Monday 25 April 2011

Why are our judges so free to misinterpret the law?

Used to be that judges were all mad old right-wingers straining at the leash to hang and flog everyone who appeared in front of them – including defence counsel and every member of the jury.

They were, if you like (and I do) as brutal but fair as you can be when you’re to the right of Genghis Khan: scary figures of authority whose savagery was held in check by the need to interpret the law of the land sensibly and justly. The one thing we could be sure of was that they were basically on the side of (a) common sense and (b) the rest of us.

When did these doughty, fire-breathing, black cap-donning misanthropes disappear? Within living memory we used to have judges who could see nothing wrong in asking members of the jury whether Lady Chatterley’s Lover was a book they’d like their wives or servants to read (okay, he was a QC at the time, but he went on to become a judge). When did they get replaced by the modern type of feel-good liberal who’ll bend over backwards and disappear up his own fundament in order to interpret European law in a way that only seems to benefit crooks, scoundrels, illegal immigrants, rapists, child-killers and super-rich celebrities from the worlds of sport, TV and finance who can’t seem to manage to keep their peckers in their pants for more than five minutes at a time? (“Oops, there it goes again! Mind of its own!”).

In the United States, it’s even worse. Last month, some ghastly liberal judge prevented the Republican Governor of Wisconsin from curbing public sector wage-bargaining powers following some truly disgusting, anti-democratic shenanigans by union members and locally Democrat politicians. (Barack Obama had already broken tradition by speaking out on behalf of the left-wing wreckers – classy guy.)

Now, I love the concept of an independent judiciary to death: I want some form of protection from the whims of whichever member of our ruling liberal elite happens to have won the latest round of the endless game of “pass the parcel between people who aren’t that different really” that British politics has degenerated into.

But judges these days don’t seem much interested in protecting decently-behaved, law-abiding citizens – they seem to see it as their job to offer blanket protection to those who prey on the innocent, as well as the sexually incontinent super-rich (recently, an MP used parliamentary privilege – bless it! – to reveal that one of the chief architects of the credit crunch, Sir Fred Goodwin, had been granted a super-injunction to stop him being identified as a banker – although a quick search on Google reveals what was really going on). Judges do this by twisting existing laws - often foreign ones - into pretzel shapes to reflect their own left-wing prejudices.

Here’s a question (put by someone who is infinitely ignorant about the law, but is very pleased that it’s there): why are the rules under which we live so endlessly open to interpretation? Why are so many cases glorified roulette games whose outcome is dependent not on the innocence or guilt of the defendant (or in the case of super-injunctions, plaintiff) but on whichever newspaper the presiding judge happens to take. (Daily Mail – don’t forget to pack lots of vaseline: Guardian – no need to cancel that dinner reservation).

The current system seems to place an awful lot of power in the hands of a small number of judges whose interest in protecting well-behaved Britons can’t always be relied on. Is it really impossible to draft laws in such a way that when someone goes to court, they have a pretty clear idea of what the outcome will be? Put it another way, why has a law been drafted in such a way that any TV presenter/footballer/banker can stop any media outlet within the Van Allen radiation belt from reporting that they’ve been shagging a prostitute/an employee/a colleague/a hedgehog? I mean, even David Cameron has spoken out on this subject – that’s how screamingly obvious it is that something is very, very wrong. 

Yes, the law has always been a bit of an ass. But now we really need to look at ways of stopping assholes from misinterpreting it.

7 comments:

  1. I have had four experiences of judges:

    1. I apprehended a burglar once in my flat in London and at the subsequent hearing at Horseferry Court the judge asked what kind of state the defendant was in. The barrister said he had drunk too much "Rum and Pep" [Bacardi and Peppermint Cordial]. The Judge said "What a revolting drink. Two years."

    2. At my divorce hearing in Sydney Australia the judge made me stand in the dock for 30-minutes while he worked out my alimony [which at the time impoverished me]. Two days before the British Lions had beaten the Australians 2-1 in a Test Series and the Judge was on the selection panel.

    3. In the early 90's 5 flatholders in St Johns Wood [I was one] were involved in a bitter dispute with the managing agent. Two of the flatholders were barristers and one was represented by "Two-Dinners" Goodman. The MA t was a solicitor. The Judge was relatively young and utterly out of his depth and found in favour of the defendant. It cost us £6,000 each and three months later the defendant was declared a vexatious litigant and disbarred.

    4. I have a friend who is an ex-judge. He is now 86-years old and is a former Typhoon pilot in WW2 [the kind of guy who kept the Wehrmacht honest while the Allied armies generally buggered about]. I live in Scotland where I have another chum - an ex- Procurator Fiscal - who was a navigator on Lancasters. Both wise, both delightful.

    Draw your own moral. Experience of life might come into it. Modern politicians?
    Tuesday, April 26, 2011 - 08:56 PM

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  2. Sorry. Typo. "Ma.i" should read "defendant"' I have been to my "opthmatological" I have now tried to spell this word twenty ways and still can't get it. I have been to the eye surgeon this afternoon and the orbs are full of drops. Many apologies.
    Tuesday, April 26, 2011 - 09:10 PM

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  3. No need to aplogogsie.

    I am really really hoping to get to the end of my days without ever knowingly making the acquaintance of a judge for any reason whatsoever, especially as the judgments of some of the ones we have now would suggest they regularly consume psychotropic drugs.

    My God, isn't Andrew Marr an absolutely disgusting hypocrite - speaking as a former BBC journalist, I have no idea how he can front up at work and look his colleagues in the face. For a journalist to use the law to suppress the public's right to know something about them is about as low as you can get. I'm surprised by how shocked I am - but I am!
    Tuesday, April 26, 2011 - 10:20 PM

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  4. The really shocking aspect of the Andrew Marr disclosure is that he actually managed to find someone willing to have an affair with him. Then my mind wandered to John Prescott and then I willed myself to stop thinking about these things.
    Wednesday, April 27, 2011 - 08:41 AM

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  5. Your blog takes people in odd directions. I never thought I'd try to defend the British judiciary but a couple of points are worth making.

    First, English law has never been static. It's a feature of the common law system. In cases other than a simple determination on the facts, judges are obliged to take into account previous case law, as in the case you cite. That's a long-standing tradition but it means that the law evolves as cases come and go to test its principles. Add to that the more recent development of a body of EU law and ECtHR and ECJ judgements, which take precedence over domestic law, and the picture gets more complex leaving judges with their discretion pretty well fettered.

    It's not a question of tighter legal drafting at Westminster either. Most EU law is badly drafted and judgements delivered by people who would probably not pass law degrees here, but at the moment we're stuck with it. Short of denouncing the ECHR, negotiating a way to avoid ECJ jurisdiction, which would probably mean renegotiating our EU membership, we're stuffed. The Tories had a commitment to claw back powers from Brussels through replacing the Human Rights Act with a measure which re-restablished the supremacy of English law. Lawyers up and down the country were looking forward to seeing how they would pull off that feat of leger de main only to find that it had gone into the Coalition dustbin.

    The present judge talent poll does include some lefties and Hello Clouds Hello Sky weeds, as well as the EU-friendly. It's not surprising as they were taught by the same generation of teachers with a conscience we had, went on Vietnam marches and smoked a bit of dope too. But on this evidence, the verdict on the judiciary is not "Not Guilty M'Lud" but that old Scots verdict of "Case Not Proven". And I can't tell you how much it pains me to say so.
    Wednesday, April 27, 2011 - 01:47 PM

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  6. Points all taken, Ex-KCS – but if European law is so badly drafted and open to such a wide range of interpretations, surely this should allow our judges to interpret it in a sensible way, rather than, as in the case of all the farcical super-injunction rulings, in as deranged a way as possible.

    I also understand, dimly, the process by which our laws evolve: but, given that we have so many laws, and that many of them are evolving as we go along, how come we have so many mad judgments? What I’ve never understood – and I suspect I may never understand – is why our laws allow misery and grotesque unfairness to be visited on people who don’t deserve it. Why in the name of God hasn’t anyone been imprisoned for possessing a knife, despite all promises to the contrary? Why can it take years to stop gypsy gangs from making the lives of villagers an utter misery? Why are our libel laws so barmy – is the law at fault, or are our judges at fault? Why are so many divorce settlements so blatantly, screamingly unfair? Why are pissed-up morons who kill people by driving under the influence (often without a license) often able to get away with piddling sentences?

    Is this the fault of mandatory sentencing policy – or the fault of wet, liberal judges refusing to spurn every opportunity to feel good about themselves?

    Still, we’re not as bad as the States, I know, where liberal judges have been enthusiastically misinterpreting for decades to reward criminals and special interest groups, while placing the law-abiding in harm’s way.

    Still, a bit of good news today – first, Eurofanatic Ken Clarke has been telling the Council of Europe that the European Court needs to give more weight to domestic legal systems, and that it needs better judges. Will this have an effect? (I expect you actually know the answer to this, so I won’t press.) A bit late in the day for old Fatso to rediscover His Britishness after decades of toadying to Fritz and Jean-Luc and Pedro, but it’s a start, I suppose.

    “Short of denouncing the ECHR, negotiating a way to avoid ECJ jurisdiction, which would probably mean renegotiating our EU membership…” Bring it on!!!
    Thursday, April 28, 2011 - 06:51 PM

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  7. Points all taken, Ex-KCS – but if European law is so badly drafted and open to such a wide range of interpretations, surely this should allow our judges to interpret it in a sensible way, rather than, as in the case of all the farcical super-injunction rulings, in as deranged a way as possible.

    I also understand, dimly, the process by which our laws evolve: but, given that we have so many laws, and that many of them are evolving as we go along, how come we have so many mad judgments? What I’ve never understood – and I suspect I may never understand – is why our laws allow misery and grotesque unfairness to be visited on people who don’t deserve it. Why in the name of God hasn’t anyone been imprisoned for possessing a knife, despite all promises to the contrary? Why can it take years to stop gypsy gangs from making the lives of villagers an utter misery? Why are our libel laws so barmy – is the law at fault, or are our judges at fault? Why are so many divorce settlements so blatantly, screamingly unfair? Why are pissed-up morons who kill people by driving under the influence (often without a license) often able to get away with piddling sentences?

    Is this the fault of mandatory sentencing policy – or the fault of wet, liberal judges refusing to spurn every opportunity to feel good about themselves?

    Still, we’re not as bad as the States, I know, where liberal judges have been enthusiastically misinterpreting for decades to reward criminals and special interest groups, while placing the law-abiding in harm’s way.

    Still, a bit of good news today – first, Eurofanatic Ken Clarke has been telling the Council of Europe that the European Court needs to give more weight to domestic legal systems, and that it needs better judges. Will this have an effect? (I expect you actually know the answer to this, so I won’t press.) A bit late in the day for old Fatso to rediscover His Britishness after decades of toadying to Fritz and Jean-Luc and Pedro, but it’s a start, I suppose.

    “Short of denouncing the ECHR, negotiating a way to avoid ECJ jurisdiction, which would probably mean renegotiating our EU membership…” Bring it on!!!
    Thursday, April 28, 2011 - 06:51 PM

    ReplyDelete