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News Roundup Week Ending 18 July 2014

Charlotte Rowles

By Charlotte Rowles on 18/07/14

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News Roundup Week Ending 18 July 2014
15 July 2014

Joshua Rosenberg writes in the Guardian about the latest changes in Government affecting key legal positions

Grieve departure softens loss of legal-aid case for Grayling. 

As the attorney general slides down the slippery pole, the justice secretary lives to fight another.  

Even among government opponents there was real regret when it emerged on Monday night that the attorney general, Dominic Grieve, and his deputy, Oliver Heald, were leaving their posts. Nobody had seen it coming: the two law officers had previously invited reporters to a Tuesday morning briefing on unduly lenient sentences.

The disappointment among left-leaning activists and commentators at the sacking of the law officers and a third QC, Ken Clarke, was compounded once it seemed clear that Chris Grayling would be keeping his role as lord chancellor and justice secretary. His position as the Conservatives' leading opponent of the European court of human rights is enhanced now that Grieve is no longer able to provide any sort of counterbalance within government.

So Grayling may well feel less put out than he might otherwise have been at a decision by the high court on Tuesday that he has no power to introduce a residence test for legal aid using delegated legislation. The lord chancellor's attempt to restrict the availability of legal aid to people who could show they had lived in Britain for at least a year amounted to unlawful discrimination, the court said.

In a judgment dripping with sarcasm, three judges headed by Sir Alan Moses were scathing about Grayling's claim that new restrictions were necessary to ensure public confidence in legal-aid spending.
"In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice," they said.

The decision comes after Grayling had already pushed the measure through the Commons, using powers he believed he had under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo). Given the court's ruling, it is difficult to see how he could now expect his draft statutory instrument to be approved by the House of Lords.

That leaves Grayling with the option of introducing new primary legislation – though even that may be unlawful, Moses suggested.

The court appeared to doubt the government's claim that the reform would save public money. If Grayling had not been celebrating the defeat of his government opponents, he might have resented what Moses said about an article he published in the Daily Telegraph while Moses was writing his ruling.

"Most right-minded people think it's wrong that overseas nationals should ever have been able to use our legal-aid fund anyway," the justice secretary asserted.

Moses concluded from these comments that Grayling had been "unrestrained by any courtesy to his [litigation] opponents, or even by that customary caution to be expected while the court considers its judgment".
Referring to the Public Law Project, which brought the successful high court challenge, Grayling had written: "Another group of left-wing lawyers has taken us to court to try to stop the proposals".

Moses responded that Grayling was "unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent's shins".

Moses retired from the court of appeal last month to chair Ipso, the new press self-regulator, and this judgment can be seen as his valedictory message to Grayling. It was supported, without further comments, by the highly experienced judge Mr Justice Collins and the former counsel to the Leveson inquiry, Mr Justice Jay.

The judges had been asked to consider whether Laspo gave the minister the power to exclude non-residents from a list of cases that are given priority funding under the act. They concluded that a power to add, vary or omit cases from that list could not be used in a way that changed the purposes of the act or departed from its primary objectives.

There was no doubt that a residence test discriminated against foreigners, the court said. The law would permit discrimination in the payment of welfare benefits. But legal assistance was different, Moses ruled. The UK was "not permitted to discriminate against non-residents on the grounds that to do so might save costs".

So Grayling lives to fight another battle as Moses retires early and Grieve slides down the slippery pole. I suppose the warning sign was David Cameron's decision to deprive Grieve of his like-minded deputy, Sir Edward Garnier, nearly two years ago. Heald, Garnier's replacement, was seen as more politically acceptable. But not for long.

Carl Gardner, in an excellent review of Grieve's four years as the government's chief legal adviser, said he remained a traditional Conservative while his party moved away from him. That's nothing to be ashamed of.

I hope Grieve finds a new role consistent with his talents. As it happens, there's a vacancy at the moment for an independent lawyer, familiar with the prosecution process and the ways of government but not associated with past scandals. It's the job held by Lady Butler-Sloss until Monday – investigating the way child abuse was handled within government. If Grieve can swallow his pride, he would be an ideal person to take on this demanding and important role.


July 2014

Oliver Lewis interviews the solicitor Bill Bache for the Justice Gap. 

INTERVIEW: Solicitor Bill Bache is best known for representing Angela Cannings, the mother wrongfully convicted of murdering three of her children. Here he speaks to Oliver Lewis about the case, expert evidence, legal aid cuts, and his long career.

Bill Bache is one of the few lawyers to have done both conveyancing and appeared in a Court Martial in the middle of a warzone. And that’s before you get to the family courts, war crimes cases, ID parades in Basra, the coroner’s court where he sat as a deputy coroner, and of course his practice as a leading lawyer in ‘cot death’ and ‘baby shaking’ cases in the criminal courts.

This article appears in the latest edition of The Advocate.

We meet in a bar on Theobolds Road a few hundred yards from his London office. Every inch the old school solicitor in smart linen jacket, striped shirt and pink tie on a sunny afternoon, he sits alongside his long-time colleague, Jacqui Cameron.

Bill served articles with a firm in Bedford Row before qualifying in 1967. He then worked in local government before joining a firm in Salisbury in 1973 where he first did conveyancing and civil law. Soon he was appearing in magistrates and family courts regularly, as well as in courts martial, Salisbury being near to an Army base.

‘I was prevailed upon to go courts for which I hadn’t been particularly trained but they seemed to like what I did,’ he says. ‘As time went on I found what I seemed to like was looking out for the individual against the power of the state in one way or another.’

A spell as deputy coroner for Swindon and Wiltshire sparked an interest in medical aspects of legal proceedings and later he became involved in the case that would become one of the most difficult of his career.

Angela Cannings
When he was asked to represent Angela Cannings, wrongfully convicted in 2002 of the murder of her seven-week-old son, it seemed providential, he says. His experience in the criminal courts, the coroner’s court, and in dealing with care proceedings all came together, but even with all that useful experience under his belt, the difficulties in the Cannings case came as a surprise. Not least, he says, the prejudice and difficulties faced by women brought into a dock to defend themselves against charges of killing their baby.

The Cannings case came not long after the similar case of Sally Clark, who like Angela Cannings had been brought up in Salisbury. That case had also featured evidence from the paediatrician ProfessorRoy Meadow. A family solicitor friend of sally Clark warned Bache about what to expect, and told him to forget any illusions about the prosecution having to prove their case. What you effectively have to do, he was told, is go out and prove your client’s innocence. With three deceased children that was going to be difficult.

‘I was almost naive at the time,’ says Bache. ‘I had always proceeded on the basis that it was the prosecution’s job to prove its case and to do so beyond reasonable doubt, and if it couldn’t do that then in my book the accused should walk free. I kept being told there had been three cot-deaths and therefore it was likely to be murder. I never followed the logic at all.’

Eventually he got hold of the prosecution papers.

‘I have been dealing with criminal matters for a long time and in nearly all those cases your client can’t understand why they have been arrested, some of them protesting more sincerely than others about their innocence I should say, and you turn the pages and there nearly always comes a moment when you see something in the evidence when you say: “Ah, that’s why they think you have committed an offence.” In the Cannings case I turned the pages from beginning to end and I never found anything of the kind.’

Expert witnesses

Bache set about the case determined to find the right experts, but at first found it difficult to find anyone prepared to help.
‘Most experts you wouldn’t see for dust. Finally we found someone prepared to be sceptical about the dogmatic claims that it had to be murder. Then we began seeing experts who said we also needed to go to this or that specialist, each sparked off the need to go to the next. We spoke to over 20 experts and ended up calling 16 at the trial.’

Cot-deaths were then and still are to an extent a scientific enigma, he says. ‘There were all sorts of theories, and some were better than others. It was a very good grounding in how to deal with cases of this nature and a lesson in looking at the whole picture. The family had lived in a small village where there had been a cluster of cot-deaths and so we investigated whether there might there have been an environmental factor. There was also a nearby Government research establishment where experiments relating to biological and chemical warfare were taking place. We had to look at everything.’

Cannings was convicted by the jury, partly on the evidence of the later discredited Meadow, but Bache never doubted his client’s innocence.
‘With Cannings, and indeed all the mothers and fathers I have had to deal with in this situation, there is something about them which makes you think there is absolutely no way they have done what they are accused of. Their innocence shines through in a way that simply doesn’t happen in most other cases. I am struck by their sheer bewilderment that anyone could even think they could have hurt their child.’

Appeal

After Cannings was convicted, Bache knew they had to appeal. He was helped by a BBC journalist who researched the Cannings records in Ireland and discovered cot deaths in the family. Then the night before a pre-trial hearing and just a month before the appeal itself Bache received a phone call. Until that moment Angela Cannings didn’t know she had a half-sister.

‘I had been working late hours on the appeal and for once I had more or less tidied my desk and I was in two minds whether to answer it. She told me that her own children had all had episodes or attacks where they had difficulty breathing. We were seeing her within the hour. We had to get new reports from a geneticist and others and be ready for the full hearing in a month. The Court of Appeal came to the conclusion that there may well have been some natural cases at work.’

The judgment was a landmark. ‘Although we were gutted when she was convicted, in hindsight we would not have had the benefit of the brilliant judgment by Lord Justice Judge, which seemed to me to redress the balance and bring things back to where they should have been in the first place, which was to remind everyone that the prosecution does need to prove its case. And if there is no scientific explanation you cannot simply go on from there to say there must have been criminal behaviour. If there is no scientific explanation then the answer is “We don’t know”. That should result in an acquittal.’

Similar cases

Since Cannings, Bache has dealt with a series of cases in which the interpretation of complicated medical data has been key. He secured an acquittal at a retrial for the couple accused of murdering their child in the salt poisoning trial.

‘These sorts of cases seem to come in and out of fashion. The allegations against Clark and Cannings were to do with smothering. Then we had a spell of salt poisoning cases. Now there is an increasing number of shaken baby cases.’

The consequences of these cases, he says, can be utterly devastating. ‘In the event a parent is found guilty of causing death or injury they will never be allowed to keep any future children. The children will be taken into care straight away. It’s been known for police to be actually in the delivery room waiting to take the new-born child. The consequences last forever, and if this is done as a result of an injustice that is a terrible price we pay as a society.’

So how does Bache assess the importance of the availability of expert evidence? ‘The best way for defendants or parents to demonstrate they are not guilty is to have the evidence extensively examined by the right experts of weight and reputation,’ he says. ‘The prosecution and local authorities return to some experts time and again because they anticipate the opinion is going to fall down on the side of abuse. Where there is a grey area the most valuable experts are those who take a long and independent look at the data and give a carefully thought out and reasoned opinion. You should trust your experts, but make sure they are not dogmatic.

‘I have heard experts talk about “mainstream opinion”, implying that it must be right. I have no truck with that. You only have to look at the time when people thought the earth was flat or the sun went round the earth, dearly-held dogma to the point where anyone who said otherwise was executed.’

There are too many experts with an investment in having their pet theories proved, he says. ‘There’s a danger they may be tempted to interpret the evidence in ways which support their dogma rather than giving an independent view of the evidence. Defendants can only break down that wall with the help of courageous and skilfully applied science with experts of the right calibre.’

Legal aid cuts

How does he see the current round of legal aid cuts affecting how justice is done? ‘All solicitors know that getting funding for experts is a difficult process. You must get prior authority, which is often not approved because the rates are too high, yet these are world leaders in their fields. So someone perhaps facing a life sentence may be denied the best help they can get, facing a charge brought against them by the state, yet the state is not prepared to fund them. I notice the prosecution rarely have difficulty in instructing their own experts, yet defendants are squeezed and face great difficulties imposed by the state which makes it harder freely and properly to prepare their cases. And it is far worse now than when we did Cannings. It would be very difficult now to get the number of experts we did in the Cannings case.’

He would like to see changes to the way funding of legal aid is administered. ‘Prosecutions are in state hands, which is as it should be, the courts are run by the state, and the funding to allow people to defend themselves is also in state hands. I would like to see a reversion to the separation of powers, I would like to see funding placed in more independent hands as it used to be.’

What about people who say we can’t afford it?
‘Yes we can! What we can’t afford is a shabby system of justice which doesn’t care and allows serious injustice to go on, because that is deeply corrosive to the welfare of the population as a whole and it is not the hallmark of what a great country should be! I can see the whole thing deteriorating. The situation over the remuneration of excellent, experienced and courageous advocates and solicitors is deplorable, it’s a disgrace and it does shame to this country that it has been brought to this.’

War zones

Equally at home in the criminal court and the family court, country and town, he’s been in a few battles on home soil, so how come he ended up in that warzone?

‘We were doing an Army case and we had to go to Bosnia and we did the first Court Martial to take place in a theatre of war since the end of WW2. That was the first time I’d gone to court issued with helmet and flak jacket,’ he says. ‘I didn’t think my advocacy was that bad actually!’

He didn’t miss conveyancing then? He laughs: ‘I’d given up conveyancing by then, far too dangerous!’

17 July 2014

Keith Perry in The Telegraph reports on job cuts at the BBC and the Panorama reporter, John Sweeney who campaigned to highlight miscarriage of justice cases. 

John Sweeney has been made redundant by the BBC as the corporation axed all the programme's staff reporters.

Sweeney and the three other staff reporters - Shelley Jofre, Paul Kenyon and Raphael Rowe - were given notice of redundancy as the BBC announced more than 400 jobs would go.

Sweeney told trade magazine UK Press Gazette he wishes Panorama well in the future but is concerned that not having any staff reporters will give “management” too much power and undermine good journalism.

“I don’t have a God-given right to work for Panorama and Ceri Thomas, the new editor, has decided that he doesn’t want staff reporters. We cost money, et cetera, et cetera. And I think that’s his decision, fine,” he said.
“I also feel that if you are on contract it makes it harder to have an argument with management because you know you might not be invited back.
“There is a nice check and balance if you have a staff job. To be honest with you, it makes it harder to get rid of you.

On news of his redundancy, he said: “The nickname for me in the office for the last couple of months has been ‘dead man walking’. So I’m not massively surprised. And I wish Panorama well, I wish the BBC well…

“They’ve said there may be some other jobs – botany correspondent, South Pole editor – we’ll see, but it feels like it’s the end for me.”
James Harding, head of BBC News, announced 415 job losses across the division on Thursday.

Sweeney added: “The BBC is fundamentally a good thing. A good thing for the world, a good thing for Britain, and at the moment we’re being hammered by the newspapers every day. The managers have only got so much money and they’ve got to carve it up right.”

He also said he suspected new people such as Fiona Bruce and John Humphrys would be appointed to the Panorama show.
He added: “But the programme makers will be doing much, much more work. Before, we’d [work on] the stuff. And there were times when we would argue with people, so ‘let’s not do that, let’s do this’. And so I think management gain, because they gain more control."
A spokesman for the BBC said: “Panorama still has original and investigative journalism as a priority. It currently uses a wide range of reporters not just those dedicated to the programme. It will continue to attract the best possible reporters both internal and external to tell a broad range of stories.”

Select Committee on Constitutional Affairs Written Evidence 

Evidence submitted by John Sweeney, BBC Reporter 

8 November 2004

FAMILY JUSTICE: THE FAMILY COURTS

Since 2001 the BBC has investigated the possibility that the state has abused children by locking up their mothers or taking them away from their mothers on the basis of flawed evidence. The features of the Sally Clark case—she was freed in 2003 by the Appeal Court, at her second attempt—are typical: no hard evidence of abuse, no broken bones, no bruises, no history of abuse; no clear diagnosis of what went wrong; an assumption by an expert witness that it must have been foul play.

But what if the expert got it wrong?

In 2003 Sally Clark, Trupti Patel and Angela Cannings were all cleared of murdering their babies. The landmark judgment was made in December 2003, when Angela Cannings was freed by the Appeal Court thanks, in part, to fresh evidence provided by my colleagues Sarah Mole, Jim Booth and I. The criminal law was changed by Lord Justice Judge and others, so that no-one should go to prison again on the basis of expert witness evidence alone. 

No such changes have taken place within the Family Court system.


I believe that the Family Court system is systemically unfair to parents accused of child abuse. This is because, firstly, the system is closed and takes places very much behind closed doors. Secondly, because the "primacy of the child" effectively over-rides and indeed reverses the presumption of innocence. Thirdly, because "expert" evidence outweighs that of lay people who know the family.

As a result of these three failures, my colleagues and I have been horrified to discover a series of what we believe have been a whole category of miscarriages of justice in the Family Courts.

1.  Secret courts are bad courts. In rape cases, the media is not allowed to name the victim and sometimes the accused. But we are allowed to report in full the evidence. In exactly the same way the media should be allowed to write and report the evidence in a Family Court—so long as we don't identify the child. In the Family Courts, if the only evidence against a parent comes from an "expert" then the parent suffers a grievous disadvantage if that evidence can never be brought to the public eye. In the case of Child U, the mother was accused by an expert witness, Dr X, of trying to kill her child four times. He did not meet the family, the mother or the child nor did he take a family history—"could this be genetic?"—before coming to his conclusion. This appears to be a breach of guidance by the Royal College of Paediatrics. However, thanks to a Court Order by Mrs Justice Butler-Sloss we are prevented, "to protect the identity of the child", from naming the doctor, his hospital, the city name of the social services department or the region in England where it lies. This has nothing to do with protecting the child but everything to do with protecting an "expert" and a social services department from public scrutiny.

2.  "The primacy of the child" over-rides and reverses the presumption of innocence. Parents are placed in the appalling position of having to prove their innocence; if they do not know why their child is sick, they cannot and therefore they must be guilty.

3.  "Experts" who don't know the family count double over inarticulate relatives who do. The most dangerous kinds of experts are those who trumpet criminalising diagnoses without giving the benefit of the doubt to innocent explanations. Shaken Baby Syndrome and Munchausens Syndrome By Proxy are two such diagnoses. Munchausens is a criminalising diagnosis with no scientific validity. It is not in either the World Health Organisation or the US standard diagnostic bibles. The man who first identified it, Professor Sir Roy Meadow, comes before the General Medical Council next year for ramping evidence against cot death mothers like Sally Clark and seven cases in the Family Courts.

I would be more than happy to expand on these points in person if the committee thought that might be useful.