We Cannot Rely on the Judges to Safeguard Our Freedoms

There has been a great deal of press comment and scandal in the UK recently about allegations of historic child abuse. There have been quite a lot of cases in which famous people, often entertainers, have been found to have abused children and women taking advantage of their celebrity, but in efforts to catch all such abusers unsubstantiated and sometimes ridiculous allegations of abuse have been investigated with fervour, relying implicitly on the truth of the complainants statements no matter how incredible or uncorroborated they may have been.

Several people have been investigated and their investigations have made the headlines. 92 year old Field Marshall Bramhall had twenty policemen descend on his home to search it thoroughly. Former Home Secretary Leon Britton  suffered similar indignities. There have been others. None of them have been or will be prosecuted, There is no evidence of any wrongdoing on the part of a number of these people, including those I have named, who have had their names bandied around by the media as child abusers and rapists.

Of course the police must have leaked details of their investigations to the press in ways that enabled the press to identify the subject of their investigations. That is quite wrong, but the police frequently misbehave and there is nothing unusual in that. Normally we expect the judges to prevent bad or excessive behaviour on the part of the police.

When the police decided to search Field Marshall Bramall’s home they must have first obtained a search warrant from a judge. They would have had to explain to the judge (at a hearing in chambers) why they wanted the search warrant, what they expected to find and give the judge some details of the evidence that formed the basis of their suspicions.  they would have also told the judge when he considered granted the search warrant that they proposed to send twenty officers to search the Field Marshall’s home.

In my experience police exaggerate but do not lie when it comes to swearing evidence for a search warrant. It is likely that the judge who granted the warrant knew the following facts to be as hard facts and probably nothing else:-

  1. A chap called Nick had accused the 92 year old Field Marshall of abuse said to have happened some 40 years earlier.
  2. Nick’s evidence was completely uncorroborated.
  3. None of Nick’s evidence had been tested in any way – for example an allegation that the Field Marshall had carried out abuse on Remembrance Day, which would have been easy to test.

The test of granting a search warrant is there must be reasonable grounds for believing any of the following:

  • A criminal offence of a serious nature has been committed; in this case the only evidence was an unsubstantiated allegation of something said to have happened 40 years earlier. there are no reasonable grounds for believing any offence was committed.
  • There is material evidence on the premises that is likely to aid a criminal investigation; what did the police think a search would reveal? That the Field Marshall had kept photographs of the offence? That DNA would be available after more than 40 years on clothes 40 years old?
  • It is not practicable to obtain the evidence without a warrant being granted; it is hard to see what evidence the police were expecting to find at the search.
  • That the purpose of the search will be seriously prejudiced if the police officer cannot have immediate access to the property upon arriving at the premises; this ground cannot possibly apply, in my view. It was extremely unlikely that there would be any evidence revealed by the search.

On those facts if I were a judge (and I am not a judge) I would not have granted a search warrant. I would have told the police that their evidence was very thin and insufficient to grant a search warrant, and that they had to get more evidence before a search warrant would be authorised.

However, a judge or a magistrate did grant a search warrant. Sadly, it shows that judges have become too close to prosecutors and frequently do not think carefully enough about issuing things such as search warrants, even though the issue of a search warrant can turn the life of a person against whom no search warrant should be issued completely upside and cause great stress, worry and the inevitable problems that ill health caused by stress and worry brings.

We must draw the conclusion that in these matters some of our judiciary are mere cats-paws for the prosecutors and no longer can be trusted to safeguard our rights.

There is also a point to make that court staff who arrange the search warrant hearings can steer a particular judge known to be sympathetic to a particular prosecution to a particular application.  There is no robust system of allocating judges to hear search warrants on a random basis, and there should be such a system.

 

Police Bullies

There have been what seems to be an increasing number of incidents where police behave in their dealings with ordinary citizens in ways that are bullying, violent and inappropriate. There seems to be many such incidents in the Southern parts of the USA where police have, as far as I can tell from police webcam videos installed in their cars, behave with undue aggression. The latest incident led to the death of Sandra Bland in a police jail after Miss Bland was stopped for failing to signal – Continue reading

Patchwork Crimes

Since the Anti-Social Behaviour, Crime and Policing Act became law on 20 October 2015 we have seen a new class of behaviour previously quite lawful but which have now become criminal acts but only in certain parts of the country. Continue reading

Making New Crimes

I think that we have quite enough laws. Elected or appointed politicians think that the answer to a new threat is to make new laws. I suppose that is perfectly natural way to think if you have law making powers, especially if you are elected to have law making powers, but if the answer to new threats was to make new laws, then there would be no new threats, ever. Continue reading

Processing Cases

I wonder what people think of justice when they meet it for the first time; perhaps it would be more accurate to use “the legal process” instead of justice, because judges of most kinds seem to be intent on processing their work as a matter of priority; processing cases is important, but it is only worthwhile if it done justly, and so much is not done justly these days; perhaps it was always thus. 

I despair when so much judicial time is wasted on process, instead on being devoted to seeing justice done.

Mental Health Advocates and Legal Privilege

I do not frequent the criminal courts very often and I frequent the criminal law even less often, but I was struck by a legal oddity when the police arrested Ms Jackie Powell, a mental health advocate on suspicion of preventing the burial of a body without lawful excuse. Ms Powell is the mental health advocate for a notorious serial killer of children, Ian Brady, but her role is not a role does not attract legal privilege, so anything that her “client” tells her is not protected, or so it is thought by the state of the law at present.

However, Continue reading