Category: Courts and the administration of justice

How proper funding and resourcing means fewer miscarriages of justice

25th April 2021

After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.

And often the miscarriage comes down to the evidence before the court.

In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.

The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.

(See my Horizon posts here and here.)

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In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.

And so the scales tip to one side.

To dislodge such (on the face of it) compelling evidence is a difficult task.

To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.

To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.

To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.

And the main safeguard, of course, is (or should be) the forensic process itself.

Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.

There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.

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But.

Disclosure exercises are sometimes not easy – or cheap.

A properly resourced prosecution authority is not cheap.

Proper case preparation is not cheap.

And skilled in-court lawyering and cross-examination is not easy – or cheap.

For justice to be served, however, requires all of this is done well – which requires funding and other resources.

Else the court will be prone to placing the wrong weight on evidence before it.

Or as techies put it: Garbage In, Garbage Out.

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Further thoughts on the Post Office Horizon case

24th April 2021

Following yesterday’s important and immense criminal appeal judgment on the Post Office Horizon case (post here), I have had a look at the preceding civil judgments.

(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)

The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.

The key 2019 judgment is here – and it some 155 pages and 1024 paragraphs.

It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.

Paragraph 929 is a judicial classic.

The judge is a credit to the judiciary.

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But.

That civil judgment is from late 2019.

The criminal convictions were quashed yesterday.

And the wrongful convictions date back to 2003.

This means there has been a wait of, in some case, nearly twenty years for justice.

However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.

Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.

Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.

But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.

And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.

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One or two people have complained about the the legal fees in this case.

It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.

To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.

That the lawyers who did this successfully were remunerated should not be controversial.

And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.

Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.

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There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.

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The Post Office case is damning, but do not blame ‘computer error’ – it is very much the fault of human error of Post Office managers

23rd April 2021

There are few, if any, criminal appeal judgments as damning as today’s appeal judgment on the post office cases.

This is an appeal judgment that will (or should) sound through the generations, as a detailed description of how the criminal justice system can go wrong.

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But.

It would be an error to dismiss it as just a grand example of ‘the computer says no’.

Computers, like any automatic processes, will be prone to faults.

The problem was not so much the Horizon software but a sequence of horrible, deliberate decisions made by human beings – about whether to bring prosecutions, to contest civil cases, and to avoid the disclosure of relevant documents.

Every single manager involved in these prosecutions and in opposing appeals are far more culpable than any of the poor defendants.

Yet, unlike the defendants, the Post Office managers are not (generally) named in this judgment: they have their gongs and their pensions and their self-serving supposed exculpations of ‘lessons learned’.

So damning is this judgment that, no doubt, every person reading it will have a view on which of their legal and political opinions will be affirmed by the judgment.

For this blog, the damning Post Office judgment affirms that private prosecutions are generally a bad thing – whether they are brought by the Post Office or anyone else.

Some organisations – and individuals – enjoy the swagger and the bluster of being able to bring (and threaten) cases aimed at criminalising and penalising others.

But as the noted jurist Benjamin Parker averred: with great power comes great responsibility.

And the power to criminalise and penalise others is one of greatest powers and responsibilities of all.

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Lawyers often boast of being ‘fearless’.

Prosecutions should be – genuinely – fearless: but being fearless including being free of the fear of not proceeding with the prosecution because of the reason of embarrassment.

For, as the damning Post Office judgment shows, it was the fear of embarrassment that meant that things were not said and disclosed that should have been said and disclosed.

The damning Post Office judgment also shows what will happen when the power and the urge to prosecute is free from any checks and balances.

It shows what will happen when defendants do not get the materials and the advice that they need so as to be properly defended.

Yes: the appeal points to the dangers of automation and computerisation – but the appeal points harder at the dangers where managers and other decision-makers hide behind automation and computerisation.

And the delay in this appeal judgment – ten or so years after the miscarriages of justice – also shows the inefficiency of a criminal justice system that can often be so quick to impose criminal liability in putting right things when they go wrong.

Nobody – other than the defendants – come out of this judgment well.

Not least the criminal justice system itself.

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The George Floyd murder verdict – and the problem of systemic racism in the legal system

21st April 2021

Yesterday a former police officer was convicted of the murder of George Floyd.

The evidence was overwhelming and, to most people who followed the televised trial, compelling.

Indeed, some would aver (in my view, correctly) that the evidence was compelling even before the trial.

But due process is due process, and even those charged with the most vile of crimes are entitled to due process.

And the former police officer received due process, and the former police officer was duly convicted – unanimously.

Yet.

Until the very last moment the verdict was uncertain.

Anyone watching the verdict being handed down was braced for an acquittal.

Regardless of the starkness of the evidence – and of the weakness of the defence case, even taking it at its highest – it seemed extraordinary that a white former police officer would actually get convicted of the murder of a black person.

And even if the evidence was as twice as compelling, and the defence case twice as weak, one would still realistically expect an acquittal.

For that seems to be the nature of the criminal justice system.

There is here a gap between knowledge and expectation – and this gap is systemic racism.

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By ‘systemic’ is meant that the racism is a feature of the system.

It would not matter which white police officer was accused, and which black person was the victim of a wrong, the operation of the system will tend towards certain outcomes.

Black people will tend to be the victims of police violence and there will never be any sanction against those who inflict the violence.

Any fatality will tend to be the subject of misdirection and misinformation by the police to the media.

Any victim will tend to be disparaged, if not demonised.

Any police violence will tend not to be filmed or similarly documented.

Any accused police officer will tend to be given the benefit of the doubt – and if there is no room for doubt, they will be given the benefit of some excuse.

Any other officers will tend to stay quiet.

Any prosecution will tend not to be brought.

And any prosecution brought will tend to lead to an acquittal.

The reason for each of these swerves away from justice will be different from case to case.

But the overall bias of the system will mean that the gravity pull will be against any conviction.

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The solution to this problem is not to dilute due process – but to be open and frank about the factors which will distort the process as a whole.

Indeed, everyone should have the benefit of the strict approach to due process that is accorded to police officers and other privileged defendants.

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It is all very good to say there are systemic problems, some will protest, but what about solutions?

Well.

There is plenty of sensible and constructive thinking out there about other faults in the system – for example, see these two threads which should be read carefully.

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A systemic problem needs a systemic approach to the solution.

Picking on any individual element of the system will not be sufficient, as long as other elements still tend towards injustice.

Accepting the importance of a systemic approach – and of the existence of system (or institutional) racism – will be for many an intellectual and emotional pain barrier.

Racism in legal systems is not just about the wrongness of individual acts – but a realisation of the impacts of swarms of wrongful acts which means that – unless there are exceptional circumstances – white police officers will get away with whatever violence they can against black people. 

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Colin the Caterpillar and the Art of War – why it is sometimes sensible not to enforce your legal rights

17th April 2021

Marks and Spencer has decided to add to the gaiety of the nation by issuing a legal claim in respect of Colin the Caterpillar, a chocolate cake.

The actual legal claim does not appear to be publicly available, but the news reports are that the action was launched in the last week at the high court.

Marks and Spencer is quoted as saying:

“Love and care goes into every product on our shelves. So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value”. 

It must have seemed a good idea at the time.

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Hilarity has ensued.

The respondent to the claim, Aldi appears not to be taking the legal threat seriously.

And nor are many people on Twitter and other social media.

This mash-up of our old friends at Handforth parish council stood out in particular:

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This has all the signs of a publicity disaster for Marks and Spencer.

So why did Marks and Spencer issue the claim?

And what should the company have thought about before bringing the action?

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There is no doubt that Colin the Caterpillar is valuable to Marks and Spencer.

The product has recently celebrated its thirtieth birthday.

And Marks and Spencer have been long aware of competitors’ selling similar products, with the store itself telling us this on its dedicated Colin the Caterpillar page:

“We were the first to retailer to sell a caterpillar, with many supermarkets since trying to emulate this crowd-pleasing cake”.

Colin also has his own Wikipedia page.

And not only does he have these pages, he also has registrations on the trade mark registry.

(Trade mark has two words, by the way – we are not Americans, thank you.)

From a quick (no-exhaustive) search, it would appear that the term ‘Colin the Caterpillar’ was registered in 2009 – though given it had been on sale previously it may have had other intellectual property protection beforehand.

 

This search also showed that last year in 2020 there was a further registration for Colin’s packaging:

The happy news can also be revealed that Marks and Spencer has also registered the term Connie the Caterpillar – though not her packaging.

All three registrations are in respect of class 30:

These registrations in practice and in principle confer a commercial monopoly in products within that class.

(Please note: although I have general knowledge of trade mark law, I am not a trade mark specialist, and there will be things I will have missed – and I am happy to hear from any trade mark specialists in the comments below.)

Here it is important to note that what is protected with these registrations is the name and the packaging of the cakes – and not the cakes and their ingredients themselves.

Colin the Caterpillar and his box are protected, not the concept of a chocolate roll with a happy face on it.

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One of the problems with trade mark law and practice is, in very general terms, that if a protected thing becomes too generic, you can lose the legal protection.

That is why trade mark holders often seem over-vigilant in asserting their legal rights.

Disney for example will assert their rights fearlessly, despite the ridicule and opprobrium.

Readers of a certain age will also remember letters to the press from Portakabin.

No doubt Aldi itself has its own trade mark lawyers who will send out stiff letters to infringing competitors.

(Indeed there are marks registered to various Aldi entities that presumably they would want respected.)

And as Marks and Spencer itself admits on its own website, there are other stores seeking to ’emulate’ the Colin cake.

One tweeter helpfully provides us with examples:

As does another:

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So: the commercial predicament of Marks and Spencer was as follows.

The company had a popular, valuable and distinctive well-established product.

This was a product that took expense to make and also to promote.

The product was protected with registered trade marks for both its name and its packaging (as well as, no doubt, other intellectual property protections such as ‘passing-off’.)

The company faced competition from other stores with similar products.

Some of these rival chocolate caterpillars had similar names and packaging.

What was a company in that position do?

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Here we come to the old distinction between having a legal claim and asserting it.

In essence: just because you have a legal right, it does not necessarily follow that it should be asserted or enforced.

And if a decision is made to assert and enforce a legal right, you have to think through the implications and reactions.

Some companies like Disney will know there is a negative reaction to their enforcement of legal rights – but in such cases the cost-benefit analysis is that the rights are too valuable to lose to the public domain.

And such a robust approach is common in industries where the commercial value is largely in intellectual property.

A cartoon mouse and a portable cabin are not especially complicated things – so what is bought, sold and licensed is often the intellectual property of thing, rather than the thing itself.

And much the same can be said of a long chocolate roll decorated with sweets and icing.

One can imagine how the commercial and legal teams at Marks and Spencer knew that competitors with products with similar names and packaging was creating a commercial and legal risk.

It may well be Cuthbert today, but tomorrow it could be Colvin, and before they knew it there would be Colin the Caterpillars everywhere in every store.

And Colin the Caterpillar’s registration renewal was coming up in 2028. 

What else could they do?

#SaveColin

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But.

They should have thought it through.

Presumably there had already been pre-action correspondence between the parties – it is rare for a company to issue a claim in the high court without setting out the case first in correspondence, and there are costs implications if a party does.

And presumably Aldi had denied the claim in correspondence.

Aldi thereby knew what was coming – and not only its commercial and legal departments, but also its media teams and external PR advisers.

Marks and Spencer do not appear to have issued a press release about the claim, but somehow, some way the media soon knew about the claim.

Perhaps this was because of a vigilant court watcher, or a tip-off from somebody, or even part of a media strategy: who knows.

But once the claim was issued at the high court, the dispute went from one set out in private and confidential correspondence between the parties – and into the public domain.

In essence: you lose control of the story.

And when the story is as media-friendly as about chocolate caterpillars called Colin and Cuthbert then there is a high probability that the media will become aware.

But from the news reporting it seems that Marks and Spencer have been caught unawares – while the Aldi press office is having a party with social media generally.

So the question has to be asked: was/is protecting the Colin the Caterpillar name and packaging worth it?

Unlike a cartoon mouse or a portable cabin, Colin the Caterpillar does not go to the heart of Marks and Spencer.

Had Aldi promoted an own-brand range of goods called, say, St Michelle then that would have been different.

And – and I defer here to trade mark lawyers – it may have been perfectly possible to renew the trade mark in 2028 even taking the (current) challenge of Cuthbert at its highest.

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A view had to be taken on the risk of litigation against the risk of not litigating.

As the Art of War showed (and that is still the best practical guide to civil litigation) being able to attack is not the same as it being a good idea to attack.

Here one can ask McDonalds about McLibel – or the British Chiropractic Association and its illiberal and misconceived claim against Simon Singh.

And if the decision is made to litigate then a claimant must be prepared for what can happen next – in terms of commercial and media matters, as well as at law.

This is not to say that people and companies should not assert and enforce their legal rights – indeed, that is what legal rights (and lawyers) exist for – but that the decision to do so is always distinct and separate from being able to do so.

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Declaration: as the blogger ‘Jack of Kent’ I helped co-ordinate the defence campaign in British Chiropractic Association v Singh and I practise in media law as a solicitor, although not in respect of chocolate caterpillars or supermarket stores.

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The judges are only the ‘enemies of the people’ when it suits the government

14th April 2021

For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.

The view is that that it is no business of activist judges to interfere with what ‘the people’ want.

It is a view that led the London government to oppose the supreme court determining the two Miller cases.

It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.

But it is a shallow view, adopted out of convenience and partisanship.

For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:

See Joshua Rozenburg’s detailed piece here.

Also note the response of the London government’s former chief legal official:

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From a political perspective, this referral prompts mixed feelings.

My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.

As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.

But a political view is not always the same as a constitutionalist perspective.

And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.

(Whether those should be the constitutional arrangements is a different question.)

It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.

Either the supreme court is a constitutional court or it is not a constitutional court.

And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.

A constitutional court is not and should not be regarded as an imperial court.

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The great con trick of the politics of criminal law and policy

 6th April 2021

Anyone who knows and cares about the criminal justice system in England and Wales knows that the system is collapsing – and that the word ‘system’ is itself hardly still applicable.

On the face of it, however, this presents a paradox.

For we have a government – with loud and shouty political and media supporters – committed to ‘Law and Order!’.

You would think that a government with such a stated priority would ensure that the substance of policy would have some correspondence to the rhetoric of its politics.

You would be wrong.

For, as this blog has averred elsewhere, there is a distinction – a dislocation – between the politics and the actuality of the criminal justice system.

It is easy for a politician to get claps and cheers with demands for ‘tougher penalties’ and ‘crackdowns on crime’!

Time-poor political reporters will type easily about ‘new laws’ and ‘longer sentences’ and so on.

And voters will nod-along, as they are fooled into thinking some useful thing is being done.

But there is no point having tougher and tougher penalties, and longer and longer sentences, and more and more laws, if the criminal justice system itself is not working.

As the former attorney general Dominic Grieve sets out in this article, the reality is that the system is halting and crashing.

Part of the problem is lack of cash – and for the the reasons Grieve submits.

But another part of the problem is a lack of policy seriousness – an assumption that it ultimately does matter that the criminal justice system comprises a motley of inadequate court buildings, demoralised staff, badly let contracts, ancient IT systems, health and safety horrors, a general lack of safety for everyone involved, and a general drift of the system towards discharging greater re-offending, and not less.

If you invited a demon to devise the worst possible state of affairs in the criminal justice system the current situation is pretty much what you would get.

But: ‘new laws’ and ‘longer sentences’ and ‘tougher penalties’ and ‘crackdowns on crime’!

Slogans that are like loose gear sticks and brakes, not attached to any other part of the vehicle.

Perhaps the only consolation is that such an absolute system failure tells against England and Wales becoming, in practice, an authoritarian state.

But it is not only authoritarian states that need a functioning criminal justice system – modern liberal democracies need working criminal justice systems too.

And so we have a system that should satisfy nobody – other than of course, dishonest purveyors of easy criminal justice solutions: fraudsters of modern politics.

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The life and death of Smiley Culture – who died ten years ago this month during a police raid – and what happened next

 31st March 2021

Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.

The cause of death was a knife wound – which the police said was self-inflcited.

Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.

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Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.

Have a click and listen and watch.

The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.

Police Officer especially caught a certain mood about the police’s attitude.

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Here is the singer posing outside a south London police station on the cover of the single:

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The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.

That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.

But this – horrifically – was real, not a fiction.

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The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.

So what happened with his case?

Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.

After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.

(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)

According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:

‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.

‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’

The majority of the jurors accepted this as the explanation.

The jury’s verdict is here – on a page written about the case by the barrister for the family, Leslie Thomas QC.

As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.

But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.

She was quoted as saying:

 ‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.

‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.

‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’

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That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.

Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.

As Thomas set out:

‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.

‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.

‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’

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The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):

‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:

‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.

‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.

‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.

‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.

‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.

‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.

‘Notes to editors

‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.

‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.

‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’

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So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.

The coroner, in turn, also made recommendations.

Thanks to a tweeter, we have what appears to have a formal record of the recommendations:

Here it is, line 208 in a table in the chief coroner’s report:

This accords with the Surrey address and the date, and so presumably is indeed the recommendations made by the coroner.

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Smiley Culture was just one of hundreds of people who have died in police custody or during contact with the police.

No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.

And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.

But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.

Here is the FullFact analysis of the lack of prosecutions.

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Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.

But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.

And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.

So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.

I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.

I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.

It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.

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‘We are not public servants’ and ‘policing by consent is not a duty’ – the disturbing and telling views of a police officer

27th March 2021

Here is a tweet.

https://twitter.com/FedGlos/status/1375610964314296321

The tweet purports to be from the chair of the Gloucestershire branch of the Police Federation.

This description must be true, because a tweet from that account was RTd just hours before by the account of the Gloucestershire Police Federation – and it can be assumed that they would not RT an imposter.

And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).

So, yes, it is a real tweet.

A real tweet by a real chair of a real police federation.

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Having established the tweet’s authenticity, let us now look at its content.

The tweet states that the police are not public servants.

More exactly that ‘technically’ the police are not public servants.

As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.

That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.

Crown servants – and others employed by the state in whatever legal form – are public servants.

Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.

The reply denies that this is the case.

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But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.

Here the tweeter errs again.

If one actually reads the once-famous Peelite principles of policing, you will see this as the second principle:

‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’

Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.

As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.

Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.

But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.

This, like the tweeter’s other distinction, is itself worrying and telling.

Policing by consent is not an optional nice-to-have in modern society – it is foundational.

That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.

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Perhaps the tweet was a just a slip, not to be taken seriously.

(Though, remember the police themselves are often not so forgiving of the slips of others.)

Perhaps there will be a clarification, or something.

Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.

That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.

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You say you want a ‘written constitution’? Here are four online places where it is already written down.

26th March 2021

Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.

Having a written constitution, it would seem, would just make things better  – rather than, as is my view, probably make things just as bad but differently.

(On my scepticism about written constitutions as a panacea see my Prospect piece.)

But this post comes at the topic from a different angle.

Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.

And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.

Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.

Note, however, that each of these are practical rather than academic or theoretical materials.

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The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.

Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.

You can click and read the pdf here.

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So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.

Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.

This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.

You can click and read the pdf here.

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We move on now from the executive to the legislature, that is parliament.

The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.

More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.

Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.

You can click and read it here.

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And now, finally to the judiciary.

In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).

The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.

This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.

A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.

You can read Part 54 here and its attendant practice direction here.

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Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.

Enjoy clicking and reading.

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