On Lord Janner

As those who know me will be aware, I studied law, briefly and unhappily, emerging from University with an indifferent degree in the subject and a profound dislike for the profession. A few spells as a juror and a couple of half-bungled convenancing transactions later, not much has changed.

Occasionally some event reinforces that view that, however clever some lawyers may be, they are not overly burdened with common sense. And that any legal process can and will be prolonged to the utmost extent if there’s a drink in it for them.

So I was taken by the following headline from the BBC yesterday: “Criminal proceedings against the late Labour peer Lord Janner over sex abuse charges have ended because of his death, an Old Bailey judge has said.”

It’s the intervention of that Old Bailey judge that makes it, isn’t it? It took one of the finest legal minds in the land –  I had lunch once at the Old Bailey, and they are indeed bright – to decide that there was no point in prosecuting a corpse.

I realise Janner was a wrong ‘un, with new cases of abuse still coming to light. I know some of the victims wanted to see him in the dock. (To aid compensation claims?) But what did they think the courts could do?

Prop him up, El Cid-style, in the box? “And how do you plead, guilty or not guilty?” Silence. “I think we’ll make that a not guilty, m’lud.”

Cross-examination would have been interesting, too, if a bit protracted. And precisely what sentence did they have in mind, had the awful process of the law found the peer, still dead, guilty? “Hanging’s too good for ‘im, I say.”

And how much did this ridiculous farrago cost the legal system, apparently, we hear almost every day, reeling under the impact of “the cuts”? So how much did it cost the tax-payer?

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On Judges, And Pond Life

I know exactly who the Well Known Sportsman is, who has gone to a judge and issued a gagging order forbidding the press from revealing his – am I allowed to say his? It’s always a he, isn’t it? – affair with a Well Known Celebrity. Admittedly, I had never heard of him before because my knowledge of the sport he plays is almost non-existent.

I had heard of the Celeb too, but only dimly, and I had little idea what she is famous for. Except for sleeping around, apparently. This sort of pond life does not interest me, and I refuse to waste my time and efforts trying to keep their names in mind.

The judge, though, who I know nothing about either, has taken the view that an adulterous affair is little to be upset about because few people “other than adherents to strict religious codes” give a toss about adultery these days. So we have no reason to know about it.

Fair enough, on one level. I couldn’t give a stuff whether Sportsman A has been playing hide the sausage with Nonentity B. Who could possibly care, aside from A’s wife of fairly recent vintage? (Am I allowed to say that as well?)

You have to wonder about the judge, though. How do you end up in a position to rule on anything, least of all in a courtroom, with such a skewed view on morality? I suspect the majority of people, religious or otherwise, regard adultery as, at the very least, a moral failure. Not something rich people should be allowed to have struck from the official record because they are rich, and can afford a QC.

And what judge is under the impression that his or her ruling will prevent this sort of thing being discussed on social media? In 2015? Anyone who wants to know who the sportsman is, or the celebrity, will know anyway. Should they really care. Try Googling…. Oh, fine, find it out for yourself.

 Still, there’s a drink in it for the lawyers. As ever.

On Tom Hayes, And A Loaf Of Bread

The story of the nine-year-old hanged in the 18^th century for stealing a loaf of bread is probably just that – a story. But there was a significant toughening in penal policy over the latter half of that century, especially as regards theft, with a number of extra crimes added to the list meriting execution.

Deportations were also common for even fairly minor offences. They were troubled times. The French Revolution was playing out across the Channel, and the rich in the UK, who owned almost all the property, were worried about the masses one day coming for their share.

This is the way law and penal policy works. Sentencing reflects the social concerns of the time, which can sometimes seem bizarre and shocking to future onlookers. Two other examples. The harsh sentences handed out in the 1960s to mild drug offenders, especially in the US – several years in prison for the contents of a couple of spliffs.

Society was running scared of a counter-culture that did not share its values. One of the most obvious differences that set it apart from that mainstream was the use of drugs. Cf the Oz trial here.

Today, any racial element to a crime means it will be treated more seriously. If someone is beaten up for the colour of their skin, the perpetrator will be treated more harshly than one who committed the same offence after taking exception to, say,  their posh accent.

Both are a form of discrimination. But in a multi-ethnic, multi-cultural society where a lot of different races and religions have to rub along together, anything that makes the process more difficult is anathema, and treated accordingly by the courts. Probably rightly.

Tom Hayes worked for a number of City banks, and seems to have misbehaved at all of them. He has just been given 14 years for rigging the key Libor rate. The sentence is wildly disproportionate and will probably be reduced on appeal, perhaps to a more reasonable seven years.

He would probably have got less had he stabbed to death a colleague on the dealing floor. It is not even possible to work out who lost out because of his misdeeds, or by how much.

It does suggest that, seven years after the financial crisis started, sentencing policy is beginning to reflect the public mood towards those seen to have caused it. Hayes is largely blameless in this respect. His actions had nothing to do with the roots of the crisis, though his behaviour typifies the sort that went on elsewhere and did cause it.

Not a good time to be an errant banker, then. Though in that late 18^th century, they and their sort would probably have ended up on the gallows.

On The Law

The law was the one closed shop Mrs Thatcher failed to break. Blame the sheer number of lawyers in Parliament with a vested interest, though I suspect today the average MP is more likely to be a former policy wonk. Not an improvement.

Now my former colleague Michael Gove, who these days is justice secretary, will have a go. He says the law is the preserve of the rich but fails the poor, and that it must become more efficient.

Fair point, the first. Rich oligarchs and corrupt businessmen from the developing world flood to London to settle their disputes in our courts, though given how much they pay to do so, this might better be seen as a lucrative invisible export.

And while on the rich, Gove might have a look at the miscarriage of justice which has seen celebrities dragged through the courts for long-forgotten misdeeds, cleared and still hit with huge legal fees. In the millions. Ditto some journalists. I cannot understand how that can be seen to be fair. It’s a huge, disguised fine levied on the innocent.

Having, as I have written, just done jury service, it is pretty obvious to me that the criminal justice system is as riddled with systematic waste as the NHS, and for very much the same reason. It’s not their money. The procedures that operate in both would not be countenanced in a private company, though that sort of time-wasting and foot-dragging was prevalent enough there forty odd years ago when I joined the workforce.

Sit in the jury box, and you are often met with the bizarre sight of a judge typing away on a laptop while prosecuting and defending counsel rummage through piles of paper. Almost nothing is computerised. There are endless delays as key people fail to turn up. Bits of evidence are repeated over and over again, or are supplied in written form, only to be tortuously read out verbatim in court as well.

Several of my fellow jurors, quite independently, speculated how much of this waste and delay was down to lawyers being paid by the hour. And the hours? Ten to one, a break for lunch, two to four, or before this if convenient.

And don’t even consider the idiocy of men dressed in costumes more appropriate to the 17^th century. What message does the wearing of wigs send to the 21^st century juror? It does not, trust me, engender respect.

Over to you, Michael.

On 50 Shades…

‘Oh Bondage/Up Yours’ Poly Styrene, largely forgotten 1970s punk rock singer.

I have not read 50 Shades Of Grey. I have no intention of seeing the film. Not my kind of thing.

It is, I believe, hugely significant, culturally. It is the first piece of mainstream erotica, a film couples will willingly go to together, with no other pretensions than being a depiction of sex, albeit of a somewhat less mainstream kind.

Previously, sex in the cinema has either been smuggled in, via art. Last Tango In Paris was by Bertolucci. That’s all right then. Empire Of The Senses was a Japanese art film. With subtitles. That’s all right, then.

Or it was porn, shown late at night at specialist cinemas. Emanuelle. I Am Curious Orange. Deep Throat. Now almost entirely forgotten. Not by any stretch of the imagination date movies. See the scene in Paul Schrader’s Taxi Driver, when Travis Bickle takes her to a porn movie, as an example.

The sociology of law tells us that legislation lags behind cultural norms. Homosexuality was becoming acceptable before it was legalised. Drunk driving became socially unacceptable, and the law was then more rigorously enforced. A similar process is now taking place with smoking, which is increasingly unacceptable and will one day be illegal. While certain recreational drugs will in the next ten, twenty, thirty years become legal. In my view.

Let’s get some historical perspective. In Victorian times, the sight of a naked ankle was tabu. (Victorian erotica, if you have ever seen any, is weirdly prudish by our standards. Very big hips, too. Definite lady garden.The idealised female shape has changed.)

By the Twenties, a hint of stocking was no longer shocking. Anything goes. Except it didn’t. The naked female breast was still tabu. It only really went mainstream in the 1960s and 1970s. Page Three, Play For Today. Frank Finlay in Casanova. Some will remember…

50 Shades does not feature explicit penetrative sex, which we will call PS from here on, something which occurs in most people’s bedrooms and therefore should not be especially shocking. Except that it is still tabu. It is freely available on the Internet, of course, and at specialist clubs and in some public places.

See that lagging effect. PS is not yet mainstream, but the success of 50 Shades, and PS’s availability elsewhere, suggests that the sociological norm is shifting. In some European cultures, it already is mainstream. See the publications freely available at street booths in Paris, Amsterdam, Brussels. Porn is an accepted genre of French cinema.

If I am right, then one day someone will produce a well filmed piece of mainstream PS,, which couples will go to without embarrassment or shame

I am not usually short of a moral compass, as regular readers of this blog will appreciate. But I have no idea if this is a good thing. I know that teenagers now see things which in my youth were literally unseeable. They are aware of PS in every context. The libertarian in me says this is a good thing. Something else in me says the complete opposite. I do not know.

On the ECHR

One of the few interesting courses I took as a law student four decades ago was in jurisprudence, or the philosophy behind the law. We studied people like Hugo Grotius, a Dutch writer who lived in the late 16^th and early 17^th centuries.

He wrote on something called natural law, an attempt to distil moral concepts into a body of rules that should govern all human behaviour. His contribution was to say that it was possible to evolve such a code without any divine intervention, and that if religious principles ran counter to this, they should be discarded.

If the law of God is unjust, it is no law at all, he said. (I paraphrase.) This was daring stuff for the time, and in a Catholic country would have brought him to the attention of the Inquisition. Fortunately, Grotius lived in the more enlightened Dutch Republic.

The principle became one of the foundations of the Enlightenment, see this blog passim. What has it to do with the European Court of Human Rights? Well, wind forward to the Allies’ victory in Europe and the Nuremberg trials. One of the defences put up by Germans in the dock there was that their actions were not actually contrary to the laws of the land, as they existed in Germany at the time.

This gave the Allies in the west some pause for thought. (The Russians, understandably, had no truck with such sophistry.) If the actions the defendants were on trial for were not illegal at the time, how could they be deemed illegal now? The (western) Allies were keen not to have the proceedings at Nuremberg appear a case of “victors’ justice”.

They fell back on the concept of natural law. The laws that allowed the defendants to carry out such actions were illegitimate because they ran contrary to any proper code of law.

Most people have a vague belief that the ECHR has something to do with the EU, Brussels, interfering eurocrats, etc. On the contrary, the ECHR was set up by the Council of Europe, separate from the EU though, confusingly, sharing the same flag and anthem.

The Court was created to enforce the principles of natural law and basic human rights. It would ensure that, if any country that had signed up to them subsequently passed laws that contradicted them or breached them, its citizens would have some authority to appeal to. That authority, the court, could overrule those laws and protect those basic human rights. What happened in Germany in the 1930s could never happen again.

The Conservatives say they will pull the UK out of the ECHR and ensure Parliament is able to overrule its decisions. It is true that many believe the Court has exceeded its authority and extended its remit into areas where it was never intended to go. It is true that some judges there are drawn from countries with debatable human rights records, and some do not appear terribly professional.

But disentangling the UK from the ECHR would be rather less easy, and raise more difficult constitutional questions, than some tub-thumping politicians may claim.