Category Archives: Legal System
Courts, Barristers, Solicitors, Lawyers and all aspects of the British (and International) Legal System.
I’ve previously commented on The Prolific Growth of the Savil’s Yewtreee but what many don’t consider is how Operation Yewtree has also been instrumental in opening a veritable can-of-worms. Many of which are more insidious and worrying than perhaps even the hideous paedophiles who have subsequently been exposed…
You see it’s not just the ‘worms’ of (alleged) paedophilia in our society but more, the inadequacies of our legal system in providing protection for victims. Add all the opinionated self-interest and social control or commercial desires of our media machine to the mix and you can (partly) understand some of the recent comments from some of our legal profession.
But even the most controversial comments from the likes of Barbara Hewson QC who claimed; the “witch-hunt” against ageing celebrities was reminiscent of the Soviet Union (see here), could also be seen (cynically) as having been offered for self-promoting and/or commercial reasons. So much so that even Ms Hewson’s own chambers quickly distanced themselves from them.
We are shocked by the views expressed in Barbara Hewson’s article in Spiked (8 May 2013). We did not see or approve the article pre-publication and we completely dissociate ourselves from its content and any related views she may have expressed via social media or any other media outlets…(Hardwicke Chambers)
Not without standing the outcomes from the Savile Scandal, or the media furore around the recent admissions of guilt by Stuart Hall and his subsequent conviction; rape investigations are often ‘undermined by belief that false accusations are rife (see here). An important consideration in all of this is that finally, we should be dispelling the rape myths that still abound. But the Savile and Hall outcomes should not be seen as de facto evidence to support the raison d’être of modern media methodology.
There may have been calls to Raise the IQ of Barristers, some of whom (see above) have been accused of being out of touch with society. There has also been many strong arguments around the naming of ‘suspects’ prior to conviction (Silence & Anonymity Do Not Bring Abusers To Justice). Jon Brown, head of strategy and development for sexual abuse at the NSPCC, raised the question - Witch Hunt or Justice for Victims? - when looking at the thoughts/reasoning behind the comments of Hewson.
I get the arguments which relate to ‘victim confidence’ i.e. their ability to come forward and make a formal complaint; these are mainly offered by the legal profession and child-protection charities such as the NSPCC and Barnardo’s. The ones I struggle with are those arguments around ’public interest’ and a ‘need’ to know. These are mostly put forward by our media organisations, again (cynically) for commercial reasons perhaps?
Here we go again: …the recent recommendations made by Keir Starmer QC (see here) to make changes to the way child abuse cases are handled and dealt with by the police authorities and the judiciary, are now critical…(Jonathan Wheeler)
Yewtree has been a minefield of opinionated and often self-interested debate around the rights and wrongs of investigative process, legislation and some morality issues but even Ms Hewson’s controversial views on child sex abuse have (surprisingly) had support ”flooding in” (see here).
Commenting on the need for a change to sentencing guidelines in child sexual exploitation cases, Cherie Blair QC said; “Child sexual exploitation is an appalling crime that devastates lives, and the legal system in this country has a crucial role in protecting children from such abuse by bringing the perpetrators to justice” (See HERE);
Regardless of how mature a child looks, how they behave or what kind of relationship has been established with the abuser, it must always be the case that victims of sexual exploitation are treated as children and never as willing participants…(Cherie Blair QC)
I don’t think any right-minded person would disagree with any of the above however; my greatest concern here is that of ‘justice’ – for both victims and the accused. To me it seems we are in danger of running headlong into accepting a ‘mob rule’ type of justice. One that is happy to allow trial by media, or even worse social-media, as opposed to the previously accepted concept of innocent until proven guilty and only then within a court of law.
This week North Yorkshire Police have been criticised for failing to release the name of the veteran comedian Jimmy Tarbuck, when he was arrested back in April for alleged Op Yewtree type offences dating from the 1970s.
Freedom of speech campaigners and politicians said North Yorkshire Police’s decision not to report its arrest of veteran comedian Jimmy Tarbuck over an alleged assault on a young boy more than 30 years ago was also “a blow to open justice”…(D&S Tuimes)
While some police forces, including the Metropolitan Police, have announced high-profile arrests in the past, the cynic inside me suggests there may well have been ulterior motives at play. The fact that North Yorkshire Police did not reveal it had questioned Mr Tarbuck on April 26 until asked by journalists, is not a real issue, except for the media. The force actually complied with national guidelines in force at the time.
Critics (mostly media based) have suggested that ‘public confidence’ in policing is being ‘undermined’ by similar actions, or should that be inaction? They’re almost suggesting that police should not only confirm but actually announce the names of suspects in ‘public interest’ cases, as if it were almost a matter of ‘duty’ for police forces.
But where is the divide between ‘public interest’ and pandering to salacious gossip-mongering? Are the police expected to feed so-called ‘investigative journalism’ irrespective of any consequences? Perhaps we should expect this constant media coverage after all; they’re commercial organisations that earn their cash from reporting on things, anything, be it factual or opinionated, they have columns and airtime to fill.
A spokeswoman for freedom of expression campaign group English Pen is reported to have said: “The fundamental issue is about open justice and the great concern is that if this becomes the norm, there will be a worrying secrecy surrounding individuals whose civil liberties could be endangered.” I have to agree with one of the comments to the article;
This is utter nonsense and the media know it, they are playing a game in a desperate attempt to detract from Leveson. And because of their rapidly declining business, want stories handed to them on a plate. It is not the police’s job to name those under arrest. It is the police’s job to gather evidence and ensure a fair trial and justice for victims…(noiretblanc)
I do however agree with Keith Vaz MP, chairman of the Commons’ Home Affairs Select Committee, who reportedly said: “It is unacceptable that a suspect living in one area should be treated differently to a suspect in the next postcode.”
That goes without any argument from me, I’m fully supportive of citizens always receiving the same standards from any of our public services (not only justice), no matter where they live in the UK. I also support the principles of ‘open justice’ but I’m struggling a bit with the wording which suggests; an individuals ‘civil liberties’ are somehow undermined when you apply ‘secrecy’ to their identity?
As another commentator to the D&S Times piece said; “What this country needs is a referendum on the laws that allow the media to print speculation” – It appears that irrespective of Leveson we’re still not confident about the methods employed by our media, let alone their culture, practice or ethics, and probably rightly so.
Irrespective of the fact that many ’suspects’ will be arrested who haven’t committed any crime, the police will often need the power of arrest to protect the public ad/or effectively carry out thorough investigations into any alleged offence. Each police officer is open to scrutiny (and disciplinary/legal action) should they abuse that power. It also has to be remembered; being arrested is not proof of being guilty.
Whether or not there is any substance in the allegations which suggested, the police may have tipped off the media in some ‘high-profile’ arrests, during Op Yewtree; the role of the police is not to feed the media, it is to protect the public and to prevent and investigate crime.
The police should never act with judgement but that’s also a function which isn’t afforded to our media (as yet), irrespective of how much they would like to think it is!
- The Prolific Growth Of Savile’s #Yewtree (bankbabble.wordpress.com)
- The worst thing I’ve read today (stavvers.wordpress.com)
- Outrage at barrister who called Stuart Hall’s crimes ‘low level’ (dailymail.co.uk)
- Consent age should be 13 says lawyer (bbc.co.uk)
- Legal chambers’ ‘shock’ after human rights lawyer calls for age of consent to be lowered to 13 and an end to the ‘persecution of old men’ in wake of the Savile scandal (dailymail.co.uk)
- Top human rights barrister sparks outrage with call for age of consent to be lowered to 13 (independent.co.uk)
Despite all that we’ve heard about Jimmy Savile’s disgusting and ’perverted’ lifestyle since his death and over recent months (see here), I have to say that I find the prolific growth of Operation Yewtree a little concerning…
Has all the (apparently) previously unknown pedophilia within our entertainments industry actually been as widespread as it now appears or, is there also an element of jumping aboard a bandwagon at play here, by whoever and for whatever reason?
The Police operation, which began back in 2012 and not long after demise of Sir Jimmy Savile, was pursuing around 120 separate lines of inquiry during its early days, according to Scotland Yard. A factor which was reported widely in the media then (see BBC) and still is today.
Thanks to the Savile can-of-worms, it now appears that our entertainment industry of the day was allegedly riddled with ‘sex offenders’ in the past. Adults and children, including a boy of eight, were abused by Jimmy Savile, according to the joint NSPCC and Police Yewtree Report which details allegations spanning a 50 year period (see here).
By the end of 2012, the Operation Yewtree team said “589 alleged victims had subsequently come forward” during their investigations into Savile and others. Of those alleged victims, 82% were female and 80% were children or young people (source BBC).
Now the actor Michael Le Vell (Kevin Webster in Coronation Street), is also facing 19 charges relating to alleged offences between 2001 and 2010 (see here). Recently Rolf Harris was named by The Sun as a ‘suspect’ in the Yewtree allegations of sexual offences” (see here). That allegation was closely followed by similar ones against William Roache who has since been charged.
Having completed our review, we have concluded that there is sufficient evidence and it is in the public interest for Mr Roache to be charged with two offences of rape relating to a girl, aged 15, in 1967…(Nazir Afzal – CPS North West)
The fall-out from the Savile Scandal has also reignited the fire under the distasteful record of Gary Glitter who was subsequently arrested again. The DJ Dave Lee Travis and comedian Fredie Starr have both had their collars felt in the last few months and only yesterday (02-May-2013), the previously well-loved TV/Radio presenter Stuart Hall, late of It’s A Knockout fame, pleaded guilty to the offences he was previously charged with (see here).
Now even the renowned and prolific celebrity PR mogul Max Clifford has been charged with 11 counts of indecent assault against teenagers (see here). Like some others I’m prompted to yell…WTF? One cynical commentator quickly suggested; ”if Clifford can’t spin his way out of this, what hope have ’ordinary’ celebrities got?”
Comments such as that may be comical at face value but they are also unfair, the tone (as with much of that espoused by our media), is actually a suggestion of guilt prior to any court conviction. It must therefore be understandable that Clifford should claim he is being pilloried and “held up to national shame.” Whether or not his comment of, ”if the Jimmy Savile situation had not come along none of this would be happening” turns out to be true, will be (rightly) wholly dependent upon the outcome of a court of law. If indeed it progresses that far?
Today Op Yewtree involves somewhere in the region of 70 police detectives and has so far cost upwards of £2M (as at the end of April 2012). Despite resulting in some well founded criticism of the BBC, revealing some police failings and highlighting so many previous lost chances to prosecute, it also has its critics. It’s good that the operation has been Giving Victims A Voice, all be it belatedly, and it also appears to be adept at rooting out so many ‘alledged’ offenders. I am however wondering; could it be that Yewtree is now (hopefully unintentionally) becoming something of a media fuelled Witch-Hunt, rather than the bona fide criminal ‘investigation’ it originally set out to be?
Freddie Starr believes cops are after him because they failed to nail Jimmy Savile…(mirror.co.uk)
Despite any obvious attempt by Starr to clear his name, doesn’t he actually have a valid point? It’s looking like we now have what can only be described as ’open season’ on anyone who enjoyed celebrity status during the 1960/70/80s. A desire to air our historic dirty washing in public which are moves designed to mitigate against our previous system failures perhaps? It’s another one of those situations which plays directly into the hands of our emotive tabloid media.
Another household TV name is being investigated over sex abuse allegations by Jimmy Savile police… Allegations of historic sexual abuse have been made against the TV favourite, who denies the claims… Police yesterday refused to confirm who the much-loved comedian was… The Sunday Mirror knows the identity of the man, now in his 70s, but we have decided not to name him…(mirror.co.uk)
Writing in The Mail at the end of last month Peter McKay was (obviously) waxing cynical when he commented on the above story under the headline; Sir, we are charging you with being a celebrity…(see here). He suggested that police from Operation Yewtree, were only “pursuing alleged ‘historic’ sex crimes by the famous.”
In his piece he asked; “what if you were the victim of a serious assault in the past which was not sexual in character — a mugging or a savage beating, say, by a famous person which took place in 1966? Would the police begin proceedings against the celebrity you say was responsible?”
Apparently McKay sought clarity and an answer from a friend of his who happened to be a QC… The learned gentleman thought not, “especially if it’s simply one person’s word against another’s.” The QC also suspected that Yewtree could well be a “publicity stunt.”
The QC (allegedly) went on to say that “outside of old murders solved by new DNA procedures, few, if any, ‘historic’ assault cases are tried.” Could McKay’s cynicism also be well founded when he says; “But sex crimes are more news-worthy than beatings and muggings. Especially if the victims are young girls and the alleged abusers are, or were, famous.” I wonder? Always assuming the QC isn’t part of some ‘establishment’ paedophile ring himself? Surely not?
There is no doubt however that there will be many ’celebrities’ panicking about their past catching up with them. If only because of an incident that what was once considered to be ’harmless’ petting or flirting, is now considered to be a criminal offence of sexual abuse.
Turning things around somewhat and by way of an example; isn’t it worth remembering that homosexuality was once considered to be a criminal offence in this country but now, in more enlightened times, it’s actually embraced as a valuable aspect of our diverse society. Would we set up a team of detectives to chase after everyone who was in a gay relationship prior to 1967?
And all this before you even start to consider the well-known ‘casting-couch’ situations that were once accepted normality within the entertainments industry, a process that undoubtedly propelled numerous wannabee starlets (often willingly) towards fame and fortune in the past. I’m not saying any of this is right but I am asking, isn’t rather simplistic and somewhat naive to ignore or negate these additional factors?
Also, from a more pragmatic viewpoint, unlike the emotive views often expressed from our media which in-turn are fuelled by an often contrived public angst within social media forums, I’m also prompted to raise the following additional questions.
- Could there be any merit in the (cynical?) suggestions raised and put forward by Peter McKay (see above)?
- Haven’t we arrived here because many of the ‘standards’ of ‘acceptable’ behaviour are different today than they once were?
- Isn’t this situation (partly) reminiscent of many of those well-published ‘travesties’ of justice. The type of case where a person convicted of a crime (soundly) in the past, subsequently has a sentence quashed years later, often due to advances in forensic science and/or DNA technology?
- Irrespective of genuine victims feeling more comfortable about actually being believed now; how many have seized upon Yewtree as an opportunity to placate their feelings of self-deprecation and/or sense of being belittled or undervalued during an aspirational period in their life?
- How many ‘victims’ have found an opportunity to punish an individual (or system) that has (in their eyes) failed them in the past in some way?
In summary; I don’t condone any abuse of power, position or status especially when it’s used for the forceful imposition of any unwanted sexual advances. I can however empathise with the emotional and/or physical pain some have undoubtedly experienced in the past (and since) because of Savile and others like him. I have no wish to discourage any genuine victim from coming forward with a complaint in the future. Indeed, I applaud and hold admiration for all those victims who have already found the strength to do so.
But as a final thought; could it be that our perception regarding the extent of Peadophillia in our society (then or now) is similar to our general perception of violent crime i.e. usually wrongly for a myriad of reasons, we genuinely believe there is more of it than there actually is?
- Rolf Harris investigation into alleged sex abuse moves to Australia (independent.co.uk)
- Bill Roache: Coronation Street’s Ken Barlow charged with two counts of rape – Daily Mail (dailymail.co.uk)
- Freddie Starr rearrested by Jimmy Savile police (metro.co.uk)
- Stuart Hall: Veteran BBC broadcaster admits 14 counts of indecent assault (dailymail.co.uk)
- Rolf Harris in sex offence inquiry (bbc.co.uk)
Apart from the fact the story actually hit the media at the end of March (as far as I can ascertain) and despite the time of release, it’s actually one of ten silly stories that are actually true. Given my time with the Police Federation and my Health & Safety background I simply couldn’t resist commenting on the story (see below).
A police officer is suing a petrol station owner after apparently tripping on a kerb on his property when called to reports of a suspected break-in…(bbc.co.uk)
But despite all the astonishment and mirth generated by the story; should a police officer be allowed (or willing) to make a claim for injuries received whilst at work?
It’s not common, I appreciate that, but the claim has come in and we’ve honoured the officer’s wishes by putting it through to the solicitor…(Paul Ridgway – Chairman, Norfolk Police Federation)
The chief constable of Norfolk Constabulary said he was ”disappointed” that one of his officers is pursuing a claim and obviously, the owner of the petrol station isn’t too happy about the situation either.
Chief moves to reassure public: This type of claim does not represent the approach and attitude of the overwhelming majority of our staff who understand and accept the risks inherent in policing and which they willingly confront to keep the public they serve safe..(Chief Constable Phil Gormley)
With the backlash of adverse public opinion and levels of media interest, it’s hardly surprising the Chief was quick to condemn the actions of his officer. It really doesn’t fit what the public (rightly or wrongly) expect of their police service, does it?
Now, less than 48hrs after the story broke, and was almost instrumental in a social and regular media meltdown, it now transpires the officer intends to withdraw her claim against the garage owner (see here). Speaking to The Mirror, Mr Danny Harle, the officer’s father was quoted as saying…
She’s being treated like a criminal but actually she’s the opposite – a single mum who looks after two daughters as well as working. Kelly wants to drop the claim to prove she is not a money grabber, not because she feels she’s done anything wrong…(Danny Harle)
Irrespective of all the contrived hype and opinionated comment in the media about this story; what about the facts of this incident?
- Since the Police (Health and Safety) Act 1997, all police officers are defined as being ‘employees’ and ‘at work’ while on duty and consequently, they are (rightly) protected, just like all other employees, under current Health & Safety legislation.
- The Police (Health and Safety) Regulations 1999 applies the provisions of all existing health and safety regulations to police officers.
- The officer involved was at work when she was injured. The officer was injured whilst carrying out a task on behalf of her employer. An employee is owed a duty of care by his/her employer.
- The owner of the garage may have a duty of care to anyone entering their premises however; that duty is based around the management of reasonably foreseeable risk and the application of reasonable control measures to prevent any injury being caused i.e sensible (and effective) risk management.
- The injury suffered by the officer has (possibly) caused her financial hardship.
It’s a well-known fact in the world of Health & Safety: slips, trips and falls combined account for ”more than half of all reported major injuries” and “almost a third of over-3-day injuries” to employees at work (source HSE).
The officer couldn’t just write off the accident as an insignificant incident: Due to the circumstances surrounding the officer’s injury, she (and her employer) were (at the time of the accident), legally required to make a report about the accident. This is a provision contained within the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
Health & Safety Law: The Health and Safety at Work etc Act 1974 is criminal law aimed at protecting employees and others who may be affected by work activities. Health and safety legislation does not, in general, impose duties upon someone who is not an employer, self-employed or an employee (e.g. the garage owner). It is not possible to sue for damages under the HSW Act itself however; a breach of health and safety regulations may be cited as part of a civil claim for compensation based on a breach of statutory duty.
Duty of Care under Civil Law: Under the common law, all individuals (not just employers) have a duty of care to each other and to others who may be affected by their activities. Where something goes wrong, individuals may, in some cases, sue for damages using the civil law if they are injured as a result of another person’s negligence.
Note: for a negligence claim to succeed, the injured person must show that the defendant had a duty to take reasonable care towards them, and they have suffered the injury through a breach of that duty. The injured person must also show that the type of loss or injury for which damages are being claimed was a foreseeable result of the duty breach.
My personal views and observations:
This incident was an easy bandwagon for the media to climb aboard, especially given the (apparent) April Fools’ opportunity. It was also one which was bound to accelerate at a phenomenal rate, given the propensity for police and/or Elf ‘n’ Safety bashing, so often favoured by our media.
In the majority of articles that I saw (and the subsequent comments); there was hardly any coverage about the legalities involved in the incident. When there was, we were subjected to numerous assumptions of guilt, in relation to both the garage owner and (sadly) on behalf of the officer. Nearly all of that coverage was (a) either intentionally only partly right or simply ill-informed and (b) were presumptions about the (desired) outcomes from a court of law; always assuming that the case actually arrived at court in the first place.
Do I think the officer was right to pursue a claim? No, but I can fully understand her possible difficulties, especially if she had suffered financially because of an injury received at work. But it is always difficult striking a balance between operational and Health & Safety duty.
Do I believe that the garage owner (or her employer) were legally responsible for the officer’s injuries? No, I couldn’t (hopefully) envisage any court of law establishing that either party had breached their statutory duty of care, to an individual or to an employee.
Do I think the garage owner should have better managed the ‘risk’ ? No, as far as I can ascertain, there would have been little if anything he could have done to prevent the officer falling. He might have placed floodlights around all of his garage premises during the night, he could have placed trip hazard warning signs all over the place and he could have painted all of the curbs with black/yellow hazard hatching marks. Would that have been reasonable? Probably not and would certainly have been expensive. Would those actions have fitted within the principles of sensible risk management? Again I would say, probably not.
As one commentator to an article I saw wrote; “why wasn’t she watching where she was going and/or carrying a torch?” Perhaps the only duty of care breached here was the one that the officer owed to herself?
All that being said, when attempting to effectively manage risk one should always remember; preventing accidents usually also requires that you should try to manage human failures. You need to understand the risk management principles; never ignore the inherent human factors involved e.g. possible fatigue, one often experienced by shift workers, as in this case however; the majority of this type of risk management is morstly within the remit of the employer, as opposed to the garage owner.
Fatigue results in slower reactions, reduced ability to process information, memory lapses, absent-mindedness, decreased awareness, lack of attention, underestimation of risk, reduced coordination etc…(Source HSE)
Thankfully some elements of the media machine actually managed a somewhat less damaging and little more satirical viewpoint on the matter…
Were you injured and would like to claim compensation? Get over it! – If you ask me, the story of the policewoman who, called to investigate a suspected burglary, fell over an on-site kerb and is currently suing the owner of the property, certainly adds to the impression we are now a nation drowning in absurd lawsuits brought about by stupid, greedy people with no sense of personal responsibility and, in some instances, a passion for bogus whiplash…(Deborah Ross – The Independent)
Like Ms Ross (and undoubtedly many others), “I am as fearful of all this litigation as anyone” else; the inherent greed in much of our society tends to be the fuel that ignites the misapplication of Health & Safety legislation and guidance. I think her idea about trying to balance it all with a new company called, Stuff Happens So Get Over It, is a great idea and one that has a good chance of rapid expansion… Any chance of a job Deborah?
- She should have carried a torch! Dismay of petrol station owner sued by fall PC (telegraph.co.uk)
- Kerb fall WPC sues 999 caller (thesun.co.uk)
- Policewoman sues man who dialled 999 during ‘burglary’ after tripping over petrol garage kerb (mirror.co.uk)
- Chief disappointed at PC legal claim (bbc.co.uk)
- Report: Police officer drops claim against burglary victim (itv.com)
- British Police (Unfit For) Service! (dickiebo.wordpress.com)