Category: Punishments and Prisons

Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion

28th October 2024

In every voice: in every ban,

The mind-forg’d manacles I hear

– from London by William Blake

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Over at Prospect I have done an article on the recent announcement about a review into prison sentencing.

Please click and read it here.

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This post will develop the point which was implicit in the Prospect article: the role of public opinion and of public (lack of) thinking in prisons (lack of) policy.

There are, of course, mental prisons as well as physical prisons – the ‘mind-forg’d manacles’ described by William Blake.

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These prisons-of-the-mind are at least as difficult to break out of than any high-security prison.

The mental prisons exist on a macro scale – in terms of political and media discourse – as well as in personal habits of thought.

And the one particular notion that has the most purchase in prisons (lack of) policy is that a prison sentence for a term of years is a starting point for a non-trivial offence, and that any deviation from this norm must be wrong.

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Stating this notion critically does not mean that the opposite is true: that imprisonment is inherently wrong.

Indeed, there are certain exceptional crimes for which long sentences – even life tariffs – are justifiable.

But in the main, it is difficult to see what good a long prison sentence does.

Even the standard justification that it takes a person off the streets is not convincing in the grand scheme, as of the 80,000 inmates currently in prison only about 80 have whole life tariffs. At some point – every day, every week – many are being released back on to the streets to replace the ones taken off.

As has often been said, prison is an expensive way of making people who do bad things more likely to do bad things.

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Here – if you can forgive me – I would like to quote an introduction I did for a post some time ago at the Financial Times:

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”Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise?

“The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer.

“A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions.”

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In essence, if prisons did not exist as a form of punishment, few would invent it.

And in the past, prisons – or gaols – were places where people were kept pending some ultimate outcome, such as awaiting trial or sentence in a criminal matter or the discharge of a debt in a civil matter.

Prisons were usually not, in and of themselves, the punishment, but a means to an end.

Of course, in criminal matters, those ends were once rather violent, either in a corporal or a capital sense, or otherwise life-changing, such as transportation.

And imprisonment is certainly preferable to those sorts of barbarity or extreme sanctions.

But is it the best starting point now?

For many, the deterrence is detection and conviction, not imprisonment.

For others – up to about 80,000 – the sentence did not create a deterrent effect.

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One day perhaps – although such predictions can be quite wrong – people will consider routine lengthy imprisonment with the same bewilderment that we today treat chattel slavery or witch trials. As something which only makes (a kind of) sense in a different mental universe, a different mentalité.

One day perhaps people will also think the same about our current drugs policy – the failed ‘war on drugs’ – which is closely connected with many aspects of our criminal justice system.

Perhaps.

But in the meantime, the appointment of a well-regarded former justice secretary to this timely review into sentencing is a Good Thing.

It may even signal to a broader possible escape from this prison-of-the-mind.

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The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome

8th July 2024

The appointment of James Timpson as prisons minister is welcome – indeed it is the most welcome appointment to this position that any sensible person can imagine.

But there are a couple of serious obstacles that he will need to overcome.

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Before those two obstacles are described, however, let us remind ourselves of the Tale of Two Timpsons, for it perhaps tells us something significant about what is now our governing party.

When Edward Timpson – the younger brother of James – was selected as a candidate by the Connservative Party in 2008, this was the infantile response of the Labour Party:

Edward Timpson himself referred to this dreadful, crass campaign in an interview in May this year when he announced he was standing down from parliament:

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So one thing the appointment this week maybe signifies is that the now governing party is rather more politically mature.

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And the appointment also signifies a more mature approach to prisons policy.

(We can only hope that one day there is a similarly mature appointment in respect of drugs policy.)

James Timpson has an outstanding record in respect of rehabilitation of offenders, both at his Timpson business and otherwise.

He is, for example, chair of the Prison Reform Trust:

A post he wrote on appointment is worth reading here.

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“We’re addicted to sentencing, we’re addicted to punishment,” he has said more recently.

“So many of the people in prison in my view shouldn’t be there. A lot should but a lot shouldn’t, and they’re there for far too long.”

This is therefore a sensible and enlightened appointment which deserves hearty applause.

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But.

Timpson has (at least) two obstacles in his new position – and it cannot be certain that he can overcome them.

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The first obstacle is that the track record of business people appointed as ministers indicates that they tend not to be successful as politicians.

There was John Davies under then Prime Minister Edward Heath, and he was not a conspicuous success.

There was David Young under then Prime Minister Margaret Thatcher who, despite been adept at telling her what she wanted to hear (“Other people bring me problems; David brings me solutions,” she is quoted as saying), was otherwise not a conspicuous success.

There was Archie Norman under then Leader of the Opposition William Hague, and he was not a conspicuous success (“I was the first FTSE-100 chairman to sit in the House of Commons and I will almost certainly be the last,” he said afterwards).

And there was Digby Jones under then Prime Minister Gordon Brown, who was also not a conspicuous success.

One reason for none of these business people being successful as politicians is that being good at business does not automatically mean that one will be good at politics.

Being good at politics requires specific skills – and there is no particular reason why a business person will have those skills.

That said, James Timpson is more than just a good businessman, he is a committed and knowledgable prison reformer – and this may make the difference where other business people have failed as front bench politicians.

But the reason this really matters in this instance is because of the second obstacle.

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The second obstacle to James Timpson being successful as prisons minister is the structurally and politically weak position of being a mere minister of state in the Ministry of Justice – both against the Treasury and in respect of the news media.

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Since 2005 prisons have been under the Ministry of Justice, having been moved over from the Home Office.

To an extent this was a good thing, for the less power the Home Office has over anything, the better.

But it was also a bad thing, for the it turned the Ministry of Justice from what was the old Lord Chancellor’s Department into a “spending” department.

And not only a spending department, but a small spending department – the worst of both possible worlds.

Part of the problem the Ministry of Justice has had since 2005 – under all administrations – is its weak position vis-a-vis the Treasury.

At least the Home Office had some departmental heft and a senior cabinet presence in its battles for public money; the Ministry of Justice almost has none.

And Timpson will not even be head of this department – the Lord Chancellor and Secretary of State for Justice is Shabana Mahmood (another welcome appointment).

Mahmood in turn will be fighting for money for the courts system and legal aid, as well as for probation and prisons. This puts Timpson further back in the queue for public money – to the extent any changes he wants to bring about requires investment.

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And it will not only be the Treasury that will be need to be won over.

The right-of-centre news media is still wedded to the notion that prison works. They are, to use a phrase, “addicted to sentencing…addicted to punishment”.

It will take only one unfortunate incident of something done by an early released prisoner, and there will be a news-media fire storm.

Such a prospect would be daunting for even a seasoned politician saying prison works.

Those with long memories will recall how prisons failures engulfed David Waddington, one of the biggest hangers-and-floggers ever to be Home Secretary:

When prisons and probation things go wrong they are easy copy for time-poor news media. The screaming headlines will write themselves.

It is one thing to have warm applause and general goodwill on appointment, it is another thing when there is a horrific story on the front pages.

Being a prisons minister who believes in prisons working is hard enough.

Being a prisons minister who wants to achieve fundamental yet enlightened change is far harder.

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So the task now before James Timpson is immense: to quickly become an effective Whitehall and Westminster politician so as to bring about a change in policy direction, in the faces of both a parsimonious Treasury and potential outright news-media hostility.

He has to bring about fundamental change to Whitehall’s long-settled prisons policy – one of the most difficult ‘asks’ in politics.

Yes, it is a brilliant, heartening appointment.

And if anyone can do it, James Timpson can. But it will not be easy.

One can only wish him good fortune.

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The issue of payment for prisoners

13th December 2022

Again, here is the introduction to a thing about prisons I wrote at the Financial Times back in 2013:

Nine years later this unthinking or cruel general attitude toward prisons and prisoners remains as widely held as ever.

I blogged about the prisons issue recently, but today I saw a fascinating and informative post which should have the widest possible circulation.

The post is on the issue of payment for prisoners, and it is by Virginia Mantouvalou at the UK labour law blog.

Please click here and read it.

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The punishment of imprisonment, of course, should be imprisonment: that is, the deprivation of liberty.

But for many, it would seem that the imprisonment – the deprivation of liberty – is only the start.

Once the prisoner is inside the prison, the common view appears to be that the prisoner should be treated as badly as possible and that they must endure as brutal conditions as the State can get away with.

Any deviation from this extreme position is caricatured as being akin to prison being a “holiday camp”.

But, if the punishment is the imprisonment itself, there is – for example – no good or logical reason why prisoners should not be paid adequately for the labour they provide – especially for commercial enterprises utilising the available prison labour.

(Performing labour for inadequate or no payment, of course, has its own word.)

At the end of the linked post, Mantouvalou sets out what should happen:

“The leader of the UK prison officers’ union, Mark Fairhurst, said that prisoners should be paid the minimum wage for their workshop jobs.

“The Howard League for Penal Reform has made concrete recommendations on how to have ‘real work’ in prisons: they said that it is desirable for prisoners to work, proposed that it is acceptable for private employers to be involved, and emphasised that prisoners should receive real wages for their work, make national insurance contributions, contributions to a victims’ fund, and pay tax.

“The Guide to the European Prison Rules says that work must be useful, provide fair pay and include vocational training, that people should have some choice over the type of work, and that their working conditions (such as maximum hours and health and safety) should not be below those outside of prison.  It also says that pre-trial, people can be permitted but not required to work, while after sentence, they may be required to work subject to fitness.

“These and other related recommendations need to be taken up and explored seriously.

“At a time of labour shortages and while there is a push to employ more working prisoners to cover these, keeping them trapped in structures of exploitation while in prison and setting them up to fail post-release is unjust.”

There can be no sensible objection to any of this.

But it will not happen – at least not yet.

And this is because too many people prefer to either be unthinking or cruel when it comes to anything to do with prisons and prisoners.

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Prisons will not be reformed until and unless we rethink our views on punishment and retribution

2nd December 2022

Here is the introduction to a thing about prisons I wrote at the Financial Times in 2013:

We are all, of course, familiar with the notion of prisons – and many of us will have Very Strong Opinions about the lengths of custodial sentences:

“Six years! Eight years! Fifteen years! More, more!”

“Higher, higher, higher!”

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But.

For the reasons set out in that Financial Times piece, prisons are a strange as well as counter-productive idea for dealing with most crimes.

Prisons, generally speaking, are an expensive way of making bad people worse.

But the notion of incarceration is so deeply embedded in our collective consciousness it takes real effort to dislodge it.

It was not always like this.

In some earlier times, prisons were where you kept those charged with a crime until their cases could be heard and any sentences – capital, corporal, transportation – could be imposed.

Imprisonment itself was thereby a means to an end, rather than the punishment for criminal activity.

(The position for civil matters was different, with the debtors’ prisons, asylums and workhouses, all keeping certain undesirables out of the way.)

Around 1800 imprisonment became the normal punishment itself for crime – though for many onlookers the loss of liberty was not enough: prisons also had to be as miserable if not brutal as possible.

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And little, if any, thought is ever given to the (innocent) families and dependents of those incarcerated.

If they are thought about at all, it is with a shrug and a vague idea that it is the criminals who are to be blamed and/or that their (innocent) families and dependents are tainted by association.

And so that the innocent suffer becomes an output of the criminal justice system, as well as the protection of the innocent being the system’s supposed purpose.

The state has to destroy innocent lives, so as to protect them.

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There are at least two problems for any reform of prisons.

The first is that imprisonment is central to how society thinks about the punishment of crime.

A convicted person receiving a range of sanctions will still be described “as walking free from court” by outraged newspapers to their outraged readers.

The second is a consensus of what should replace imprisonment, especially given the popular view that retribution is the central purpose of punishment.

Of course, those who pose a danger to others or commit murders and other serious offences against the person should be locked away – and, unlike many liberals, I even support whole-life tariffs in exceptional circumstances.

But until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative.

I was once asked what current day practice would be looked on in the future as akin to how we now see those who facilitated slavery.

My answer, more with hope than expectation, was: incarceration being considered the norm for punishments, with any alternative having to be justified.

Anyway, this post was triggered by reading this piece in the Guardian.

Let me know below what you think – about the points I set out above and the Guardian article, and what you think about prisons and imprisonment as punishment generally.

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What the Ministry of Justice should do with Reading Gaol

30th November 2022

Bill Hicks did this great routine about Jesus of Nazareth coming back to see crosses everywhere:

“Lots of Christians wear crosses around their necks. You think when Jesus comes back he’s gonna want to see a fucking cross, man?

“”Ow.” Might be why he hasn’t shown up yet.

“”Man, they’re still wearing crosses. Fuck it, I’m not goin’ back, Dad. No, they totally missed the point. When they start wearing fishes, I might show up again, but… let me bury fossils with you, Dad. Fuck ’em, let’s fuck with ’em! Hand me that brontosaurus head, Dad.””

Hicks had a point.

The crucifix was a torture device, which was used to ensure the victim had an agonising death.

It has taken about two thousand years of cultural familiarisation for it to be a comforting symbol, which some even place outside schools and hospitals.

“You know, kinda like going up to Jackie Onassis with a rifle pendant on, you know. “Thinkin’ of John, Jackie. We love him. Just tryin’ to keep that memory alive, baby.””

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Perhaps the ghost of Oscar Wilde would have the similar reaction to the calls for the closed Reading Gaol to be now turned into an arts centre:

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It was, after all, where Wilde spent his time incarcerated, serving a sentence of two years’ hard labour, for gross indecency – the crime being consensual homosexual intercourse.

The campaign has the support of the local member of parliament:

The Ministry of Justice, on the other hand, seems to have done nothing since 2014 with this prime real estate in that tent of urbanisation which geographers call the largest town in England.

BBC News tells us that the Ministry of Justice “has previously rejected the plan and said it wanted to “seek [the] best value for taxpayers”.”

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One suspects Wilde would have been generous in his support with this campaign to turn his gaol into an arts venue.

Indeed, that we even associate the prison with Wilde is down to his own writing.

He, of course, immortalised the prison in the title of one of his greatest poems, about the execution and burial of an inmate when he was there:

“In Reading gaol by Reading town
There is a pit of shame,
And in it lies a wretched man
Eaten by teeth of flame,
In a burning winding-sheet he lies,
And his grave has got no name.”
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And in his autobiographical De Profundis, Wilde wrote:

“People point to Reading Gaol and say, ‘That is where the artistic life leads a man.’  Well, it might lead to worse places.”

He then mentions some of those worse places:

“A man whose desire is to be something separate from himself, to be a member of Parliament, or a successful grocer, or a prominent solicitor, or a judge, or something equally tedious, invariably succeeds in being what he wants to be.  That is his punishment.”

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One gets the impression that Wilde would actually quite approve of Reading Gaol being turned into an arts centre, especially with the grudging consent of the government.

(It would be a fitting counterpart to the bank note memorial for that other great figure prosecuted under and broken by the very same vile “gross indecency” offence, Alan Turing.)

Wilde would probably not even rub it in for those working at the Ministry of Justice, for he would regard their mundane civil service jobs as punishment enough.

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Reading Gaol should become a standing reminder of the wickedness of which our criminal law can be capable – against Wilde, Turing, and so many others.

And this would be as an arts venue, and not as a block of flats.

This would also certainly be “better value for taxpayers” than the prison standing idle for another eight years, located next to the touristy plush grounds of the ruined abbey in Reading.

The Ministry of Justice may well know the price that land could command for development, but they do not know that property’s value.

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“Nowadays people know the price of everything and the value of nothing.”

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

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The suggestion that the Prime Minister give evidence to the privileges committee under oath and pain of perjury

2nd May 2022

Did you know there is a Parliamentary Witness Oaths Act?

This 1871 statute – which is still in force – provides among other things that any committee of the House of Commons may administer an oath to the witnesses examined before such committee.

And, while an examination of witness by a parliamentary committee is not a judicial proceeding, it would still be perjury for a person to lie such an oath (or affirmation) – with the penalty being up to seven years in prison.

This information comes from a fascinating and informative article at the New Statesman by Alexander Horne, a former parliamentary legal adviser.

In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.

If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.

(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)

On the face of it, administering such an oath has its attractions.

No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.

Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.

Horne mentions where such oaths have been used:

“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”

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But.

It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.

That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.

And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.

Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?

(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)

Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?

It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.

And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.

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That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.

This is certainly a constitutional problem that needs a practical solution.

The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.

The fear would be that in seeking go solve one constitutional problem, another is caused.

And so the problem remains: what can you do – constitutionally and practically –  with a dishonest Prime Minister?

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POSTSCRIPT

Horne has provided a link to a useful post where he deals with the issues in more detail:

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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The Supreme Court judgment in Majera – court orders have to be obeyed, even by the Home Secretary

21st October 2021

Yesterday, while lawyers and commentators were discussing the recent speech by the Attorney General, the Supreme Court of the United Kingdom handed down a judgment that may be more significant than anything the Attorney General said and what others will say about that speech.

The case is that of Majera – and it is about immigration and deportation, but it is about a lot more than that.

Majera was born in Rwanda and came to the United Kingdom as a child, but in 2006 he was convicted of serious offences, and when in prison he was issued with a deportation order.

He was then released on licence in 2015, but was again detained, and so he applied to the relevant tribunal for bail, which was granted in a court order.

So far, so complicated – though not an unusual set of facts in the ever-expanding caselaw about deporting foreign-born convicts.

But Majera then did something that prompted even more litigation and led ultimately to yesterday’s significant Supreme Court judgment.

Majera volunteered to work in a charity shop.

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You would think that it would be a good thing for a convict facing deportation to contribute to society by doing unpaid work for the public good.

But: no.

This was intolerable for the Home Office.

The problem, however, was that the tribunal order granting bail did not preclude Majera from working on a voluntary basis, but from paid employment or from any business or profession.

(The other bail conditions were strict: Majera could only do voluntary work as approved by his supervising officer – so not any voluntary work but only that which a state agent endorsed, and he was subject to a curfew.)

The Home Office, disregarding the judge’s order, formally notified Majera that he could not do voluntary work – and when objections were made, the Home Office came up with various excuses which they abandoned on legal challenge.

And so Majera challenged the Home Office decisions, as he was entitled to do so.

The Home Office, in response, came up with the argument that the judge’s order on bail was invalid, and thereby void, as it contradicted another statutory provision.

Accordingly, the Home Office contended, it was perfectly open to the Home Office to disregard the judge’s order and impose conditions of their own.

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Majera won his challenge.

But.

The Home Office appealed.

It would seem the prospect of Majera working in a charity shop was so unacceptable that public funds were justified in taking this to the Court of Appeal, and so the Home Office did, instructing a QC to do so.

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The Court of Appeal decided in favour of the Home Office.

Their reasoning was that if a decision is void then, well, it is void.

If the judge did not actually have the power to make the order that was made, then the order disappeared in a puff of legal magic, and it should be treated as if it never happened.

The order would have no effect, by the automatic operation of a lack of law.

Here the appeal judges relied on cases where subordinate legislation and administrative decisions were held to have no legal effect because they were ‘ultra vires’.

Majera appealed, and the Supreme Court agreed to hear his appeal.

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The Supreme Court, in a unanimous decision led by Lord Reed the president of the court, granted Majera’s appeal.

The decision is a wide-ranging survey of the law of ‘ultra vires’ and a detailed critique of vague notions such as ‘void’ and ‘null’ when applied to things that otherwise would have legal effect.

It is a judgment that will repay careful reading.

In essence: the supreme court held that orders of the court were special, and so should not have been lumped together with ‘ultra vires’ subordinate legislation and administrative decisions by the Court of Appeal.

A court order must be obeyed until and unless it is set aside by the court (or possibly overtaken by legislation).

It was not open to the home secretary – or anyone else – to pick and choose which orders were valid or invalid.

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This is a judgment that is significant on its own terms – but (on first glance) it also may be one with wider implications.

For example: one of the government’s current legislative proposals for judicial review is about giving courts the power to make ‘suspended’ quashing orders that would limit the legal effects of a finding of ‘ultra vires’.

Another government proposal is about limiting the scope of judicial review in the tribunal system – and this case shows that it is not only the individuals but the state itself that can take bad public law points in claims and defences.

This may not be a judgment that was intended to contribute to the discussion about judicial activism and the reform of judicial review, but it may be an important contribution nonetheless.

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But it is certainly an important case about the separation of powers.

For just as in a recent judgment in favour of the home secretary, Lord Reed said that is certain cases, the courts should accord ‘respect’ to the home secretary, this case in turn is about the respect the executive – and everyone else – should accord to the orders of the court.

Even the home secretary.

For just as the Lord Chancellor and the Attorney General are warning judges to keep off the executive’s lawn, this is the Supreme Court, in effect, telling the government to keep off the lawn of the courts.

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Some refreshing comments against the glamourisation of serial killers and the woo-woo of criminal profiling

15th September 2021

One of the ugliest aspects of modern culture is the glamourisation – and monetisation – of serial killers.

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In From Hell by Alan Moore and Eddie Campbell, about the Whitechapel murders, an opportunistic salesman sets up stall after the body of Catherine Eddowes is found in Mitre Square:

We then go to the reaction of the investigator Detective Abberline:

And then, in Moore’s footnotes to the story:

Quite.

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The best thing, of course, to read on those killings is Hallie Rubenhold’s The Five.

Here Rubenhold pulls together the extant information about the lives of each of the victims for a sequence of compelling social histories.

Rubenhold explains how the victim’s social and economic predicaments – especially the then-common outdoor sleeping of the Victorian poor – made them easy to kill.

And also how social prejudices about (supposed) prostitution meant the murders were not taken seriously.

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In The Collectors episode of The Sandman, Neil Gaiman and Mike Dringenberg depict a convention of serial killers, with all their braggy self-importance.

But at the end of the convention these proud killers are stripped of their glamours:

And they disperse as pathetic losers.

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It is not just comics.

The serial killer as a figure whose ‘mind’ we are supposed to ‘enter’ is a staple of modern fiction – and modern non-fiction.

Take the pseudo-science of ‘profiling’.

It certainly makes great film and television:

But profiling is mainly woo-woo – at least to the extent to which it is based on individual subjective assessments rather than broad statistical analysis.

(See here and here – but also here.)

And the glamourisation – and monetisation – of serial killers continues.

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So it was against this background when I stumbled on the following YouTube video.

I was expecting more of the same Cracker and Mindhunter tish-tosh.

How wrong I was.

Instead of the usual pseudo-science, Professor David Wilson takes us on a refreshingly sensible and unimpressed guided tour of well-known and less well-known depictions of serial killers.

This is Wilson on Lecter:

“I have encountered serial killers who have tried to scare me, but I wouldn’t be scared by Anthony Hopkins.

“I’d have laughed, frankly, if you’d told me about fava beans and a nice Chianti.”

The video is worth watching from beginning to end – and the end is brilliant (here is the video at 27:54):

Wilson refers to the “trope that we see in a lot of Hollywood movies, that people like me would try and enter the mind of a serial killer.”

He then concludes the video:

“I am not interested in what motivates a serial killer.

“I am much more interested in who it is the serial killer is able to kill.

“If we concentrated our attention on the groups that serial killers constantly target, we would do a lot more to reduce the incidence of serial murder in our cultures, as opposed to any number of offender profilers who claim that they can ‘enter the mind of a serial killer’.

“If you really want to do something to reduce the incidence of serial murder in our culture, let’s challenge homophobia, let’s have a grownup debate about how we police those young men and young women who sell sexual services, and above all, let’s try and work out why the elderly are so vulnerable in our culture because they don’t have a voice and have no power.”

Quite.

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