Category Archives: Justice

Justice is worth more than money

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.

When it comes to ideas of justice I’m with Shakespeare.  A class performance of Act 4, Scene 1 of The Merchant of Venice had such an impact on me that nearly 30 years later I can remember who played which part, even though we were in an English lesson and still in school uniform.  Would that some members of the government had had the same experience.

I find myself increasingly questioning what exactly government, particularly this government, is for.  I thought, stupidly, that it was there to protect the poor and weak, the disadvantaged and vulnerable, the sick and ostracised.  After all, the rich, mighty, clever and powerful can largely look after themselves.

I am not going to list everything our current rulers have done that could reasonably be assumed to contravene that purpose.  Suffice to say if you’re not part of a ‘hard-working family’ (whatever that is) you are probably not in favour.

However, this government does take one of its duties, protecting the rule of law, very seriously indeed.  It takes as its blueprint that tried and tested method of keeping order by just silencing anyone who dissents and trying to dispose (quietly or otherwise) of those lesser people who are just a drain on resources and apparently contribute nothing to the greater good.

This is actually quite baffling because, with the arguable exception of North Korea, contrary to what seems logical, this has been shown not to work; but then facts have always been a bit problematic for this government.  If the new ‘gagging law’curtailing what campaigning organisations, from your local community group up to the largest national charities, can say or do in the year before a general election is not sufficient proof for you, then attempts to slash legal aid should be.

You may agree with the Minister of Justice that lawyers are paid far too much for defending wicked criminals, dirty immigrants and scrounging serial benefit cheats (on the whole, they aren’t) but it’s a dirty job and someone’s got to do it.  Or not if Chris Grayling gets his way, because cuts in the criminal legal aid budget mean anyone could find themselves caught up in the wrong end of the justice system with no means of climbing out.

Anyone in any one of those hard-working families politicians love so much could fall foul of the law.  You could easily be in the wrong place at the wrong time, be wrongly accused, involved in a car accident, get into a fight, drive too fast or over the limit or be mistaken for someone else.  Could you afford a shit-hot lawyer to plead your case and hopefully get you off?  You can be sure most government ministers could.

Politicians might think the poor and disadvantaged are a breed apart, different from the rest of us, who have always been that way.  That’s probably why they have already slashed the budget for civil legal aid (ie for anything not criminal in nature).  But anyone in any one of those hard-working families could find themselves caught up in debt with no means of climbing out and end up losing their home.  Any one of them could lose their job and get sick and need to rely on welfare payments of one sort or another to feed the rest of their family.  And it’s quite likely that quite a few of them will get divorced.  Could you afford a lawyer if you suffered at the hands of a negligent doctor or unscrupulous employer?  If not, you’d better hope you’re adequately insured.

The government has been keen to characterise legal aid as an expensive and unnecessary handout.  The problem is, justice is not about money and once you start characterising it as such you risk opening up all sorts of cans of worms.  The justice system is, or it should be, the bedrock of democracy.  Believe it or not, Parliament is also vital for democracy but you don’t need it to govern.  Not surprisingly no one is suggesting we scrap that because it’s expensive and unnecessary.

Justice does not mean the same to everybody (political philosopher Michael Sandel explains this best).  On the whole our concept of justice goes beyond the purely utilitarian (ensuring the most people possible are happy) and libertarian (respecting everyone’s right to live as they choose) and makes judgements about who deserves what and which virtues are worthy of recognition.  If justice is about making these sorts of decisions then it is more than a marketplace, it is about defining a shared project for the common good.  It means we accept that markets cannot by themselves confer fairness and requires us to decide whether there are areas of life that cannot be left to the power of what’s in your pocket.

Is it acceptable for Westerners to pay Indian women to carry babies for them?  What is the problem with allowing parents to secure a place for their child at a university by making a substantial donation?  Should we pay children to encourage them to read, or donors to give blood, or drug addicts to become sterilised?

While these questions may seem to have little in common with the legal aid debate they all have the same source:  is there a moral limit to markets and are some things beyond a straightforward cost price analysis?  What is the point of having a government meant to protect and nurture society if we simply submit everything to a value for money argument?

This is the point of legal aid, to ensure that every one of us, from the prince to the pauper, is equal before the law.  Without it, what stake do those unable to access justice have in our society?  Why should they submit to the rule of law if it offers them nothing in return?  But rather than justice, this government seems to offer nothing but vengeance.

The pound of flesh, which I demand of him,
Is dearly bought; ’tis mine and I will have it.

(The Merchant of Venice, Act IV scene I)

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Rogue bosses get the green light

Today the government has really surpassed itself in taking giant leaps backwards.  Most people probably won’t even notice, at least not until they have an injury at work.  With the controversial section 69 of the Enterprise and Regulatory Reform Act 2013 coming into force today, which removes strict liability for breaches of certain health and safety regulations.

If that all sounds a bit nebulous, here’s a post I wrote about it last year.  As the  Association of Personal Injury Lawyers claims, it really is ‘a charter for rogue bosses’.

And did those feet….

Originally posted on the QualitySolicitors blog on November 6, 2012

Poor old health and safety, it gets a bit of a bum rap. It should be lauded as one of the great achievements of the 20th century, protecting millions of workers from death and injury at work because of careless or unscrupulous employers. We should cherish it for not only making work a safer place to be but for ensuring that when things do go wrong guilty bosses have to pay up.

Instead it is blamed for everything from creating oppressive red tape that stifles economic growth to preventing kids from playing conkers and pubs from putting up hanging baskets.  Next time you see a tabloid headline slamming our onerous ‘elf and safety’ regime it is worth remembering that last year 173 people died because of workplace accidents and 22,433 were seriously injured.

No matter, these days it’s all quite safe and the rules that once protected children from being mangled and crushed by machinery are now just a nuisance.  Apparently employers are now overburdened by costly and unnecessary health and safety inspections and, it seems, encumbered by a compensation culture that has driven them to an understandable over-compliance with the regulations.

So the government has decided to act and free business from these shackles by making it harder for people injured at work to get compensation.  This is quite easily done by quickly and quietly slipping in a clause to the Enterprise and Regulatory Reform Bill during its final stages in the Commons.  And hey presto, the automatic right to compensation for an injury caused by a breach of health and safety regulations, enshrined in the law since 1898, is gone!

It may not be quite gone as the bill still has to make its way through the Lords, but the government has made its intentions clear.  Announcing the changes, business secretary Vince Cable said: ‘In these tough times, businesses need to focus all their energies on creating jobs and growth, not being tied up in unnecessary red tape’.  Such as keeping their employees safe, obviously.

The end of ‘strict liability’ drives a coach and horses through the health and safety legislation by undermining the very principle of the 1974 Health and Safety at Work Act:  that there should be minimum requirements to guarantee better health and safety protection for workers.

Strict liability, whereby companies are liable for injuries regardless of negligence if certain health and safety rules are breached, is imposed in a very narrow set of circumstances.  That I am unable to explain what they are isn’t really the point, because fundamentally it is about unfairness.

Removing strict liability means an injured worker can’t just base their claim on a breach of health and safety regulations as they can now.  Instead they would have to rely on common law negligence.  This means, for example, proving not only a machine was unsafe but that the employer knew or should have known about it and that it was the employers’ fault.

Even if the worker could prove all this, it isn’t going to be cheap and could cost more than the value of their claim.  It is also bound to make cases more drawn out, creating a veritable lawyers’ playground but doing nothing for employment relations or productivity.

Maybe it does seem unfair for an employer to be liable for an accident even if using ‘reasonable care’ couldn’t have prevented it, but not half as unfair as it is on an injured employee who can’t get compensation even though they are entirely blameless and using equipment provided by their employer.  The risk is created by, and so should be borne by, the employer and not the employee.

Personally I find it impossible to get my head around the idea that responsible businesses up and down the land are wasting time and money on over-compliance with health and safety regulations because they are afraid of being sued.  I am quite sure most of them take the safety of their workers extremely seriously and all the government is doing is handing a ‘get-out’ clause to those who are somewhat less than scrupulous.

Including, it might seem, itself.  The Court of Appeal recently ruled that the Ministry of Defence has a duty to provide safe and adequate equipment to serving troops and failing to do so can result in it being found liable if soldiers are injured or killed.  I am shocked this was even up for debate.  Fortunately for the government, wounded servicemen will be affected by the health and safety changes just like any other employee.

It all looks a bit cockeyed.  Rather than making it more difficult for injured workers to get compensation to pay for lost earnings, medical care and rehabilitation, it makes more sense to allow employers to sue third parties, such as manufacturers or suppliers, where neither the employer or employee is at fault.

Or instead of trying to address nebulous perceptions and impressions and tinkering about on the sly with long-standing, valued, tried and tested primary legislation, the government could get some actual hard evidence about the problem and then go about trying to educate businesses and the public about health and safety.

It could even, as the independent Löfstedt report on health and safety recommended, start a proper debate about risk in society and how it should be regulated.  But sadly it appears ministers have bought hook line and sinker into the ‘health and safety gone mad’ lies peddled by the insurance industry and the tabloid press.  In doing so they are in danger of dragging us backwards ‘to the days of Blake’s dark satanic mills’.

Twenty-three years is a long time to wait for justice

Twenty-three years is a long time. You should be able to get a lot done like, I don’t know, invent new things, build cities, go to Mars and back, grow up. There aren’t many things that actually take 23 years, unless someone in your family died at Hillsborough on 15 April 1989. Then you’ll find it takes 23 years to get the truth.

This isn’t strictly true. Those campaigning for the truth of what happened that awful day have known all along that their loved ones didn’t die because of drunk football hooligans without tickets storming into the ground and causing a devastating crush against the barriers, even though that’s what the police, the press and even the government were saying.

They have, however, had to wait 23 years to learn the full extent of the conspiracy after the event by the police and the ambulance service to exonerate their own roles in the disaster and, with the collusion of the press, place the blame firmly at the feet of the fans. As if 96 preventable deaths and 23 years of lies weren’t tragedy enough, we are again reminded that agents of the state do not always act in the best interests of the citizens they are supposed to serve.

An independent report into the events at Hillsborough published today has found that South Yorkshire Police and the ambulance service made ‘strenuous attempts to deflect blame’ for the deaths of the 96 Liverpool supporters. This was not just a subtle spinning of the facts, but a concerted attempt to besmirch the reputations of the dead and those who had survived.

Why else would the police carry out criminal record checks on the deceased, or test the blood of all of them, even the children, for alcohol? Why else would they doctor 116 of the 164 police statements to remove unfavourable comments? Why else fabricate ‘despicable untruths’ about the behaviour of fans, including that they stole from the dead and dying and urinated on the police?

If the fact of the police cover up is not news, at least not to the families of the victims, the scale of it revealed by the report is more damning and shameful than anything most of us would have feared. Equally depressing is to learn, for the first time, of the inadequacy of the response by the ambulance service to the disaster. It failed to implement its major incident plan, only one ambulance made it to the pitch and only 14 victims were taken to hospital.

The report also raised ‘profound concerns about the conduct and appropriateness of the inquests’ into the deaths, in particular the decision to rule that all 96 victims died in the same way (which sounds unlikely to anyone with an ounce of common sense). It also criticised the decision to impose a 3.15pm cut-off time on the inquest, when evidence shows that a number of the dead survived ‘for a significant period’ after this.

In his apology to the victims’ families, the prime minister acknowledged the failure of the state to protect their loved ones and their ‘indefensible wait to get to the truth’. Waiting 23 years for an apology must be something of a record (and it’s worth remembering that without the dogged persistence of Andy Burnham MP they might still be waiting) but the catalogue of errors and downright lies now exposed is not enough. The families still want justice.

Justice would surely include a new public inquiry setting out not only what happened in the stadium but exactly what happened afterwards. The government is under no legal obligation to do so, but given the evidence now uncovered, it would be difficult for them to resist.

The families also want to see the inquest finding of accidental death overturned to be replaced by a verdict of unlawful killing. For this to happen, the Attorney General has to persuade the high court it is in the public interest to quash the original inquest and order another because new facts or evidence have come to light.

It is scandalous that no-one has ever been found guilty for the failings that led to the tragedy. Shockingly, even though the original 1989 Taylor inquiry found the reason for the disaster was a failure of police crowd control, the director of public prosecutions decided not to bring criminal charges against any individual or organisation on the grounds of insufficient evidence.

With 450,000 previously unseen documents, there must now be sufficient information to prosecute the police officers who lied and tampered with evidence and the police commander, who retired on medical grounds before he could be disciplined, but later admitted, during a failed private prosecution, that he had lied about the cause of the disaster.

I expect the newspapers guilty of perpetuating the narrative of drunk, filthy, criminal football fans causing the disaster are going to have to do a lot more than issue front page apologies. It may not be possible to libel the dead, at least not yet, but they didn’t only sully the reputations of people who had died just for going to watch their team play football, they prolonged the agony of their families.

It would be easy to think, because this all happened 23 years ago when policing was more like Ashes to Ashes than Law & Order UK, it couldn’t happen again. But if we haven’t yet quite come to expect police misreporting of the facts, we shouldn’t be surprised by it: witness the shooting of Jean Charles de Menezes and the death of Ian Tomlinson and the family of Mark Duggan, still waiting for answers about the police shooting that caused his death in August last year.

However much policing has changed, it is impossible not to conclude that there is still a dangerous culture of secrecy pervading some parts of it. Perhaps even more unacceptable is that, despite varying degrees of evidence to the contrary, for 23 years governments and large segments of the press have been content to accept and peddle the story of Hillsborough as concocted by the police.

If it took the rest of us 23 years to grasp the truth of something, we’d be branded incompetent and out on ear in no time. If it had happened in another country, we’d accuse it of being a police state and point fingers at its inept justice system and unaccountable politicians. It is not acceptable that it happened here and we can but hope it never happens again.

Posted in: campaigns, Justice system
Tagged: Hillsborough, police

Secret courts – not in my name

Today the Justice & Security Bill enabling ‘secret courts’ passed through the House of Commons.  I wrote this about the bill last May.  Sadly it still holds true.

Don’t get me wrong, I enjoyed Spooks as much as the next person, although I lost interest once the characters played by Rupert Penry Jones and Hermione Norris were bumped off. Along with most people, I have no illusions as to how accurate a portrayal it represented of the security services. Most amusing was the idea that there were only about a dozen spies at most, all highly swashbuckling, protecting us.

Nobody thinks there are spies much like James Bond either, but I suppose most people would generally assume that our spies at least are the good guys and reasonably successful in doing their jobs. And there’s the rub. Mostly we have no idea what they are up to, which is why the government’s proposals for secret courts are so worrying.

I wrote not that long ago about why these plans undermine the principle of open and equitable justice and why we should oppose them. Secret courts have no place in an open and democratic society and apparently the justice secretary Ken Clarke has finally been swayed by the Daily Mail’s campaign against the proposals.

Or perhaps not. The much-trumpeted climbdown, most notably on the proposal that public inquests might be held in secret, is really nothing of the sort, if you take as your starting point the principle that all institutions must submit to the rule of law. Instead, this bill means that the intelligence services can insulate themselves from legal challenge and press scrutiny.

That is not to say we shouldn’t welcome the concessions, limited though they might be, although, as with any government u-turn, it is always worth remembering what Shami Chakrabarti, director of Liberty, calls the ‘oldest parliamentary trick’ where you start with ‘a policy so outrageous that any crumb of comfort looks half reasonable’.

The other crumb offered by Clarke has been to decide that a judge, not a minister, will make the final decision on whether proceedings should go into close session.  It’s difficult to see, however, how the proposals, which remove judges’ public interest immunity discretion, are anything other than a whitewash.

In reality, this ‘concession’ is a nonsense.  Under the bill, a judge ‘must’ agree to a secretary of state’s demand for secret hearings if the disclosure of information ‘would be damaging to the interests of national security’.  This, says Clarke, is a much narrower criterion than ‘the public interest’.  It may well be, but the problem remains, who defines what is in the interests of ‘national security’. The judges? The government? The spies?

One key opponent to the proposals, Liberal Democrat peer and former Director of Public Prosecutions, Lord Macdonald, told the Today programme that ‘judges pay a high degree of deference to ministers in the area of national security’. Judges themselves agree. As Lord Kerr of the Supreme Court said in al-Rawi, the leading case on secret hearings in civil claims, ‘evidence which has been insulated from challenge may positively mislead’.

I don’t know about you, but I want to know what is being done, in my name, to protect ‘national security’. I want to know if my government has been complicit in the torture of detainees overseas or has allowed their rendition back to brutal regimes where their lives are in danger.

I am quite sure the Intelligence and Security Committee doesn’t provide the accountability it’s supposed to.  But that’s hardly surprising when it is appointed by the prime minister, has its reports vetted by him and probably only sees what MI5, MI6 and the government want it to see. The committee probably knows this, but that doesn’t make me feel any better about it.

Ken Clarke claims there will, in fact, be more justice under these proposals because the only alternative is silence.  This sounds pretty unlikely to me.  Much more likely is that he wants to protect ministers against civil damages claims, like those from Guantánamo Bay detainees ‘to whom we paid a lot of money recently because we could not put the evidence up against them’.

Lord Macdonald suggests the government has failed to come up with any concrete examples where this has happened.  More to the point, it doesn’t make it any more like fair justice if the case goes ahead in secret and is decided on evidence that one of the parties can’t even see.

It is worth citing the case of Khadidja al-Saadi who was rendered at the age of twelve by the UK to Gaddafi’s Libya. Her family are taking the British Secret Services to court for conspiracy to torture after failing to get either an apology or an explanation for their ordeal. Even with Ken Clarke’s ‘concessions, her case will be held in secret, so we’ll never know the truth.

On hearing about the plans, Khadidja al-Saadi said they sounded

‘a lot like the trial that Col. Gaddafi used to sentence my father to death. In that case, my dad told me, a man came from behind a panel and whispered intelligence in the judge’s ear. My father had no opportunity to respond and had no idea what was said. [He was] sentenced to die. I say ‘sentenced’ but it was no trial. It was a joke. Is this really what Britain wants to do with my case?’

And this, ultimately, is the point. I don’t want my justice system to be compared with that of a raving, maniacal and badly-dressed despot. I don’t want our spies, however noble and just they might be, running around unchecked. And I don’t want ministers to act as judge and jury, deciding what I can and can’t know about what they are doing in my name, because it isn’t always good and it’s not always pretty.

Is self representation the legal equivalent of a DIY appendectomy?

Would you rather represent yourself in court or perform your own appendectomy? It sounds like a fairly straightforward question and at first thought, and quite possibly second and third thoughts as well, most of us would plump for representing ourselves in court: there is, arguably, less blood, less pain and less chance of death.

But I have been musing on the question since reading about Ramírez Pérez, a Mexican woman who delivered her own child by caesarean section.  The mother of seven, who lived in a tiny rural community in Mexico eight hours from the nearest hospital, decided after 12 hours of severe labour pains that rather than risk losing her baby she would operate on herself.  Remarkably both she and the child survived.

Not something I imagine many women will be including in their birth plans.  Unsurprisingly, Ramírez is believed to be the only woman to have performed a successful caesarean on herself, although it’s quite possible some of us would do the same if we found ourselves in her situation.

Ramírez obviously felt she had no choice, or only a choice between her DIY operation and death, which isn’t much of a choice. This is likely to be true for anyone else who finds they have to wield the knife on themselves: the mountaineer who cuts off an arm to escape a rock fall or the scientist stuck in the Antarctic who needs a biopsy (although there is a strange category of people who seem to do it for fun).

It is unlikely that many people represent themselves in court for the fun of it.  Nobody knows your body better than you, and all you have to face when cutting yourself open is pain and a lot of cleaning up afterwards.  In court you have to face people, in comedy wigs and gowns, for whom the rules and regulations are second nature and who argue for a living using a strange language the rest of us don’t understand.

You might think, therefore, that the only people who would represent themselves in court would be those oddballs who ‘love a challenge’, who want to put one over on the establishment, who have nothing better to do, or who are just a tiny bit crazy.

Not any more.  Where once people would no more represent themselves than they would drill a hole in their own head, now anyone can find themselves having to navigate the arcane world of the court system because they have no choice.

This alarming rise of litigants in person is set to increase and everyone from the Lord Chief Justice down is starting to worry about the impact this will have on the justice system.  Everyone, it seems, apart from the government.

In the last five years there has been a 61 per cent rise in the number of reported high court and tax tribunal cases involving unrepresented litigants.  The recession has had a huge negative impact on people’s personal finances, meaning more may end up in court but unable to afford a lawyer.  From April 2013, when the legal aid cuts come into force, this is only going to get worse.

There will no longer be any financial support for most cases involving divorce, child custody, medical negligence, employment, immigration, housing, debt, benefits and education.  According to the government’s own figures, 623,000 people could lose out on advice.  A number of law centres are already closing, but the £20m transition fund set up to support them looks somewhat paltry.  All of which might be ok if it were really going to save £350m, but it isn’t.

When I needed a caesarean for the birth of my daughter it took minutes, seconds even.  It took Ramírez an hour to perform one on herself and she needed further surgery to repair complications.  Likewise, a case prepared by a lawyer who knows what they are doing is likely to reach, and conclude, a final hearing much more quickly the than one handled by someone who didn’t even know where the court was until last week.

The government says the evidence does not show that these cases ‘necessarily take longer’.  I find this hard to believe.  Self-represented litigants are not going to have had any legal advice to help work out the merits or demerits of their case.  They are not going to know what is relevant and what is not, nor what they have to produce or when they have to produce it.

The government says ‘judges are already well used to dealing with litigants in person’, but this upsurge in cases that need significantly more support is going to descend on a court system that is already noticeably creaking following drastic staffing cuts.

The government says its reforms will encourage people to tackle their problems earlier and in other ways rather than resorting immediately to legal action.  But by pulling the rug out from under people, what they’ll get is more people who get no justice at all, either because they haven’t had any legal advice or because they will just give up.

You don’t even have to use your imagination to see what this deluge of DIY justice will look like.  US courts are flooded with poorer people representing themselves and judges say they are slowing down court dockets because they don’t know what legal points to argue or what motions to file.

According to America’s largest funder of civil legal aid for the poor, less than 20 per cent of the legal needs of low-income people are addressed with the help of a private or legal aid lawyer.  Its chairman says ‘courthouses are being filled with people just showing up, trying to figure out what their rights are’.  In some states the numbers of litigants in person in child custody and divorces cases is around 80 per cent and rising.  Millions of dollars has been spent on educating and supporting them.

A former aviation director who represented himself in court, Peter Elliot, told the Law Gazette he was ‘utterly frightened’ and intimidated when he first walked into Manchester high court four years ago and had no clue what he was doing.  ‘It was like being in a game of chess where you don’t know where any of the pieces can go but your opponent knows it all’.

Even so, I’m guessing Mr Elliot’s background had better prepared him for the challenge than many of the vulnerable people who will find themselves in the same situation come April next year.  Against this, cutting your own foot off starts to look like the easy option.

Lessons about justice from the trial of Oscar Pistorius

I was one of those lucky enough to be in the Olympic stadium on 8 September last year to watch Oscar Pistorius win his emotional gold medal in the 400m. Well, it wasn’t entirely luck, I had applied for tickets for that session precisely because I wanted to see him race. It was an incredibly stirring event and one that banished memories of his unseemly tantrum the week before, which I’d also been there to see.Image

Just as it was not a surprise that the way in which Pistorius won, and accepted, this gold medal provided redemption, it should not have been a surprise that our hero wasn’t, in fact, the icon we held him to be, but a normal person just like the rest of us. All the same, finding out someone can be ruthless and ungracious does not mean it is not shocking to learn he’s shot and killed his girlfriend.

And despite all the details about loud arguments, bloody cricket bats, whether or not the athlete took time to put on his prosthetics and where the victim, Reeva Steenkamp, was sitting when she was shot, this is all we really know. It is, I would suggest, all we really should know, given the alleged crime took place less than a week ago and hasn’t yet even come to trial.

As the Twittersphere and rolling news whip themselves up into a frenzy of speculation, claims and counter claims are increasingly masquerading as facts. The case, understandably, is being compared to that of OJ Simpson in 1994. But if Simpson’s trial was a circus, today’s proliferation of social media renders Pistorius’ more like a deranged bacchanal in which the participants try to outdo each other by sharing ever more salacious details that confirm their own already-decided verdict on his guilt or innocence.

It differs from Simpson’s trial in another key respect, there will be no jury. This is why both the South African and international media have been able to unearth stories apparently proving Pistorius’ unhealthy relationship with guns and previous violent behaviour. Even though South Africa has similar contempt laws to ours, they are rarely enforced because the judges who deliver verdicts are considered above influence.

South Africa abolished its jury system in 1969 because of racial politics. Only white people could be jurors and black defendants had no hope of getting a fair trial. It is surely debatable as to whether Pistorius can get a fair trial, even if the verdict comes from an unswayable judge who has to provide reasons for his decision. It must also be possible that some of this sensational coverage might be straying dangerously close to libel.

Before we get all high and mighty about the wonders of the jury system, let’s remember many people think the OJ Simpson jury got it wrong and our contempt laws are under strain from the challenges posed by social media. Between 1998 and 2005, the Court of Appeal ordered only four investigations into ‘juror misbehaviour’, but from 2006 to the middle of last year ‘at least 27 investigations’ were ordered.

The internet makes it all too easy for overenthusiastic jurors to do a little background research in between court sessions. It is equally challenging to prevent prejudicial information being published on the web. A consultation on proposals to reform our contempt laws has suggested there could be a new oath not to undertake research and tougher penalties for jurors who go a little ‘off piste’.

However, none of this will help without better education about the justice system. Only today, the jury at the trial of Vicky Pryce was dismissed after asking the judge ten specific questions about the case, including the definition of ‘reasonable doubt’ and whether a jurors could ‘come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it either from the prosecution or defence’. for failing to reach a verdict. The judge concluded they were ‘highly unlikely’ to reach a verdict.

If some commentators found it exasperating that jurors could be so baffled by the trial process, I can only wonder that this doesn’t happen more often. Maybe it does, we have no way of knowing what goes on behind the closed doors of jury deliberation and whether jurors have done their job properly, even if we believe most of them do.

Part of the fascination we have with high profile cases overseas, be it OJ Simpson, Amanda Knox or Oscar Pistorius, is, I think, as much about another country’s different way of dispensing justice as it is interest in the human story. We were baffled by the televised courtroom and superstar lawyers in Los Angeles, confounded by the inconclusiveness of Italian justice and now puzzled by the workings of a South African system that seems almost to sanction trial by media.

My fascination is compounded by my long affection for South Africa, which I first visited in 1976 when I was only four years old. It is a savagely beautiful country and I have always been struck by the warmth of its people despite its difficult past and troubled present. These same people will no doubt feel somewhat uncomfortable at this most recent spotlight being thrown on their country, in particular the violent undercurrent it brings into sharp relief and that all too frequently forces its way to the surface.

Despite fairly strong gun laws, 6 million people, 12 per cent of the population, own a gun and anyone who can locks themselves away in gated communities. On average a woman is raped every four minutes and one is killed every eight hours by a partner or relative. In a country where the poor are unlikely to be able to afford a lawyer and spend about two years in custody before coming to trial, it is perhaps the probable relative swiftness of Pistorius’ trial, and his highly paid lawyers, that will be most the most unusual aspect of this case.

Oscar Pistorius is already being seen as an analogy for a country that overcame tragedy, promised much and then fell gracelessly off its pedestal. His trial, and its outcome, will dictate whether or not he can redeem himself again. It may also have a tiny part to play in whether his country can also start to redeem itself.

What the age of criminal responsibility says about our attitude to children

Originally published on the QualitySolicitors blog in December 2011.

We are not, on the whole, particularly child-centric in this country.  Anyone with young children who has attempted to eat in a restaurant after 6pm knows this.  It is often preferable to beat a hasty retreat rather than face the glares of fellow diners as your toddler runs around the table legs and your six-year old whizzes toy cars across the table.  I’ve even been in a National Trust café where we were told off for ‘letting’ my friend’s son get cake crumbs on the floor.

It’s not much of a surprise then that we have one of the lowest ages of criminal responsibility for children in Europe and resoundingly trump even Algeria (13), Uzbekistan (15) and DR Congo (18).   A report by the Royal Society suggests that at 10 the age of criminal responsibility in England, Wales and Northern Ireland could be ‘unreasonably low’.

The Society’s conclusion is based on assessments carried out by a panel of scientists, lawyers and ethicists in how developments in neuroscience should inform the law.  The chair of the panel, Nicholas Mackintosh, said psychologists had shown adolescents are not wholly responsible individuals and that the brain continued to develop until around the age of 20.

Now I don’t imagine anyone is going to argue that we should raise the age from 10 to 20, and they’d have a hard job on their hands if they did, but it set me thinking about the seemingly arbitrary nature of the various ages at which the state says you can legally do things. For example, I’ve always thought it a bit odd that you can have sex at 16 but you can’t vote until you are 18 – surely the need to act responsibly in the former is far greater than the latter?

How is it that we don’t allow children to purchase lottery tickets until they are 16, but they can be held criminally responsible at 10?  Why do we think they aren’t responsible enough to get a tattoo until they’re 18, but they are responsible for criminal acts at 10?  And why aren’t children ready to leave school and go out into the world until age 16 but they can be tried as adults at 10?

I’m not suggesting children don’t know right from wrong by the age of 10, but there is a big difference between knowing it and being able to abide by it.  Life isn’t black and white and children of that age obviously can’t make judgements in the way adults can.  They may also be particularly susceptible to peer pressure or goading from older children and take a game or dare too far to impress.

I can only assume that having nearly the lowest age of consent I could find (except for bastions of democracy like Iran and Nigeria) is a tenacious hangover from the Victorian attitude that children should be seen and not heard and certainly not have any rights (apart from the right to sweep chimneys).

Whatever the cause, there is a hardening attitude among adults towards young people.  At the end of 2008, a poll by children’s charity Barnardo’s found that 49% of adults think children pose an increasing danger to society and 54% say young people are ‘beginning to behave like animals’.  It ran a disturbing advertising campaign warning that society is demonising children and aiming to remind us “the children we chastise, fear, expel, despise and lock up are still children”.

While it is true that children aged 10 to 17 are far more likely to be arrested than adults, fear of the young is surely exaggerated.  Fewer than 3% of this age group are in the criminal justice system and only a tiny minority are in custody.  But never mind, nasty stories sell more papers and get more website hits than a nice one, so we’ll run with the (utterly meaningless) Over half of young people claim to know how to obtain a knife’.  Such negative headlines ignore their impact on young people themselves who, let’s not forget, are still in their formative years.

Research by the National Children’s Bureau in 2009 found young people were angry and resentful about the way they are often portrayed.  It should come as no surprise that some choose to play up to their assigned role.  As one has put it “If we are getting told we are bad all the time, then we will just do something to be bad.  There’s no point in getting the blame for something unless you’ve actually done it”

In 2010 the Scottish government confirmed it would rise the age of criminal responsibility from eight to 12.  In making the announcement, justice minister Kenny MacAskill said:

“The evidence shows prosecution at an early age increases the chance of reoffending, so this change is about preventing crime.  [It] does not mean any eight to 11-year-olds will be let off.  Rather they will be held to account in a way that is appropriate for their stage of development”.

The evidence bears this out:  studies show 68% of young children given a community sentence order go on to reoffend.  According to Barnardo’s, a third of children under 15 who are in custody were 10 or 11 when they were first convicted.  It doesn’t take a genius to work out that this ‘conveyer belt of crime’ is entrenching the problem, not alleviating it.

The calls are growing louder to raise the age of criminal responsibility.  The Royal Society joins, among others, Barnardo’s, the children commissioner for England, a former chief of the Youth Justice Board and the Prison Reform Trust.  But the government has repeatedly insisted this is ‘not the answer’ and the focus should be on addressing the causes of offending by children.

Nobody is going to argue with that, least of all me.  If you’ll excuse the expression, it’s a no-brainer that we have to find a way of tackling the poverty, lack of opportunity and bad parenting that are probably largely responsible for driving any child into a life of crime.  Not that the government seems to be doing much on that front either.

It’s probably not the best time to argue that we should increase the age to 12 to align ourselves with the rest of Europe.  But we should.  We should also learn to love our children (and not just our own).  As one tweeter put it:

“The British attitude towards children [seems to regard them] as both brutes from birth needing to be tamed, and morally responsible for that brutishness.”

Whatever the cause, it is a thoroughly odd and extremely counterproductive way of thinking .  Personally, I blame the parents.