News Roundup Week Ending 18 July 2014
By Charlotte Rowles on 17/07/14Share:
The disappointment among left-leaning activists and commentators at the sacking of the law officers and a third QC, Ken Clarke, was compounded once it seemed clear that Chris Grayling would be keeping his role as lord chancellor and justice secretary. His position as the Conservatives' leading opponent of the European court of human rights is enhanced now that Grieve is no longer able to provide any sort of counterbalance within government.
So Grayling may well feel less put out than he might otherwise have been at a decision by the high court on Tuesday that he has no power to introduce a residence test for legal aid using delegated legislation. The lord chancellor's attempt to restrict the availability of legal aid to people who could show they had lived in Britain for at least a year amounted to unlawful discrimination, the court said.
The decision comes after Grayling had already pushed the measure through the Commons, using powers he believed he had under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo). Given the court's ruling, it is difficult to see how he could now expect his draft statutory instrument to be approved by the House of Lords.
The court appeared to doubt the government's claim that the reform would save public money. If Grayling had not been celebrating the defeat of his government opponents, he might have resented what Moses said about an article he published in the Daily Telegraph while Moses was writing his ruling.
"Most right-minded people think it's wrong that overseas nationals should ever have been able to use our legal-aid fund anyway," the justice secretary asserted.
Moses responded that Grayling was "unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent's shins".
Moses retired from the court of appeal last month to chair Ipso, the new press self-regulator, and this judgment can be seen as his valedictory message to Grayling. It was supported, without further comments, by the highly experienced judge Mr Justice Collins and the former counsel to the Leveson inquiry, Mr Justice Jay.
The judges had been asked to consider whether Laspo gave the minister the power to exclude non-residents from a list of cases that are given priority funding under the act. They concluded that a power to add, vary or omit cases from that list could not be used in a way that changed the purposes of the act or departed from its primary objectives.
There was no doubt that a residence test discriminated against foreigners, the court said. The law would permit discrimination in the payment of welfare benefits. But legal assistance was different, Moses ruled. The UK was "not permitted to discriminate against non-residents on the grounds that to do so might save costs".
So Grayling lives to fight another battle as Moses retires early and Grieve slides down the slippery pole. I suppose the warning sign was David Cameron's decision to deprive Grieve of his like-minded deputy, Sir Edward Garnier, nearly two years ago. Heald, Garnier's replacement, was seen as more politically acceptable. But not for long.
Bill Bache is one of the few lawyers to have done both conveyancing and appeared in a Court Martial in the middle of a warzone. And thatâ€™s before you get to the family courts, war crimes cases, ID parades in Basra, the coronerâ€™s court where he sat as a deputy coroner, and of course his practice as a leading lawyer in â€˜cot deathâ€™ and â€˜baby shakingâ€™ cases in the criminal courts.
This article appears in the latest edition of The Advocate.
We meet in a bar on Theobolds Road a few hundred yards from his London office. Every inch the old school solicitor in smart linen jacket, striped shirt and pink tie on a sunny afternoon, he sits alongside his long-time colleague, Jacqui Cameron.
Bill served articles with a firm in Bedford Row before qualifying in 1967. He then worked in local government before joining a firm in Salisbury in 1973 where he first did conveyancing and civil law. Soon he was appearing in magistrates and family courts regularly, as well as in courts martial, Salisbury being near to an Army base.
â€˜I was prevailed upon to go courts for which I hadnâ€™t been particularly trained but they seemed to like what I did,â€™ he says. â€˜As time went on I found what I seemed to like was looking out for the individual against the power of the state in one way or another.â€™
A spell as deputy coroner for Swindon and Wiltshire sparked an interest in medical aspects of legal proceedings and later he became involved in the case that would become one of the most difficult of his career.
â€˜I was almost naive at the time,â€™ says Bache. â€˜I had always proceeded on the basis that it was the prosecutionâ€™s job to prove its case and to do so beyond reasonable doubt, and if it couldnâ€™t do that then in my book the accused should walk free. I kept being told there had been three cot-deaths and therefore it was likely to be murder. I never followed the logic at all.â€™
Eventually he got hold of the prosecution papers.
Cot-deaths were then and still are to an extent a scientific enigma, he says. â€˜There were all sorts of theories, and some were better than others. It was a very good grounding in how to deal with cases of this nature and a lesson in looking at the whole picture. The family had lived in a small village where there had been a cluster of cot-deaths and so we investigated whether there might there have been an environmental factor. There was also a nearby Government research establishment where experiments relating to biological and chemical warfare were taking place. We had to look at everything.â€™
After Cannings was convicted, Bache knew they had to appeal. He was helped by a BBC journalist who researched the Cannings records in Ireland and discovered cot deaths in the family. Then the night before a pre-trial hearing and just a month before the appeal itself Bache received a phone call. Until that moment Angela Cannings didnâ€™t know she had a half-sister.
The judgment was a landmark. â€˜Although we were gutted when she was convicted, in hindsight we would not have had the benefit of the brilliant judgment by Lord Justice Judge, which seemed to me to redress the balance and bring things back to where they should have been in the first place, which was to remind everyone that the prosecution does need to prove its case. And if there is no scientific explanation you cannot simply go on from there to say there must have been criminal behaviour. If there is no scientific explanation then the answer is â€œWe donâ€™t knowâ€. That should result in an acquittal.â€™
â€˜These sorts of cases seem to come in and out of fashion. The allegations against Clark and Cannings were to do with smothering. Then we had a spell of salt poisoning cases. Now there is an increasing number of shaken baby cases.â€™
The consequences of these cases, he says, can be utterly devastating. â€˜In the event a parent is found guilty of causing death or injury they will never be allowed to keep any future children. The children will be taken into care straight away. Itâ€™s been known for police to be actually in the delivery room waiting to take the new-born child. The consequences last forever, and if this is done as a result of an injustice that is a terrible price we pay as a society.â€™
â€˜I have heard experts talk about â€œmainstream opinionâ€, implying that it must be right. I have no truck with that. You only have to look at the time when people thought the earth was flat or the sun went round the earth, dearly-held dogma to the point where anyone who said otherwise was executed.â€™
Legal aid cuts
He would like to see changes to the way funding of legal aid is administered. â€˜Prosecutions are in state hands, which is as it should be, the courts are run by the state, and the funding to allow people to defend themselves is also in state hands. I would like to see a reversion to the separation of powers, I would like to see funding placed in more independent hands as it used to be.â€™
â€˜We were doing an Army case and we had to go to Bosnia and we did the first Court Martial to take place in a theatre of war since the end of WW2. That was the first time Iâ€™d gone to court issued with helmet and flak jacket,â€™ he says. â€˜I didnâ€™t think my advocacy was that bad actually!â€™
John Sweeney has been made redundant by the BBC as the corporation axed all the programme's staff reporters.
Sweeney told trade magazine UK Press Gazette he wishes Panorama well in the future but is concerned that not having any staff reporters will give â€œmanagementâ€ too much power and undermine good journalism.
On news of his redundancy, he said: â€œThe nickname for me in the office for the last couple of months has been â€˜dead man walkingâ€™. So Iâ€™m not massively surprised. And I wish Panorama well, I wish the BBC wellâ€¦
Sweeney added: â€œThe BBC is fundamentally a good thing. A good thing for the world, a good thing for Britain, and at the moment weâ€™re being hammered by the newspapers every day. The managers have only got so much money and theyâ€™ve got to carve it up right.â€
Since 2001 the BBC has investigated the possibility that the state has abused children by locking up their mothers or taking them away from their mothers on the basis of flawed evidence. The features of the Sally Clark caseâ€”she was freed in 2003 by the Appeal Court, at her second attemptâ€”are typical: no hard evidence of abuse, no broken bones, no bruises, no history of abuse; no clear diagnosis of what went wrong; an assumption by an expert witness that it must have been foul play.
But what if the expert got it wrong?
No such changes have taken place within the Family Court system.
As a result of these three failures, my colleagues and I have been horrified to discover a series of what we believe have been a whole category of miscarriages of justice in the Family Courts.
1. Secret courts are bad courts. In rape cases, the media is not allowed to name the victim and sometimes the accused. But we are allowed to report in full the evidence. In exactly the same way the media should be allowed to write and report the evidence in a Family Courtâ€”so long as we don't identify the child. In the Family Courts, if the only evidence against a parent comes from an "expert" then the parent suffers a grievous disadvantage if that evidence can never be brought to the public eye. In the case of Child U, the mother was accused by an expert witness, Dr X, of trying to kill her child four times. He did not meet the family, the mother or the child nor did he take a family historyâ€”"could this be genetic?"â€”before coming to his conclusion. This appears to be a breach of guidance by the Royal College of Paediatrics. However, thanks to a Court Order by Mrs Justice Butler-Sloss we are prevented, "to protect the identity of the child", from naming the doctor, his hospital, the city name of the social services department or the region in England where it lies. This has nothing to do with protecting the child but everything to do with protecting an "expert" and a social services department from public scrutiny.
2. "The primacy of the child" over-rides and reverses the presumption of innocence. Parents are placed in the appalling position of having to prove their innocence; if they do not know why their child is sick, they cannot and therefore they must be guilty.
3. "Experts" who don't know the family count double over inarticulate relatives who do. The most dangerous kinds of experts are those who trumpet criminalising diagnoses without giving the benefit of the doubt to innocent explanations. Shaken Baby Syndrome and Munchausens Syndrome By Proxy are two such diagnoses. Munchausens is a criminalising diagnosis with no scientific validity. It is not in either the World Health Organisation or the US standard diagnostic bibles. The man who first identified it, Professor Sir Roy Meadow, comes before the General Medical Council next year for ramping evidence against cot death mothers like Sally Clark and seven cases in the Family Courts.