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8 July, 2008  
London Calling

Bar incandescent with fury over depiction of barristers in Beeb’s Criminal Justice ... An army of flatfooted “community police” take to the streets … Victory for the gangs as the House of Lords sinks growing trend for courts to allow “anonymous” witnesses

imageA riveting television program was screened on BBC1 this week.

Called Criminal Justice and written by former barrister Peter Moffat, the story concerns a young man from a good family who finds himself on trial for murder following a night of drugs, tequila and passion with a mysterious young woman.

The young man, played with harrowing realism by Shakespearean actor Ben Whishaw, has only a sketchy tale to tell – he has no memory of the murder – and the program concentrates on how he copes with the criminal justice whirlpool.

His sharp but somewhat dishevelled lawyer advises him to say nothing to anyone, not even to the lawyer himself.

The beauty of the system, says the solicitor, is that we don’t have to come up with a story until we’ve heard theirs. Whether this helps is debatable, because the young man is quickly remanded in custody.

He faces some dreadful ordeals in prison, but by far his worst experience is the introduction of his barrister, a woman who, as Mitterrand once said of Thatcher, has the eyes of Caligula and the mouth of Marilyn Monroe.

Her name, of sledgehammer-subtlety, is Alison Slaughter. The brief takes the young man’s glance at her in the cells as confirmation that she should run self-defence on his behalf.

In court, looking a bit silly with frizzy blonde hair spreading crazily from under a perfectly formed grey wig, she bullies everyone except the judge, who thankfully is a stern woman, but who is strangely quiet when the improper questions start to flow.

* * *

imageAs the series was shown, a sparkling row broke out between m’learned friends. The head of the bar council, Timothy (High Dudgeon) Dutton QC (seen here with Sappho Dutton), took up his quill and wrote to The Guardian.

He was exercised because barristers in the program, particularly in the second episode, were presented as underhand, unprincipled and overly aggressive.

The behaviour of the silk in the show was “a grave breach of professional conduct that would be grounds for the barrister to be struck off”.

He wrote that he and his fellow barristers were annoyed that the drama had not made it plain that such conduct was unethical.

“The BBC’s Criminal Justice serial is not the basis upon which one can draw any sound conclusions about our system of justice.”

I am sure most viewers are desperately on the lookout to draw sound conclusions.

Tiger Tim added:

“Criminal justice is not a game and it is a travesty to suggest practitioners see it in that way.”

But scriptwriter Peter (Little Miss) Moffat, the creator of Kavanagh QC, took issue with his learned friend.

“Timothy Dutton … seeks to reassure us that defence practitioners ‘act to the highest standards’. Does this include the barrister disciplined recently for punching his opponent in court? Or the defence practitioner who sent documentary ‘evidence’ (in fact invented and drafted by himself) from an internet cafe in Oxford Street to his opponent?”

“It is about time the bar faced up to the fact that, like every other profession, it has brilliant and fair-minded practitioners, those of average ability, and the violent, dishonest and stupid all working within it.”

* * *

The knives are out in the UK and irony abounds. Young people are dying at a rate of one or two a week.

They are mostly callow males who carry knives for protection. They don’t realise the knife is actually a death warrant.

The police say they need more powers. The community says it needs more police. The government introduced a large force of uniformed Police Community Support Officers (PCSOs).

imageTypically they are vertically challenged caring people, who are out of shape and have a knack of patrolling the streets when the criminals are in bed. By that I mean, between breakfast and lunchtime.

Roger Baker (pic), head of Essex Police, warned grimly that the traditional beat bobby was being replaced by the PCSO. He said they do not have powers to arrest and are restricted to handing out fines for minor misdemeanours.

He told The Daily Telegraph:

“My fear is that if we are not careful in the next 10 or 15 years there will be virtually no sworn police officers on the streets of this country and I don’t think that’s a healthy situation.”

But at least the PCSOs are out in the fresh air.

A report from Her Majesty’s Inspectorate of Constabulary said police sergeants spend 45 percent of their time on paperwork and the survey of 4,800 officers found that many police sergeants are afraid to challenge scruffy constables lest they be accused of bullying.

* * *

In other news, Tayside police apologised to Muslims this week for displaying a crime prevention poster featuring a puppy sitting on an officer’s hat.

Several shopkeepers refused to display the ad because they considered dogs “ritually unclean”.

In addition, new police guidelines will decree that sniffer dogs must sport bootees when searching the homes of Muslims so as not to cause offence.

Ironic when you think that the police also asked the government to pass a law locking up Muslim terrorists for six weeks without charge.

* * *

As knife crime sprays out of hand, the police seem powerless to do anything. Some have even waxed philosophical.

Barbara Wilding of South Wales, Britain’s longest-serving female Chief Constable, says that tribal loyalty to gangs has replaced loyalty to the family.

Marriage breakdowns and the disappearance of parental role models have forced young people to find security in gangs.

The gangs impose ruthless discipline on anyone in their community. Witnesses are intimidated and fear abounds.

In the past about 80-90 percent of murders were solved, but in the black community fewer than half the killings resulted in arrests.

Judges began to allow witnesses to disguise their voices and give evidence behind a screen. There was no legislative authority to do this but the clear-up rate rose to 85 percent.

At 9am on New Year’s Day 2002 in Hackney, a party in a flat rented by two Ethiopians was beginning to wind down.

imageThe DJ, a young man from Deptford called Ashley Kenton, was about to leave. A guest, unhappy about him packing up said, “No-one ain’t going nowhere”.

Kenton was shot in the neck. The bullet went through a wall and killed Wayne “Titch” Mowatt (pic with Kenton) too. He didn’t even get to see his murderer.

Some time later, a gentleman called Davis was picked up in California and sent back to England. Seven guests at the party (including three who had witnessed the shooting) were allowed to give evidence anonymously.

They claimed to be in fear for their lives if it became known that they had given evidence against the appellant.

These claims were investigated and accepted as genuine by the trial judge, Judge Paget QC, and the Court of Appeal.

Davis was convicted. The case ended up in the House of Lords which quashed the convictions: R v Davis (Appellant) [2008] UKHL 36.

Lord Bingham of Cornhill felt bound to conclude that the protective measures imposed by the court in this case hampered the conduct of the defence in a manner and to an extent that was unlawful and rendered the trial unfair.

imageLord Rodger (pic) of Earlsferry said:

“It is for the government and parliament to take notice if there are indeed areas of the country where intimidation of witnesses is rife and to decide what should be done to deal with the conditions which allow it to flourish.

“Tackling those conditions would be the best way of tackling the problem which lies behind this appeal. Any change in the law on the way that witnesses give their evidence to allow for those conditions would only be second best.

“But parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial.”

The knock-on was soon felt. Last week, an expensive murder trial (which ironically involved police corruption) was aborted after two months of evidence. The judge, (ironically again poor old Judge Paget, for it was he) said the House of Lords ruling had “derailed” the case.

Leonard Smith QC, who appeared for the defence said:

“My understanding is that there are as many as 550-600 applications for witness anonymity across England and Wales, which is staggering.

“I always believed that these applications were only made in the most serious of cases. But it seems that the police have gone totally overboard in using these provisions and it’s something that will now have to be looked at very carefully. It is for parliament, and not the courts, to obfuscate [is this irony too, Len?] the common law.”

But many trials are being stalled and the ruling has opened the way to appeals, at a potentially massive cost to the BTP (British Tax Payer).

Though politicians harrumphed about the judges being out of touch, they have only themselves to blame.

They’ve fiddled with the caution; let prosecutors introduce damning character evidence; and turned a blind eye to the practice of anonymous accusers.

Still, these cases all demonstrate the vital importance of credible eyewitness evidence.

It brings to mind the story by Maurice Healy, of the colourful Irish witness appearing in a court in England who had “tuned his harp to the romantic air of his own County Court”.

The judge, Mr Justice Darling, looked at him sternly and said:

“Tell me, in your country what happens to a witness who does not tell the truth?”

“Begor, me Lord,” replied the Irishman. “I think his side usually wins!”