A Question of Justice

This is not easy. I support the proposals for the pre-recording of the evidence and thus cross examination of rape complainants. I would extend it to every person, adult or child, alleging sexual assault. And I know at the same time that the proposal carries the potential for injustice and has a significant practical disadvantage. What of issues arising at short notice after cross examination has been recorded? I find that potentially a real stumbling block. But I still support the proposal as an enlightened, even inevitable reform. It needs refinement and constant evaluation. But it is the way forward

That is my honest view. WHY? 

The starting point is the appalling trauma of reliving and retelling in public the humiliation and fear implicit in most sexual attacks. Even with skilled and sympathetic police officers, it is bad enough to describe such incidents to strangers. The process of justice now requires you to repeat it in public and, in the process, magnify the trauma that most true complainants unquestionably have experienced.

 

In a sentence, the public recitation of sexual assault doubles potentially the agony and the harm.

 

Of course I generalise and we can all point to calmer victims for whom the retelling and just conviction may have been cathartic. But the basic truth is that it is, almost inevitably, a terrible ordeal, not withstanding very intuitive and sympathetic defence counsel and superb judge work.

 

It just hurts so much.

 

Don’t worry – i have not forgotten about innocent and falsely accused defendants. I will face their plight head on. But let us first examine soberly what the Lord Chancellor is proposing and not run away from its dangers.

 

In future, evidence and cross examination will be removed from an open court setting to one more conducive to candour and calm. The defence will be put and the lying complainant tested. And I do not mean sanitized through intermediaries, save where, as now, that is is permitted. The case will be put. That much has not changed.

 

The ordeal over, the complainants, the huge majority of whom are speaking the truth, can creep back into their damaged lives and begin the process of gradual recovery. The reality is that some will never recover. BUT we will have lessened their ordeal. That is why this blog is called a Question of Justice.

 

And the innocent defendant?  

 

Falsely accused and unable to see their accuser? They, as now, will be in the hands of trial by their peers. Their case will have been put and if, like me, you blelieve passionately in the power of good cross examination, they will be acquitted when they deserve to be. Juries will not change into agents of the Crown simply because the complainant is not present. Indeed one can foresee how many a good defence speech will capitalize on the change.

 

So this is not about improving the conviction rate. Perhaps it may lead to more guilty pleas once the video is seen by the guilty. I will not presume to guess whether that will happen. It is about compassion and justice for the terrified.

 

One last point. In an ideal world, I would go much further. The complainant would never leave the security of their home. Mobile television vans would be parked outside and thus would Justice proceed. But even I understand that at present is cloud cuckoo land. Yet one day…

 

Nigel Pascoe QC

The Pens of Tyrants

Let me put my views right on the line. The Daily Mail is seeking to subvert the rule of law by putting insidious pressure on independent Judges. A very serious charge, which I propose to justify from their own conduct and reasoning. I would hope that ultimately the Prime Minister and the Lord Chancellor will find the right words to condemn them. Ultimately the Attorney General may need to act. That will take enormous political courage. I am not remotely confident that any of those actions will take place.

Back first to the decision under appeal. To a simple legal mind, the ruling of the LCJ and his colleagues is crystal clear. There are defined and historical limits on the exercise of the prerogative. The course sought by the Government breaches those limits, as a matter of clear interpretation. Thus the Government must proceed by another route. The consequences of that are not the business of the judges. They simply interpret, to the best of their ability, the Law.

It follows that on appeal, that interpretation must be shown to be flawed. For example, too great weight was given to historical precedent. In interpreting the correct legal position, it may be said boldly that the Judges of our Supreme Court need to recognise the people’s voice, expressed sufficiently decisively in the Referendum vote.

Pause. If for the reason given or following more far more sophisticated submissions, the Supreme Court allow the appeal, THAT IS FINE BY ME. I really do not care at all what decision is reached in law. Whatever it is, I
and everybody else should, indeed must respect it. That is the way the system works.

Now let us see how the Daily Mail has set out to subvert the process, whilst paying lip service to judicial integrity and independence.

1. Collate and analyse all European connection of each Supreme Court Judge in order to assert the possibility or worse, near certainty of bias. Then rate them with stars.

1. Collate the views of the relatives, friends and acquaintances of Supreme Court Judges to assert that the Judge concerned will, for example, follow meekly the views of his wife.

3. Argue that they cannot help being influenced, directly or indirectly, by those views or connections.
Now you and I and everyone who understands the system in practise knows that not one of the Judges in question for a single instance would undermine their judicial oaths by any or all of the matters highlighted by the Mail. It is a total calumny. A lie. An insidious smear. A vicious attempt to damage and mislead. Lifetimes spent deciding strictly on the principles and facts of each specific case deliberately and cynically ignored.
But someone other than an outraged lawyer should be saying that.

Or rather, shouting it from the rooftops.

For Daily Mail justice is a very shoddy and unpleasant concept. Let us have no part of it.

The editor should apologise and resign. The Mail needs a new editor and a new sense of responsibility without changing its views. Today it shames our press and demeans our Judges. The pens of tyrants are polluting free speech.

Enough.
Nigel Pascoe QC

This scandal is far from over..updated

Read the editorials, absorb the comment pieces, not least by Dominic Lawson, admire the brilliant and vitriolic blogs, not least by The Secret Barrister. This story will run and run.

But Why? I can only cite a very good friend of mine and a far better lawyer than I could ever hope to be. There is every chance that this judgment will be upheld and for the reasons given. Which leaves two questions.

1. How can we prevent further damage to the democratic process, whilst doing no damage whatsoever to freedom of speech?

2. How do we persuade those who need to speak out to do their duty?

The two questions are interrelated. But the first is primarily to do with education, to explain the judicial function with absolute clarity.

A good starting point is the Judgment itself. I will use the excellent Summary which accompanies it.

“The issue before the court is whether, as a matter of UK constitution law, the government is entitled to give notice of a decision to leave the European Union under Article 50 by exercising the Court’s prerogative powers and without reference to Parliament

This is a pure question of law. The court is not concerned with and does not express any views about the merits of leaving the European Union. That is a political issue.

It is accepted from all sides that this legal question is properly before the court and is justiciable.”

Could anything be clearer?

Now I can see at once how the assertion that it is a pure question of law sits very uneasily with those who assert that it’s consequences are highly political. It will or may delay the implementation of Article 50.

It allows Brexiteers to fear absolutely genuinely that it may frustrate the will of the people. I certainly do not discount that fear. I voted to remain but absolutely accept the result. We must now leave, full stop. Yet many remain deeply suspicious of underhand steps to subvert the will of the people.

But the answer lies in the hands of the Government. Shorn of the right to exercise a veto by prerogative, they must speed up the Parliamentary process as they deem fit, whilst allowing Parliament its voice.

The second questions allows a more robust answer.

I refused to attack the appointment of the LC and I definitely wanted her to have at least the chance to follow the best of Michael Gove. Now I am very disappointed and that extends to the limited response of the Prime Minister. Far too little and too late. Just imagine how Lord Hailsham would have lambasted the evil comments of the Daily Mail! How can anyone begin to justify the insult to the Master of the Rolls? The phrase Enemies of the people will redound to that paper’s discredit as long as we can foresee. It was contemptible, base and shocking. Other papers must bear their own lesser shame.

It was the absolute duty of the LC to have condemned those attacks firmly and decisively and her late statement failed to do so. In fairness, her letter to the Times put the importance of judicial independence more strongly.  But it failed still to condemn the specific personal abuse.  Until it is, I do not think the issue can be put aside.

At which point, the advocate in me aches to find some mitigation. Surely she must have feared the reaction of her boss? Perhaps informal messages had been exchanged. They may have made it more difficult for her to assert her independence. And how can you castigate those who otherwise are supporting you to the hilt?

Well I have done mu best, but they are, at best, weasel words. The LC and the PM have let down the Judges under personal attack and they must accept the torrent of criticism which has followed. There is in the wings, as he has been for years, a perfectly obvious and supremely well qualified alternative LC, treated shabbily by the Government. One day I fervently hope that his time will come. Then we will see what prestige a great lawyer can bring back to the office.

So how do we prevent attacks on the Supreme Court before they have even received their papers, let alone decided. How do we protect them if they uphold the present judgment?

The answer is is by one bloody great big concerted effort, an application of reasoned and informed explanations of function and a plea for balanced journalism. That includes an explanation of the circumstances in which any Judge of principle does not sit because of a declared interest touching directly on the issue. That was unnecessary in the Court below and I have no doubt will be in the minds of the Supreme Court also.

What we cannot do is to let this gross distortion of our processes be forgotten. A line was crossed. We fail to row back from it at our peril.  There is no defence of free speech available to professional malice makers.

 
Nigel Pascoe QC

No Children in Crown Courts

 


 

Easing the Burden

This working paper considers the need for and possible scope of reform of the way that alleged victims of sexual assault give evidence. It distinguishes between children up to the age of 14 and all older victims. That distinction itself needs to be tested in the course of discussion.

Introduction

1. It is fair to accept that the treatment of complainants of sexual attack in court has improved significantly in the past ten years. Measures include specific training and categorization of judges, specially trained prosecutors, the use of intermediaries, limitations on the questioning of children and in the best run Court centres, a real attempt to support witnesses at court by trained volunteers. The broad issue is whether far more radical steps may be contemplated, which nevertheless preserved the ability of a defendant asserting his or less usually, her innocence, to have a fair trial.

2. Such a question rests on a simple premise: that so far as possible the damage which may flow from a complainant’s description of the attack upon them is kept to a minimum. The true victim will have endured the trauma of the original attack and the giving of their initial account. The Court process must be resolute to limit further damage.

Children

3. The first fundamental change, in its most extreme form, would be a complete ban on any child ever having to give live evidence in Court, either in a video suite or in front of a jury.

4. Such a reform would facilitate the child’s account being recorded in a place where it could feel as safe and comfortable as possible. That normally would be the home of a parent or relative. Necessarily on occasions child-friendly rape centres would still be needed.

5. The process of that recording should be refined to make it as unobtrusive as possible. That means no lighting, a small camera and a microphone positioned to guarantee complete audibility.

6. Young children should always be accompanied by a close and trusted relative or friend. But it would be wise to continue to exclude parents.

7. On receipt of the dvd, the defence would be required to report to the trial judge at the next Pre -Trial Review whether on not the Defendant had seen the recording. Best practice guidelines should indicate that that should take place, in the absence of good reasons such as illness or incapacity. Such a procedure might increase the possibility of a sensible plea and the credit which will always follow such an acceptance of guilt.

8 At the same review, the defence would be required to set out precisely the aspects of the child’s evidence which were in dispute. The Judge would rule whether the questions could be put by a mediator or the advocate instructed.

9. Then, where necessary, a further home visit to the child would take place but without the attendance of Judge or advocate or mediator. Instead there would be a live television link with an appropriate venue where Judge, advocate and mediator were present. The necessary challenges would be put and recorded.

10. That would end the involvement of the child in the process of trial.

Objections

11. Plainly the cost implications of country wide mobile facilities are considerable and require careful examination. What may be impractical in the short term may be feasible thereafter. It would be sensible to proceed initially by controlled trials in different parts of the country.

12. It would still be imperative to insure that the fundamental case for the defendant was raised in a format where the victim can respond to it, wherever the child is deemed old enough to do so. The extent of that duty would depend on existing case law.

Adults

13. There is a theoretical argument that the same protection should extend to all complainants of sexual assault. They should not be required to attend either court or rape centre. They should relate their ordeal from the security of a place where they feel most comfortable.

14. The author would argue that such a huge step ultimately would be the greatest possible protection against further traumatic damage. The practical consequences of such a change would be huge and extremely expensive. One question for discussion is whether such a change would ever be feasible.  However reform ultimately should not be predicated on cost but principle.

15. One reasonably predictable consequence of no complainant ever having to go to court would a very significant increase in the volume of complaints. The ordeal would be less and well recognized as such. Again the system must be expanded to meet the need.

Objections

16. It is also reasonably predicable that the number of false complaints would also increase. This is not at all a trivial objection. But it is impossible to devise a system which could resolve such a possibility in advance of a questioning process. The panel would need to consider further this aspect of the proposed reform.

Miscellaneous Reform

17. The purpose of this section is to stimulate discussion of other practical steps which could aid the position of the victim. It is axiomatic that any other steps should not undermine the ability of a defendant to put his case.

18. One possible step would be to initiate the help open to victims after a trial process immediately after the assault and make that fact known to all those in the trial process. The logic of that controversial suggestion is that the sooner a victim receives skilled help after they have been attacked, the quicker they will be able to recover from it. The trial process will be an incident in the process and of course may disturb it. But the process will be ongoing after trial and hopefully the trauma of the attack may be lessened. Such a suggestion needs expert psychiatric evaluation. It may be based on a false premise: victims may recover better if treatment commences after trial.

19. A further major change would be a psychiatric attempt to assess the level of damage already done to a victim before the court process of questioning her account is ever undertaken.

The logical consequence of such a process would be a further limitation on the extent to which some victims could be tested. That would be hugely controversial because of the obvious potential injustice to a defendant. But we need to wrestle with the fundamental point that the court process must strive to limit the damage already done to an individual complainant by the crime alleged. Jeremy Bentham writing today might be appalled at the continuing need for some complainants and most of all, children to relive and recall their ordeal in public. How have we allowed    this to continue for so long?

Finally it would be valuable to research the way that other jurisdictions treat complainants to advance the case for reform. That would be a useful topic to be tackled by skilled post graduate young lawyers.

Nigel Pascoe QC. October 2016

Waiting for Chilcot

On March 18th 2003 on the eve of war, I heard the whole of the Iraq debate in the House of Commons. Later, as matters unfolded, I decide to keep a detailed chronological summary of events and analysis, wholly dependent on published material and comment. In 2007 I finished a play called My Country Right or Wrong. Hitherto I had supported the Government. Tony Blair had been magnificent in debate. Now, with millions of others, I had changed my mind. Time to publish?

The news of the Chilcot enquiry made me pause. It would be foolish to pre-empt the findings, I thought. Perhaps some of those press reports were off-beam. However I hoped that the enquiry would proceed quickly. Sadly, for whatever reasons, that was not the case.

Earlier this year I decided to publish it not long after the Report emerges. Happily it does not cover the same territory as Stuff Happens, the superb play of David Hare, now about to be read again at the National Theatre. Not, you understand, that my efforts would exactly rival his…

So, soon it will be up on Amazon and hopefully have a production.

Will keep you posted…

Nigel Pascoe QC

Beyond Despair

I need to declare again that I am not a member of any party, although In my time I have voted for all three. But of course I share the universal recognition that our system of Parliamentary democracy cannot survive without an effective opposition.

What is happening at present is absolutely tragic.

It is plain to me that Jeremy Corbyn is a thoroughly decent and principled man, who has had the courage to retain his long-standing political principles. Equally clearly, the possibility of the election of a hard left Labour Government is minuscule. So long as he gives substance to such an agenda, he cannot represent the present elected Labour party. So sadly, I agree that he has to go.

But that must place within the rules. I agree with the Momentum argument that a leader has to put his or her head above the parapet and stand against him. I also accept that there is a whole mass constituency of young people, not necessarily all on the hard left, who believe in many of his principles and in him.

See what if a new election confirms him in post?

The answer is that there must be a new Labour Plus movement, with all the pain and dislocation that will cause to the Labour family. That would provide a proper rearrangement of the centre-left to form a credible opposition to the government. Incidentally I see the real possibility of the dramatic re-growth of the Lib Dems in the next two years.

In the meantime I have one real worry about Jeremy Corbyn himself. Concern that he has been put under intolerable pressure, be it direct or indirect, which will be damaging to him. A man can only stand so much. I have no evidence of course of where the pressure may be coming from, but the fear exists. You cannot have major public figures day after day condemning him without there being some impact. It is a very difficult situation, but humanity trumps even idealism.

So let a challenger come forward and then we can begin a return to full parliamentary government.

Nigel Pascoe QC

 

Mistake, Muddle and Malice aforethought

Call me naive, but I do not share the easy lie about our political class: that they are essentially self serving and malign, dedicated only to their own grubby strivings up the greasy pole. Nearly all that I have met, of all parties, have been fundamentally decent, anxious in that over-used phrase to make a difference for their constituents. Nor do I believe that ambition, even of the naked variety, is necessarily incompatible with decency and a desire to serve and help others.

Where does that optimistic belief stand after the leadership manoeuvres of both major parties?
In truth, I may need to rely on advocacy to make the best of it. But the shockwaves of Brexit have produced some very curious behaviour.

Let me start with the Prime Minister, who left the stage with grace and dignity. Inside Downing Street I would have shared the tears that flowed. No party member, I still regard him as a fundamentally decent man. We share a common tragedy and of course, that makes me cut him some slack. But I much regret his peremptory demand to Jeremy Corbyn to go. Rarely can a man have felt more lonely in the House and he did not need that gratuitous slight.

Nor do I think that if Boris Johnson had been in situ, he would have said it. Likel many, I am very ambivalent about Boris. He does appear disorganised and I can accept that there would have been the real chance of serious misjudgment, had he become PM. He would have needed the most conscientious of supporters to provide the detail and even so, could have blown it. But he has other qualities almost unique amongst his contemporaries. Charm, real good humour and I think often an unforced decency which might have unified more than divided. His speech after winning was, I think, an effort to reconcile, though it has not survived angry satirical attack.

Leading of course to his perceived assassin. I do not know the Lord Chancellor, or his wife for that matter. I fear he will pay a heavy price for what really was a very late decision. It takes a brave advocate to argue against treachery and betrayal, but again that sits oddly with the man who debated so skilfully and as always with courtesy. I do not think the Conservative party will give Michael Gove the instant redemption which would make him Prime Minister. I only hope that high intelligence is put behind the huge trading changes we need to survive. Just for the record, I see no reason at all to criticise his wife. None.

So in the play I would love to write of these frenetic days, so far the verdict would be Mistake, Muddle but no Malice Aforethought. But of course the full story has not yet been told…

Of the other challengers, save one, I will be brief. I can see Theresa May as a Prime Minister who would command respect across the House. Playing a cautious hand, she certainly has the experience to lead. I know little of Dr Fox or indeed Stephen Crabb, although I can see the latter in the frame in a few years.

But I was extremely impressed during the first television debate with Andrea Leadsom. My side of the case was not served nearly as well as the Brexit one. Boris was statesmanlike, despite some very regrettable aggression shown to him. Gisella Stuart was calm and very impressive. Andrea
Leadsom was simply superb. Why do not more politicians realise that absolute clarity coupled with a smile and obvious decency count for so much with the mass of the public?

In a word, I think that Andrea Leadsom has what it takes. But hey, not down to me.

Next blog, Her Majesties Opposition. More advocacy will be needed.

We live in interesting times. Calm down, says Her Majesty. Respectfully, I could not agree more.

Nigel Pascoe QC