Tuesday, 29 November 2016

Drink driving in UK versus Norway: when is a road not a road?

Kragero Golf Resort

This post is part of a short series of blogs inspired by the conviction of Halfords Finance Director, Jonny Mason, for drink driving in Norway. In the last post, we looked at whether the golf buggy he was driving at the time of his arrest could be a motor vehicle here in the UK. In this post, we’ll consider how our law differs from Norway’s on the place of the offence.

Mr Mason was staying in a golf resort. According to the press, he decided to drive a golf buggy from a bar to his holiday apartment. It is said that at no time did he travel beyond 10KPH or 6MPH.

In the UK, drink driving is only a crime when committed in a public place or on a road, but the legal definition of a road is much narrower than you might imagine. If you drink drive in a private place or on a road that does not meet the legal definition of a road then you will be not guilty, so it’s important that you (and your solicitor) knows the difference.

To decide whether Mr Mason’s actions could have been a crime here in the UK, we must ask ourselves whether the golf resort he was driving through is a road or public place as the Road Traffic Act 1988 only applies to those places and thus no offence is committed if you are not on a road or in a public place.

What is a road? The Road Traffic Act tells us that a road is, “any highway and any other road to which the public has access and includes bridges over which a road passes”. When I was a school child I was taught that it is wrong to define a word by using the word itself; I think it’s fair to say that the MPs who gave us this description went to a different school! In any event, we’re stuck with it so we’ll carry on as best we can. Barrett v DPP provided a much more helpful definition of a road when they said that the defendant had, “followed a route between points which was tarmacadam with defined edges, road marking and signs; that the roadway was used by members of the public, including those who had no other business within the caravan park, as a through route to the beach”.

Clarke v Kato, agreed with Barrett and went on to tell us that each case will turn on the particular character of the area in question and that a road should normally lead from one place to another. This was followed in Brewer v DPP where the car park did contain a route through it but only from the public car park into a staff only car park and the court decided that was not sufficient to make the car park a road for the purposes of drink driving law.

Roads are part tarmac part grass with no road signs visible
In Alun Griffiths (Contractors) Ltd v Driver and Vehicle Licensing Agency, the court also considered whether the area in question was maintained at public expense and found in that case that part of the reason the area was a road was because the taxpayer paid to maintain it. That cannot be a definitive piece of evidence though because the Act also says that the road must be one “to which the public has access”. A road inside a military base may be maintained at public expense, have a tarmac surface with defined edges, road marking and signs but if the public do not have legal access to it then it is not a road for the purposes of drink driving law.

Being the sort of sad chap I am with too much curiosity and access to Google, I have taken a look at photographs of the golf resort in question and studied the satellite images so am happy to say that there are some narrow tarmac roads with defined edges, although not all roads meet this description. There are no obvious road signs in the photographs. There appear to be barriers preventing access to non-guests.

Therefore, in answering the question does the golf resort contain roads that it would be illegal to drink and drive upon here in the UK, we can give a confident answer of ‘no’. This is because, although much of it appears to be made of tarmac with clear edges there are no road signs and there is no route through the golf resort from one place to another. While we do not know who maintains the road system, I would suggest that in the UK the local authority would be unlikely to pay for the upkeep of a road network contained wholly within a private golf resort. The presence of barriers also suggest that the resorts roads are open only to a subset of the general public, i.e. people working at or staying at the resort, and not to the public at large.

For the same reason, we can conclude that the resort is not a public place because members of the public who are not resort guests or staff have no right to enter or be on the land. It is thus a private place not a public one.

We can therefore say that had Mr Mason driven his golf buggy after drinking so much alcohol that the proportion of it in his breath was above the drink driving limit here in the UK, he would not have been committing a criminal offence and would have been found not guilty by the court.

Saturday, 26 November 2016

Halfords boss imprisoned for drink driving in Norway: is it a crime in the UK?

Would Jonny Mason's actions count as drink driving in the UK?

I read recently that Halfords finance director, Jonny Mason, has been arrested, charged and convicted for drink driving in Norway where he was found to be driving at twice the Norwegian drink driving limit.

Because I am a criminal law solicitor who specialises in offences involving motor vehicles and alcohol, I take a particular interest when I see a story about drink driving and, while you may find it difficult to understand, for me his case is very interesting because it raises several questions about English law. So, in this and the next few posts I will be looking at those points and discussing the position in England compared to that abroad.

In this post, we’ll be asking “what counts as a motor vehicle so far as drink driving law is concerned?”

Mr Mason was found to have driven a golf buggy at no more than 6MPH when returning from a bar to his holiday apartment. When we think of drink driving most people think of cars, motorcycles, vans and so on, not golf buggies. So, is a golf buggy a motor vehicle?

Section 185 of the Road Traffic Act tells us that “motor vehicle” means “a mechanically propelled vehicle intended or adapted for use on roads”. Having conducted some internet research, it seems that golf buggies are not usually intended for use on roads, although some can be adapted for such use on a limited basis. This must be correct since golf buggies are not normally fitted with safety equipment, such as seat belts, headlights and so on that is required to drive a vehicle on the road.

Some people have suggested to me that if something needs road tax (or Vehicle Excise Duty) then it must be a motor vehicle; however, this is incorrect. VED is governed by the Vehicle Excise and Registration Act 1994, which defines vehicles having to pay road tax as “mechanically propelled vehicles” and there is no requirement for a vehicle to have been “intended or adapted for use on a road” for it to need road tax. Therefore, we can say that a vehicle may be subject to VED even though it is not a motor vehicle for the purposes of drink driving offences.

So, what we know is that to be guilty of drink driving you must be driving a motor vehicle. We also know that a motor vehicle is one that is intended to be used on the road, or one that has been adapted for such use. That must mean that a vehicle, at the time it is built or adapted, complies with the various rules on construction, design and safety for it to be on the road. A golf buggy will not normally meet these very strict rules and so cannot be said to be intended or adapted for use on the road. Therefore, it cannot be possible to commit an offence of drink driving while driving an unadapted golf buggy.

Thus, we can say that had Mr Mason been driving his golf buggy here in the UK he would not have been guilty of drink driving.

Because I know readers of this blog are all astute, intelligent and good looking individuals I know that you are all screaming, “what about the Licensing Act 1872, section 12?” And, you all have a very good point. Section 12 of the 1872 Act criminalises people who are drunk in charge of cattle, horses, steam trains and carriages. Clearly our golf buggy is not a cow, horse or a choo-choo, but is it a “carriage”? At first glance, the answer must be a resounding “no”. Carriages are great big things drawn by horses and used by the Queen and Lord Mayor of London to tootle around town, aren’t they? Well that was (more or less) the argument employed by Mr Taylor when he appealed his conviction under section 12 for being drunk in charge of his bicycle in 1879 in the case of Taylor v Goodwin. In that case, Mellow, J. gave judgment saying:

“I think the word ‘carriage’ is large enough to include a machine such as a bicycle which carries the person who gets upon it, and I think that such person may be said to ‘drive’ it. He guides as well as propels it, and may be said to drive it as an engine driver is said to drive an engine.”

To my mind that definition must encompass a golf buggy as well as a bicycle. So we now know that a bicycle, golf buggy and the Queen's carriage are all basically the same thing if you’re a judge.

Taylor was followed by the Divisional Court in the 1950 case of Corkery v Carpenter and again 2011 in Coates v Crown Prosecution Service when Mr Coates’ Segway was held to be a carriage after he was found driving it on the footpath, contrary to section 72 of the Highway Act 1835 (who said Victorians weren’t a forward-thinking bunch?).

So, we now know that had Mr Mason been charged in the UK, while he could not have been convicted of drink driving, he may have been liable for being drunk in charge of a carriage.

In the next part, we’ll look at private land versus a road or public place and see whether the prosecution could have won against Mr Mason had he been charged in the UK rather than Norway.

Tuesday, 22 November 2016

Passport checks before you get NHS treatment

Charlie Elphicke, the Tory MP for Dover, and officials in the Department for Health have been mooting the idea of nationwide identity checks for patients before they receive NHS treatment in the UK.

On the face of it, the reasoning behind this is the scourge of “health tourism” that plagues the pages of outraged tabloid newspapers and right wing broadsheets. In April 2016, the Telegraph reported in an article entitled, Health tourists cost UK taxpayers £6billion in eight years that “Britain has lost more than £6billion in the past eight years treating foreigners from the European Union in UK hospitals”.

But, what do we mean by health tourism? My definition is people who come to the UK specifically to receive medical treatment for free on the NHS. I, and I think most people, would not include a Frenchman who visits the UK and is hit by a car while here as a health tourist. If you accept that definition then the Telegraph’s claim is nonsense.

Full Fact tells us that people coming to the UK to take advantage of the NHS costs the UK taxpayer between £110M and £280M per year. So over an eight year period and using the higher figure for all 8 years, the most health tourism could have cost the UK is £2.24bn – a full £3.76bn less than the Telegraph claimed. Of that £110M to £280M figure, £60M - £80M is foreigners while the majority are British ex pats returning to the UK for free treatment to which they are no longer entitled – this figure is thought to be between £50M and £200M!

Just to put these figures in perspective, the UK Parliament is about to spend £7bn refurbishing their office building in Westminster and up to £41bn replacing the submarines that carry trident nuclear missiles (that figure doesn’t even include the missiles themselves by the way)! The current NHS budget is £101.3bn so health tourism each year accounts for between 0.1% and 0.2% of the annual budget. When you take out the British ex pats, health tourism accounts for between 0.05% and 0.07% of the budget.

The Telegraph article doesn’t tell us how they reached their £6bn figure and I cannot make the figures I’ve found add up to that number. But what they do tell us is that the UK paid £6.2bn to other EU states for treatment of UK citizens by their health services.

The Daily Mail tells us that the NHS received £1.5M from the Polish government to cover care for its citizens in the UK but paid out £4.3m to Poland for treatment of British nationals. This may be because the Brits in Poland are often young and drunk (been there, don’t that) while the Poles here are generally living here rather than on a holiday to party. But, more likely it is because the NHS simply doesn’t take effective steps to collect the money that it is owed. From what I am told by NHS employees this is the case even where it is known that somebody is from another member state and is because the staff have no real training on what to do and there is little structure in place to refer overseas nationals either for private billing or for treatment costs to be recovered.

According to Full Fact, the NHS spends about £1.8bn each year treating overseas nationals who end up being treated here because something unexpected happens, e.g. because they are run over, as opposed to people who visit the UK deliberately to access free health care. Of this £1.8bn just £100M is recovered.

So, we must ask ourselves what impact would nationwide ID checking have on the NHS and its budget? The answer is: practically none. Stopping the people who come here deliberately to access expensive medical treatment for free would save the NHS about half of one percent of its annual budget. To put that in perspective, the Office for National Statistics tells me that as of 22nd November 2016 the average weekly wage is £505 so is the NHS were a person earning the average wage then that 0.05% represents £2.52, or less than the cost of a pint of beer (in London anyway)!

How would ID checks work? Anybody can obtain a driving licence so they are no good to prove you are entitled to NHS care. Passports have been mooted but not everybody has them and, as we’ve seen, the majority of health tourism likely comes from British passport holders who are not entitled to NHS care! So that doesn’t work either. People have suggested to me that your NHS card would suffice but again, this won’t help with ex pats who presumably have an NHS number and card (for the record, despite being born in the UK and living here my entire life I’ve never seen my NHS card and would have no idea what I’d do with it anyway). So that leaves us with two options, either an entitlement checking service that would involve a large number of dedicated staff checking a computer system to see whether each patient is entitled or a specific ID card that could be issued (and presumably renewed every couple of years) to prove entitlement. At this point, we should remember that the cost of government IT systems is always astronomical and that the last time the government considered ID cards the cost was put at £5.4bn or about 20 times the maximum saving of ID checks!

You also have the problem that ID checks won’t prevent all health tourism. St Georges Hospital in London has said it has a problem with Nigerian women going there to give birth. They can clearly be turned away in the early stages of pregnancy but if a woman presents herself to the hospital in labour she is, quite rightly, not going to be turned away!

Is there a better way for the NHS to cut the amount spent on overseas patients? Yes there is a much simpler method.

First, the NHS is useless at claiming back the cost of treatment from other member states. Put in place a structure and train staff on how to refer to the payment collection teams could bring in up to £500M a year, dwarfing the figure spent on actual health tourists! Secondly, not all overseas patients are from the EU but many of them will have health insurance… so claim from their insurance providers. The NHS isn’t going to recover all of the £18bn spent each year but it could do a lot better than it does. Government has estimated that if it actually billed people, about 40% would pay up. This is terribly pessimistic. If you ran a business on the basis that only 40% would pay you’d go bankrupt. Businesses manage to recover far more of their fees than 40% and I can see no obvious reason why the NHS couldn’t do much better.

Slightly off-topic but one of my local NHS hospitals treats health tourists. They are very good for the NHS. They are usually very wealthy foreigners who will pay a lot of money to be treated in the UK’s world class hospitals and rehabilitation facilities. They improve things for NHS patients too because their fees enable the hospital to put on more NHS staff and open more beds – that is a model that the NHS should consider adopting. People want to come here for treatment… let them!

Calls for ID checks annoy me. Not because it affects me, I’m British and entitled to treatment so aside from being a little inconvenient it makes no difference to me. I’m annoyed because ID checks are ineffective and risk breaking down the relationship between medical staff and patients. Worse, I don’t believe anybody in their right mind can seriously think that ID checks will make any serious difference to the NHS nationally – in specific local areas maybe – they are proposed because politicians know that in the current climate a lot of right wing newspapers hate foreigners and a lot of people distrust foreigners. Proposals like this that can make no serious difference are designed to pander to people’s basest emotions, garner headlines for the politicians and do absolutely nothing to help people in their everyday lives.

Monday, 21 November 2016

Did Liz Truss break the law?

Lord Chancellor Elizabeth Truss MP

A couple of days ago the Times reported that former Lord Chief Justice, Lord Judge, said that our current Lord Chancellor, Liz Truss, may have broken the law by failing to defend judges following personal criticism of them by national newspapers, one of which described them as “Enemies of the People”. Obviously, I usually defer to his Lordship’s better knowledge in all matters legal but in this instance, I am not convinced he is correct.

What is the law? The Constitutional Reform Act 2005 sets out who can be Lord Chancellor and the functions they must perform in the role. We’ll skim over the debatable question of whether Liz Truss, a junior politician with no experience of the justice system beyond a 17 month stint on the Justice Committee and no legal training, is actually qualified to hold the post and move swiftly on to the role of the Lord Chancellor.

Section 3 of the CRA 2005 is concerned with guaranteeing the independence of the judiciary. The section tells us that:

(1) The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

(4) The following particular duties are imposed for the purpose of upholding that independence.

(5) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

(6) The Lord Chancellor must have regard to—

(a) the need to defend that independence;

(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;

(c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.

We can see from the Act that it is not only the Lord Chancellor but also other Ministers who have a duty to uphold the independence of the judiciary – I have yet to see any criticism of anyone else, such as Sir Oliver Heald QC MP (an actual barrister, called in 1977 and an MP since 1992) who is Minister of State for Courts and Justice. The Lord Chancellor herself must take account of the three points mentioned in subsection 6, in this case you might agree with me that the first two are relevant to a situation where the press have misrepresented the impact, meaning and scope of a judicial decision, branded the judges “enemies of the people” and personally attacked the judges who made the decision – in one case the attack was because he is homosexual.

It is important to note that the Act does not require the Lord Chancellor to protect the judges themselves, merely the independence of the judiciary – that is an entirely different thing.

There is no provision in the Act creating a penalty for breach of section 3.

In addition to the 2005 Act, the Lord Chancellor should consider the Promissory Oaths Act 1868, which contains the oath to be taken by the Lord Chancellor as soon as may be after acceptance of the office. Section 6A(2) sets out the oath:

“I, [Liz Truss], do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”

The 1868 Act contains no provision or penalty for breach of an oath, aside from if the Lord Chancellor refuses to take the oath, which is not the case here. It has been suggested to me that breach of the oath is perjury; however, the Perjury Act 1911 defines perjury and does not include any reference to breaching an oath under the 1863 Act. While it’s a little elderly now, I note that in his 1838 Commentaries on the Laws of England in Four Books, Sir William Blackstone says,

“And even where an oath is required by an act of parliament in an extrajudicial proceeding the breach of that obligation does not seem to amount to perjury unless the statute contain an express provision to that effect”

Liz Truss's letter to the Times
So, it would appear that while the Lord Chancellor is required to have regard to various factors and swears an oath to uphold the independence of the judiciary there is no actual penalty, aside from judicial review proceedings, should she fail to live up to her obligations.

I am not going to go through the motion of analysing in depth whether the attacks on the judges were an attack on their independence because, it strikes me as unarguable that they are. Branding three of the most senior judges in the country “enemies of the people” and engaging in false reporting about the decision can only be intended to stir up disquiet among the population and the upshot of that is that pressure will be put upon judges and magistrates who hear cases to decide them according to how the Daily Mail and Sun think best to avoid similar treatment but also on the Supreme Court justices who will hear the appeal.

What did Liz Truss say in response to the newspaper attacks? The answer is “not very much”. She released her official statement:

"The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.

"In relation to the case heard in the High Court, the government has made it clear it will appeal to the Supreme Court. Legal process must be followed."

She subsequently wrote to the Times, repeating the importance of an independent judiciary, although most of the letter is concerned with the defence of Liz Truss.

The questions we must ask ourselves are:

1.       Does this defend the independence of the judiciary?

2.       Has the Lord Chancellor discharged her duty to defend the independence of the judiciary in accordance with her oath?

I think that the answer to question 1 must be “yes”. Whether you like it or not a Government minister stating clearly that “the independence of the judiciary is the foundation upon which our rule of law is built… legal process must be followed” is clearly defending their independence, which is precisely what section 3(1) of the 2005 Act requires.

The oath requires the Lord Chancellor to “respect the rule of law”, which she hints at in her statement and sets out clearly in her letter to the Times. It also requires her to “defend the independence of the judiciary”, which she has done. Interestingly, the oath does not explicitly require her to defend the rule of law, merely respect it.
State of our courts

There is nothing in either the 1868 nor 2005 Acts that requires a defence to be strongly mounted, ingenious, convincing or accomplished. The only requirement is that judicial independence is defended. To that extent she has done her job, although not quite as well as she could have.

If we are going to criticise the Lord Chancellor for breaking her oath then we should consider the final portion of the oath where she promised to, “discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”. The courts are today in a terrible state and getting worse because they, like the rest of the justice system, are seriously under resourced. That is a part of the oath that Liz Truss is currently breaching and so did Michael Gove and Chris Grayling before her. She has time to do something about it, the question is: will she?

Do facts matter any more?

Beyond posting pictures of my kids for my family to see, I don’t spend much time on Facebook, but today I made an exception when I saw somebody claiming that the Queen is “worth £57bn” and criticising her for taking £360M of tax payers money to fix up Buckingham Palace. I couldn’t resist pointing out that she doesn’t own Buck House so she wouldn’t be paying for the repairs and, more importantly, she isn’t worth anything close to £57bn. According to the Sunday Times Rich List her wealth is around £360M.

This led to a discussion on various aspects of law between me (Post Graduate Diploma in Law, Called to the Bar and admitted to the Roll of Solicitors) and a man who claims a MSc(Hons) in General Knowledge – I don’t know if that’s a real qualification or not but it sounds made up. The discussion moved across property law and the law of trusts. It ended when I made the comment that my interlocutor clearly lacks basic knowledge of the law of trusts and equitable obligations. He promptly blocked me. I am told that he made a further comment complaining that I had insulted him and that I should respect his genuinely held belief about the wealth of the Queen and how trusts work, despite the evidence not supporting the former and him being wrong on the latter.

This got me thinking about the modern phenomena of people who seriously believe that their opinion should be listened to whether or not it is supported by facts. If you spend much time on Twitter or Facebook you’ll see this attitude but it isn’t confined to the internet. A while ago a friend told me he wanted the UK to leave the EU because he was fed up of people coming from places like India to take British jobs. I asked him how the EU affected immigration from India, he didn’t know. I asked what aspects of Tier 1 entry he was unhappy with, he didn’t know what it was. The story was the same for the other immigration routes. He was outraged that I dared question him on the facts behind his opinion and told me that they didn’t matter because, “this is what I believe”.

It’s not just lawyers who put up with this nonsense. Despite there being clear and compelling evidence for climate change, a round Earth, evolution and the Moon landings there are still strong movements across the world who deny all of these things – yes flat Earthers are very much real and with us in the 21st century! The one thing they all have in common is that they demand others respect their beliefs.

It’s been said that we have moved into a post-factual world and that seems true. We certainly seem to be in a world where people think their views are important, valid and worthy of consideration even where they are based on fallacy, mis-information and myth.

Is it insulting to say somebody doesn’t understand a topic? No. Not if it’s true. Had my Facebook friend been an expert tax lawyer or my real life friend an immigration expert then it would be very insulting but that’s not the case. People often seem to think there’s something wrong in admitting to not knowing something and they become upset if somebody who does know more tells them they are wrong.

Does everyone have the right to have their opinion respected and listened to? No. If I rock up to an operating theatre and tell the surgeon that in my opinion he should be doing open heart surgery under local anaesthetic to aid post-surgery recovery the surgeon would quite rightly kick me out because my opinion is worthless and backed up by no facts or evidence. Yet when it comes to immigration, law, fiscal policy, etc people expect to be taken seriously despite having no more knowledge about their topic than I have on open heart surgery.

TV is guilty of promoting this with their constant search for balance on topics where balance means well qualified and knowledgeable people put up to argue against the untrained and ignorant. How else can we describe the debate on climate change broadcast by the BBC between Nigel Lawson (former Chancellor of the Exchequer) and Professor Sir Brian Hoskins, world respected dynamical meteorologist and climatologist at Imperial College London?

We all get a little carried away sometimes, especially when a strongly held belief is challenged. But, if people took a moment to reflect that often our opinions are based on a gut feeling, a sense of injustice or moral righteousness and not on any actual facts then the world (especially the online world) might get a little more pleasant. Unless you’re a Brexiteer in which case YOU ARE WRONG WRONG WRO… oh, sorry I got carried away there, I’ll try not to let it happen again. Even our strongest beliefs might not be correct and there’s nothing wrong with being wrong provided we are willing to adapt our thinking to match new facts.

Will that happen? Probably not.

Tuesday, 8 November 2016

Judicial selection: does electing judges work?

Does electing judges work in the USA?

Last week the Divisional Court gave judgment in the case of R (Miller) -V- Secretary of State for Exiting the European Union, otherwise known as the Brexit Case. The decision of the court was that the law requires Parliament to trigger the notification of the UK’s intention to leave the EU using Article 50.

Obviously, those who campaigned on the basis that we should leave the EU to hand sovereignty back to the UK Parliament are most upset about the decision of the court that it is for the UK Parliament to make important decisions like this one. Many of the same people who are super keen on Brexit and who either don’t understand or choose to ignore what the case was about and what the court said have been up in arms about it calling for changes to how judges are appointed. In particular Daniel Hannan, Conservative MEP, who confusingly seemed to call for elected judges but then told me on Twitter he was in favour of “open confirmation hearings”, which I presume is something similar to the US Senates role in approving a Presidential appointment to the US Supreme Court.

So, does the system of electing judges work “pretty well in the United States” as Mr Hannan claims?

So far as I can tell, only the USA elects judges directly by popular vote. In Japan, supreme court judges are subject to a referendum to remove them from office at the first general election following their appointment and then every 10 years. In Switzerland, Federal Judges and their deputies are elected by the Federal Assembly rather than by direct popular vote of the electorate. Interestingly, anybody who is eligible to vote in a general election is eligible to be voted in as a judge but in practice the body responsible for nominating candidates chooses not to nominate those with no legal qualifications, which I’m sure is a relief for the Swiss people.
In the UK, we have the Judicial Appointments Committee which considers applicants and appoints judges, or at least makes recommendations to the Prime Minister. People wishing to become judges can apply to the JAC, as they would for any other job, and candidates are then subject to interviews and testing prior to selections being made. Vacancies for judicial posts are known as “competitions” and are extremely competitive with candidates often spending huge amounts of money to attend training course in preparation for their application. The system is a little different in the Supreme Court where a special panel exists to decide on the new justice. The panel is made up of a member of the Supreme Court, a non-lawyer and a member of the JAC as well as others. The Lord Chancellor may give advice on the appointment and there is a requirement that the new judge should have held high judicial office before (although, as with Lord Sumption that rule can be waived where a candidate shows exceptional ability at the Bar). The process of appointing a judge is open to scrutiny in that the public can see who is making the decision and the criteria for choosing the successful candidate but they are not privy to the reasoning. In that way, it’s no different to the appointment of anybody else who applies for a job.

To my mind, electing judges is a terrible idea from which no good can ever come. If, for example, a judge is coming up for re-election and has a difficult case before him. Is he going to decide it taking into account what he thinks voters want or what is correct in law? Sandra Day O’Connor, a former US Supreme Court Justice, noted that “no other nation in the world [elects their judges] because they realise you’re not going to get fair and impartial judges that way.” Worth saying, that in the USA, the Supreme Court Justices are not elected.

In June 2013, the American Constitution Society for Law and Policy (ACS) published it’s study, “Justice At Risk”, which looked at 2,345 business cases that come before state supreme courts in the USA across all 50 states between 2010 and 2012. They also looked at campaign contributions donated to elected judges and found that,

“The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.”

It’s clear in my mind that if judges are influenced by their financial backers then that is not a recipe for justice being done. But, financial backing isn’t the only way judges can be influenced. In 2010, Iowa’s supreme court struck down a ban on gay marriage, leading to three members of the court being targeted at the next election by those opposed to gay marriage with half a million dollars spent to oust them from the court… and it worked with all three judges losing their seats.

Then there was the case of Judge Steven Kirkland who found that attorney George Fleming had overcharged clients by $13M and ordered him to pay the money back! Unsurprisingly, Mr Fleming appealed but he also recruited challengers to run against Judge Kirkland and funnelled tens of thousands of dollars into their campaign funds. Judge Kirkland lost the election. He then decided to contest another election to become a judge again. This time, Mr Fleming lavished $90,000 on Kirkland’s opponent.

If you were a judge faced with a difficult case and you know that if you go one way you might be attacked in such a way that you lose your job, I don’t believe you can honestly say that wouldn’t play on your mind as you reached your decision.

There’s another side to this as well. The use of mudslinging tactics is becoming more prevalent in US judicial elections and no doubt would do here as well. Judge Kirkland was criticised because he had previous convictions for drink driving at a time when he was an alcoholic. Relevant? Maybe, but the convictions and drink problems were both over thirty years old and I’ve seen no suggestion they had any impact on his ability to carry out his job as a judge. Other attacks on judges have included:

1.       Justice Robin Hudson faced a campaign claiming she “side with child predators”;

2.       Bridget McCormack was accused of helping to free a terrorist;

3.       David Prosser was accused of protecting sex offenders not children;

4.       Judge Prosser was also accused of calling another judge a “total bitch”;

5.       Justice Janet Stumbo was on the receiving end of a campaign video that used mug shots of two black criminals set against pictures of (seemingly irrelevant to the ad) pregnant white women to suggest that Stumbo sides with criminals – or possibly that she sides with black criminal against white victims, you decide that one;

Ignore for a moment whether the claims made in these attacks are true or false and think instead of the impression they give people in the street of the judiciary. When judges are throwing insults at each other and undermining other’s court decisions the only possible outcome is that the average person on the street will see judges as just another type of politician and their respect for judicial office holders will decline and with it will go confidence in the justice system.

Once judges are seen as just another breed of politician who are influenced by their financial backers and cowed by fear of their opponents then people who need the law are less likely to go to law because they see that judges are not there to help them. This is bad for justice and bad for the rights of individuals.

If judges are not only perceived as being unduly influenced by money and re-election, but actually are influenced by those things then it is inevitable that they will start making decisions to appease their backers and campaign groups who might fight against their re-election. In a fight between a wealthy employer known to be politically active and a wronged employee, who might the judge be inclined to side with I wonder?

Contrary to the claim of Mr Hannan, I think there is ample evidence that not only do elected judges not work well in the USA but that they can be detrimental to justice. Before I move on, I leave the last word on the topic of elected judges to Justice Don Willet, an elected judge of the Texas supreme court:

“I understand 100% the suspicion that donations drive decisions. That skepticism siphons public confidence, and that's toxic to the idea of an impartial, independent judiciary… I'd be shocked if people didn't look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system.”

One final note on reform, because I am not opposed to reform of the judiciary. In fact, I have long thought that our system of choosing judges from barristers (and while solicitors can apply to be a judge, most judges are appointed from the ranks of the Bar). The skills needed to argue a case and be a good judge are not one and the same thing. Of course, there are overlaps, but being a great advocate does not mean you will be a fantastic judge. If our system were to be reformed, I would support a move to the French system of professional judges who actually go into their careers wanting to be judges and are trained to judge rather than being trained to talk.

Friday, 4 November 2016

Dangerous driving: when is it okay to deliberately knock down a motorcyclist?

Although most my work is in drink driving offences, I do also handle a lot of dangerous and careless driving offences too – although I don’t advertise this service, dangerous driving and drink driving can often go hand in hand. With that in mind, I’ve been fascinated by the case of James Ellerton, the Liverpool police officer who deliberately crashed a police van into a motorcyclist.

PC Ellerton was investigated by the Independent Police Complaints Commission who referred the case to the Crown Prosecution Service for a decision on whether to charge PC Ellerton with dangerous driving. He was charged and subsequently tried at Liverpool Crown Court where a jury acquitted him despite the Crown alleging that his actions were excessive and in breach of police policy.

I should admit that my first reaction was that his actions must be sufficient for a conviction of dangerous driving but clearly the jury disagreed and having considered the press reports I have changed my opinion, but only just.

So, when is it okay to deliberately knock down a motorcyclist?

The brief facts of the case are that PC Ellerton, a PC with ten years’ experience and a qualified firearms officer, was driving an unmarked police van when he spotted Devere Ogungboro riding a scrambler motorcycle through Liverpool city centre. Mr Ogungboro was said to be swerving in and out of traffic, performing wheelies and driving on the wrong side of the road with his lights switched off (the incident happened in the dark) and no number plate on the bike – I do not know the truth of these allegations and I note Mr Ogungboro is due to stand trial in respect of them in February 2017.

PC Ellerton followed Mr Ogungboro, who was serving a suspended prison sentence at the time, and witnessed what PC Ellerton thought to be very dangerous riding. At the end of the incident, Mr Ogungboro turned his bike around and headed back towards PC Ellerton. The officer put his van on the wrong side of the road to block Mr Ogungboro from passing. Nonetheless, Mr Ogungboro attempted to ride around the van. At this point, PC Ellerton moved forward and deliberately drove his police van into the motorcyclist, knocking him off the bike.

It is unclear from the reports I have read whether PC Ellerton knew that Mr Ogungboro was the rider and that he was serving a suspended prison sentence.  It is also unclear whether Mr Ogungboro was wearing a helmet.

What is the law? Dangerous driving is driving so poor that it falls far below the standard expected of a competent and careful driver. To secure a conviction the prosecution must also prove that it would be obvious to a competent and careful driver that driving in that way would be dangerous.

There can be no argument that deliberately driving a van into a vulnerable road user, such as a motorcyclist, is dangerous such that a competent and careful driver would recognise it as obvious. In the normal course of events I do not think it could be argued that deliberately crashing a van into another road user does not falls far below what would be expected of a careful and competent driver. This is uncontroversial and PC Ellerton did not try to argue that his driving was anything other than dangerous when he went to trial.

How then did he secure an acquittal? PC Ellerton’s defence was not that his driving was safe but that he had a lawful excuse for driving dangerously. He relied on something called private defence, which includes self-defence, and allows you to use physical force up to an including causing the death of another person to protect yourself or others. The caveat is that the force you use must not be excessive to the situation you are facing.

PC Ellerton argued that Mr Ogungboro was riding so dangerously that he posed a serious risk to other road users that might result in the death or serious injury of a member of the public. He therefore acted in defence of Mr Ogungboro’s potential victims and put a stop to the danger as soon as he had a chance. PC Ellerton gave evidence that he was travelling very slowly when he hit the motorcycle. Certainly, Mr Ogungboro does not appear to have suffered any injuries given he was arrested two weeks later, again for an allegation of dangerous driving in which he was said to have been driving a van, which he crashed into a car while trying to escape from police officers.

The Crown argued that PC Ellerton’s actions were excessive, presumably because there was no immediate threat only a potential threat at some point soon and because driving a van into a motorcyclist was excessive to the threat posed by Mr Ogungboro’s driving.

The jury heard all the evidence, including an account from Mr Ogungboro who said he did not know that the van was being driven by police and would have stopped had he known – a claim that I imagine was undermined before the jury given just a couple of weeks later he was again being chased by police and again failed to stop when required to do so.

We do not know how the jury reached their decision but we can assume that they concluded Mr Ogungboro did pose a real threat to the life of others and that PC Ellerton’s actions were a reasonable response to that threat.

So, that’s the answer to how you can deliberately knock a motorcyclist off his bike and not be guilty of dangerous driving.

I know a lot of police officers have expressed concern, derision and outrage that the IPCC and CPS decided to prosecute PC Ellerton. For my part, I think the decision to prosecute was justified. He clearly drove dangerously, there can be no argument on that point since he accepted that fact at his trial. There was a legitimate argument that using a van as a weapon against a vulnerable road user, albeit one putting himself and others in danger, was excessive. With respect to police officers who feel aggrieved by this prosecution, this was always a decision for a jury to make rather than a faceless lawyer working behind the scenes.

Far from being a case of a needless prosecution it is in fact a shining example of the system working correctly (for once), bringing the evidence before a jury of PC Ellerton’s peers and allowing them to make the final decision; this is precisely why we have juries.

In a way, I think PC Ellerton was lucky that no injury was caused to Mr Ogungboro. Had he fallen, hit his head and died or suffered serious injury (something surprisingly easy to do as evidenced by the “one punch killers” we read about in the press from time to time) then I think he would have had a tougher time escaping conviction – as I said in my previous post on dangerous driving, these offences are more and more about the outcome rather than the intention of the driver.

Finally, I note that guidance on the use of stingers – devices that puncture a vehicles tyres – do allow them to be used against a motorcycle as a last resort even though deflating the front tyre of a motorcycle will lead to an immediate loss of control and a crash. I suspect PC Ellerton’s action was a lot gentler than a stinger would have been against Mr Ogungboro’s motorbike.

Wednesday, 2 November 2016

Causing death by dangerous driving

Tomasz Kroker using his mobile phone at the wheel
This week saw Tomasz Kroker sentenced to ten years’ imprisonment for causing death by dangerous driving along with the calls for tougher sentences that usually accompany such distressing cases.

Kroker had been driving his HGV along the A34 in Oxfordshire when it collided with a row of stationary vehicles that had stopped due to traffic ahead of them. Initially Kroker told him employer he had not been distracted by the radio or his telephone. In police interview, he answered no comment to all questions put to him at first. At some point, he told police that his brakes had failed suddenly. When the police showed him the dashcam footage from his lorry that showed him using his phone up until the very last second before impact Kroker admitted being distracted.

Last week he entered a guilty plea to four counts of causing death by dangerous driving and one count of causing serious injury by dangerous driving. This week judge Maura McGowan sentenced him to ten years’ imprisonment.

The relatives of those killed as well as campaign groups called for tougher sentences for people who kill others in these circumstances. There have also been calls for people to be prosecuted for manslaughter and receive tougher sentences.

The offence of causing death by dangerous driving was created specifically because people used to be tried for manslaughter and juries were very reluctant to convict. They were so reluctant to convict that the government of the day created the offence causing death by dangerous driving.

Historically, sentences for this type of offence were relatively light because sentencing has always looked toward culpability and intention to frame the sentence and only then toward the result. The prevailing view was always that it was unfair to impose a very lengthy sentence on somebody who only did a very small thing wrong, even if that very small thing had very big consequences.

Some would argue that taking your eyes of the road for a few seconds is a minor thing to do in the grand scheme of things and that an offender is less culpable for the deaths caused than somebody who sets out to kill. That was always the argument for relatively short sentences in driving cases.

The pendulum has clearly swung in the past decade or so and, in my opinion, is still swinging towards a situation where sentences are based not on the outcome a defendant intended but on the outcome of the defendant’s actions. This can be seen in the creating of offences such as causing death by careless driving and causing serious injury through dangerous driving, which allow courts to impose harsher sentences than standard dangerous/careless driving even when aggravated by death or serious injury.

As a law student, I always took the view that sentence should be based on the actual actions taken and the intention of the accused in taking those actions not on the outcome. As I grow older, I recognise that the potential outcome is often actually blindingly obvious and so very difficult for a sentence to ignore. Whereas as a 17 year old I would have thought that there’s no harm in speeding around a quiet country road, as an adult I recognise that I have no idea what’s around that corner and though I might get away with speeding round a bend a thousand times, I only need to find somebody around that bend once to end up killing somebody.

How does a court begin sentencing somebody whose momentary inattention has led to the deaths of four people?

First, the court must decide whether the offence is a dangerous offender. This means somebody who has committed one of a long list of specified offences and whom the court thinks pose a significant risk of serious harm to members of the public from further specified offences. In this case, I would have been surprised had the court said Kroker did pose such a risk, especially given the remorse he showed at the scene and later on. If he had been found to be a dangerous offender, the court would have had the power to impose a life or extended sentence rather than a maximum of 14 years.

Next the court must determine the level of seriousness of the offence. There are three levels distinguished by factors related mainly to the standard of driving:

·       Level 1 includes the most serious offences involving a deliberate decision to ignore the rules of the road, or a flagrant disregard for the rules of the road. This deliberate decision or disregard should be accompanied by a disregard for the great danger being caused to others. These offences are characterised by:

o   Prolonged, persistent and deliberate course of very bad driving and/or

o   Consumption of substantial amounts of alcohol or drugs leading to gross impairment and/or

o   A group of factors, which taken individually would place this offence in level 2 but taken together indicate a greater degree of seriousness.

·       Level 2 is for driving that created a substantial risk of danger and is characterised by:

o   Greatly excessive speed, racing or competitive driving or

o   Gross avoidable distraction such as reading or writing text messages over a period of time or

o   Driving while the defendant’s ability to drive is impaired through the consumption of alcohol or drugs or because the defendant failed to take prescription drugs or because of a known medical condition or

o   A group of factors, which taken individually would place this offence in level 3 but taken together indicate a greater degree of seriousness.

·       Level 3 encompasses driving that created a significant risk of danger and is characterised by:

o   Driving above the speed limit or at a speed that is inappropriate for the conditions (this could be a speed below the speed limit) or

o   Driving while tired or in the knowledge that the vehicle has a serious defect, including being poorly maintained or loaded dangerously or

o   A brief but obvious danger that arose from a seriously dangerous manoeuvre or

o   Driving while avoidably distracted or

o   Failing to have proper regard for vulnerable road users.

According to the press reports, Kroker was distracted for a period of 45 seconds during which period he did look at the road but only very briefly; he was changing the music on his mobile telephone. When passing sentence, the judge said that he was so distracted he might as well have been “driving with his eyes closed”.

While 45 seconds may not sound a very long time, it was long enough for his lorry to travel almost a kilometre with the driver paying virtually no attention to the road ahead of him. That is arguably sufficient to count as a “prolonged period” and it is difficult to avoid the conclusion that not looking at the road for almost a kilometre is very bad driving and obviously dangerous. The distraction was easily avoidable, indeed it should never have arisen.

Deciding on the level is not a matter of counting all the factors and the one with the most wins. Sentencing is an art that requires the sentencing judge must take account of all the factors in the case and decide what level it falls into. In this case, the judge seems to have decided it was a level 1 offence. Do you agree?

The starting point and ranges for each level are as follows:

1.       Starting point is 8 years imprisonment with a range of 7 to 14 years

2.       Starting point is 5 years imprisonment with a range of 4 to 7 years

3.       Starting point is 3 years imprisonment with a range of 2 to 5 years

So, in Kroker’s case the judge would have taken a starting point of 8 years. You’ll note that so far, we have decided on levels based entirely on the defendant’s actions, we haven’t considered the result of his actions beyond this being a case involving death. But, we are about to because after determining the starting point the judge must take account of any aggravating or mitigating factors that exist.

In Kroker’s case there are three, possibly five aggravating factors that apply and will have been considered by the judge:

1.       Multiple deaths;

2.       Serious injury caused in addition to the death (although he received a four year prison sentence for that as a separate offence);

3.       Disregard of warning – just an hour before the crash Kroker had signed a statement for his employer promising not to use his phone while driving;

4.       Other offence committed, using a mobile telephone. Although using a phone is not mentioned in the sentencing guidelines it is arguable that it applies in this case.

5.       Although not listed as an aggravating factor by the guidelines, the court may also have been unimpressed by his initial attempt to avoid responsibility by denying the use of the phone until confronted with the CCTV evidence and a claim that his brakes failed suddenly.

The sentencing guidelines list a number of mitigating factors, none of which apply in this case. However, Kroker displayed genuine remorse for the deaths he caused immediately at the scene and throughout the court case. That may well have saved him from an even longer sentence.

So, having considered the aggravating factors the judge moved from the starting point of 8 years to impose a sentence of 10 years imprisonment. It’s not clear from any of the press reports but I assume that this was 10 years per offence all to run concurrently. She also imposed four years for causing serious injury. A seven year driving ban was also imposed and Kroker will have to take an extended driving test before he is allowed on the road again.

Was the sentence long enough? In my opinion it is because, although he was irresponsible and caused a huge amount of harm, he did not set out to do any of those things. You don’t have to agree with my opinion and I know many don’t. As I said earlier, the reason the offence of causing death by dangerous driving was created was because juries were frequently unwilling to convict people of manslaughter and open up the lengthy sentences that would follow. If sentences are made significantly longer I have to question whether juries would become reluctant to convict once again – maybe times have changed and people no longer think like that.