but not others in some campaigns but not others. It would extend an already difficult law into a new area and in doing so it would create a legal dogs’ dinner.
The referendum campaign, for example, was unusual for political campaigns because Mr Johnson remained an MP and thus an office holder throughout; in an ordinary election campaign Parliament has been dissolved and there are no longer any MPs. Thus, if Mr Ball is correct, a lie told in a referendum campaign could be a crime while the same lie told in an election campaign would not be.
In an ordinary election other anomalies would exist. Although MPs cease to hold office when Parliament is dissolved, ministers continue to do so. Thus, in an election campaign the same statement might land one candidate in gaol (if he or she were a minister) but could be said perfectly lawfully by others. If an election is held next month Mr Johnson – who would no longer be an MP – would be free to lie through his teeth (and would be certain of being listened to), while a junior minister in the Department of Trade and Industry of whom no-one has ever heard could be arrested for saying exactly the same thing. The fact that a suggested interpretation of the law would have an arbitrary and capricious effect is a good argument for assuming that the interpretation is wrong.
Of course it could be said that this law already creates anomalies. That is true, and as the Law Commission has recently said:
“The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.”
That it is already a bad law is not an argument for developing it to make it even worse. It is, if anything, an argument for preventing its further extension.
Mr Ball says he wants to bring about “a beginning to the end of lying in politics.” Like a youthful Nicholas Parsons he says he wants to do so not just in Britain, but “to other common law jurisdictions around the world.” Relying, a little ironically given his mission to end dishonesty in politics, on the CIA World Factbook he suggests that convicting Boris could effect the laws of a whole string of countries, including Australia, India and the United States as well as the frigid and virtually uninhabited atoll of South Georgia and the South Sandwich Islands, and the bleak Pacific prison island of Nauru.
I think it is very doubtful that the reverberations of his crowd-funded prosecution will ever effect the law of South Georgia, let alone that of the United States.
Private prosecutions are still unusual in English law,where most prosecutions are brought by the Crown Prosecution Service. They are open to abuse for many reasons, one being that private prosecutors often lack the objectivity necessary to handle the great responsibility that bringing a prosecution entails. Judging by his video, for all his cleverness, objectivity may be an attribute that Mr Ball lacks. Fortunately there is a well-established procedure for the Director of Public Prosecutions to take over and discontinue a private prosecution, either if there is no reasonable prospect of conviction, or if prosecution is not in the public interest. Should Mr Ball decide to start this prosecution one of the first things the new DPP, Max Hill QC, should do after he takes up his position next month is to take it over and close it down. It is an ill-conceived publicity stunt and an abuse of the criminal law.
The post Prosecuting Boris Johnson over “Brexit lies” would be an ill-conceived publicity stunt appeared first on BarristerBlogger.
David Beckham has been charged with speeding. According to his lawyer, Nick Freeman, there is no dispute that he was driving a Bentley at 59 MPH on the Paddington flyover in west London, and that the relevant speed limit was 40 MPH. Beckham’s defence is the highly technical one that a Notice of Intended Prosecution (a legal requirement for a successful conviction) was served outside the 14 day period that the law requires.
Mr Freeman lives in the Cheshire Golden Triangle where many of his neighbours are footballers and their WAGS, including at one time the Beckhams themselves (they now live in Holland Park). If he has been invited to the opulent dinner parties that are thrown around there, I expect he has become used to answering the question “how can you defend a man who you know is guilty?”
Normally this question is fairly easy to bat away.
“I don’t know he’s guilty. That’s the court’s job to decide, not mine. I just test the evidence as best I can, put his case as eloquently as I am able and then leave it to the magistrates or the jury to decide his guilt.”
As a general rule that seems to satisfy most people, and will have allowed him to get back to enjoying the lobster or Chateaubriand or whatever it is that gets served at celebrity dinner parties.
“But what if they’ve told you they’re guilty and they want you to get them off anyway?”
My answer would be something like:
“Ha ha! That hardly ever ever happens. If it does I usually tell them that they won’t be able to give evidence because I know they will be lying and I won’t be able to suggest the prosecution witnesses are wrong because I know they’re right, so they’ll almost certainly be convicted. Why fight a case when you are both guilty and virtually certain to lose? The upshot is that they usually decide to plead guilty. It’s virtually never an issue. Here, let me pour you another glass of this excellent 1947 Cheval Blanc.”
“Yes, but what if you told your client all that but he still insisted on pleading not guilty?”
“Well, I would do my best to test the prosecution evidence and ensure that he was only convicted on admissible evidence. Good gracious, isn’t that a wonderful display of Shenzhen Nongke orchids, wonderful how Victoria’s gardeners always manage to get them to bloom in January.”
In this case, not only has Mr Beckham told Mr Freeman that he is guilty, but Mr Freeman has already told the court that Beckham is guilty: he accepts that he was the driver and accepts that he was breaking the speed limit. This really is one of those rare cases in which a lawyer is trying to secure the acquittal of a man whom he knows to be guilty. To that end he has done what he is paid – no doubt a generous amount – to do. He has found what he, and many others, would call a loophole.
There is some disagreement over whether this loophole is correctly to be described as a technicality, or even, for that matter, a loophole. Andrew Keogh, the knowledgeable and helpful barrister who runs the invaluable Crimeline, thinks not: “Proper service of proceedings is not a technicality, it is a fundamental safeguard in law.” In the other camp is the equally authoritative Blackstones Criminal Practice, edited by Professor David Ormerod the law commissioner and as of yesterday deputy High Court Judge (and, incidentally, now cruising like a 2018 Bentley Continental GT Coupe, just within the speed limit, towards the Court of Appeal bench), says, with a note of distaste so faint as to be almost undetectable “the question of service [of a Notice of Intended Prosecution] is a highly technical point.”
As usual when brilliant legal minds disagree I find myself agreeing with whoever spoke last, and I don’t want to get bogged down in an argument about whether a “highly technical point” is the same as a “technicality,” or whether a loophole is the same as the slightly more respectable-sounding “lacuna.” Perhaps they would both agree that even if it is a technicality it is not what technicalities all too often turn out to be in practice: “mere technicalities.” This is is an important one.
To understand why, I am afraid we need to get bogged down in an examination of the law that Mr Loophole knows his way around so well.
S.1 of the Road Traffic Offenders Act 1988 provides that “a person shall not be convicted of an offence to which this section applies” (and speeding is such an offence, along with lots of other driving offences including dangerous and careless driving) unless:
(c) within 14 days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was …
(ii) … served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.
(In case you have been charged with a driving offence and you think this offers you an easy way out, beware: there are plenty of exceptions when service of an NIP is not necessary, most importantly if you have been involved in an accident. It seems to be common ground that none of these exceptions applies to Mr Beckham, so for the prosecution to succeed a NIP needed to be properly served.)
The rationale of the rule (which has been part of road traffic law for many years) was explained by Donaldson LJ in Gibson v. Dalton  RTR 410:
“… motorists are entitled to have it brought to their attention at a relatively early stage that there is likely to be a prosecution in order that they may recall, and, it may be, record the facts as they occurred at the time.”
Offending drivers typically face points on their licence, an annoying fine and perhaps a disqualification. Sometimes – though not very often – they might even be sent to prison. Clearly it’s unfair to expect them to remember what happened three weeks earlier. Oddly, the law is far more relaxed about people having to remember the details surrounding non-motoring crimes they have, or more trickily haven’t, committed forty, fifty or sixty years ago. But let’s not digress.
Actually, now I think about it, let’s digress a little bit more: in many instances documents can be served late, court orders ignored or evidence served at the last minute and judges will simply grumble a bit before announcing that the rule that has been breached is “procedural” not mandatory, which means everyone can essentially shrug their shoulders and get on as though nothing much has happened. But because of the unambiguous way the statute is worded, a NIP is not like that. “A person shall not be convicted ….” No service within 14 days, no conviction.
In this case, it seems that the notice was not served on Mr Beckham himself but on Bentley who had generously lent him the car. As Bentley was presumably the “registered keeper” service of the notice on the Company would suffice, as long as it was done “within 14 days of the commission of the offence.”
The offence took place on January 23rd 2018, so the NIP had to be served by February 6th. In fact, although it was dated February 2nd, according to Mr Freeman it was not received by Bentley until February 7th, that is 15 days after the offence.
Apparently the letter carried a “received” stamp dated 7th February. Simon Maughan, the prosecutor, told the Court:
“I’m accepting of the letter, accepting of the date on the letter, I’m accepting that the seventh has been stamped on the letter. There can be no issue with the date on the letter.”
Although, unusually, this is an issue on which the burden of proof is on the defence rather than the prosecution, Mr Maughan’s concessions suggest that the Prosecution may have a problem. If the NIP was sent by ordinary first class post, the rule is that it is deemed to have been served on the second day after posting, but that presumption can be rebutted by evidence that it was not in fact received within 14 days: see Gidden v. Chief Constable of Humberside  EWHC 2924 (Admin). Unless there is something wrong with Bentley’s office procedure, the date stamp of 7th February may well get Beckham off the hook. On the other hand, if the Notice was sent by registered or recorded delivery rather than by first class post the prosecution can rely on S.1 (2). In that case it is deemed to have been served:
“… notwithstanding that the notice was returned undelivered or was for any other reason not received by him.”
Did someone say that the law was consistent?
Back to Mr Freeman. Is he doing anything wrong by using this rather strange law to get his client out of trouble?
Certainly he is doing nothing professionally improper by advising Mr Beckham of a defence that may be available to him. Indeed, it would be professional misconduct not to tell Mr Beckham about it, once he had noticed it, and although I certainly don’t want to belittle Mr Freeman’s forensic skills, checking that the Notice of Intended Prosecution had been served within 14 days would be something that any reasonably competent criminal solicitor would do.
Nor is there anything immoral or improper about running such a technical defence, if that is what the client demands. It is not for lawyers to pick and choose which laws to apply. And there is a bigger point here: it is by constantly testing and arguing the limits of individual laws that the rule of law is upheld. Law consists of innumerable “technicalities” many of which taken individually may seem pointless, unnecessary, arbitrary, badly worded, inconsistent or plain daft. There’s at least an arguable case for saying the law on NIPs is all six of those things. But the rule of law, upon which, it is worth remembering, civilised life depends, means that laws passed by Parliament must be followed by the courts. If you give the matter a moment’s thought, a country in which lawyers and the courts could pick and choose which laws they wanted to obey and which to disregard would be chaotic at best, and tyrannical at worst. For good or ill, Parliament has long since decided that motorists should receive these notices, and decided also the manner in which they should be served. As with any other law, it is there to be followed by lawyers and enforced by the courts, until Parliament decides differently.
This does not mean that every minor breach of the criminal law should be prosecuted, or that there is no room for discretion or common sense in its application. Nor does it mean that in certain circumstances it cannot be morally right to disobey a bad law. And we certainly don’t have to find anything very attractive about a stupendously rich man paying a very rich man vast sums of money to get off a minor traffic offence of which he is unquestionably guilty. It looks uncomfortably like someone using his wealth to avoid just punishment.
But despite this, there is no shame in a lawyer honestly using the law to protect his client from the consequences of his crimes. It is far more important that there is confidence in the rule of law than that every criminal should inevitably be punished. It may sound almost absurd to talk about tyranny in the context of a speeding offence, but the law has sometimes proved a better protection against tyranny than democracy itself.
So whatever your view of Mr Freeman, he is not wrong to try to exploit a technicality, if that is what it is, on his client’s behalf.
I am not quite so sure, though, about Mr Beckham’s behaviour. Even considered from a purely financial point of view quite why he doesn’t just put his hands up and pay the fine is a bit of a mystery. It would probably be far cheaper than paying Mr Freeman’s fees. Perhaps he already has 9 points on his licence and doesn’t want to be banned from driving after acquiring another three. Even so, would it not be more creditable if, having accepted his guilt, he simply apologised and took his fairly minor punishment on the chin? No-one would think any the worse of him for having exceeded the speed limit. Some, on the other hand, might feel that by contesting a case where he is so clearly in the wrong he has, in a small way, diminished his reputation.
The post How can Mr Loophole defend David Beckham when he knows he is guilty? appeared first on BarristerBlogger.
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