Monday, 24 April 2017

UKIP’s integration agenda

The UKIP agenda - pic mercilessly stolen from someone on Twitter

I don’t normally spend my time blogging about political party manifestoes mainly because a. we don’t have elections that often; and b. because they are usually pretty vague and unexciting.
But UKIP have today published their integration agenda as part of their 2017 General Election manifesto. To say it is extreme and ill-thought out is understatement even for a party whose policies usually lack both subtlety and common sense. In fact, it’s so extreme that I didn’t believe it was real until I saw it being reported by several reliable news organisations with quotes from party leaders.
First, they plan to ban “face coverings in public places”. An interesting idea and one I’ve never understood because it will require exemptions for bee-keepers, police on riot/terrorist duties, people who live in really cold places like the north, motorcyclists, the list goes on and on. It’s also really difficult to ban “face coverings” – what does it mean? If it rains and I put my hood up it dips over my face so you can’t see me. Keeps me dry but is that too covered? What if it’s really cold and I want a balaclava to keep warm? Am I to be banned from wearing a full-face crash helmet on my motorbike?
Let’s be honest, this is really a ban on Muslim veils isn’t it. UKIP say that they constitute a “security risk” – that’s potentially true in the same way that balaclavas or those ridiculous hoodies that kids wear do. But, back in the real world let’s have a think for a moment about how many actual terrorists have committed an atrocity wearing a Muslim veil in the UK. I haven’t checked but I’ve also not heard of any so I’m going to suggest the answer is none. How many banks and jewellers have been blagged by men wearing balaclavas or motorcycle helmets –  loads and where’s the call to ban those? I’m not suggesting that UKIP are a bunch of old men who like picking on brown women but I’m not not suggesting it either.
The integration agenda goes on to talk about banning sharia courts “which is intended as a rival legal system”. Like so much of what UKIP says this is simply a lie. Sharia courts do not exist in the UK in the sense of an entity capable of making binding judgments. There are Sharia councils and tribunals that have the power to act by agreement of both parties. But, the law already explicitly bans them from coming to decisions that are contrary to British law. It’s also worth saying that while a marriage or divorce from the civil authorities may count for law it might not count for the rules of a person’s religion in which case the marriage or divorce needs to be recognised by the religion. This is not a specifically Islamic thing, the Catholic Church does not recognise civil weddings and for a divorced Catholic to remarry he or she must receive a Degree of Nullity, which is a “judicial decree from the Church”. You will also remember that a beth din is a Jewish rabbinical “court” that exists in the UK to settle disputes between Jewish people according to the rules of the Jewish faith.
Is UKIP seeking to ban Jewish or Catholic courts? Of course, not – it’s not the Jews turn this time around… at least not yet.
While we’re on the subject of Sharia and Jewish courts it’s worth noting that you can only use these if both parties agree. Then they usually act as a mediator between the parties but can also be an arbitrator for which they must be properly registered and may only make decisions that comply with British law. If you have a situation where women are being forced to use these courts – that seems to be a particular “concern” of UKIPs – then, with respect, they are likely to be in a controlling relationship where their ability to seek help is compromised anyway. You need to deal with the root of that problem not fiddle about with which arbitration service couples use.
We come now to the maddest of UKIPs plans on the integration agenda – “implement school-based medical checks on girls from groups at high risk of suffering FGM [female genital mutilation]. They should take place annually and whenever they return from trips overseas.” Just think about this for a moment. The Kippers are suggesting that young girls are subjected to intimate forced examined without the consent of them or their parents. We know that the examinations must be forced otherwise any parent who has subjected their daughter to FGM will simple refuse to allow the examination. You might also think that most girls who have been subjected to it might refuse to undergo the examination themselves. So, either UKIP are deliberately proposing a policy that can never work or they are proposing making a law to legalise what would in any other situation be a sexual assault of schoolgirls. I don’t really see how you can look at that suggestion and think that this is a proposal from a party of good sense and sound judgement that is truly concerned with women’s rights, as UKIP claims to be.
They go on to the seemingly sensible sounding, “make failure to report FGM by someone who has knowledge that it has taken place a criminal offence itself.” I can see situations in which this might be desirable; however, I would be very concerned that it would have the opposite effect in that it would make girls less likely to report it if they know that the teacher or doctor is obligated to rush to the nearest policeman.
Next, in their series of sudden concern for the state of little girl’s little bits, they move to creating a presumption that the CPS will prosecute any parent whose daughter has undergone FGM. This is yet another nonsense pledge. Yes, you can create that and yes it might sound like a good idea but it means nothing. The CPS follow the Full Code Test when deciding whether to prosecute. That essentially means deciding whether there is a. enough evidence to secure a conviction; and b. whether prosecution is in the interests of justice. An offence involving FGM is likely to be in the interests of justice more often than not; however, if there is insufficient evidence then you are not going to get a conviction and saying the CPS should presume that they will prosecution unless there is a reason not to do so makes no sense since that’s what they do in every single case!
You may not be reassured to hear that UKIP isn’t too bothered whether your white daughter is groomed and raped by a white man – or if it’s a black on black, Asian on Asian, etc crime. Apparently, it’s only when kids are abused by members of different races that UKIP gets really upset. Why do I say this? Because where grooming is conducted by a person of a different race to the victim, UKIP want this cited as an aggravating feature for the purposes of sentencing the offender. I wonder how little Susie will feel knowing that her rape was less serious than little Prisha’s because even though they went through the same experience at the hands of the same offenders Susie happened to be the same race as their attackers?
On that topic, I’m not sure whether UKIP are suggesting that groups of men should prey on little girls and boys in mixed-race groups – seems unlikely that’s what they mean but this agenda is so mad it’s hard to know.
UKIP continue their quest against all things Islamic by calling for the immediate closure of schools where there is evidence of Islamist ideology being taught or imposed on children. I confess I’m not sure exactly what this means. I went to a Catholic secondary (briefly) then to a secular secondary school. Both of them taught me a little about different religions, including Islam despite my preference being not to learn anything about any of them. Should my two secondary schools be closed? I suspect what they are really getting at is that they don’t want kids to learn about Islam at school. I agree with that – I don’t see why school children should have their time wasted learning about any of the variety of fairies supposed to live in the sky, though I don’t see why UKIP want to focus solely on Muslims although it could be because many Muslims are brown.
There are other points in there, including a ban on new Islamic faith schools, which I would agree with if it applied to all faith schools. UKIP are calling for the ban “until substantial progress has been demonstrated in integrating Muslims into mainstream British society”. That reads like it was written by a bumpkin whose only knowledge of Muslims comes from reading the Mail and moronic tweets of Texans who have never left Texas. There are about 2.8 million Muslims living in the UK of whom the majority seem pretty well integrated to me based on my experience of living and working in London.
Here’s an experiment for you to try. Do you find those head to toe coverings some Muslim ladies wear off putting? Why not try talking to one of those ladies? Integration goes both ways – if you won’t talk to them why should they talk to you? If you travel on the Tube, you must see thousands of people every day with no facial covering at all – how many of them did you strike up a random conversation with last time you travelled? I bet it’s none, isn’t it? How many of them came and spoke to you? Probably also none. So, what exactly would change if you could see the faces of these ladies? When you say that women wearing veils are failing to integrate you should consider that maybe you don’t like the veils because it makes you uncomfortable and maybe… just maybe, it’s your problem that you should deal with not theirs.
The Integration Agenda has nothing to do with UKIPs founding aim of gaining the UK independence from the EU. It is an all-out attack on Muslims the length and breadth of the country. It is a nasty spiteful little document aimed not at furthering UKIPs core aim of exiting the EU but of finding a place for the party to survive in a Britain free of EU membership. Sadly only British political party with UK in the name seems to now have ideals about as far removed from good British values as you could find.

Friday, 17 February 2017

No-win, no-fee and business rates

Very quick blog for the benefit of David Gauke, MP who happens to be chief secretary to the Treasury.

He is introducing business rate changes that will see rates rise for just over half a million businesses from April. He is facing a barrage of criticism from various directions. I instinctively feel that business is quite heavily taxed at the moment and increasing the tax burden on small businesses at such an uncertain time is a terrible idea. But, I also recognise that I don’t really know much beyond what happens in my own business so I won’t try to argue whether the rate changes are a good or bad thing
What I do want to discuss is his comments about steps being taken to clamp down on people bringing challenges to the rates they are asked to pay in the hope of reducing the cost to their business. 

Mr Gauke seems to place the blame for too many challenges at the door of the surveyors and lawyers (aren’t we always to blame… well until you need us) encouraging businesses to proceed on a no-win, no-fee basis. He said this: 

“Nobody is going to be stopped from appealing… We have to recognise what is currently happening in the system is that there are a huge number of very speculative appeals that are going in, first encouraged by agencies on a no-win no-fee basis, chancing their arm hoping that there will be a reduction in their business rates.

 “That is frankly clogging up the system and getting in the way of appeals for those who have a genuine problem, where maybe there has been a mistake or an error, and that process is much slower than it should be.”

Since Mr Gauke is being frank, I hope he won’t mind if I am too. For somebody whose job is so integral to business in the UK, it is a pity Mr Gauke has not taken a moment to think about how no-win, no-fee claims work. If he had I do not see how he could have made that statement with a straight face. To be even franker I don’t see how he could have looked at that statement and thought, “that makes sense” on the face of the words themselves. 

As the name implies, no-win, no-fee means that if you don’t win your case your lawyer or surveyor doesn’t get paid. In civil courts, solicitors are entitled to claim an enhanced fee when undertaking these cases. I don’t know whether that is the case in rate challenge cases, but after looking at a few firm’s websites I see most take a portion of the savings they bring in, which is effectively no-win, no-fee. 

Because the solicitor does not get paid if he loses the case there is no incentive for him to agree to a no-win, no-fee arrangement in “speculative appeals” since, if it is a case with no real merit then that is a recipe for losing. And, in case Mr Gauke isn’t keeping up, if the case is lost the lawyer has undertaken all the work involved without being paid. That’s fine if you expect to win more than you lose, but if you are deliberately proceeding on speculative cases that you know are likely to be lost then you will lose more than you win.

Losing more than you win, or to put it another way, working for free most of the time, is a terrible business model and one that is likely to lead very quickly to bankruptcy. While it has always been said that great lawyers make terrible business people, even the worst businessman should realise that spending the majority of your time working for free will not keep you in business long. 

I don’t deny that speculative cases are brought. But, I’d suggest there are reasons other than lawyers encouraging clients to proceed simply to line their own pockets. 

I also don’t deny that no-win, no-fee arrangements exist but, I do suggest that any sensible businessman would not repeatedly enter into them knowing they are going to lose over and over again. As I’ve said, most of the firms I’ve seen charge based on the savings they make for the business – no saving equals no income, which means unpaid bills every time they lose.

You might consider that people are engaging lawyers and surveyors or bringing “speculative appeals” themselves because the impact of taxation across their business is very high and they are very desperate to minimise it if at all possible. But, like I said, I’m no expert on taxation so I’ll let you make up your own mind.

Friday, 3 February 2017

Has Paul Nuttall of UKIP broken election law?

Nuttall criticised for his living arrangements but not for that awful outfit
Over the past few days, UKIP leader and Swindon by-election candidate, Paul Nuttall has faced criticism for giving his home address, on the Home Address form that is part of the nomination pack for prospective political candidate, as one where he does not live. Mr Nuttall answers these criticisms by saying that he gave the address because he has rented the house and intends to move into it for the duration of the election campaign.

Journalists, most notably Michael Crick, have been forthright in their claims that Mr Nuttall broke the law and could face prison for making a false declaration. So, what is the truth?

Michael Crick on Paul Nuttall
Prospective candidates must register their nomination with the returning officer by providing certain information. The required information is set out in paragraph 6 of schedule 1 to the Representation of the People Act 1983. All of the required information can be easily provided by downloading and completing a nomination pack from the Electoral Commission website. For our purposes, the relevant information is required by paragraph 6(4) of schedule 1 to the 1983 Act and is provided by way of form 1b – Home Address Form in the nomination pack. The form asks for “Home address (in full)” and in a separate box for “Postcode”.

The Electoral Commission has produced guidance for completing the nomination pack. In so far as the Home Address Form is concerned its guidance can be distilled into, “write down your home address”.

I cannot find any cases citing para 6(4) – in fact the first time para 6 seems to have been referred to in any case was 2015 when a returning officer refused to allow two people who wanted to job-share the role of MP to stand as a single candidate. This means that a court has never had to rule on the definition of a home address. I think this is important because, in the absence of any guidance, I would argue that home address can obviously mean where you live this minute but could also mean an address that you have acquired and plan to use imminently. The question is how you interpret the law. If you take a strict approach then a candidate must give the address at which he or she lives at the time the Home Address Form is completed. But that leads to bizarre results. Let’s imagine I plan to stand. I’ve lived in my house for 10 years but will be moving next week and will no longer have access to my home of 10 years. If a court were to take a strict approach then I must enter my current address, which will be available for the public to see despite my having left that address by the time of the election. That is an anomaly I cannot imagine Parliament intended to create.

But, if we take a purposive approach we may well conclude that since I will be living at my new address within a week and that is where I will be should anybody wish to contact me about my candidacy that I should enter my new address since that is the address that will be relevant to any voters or journalists wishing to find me.

Lay people often imagine that the law is a fixed, almost tangible, thing that any lawyer worth his fee can define in a few words. The truth though is that law is about assessing meaning, thinking through the consequences of different meanings and applying the meaning that works best. After that’s been done once it can become a precedent – a law if you like – to be followed in future.

I would suggest that Parliament’s purpose in requiring candidates to provide their address was not to freeze a moment in time for posterity but to provide a ready means for the public, journalists and, most importantly, the returning officer to find that candidate. If that is the case then Mr Nuttall will have complied with the law, assuming he actually intends to move into the house as he promised.

We’ve started, so let’s finish this thing and put ourselves in the position of a prosecutor weighing up whether to prosecute or not. We are going to take a strict approach and decide that Mr Nuttall has given the wrong address on the Home Address Form – what now?

Being a good prosecutor, we will have noticed that section 15 of the Electoral Administration Act 2006 created the crime of supplying false information and inserted that crime in the 1983 Act as section 13D, subsection 1 of which tells us that:

“A person who for any purpose connected with the registration of electors provides to a registration officer any false information is guilty of an offence.”

There is a defence to the charge afforded by subsection 4, where a person did not know and had no reason to suspect that the information was false. You might well argue that if Mr Nuttall genuinely intended to live at his Stoke address that he may well not have realised that the information he was providing was false for the purposes of the Act. I’ll let you make your own minds up about that.

Section 13D(6) tells us that a person who is guilty of an offence shall be liable to imprisonment for up to 51 weeks (although I am not certain if 51 weeks is in force since a. that would exceed the magistrates maximum sentencing powers; and b. I cannot locate a copy of the SI bringing the relevant amendment into force as is down) and an unlimited fine.

So now, sitting with our prosecutor’s hat on, we must decide whether such an offence should be prosecuted. We have the Code for Crown Prosecutors to guide us as well as specific guidance for the offence of supplying false information.

The guidance tells us that the purpose of the Acts governing elections “… is to maintain the integrity and probity of the electoral process. Proceedings for major infringements will normally be in the public interest.” It goes on to tell us that an offence of a technical nature that does not infringe the spirit of the legislation can be dealt with by way of a police caution or even advice as to an individual’s future conduct.

Keeping ourselves in the position of a prosecutor, I would suggest that giving an address you intend to move into but have yet to do may well not be false information at all if that new address is the appropriate one for you to enter on a purposive approach to the interpretation of the 1983 Act. The decision is not mine though – you decide. Do you think that Parliament intended to criminalise the giving of an address you already own a lease on, a home in which the candidate is about to move to and which they will be living in during the election? I suggest that is not what Parliament intended, but, if you are not with me on that then I invite you to consider whether such a candidate would realise that the information they were giving was false for the purposes of the Act? If you think that he wouldn’t realise that then he is not guilty of an offence and should not be prosecuted.

If you decide that, on the face of it, an offence may well have been committed then we need to consider whether prosecution, caution or advice is the best way of dealing with this – of course a caution can only be administered if the candidate makes a full and frank admission to wrongdoing.

I would suggest that this is a technical breach of the law and is not one likely to have any influence on the outcome of the election whatsoever. In that case, should criminal proceedings be brought or should advice be offered? You’re the prosecutor charged with making a decision – you decide.

Monday, 23 January 2017

The court that likes to say, “no”

Royal Courts of Justice - home of the Court of Appeal

Friday last saw the publication of judgment by the Court of Appeal Criminal Division (CACD) in the case of R v Ordu. In 2007, Mr Ordu entered the UK via Germany using a false passport. He was prosecuted under the now defunct Identity Cards Act 2006 for possessing false identity documents with intent.

Section 31 of the Immigration and Asylum Act 1999 was in force at the time (and indeed is still in force, although it has been amended); it creates a defence for refugees fleeing persecution. It was supposed to bring the law into compliance with the UK’s treaty obligations arising from the Refugee Convention. Section 31 was badly drafted because it barred people who had stopped over in another safe country on their way to the UK from relying on the defence; however, the Convention specifically required the UK (and other signatories) to extend the defence to such people. Despite this glaring conflict the law at the time of Mr Ordu’s case appeared to be settled and the section 31 defence was not open to anybody who had made a stopover on their way to the UK (R v Pepushi). Because of this, the barrister representing Mr Ordu did not advise him about the existence of the section 31 defence. Mr Ordu was therefore advised to plead guilty, which he did and was immediately sentenced to 9 months’ imprisonment.

However, the law was not settled – the Court of Appeal even has a phrase for this sort of thing: “the law as it was then understood”, which in my book is usually code for: “that time when we got the law wrong” – because in 2008 along came Ms Afsaw who was an Ethiopian national who had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father had also been persecuted and died in police custody. She was arrested attempting to leave the UK for Canada. It was accepted by the Crown that she was a refugee fleeing persecution and that she had used the UK to make a stopover on her continuing journey. The case ended up in the House of Lords where their Lordships held that section 31 should be read as providing immunity for a refugee attempting to leave the UK as part of their “continuing course of flight from persecution”. This effectively changed the law as it had been following Pepushi.

Mr Ordu was seemingly unaware that all this was going on. He served his prison sentence, was released and at some point, shortly before the 29 February 2016, I know not how, Mr Ordu became aware that the law had changed. He then filed his notice of appeal along with an application for leave to appeal out of time – effectively asking the Court of Appeal for an extension of the time to appeal by eight years and three months. In his appeal notice, Mr Ordu cited the case of R v Mateta. This is one of a number of cases in which advocates failed to advise clients about the availability of the section 31 defence. For a time this seems to have been a very common mistake – I don’t know why. The first time I defended one of these, I took what some seem to find a novel step of opening a law text book and reading up on the law – section 31 was clearly explained and short of having a big red popup finger on the relevant pages I do not know how it could have been any clearer. But there you have it.

The Court of Appeal registrar appointed a barrister to act for Mr Ordu and the appeal was refined to one arguing effectively that a change in the law rendered the original conviction unsafe.

In deciding this appeal the Court of Upholding Criminal Convictions Court of Appeal, first had to decide whether to grant the extension of time for Mr Ordu’s appeal. They recognised, at paragraph 17, that if the section 31 defence had been open to Mr Ordu he would probably have been acquitted and thus if the extension of time were granted his appeal would probably be successful:

“The issue for us, therefore, is whether to grant the extension of time sought.  If we do,

it will be for us to consider whether the conviction is safe, but in the light of the

approach taken by the Crown and the decision of the Asylum and Immigration

Tribunal it is likely that if leave is given, the appeal will succeed, because the s.31

defence (if advanced) would probably have succeeded.  We approach the question of

leave on that basis.”

So, let’s take stock. We have an appellant who has been wrongfully convicted of an offence. He has served a prison sentence for that offence and now has a criminal record as a result of that conviction. True it’s now a spent conviction but it will nonetheless show up on any enhanced criminal record check he might have to submit for employment and, should he wish to travel abroad, it may well hinder his ability to do so in future. What do we think the Court of Appeal is going to do next? Let’s find out.

It doesn’t start off well for Mr Ordu. Paragraph 18 quotes this from the case of R v Mitchell:

“It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

To translate into everyday English, it means, “just because we judges got the law wrong in the past does not mean we will, or should, intervene to put right the injustices caused by our “misconception of the law.” Mr Mitchell did get his additional time because he was imprisoned at the time and the Court of Appeal accepted that he was innocent of the allegation against him, but if you care to read the full text you’ll see they only just allowed his extra time despite knowing he was an innocent man in prison for a crime he didn’t commit! The reasoning was that Mr Mitchell was subject to a continuing and substantial injustice. By implication therefore, we now have two types of injustice recognised by the Court of Appeal – “substantial” (those that matter) and, presumably, “insubstantial” (those which the Court just doesn’t care about).

Their Lordships immediately decided that Mr Ordu’s case was in the category of “injustices they don’t care about” cases where there is no ongoing substantial injustice. This is because Mr Ordu has served his sentence and his licence period. His conviction is now spent and he is now a UK citizen. On that basis they refused his application for leave to appeal out of time saying that he has lived through the adverse consequences of the wrongful conviction (an interesting way to describe being imprisoned for a crime you didn’t commit) and that overturning the conviction would have no impact upon his life today. I would think that having your name and reputation wrongly tarred with a conviction for being the sort of chap who goes around using fake ID documents for no legitimate reason would be a big deal – it certainly would be for me.

While the court has undoubtedly applied the substantial injustice test correctly, this case highlights how the criminal justice system is weighted against those who find themselves in the dock.

Let us imagine an allegation of rape from 50 years ago (I’ve dealt with a case of that age and they are very difficult to defend) – who in the Court of Appeal will say that such cases should not be allowed to proceed to trial merely because the “adverse consequences” to the victim are now firmly in the past? Hint: none of them. This means that a defendant can be prosecuted for a non-summary offence at any time but cannot appeal any injustice arising unless that injustice is serious.

Why the substantial injustice test has arisen makes little sense in a properly functioning justice system. If somebody is clearly innocent of an offence, as the Court of Appeal accepts Mr Ordu is, then any properly functioning justice system should be seeking to do justice and quash the conviction. If it is not interested in justice, then it is not a justice system at all.

I’ve been told that the argument for the test is that allowing anybody to appeal just because they’ve been wrongfully convicted would open the floodgates. This is a bad argument unless you are accepting that there are so many mistakes made by the Crown Court that the Court of Appeal would not be able to cope with the tsunami of appeals that would flow from any lowering of the dam that is the substantial injustice test. I’m not sure that is an argument their Lordships wish to make.

I would tentatively suggest that a key reason for the development of the substantial injustice test is that we do not have a properly functioning justice system. It’s a bit like my first car, an Austin Mini Estate (in bright orange - or Vermillion as Mini preferred to call it). It looks good when it’s all cleaned up and the light is shining off its chrome bumpers just right. It work - most of the time - but occasionally it goes disastrously wrong and leaves you stranded in the rain (with a leaky driver’s side window). Nobody wants other people to think their car is a heap of junk so we keep them clean, polished nicely and hope the light hits it just right. Same with our justice system really.