- The Barrister Bard

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The Barrister Bard

Witty, incisive comment on the law today.

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ABOLISH TRIAL BY JURY

February 6th, 2015

Just when I thought it was safe to go back into thewater, Alison Saunders bobs yet again to the surface.I remind readers, as I remind myself, that she is theDirector of Public Prosecutions, and in this role, she

is responsible for serious prosecutions and when theyare brought. A heavy responsibility you may think,and one not to be undertaken lightly.

Whilst the role is an onerous one, the pressures on theincumbent are lightened in great measure by anannual salary of £200,000 together with the usualabsurdly generous civil service pension. Her

predecessor in title, Keith Starmer, is now LordStarmer of Horlicks, so Ms. Saunders has much tolook forward to. In the meantime, she blunders on.

The latest blunder to be laid at her door has been thedisastrous decision to prosecute two doctors allegedlyinvolved in female genital mutilation, or FMG,

popular in many countries east of Suez but having no place in a civilised society. In the United Kingdom,it is illegal, but then so is child trafficking byPakistani gangs, and vote rigging, and honour killing,and slaughtering animals by slitting their throats.Once embedded, it’s the devil’s own job to root out

these evil practices. But that’s another story, andwith this ridiculous political correctness where youcan’t call a spade a spade, it will remain unaddressedfor the foreseeable future.

If this prosecution should never have been brought,what was the judge doing? He does have a role to

play in the conduct of the trial, and the rules areclearly defined. If he is of the opinion that the jury,

properly directed by him no doubt, could not convicton the evidence presented by the prosecution, it is his

duty to stop the case. He didn’t, so in fairness to Ms.Saunders, there was at least a case to answer.

Sad to say, I blame this and other similar cases on the judge. Time and again, when the case cries out for

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judicial intervention the judge remains silent, passingthe buck to the jury. And time and again, the jury arefound wanting.

The students of our legal system will know that indays of old, the jury were all male, and until recently,over the age of 21 and property owners. This last

prerequisite was to ensure that jurors were respected

citizens within their own community, knewsomething about life, and as important, could readand write. Successive governments watered downthese prerequisites, presumably in the interests of

political correctness, so today we have a jury of bothsexes, Joe, Jane, and even undeclared, swinging bothways, and as important, bringing to the jury box allthe gravitas of a comprehensive education, whichmeans they can neither read nor write. The agequalification has been reduced to 18, so today’s jury

can be a frightening assembly of gormless halfwits,all wearing football shirts, sitting in judgment of their

peers, and receiving very little help from the judgewhen they desperately need it.

I have said it before, and I say it again, trial by juryno longer inspires confidence within or without thecriminal justice system. It is also expensive and addsconsiderably to the cost of the trial, which becomes

protracted beyond measure. Trial by Judge, together with two lay assessors, is far preferable, moreefficient and likely to produce the desired result,which is to ensure a fair trial and the right verdict. Itworks perfectly well in the civil law, so why not thecriminal law? As now, any verdict that is deemedunsafe can be referred to the Court of Appeal, and theicing on the cake would be a reasoned judgment fromthe judge and his assessors explaining why they havedecided to convict or acquit. At present, nobodyoutside the jury room is entitled to know how the juryreached their verdict.

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STORM IN A ‘D’ CUP

February 5th, 2015

Storm in a ‘D’ cup was how it was described. I refer to the Sun’s decision some weeks ago to end the page3 topless models after more than 40 years as a full

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frontal attraction.

I am blessed with baby-soft hair, which has to becosseted and nurtured, the more so as I grow older, toavoid a ridiculous backcomb, or, worse still, a shiny

bald pate. So I visit my hairdresser once every 8weeks, and this is the only opportunity I have tocheck out page 3, which they place within easy

reach. Two conclusions can be drawn from myexperience: the first is that I am far from needing adaily fix of page 3, and the second is that I invariablyturn to page 3 as soon as I have settled down in thechair. My excuse is that I am hard pressed to findanything else of interest to read.

Continuing the feminist theme, I suppose their argument against topless models is that it not onlydemeans the fairer sex, but it also puts dirty and evil

thoughts into the minds of red-bloodied males who,at the drop of a bra, are going to grab a handful, or two to be precise, as soon as they espy a girl with bigknockers. That’s complete rubbish, as it simplydoesn’t happen. So that leaves the feminist lobby

bleating on about exploiting vulnerable girls with bigtits who don’t know any better, and who need helpand protection from themselves. Killjoys is how Iwould describe them.

I confess that I haven’t followed the progress of any

of these delightful girls, indeed I can only nameSamantha Fox, who went on to modest fame andfortune, as one of the many page 3 girls who haveshown their wares to good effect and have launchedsome sort of media career on the back of it, or rather,on the front of it. I have not read one single reportthat these girls exposed their breasts against their will. They knew what they were doing, they didn’tthink they were doing anything wrong, and nor do I.

I am pleased to report that the page 3 girls are back,and I am due for a light trim in two weeks’ time.Yippee!


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SHE WAS GAGGING FOR IT

February 1st, 2015

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I have been following the latest machinations over rape allegations with some interest, as they haveserious consequences for all red-bloodied males whoare out on the rut. For the past ten years or more, a

politically driven agenda has been thrust down thethroats of court users about the deplorably low

percentage of rape allegations that lead to conviction,and successive governments have been enjoined to do

something about it.

My considerable experience tells me that there are basically two defences to an allegation of rape: either “it wasn’t me gov”, or “she was gagging for it”. It isalso correct in my own experience that most of thoseaccused of rape are acquitted, not simply as a resultof the brilliance of my advocacy, but because the

jury did not believe beyond a reasonable doubt thatthe victim did not consent.

Into this squirming sack of grubby emotions stepsMs. Alison Saunders, who is apparently the Director of Public Prosecutions, so she should know better.And is it just me, or are women taking over theworld? And is it just me, or do you share my dislikefor the prefix ‘Ms’? It’s all to do with politicalcorrectness, or so they say, but speaking for my wife,and I suspect millions of other wives, when sheagreed to marry me, convention dictated that she took my name and became Mrs. Osborne. She does notwish to be referred to as Ms. Osborne, nor does shewish to be known as my partner. It’s insulting!

Anyway, back to Ms. Saunders and her campfollowers. She has decided, or rather it has beendecided for her, that anybody who makes anallegation of rape must be believed, and everything

possible in the trial process must be bent towards theconviction of the accused. Rape trials from now onare no longer to be prosecution led, but conviction

led, and when you add into the mix that prisonsentences for rape are getting longer and longer, theopportunities for a serious miscarriage of justice areself-evident. Or should that be ‘ms.carriage’?

Sarah Vine, or more properly Ms. Sarah Vine the journalist, summed up the feelings not just of red- bloodied males but also the legions of fair minded people. Like me, she deplores the so-called‘vagenda’, the all men are rapists brigade advanced

by vocal feministas like Harriet Harman and the‘femi-fascist’ twitter mob who increasingly seem tohold sway in public policy. Predictably, Ms. Harman,and I use that form of address advisedly, replied toMs. Vine’s comments with the usual ‘feminista’


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clichés, defending Ms. Saunders for trying to ensurethat victims of rape get justice. Gawd help us!

I have always found it distasteful and unattractive thesuggestion that as the victim was blind drunk shetherefore unable to give her consent to sex, or moreto the point, she gave her consent which she wouldnot have given had she been sober. In my book,

consent is consent, blind drunk or otherwise, andregret after the event cannot make it rape as Ms.Saunders and Ms. Harman seem to be advocating.Save us from the Mssss!

I have a very simple solution which I hope you willagree is fair. If the complainant (I do not refer to her as the victim) was under the influence of alcohol or drugs, or both, when she was ‘raped’, this providesthe accused with a complete defence. End of story

and a victory for fairness, moderation and commonsense!


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IT BEGGARS BELIEFJanuary 24th , 2015

It’s enough to make strong men weep. A 91 year oldman living with his cat Fluffy was forcibly removedfrom his home where he had lived for over 50 yearsand locked in a dementia unit against his wishes byhis caring social services of Essex Council. And toadd insult to injury, Essex Council had the temerity tocharge him £25,000 for the privilege.

Fortunately for him, but not before 18 months of incarceration, his friend raised the alarm and he wasrescued. The judge who heard the case was scathingin his criticism of the Council’s conduct, which theysought to justify to the bitter end. The elderlygentleman’s pleas to be allowed to return home fellon deaf ears, giving rise to a comment from the judgethat the Council’s conduct was nothing short of reprehensible. Whilst at the age of 91, being

incarcerated for 18 months must have seemed aneternity, the Council was required to pay him £60,000in damages, which no doubt will come out of their

budget as provided by the taxpayer. The sad realityis that nobody on the Council was prepared to take

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any of the blame, as in their book, there was no blame to take.

Over the years, I have done my best to defend SocialServices from their catatonic mistakes on the basisthey they have to make decisions that will affect thewelfare of many in their care. You will remember not so long ago the catalogue of mistakes relating to

vulnerable children, where Social Services failed toact despite the clearest warning signs, and thechildren died horrible deaths. In their defence, suchas it was, they saw nothing to arouse their suspicions. It beggars belief.

The good news for those of us nudging at the marginsof advancing years is that the Social Services cannotsimply walk into our homes and march us off to thetwilight home for the bewildered. They need a court

order, and we are entitled to be legally representedand to be heard. So if some Gauleiter comesknocking at your door, tell her to get stuffed with mycompliments. As somebody once said: “Don’t let the

buggers get you down!”


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WITNESS COACHING

January 23rd, 2015

The Crown Prosecution Service [CPS] is going toencourage its advocates to coach witnesses beforethey give their evidence in court. The thinking

behind this serious tampering with a witness is to

assist them in sticking to the script and to anticipateand deal with hostile questions flying at them fromthe defence lawyer.

I am a fan of most things American, but not their criminal legal system. It’s very much like thecurate’s egg, good in parts. Their jury vetting

process is a good idea, to weed out the brain-deadmorons and the rednecks, but it’s taken to extremes. Isuspect that if a juror during the vetting process

wanted to serve on the jury, he’d give the rightanswer to fairly rudimentary questions, and theconverse applies. It reminds me of the McCarthywitch hunts of the fifties: “Are you, or have you ever

been, a member of the communist party?” What sort

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of a jackassed question is that!

I remember some years ago prosecuting an actuarialfraud at the Old Bailey, and numeracy and literacywere essential prerequisites if the jury were to followthe evidence. In our system, where there is no juryvetting, once the prospective juror comes to the book to be sworn but before he is sworn, the prosecution or

defence can object. In that case, one of the prospective jurors was illiterate, but by the time wehad all spotted it, it was too late, so he sat in the jury

box looking totally bemused. As it turned out, the judge was also totally bemused, so he stopped thetrial, entered a not guilty verdict, and made the firsttee by three o’clock. Some sort of jury vetting wouldhave helped.

The sentencing process leaves me totally bemused.

Talking of actuarial fraud, I am reminded of BernieMadoff, who preyed on the greed of halfwits andmade enormous sums of money in the process. Oncehis scam was exposed and his grateful clients turnedon him like a viper at the breast, he was sentenced to150 years’ imprisonment. That sort of sentence isridiculous and brings the whole process intodisrepute.

Lest I digress, back to witness coaching, or ‘prepping’ as the Americans would have it. The real

danger is that a ‘prepped’ witness is likely to give the‘prepped’ answer and not the truth, the whole truthand nothing but the truth, but some version of it. It isvery tempting to point out to the witness where theweaknesses lie in their account, and to try and paper over the cracks.

I am a believer in trial by judge and jury. If a witnessis confused, it should be for the judge to clarify. If the witness is getting upset, it should be for the judge

to order a comfort break. And most importantly of all, the judge should conclude the questioning of awitness if the questioning is too long or oppressive.The judge is ideally placed to see fair play. Heshould exercise his powers of intervention, which isfar better than the very dubious practice of witnesscoaching. Finally, it should be borne in mind that thedefence must be told in advance that the prosecutionwitness has been coached. That seems like an owngoal.


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