What is justice?

A nasty fat scrote was convicted last week of the murder of a thirteen year-old girl by the name of Amanda "Milly" Dowler (here). Her murderer, as he was eventually proved to be, pleaded "not guilty" when put on trial so the forensic process that has developed over centuries was put in train. English law, as it stands at present, requires the prosecution to prove the guilt of an accused person beyond reasonable doubt and has a complex system of procedural rules to try to ensure that no innocent person will be convicted of a crime. Only a fool would suggest that the system is perfect, nonetheless it is as it is as a result of thousands of minor adjustments over hundreds of years. Further adjustments will be made as time passes, I can only hope they all bear in mind the overriding consideration that the innocent should not be convicted.

The procedural rules cover four main areas. First, there are requirements for the police to conduct their investigation subject to certain limits, for example questioning suspects must not involve oppressive actions. Secondly there are limits to what can be put before a jury - this is the law of evidence that, for example, allows hearsay evidence only in certain circumstances. Thirdly there are limits to how a lawyer may put a case in court, these are imposed by the codes of conduct that apply to barristers and solicitors. Breach of the codes of conduct can, in extreme cases, lead to someone being disqualified from practising law and in less extreme instances there can be suspensions of practising certificates or fines. Fourthly, trials are presided over by judges who have a wide discretion to prevent lines of questioning if they consider them insufficiently relevant. It is not without reason that judges can only preside over serious cases if they have earned a "ticket" to do so.

Over the last few days the conduct of the lawyers defending Milly Dowler's murderer has been subject to a great deal of ill-informed criticism. I need not explain the errors of the critics because it has been done already by Ms Wig (here), to which I was alerted by the good Mr Paine. My comment today is not about the details of that case but about something much more troubling, namely a false definition of justice.

One thing we must get clear right at the beginning is that the victim of a crime is the victim - not the victim's family and friends, not the readers of a newspaper, not people with children of the same age or bearing some physical resemblance to the victim, not people of the same racial or social grouping as the victim, but the victim and only the victim. Milly Dowler was the victim and only Milly Dowler was the victim, desperately distressing though her death was to her parents they were not the victim, Milly Dowler was the only victim in the murder of Milly Dowler.

Justice in the case of the murder of Milly Dowler could be delivered only by convicting her murderer of murder and having him sentenced according to current sentencing laws. That is an exercise between the State and the accused. It is absolutely not an exercise between the victim's family and the accused.

Far too often I read or hear references to a criminal trial bringing justice for the victim or the victim's family, that is utter nonsense. It will, no doubt, give them a degree of comfort that someone has been convicted; frankly they would receive the same degree of comfort whether the person convicted was the murderer or someone who was completely innocent. The administration of criminal justice is exercised by the State on behalf of the general populace and is intended to reach a true result whether or not the victim or victim's family is happy with the outcome. I say again, in serious cases the victim and/or victim's family often wants someone convicted, anyone, and they have no interest in whether the convicted person is guilty of the offence. The system of justice is designed, albeit not perfectly, to convict only those proved clearly to be guilty. If that means a family continues to mourn a murdered person and never discovers who committed the heinous crime, so be it.

The system must be unemotional and impersonal. The system must acquit anyone it cannot prove to be guilty. He or she might be guilty in fact but if we, as a general society, are to impose a penalty we would not volunteer for ourselves we must do so for good reason. A crime committed against a famous or popular person deserves no greater investigation and no lower standard of proof than one committed against a homeless crack addict with no family or friends to wail in public. Each requires the over-weaning powers of the State to result in a penalty against an individual only if the State can prove that a penalty is justified.

It is inevitable that some very serious crimes are never solved. No matter how thorough the police investigation, nothing can happen unless it turns-up evidence of sufficient weight to justify prosecuting a suspect. And even when the Crown Prosecution Service believes it has enough to justify a prosecution, that will only be enough to justify a conviction once a trial has been conducted, the defendant's lawyers have challenged the prosecution case as well as they can and a jury has returned a verdict of guilty. Unsolved cases involved victims and family of victims just as much as solved cases.

Criminal justice is about the defendant not the victim or the victim's family. There is no such thing as justice for the victim or the victim's family because, by definition the victim has already undergone his or her trauma, sometimes fatal trauma, and his or her family have suffered their consequential trauma. All that is left is the chance of identifying, convicting and sentencing the perpetrator. The only question is whether there is sufficient evidence to satisfy a jury that they should say "guilty" rather than "not guilty".

Pandering to victims and, in particular, to consequential or vicarious victims is no way to administer justice. If we give them any special protection in court from the questioning that would be relevant of a non-victim / non-victim family member, we risk placing their peace of mind above justice. I know it it will sound harsh to those of a certain mind, but it must be said loud and clear - no victim and no victim's family is entitled to see someone convicted and given a penalty. Whether someone is convicted and given a penalty depends not on the feelings and desires of anyone, it depends on cold, hard proof of guilt to the strict standard that is imposed to ensure (so far as possible) that only the guilty face the serious penalties resulting from conviction for criminal offences.

In this field, as in so many, meaningless feel-good concepts have been developed by psychologists with too little to do. One such concept is that of "closure" ( I occasionally comment on a "bad word", this is one). I watch little television but I do enjoy quasi-documentary programmes about real crimes, especially murders, a lot of which feature on a channel called Crime and Investigation. Time and again there is a police officer spouting words he has learned but never analysed, he says "we are pleased to have given the family closure" or some such twaddle. Anyone with half a brain understands that the death of a loved one is something that lives with you for ever. That someone is convicted of killing the late lamented loved one gives a degree of comfort but the pain continues and will continue until the end of your life. "Closure" is a concept designed to make victims or their families feel good but it has nothing to do with justice.

Criminal justice is not personal, it is not something delivered to victims, it is wholly and utterly about the State imposing a penalty against those proved to have broken laws. It is, so far as the system can ensure, impartial, impersonal, unbiased, unbigoted and aimed at only the defendant. Any attempt to change these principles will result in more innocent people being convicted, that is not something I would welcome.

Privately collected taxes

My old chum Mr Wadsworth regularly puts forward a proposition I just can't understand (as he did yesterday). The starting point, as I understand it, is that governmental activities sometimes result in people making money they would otherwise not make. No one could dispute that. This government-inspired profit is described as "privately collected tax", and that is the concept I cannot grasp.

I suppose it all depends on where you start. The blankest page is one of anarchy, a situation in which there is no government and, therefore, nothing we would describe as law. Onto that blank page we put a system of government or, to be more precise, we put a system of law. The most basic effect of any system of law is prohibition of particular activities accompanied by sanctions for breaking the prohibition. Every prohibition that impinges on economic activity results in people either gaining or losing money compared to how things would be in the absence of the prohibition. I can illustrate what I mean with a simple example.

Two factories make motor cars. A law is brought in requiring all new cars to meet a particular standard of robustness in the event of a head-on collision. Factory A's cars meet that standard but Factory B's cars do not and it would cost so much to redesign them that Factory B is no longer viable. Factory B closes and Factory A makes additional sales as a direct result of Factory B no longer being a rival. As I understand it, the theory says Factory A benefits from "privately collected taxes" because it makes additional income because of the new law - that law gives an economic advantage and this advantage is said to be a "privately collected tax".

I fail to see this as privately collected tax. To my mind it is an economic consequence of a law but it is not a tax unless you adopt a highly artificial definition of tax.

It is hard to find an example of economic activity in the UK which is not affected by law. The costs of manufacturers and retailers are increased by the need to comply with health and safety laws. Those who are unable to comply or who can only comply at a cost that makes their business unprofitable will go to the wall. They do not go bust because of tax they go bust because of the cost of complying with the law. Those who are able to comply do not make "privately collected taxes" they make income by selling their wares within the framework of the law. All businesses that receive income by way of cheques or card payments do so only because there is a framework of law to give such payments a cash value. Businesses that deal only in cash receive valuable income only because the law recognises bank notes and coins to have value. To what extent do the laws that turn cheques, plastic payments, notes and coins into useable value represent "privately collected taxes"?

No sensible person could deny that laws allow people to make income they would not make in the absence of those laws. Indeed, I would go further and suggest that no one earning a living in this country would earn exactly the same living doing exactly the same thing without a complex framework of laws affecting the job they do and the field of business within which they operate. Identifying a single law and suggesting that it provides a benefit that should be classified as a "privately collected tax" is, in my view, to take that single law out of context. All other laws that affect the business in question will necessarily increase or decrease income or costs. Any law that increases income must be balanced against laws that increase costs.

It is no more realistic to look at those laws that lead to increased income or decreased costs as allowing the business to benefit from "privately collected taxes" than it is to say the laws that lead to decreased income or increased costs amount to "privately incurred tax rebates". And that is the heart of the matter. Once one adopts the language of tax to describe something one must adopt all the language of tax and describe every aspect of the business in the same way. If you describe economic benefits received because of a new law as "privately collected taxes" you have to have a description of losses incurred as a result of a new law. Only "privately incurred tax rebates" could fit the bill yet it is a nonsense because there is no one to pay a rebate. The reality is that some people benefit from new laws and some people suffer a detriment, but neither the benefit nor the detriment is tax in any sensible use of the word.

Raping common sense

Rape is a subject only the bravest or most foolhardy politician deals with because you can be sure that anything you advocate, short of castration of all male babies at birth, will result in a torrent of high-volume but low-quality nonsense from a whole raft of attention seeking morons.

Ken Clarke proclaimed, to universal outrage from the non-thinking, that some rapes are worse than others (summarised here). He was, of course, absolutely correct. Some murders are worse than others, some armed robberies are worse than others, some speeding offences are worse than others and some rapes are worse than others.

It should be observed at the start that there are two broad categories of rape, reflected in the American distinction between "statutory rape" and "rape". Statutory rape is, in broad summary, consensual sexual intercourse where the law deems one or both of the participants to be incapable of giving consent even though they do actually give consent. In this country the age of consent is sixteen, so every time a girl or boy under the age of sixteen has sexual intercourse the other person involved commits rape according to English law and it is fair and sensible to call it "statutory rape" even if both parties consent. It is not rape according to the law that applies to adults because adult consent is recognised as being of value in the eyes of the law, but consent under the age of sixteen is deemed impossible. It takes a staggering degree of blind ignorance to be unaware that girls and boys of fourteen and fifteen have been rutting for generations, they certainly did when I was at school. Nonetheless, the law is as it is and it has to draw a line somewhere, however imperfect or unreasonable that line might be in particular cases.

"Statutory rape" itself comes in many shapes and forms. You can have two fifteen year-olds "doing it", in which case each is raping the other according to the law. You can have one under-sixteen and one of sixteen; one of fourteen and one of nineteen; one of fifteen and one of forty and so on and so forth. According to the law, each of these instances involves exactly the same offence but only a fool would suggest they are all the same. As a matter of everyday experience we might like to presume that the older person always holds sway and, as a general rule that might well be true, but it is far from always the case.

"Rape" as opposed to "statutory rape" arises where one party does not consent to intercourse. It might be the male or it might be the female. Is it not obvious that a difference exists between every "rape" and every "statutory rape"? In the former one party does not consent, in the latter both parties consent but the law does not recognise the consent of at least one. In the former it is necessarily the case that one person is forcing themselves on another in the most intimate way possible whereas in the latter no one is necessarily being forced to do anything.

So what of "non-statutory rape", is it a single black-and-white offence without shades of grey? Of course not. Some rapes involve the minimum possible amount of violence for the perpetrator to get his or her way while others include threats of violence from the mild to the utterly terrifying or violence itself of every conceivable degree. None of this dilutes the fact that the act of rape itself is a serious violation of one human being by another, and Mr Clarke was not suggesting otherwise. He was pointing out nothing more than that some rapes are more serious offences and, therefore, deserving of harsher sentences than others.

I first learned of this episode when listening to a radio news broadcast while driving back home after collecting a pile of manure. As soon as the BBC's summary of Mr Clarke's comments was given I said to myself "it's Wednesday, Milliband will have called for Clarke's dismissal at Prime Minister's Questions". Lo and behold, Miliband called for Clarke's dismissal at PMQs. Pure student union politics - naive, unrealistic and failing to address the point that was made. It was like having Gordon Brown back but with a fake mockney-estuary accent rather than a dribbling, bitter Scottish brogue.

The absurdity of Miliband's position is that he had an open goal and chose to kick his opponent rather than the ball. Ken Clarke did not just offer opinions about rape out of the blue, he did so in the context of a proposal to reduce the length of time some rapists spend in prison after conviction. Perhaps Miliband was mindful of his own party's failings during their thirteen years in government, during which sentences for serious offences got shorter and shorter and punishments for petty regulatory infringements got harsher and harsher. The standard three years' imprisonment for a first domestic burglary has become a caution or written warning or a few hours of community service. The standard seven years for rape without extrinsic violence has fallen to between two and three. Armed robbery now gets six years rather than twelve. Defrauding the taxpayer of tens of thousands of pounds earns only eighteen months when four years would have been unappealable twenty years ago. All this happened during the previous government's time in office, sadly it is continuing now.

Rape is a nasty offence. Forcing someone into the most intimate possible act against their will, with possible consequences of unwanted pregnancy or sexually-transmitted diseases, is barbaric to my simple mind. I doubt that many would disagree with the sentiment "no, you just don't do that to someone else, not ever". Few crimes get or deserve that reaction. Statutory rape in which consent is genuine does not get or deserve that reaction. Current sentences for non-statutory rape are derisory because Parliament has decreed that they should be. It is for that serious dereliction of duty that politicians should be held to account, not for pointing out the blindingly obvious.

Insurance premiums and Euro ideology - part two

My previous offering (here) did not cover one aspect of the debate about the effect of the decision of the European Court of (so-called) Justice in case number C236/09. As I said then, the court decided that the premiums charged and benefits paid under insurance policies must not discriminate between men and women. In other words, men should never pay more or less than women simply because they are male and women should never receive more or less than men simply because they are female. I offered some views on the premium issue but said nothing about benefits.

The good Mr Pogo raised a matter in the comments (here). He observed that annuity rates are generally more generous for men than for women and wondered whether the court's ruling would require this to change. The answer, I think, is that it depends whether an annuity is an insurance policy.

As I understand matters personal pensions work as follows. An individual pays contributions to a third party in order to build a fund from which a pension will be payable if he lives long enough. He could just save the money himself, but by paying it to an approved pension fund holder he is allowed to claim tax relief for his contributions. The pension fund holder collects the payments, invests them as well as it can, take a chunky commission at every stage and accounts to the contributor every year with a statement explaining just how little is being held in the fund. Each pension policy has a defined end-date. Provided the contributor has reached the age of 55 he or she may receive something back (it used to be 50 but is now 55). If he or she is younger than 55 at the relevant date, the fund is closed and the accumulated lump-sum is invested until he or she hits the magic age. At that time the policy matures.

I don't pretend to know many ins-and-outs of insurance law, but believe it is correct that these pension arrangements are a form of insurance. All insurance involves two factors: (i) you pay premiums and (ii) you are entitled to receive a payment if the thing you have insured against occurs (be it a burglary, a disease or, as in the case of pensions, reaching a certain age despite modern science decreeing that to be impossible because you smoke and drink). Entitlement to receive anything under a pension plan is dependent on a contingency and for that reason I believe it correct to say that pension plans are a form of insurance.

Insurance can entitle you to a fixed sum (you might pay premiums that entitle you to £5,000 if you break a leg bone - no matter which bone or how seriously it is fractured, you get the same sum) or to recompense for loss (as with home contents insurance), or to protection against claims others take against you (as in the case of professional indemnity insurance), or it might entitle you to a variable sum depending on how well the insurance company has invested its receipts. This latter course is how pension policies work. The heirs of those who die before the maturity date of the policy might or might not be entitled to claim a lump sum by way of refund and they might or might not make a claim, in any event some money will be left in the fund by those who cannot or do not get a refund. Some investments will be good, others will be bad. The fund will be what it is at the date a policy matures and the policyholder will be entitled to a lump sum calculated according to the state of the fund at that date.

When the policy matures, the policyholder is entitled to a lump sum but, if he claimed tax relief on his contributions, he is not entitled to receive it as a single lump sum. I believe a certain percentage can be taken in cash but the rest has to be used to buy an annuity. Many think this requirement iniquitous, but that is not the point of today's missive. The point is that the insurance policy comes to an end when the lump sum is calculated and paid. It goes without saying that all insurers large enough to administer pension funds also offer annuities, but their customers cannot be required to buy one of their annuities. The customer is entitled to a lump sum but must take that lump sum in the form of AN annuity, not any particular annuity. The purchase of the annuity is a separate transaction from the allocation of a particular lump sum to a particular policyholder on the date the pension policy matures.

At that date the policyholder has the benefit of a sum of money. Provided that sum of money is not calculated differently according to whether the policyholder is male or female it will not, I think, fall foul of the ECJ's ruling.

When it comes to buying an annuity men tend to get better terms that women because we don't live as long. Whether being the recipient of nagging shortens life or delivering nagging lengthens life really doesn't matter, it might even be a combination of the two, but the fact is that blokes generally don't live as long as gals. Annuities reflect this reality by giving men slightly better returns. It seems to me that that will not fall foul of the ECJ's decision unless annuities are insurance contracts. I cannot see that they are.

An annuity is a contract under which you pay a company a lump sum in return for being entitled to an income (paid weekly, monthly, quarterly or annually) for life. An annuity is no different from the cash-for-equity deals that are available to homeowners of a certain age. You make your house over and in return are entitled to a defined sum each year for as long as you live, it might even be index-linked, and you are also entitled to remain in the house. There is nothing about this that seems to me to equate it to insurance any more than purchasing an annuity is insurance. It could, I suppose, be argued that the lump sum is a premium and the receipts are benefits that depends on the contingency of longevity but that involves a contingency that causes payments to cease rather than one that caues payments to commence - and an essential feature of insurance, as I understand it, is that the entitlement to receive a benefit rests on a contingency other than payment of the premiums.

If this is correct, annuity returns are not caught by the ECJ ruling.

It's only a matter of time, of course.

Insurance premiums and Euro ideology

It is not often that men come out on the right side of anti-discrimination laws, but the slavish adherence of the European Court of Justice to a flawed principle seems to have produced exactly that result. I am, of course, talking about the recent decision that insurance companies are not allowed to discriminate between men and women purely on the grounds of gender when setting premiums or paying benefits.

The judgment itself (here) is clear. Where the position of men and women is comparable they must be treated the same. Where their positions are not comparable they may be treated differently. Who decides when their positions are and are not comparable? Well, the institutions of the EU of course and they have decreed that the situations of men and women are comparable when it comes to setting insurance premiums and calculating benefits payable under a policy.

In some respects this is patently absurd. Women are at greater risk of thefts in the street, (for example, handbags are easier to snatch than wallets in jackets) young men are at greater risk of crashing a car, men are at greater risk of dying younger, men are at greater risk of injury around the house (they climb on chairs to fiddle with electric fittings whereas women climb on chairs to scream "eek" at the sight of a mouse). These disparate levels of risk exist between the sexes but it is not their gender that causes the disparity it is their behaviour and different patterns of behaviour present different risks of an insurance policy being called upon. Because, generally speaking, men behave differently from women men present a greater risk for some types of insurance and a lower risk for others.

Throughout the world these self-evident facts have conventionally been reflected by higher premiums being payable by those most likely to present a claim. There are two aspects to this because insurance operates in two ways. On the one hand, some insurance exists primarily to pay the policyholder a defined sum in the event of certain things happening; for example you can take out insurance that pays you a lump sum in the event that you break a leg or suffer a heart attack, or you can insure the contents of your home so that you receive some money if you are burgled and your stuff is nicked. The only beneficiary of such a policy is the policyholder himself (leaving aside the right to nominate a different beneficiary but there are limits to when and how that can be done). On the other hand some insurance exists primarily to provide protection to third parties against damage done by the policyholder. Lawyers, architects, accountants and others have to carry insurance so that anyone suffering due to their negligence can be compensated; similarly car drivers take out insurance not just to compensate them in case a crash occurs but also to ensure that innocent third parties can be compensated. Strictly speaking third parties are not entitled to claim against these indemnity policies, instead the policyholder is liable to pay compenation and the insurance company provides the funds from which he pays it; although the reality is that the insurance is for the benefit of the third parties.

Whether insurance is primarily for the benefit of the policyholder or third parties, it involves shifting risk from one person (or group) to another. If you have no household contents insurance the removal of your goodies by little Johnny Toerag causes you a loss and you have to dip into your own pocket to replace the missing things, the risk is yours alone. By insuring against burglary that risk is spread among all policyholders. Equally, negligence by an architect might cause millions of pounds of loss which will fall initially on the owner of the building; the owner can sue the architect but will he have the money to pay? Perhaps not, so he has professional indemnity insurance to ensure there is a fund from which his "victim" can be compensated. In that case risk passes from the owner to the architect to all those who have paid premiums into the relevant fund.

There is no single principle by which the fairness of the spread of risk can be assessed but the conventional approach is to charge higher premiums to those who are more likely to make a claim and lower premiums to low risk customers; in addition the greater the size of any potential claim the greater the premium. Different people, and different insurers, can take widely divergent views about how premiums should be weighted. Some might think it fair for everyone to pay the same premium, or for premiums to be graded according to the income of each policyholder, or to vary according to the area in which the policyholder lives, or according to his age or his occupation. Arguments can be made for each of these factors to be given particular weight in certain situations. What is considered fair is a matter of opinion and opinions necessarily vary.

I have read a lot of comment in the last few days about the judgment of the ECJ being unfair to young women drivers who, apparently, are much less likely to make a claim on their motor insurance than young men of the same age. It certainly appears to be the case that insurers will not be able to charge young men higher motor premiums than young women because that would involve unlawful discrimination on the basis of gender. I find this a slightly confusing concept. There is a reason why young men's premiums are higher - it is because, as a class, they are more likely to make claims. Not every one of them is a menace, but sufficient are to make them a risky group - not by way of anecdote but by way of hard evidence about the number and type of incidents in which they are involved. That is fact, that is reality. For reality to be cast aside in favour of a political ideal strikes me as highly unappealing.

Having said that, all weighting of insurance premiums requires judgments to be made about what is and is not fair. When I last had a big car and its insurance was due for renewal I obtained quotes varying between about £350 and just under £2,000. Same car, same location, same driver with decades of experience and not as much as a speeding ticket, yet one insurer assessed the risk I posed as requiring a premium five times higher than another. No doubt each felt they were chrging what was fair in the circumstances.

We shouldn't get too uptight about car insurance. Maybe premiums will go up substantially for young women, maybe they will fall a bit for young men, maybe they will rise for older people to allow premiums for the young to find a level between the current male and female level. Whatever happens there will continue to be wide differences between insurance companies' charges.

More troubling is the illustration given by the recent ECJ case of the consequences of pushing ideology into areas that are none of its concern. I have no problem with the concept of men and women being treated equally by the law, but I find it ludicrous that the law requires anyone to pretend that differences that actually exist as a matter of fact between men and women do not exist. There might be a simple way to avoid this absurdity. It arises only because the EU has decreed that the position of men and women is comparable so far as insurance premiums are concerned. As a matter of fact that is simply not the case, at least it is not the case when it comes to motoring premiums. The EU could, were it so minded, allow insurers to charge men and women different premiums where there is clear evidence that men present a higher risk than women or vice versa. That, indeed, was the position until it was struck down by the ECJ because it was inconsistent with another provision of EU law.

If we have to have EU law (and the sooner we don't, the better) it should at least try to reflect reality. I doubt that it can ever do so to a sufficient degree to gain public support because it is systemically ideological rather than practical. It is not just Middle Eastern despots who can only bully their subjects for so long before they are ousted.

Captain Ranty's "Legal Fiction"

I have been reminded by the good Mr Wadsworth (here) of a recent posting on the site of the deliciously entertaining but occasionally deranged Captain Ranty (here). In the piece highlighted by Mr Wadsworth the Captain made a bizarre and patently absurd assertion, namely that a judge in a County Court had made a finding in law that there is a distinction between between someone calling himself Roger Hayes and living at a particular address, let's call it 34 Acacia Avenue, and Mr Roger Hayes who has been billed for Council Tax at 34 Acacia Avenue.

The case to which he refers involved a claim being made in the County Court and I infer the local council had issued a summons against "Mr Roger Hayes" and served it at 34 Acacia Avenue claiming whatever sum of Council Tax for 34 Acacia Avenue had not been paid. I also infer that the only adult human being who is both known as Roger Hayes and lives at 34 Acacia Avenue attended court. When there he claimed not to be Mr Roger Hayes and not to be liable to Council Tax for 34 Acacia Avenue because he was Roger Hayes, the human being, whereas Mr Roger Hayes is legal corporation but not comprised of flesh and bones. I don't propose to waste a good keyboard on explaining everything that is wrong with this manifestly ludicrous proposition, save to say it has no merit in law and is almost certainly unfounded in fact (for example, I'll bet you a pig to a pork scratching that the human being has acknowledged himself to be Mr Roger Hayes hundreds if not thousands of times and has benefited from doing so - in passing, I wonder whether he has a bank account and, if so, whether the bank records the account as being that of Roger Hayes or Mr Roger Hayes, if the latter poor Roger would be liable to repay every penny he has ever withdrawn). What I want to explain is what the judge's conduct of the hearing amounted to.

By way of background, I should point out that nothing Captain Ranty or (Mr) Roger Hayes are saying today is at all novel. Every year the courts hear these and similar arguments being put forward in a vain attempt to challenge either the right of the court to hear the case or the very concept of enforceable law. Friday afternoons are reserved for such people by the procedural judges (known as Masters) of the Queen's Bench Division of the High Court. The arguments range from demands that the judge provides evidence of his appointment followed by a refusal to accept that the judge is a judge unless he can do so, to assertions that certain Acts of Parliament have no effect because they contravene Magna Carta, to attempts to get one judge to re-hear a case that has already been heard by another judge, and all sorts of nonsense in between. Experience shows that the best thing to do is sit back, let the barmy argument be put and then get on with the case. Frequently this involves adjourning the matter to a later date on the ground that further evidence is required on one point or another or because the court has run out of time due to the spouting, at great length, of unmitigated tosh by the misguided litigant. In some instances these adjournments are made in the hope the nutter will give up, and sometimes they do.

The choice for the judge is to allow the rubbish to be spouted, or to try to prevent it being spouted. No third way exists. Trying to prevent carries risks because the litigants are often either unstable or obsessed or both. Neither County Courts nor the High Court are usually staffed by a six-foot bouncer with a stun gun, instead they have an usher who is more likely to be a lady in her late fifties called Enid with no weapon more effective than a clipboard and a ballpoint pen. No judge is going to put his or her staff at any physical risk if they can avoid it, so the path of least resistance is adopted. This involves trying to dismiss the point briefly in the hope the annoyance will accept the indication and go away, but if that fails it is safer to allow them a "day in court". That does not mean that any credence at all is given to the eccentric theories being expounded, far less does it amount to an acceptance of those theories or that the person arguing them has any legal right to appear in the case at all. It's all a matter of practicalities. Years ago judges tended to be somewhat brusquer on average than they are today, yet even the most robust would show their greatest politeness when faced with a litigant in person barking up the wrong end of a very sturdy tree.

Nothing in the case referred to by Captain Ranty hints for even a second that the judge accepted any part of the fanciful arguments being put in front of him. Rather, it is a classic case of a judge trying to get a nutter to go away and then sitting back resignedly and facing the unappealing fact that the nutter will persist and should be allowed to do so to prevent any unpleasantness and/or the wasting of even more time by another judge being faced with exactly the same scenario at a later date.

Today's bad word - "diversity"

On Thursdays the Times newspaper has a Law section containing snippets of legal news and gossip, the profile of a lawyer who has been involved in a recent newsworthy case and a main article dealing with an issue likely to be of interest to members of the legal profession. This week's article highlights concerns expressed by the Lord Chief Justice (the conveniently named Lord Judge - incidentally, we also have a Court of Appeal judge with the surname Laws) that too few solicitors from high-powered city firms are applying to sit as judges and too few people of high quality are attracted to criminal and family work because the pay is poor.

The article appears under a sub-heading reading "The Lord Chief Justice is worried about the diversity of the Bench" and was illustrated with a column listing the number of women and former solicitors sitting at the different levels of the judiciary. I cannot speak for Lord Judge but I think both the sub-heading and the illustrative numbers are misleading. Not only can I not speak for Lord Judge but I do not know him personally and can interpret comments he made only against the background of his well-known reputation at the Bar. Somehow I doubt that "diversity" of itself is his desire. Indeed, I think it impossible that diversity could ever be his desire although it could be a pleasant consequence of the system of judicial appointments. My point is about the whole concept of "diversity" and the way it is interpreted in the article in the Times because I believe it has been misinterpreted.

Let's take a heart by-pass operation as an example of what I mean. If you need one, what would you expect of the surgeon assigned to carry out the procedure? Well, that's simple, you would expect him or her to be at least basically competent at heart by-pass operations. That's all. Male or female, dusky-hued or blotchy pink, old or young - all irrelevant; they should be able to do the job. Then let's ask who should be appointed to a vacant cardiac surgical post. That's also simple, it should be the applicant who is best at the job. Male or female, dusky-hued or blotchy pink, old or young - all irrelevant; ability should be the only guide. It is only by appointing the people best able to do the job that the customer (patient) can have the greatest chance of being sliced and spliced by someone who is likely to do it well.

So also with the judiciary. Different types of judges deal with different types of work, some of which require a vast amount of technical knowledge of relatively narrow fields of law and others of which are more concerned with the management of evidence. If the Chancery Division of the High Court needs a new judge because an established expert in company law has retired or been promoted it would be no surprise to find an expert in company law appointed to fill the gap; you would not find a criminal law practitioner being appointed because, no matter how brilliant he or she might be in their chosen work, the skills and knowledge they have developed in practice would not make them suitable for such a specialist judicial post. The only question should be "which of the applicants will do the job best?"

Whether the result is that heart surgeons or judges comprise the same proportions of men and women, dusky-hueds and blotchy pinks and fortyishs and sixtyishs as the population as a whole is neither here nor there.

That is not to say we should not ask "why are so few women / ethnic minoritists applying to be judges?" Of course that question should be asked because there might be something about the application prodecure or the judicial work itself which deters suitably qualified people and that the obstacle is especially high for women, the darkly pigmented or, indeed, any other category of potential applicant. The only way to deal with such an issue fairly is to amend the procedure or introduce different working practices for judges so that suitably qualified people of all types can apply and know they are competing on a level playing field. This is to approach the issue of "diversity" from an inclusive frame of mind. You keep the quality standard and do what you can to ensure as many people of the required quality are involved, no matter who they are.

It is a different thing entirely to start from the premise thay we must have a judiciary that is "diverse" and treat that as an end in itself rather than a desirable consequence of a fair recruitment system that always appoints the best candidates regardless of any minority label that some might wish to attach to them (or that they might wish to attach to themselves). To treat diversity as a criterion for selection is, necessarily, to exclude some better candidates because they carry no such label and that is a worse vice.

One reason Lord Judge is the Lord Chief Justice is that he is a hugely fair man. Over his long career in the law there has never been a hint that he would treat someone less fairly because they happen to be female, dark-skinned or have non-standard sexual tastes. Nor would he treat a blotchy-pink heterosexual male less fairly than anyone else. He is, in my view, someone who looks on "diversity" of the judiciary as a desirable end of a selection process based purely on merit. Indeed, in order to be based purely on merit it is necessary for the process not to discriminate against anyone by reason of them falling into a numerical minority for one reason or another.

Having spent some time mulling-over the column of judicial statistics, I am hard-pressed to see its relevance. What it shows is that only 1 of the 11 Supreme Court Justices is female (actually it's 1 out of 12), 3 of 37 Court of Appeal judges, 16 of 108 High Court Judges, 87 out of 680 Circuit Judges and 110 out of 448 County Court District Judges (there are also 143 District Judges who sit in the Magistrates' Courts but no figure is given for the number of those who are female). On the face of these figures women could be said to be discriminated against; but who are the applicants who have been refused appointments because of their gender? Who are the potential applicants who wanted to apply but did not because the process was obstructive to women? My adult lifetime has been spent in the law and I have never met such a person. These numbers don't really tell us much.

There are all sorts of reasons why we have so few women judges. In order to gain an appointment it is usually necessary to have at least 20 years' experience and usually more, so what follows relates to those who qualified two decades and more ago. First, there are far fewer female lawyers than male lawyers. Secondly, the proportion falls as they reproduce and either leave practice for ever or take a long break to supervise the fruit of their loins and then return to work part-time. Thirdly, those who return to work full-time once the last speck of vomit has been mopped from the nursery floor miss several years of experience and feel that gap means they are not yet ready to apply. Fourthly, those who still have dependent children sometimes feel the relative lack of flexibility over working hours (and days) would be inconvenient. Fifthly, many are not the primary earner in the family and are not particularly career-minded. These points are relevant more to those who might be considered for positions as Circuit Judges and District Judges than to the high-flyers who would aim for the High Court bench but they are all derived from my own experience of the very many senior female lawyers of my acquaintance.

Before the Harriet Harman fan club pelts me with rotten tomatoes and chants "sexist pig, sexist pig, sexist pig pig pig" to the tune of the William Tell Overture, I must remind them of one thing. Female lawyers are a tough breed. They take their own decisions. That those decisions deprive simple Harriet of the statistics she wants is her problem not theirs. I know not whether the Times' legal editor is of the Harriet Harman school, but I do know that including bare statistics about the current numbers of female judges when discussing future judicial appointments is, at best, an irrelevance.

This whole exercise illustrates something about the bad word "diversity". In the wrong hands "diversity" means discrimination - discrimination of the worst type, discrimination based on pigmentation and gender. In the right hands it is a useful watchword against which to assess whether admission to certain positions is open to all regardless of pigmentation and gender. "The Lord Chief Justice is worried about the diversity of the Bench" is a classic formulation from the wrong side of the fence and does not match what Lord Judge said. He is definitely on the right side.

Docks and the presumption of innocence

The presumption of innocence is hugely important. Amongst other things it emphasises that the powers of punishment possessed by the State should only be exercised against individuals whose guilt has been proved by reliable evidence. Numerous inroads have been made into that basic principle in the last twenty years, including requiring accused people to prove their innocence in some circumstances and allowing types of evidence to be given that have been considered unreliable for decades and, in some rare cases, centuries. I do not want to discuss those today but to look at something that occurs every day in criminal courts and which I have always considered fundamentally at odds with the presumption of innocence.

I refer to the practice of the accused person having to sit in the dock. As a general rule of courtroom architecture the dock is an enclosed area towards the rear of the court and faces the judge, lawyers involved in the case sit between the dock and the judge. In some older courts, such as the four original courts at the Central Criminal Court (Old Bailey), the lawyers sit on the side opposite the jury but in almost all newer courts the lawyers sit in rows in front of the judge with the dock behind them.

Many docks are raised above the level of the well of the court and the defendant sits in deliberate, exposed isolation as his fate is decided by everyone before him. His legal team cannot just lean over and ask him a question or pass him a note, they have to move to the back of the court and stretch upwards to get their instructions. It draws attention and disrupts proceedings.

In the civil courts the litigants sit with their lawyers. This is useful because it is often necessary to take further instructions during a case and it can be done quietly and without interrupting the trial if the person you need to speak to is beside you or in the row behind. More than that, both the claimant and the defendant are on the same physical level. Although one of them claims that the other has done something wrong, the presumption of innocence applies also in civil cases and this is reflected by the fact that they sit in the same row of seats no matter how bitter their dispute.

Many High Court judges spend most of their lives working as barristers or solicitors on complex civil disputes and then, on being appointed to the bench, are given a pretty constant diet of serious criminal cases to try. Often this means murders and manslaughters. Although long fraud trials are rarer now than twenty or so years ago they still happen and the usual practice now is to dispense with a dock and allow the defendants to sit with their legal team. That practice was first adopted regularly in the late 1980s when the courtrooms used for such cases simply did not have docks because they were not designed as criminal courts. No problem was encountered of defendants doing a runner during the morning smoking break, it all worked rather well and allowed the proceedings to be got through with the minimum of fuss.

That, indeed, is the practice in most States of the USA. Even in cases of capital murder the accused person sits with his defence team in the well of the court. He might be in handcuffs or ankle cuffs, where there is any serious fear that he will abscond he will be in some sort of restraints, but he is presumed innocent of the charge he faces so he faces that charge without being put on an isolated pedestal at the rear of the court like an exhibit in a freak show.

Where there are very solid grounds for believing an accused person might abscond there are also good grounds for him being placed in an area of the court from which escape is difficult. That is, however, a very rare circumstance. In the normal run of things defendants are not kept in custody before or during their trial. They go home at the end of each day and turn up the next day. When in the car or on the bus going to and from court they are just another person, no one gives them a second glance. But when they get to court they are sent to a special confined area and set apart from everyone else involved in the trial.

It could be said that placing a defendant in the dock suggests nothing about his guilt or innocence and is merely giving him a special place because the case is about him. But that misses the point. Everyone with a need to know who is accused will know it regardless of where he sits. By separating him physically you set him apart from everyone else simply because he has been accused. Yet he is not different simply by reason of being accused, he is still presumed innocent just as the judge, lawyers, jury and court staff are presumed innocent whatever they might actually have done.

Let me link this to current news. Today it is reported that two men have been arrested on suspicion of the murder of PC Keith Blakelock in 1985. I popped into the Old Bailey to watch a few hours' evidence when three people were tried for that murder in 1987. It was headline news at the time and a chum of mine was representing one of them, so I thought I'd take a look. I had an afternoon when my paperwork could wait, so went down to the Old Bailey, donned the wig and gown and went into court. The first thing I did (after bowing to the bench, you always have to do that first) was look up at the dock to see "them". And that is exactly how it was, there was a "them", a trio of brutal murder suspects. I didn't view them as just three blokes I might have been sat near in a pub. They had a different character, they were accused of murder and their very presence in the dock identified them as something different from the rest of us. I cannot pretend I looked on them with the presumption of innocence at the forefront of my mind because I did not. Ghoulish though it was, I felt I was looking at three cold-blooded barbarians who hacked a police officer to death with machetes. As you probably know they were convicted but then freed on appeal due to serious deficiencies in the way evidence was gathered. When gawping at them I was not applying a presumption of innocence, I was doing exactly the opposite and the effect was enhanced by all three of them being in the special naughty box.

Docks have been part of our criminal courtrooms for well over a hundred years. Today they are less appropriate than ever because press and TV reporting of serious crimes has become so sensational that the presumption of innocence is undermined long before an accused person appears in court. The very least that can be done is to ensure the courtroom does not add to the isolation of the accused person from all the other "presumed innocent" people in court.

Keeping down the cost of passports

From time to time I am asked to countersign passport applications. These days there is quite a long list of people who can do this, what they have in common is formal qualifications or actual working experience from which it can be inferred that they might be vaguely respectable. I am by no means the only barrister who blushes at that concept, but there it is, I'm on the list so I can do it.

Yesterday I was told by a relative that her local medical practice charges £50 for a doctor or nurse to certify a passport application. I was absolutely stunned. How can anyone think it appropriate to charge money for doing this? It seems to me that charging a fee inverts the whole basis of having an official list of the sufficiently great and good. I am qualified to certify applications because my formal qualifications give me a recognised status.

The Law of Status used to be a subject in its own right, it was a course in university law degrees, these days it is rather out of fashion but it still exists. With status comes duty and one of those duties is not to profit from your status otherwise than by earning fees putting your knowledge and skills into use. One aspect of this is codified in the Bar's formal code of conduct which (paraphrased) says that no barrister should seek to gain any personal advantage by reason of his position as a barrister. For example, seeking to get a booking at a busy restaurant by pompously letting them know you like to wear a horsehair wig at work is strictly forbidden. No doubt few establishments would be sufficiently impressed but some might, so we are not allowed to do it and can be fined, suspended or disbarred if we do. This sort of example might seem trivial until you realise that it is not so much about preventing us getting an advantage as it is about others being disadvantaged by our actions.

Status is a double-edged concept. On the one hand it qualifies you to do work others are not permitted to do, often this means that your work is better paid than most. On the other hand it is a matter of how people perceive you. The days of doctors and magistrates being viewed with awe by Mr and Mrs Ordinary are behind us, but the presumption probably still exists that doctors and magistrates have qualities that Mr and Mrs Ordinary don't have. As such the status of being a doctor or a magistrate means that for some purposes they will probably be considered "better than" or "superior to" other people. Because that perception might exist, misuse of it has long been forbidden (yet long practised by those of the "do you know who I am?" school of thought).

It is a moot point whether it is legal to charge a fee for performing a non-professional task that relies on your status, where the profit takes the form of folding stuff rather than a nice table by the window it is arguable that it is unlawful. I am not going to dwell on that side of it today because it would take hours of detailed research. Regardless of the strict legality, I believe it is wholly wrong to make money from voluntarily exercising a power conferred by reason of nothing other than status.

If you think it's too much trouble to countersign a form and write a few words on the back of a small photo, just decline the invitation. If the person knows no one else who is qualified to do it then you should do it as a matter of duty. If they do know someone else then they must ask them once you have rebuffed their request. I have always consider it flattering to be asked to perform this small and simple task. I have also considered it something that I should do whenever asked, it is no burden but even if it were it is a small price to pay for the privileges that come with my official status; indeed I consider having the power to help someone I know obtain a passport is itself one of those privileges. It is not a service I perform in the exercise of my profession it is assistance given to someone I know who is kind enough to entrust that task to me.

Now I'm going to have to spend a day or two in the library researching the lawfulness of imposing a charge. I do hope I conclude it is unlawful, not only is it far too long since I had a serious paper published in the legal journals but I would love to nail the avaricious bastards.

Hi-ho, hi-ho

I'm not really returning to blogging. To be more precise, I do not currently have any intention to return to blogging. A while ago I said that about work.

It was March 2005. While sitting in my study at home after a morning of gentle paperwork it was time to check recent emails before going into work in the afternoon. At first it was a bad bout of indigestion, perhaps I just needed to take a nap or a green chewy antacid thing, so both were tried. But no. After about half an hour it was apparent that I was having a heart attack - a myocardial infarction as the medics would say. One artery supplying blood to my heart was blocked causing the part of my heart muscle that relied on that particular supply of fresh blood to be starved of oxygen and to die. I had heard heart attacks described as "like having a giraffe stand on one leg in the middle of your chest". That's not wrong as far as I can tell, never actually having had a giraffe stand on any part of me with any number of legs.

In a way the most difficult part of the event was phoning for an ambulance for myself. Had I been present when someone else suffered similar chest pains I would have called 999 with alacrity. It's rather different when it's you and the hope remains that it is indigestion even though it's obviously a heart attack. Just a good fart is all it will take to prove your self-diagnosis wrong, so you don't pick up the phone until the pain is almost unbearable.

Eight days in hospital and the knowledge that I'll be popping pills for the rest of my earthly had a profound effect. One conclusion I reached was that I had to stop work, so I did. The decision was made easier by the fact, for fact it is, that on returning home I opened a file in a pending case and broke out in a cold sweat at the thought of having to present that case in court. Perhaps my work was a convenient scapegoat for the recent trauma, but a terrifying cold sweat is not something you forget easily. So I retired.

It was easy enough for the first three year or so. There were things to do, assets to rearrange, final taxes to pay and many other things beside. Once they were all done a gap was apparent. For the first time in my adult life I had nothing to do. That is rather a strange sensation when you have spent your life being more busy than you can really manage. It is no coincidence that I then started this blog. For more than a year my need to do something was satisfied and then I realised I had said everything I wanted to say. Actually that is only part of the picture. I had opined on all the subjects that matter to me but I also knew that blogging was a distraction in my need to do something, a temporary and infrequent solution.

Last week an old friend asked me to cast my piggy eyes over the papers in a difficult case he had in the Court of Appeal. It involved an area of law that has always been of special interest to me since I lectured on the subject more than a quarter of a century ago. What fun it was. A couple of days in the library to make sure all recent developments in English, Australian and Canadian law were understood, preceded two days of discussing the issues and developing a "game plan" for the presentation of the appeal. By happy coincidence while I was on library duty I ran into the QC who heads the set of Chambers from which I used to practice. After the usual pleasantries he declared that he wished to persuade me to come out of retirement and return to the practice of the law. As usual his timing was impeccable. Working on a really interesting and difficult case took me back to what I enjoyed most. I needed no persuasion.

A few administrative things have to be sorted out and then I will be back at work, back doing what I do best (although I only do it moderately well). I have long been a believer in the old sayings, one of which is never say never. I did say never in 2005. On meeting old colleagues since then and being asked when I will be back "never" was the response also in 2006, 2007 and 2008. That was then. This is now.

Hi-ho, hi-ho it's back to work I go.

The impenetrable problem with rape

The crime of rape has three elements: (i) there must be intercourse (vaginal or anal, the distinction between buggery and rape was removed some years ago), (ii) the victim must not have consented to the act and (iii) the perpetrator must not have believed that consent was given. Most, but by no means all, contested allegations of rape revolve around consent. Either it is in question whether the alleged victim consented or the defendant asserts that he (or she) genuinely believed the other party did consent.

A typical case involves a woman alleging that she did not consent and the male defendant saying he believed she did consent. Sometimes the woman is not contradicted when she says she did not consent and the trial revolves solely around the state of mind of the man. Say it is indeed the position that the woman did not consent but that the man believed she did. From her point of view what was done to her was every bit as bad as if the man knew or believed she did not consent. From the man's point of view he did nothing wrong because there were no signs that the woman was not a willing participant. In such a case the woman is a victim because she was forced to have intercourse against her will, however the verdict should be not guilty because the man believed she gave consent. It's not a happy state of affairs.

Take a slightly different example, again the woman did not consent but it is not clear whether the man believed she consented. For so long as guilt must be proved beyond reasonable doubt, the verdict should again be not guilty. Again the woman is a victim but the man's guilt has not been proved.

For tactical reasons it is sometimes best not to challenge the alleged victim when she says she did not consent - it might be that such an attack could backfire for the defence where the woman is seen as vulnerable. In many cases, however, the woman's consent and the man's belief in consent revolved around the same evidence. If she showed no outward signs of lack of consent, that is consistent both with her actually consenting and with the man believing she consented.

There is only one way to ensure that a conviction for rape follows where the woman did not consent to intercourse and that is to remove any need for the man's state of mind to be considered. This is fraught with difficulties because the man could then be convicted and given a lengthy sentence when there was no way in which he could have thought he was doing anything wrong. That is just as much of an injustice as it is for a woman to find her attacker is acquitted because of his belief even though she did not consent. A half-way house is possible by reversing the burden of proof when it comes to assessing the man's state of mind. Once the jury is satisfied that the woman did not in fact consent, it could then be for the man to make a positive case that he believed she did consent. In such a situation reasonable doubt would not help him, he would have to prove that he positively believed she consented. Although it would be unusual for the burden of proof to be placed on a defendant in a serious case there are numerous examples in the law of defendants having to prove particular defences once the prosecution has laid the necessary foundations to make a case against him.

Whether reversing the burden of proof would improve conviction rates is pure speculation. One possible result is that more attention will be focussed on the woman's state of mind in cases where, at present, a tactical decision is taken to concentrate on the man's state of mind. If his state of mind has to be proved and hers only has to be subject to a reasonable doubt, it would not be surprising to find a shift in tactics to match the shift in the law.

I have never read of any proposed change in the law that provides a sound answer to the fundamental difficulty arising in cases where the woman does not consent but the man believes she does. Politicians can bleat until they are blue in the face about the need for a higher conviction rate in rape trials, but for as long as the law takes account of the man's state of mind their protestations will just be hot air.

Hung, drawn and quartered

The last week has been very interesting. Being a currently retired person with far too much time on his hands I have been wandering about looking at things. In particular I have been looking at premises occupied by businesses that have appeared to be struggling over the last year or more. I expected to find that some of them have closed in the last week, indeed I expected to find that more closed in the last week than in any other week over the last six months. It's all a matter of a nice little legal quirk.

A lot of business premises are rented rather than owned by the businesses operating from them. Business rents are usually calculated as an annual amount but are not payable in one lump sum, they might be payable weekly, monthly, quarterly or half-yearly. Quarterly rents are probably the most common and the convention is that they are payable on the old Quarter Days - March the 25th, June the 24th, September the 29th and Christmas Day. It's easy to remember the Quarter Days because March has 5 letters, June has 4 and September has 9, therefore it's the 25th, 24th and 29th and everyone can remember Christmas Day (this was the most useful thing I ever learned from my old land law professor). Usually the tenant will be entitled to surrender the lease provided he gives a certain period of notice and the date on which surrender is effective is a Quarter Day. It is sensible for the end of a lease to coincide with the end of a rental period.

This means that June the 24th is a very significant date for ailing businesses. By Easter they will have a pretty good idea whether the current year is likely to allow them to sink or swim. Their banks will know this too. Close on the 24th of June and you have another six months of the year to try something else. Stay open and you are liable for another three months' rent as well as the extra staffing costs associated with summer holidays. Of course some businesses can expect to be at their busiest in the summer and for them a surrender at the end of September or December is more practical, but it presumes their bank will let them trade that long.

My perambulations established what I expected. At least eleven shops and three restaurants within twenty minutes' walking distance of FatBigot Towers drew down their shutters for good. Others are struggling on but with no visible signs of sufficient custom to make it worthwhile. I expect to see more of the same in three months.

Lawyers and lies

In my last offering I relayed an anecdote from the dim and distant past, a snippet of my life as a barrister of moderate ability. It prompted a comment from one of the innumerable Messrs Mous. In a nutshell he alleged that lawyers lie for money. This is not just a matter of semantics, it is a matter of substance, so I want to explain why he is wrong. What I am about to say does not ignore that some lawyers break the rules. The anecdote I told was of a client who gave evidence that his right arm and hand were virtually non-functioning and then, after his evidence had been accepted and he was awarded a substantial sum in damages, used his right hand to open a heavy courtroom door. Mr Mous suggested I should have reported that fact to the judge.

The job of a trial lawyer (as they like to call them in America) is to argue his client's case to the best of his ability. It is absolutely not the job of the lawyer to judge the case. I dealt with plenty of cases in which I had grave doubts about my client's truthfulness, only to find at trial that he was quite plainly telling the truth. Equally, I dealt with many in which my opinion was that my client was in the right, only for him to be exposed as a blatant liar. If you want trial by lawyer rather than trial by court, a great many more miscarriages of justice will occur than at present. As a trial lawyer you have to suspend disbelief and just put forward what your client says, after all that is what your opponent is doing and unless both sides are argued fully how is the court meant to resolve the dispute? The process of examination and cross-examination will lead the judge or jury to agree with one side or the other once they have weighed both sides of the argument and all the evidence. That course is not open to a lawyer because he only hears what his client tells him, he does not and cannot hear what the witnesses on the other side say and, most importantly, how they say it, until trial. Their evidence will be served in writing prior to the trial but that merely lets you know what they say, it tells you little or nothing about how they will answer challenges to their version of events.

That doesn't mean we don't form a view about who is likely to be telling the truth, of course we do, and as we gain more experience we like to think our powers of assessment improve. Such an assessment can be nothing other than an opinion, however. We can tell the client we think his position is weak and explain why - and we do, we have to - but if he insists that he is correct and our assessment of the situation is wrong, who are we to disagree? We weren't there when the disputed conversations took place or the disputed incident occurred, whereas he was. Maybe he really is lying to us, maybe he is telling the truth, we cannot know either way. What we can do is advise him of the apparent weaknesses in his case and tell him how very expensive it will be if he loses and has to pay the other side's costs.

A clear majority of cases I dealt with did not go to trial. Either one party capitulated totally or a deal was done. It was only in a few that we ended up in a trial. If my client was lying, was I lying when putting forward his case? I don't think so, because in order to tell a lie you have to know that what you are saying is untrue. The lawyer was not there when the disputed events occurred, he cannot know what happened, he can only know what his client has told him. And at this point we come to a cardinal rule I have never known to have been broken in any case I was involved in. If your client tells you he is not speaking the truth you are not permitted to argue that he is truthful. If he tells you he forged a document you are not permitted to put that document forward as genuine. The reasoning behind this is that if he says it he is admitting something against his own interest and, therefore, is likely to be truthful about that. People often lie to protect themselves but they rarely lie to put themselves in trouble. If your client admits wrongdoing you are never permitted to advance a positive case to the contrary.

As to the anecdote I told, what was the position? The trial was over. The judge had given his judgment in my client's favour and then it appeared that things were not as my client had said. Is it seriously suggested that I should have invited the judge to return to court and tell him that I had witnessed something inconsistent with the evidence he had accepted? That would give rise to another series of issues which would require another trial. Where would it end? You would have lawyers being cross-examined about what they saw or heard and then the judge would have to decide those issues and consider whether they affect his original judgment. It simply isn't a practical course of events. I won't pretend it was comfortable witnessing something that appeared to undermine the whole basis of the judgment that had been given just a few minutes before. But in practical terms it would be impossible to frame a principle requiring a lawyer to report his own client to the court after judgment has been given.

Lawyers are duty-bound to put forward their client's case, decisions about the veracity of witnesses and the overall strength of a case are for the judge or jury, not for the lawyers. It makes no difference whether the lawyer is being paid. Almost everyone of reasonable seniority conducts cases each year for no fee, yet the requirement not to put forward something your client has told you to be untrue remains whether you are being paid or not.

Are lawyers paid to say whatever their client wants them to say? No, absolutely not. We are not at liberty to put forward something we have been told is untrue, nor are we permitted to advance a case that is unsupported by evidence but we are obliged to put forward a case we believe to be complete rubbish because we are not judges, we are advocates. More often than we expect, our assessment turns out to be false.

It's the court of public opinion again

Some ideas are just bound to result in confusion and disappointment. Today I read of a plan to consult "the community" on various aspects of criminal justice, not as a consultative procedure prior to enacting new laws but as an on-going part of the system of justice. The plan is set out in detail on the Ministry of Justice website (here). At first glance it looks like a lot of well-meaning guff, my fear is that it is rather more dangerous than well-meaning.

It doesn't help that the announcement is framed in management-speak twaddle, including such concepts as "proactive and accessible community-facing district/borough Crown Prosecutors" and "a toolkit ... to raise awareness and streamline processes". Digging through the nonsense, the plan for "community" consultation seems to involve three parts. First, employees of the Crown Prosecution Service will have to consult "the community" when deciding whether to prosecute in particular cases. Secondly, "Community Impact Statements" will be used at all stages of the criminal justice process. And, thirdly, "Citizens' Panels" will be involved in deciding the type of work done by those sentenced to carry out community service.

What isn't said is what "the community" means. Of course it's one of those cuddly words our government likes to use but which doesn't really mean anything and tends to divide people rather than unite them, as I mentioned a few months ago (here). What is it meant to mean in relation to the prosecution of criminal charges? Who counts as part of "the community" for that purpose? Are you disqualified from being consulted if you have a criminal record? Is there one local community when considering theft from shops and another when considering domestic assaults? And what criteria will be sued to select those to be consulted? Will it be for us to put our views forward or will they seek us out? I don't know. But my guess is that we will find special interest groups pressing their positions and the little people being sidelined. So, what of the three proposals themselves?

I have enormous difficulty with the first idea - Crown Prosecutors having to consult the public when deciding whether to prosecute and, if so, for what offence. In any given case either there will be sufficient evidence to justify a prosecution or there will not. The test to be applied cannot change just because "the community" wants more people to be prosecuted for particular types of crime. After all, in the court of public opinion it is not prosecutions that are called for it is convictions. Calls for more prosecutions where the evidence does not justify prosecution are in effect calls for more acquittals and, therefore, for greater public disappointment. No matter how reasonable it may be to demand a crackdown on shoplifting or stabbing, it achieves nothing to prosecute more people only to find that the rate of convictions falls from, say, 70% to 50%; the public perception will, quite rightly, be that the crackdown has backfired.

"Community Impact Statements" are new to me, although the Ministry's website suggests they have been compiled by the police for some time. I can understand them being useful to the police who have to be able to identify particular types of criminal behaviour that are weighing heavily on Mr and Mrs Ordinary in order to adjust their policing strategy to address topical local problem, how well they achieve this is open to debate but in principle it is sensible. How, though, does that affect anything other than policing? It can't affect sentencing otherwise you have convicted people being given potentially radically different sentences in different parts of the country which is fundamentally incompatible with the administration of justice being even-handed. I mustn't overstate that point because the prevalence of a certain type of criminal behaviour in a particular area has been a legitimate consideration for decades and can justify a slightly higher sentence being passed by way of deterrence to others. However, the scope for increasing a sentence on this ground has always been limited otherwise you can find someone being given a substantially greater punishment than his conduct warrants because of what other people have done not because of what he has done, which is wrong in principle.

The third idea might have something going for it but only if it applies in a particular way. There is sense in "the community" identifying worthy projects to benefit from the free work of those serving community sentences. In reality, of course, it will be individuals or existing groups who identify such projects and bring them to the attention of the Probation Service and I can see a benefit to creating a simple channel through which their ideas can be put forward. Selecting which projects are appropriate must remain in the hands of the Probation Service themselves who have to consider the resources they have available for supervision and the suitability of those projects for the unskilled attention of a group of spotty glue-sniffers.

If this whole scheme is pursued with any promise that "the community" will get what it wants there can only be two consequences. Either the lynch-mob will be kept happy, in which case the whole thing will collapse under the weight of the Human Rights Act before you can say "disproportionate"; or the lynch-mob will find itself ignored in which case the system will be held in even greater contempt than it is already. There is no half-way house because there is no way of preventing a promise of contentment from giving rise to a lynch-mob mentality.

Without a promise that "the community" will get what it wants, the exercise can be nothing more than window-dressing.

If we want a true measure of "community" involvement in the criminal justice system we have to look at other things. For more than twenty years criminal charges that were once heard by a jury have been transferred to the exclusive jurisdiction of the Magistrates' Court, that process has accelerated over the last decade. Although lay Magistrates are members of the public rather than of the professional judiciary they are more remote than a jury from Mr and Mrs Ordinary. A further change has taken place with increasing pace over the last five to seven years. There are some Magistrates who are full-time professional judges, they used to be known as Stipendiary Magistrates and are now known as District Judges. In most cases they sit alone without any other Magistrates being involved in the cases, hear the evidence and decide everything that has to be decided. "Stipes", as I will always think of them, generally get through cases much faster than a bench of two or three lay Magistrates and help keep delays down. Most of them are astonishingly good at their job. It cannot be ignored, however, that they are professional judges and their massively increased numbers have removed "the community" from the decision-making process in more and more cases each year.

Against that background it is hard to take seriously the pious pronouncements of the Justice Secretary and the Home Secretary that they are dedicated to the notion of the little people having any serious role in the criminal justice system.

The rule of law is stronger than my bigotry

Last week a scruffy middle aged man had a heart attack. Not me, on this occasion, my next one won't be long coming but it hasn't happened yet. His name was Ian Tomlinson and his myocardial infarction was fatal. He was in the vicinity of a demonstration in the City of London and keeled over shortly after being in somewhat closer proximity to a policeman's baton than he might have liked. It is reported that the officer who pushed or knocked him to the ground has been suspended pending enquiries.

My guess, from the little I have seen about the incident, is that Mr Tomlinson was asked or told to move on and failed to do so. Assuming that request was lawful (which it probably was) the police would have been entitled to use reasonable force to have their lawful order complied with. If the force used against Mr Tomlinson was reasonable in all the circumstances the officer did not commit any offence even if Mr Tomlinson's heart attack was caused directly by the force used against him.

In the event that the force used against him was not lawful (because there was no prior request or order to move or because it was excessive force) the officer involved would be guilty of assault. He could even be guilty of manslaughter if the assault caused the fatal heart attack.

There are many ifs and buts in the whole thing. It is impossible to know the true position as an observer from the sidelines. Some will claim the police were in the wrong because that suits their political purposes, either because they support the demented crusty hippies or because they see it as evidence that we have become a police state. Others will claim the police were in the right because it matches their preconceptions. But no one knows because not all the relevant facts are in the public domain.

I am as guilty as anyone of seeking to judge cases like this and I do it from my point of view, with all the bias, preconceptions, stereotypical analysis and bigotry that involves. Some have commented that I don't seem very bigoted despite my chosen non de plume, well, on a topic like this my bigotry runs deep. I see Mr Tomlinson dawdling in front of a police line and assume he had been asked or told to move away at least once. My assumption is based on knowledge that they are required to make such a request of give such an order before they use any force at all. That doesn't mean it happened, but it explains my assumption. I see Mr Tomlinson's reaction when he is on the ground. His face snarled not, I think, by fear or pain but by shallow macho aggression. His hands reach out as his neck juts forward, just as you see in pubs on a Saturday night when the man with tattoos wants to pick a fight to impress his mini-skirted belle: "Are you looking at my bird? 'Ere, I'm talking to you, are you looking at my bird?" It's the same reaction you see on the football field when the modern style of overpaid professional cheat commits a foul and tries to defraud the referee with dishonest protestations of innocence.

If (and it's a big if) my estimation of Mr Tomlinson is correct - and don't give me any of that sanctimonious "don't speak ill of the dead" nonsense, I'm just calling it as I see it wearing my bigot hat - none of it excuses criminal conduct by the police. The rule of law, more than anything else, is what distinguished a civilised nation from a barbarian nation. It also distinguishes a flawed and damaged civilised nation from a police state. There can be no excuses and no whitewash if a police officer caused Mr Tomlinson's death by acting outside the law. If he acted within the law, he is as blameless as any of us would be using lawful force. If he acted outside the law, the penalty must be the same as it would be for you and me.

Had Mr Tomlinson not died a few minutes after the incident there would be no debate and no wild accusations. The footage of him being pushed/beaten to the ground would be a minor part of a review of events on the latest day the crusties thought they could overthrow capitalism. But he did die. It was as great a tragedy for his family as any death is for any family. They are entitled to know what happened and to see that justice is done according to the imperfect laws we have.

My mind goes back many years to my early days in the law. I was the most junior member of the team representing a defendant at the Old Bailey. My client was an occasional opportunist burglar of the grossest incompetence. To him an open window was an invitation for felonious entry and the grabbing of whatever saleable items he could carry. One night he passed a block of disheveled flats and couldn't resist the temptation of an open window. The flat in question was occupied by an old man who lived in awful conditions. Cockroaches and mice were rife. His wardrobe consisted of two pairs of trousers, a few nylon shirts and underwear of dubious age and cleanliness. He lived on bread and tins of soup. The hapless burglar had alighted upon one of the few properties in London containing absolutely nothing of value. Unfortunately he also alighted upon a frail old man who, despite his lonely existence and squalid living conditions, was entitled to live without disturbance and found the disturbance such an ordeal that he keeled over and died. A fatal heart attack. A pointless petty burglary resulted in a conviction for manslaughter and, if my memory is correct, nine years in prison.

A police officer who oversteps the mark and becomes a criminal rather than an upholder and enforcer of the law is no different from my pathetic client of long ago. Actually, there is a difference. These days there is little chance that nine years in prison will be the result. Maybe a sentence of five to seven of which only half will have to be served. But that is by-the-by, what matters is that the rule of law is upheld whatever one thinks of someone who behaved like Mr Tomlinson.

Beyond reasonable doubt , 27 years on

In 1982 a man called Hodgson was convicted of murder. He confessed to killing a woman in 1979 when arrested but pleaded "not guilty" at trial and claimed he was prone to telling lies. DNA tests were science fiction at the time, but blood tests were not and his blood type matched that of the likely murderer. A jury of twelve ordinary people convicted him. In 1983 he appealed against his conviction, relying on technical legal arguments about the conduct of the trial. That appeal failed and he spent twenty seven years in prison. The 18th of March 2009 will probably be the happiest day of his life because his conviction was overturned by the Court of Appeal. It was overturned for one reason and one reason only, DNA tests carried out on the physical evidence collected thirty one years before proved that he was not the killer.

The only argument against capital punishment that I have ever found persuasive is that mistakes can be made, even where the state of knowledge at the date of trial admits of no doubt. The other arguments against the death penalty are that it is disproportionately harsh under any circumstances and that it is State-sanctioned murder that is no different from any other murder.

The first argument falls, in my view, when people such as Mussolini and Ceausescu come to be considered. Their executions healed their countries. The evil they perpetrated in ordering campaigns of mass murder created social divisions which dissolved on the very public extinction of the lives of the main perpetrators. Of course they are extreme examples, but the argument I challenge is that capital punishment cannot be allowed because it is always out of proportion to the crime. In such examples I do not believe it is, so the argument of principle must fall.

The second argument simply doesn't get off the starting-blocks. If execution following trial is to be equated to murder then imprisonment following trial must be equated to kidnapping, the imposition of a fine must be equated to theft and a community service penalty must amount to slavery. It's all a complete nonsense because it conflates penalties imposed by society collectively for breaching the most fundamental standards of that society with the standards themselves. Yet they are different things.

No doubt the case of Mr Hodgson will be used by some as a stick to beat the police. They will be entirely wrong. There is no serious suggestion that the police misbehaved in any way. Mr Hodgson had admitted the murder to others before he was even arrested. Sadly, he is one of life's unfortunates who does such things for reasons the rest of us cannot really understand. Even such people know whether they actually did what they admitted. From time to time a case arises in which they are able to find substantive evidence to support that underlying knowledge so that they get a second chance. For Mr Hodgson that chance comes at fifty-seven years of age and after spending almost half his life behind bars.

Mr Hodgson was convicted of murder because the evidence presented at his trial in 1982 satisfied a jury of twelve random citizens of his guilt beyond reasonable doubt. There is no reason to think the jury took the matter lightly. In my few years of work in the criminal courts before I concentrated my career on my abiding love of the law of contract, I appeared in only one murder trial. My client had admitted the offence in a taped interview with his experienced and highly competent solicitor sitting next to him. He pleaded "not guilty" when the case got to the Old Bailey for trial and gave hopelessly weak evidence seeking to extract himself from the overwhelming force of the evidence against him. His position really was utterly hopeless, yet the jury took hours to return a guilty verdict. They had to consider his evidence and discuss whether there might be something to his excuses. They were not wrong to take time because they, and they alone, had to decide whether a young man should be found guilty of a crime that carried a mandatory life sentence. That is a serious responsibility, exactly the same responsibility that was borne by the jury at Mr Hodgson's trial.

"Beyond reasonable doubt" can only ever mean "beyond reasonable doubt according to what we know today". In 1982 DNA was a twinkle in the eye of a Petri dish, today it is the first point of reference in many cases of sexual and/or physical assault. In ten years time we can be pretty sure that current forensic science will look like examining sheep's entrails to find proof of tomorrow's weather. Things always move on. The test for a jury in a criminal case remains the same, it is whether they are satisfied beyond reasonable doubt of the guilt of the defendant. The elements that can cause or dispel doubt do change, hence the long-overdue acquittal of Mr Hodgson.

Had he wiggled his feet beneath a hangman's noose the reversal of this particular miscarriage of justice would have been an empty gesture.

European corruption of law

One of the worst aspects of both the Human Rights Act and European law generally is that they encourage disreputable behaviour. Much European law consists of vague statements of principle that are concerned with ideals rather than practicalities and in doing so leaves scope for spurious claims by those keen to bask in the bright sunshine of victimhood or who see the chance to enrich themselves with an unearned buck. It might just be that I am too deeply immersed in the English common law to understand the European way of doing things, but I am not so immersed as to be unable to see a style of law that is more concerned with political gestures than with freely agreed individual relationships.

In The Times today my eye was caught by the report of a claim based on an EU political diktat. It is not so much the particular law that interested me, but the fact that the claim was made by a retired part-time judge. There are lots of part-time judges in this country. Some are practising or retired barristers and solicitors who sit for a few weeks each year for a fixed fee per day and some do it as their job. This particular case concerned a practising barrister who sat part-time until he reached the compulsory age at which part-time judges must retire, 65. When he was appointed there was no scheme for part-time judges to be paid a judicial pension, unlike full-time judges who are paid an annual salary and are entitled to a pension calculated by reference to the number of years they served. Despite there being no scheme in place when he was appointed, and despite there being no scheme in place when he retired, and despite there being no scheme in place now, his claim was that he was entitled to benefit from a principle of European law that part-time workers should have the same rights as full-time workers. Because full-time judges have a right to a pension, he argued, so he should have a judicial pension calculated according to the time he served as a part-time judge. For reasons I need not go into his claim failed on both procedural and substantive grounds (the full judgment is reported here).

What I find utterly astonishing is that such a claim would be made at all. This was not a poor downtrodden serf being forced to take on a thankless menial task for peanuts to avoid starvation and being treated like dirt by a manipulative employer. The man was a barrister with many years of successful practice behind him who applied for a part-time judicial post because he wanted to, in full knowledge that he was being offered a daily fee and not a bean more. As the Court of Appeal's judgment discloses, he is not the only one who has made such a claim. I could, perhaps, understand a test case being brought by the barristers' and solicitors' professional organisations so that the law could be clarified, but for an individual to make a claim strikes me as thoroughly dishonourable. If you enter into an arrangement with full knowledge of what it involves and voluntarily accept the limits to the financial benefit you will receive it would require a lot to persuade me that it can be right for you to turn around later and claim more.

There have been many examples under the Human Rights Act of people seeking to escape from obligations voluntarily entered into. I find it a very troubling consequence of so many laws emanating from Europe that old-fashioned straight-dealing can be undermined in this way. Perhaps I am influenced by my great interest in contract law which puts emphasis on people sticking to the bargain they have made even if it turns out to be a bad bargain. However, to me that is not just at the core of the law of contract, it is at the core of civilised behaviour. People we deal with rely on us to be true to our word and we rely on them. It allows us all to organise our lives in reasonable expectation that we will be treated in a predictable way.

Much of the debate about the EU revolves around the inability of the democratic process to affect decisions taken in Brussels. That is something about which I write rarely, although it is a matter of huge importance. But it is not only in the democratic deficit that I find the EU a dangerous entity. Once it has spewed forth its latest broad statement of political ideal coupled to a requirement to apply it throughout the EU countries, we find existing arrangements which have operated well and fairly for decades being challenged by (and sometimes overturned in favour of) those who knew exactly what they bargained for when they entered into those arrangements. The mere fact that EU law operates in a way that allows such challenges undermines reliance between people, it requires us always to look up to the almighty power in Brussels for approval of what we have agreed is a good and fair deal for us.

As someone who believes the most stable and civilised society is one reliant on trust and cooperation between individuals, I have a dislike and a distrust for unanswerable and over-powerful government. The case I have discussed here is a good illustration of how untested ideals dictated by an unanswerable government can undermine trust between people by giving an opportunity to break agreements in the name of that ideal. When ideals trump deals we are only a short step from dictatorship.