Charter for Justice- for a Fair Justice System- guest blog by Raj Chada
Just 5 months ago, we welcomed the “Lammy Review” into inequality of outcome for black and ethnic minority defendants, but questioned whether it could change the landscape. .
We know that nothing has changed, but that the whole criminal justice is close to collapse.
Justice on the cheap means no real justice for any community – but it will always, and indeed has, affect most those that are discriminated against , those with limited means , those with no voice at all.
That is who we must in a Charter for Justice.
David Lammy was comissioned to prepare a report (an ‘independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System “ in response to the over -representation of BAME individuals in the criminal justice system.
You are 17.5 times more likely to be stopped and searched if you are black
45% of those in youth custody are from an ethnic minority – a higher percentage than the US.
I borrow from the LCCSA response to Lammy – If you are a defendant in the Crown Court (and certainly should you reach the Court of Appeal) you can expect white Judges, mostly men and often still an all-white court room. Imagine roles are reversed. Imagine if you are white appearing in an all-black courtroom where you believe you have been harshly treated. Later you might read of higher sentences for white people, or that white deaths in custody never result in any prosecution. That white youth are disproportionately stopped and searched. You may imagine a lack of equality in the criminal Justice processes.
Think of that role reversal when you ponder why Lammy said that there was a trust deficit ; and then ask ourselves how that is not top of the agenda for Justice Secretary, every minute of every day of every week of every year that he or she is in office.
Think of that when you consider that the real trend is abolish any pretence of establishing a system with balance and checks, professionals exercising judgement from experience and training. With legal aid fixed cases cut to the bone, and a pressure to plead guilty, there is insufficient time to develop relationships with clients ; to consider, review, analyse the papers, and to properly advise clients. The MoJ response to Lammy pointing out the lack of trust for BAME is not to re consider how fixed fees operate ; not to look at the absurd rates of pay in police stations, to demand at how the professions train and recognise the needs of the communities that they serve….
but to welcome the development of an app that can be used to explain people rights in custody.
The MoJ rejects the idea of accountabilty for the judiciary by feedback from users – lawyers, defendant or victims as if it will mean those that are aggrieved by decisions will use it as a complaint mechanism.
The MoJ offers nothing new about how to increase diversity of judiciary, – of the senior judiciary 81% went to Oxbridge, 76% went to fee paying schools and half went to boarding schools.
We need concrete action ; not the luke-warm response to the genuinely innovative idea of deferred prosecution for youth offending that will allow youngster not to have a criminal convictions on an agreement of behaviour in future. Good enough for a multi national company caught defrauding millions of pounds – not good enough for the balck defendant in Brent that was caught shoplifting for £50.
Of course I know that the solution to this is wider the CJS It requires us to help individuals through support and intervention, to hold individuals to account through community mechanisms and to develop that individual so that he has sense that he or she belongs and has a stake.
The solution as to why so many BAME youths do not feel they have that stake is political not legal: An active well-funded state that exists to help all its citizens, not just one section would benefit everyone, not just BAME communities. It is why we must make common cause across civic society with Trade unions and others…
We must start with CJS. This is not just about pay for us – it is about our participation in a public service, with our own roles to play and that the same system of justice should exist no matter what the social status, race or means of the victim, no matter what the social status, race of the defendant.
If we don’t have that now, we should be prepared to fight to achieve it.
That is why striving to achieve a fair Justice system must be part of the #Charter4Justice that we must all fight for.
Raj Chada, (Partner, HJA,). 26 March 2018
The above is the text of a speech given by Raj at the launch of the Charter for Justice, 26 March 2018 (edited by Greg Foxsmith)
See also blog “Lammy- we must not be silent”
On a humane and effective prison and probation service
Guest Blog by Dr Laura Janes, (Legal Director of the Howard League)
This is the text of a speech that Dr Laura Janes gave at the launch of the Charter for Justice on 25th March 2018
The Howard League for Penal Reform was founded in Charles Dickens’ Britain in 1866 – over 150 years ago.
How fitting then, if utterly depressing, that we are now dealing with a prison system that retains Dickensian features.
Dickens describes the children in the jail that backed onto the Old Bailey as “hopeless creatures of neglect”, children without a childhood.
Every day, at the Howard League, we provide legal support to children and young adults in prison through our free advice line.
There are fewer children and young adults in prison today than there were 10 years ago – one piece of good news.
But that is where the good news ends.
• 45 per cent of children in prison are from black and minority ethnic backgrounds– even though this group accounts for just 18 per cent of the general population.
• One third of all children in prison can expect to spend time in isolation, sometimes for prolonged periods, such as AB, who I represent – a 15 year old child who spent over 23 hours a day locked in his room for 55 days, solid. The High Court ruled that was unlawful but fell short of inhuman and degrading treatment – a point we are appealing to the Court of Appeal.
• The recent snow inexcusably led to many children being locked up in solitary confinement for days on end – due to staff shortages. We heard of one child who was allowed out of his cell once in a two week period for a visit with his foster mother. He reported that on the way to the hall, he reached out to touch the snow but was sharply told not to by the guard.
• Violence and harm is rife. In the five years leading up to 2016 the Youth Justice Board says that
o The use of force increased by 36%
o Assaults increased by 95%
o Self harm increased by a staggering 120%
• Exposure to, let alone experience of these things, would give rise to a child protection referral in the community
• It is not surprising then that Chief Inspector said last year that no prison he inspected was safe for children and young people
• Since legal aid cuts for prisoners in 2013, calls to our specialist legal advice line have increased by 62 per cent.
Sadly, the reduction in numbers for children and young adults have not been mirrored among the adult population.
At any one time we have over 80,000 men, women and children in prison. The prison population has more than doubled since the mid-1990s. We lock up more people than any other nation in Western Europe.
No public service in England and Wales has deteriorated more dramatically and more profoundly in recent years than our prison system.
Someone takes their own life in prison once every five days. Over 2000 people have taken their own lives in prison since 1990.
Three in four men’s prisons are holding more people than they are designed to accommodate.
Wandsworth prison, for example, is designed to hold no more than 943 men. But it currently holds 1,564 men.
On top of that, our prisons are reeling from poor upkeep, after Chris Grayling handed the £200 million pound maintenance contract to Carillion in 2014.
This situation is inhumane for the prisoners and unmanageable for those charged with their care. Staff numbers have been reduced since 2012 by up to 40 per cent, making the so-called transforming rehabilitation agenda impossible to achieve.
Nor is it effective. One third of prisoners reoffend on release,
Turning to our probation service. It has been split in two. The national probation service has been absorbed into the failing prison service. Pressures on probation officers are unsustainable. The “less serious” cases have been farmed out to private Community Rehabilitation Companies, who in the words of the Public Accounts Committee last week, “the Ministry accepts … were plainly not working as intended”. The Ministry has agreed to pay them up to £342 million pounds more of taxpayers’ money but can’t explain what it is getting back for its money. Pausing for a moment, that figure is around ten times the amount the Ministry hopes to save from this latest round of criminal legal aid cuts.
With David Gauke, we have our sixth Lord Chancellor in as many years.
That fact in itself suggests a contempt for justice and total disregard for the importance of the justice system. Yet, the notion that the way we treat our prisoners is a measure of the strength and virtue of the nation is as true today as it was at the turn of the century.
I am glad that we have moved from the deplorable ideological attack on prisoners, spearheaded by Mr Grayling in the form of cuts to legal aid for prisoners. Those cuts were an affront to the rule of law. The whole point of the rule of law is that “everybody matters”. Legal aid was designed as an equalising measure to allow everyone to access justice. The lawlessness within our prisons today is unacceptable. How can we possibly hope to instil respect for the law in prisoners if we exclude them from its protection?
I am proud that, along with the Prisoners’ Advice Service and over a five year period, our successful challenge to the Court of Appeal has seen the first areas of legal aid brought back into scope since LASPO – even though prisoners are still effectively denied access to justice in some important areas. It is also good that in Rory Stewart we have a Prison’s Minister who is taking the crisis in our prisons seriously. But they need more than just a jolly good clean.
I delighted to be here today at the launch of a Charter for Justice calling for:-
–Less people in prison
– A humane and effective prison system and
– An end to the two tier failing semi privatised probation service
Laura Janes, 25 March 2018
Note- the charter for Justice is here
The Justice system is in crisis.
Recent disclosure scandals have only brought to public attention what we as lawyers already knew about problems with timely and adequate disclosure of a prosecution case.
But disclosure problems are only part of the problem with the current state of British Justice.
Open Justice is under threat, from an accelerated programme of digitalisation and court closures (and now we find out that Courts have been flogged off on the cheap)
The part-privatised probation service is failing, and the prison service at breaking point.
Underpinning this, and all the issues within the criminal justice system, is the chronic underfunding of a legal system which has seen cuts year on year.
Criminal lawyers and Justice campaigners have been campaigning on single issues or acting reactively to the latest catastrophe or cut, rather than focussing on the bigger picture.
It is time to proactively set out the case for the properly funded efficient Justice system that we all deserve.
I have, with the LCCSA, been devising a CHARTER FOR JUSTICE which we hope will encapsulate in a short and simple way some key principles that anyone who cares about justice can unite behind and campaign for, and politicians can act on.
The LCCSA are engaging with their members and other practitioner groups, as well as working with the Howard League for Penal Reform, and will jointly launch the CHARTER FOR JUSTICE at the Law Society, at 6pm on 26th March. This free but ticket-only event will hear from key-note speakers, but all who attend are invited to participate.
Three defendants were today sentenced at Winchester Crown Court to 3 years immediate custody, for taking part in a “prison mutiny” in June 2016 at HMP Erlestoke as reported here
A fourth defendant had been acquitted.
Numerous other prisoners who had participated in the disturbance had been dealt with administratively, or were charged with lesser offences.
This disturbance was one of a number of similar episodes in recent years, which many commentators have contributed to a hugely reduced prison budget, which has led to a shortage of experienced prison officers, and raised tensions for prisoners.
These recent disturbances have followed a long and predictable pattern.
The most infamous British prison riot in recent history was at Strangeways in April 1990 (One prisoner killed, and 147 prison officers and 47 prisoners injured. Much of the prison was damaged or destroyed with cost of repairs coming to £50 million)
The resulting Woolf Report found “Prisoners felt their complaints about conditions were being ignored. Remand prisoners were only allowed out of their cells for 18 hours per week, and Category A prisoners were locked in their cells for 22 hours a day, and rarely left their cells except for “slopping out“, a one-hour exercise period each day or a weekly shower”
Lord Woolf concluded that conditions in the prison had been intolerable, and recommended major reform of the prison system.
“Slopping out” has ended, but many of the other recommendations were never implemented, subsequently abandoned or now ignored. So much so, that 25 years later in 2015 Lord Woolfe warned that prisons are again at Crisis point (as reported here) and as evidenced in numerous Prison Inspectorate reports, and the annual Inspectorate report.
The IMB (Independent Monitoring Board) reports which visited Erlestoke gave an insight of the dire situation there before the disturbance. (Most recent report here)
(Erlestoke is a medium secure all-male prison with over 500 prisoners including violent offenders, sex offenders, and “lifers”. A number were “IPP” prisoners who had served longer than their sentence but with no indication as to when may be released.)
The IMB reports showed:-
-Drugs were rampant in the prison, particularly SPICE
-smuggling of tobacco
-smuggling and useage of mobile phones
-a culture of bullying
-property going “missing”
-high levels of self-harm
– a “self-inflicted death” (2015)
-high levels of mental-health issues, many unaddressed and/or untreated
-chronic staff shortages.
On the 11 June there were only 17 members of staff on duty.
As a result, there was a lock-down.
Despite what was said by the Prosecution at the outset of the trial, and then reported in local media, this was never about a “smoking ban” which had been introduced that year.
The trigger for the disturbances was the lamentable staff-shortages which caused the prison to have another unannounced lock-down, a decision that was communicated to prisoners by a note pushed under their cell doors, and communicated to staff with a note pinned to the notice-board wishing them “good luck”.
The consequences that flowed from the lock-down included:-
– being locked in cell all day, (in some cases shared cells with an open-toilet)
– no hot meals,
– no association,
– no showers
– and no calls to friends or family (one of the prisoners on trial had promised he would call his daughter. it was her birthday)
That was a systemic failure, and not the fault of the hard-working prison officers on duty.
If it does not excuse prisoner’s conduct, it does at least explain it.
Prisoners kicked off, and some broke through their doors, which were wooden.
Two ended up on the roof.
So far as the damage is concerned, it is hard to establish an accurate valuation as much of what was repaired was badly in need of repair or refurbishment anyway, including:-
-some of the showers and boilers that didn’t work,
-the huge backlog of maintenance which should have been but was not completed by Carillion,
-wooden doors on the cells which are usually seen in a prison museum rather than an operating prison.
The prison service conducted a review into the disturbance, and produced a report which they have not published and declined to provide to the Prosecution.
The two wings which were damaged are back in operation.
It will however take more than a lick of paint and new cell doors to repair what is broken in the prison system.
The real damage inflicted on the prison system is not broken windows and roof tiles, but the savage cuts to the prison budget by forever “Justice Secretary” Chris Grayling, which has left prison buildings to decay, slashed numbers of prison officers, and cut back on education and rehabilitation for those locked up.
When people , whether prisoners serving their time or sailors at sea, are treated unfairly and subjected to intolerable conditions, it will (as Captain William Bligh discovered) lead to mutiny.
Prisoners convicted of prison mutiny pay a price for their participation in disorder, and those sentenced today will now serve an additional three years to their current sentences.
But as a society we all pay the price of Government failure to tackle the prison crisis that shames this Country.
As Winston Churchill once said: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate, and an unfaltering faith that there is a treasure, if only you can find it in the heart of every person – these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of the living virtue in it.”
Google reviews for British Courts (including Highbury) here
Prison riot- cuts are to blame http://www.bbc.co.uk/news/uk-england-wiltshire-43441542
Prison mutiny- I have blogged about my recent experience defending in a mutiny trial HERE
LASPO review kicked into the long grass https://www.lawgazette.co.uk/law/laspo-review-government-to-revisit-ambitious-summer-deadline-/5065132.article
Google reviews (aka condemnation) for British Courts https://www.theguardian.com/technology/shortcuts/2018/mar/04/guilty-uk-magistrates-courts-condemned-by-google-reviews
Knee-jerk reaction-proposed new law to tackle the scourge of killer cyclists http://www.dailymail.co.uk/wires/pa/article-5459411/Review-set-recommend-new-law-causing-death-dangerous-cycling–report.html
Two former lord chancellors are at loggerheads over an animal welfare issue, according to the Times. Dog owner Michael Gove wants to ban collars that deliver an electric shock to pets. However, transport secretary and dimwit Chris Grayling, the worst lord Chancellor in history, reportedly relies on them to prevent his two cats from straying.
Justice Committee Disclosure Survey Results https://www.lccsa.org.uk/disclosure-debacle/
AGFS reform https://crimeline.co.uk/banding-of-offences-in-the-advocates-graduated-fee-scheme/ and comment from The Law society http://www.lawsociety.org.uk/news/press-releases/robbing-peter-to-pay-paul-will-penalise-entire-criminal-justice-system/
Another very rude and ignorant solicitor bullying staff http://www.dailymail.co.uk/news/article-5429899/London-barrister-wins-employment-tribunal-against-boss.html
And corrupt and greedy solicitor Phil Shyster manages to further damage the reputation of human rights and legal aid lawyers with more shenaniganshttps://www.lawgazette.co.uk/news/shiner-shifted-500k-assets-to-family-members-before-going-bankrupt/5064988.article
More shame for our beleaguered Prison system https://www.theguardian.com/society/2018/feb/20/ombudsman-terms-teenagers-death-in-prison-appalling-osvaldas-pagirys
And the MoJ find money for PWC
New Sentencing guideline for blades and weapons published here (in force from 1st June)
(It also lists acid as a “highly dangerous weapon”, in case anyone wasn’t sure..)
HMCTS struggles desperately on with their pet ‘flexible hours” pilot project, here is another extract of illegible and incomprehensible jargon from their most recent “stakeholder newsletter”
Meanwhile, court chaos and Camberwell closed https://www.lawgazette.co.uk/news/beast-from-the-east-winter-weather-causes-court-chaos/5065089.article
Meanwhile, Chris Grayling, worst Lord Chancellor in history, has a different portfolio but is still incompetent http://www.huffingtonpost.co.uk/entry/chris-grayling-branded-incompetent-as-department-for-transport-spends-ps300m-over–budget_uk_5a932a39e4b01e9e56bcf5d7although thankfully those rumours of him becoming Tory Party chairman in January were inaccurate…
Check out this snowy playlist ❄️☃️
Check Mate: A Poem for my Father
My father was the one who taught me chess.
Then, each game he held out two closed hands,
Each hiding a pawn, one white, one black.
I made my selection and prepared for attack.
We played in silent concentration,
His only words “check!” (and, later, “check-mate”)
Fragrant pipe-smoke trailed around the pieces
As I learned the bitter taste of defeat.
Later: Monopoly, and he was always the ship
Sailing round the the board as though still at sea
In Cuba he had played a GET OUT OF GAIL FREE card
Long before he passed Go and then bought his first house.
The family played a board game called Risk
The so-called “Game of Global Domination”
Only much later did I realise
He had already conquered my world.
When I left home I too travelled the globe
With a back-pack and portable chess set.
Only now do I realise what ha had taught me
Not just the rules. I had learned Values.
Now I am the one to teach my sons chess.
I hold out my closed hands
Each with a pawn, one white, one black.
The King is dead: Long Live the King.
Later: Monopoly, and lessons in life
Try not to Go Back 3 Spaces.
So boys, choose a token, roll the dice but remember
Your Grandfather was always the ship.
Obituary for My Father
Dad (known by almost everyone as Bill) was born in Hinckley, Leicestershire on 04 February 1939 and was christened William Ernest FOX (his father’s name)
When Dad was two his father drowned, and so was brought up my his Mum Hilda (known as “H”) in rural poverty, initially staying in an alms house, for which privilege his mother had to scrub the stone floors of the church on her hands and knees. Dad was no fan of the church or organised religion. The family had moved to Dorset, and Dad with his younger brother Dick went to school in Lyme Regis. He was a fast runner, running the mile for the County and setting a school record.
He acquired a stepfather, Jack SMITH, and then another brother (Nick). Dad later combined the names FOX and SMITH and the FOX-SMITH family name was created.
Aged 16, Dad left home and went to Navigation school in Plymouth, and then joined the merchant Navy:-
For six years he travelled the World visiting the US, China, Japan and Cuba amongst other Countries. In Cuba, he was arrested and spent a night in prison. It’s a bit unclear what offence he had allegedly committed, or how he came to be released, but it was a typical escapade for Dad who loved adventure. Dad’s brother Nick has a memory of watching their mother putting pins in a world map on the kitchen wall every time they received a card from a country Dad visited when at sea.
Dad’s Mum died when he was still at sea. He was not able to return for the funeral. Over 30 years later he found a “memory box” with some keepsakes and mementoes from his sea-faring days. Not realising what it was, he began reading aloud the letter he had received from his brother Dick which broke the news of their mother’s death,and it moved him to tears. It was the only time I ever saw him cry.
Dad met Mum (Sylvia) in July 1964 and they were married in Wembury Church on 05/10/1966.
His first “land” job was selling encyclopaedias, and then he worked with Mintex (a Company selling brake and clutch linings) as a salesman and later as manager of the Plymouth depot.
He had been framing pictures- self taught – as a hobby, and now became self-employed doing that professionally.
He had also formed an interest in silhouettes, which he began collecting and became something of an expert. (He later became involved in the Silhouette Club)
Eventually he opened his shop on Southside Street, The Barbican, selling antique maps and prints. The shop “Foxsmith Galleries” was open for 20 years, and eventually closed in 2006.
Dad was renowned for his honesty and good business ethics, never broke his word or a contract, and had great integrity. His word was his bond, and most deals were done on a handshake. He disliked debt, and was beholden to nobody. He worked hard, and in order to provide for his family, put business before pleasure.
Dad loved antiques and fine art, good company and good wine.
He enjoyed classical music, which could always be heard in the basement at home where he was framing pictures, or in the shop.
He had a great sense of humour, and a good sense of adventure. He loved sailing and wind-surfing, but was equally happy to try his hand at anything adventurous from para-gliding to stock car racing to bungee-jumping.
Dad didn’t tolerate fools gladly, and disliked snobbery and pretentiousness.
He hated hypocrisy. He had no airs and graces and could mix easily in any company.
He had a wide circle of friends. Most of all he loved his family. There were three children- myself Mark and Naomi.
Mum and Dad first lived in a small bungalow in Staddiscombe (near Plymstock) and then moved to Alfred Street on Plymouth Hoe.
We holidayed as children in Butlins, and many years later in France,catching the ferry from Plymouth to Roscoff and driving to a campsite.
Sadness at Dads death is tempered by the happiness that he was released from the hell of his last few years. Sadly, in truth we lost Dad a few years before his passing to the cruel disease of Alzheimer’s, the early onset of which robbed him of a peaceful retirement.
Dad was a towering figure for me, and an important influence on my life.
He was there for my significant birthdays, my graduation, was a witness at my wedding, and once came to see me advocating in Court. I inherited or learned from him some qualities that have stood me in good stead as a defence lawyer-a sense of fairness, and an innate sympathy for the underdog.
I admired him very much, and am sorry that his early departure deprived his grandchildren of spending time with him, and he with them.
Dad had a great love of board games.
He taught me chess. We played for years and years before I won a game. Dad wasn’t one to let you win. But at least when I eventually did, I knew it was on merit. Winning at chess was a major surprise to me. Like many boys, I believed my father invincible, and not just in chess.
As a family we also enjoyed board games, particularly Monopoly and Risk, which were extremely competitive but riotous fun.
I played as a child , but was aware if friends or family were staying that games would continue after I was dispatched to bed
Then the drinks would come out, and the games were a backdrop to anecdotes, stories and jokes, with the roar of raucous laughter. These are the memories that we will cherish.
In Memory of William Foxsmith RIP (04.02.41- 10.03.14)
The family were grateful for the many condolence cards, supportive messages, anecdotes and photos sent to the family.
“A vibrant and infectious zest for life (Nigel F.)
entertaining, knowledgable and fun to be around” (Matt Tiller)
He ran his business so well,always kind and courteous”(Jenni)
“No-one will forget Bill” (Vanessa J)
“Our hearts are sore at the passing of our dear friend Bill. We will always value our friendship” (Gerry and Malcolm)
“I held the most tremendous admiration for Bill,his humour, stories, knowledge and skills….” (Simon B.)
“we are surrounded by memories of Bill as there isn’t a room in the house that hasn’t either a picture from the Gallery or framed by Bill” (Jane and John Green)
“This card (pictured below) shows one of the many precious prints which adorn my walls and which Bill found for me”
“a wonderful entertaining host!” (Viv and Brian)
“A lovely human being, a delightful neighbour and friend with a great sense of fun and generosity of spirit” (Elaine and Adrian)
“Bill was a fantastic man.” (Sarah and Tony)
“Bill was a delight to work for”
“The spirit which he evoked-one of friendship, challenge and investigation” (John Pickles)
“…the road from the beach (pictured below) where Bill and I walked up from the boat on so many happy occasions” (Tad)
Ros offered these lines from Shakespeare (Anthony to Cleopatra):-
the miserable change now at my end
Lament nor sorrow at,
But please your thoughts
In feeding them with these my former fortunes
An anecdote from Malcolm and Gerry:- “Bill loved sailing in Plymouth Sound after work. One evening the tide and wind took him into Mountbatten Pier, and as he had stayed out until the last minute, it had become dark and he had no choice but to land. At that time it was private, R.A.F. property, with landing prohibited. He somehow found the Officer’s Mess and entered in his wet suit [just like James Bond] and persuaded them he was not a spy. He finished at the bar with a pint telling them of his adventures!”
“We are both very sad to hear of the death of your Dad, a great friend of mine and someone I admired very much.” (Richard Walker)
On 11 June 2017 PM Theresa May in a post-election re-shuffle appointed David Lidington as Secretary of State for Justice and Lord Chancellor. He replaced the hapless Liz Truss, who had herself been appointed by May in a post-election re-shuffle less than a year before. Lidington was himself replaced as Lord Chancellor in Theresa May’s botched reshuffle on January 8th 2018. Lidington was the fourth consecutive non-lawyer appointment- his predecessors were Liz Truss, Michael Gove and Grayling (widely regarded as the worst Lord Chancellor ever).
This blog reviews Lidington’s performance over his brief term of office.
David Roy Lidington CBE PC (born 30 June 1956) has been MP for Aylesbury since 1992. He was Minister of State for Europe from May 2010 to July 2016, and Leader of the House of Commons.
He was educated at a public school, before studying history at Cambridge (appearing on University Challenge)
He was given a CBE in Cameron’s widely criticised resignation honours list.
Expenses scandal In May 2009, it was revealed Lidington had claimed £1,300 on expenses for dry cleaning. He also claimed for toothpaste, shower gel, body spray, vitamin supplements and a second home allowance. He repaid the claims for toiletries, saying: “I accept that many people would see them as over-generous.” So although he eventually came clean, you paid for his soap
Record in Parliament pre-appointment (Justice issues)
Lidington voted in favour of repealing the Human Rights Act, restricting the scope of legal aid and limiting fees paid to solicitors in no-win no-fee cases. The “they-work-for-you” website says Lidington generally voted against equal gay rights, and his record on cutting legal aid is here.
First six months
The new Lord Chancellor was sworn in on 19 June. In the in-tray? Read anopen letter to Lord Chancellor from Joshua Rozenberg
Sort out the prison crisis! read these recommendations from the Howard League
His first official pronouncement, following the Grenfell tragedy, was on availability of legal aid in housing cases- and he got it wrong (see here)
There was then a period of calm, in a political period dominated by Brexit, we heard very little from or about the Lord Chancellor until the Party Conference in October when there were apparently conciliatory noises on LASPO reform
The crisis within the prison service has shown no signs of improvement under Lidington. The shocking number of suicides by vulnerable prisoners, murder and violent assaults by against prisoners and staff remains at high levels in crumbling, under-staffed, unsafe failing prisons. The extent of this is too great to record in this blog, and can be charted elsewhere (see eg Howard League) but of the many scathing, shameful reports I include this one from the Independent Monitoring Board into Aylesbury Prison -it is in Lidingtons constituency, so the shameful record has happened “on his watch” as local MP and Justice Sec.
The treatment of young people in custody has also remained dire and dangerous under Lidington’s watch – see this report of November 2017
Legal Aid and funding
Under this Lord Chancellor, there was no improvement in funding for the MoJ in general or legal aid in particular, as it was revealed the department will have suffered a 40% cut in budget by 2020 (as reported in Gazette in November here)
Conclusion- a summary of Lidington’s tenure
Lidington has been the silent chancellor- we heard very little from or about him. In a Government divided by over but dominated by Brexit issues, this Lord Chancellor kept his head down. There is much to be said for that, preferable at least to failing Grayling or hapless Truss, but a failure nonetheless to tackle the big issues in his department- the chronic underfunding of the Justice system, and in particular legal aid and the prison estate. He left everything without comment to MoJ apparatchiks, who have continued with their pet projects including pilot projects on extended Court hours. He remained silent on the “disclosure scandals” that have thrown a spotlight on the sorry state of our justice system, and prisons and young offender institutions remain as overcrowded, dirty and dangerous as when he took over.
His department did however find the money to pay fat-cat consultants to advise on “digital transformation”, leaving solicitor Matt Foot to assess his legacy with this tweet “Justice Minister Lidington’s only contribution was to cut criminal legal aid by £30 mn, given to PricewaterhouseCoopers (650k profit per partner) instead“
This blog has also been published by the JUSTICE GAP here
Excerpts were quoted in a Law Society Gazette article here: https://www.lawgazette.co.uk/law/defendant-nationality-declarations-offensive/5063715.article (see also the lively comments thread)
A new requirement is in force (with effect from Monday 13th November) that requires every defendant appearing before a Criminal Court to confirm their nationality, or risk a prosecution and imprisonment.
I believe a conviction arising from this provision can be challenged due to the inherently discriminatory nature of this legislation. I am in contact with other lawyers who are considering strategies to remove this provision, but we need to know how the legislation is being enforced. Have you been involved with or witnessed such a case? Please let me know! We can exchange info to see if there is any uniformity of approach, and evaluate the impact. Email email@example.com
The provisions are as follows:-
Section 162 of the Policing and Crime Act 2017 provides as follows:
162. Requirement to give information in criminal proceedings
In the Courts Act 2003, after section 86 (alteration of place fixed for Crown Court trial) insert—
86A Requirement to give information in criminal proceedings
(1) A person who is a defendant in proceedings in a criminal court must provide his or her name, date of birth and nationality if required to do so at any stage of proceedings by the court.
(2) Criminal Procedure Rules must specify the stages of proceedings at which requirements are to be imposed by virtue of subsection (1) (and may specify other stages of proceedings when such requirements may be imposed).
(3) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed by virtue of subsection (1), whether by providing false or incomplete information or by providing no information.
(4) Information provided by a person in response to a requirement imposed by virtue of subsection (1) is not admissible in evidence in criminal proceedings against that person other than proceedings for an offence under this section.
(5) A person guilty of an offence under subsection (3) is liable on summary conviction to either or both of the following—
(a) imprisonment for a term not exceeding 51 weeks (or 6 months if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003), or
(b) a fine.
(6) The criminal court before which a person is required to provide his or her name, date of birth and nationality may deal with any suspected offence under subsection (3) at the same time as dealing with the offence for which the person was already before the court.
(7) In this section a “criminal court” is, when dealing with any criminal cause or matter—
(a) the Crown Court;
(b) a magistrates’ court.”
In practice, “the Court” is likely to be the Magistrates Court, at the first appearance in a case. The provision is offensive and objectionable, and straight out of the UKIP dream statute book. Why stop there? Why not require confirmation of ethnicity or of religion? Perhaps instead of requiring a question and answer routine, the Court could just write down the defendant’s skin colour.
It is presumed the legislation is to assist with the speedy deportation of “foreign” criminals. But how to monitor them once identified? Well lock them up obviously – something that is 9 times more likely to happen if the foreign national is non-white, as evidenced in the Lammy report.
But after that? It is a only a short step from obtaining verification of nationality to requiring the foreign defendant to be tagged , a digital equivalent of being forced to display a star or triangle. The legislation ironically became effective the day after Remembrance Sunday.
How are the provisions to be policed? If a defendant fails to answer, it presumably falls on the Prosecutor to lay a charge, yet the CPS have had no training or guidance in respect of this legislation.
How will the charge be proved? The prosecutor presumably cannot be a witness in their own case. Will the Judge be required to give evidence, or treat it as they would a contempt? (See para 6 above) Is the defence Advocate professionally embarrassed in the substantive proceedings as well as the nationality offence?
There may well be a temptation for a foreign national appearing in Court to keep their head down and answer “British”, to avoid some unspecified future sanction.
But perversely, as a British born citizen ashamed of this legislation and outraged at it’s purpose, the temptation for me were I appearing as a defendant would be to refuse to answer out of sheer bloody-mindedness (“don’t tell em Pike!”) or to say something flippant (European? Independent republic of ISLINGTON?) That is probably the British in me coming out.
Answering questions in these circumstances (rather than sticking up two fingers) would feel “un-British” – as alien as compulsory ID cards.
Is it permissible to answer “none” if the defendant is stateless, the refugee without a Nation home?
What of the defendant who answers one nationality, but is believed to be of another (the first limb of the s3 offence?) How is the “true” nationality to be proven?
Is there a defence if the defendant genuinely believes they have acquired British nationality, answers accordingly, but finds out status still undetermined, or is it a strict liability offence?
What is the penalty for the prankster who answers “Vulcan” or “Jedi”?
Do they get a second chance, or like the drink-driver at the police station who doesnt blow into the tube hard enough, is it a one-off opportunity?
Which nationalities are recognised? The 193 currently recognised by the UN, or a broader definition? There are said to be 270 nationalities (and 300 different languages) in London alone.
What of dependent territories, or those are on the verge of becoming sovereign nations? What of autonomous regions of different nations? Can a resident from Barcelona answer “Catalan”?
Are fat-cat tax avoiders to say “British”, or name their off-shore domiciled Nationality?
What of those with joint or dual nationality- do they get to choose?
How about somebody with mental health issues who is unfit to plead-are they also unfit to confirm Nationality?
What about a defendant who is silent throughout the proceedings? Mute by malice, or by visitation of God?
At this post-Brexit time of national discourse leading to discontent, with the issues of prejudice and discrimination in the criminal justice system to the fore after publication of David Lammy’s report, the timing of this rushed and ill-judged legislation is unfortunate. Nigel Farage may be cheering, I am not.
Challenge to legislation, and appeal for information
Anecdotally I am told that defendants are complying with the legislation and stating their nationality (although often initially answering by ethnicity) and have been unable yet to find a case where somebody has been charged.
I believe the provisions can be challenged due to the inherently discriminatory nature of this legislation. I am in contact with other lawyers who are considering strategies to remove this provision, but we need to know how the legislation is being enforced. have you been involved with or witnessed such a case? Please let me know! We can exchange info to see if there is any uniformity of approach, and evaluate the impact. Email firstname.lastname@example.org