Category Archives: Law & Justice

One law for the rich…

It’s funny how sometimes a pattern emerges from a whole series of different stories and events that in many respects would appear to be unrelated. That’s been the case for me this past week.

It started with news coverage of the decision of the Financial Conduct Authority to order the end of an enquiry into UK banking culture that had originally been proposed as one of a number of measures to determine whether the lessons for the world financial crisis had been learned. Apparently, the FCA thinks they have, and that we should all stop giving the bankers such a hard time (http://www.theguardian.com/business/2015/dec/31/banking-culture-review-john-mcdonnell-urges-george-osborne). Others are less sure, and see the dead hand of the Chancellor behind the move which will go some way to appeasing the likes of HSBC who had been threatening to pull out of London and take their HQ elsewhere.

This was followed by the confirmation from the Crown Prosecution Service that the posthumous ‘trial of the facts’ to examine allegations of historic child sexual abuse involving former MP Lord Janner, had been shelved (http://www.bbc.co.uk/news/uk-35304528). This on the same day that it emerged that an establishment cover-up in the 1990s may have prevented a more detailed inquiry at a time when Janner was well enough to have been properly questioned in relation to complaints against him (http://www.theguardian.com/commentisfree/2015/apr/19/establishment-stopped-me-exposing-greville-janner-25-years-ago).

At the same time, and without any public fanfare or opinion pieces in the national newspapers, a family in South Wales is facing the double heartache of fighting health and social services to secure appropriate treatment and care for their daughter who is suffering constant fits and debilitating paralysis, whilst at the same time needing to find a new home following the decision of their landlord to sell their rented property out from underneath them.

There is little doubt that lawyers have been working tirelessly and at great expense to lobby both the FCA and the CPS that any further enquiry into the actions of their respective clients would not be in anyone’s best interests. They’ve done a good job and doubtless been paid handsomely for their expert services. I don’t begrudge them a penny.

Unfortunately, the same access to legal support is not available to the family fighting to make public services discharge their health and care duties, nor to support them in securing suitable alternative rental accommodation. Both parents have jobs and work hard to support their kids, but their disposable income after living costs won’t stretch to the fees of a housing or community care lawyer.

What seems like a lifetime ago now, I worked for the Legal Services Commission at a time when its prime concern was securing access to justice for those who desperately needed it, but lacked the means to pay for it in full or at all. Unfortunately, since then, successive governments of all colours have seen legal aid as a cost rather than an investment, and have sought to reduce both the scope of things covered by the scheme, and the rates of pay of those lawyers foolish enough to continue to operate it.

The theme that runs through all this, of course, is the old adage that there’s one law for the rich (and powerful) and one for the rest of us. It’s this that is highlighted so perfectly in this Tom Robinson song for the Justice Alliance.

Is justice being turned on its head for celebrity defendants?

So, a jury has listened to all of the evidence and reached the conclusion that Bill Roache is not guilty of rape and indecent assault having faced charges relating to events that were alleged to have taken place over 40 years’ ago (http://www.bbc.co.uk/news/uk-england-26068034). Subsequent press coverage of the case has questioned whether it was right that the case was ever brought to trial, given the inconsistencies that emerged in the prosecution evidence presented, and the inherent challenges faced in seeking to prove ‘ beyond all reasonable doubt’ that the alleged events happened at specific times, in specific places, over four decades before. There have already been calls for a review of pre-trial review procedures to ensure that there is adequate prima facie evidence to support a prosecution before the matter is put to a full trial, and the reintroduction of some form of grand jury process, still in place in the US but phased out in the UK in the early 1800s. These are interesting suggestions and deserve to be considered in detail. It might also be time to think about the introduction of a statute of limitation for criminal offences. This could establish a presumption against bringing prosecutions in cases where there was no complaint made at the time without the prior permission of a High Court judge who could be asked to review the reasons why there was a delay between the alleged events and the subsequent complaint, and whether the time period between the two is such that the prospects of a successful prosecution have been fatally damaged

The case also raises some interesting questions about the nature of police investigations into alleged criminal conduct by celebrities (and those in the public eye more generally). Paradoxically – and despite the English legal maxim that defendants are innocent until proven guilty – the media attention given to investigations of allegations against ‘famous’ people, means that a trial is often the only way that their innocence can be established. From a PR perspective, it is almost inevitably most damaging to the reputation of an individual to have been taken in for questioning or arrested in a blaze of publicity, and then to have the investigation dropped at a later stage with barely a mention. The fact of the arrest and the implication that ‘there is no smoke without fire’ leaves an almost indelible stain on the individual’s character. At least a ‘celebrity trial’ creates the opportunity for a ‘dramatic’ not guilty verdict and a press conference on the court steps at the end of the process

This could be addressed, at least in part, if the same rights to anonymity were extended to defendants as they are to complainants in these cases. I have previously blogged that I am not convinced that the benefits of anonymity in criminal cases outweigh the disadvantages (https://andrewpearce16.wordpress.com/2013/09/11/anonymity-no-but-accelerated-justice-is-essential/) but there may be a case for introducing greater restrictions on the reporting of investigations and arrests until such time as a decision has been made to formally charge somebody with an offence

What is clear is that the Roache case raises a number of issues that need to be looked at as part of the on-going review of the criminal justice system. As Roache himself said outside court yesterday, the current system produces “no winners”

Criminalising doctors – a classic case of two birds with one stone…

So, the government’s response to the Francis report into the failings of the NHS in Mid-Staffordshire is a proposal to create a new criminal offence of wilful neglect with a mximum prison sentence of up to five years (http://www.bbc.co.uk/news/uk-24967230). Never mind that there is already a raft of criminal and civil remedies available to victims of neglect in healthcare settings; or that any NHS employee failing to meet reasonable standards in the delivery of care is liable to face disciplinary action that could result in dismissal and removal from the relevant professional register. What we need, clearly, in order to raise standards is the threat of a new criminal sanction. Clearly, medical professionals have not been prevented from delivering the care that they’d like to by ridiculous targets, inadequate resourcing, and the wasteful bureaucrasy that flows from the absurd drive for the marketisation of the NHS. No – what has been stopping them is the absence of the threat of a visit from the constabulary and a spell in clink

Could there be more to this than meets the eye? Is there an ulterior motive? Prison health services have been in decline for years, with a commensurate increase in claims for negligence against the Prison Service (http://www.insidetime.org/articleview.asp?a=1127&c=clinical_claims_on_the_rise). It’s expensive to properly staff prisons with qualified medical staff – unless they’re there against their will. Could it be that the Ministry of Justice and the Department of Health have seen a way to kill two birds with one stone? Reduce the costs of expensive doctors to the NHS by getting them banged up, and then have them provide medical cover in prison instead.

I think we should be told!

Tearing down the fences and disabling the ambulances

Building fences at the top of the cliff, rather than providing ambulances at the bottom was the rationale for the work that was led by the Legal Services Commission to provide better access to quality assured advice and assistance under the banner of the Community Legal Service (subsequently totally dismantled by Brown’s Labour government and the ConDem Coalition). The theory (espoused most eloquently by Prof Richard Susskind at the time) was that it was better (and cheaper) to prevent people from injuring themselves by falling off the cliff in the first place, than it was to provide a world-class ambulance service to pick them up from the rocks at the bottom of the cliff. It’s a philosophy which still seems to be fundamentally sound

It is, however, an approach that appears to have been completely ignored in the welfare reforms that are being driven through by the Coalition. Reforms to housing benefit will drive people out of their homes and communities and into smaller units (if they’re available – and they won’t be available in sufficient numbers everywhere, as the Welsh Select Committee has reported today : http://www.bbc.co.uk/news/uk-wales-24556552) or into temporary shelter or onto the streets otherwise. Removing housing benefit on a sliding scale from people who find themselves in a house that is marginally too big for them seems like a perfect example of fence destruction

Equally, pressure on Job Centres and the Department of Work and Pensions to reduce the number of people in receipt of benefits is leading to a significant increase in families who suddenly find themselves without any money at all due to some technical breach of the claimant rules. Examples include those who are unable to sign-on on their designated day because they are attending a job interview, then being refused their job seeker’s allowance. In this context, it is hardly surprising that the number of individuals and families dependent on food banks has increased threefold in the past 12 months. The government suggestion that this is because there are more food banks now than there were is so ridiculous as to be almost laughable. As was pointed out by a Twitter commentator, it’s like blaming the growth in Red Cross services around the world for an increase in earthquakes!

The problems that are now starting to become more and more apparent in terms of the impact of the welfare reform programme are compounded by the fact that a small number of private sector organisations are doing very nicely thank you from the privatisation of the services that are meant to be supporting the most vulnerable people. Atos generates a handsome return for shareholders by running disability assessment centres that are difficult to find, hard to access and which reach decisions that are often flawed in fact or based on very partial interpretations of medical information (see Private Eye editions for pretty much the whole of the past year for specific examples). The government response to the increase in the number of successful appeals against Atos assessments is to make it more difficult to appeal – remove the fence and then remove the wheels from the ambulances!

Frustratingly, it seems that neither the Lib Dems nor the Labour party feel able to offer any meaningful alternative to the current, dysfunctional, destabilising and inherently unfair reforms. Almost unbelievably, the Milburn Report (http://www.bbc.co.uk/news/uk-politics-24553611) published today suggests that one way of creating space to support those struggling to cope on low wages is to remove universal benefits from pensioners. Leaving aside the fact that the amount paid out in the few remaining universal benefits amount to less than 2% of the total budget for pensioner benefits, it is almost impossible to conceive of a Labour politician in opposition proposing the abolition of ANY universal benefit. It seems that more than ever before, there is no point in voting in the next general election – whoever wins, the government still gets in!

 

Anonymity no – but accelerated justice is essential

Two legal stories in the past week initially seem only loosely connected, but at the heart of each is a problem linked to the time that it now takes to bring legal cases to a conclusion in England and Wales

Michael le Vell was acquitted of child sex offences following trial at Manchester Crown Court. The jury found the actor not guilty of all charges following four hours of deliberation. The case has re-opened the debate about whether defendants facing sexual offences charges should be entitled to anonymity until found guilty. The arguments are compelling on both sides, but on balance I tend to the view that the interests of justice are best served under the present system

Earlier in the week, Justice Secretary Chris Grayling announced that the Government was rowing back from the full marketisation of publicly funded criminal defence services that had been the subject of an earlier consultation. Thankfully, common sense has prevailed, and access to justice and service quality will now be the factors governing the award of contracts, rather than tender price

Grayling still needs to make savings, however, to begin to balance the Justice Ministry’s budget, and has ordered a review of the criminal justice system to examine how costs can be stripped out of it. This is where the debate around anonymity for defendants and the legal aid story share a common interest. It is axiomatic in legal circles that justice delayed is justice denied. In essence, the longer cases take to bring to a resolution, the less satisfied with the outcome all the parties become. Victims and their families live with the stress of the impending trial and the anxiety that comes from knowing that they will have to re-live the episode over again in the courtroom before they can hope to achieve any closure. Defendants – especially celebrity defendants – (even allowing for the reporting restrictions that will often govern the specific allegations) will find themselves the subject of ‘dirt-digging’ and lurid speculation relating to other areas of their lives which may or may not be loosely linked to the charges faced. In both cases, the longer it takes to bring the matter to trial, the worse it is for accuser and accused

Equally, the longer the process runs on, the more expensive it inevitably becomes. It is self-evident that a case that is done and dusted in three months will cost much less in investigators’ time, lawyers’ time, court time, and administration than one which runs for six months. In le Vell’s case, he was originally charged in 2011 (charges that were subsequently dropped on the advice of the CPS) before a review in 2012 eventually led to charges in February 2013. It was almost six months’ to the day following the formal charges that he was finally acquitted

For justice to be done, it has to be seen to be done; but for justice to be done effectively, it also has to be seen to be done as speedily as possible. Hopefully, the review body soon to report to the Justice Secretary will be radical and incisive in its recommendations leading to a more cost-effective and just criminal justice system

Why middle lane smokers have little to fear

Cardiff & Vale University Health Board this week announced that it would ban smoking completely within all hospital grounds with effect from 1st October 2013

http://www.bbc.co.uk/news/uk-wales-south-east-wales-23944937

This came as something of a surprise to me (I thought they already had)

Alongside a total ban on smoking ‘real’ cigarettes, e-cigarettes will also be prohibited because there is currently no evidence to support their efficacy. Instead, patients will be offered nicotine patches and access to the Health Board’s smoking cessation service

Whilst the evidence that smoking is bad for health (and in particular that it delays recovery from illness or surgery) is clear and unambiguous, so is the evidence that practical implementation of a total smoking ban in hospital grounds is extremely difficult. Ratschen et al (2009 : Smoke-free hospitals – the English experience) conclude that where total bans had been attempted “policy infringements were widespread and appeared to be widely tolerated”. Similarly, Arack et al (2009 : An evaluation of the effects of the smoking ban at an acute NHS Trust) concluded that : “the ban is not sufficiently enforced and support services are either absent or not well-publicised”

Both studies found that a significant issue was the lack of rigorous enforcement of the ban on smoking, with staff in particular expressing a reluctance to challenge smokers on hospital grounds through fear of a hostile response. Given the financial constraints within which the Cardiff & Vale Board is already having to operate, and the size and scale of the grounds that are occupied by its main hospital sites in Cardiff and Llandough, it is very unlikely that there will be significant investment in additional security personnel to enforce the smoking ban. It seems that the change in policy will be little more than a gesture – an indication of good intentions but without the resource to properly see it through

There are parallels here with the recently announced ‘clampdown’ on so-called middle lane ‘hoggers’ and ‘tail-gaters’ on motorways. The policy intention is laudable – both driving behaviours are at best irritating, and at worst positively dangerous. The problem is that there are now so few police officers on patrol on the UK’s motorways that enforcement will be practically impossible

Given the continuing emphasis on deficit-reduction and financial stringency, perhaps its time for both politicians and public sector policy makers to start being a bit more honest about what’s do-able and what we will have to simply put up with. Gesture politics and policy announcements that are simply unenforceable are a luxury that we can no longer afford