Wednesday, August 26, 2009

Full text of the DCMS letter now online

And for those who are interested in such things, please go to the excellent wikileaks website, which can be found here.

Tuesday, August 25, 2009

Video nasties and a government cover-up!

In our peculiarly English way, we have attempted to suppress sex shops by creating a system of regulation that makes them instantly identifiable; the grey shop front with lurid letters "SEX SHOP", and the unspeakable things lurking within.

If that little paragraph doesn't boost my Google ranking, I don't know what will. And if you're looking for titillation, so to speak, I suggest you look lies only a discussion about technical regulations.

The EEC Technical Standards Directive (83/189/EEC) requires that technical regulations are "notified", i.e. that a formal letter is sent by the member state to the EU. Simple.

The Video Recordings Act 1984 regulated the sale of age-rated videos and restricted certain material to certain establishments, usually ones with no windows and grey shopfronts. That perfect tense conjugation will be important in just a minute.

The Video Recordings (Labelling) Regulations 1985 were the regulations that the Tory government of the day failed to notify. Astonishingly, no-one has noticed in the intervening 25-odd years. Until now. No notification, no enforcement, says the European Court of Justice.

So all offences under the Act and Regulations are "non-enforceable". The Parliamentary Under Secretary in charge of the Department for Culture, Media and Sport (DCMS), the Rt Hon Barbara Follett, yesterday wrote to Keir Starmer QC, the DPP.

She pointed out that the current EU regulation, the Technical Standards Directive 98/34/EC (thrilling, isn't it?), requires a 3 month pause when new regulations are notified. The upshot of which is that for the next three months, it's open season on uncertified porn, and no age restrictions; so fill your boots, and be sure to sell it to kids.

"In relation to past prosecutions, it is our understanding that there would be no positive obligation on the Government to re-open these; however we would welcome any comments you may have in this regard."

No obligation other than fair play, that is. Those who have been imprisoned for contravening non-existent laws may feel hard done by. Those who were fined could at least be reimbursed.

The BBC news website was covering the issue at length, as were all the usual outlets in their varying trademark tones. Despite this, the Rt Hon Ms Follett mentioned the unavoidable gap in "enforceability", and said:

"I am particularly concerned that advantage may be taken of this lacuna to flood the market with unclassified DVDs. I therefore ask you to consider carefully what reasons are given to the court in relation to any discontinuations."

Now, just a minute. This is a Parlimentary Under Secretary, asking the DPP, albeit in a roundabout way, to conceal the true reason for discontinuing proceedings. This would be misleading the court, and, to put it mildly, is an absolute disgrace. From an MP, it is beyond belief.

I am not sure which concerns me more; the attempt to cover-up the cock-up, or the fact that the DCMS thought that it was O.K. to lean on the CPS to get us to mislead the court.

There's more in the very carefully worded letter, in relation to other un-notified regulations. I've edited any references to that out, because I don't want to take the piss. I have uploaded some chunks of letter for you, though...

Part One
Part Two
Part Three
Part Four


I apologise for the cumbersome images, I was not able to edit the PDF of the letter.

I'd be astonished if some enterprising red-top didn't get the full text online shortly. If they do, I'll link it in, but for now, I'm keeping my head ever-so-slightly below the parapet. I hope you understand.

Monday, August 24, 2009

Going gently into the good night...

Embarrassingly, it seems that my technical ability doesn't even extend to preventing my humble thoughts from going gently into the good night. It seems that the website I use decided to remove my blog from public view for no apparent reason. I apologise sincerely for any confusion.

So, this Libyan fella then... Those who read Private Eye will be familiar with the evidence that led to his conviction. Basically, when the airliner was blown out of the sky over Lockerbie, the debris was scattered widely. Months after the accident a fragment of timer was found in a wood, with an item of clothing attached. The label showed Malta as the country of origin, and a Maltese shopkeeper identified the defendant as the person who bought the clothing, which the prosecution said, was wrapped around the bomb. This man now lives in a rather large villa in Australia, which some say, almost inevitably, was paid for by the US government.

The chap couldn't be released with an appeal pending, so that was withdrawn. The prisoner exchange programme was ruled out, and that left compassionate release.

We're told he only has 3 months to live. So let's see if he does a Ronnie and recovers upon release, or whether he passes away. In any event, the old bloke who got off the plane in Libya might not have looked like it, but he is this month's political football.

270 dead, worst terrorist attack ever. Evidence not great, but convicted under scotch-ish law (that may not be the proper legal term), served a good stretch, apparently only got a matter of weeks left. Clearly, dying with your loved ones is preferable to dying in a foreign jail (some would say, don't commit crimes abroad then).

Would you have released him? Would you release everyone who was dying? If yes to the first and no to the second, why?

Friday, August 21, 2009

The Prosecution Team

That last post about the complainant-prosecutor relationship got me thinking. The police and the CPS have been working together since 1986. The CPS was created to ensure that the lawyers were independent of the police forces they worked with. We moved out of police stations.

In the comments of the last post, "ANON COPPER" said that he or she "always knew the CPS weren't on our side". And he or she is quite right, we are independent. But now, it seems we're heading back towards integration with the police. We're even back in the stations, and being called "The Prosecution Team".

The police, quite frankly, have far more to gain from "co-location" than the CPS. We get small administrative advantages on occasion. That's about it. We have to travel further to work, and work in grottier places than was previously the case.

On the other hand, they have a team of lawyers, 9-5, 5 days a week, and they seem to be under the impression that we are there to answer every little query, and solve every little problem. They don't hesitate to pelt us with questions, queries, requests for "unofficial advice", and the like. Yesterday, I had a police officer come to my desk and ask how to charge someone. Once I'd cleaned the tea off my monitor and the tears had stopped, I told her to go and speak to her sergeant. I could hear his response through several walls.

So we moan at each other, but for the most part, we seem to rub along. I mean, in other jurisdictions, when the lawyers have had enough of the police...

This has also been picked up by the BBC, here. Quite extraordinary.

Tuesday, August 18, 2009

We are the champions...

The relationship between prosecutor and prosecution witness is a strange, and occasionally fraught one. Witnesses often see me as "their" lawyer, present in court for the sole purpose of helping them get that nasty neighbour sent down, or whatever it happens to be.

This is rarely the fault of the witness, who may have been told that I am their lawyer, who may have been asked for a Victim Impact Statement, or who may have been given the Victim's Code publication setting out "minimum standards of care" they can expect.

Of course, those who have been the victims of crime need to be taken seriously, and treated with dignity and respect, and I am all in favour of promoting that, but I am not "their" lawyer. I am the prosecutor, and I am there to prosecute on behalf of the state.

It has been said that prosecutors never win or lose cases; we simply present the evidence. It is up to the tribunal to accept or reject that evidence. If I make a good opening speech, ask the right questions, and can get the witness to come up to proof, then I've done my job. If that isn't enough to convince the tribunal, then the case might be crap, the tribunal might be asleep, or the defendant might be lucky, but in any event, the defendant is not guilty.

Anyway, the relationship with witnesses...the Justice Committee summed it up thusly:

"Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed."

I have seen a witness realise that I wasn't their champion -- when I asked for permission to treat them as hostile -- "disappointed" is a polite way of describing the look I got.

Full report here.

Sunday, August 16, 2009

Bow Street Magistrates' Court

John Mortimer QC, one of the best-known members of the Bar, has been the subject of many books, some of which are worth a read. "Clinging To The Wreckage" is particularly worth-while.

I have recently finished one such book, which contains, as do they all, brief accounts of some of his more famous cases, which often involved obscene publications. One matter being discussed was the Lady Birdwood obscenity trial, a private prosecution involving The Council of Love, a play depicting an Easter Day orgy, complete with randy cardinals, a naked Pope, Mary as a whore, Jesus in a wheelchair, and a rather shabbily-attired God. It was a nineteenth century satire, being put on at the Criterion Theatre.

John Mortimer QC (plus juniors) and Quentin Edwards QC (plus juniors), were pitted against each other in a case that was attracting intense media attention, dealing as it did with such grave issues as freedom of speech and censorship. It struck me, upon finishing the story, that this case was being heard in the mags. In fact, many of Mortimer's best cases started and ended in the mags.

The case was thrown out, by the way, during committal proceedings, when Mortimer was able to show that the two defendants were not present at the time, and could not, therefore, be responsible for the content of the play on the night Lady Birdwood was in attendance.

It is apparent from reading books about that particular era, that the magistrates' courts were held in rather higher regard than they are these days. "Old-style" committals to the Crown Court, with the calling of evidence, and cross-examination of witnesses, were standard, and the local benches were well-respected by local villains.

Time passed, and "local villains" became "court users", and politicians seem eager to have cases heard in the crown court, for the "serious stuff", or diverted, for the "not-so-serious stuff".

What future does the magistrates' court have in this climate?

Justice delayed... justice denied, as any lawyer worth his salt will be able to tell you. Let me know what you think of this all-too-typical scenario, plucked from the mire of cases sloshing about within the OBM.

For those unfamiliar with "the OBM", it's not an oblique reference to a recently elected chap from across the pond, it's the Optimum Business Model -- see further down this page for a full explanation.

This case involved harassment of a partner, phone calls, unwanted visits, etc., etc., so was classed as occurring in a domestic context. Such matters are referred to as "DV" cases, short for "domestic violence", even where physical violence is entirely absent.

Mrs called the police, Mr was arrested, and held by the police overnight, to be produced before a bench. He was remanded in custody on his first appearance the following morning. So far, so utterly typical.

A week later he was bailed. Six days after that, a case management hearing (CMH) was held, and no primary disclosure had taken place -- staffing issues mean there simply aren't enough lawyers to go round the cases. A week later a pre-trial review was held, primary disclosure was served, and the following day his bail conditions were varied. 12 days after that, the first trial listing rolled around.

She turned up, which is relatively unusual in and of itself, and the matter was adjourned, as court time being hard-pressed, and there were further disclosure issues to resolve before beginning the trial.

Six weeks after the first go at a trial, a second pre-trial review was held, and the CPS file didn't turn up. The following day it did, and a date was set for trial. 19 days after the third pre-trial review, the fourth pre-trial review was held. Still with me?

This date was set one week before the trial, to ensure that everything was done. I had the pleasure of opening this file on the eve of pre-trial review number 4, and finding that not one jot or iota of work had been done.

I spent the better part of a day lashing the case into order as best I could, served almost a dozen statements, expert reports in relation to mobile telephones, medical reports and photographs, as well as a bad character application. Of course, I wasn't going to be presenting the case in court, so I drafted a note to try and summarise the four-inch-thick bundle as best I could.

So, if you were defending him, what do you do? Is it fair to try a defendant with so much evidence served only a week before a trial? How impressed is the complainant going to be with the progress of this matter? How impressed is the bench going to be, for that matter? First appearance to second attempt at trial; 102 days, give or take some atrocious mental arithmetic.

I wish this was an isolated case, but the truth is that I am often instructed to apply for an adjournment in order to rectify some abject failure to serve a particular item, usually in the face of weary disbelief from the bench, and in the face of a correspondence file bulging with written requests for said item from the defence.

Unfortunately, "More Lawyers!" has never been a vote-winning slogan, and so we will continue to be cut, rationalised, consolidated, and streamlined until the whole thing collapses about our ears.