Postscript (The Rule of Law)

'The law as I see it, has two great objectives: to preserve order and to do justice; and the two do not always coincide. Those whose training lies towards order, put certainty before justice; whereas those whose training lies towards the redress of grievances, put justice before certainty. The right solution lies in keeping the proper balance between the two.' (Lord Denning, Master of the Rolls 1962-1982). He also said 'It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.'

Er, nope. The law has one great objective, which is to apply the law, not to develop the law through judicial activism or to decide on public policy ('preserve order'). Justice consists of applying the law. If the law needs to be changed that is the job of Parliament, not judges. Even in relation to the so-called development of the common law, judges do not develop the law, they merely apply existing common law principles to new situations; they 'discover' existing law rather than develop new law (supposedly). In other words, judges have never had any authority to change the law; their only authority is to interpret existing law.

It is clear that the House of Lords Act 1999 was in breach of the Treaty of Union 1707 (indeed, that the Act was void under the Treaty) but that the Committee for Privileges, which consisted of both judges (Law Lords) and politicians (members of the House of Lords), decided to ignore that fact. Why did they do this? One can only assume that they did it because they believed that they were acting in the public interest; the greatest good for the greatest number of people. This sounds eminently reasonable.

But let's consider the matter further. The Committee was asked to consider the legality of the House of Lords Act 1999; it was not asked whether it thought it was in the public interest or not. Yet three Law Lords, knowing this, decided to do what they considered to be in the public interest rather than simply apply the law to the facts. What are the implications of this?

In the first place, if a judge is prepared to ignore the law and make a decision purely on the basis of his idea of the public interest, he has ceased to be a judge and has become.... a politician. He is breaking the most fundamental of constitutional safeguards - the separation between the legislature and the judiciary (i.e. between those who are elected to decide what the public interest is, and make laws accordingly, and those who are employed to apply those laws with impartiality). When one judge, or a number of judges sitting together, can both make the law (in effect) and punish you for breaking that law then you are living in a tyranny. It's as simple as that. In the second place, if a judge is prepared to ignore the law when faced with a constitutional issue of the first importance and of high public visibility, how much more likely is it that he will do so when faced with an issue of lesser importance, such as when deciding whether or not to convict you for a minor offence?

Consider this real-life example. You have a minor verbal spat with, say, a traffic warden, who summons the police. You are charged with committing an offence; say, conduct likely to cause harassment, alarm or distress under s.5 Public Order Act 1986. This is quite possible and you might remember the case where a youth was arrested and charged with a public order offence because he told a mounted policeman that he thought his horse was gay. You didn't commit the offence but the police decide to nail you because, in their view, you 'gave them lip' and they want to teach you a lesson (as in the 'gay horse' case). You are duly summoned to appear before the local Magistrates' Court. The traffic warden and police cook the evidence between them to get you convicted, saying that you went berserk and were shouting and screaming in public. Not to put too fine a point on it they commit perjury in order to give you a criminal record. Unfortunately for them there is close-up CCTV evidence which shows you talking quietly to the traffic warden and police while members of the public (elderly ladies and so on) walk past only a few feet away without batting an eyelid (Question: How can it be said that you were likely to cause alarm and distress when you demonstrably didn't?). Shockingly the Magistrates find you guilty and give you a suspended sentence. Why did they do it? Well, they saw the conclusive CCTV evidence so they know what actually happened; there can be no doubt about that. The reason they found you guilty is because, while they were fully aware that you did not actually commit the offence, you did call a traffic warden a 'twerp' and they think it is better to give you a suspended sentence than to find that the traffic warden and police lied in court*; in their view that would not be in the public interest. The choice, as they see it, is between causing you some 'minor inconvenience' and doing what they actually ought to do, which is to have the traffic warden and police charged with perjury.

*Judges have no compunction about branding ordinary people liars (in public and with no right of reply).

Perhaps this is not a serious issue in the grand scheme of things, although for the police to commit a criminal offence in order to criminalize an innocent person is actually very serious, as is the conscious failure of the courts to hold them to account for doing so. But what if the police (largely as a result of their own incompetence) blow a young man's brains out on the London tube under the mistaken impression (and perhaps not even that) that he is a suicide bomber, then lie about it, and the courts decide not to pursue the matter - in the public interest? What if the courts decide not to allow servicemen who were deliberately exposed to radiation from nuclear tests in Australia shortly after World War II, and who develop cancer as a result, to sue the government - in the public interest? What if the courts decide that our soldiers are not covered by the Human Rights Act while serving in Iraq but that Iraqis are (and can sue in UK courts as a result) - in the public interest? What if a young boy becomes ill, dies unnecessarily as a result of medical negligence, the records exposing that medical negligence are deliberately falsified and the courts then deny his parents a remedy - in the public interest? What if a judge finds a man guilty of a 'race-hate crime' when clearly aware that he is innocent* - in the public interest - and that man commits suicide as a result?

Judicial murder in the UK – an example

‘I am sorry if you don’t like my honesty but, to be fair, I don’t like your lies.’

Contents

Public notice
Introduction
David Wilson and religious hatred - bending the law on racial hatred
The missing finding of fact
The right of free speech under Article 10 of the European Convention on Human Rights
Were the actual findings of fact justified?
Can a criminal court make assumptions about a man based on his membership of a group?
Hey judge! I think you forgot the Christians! Again!
Summary of shortcomings
Why is this murder?
Conclusion
The bad news
Further action
Appendix 1 - Attempting to pervert the course of justice
Appendix 2 - Misconduct in public office

Public notice

1. In the words of Albert Einstein: 'The search for truth implies a duty. One must not conceal any part of what one has recognized to be true.'

2. 'I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.' - Elie Wiesel (born 30/9/1928), a Hungarian-born Jewish-American writer, professor, political activist, Nobel Laureate, and Holocaust survivor.

3. I assert that, to the best of my knowledge and belief, all the facts stated in this paper are true. I also assert my willingness to correct any statement of fact in this paper which is shown to be false. I also undertake to correct any errors in my reasoning based on the stated facts that are made clear to me and to publish an alternative interpretation of those facts if requested to do so, but reserving my right to respond. There are therefore no grounds for censoring this paper unless it can be shown that I have made an error of fact or reasoning and have refused to correct it. Note that, in law, truth is an absolute defence to an accusation of libel.

4. In addition, I consider this paper to be a matter of public interest which needs to be publicized. As one judge said: 'Sunlight is the most powerful of disinfectants' - Brandeis J. (quoted by Cory J. in Phillips v. Nova Scotia (Westray Inquiry) (1995), 98 C.C.C. (3d) 20 (S.C.C.), p. 67 d.).

5. In this context see Rhodes v OPO & Anor [2015] UKSC 32 (http://www.bailii.org/uk/cases/UKSC/2015/32.html), a Supreme Court case, at 76: 'A person who has suffered in the way that the appellant [a victim of child abuse in this case] <i>has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail.'

6. The victim in this case, David Wilson, can no longer speak for himself of course, so I shall speak for him.

7. You will discover later on how both the decision of the lower court and the appeal court in the case were void (a nullity in law), which means that the accused (David Wilson) was never actually convicted. Now a nullity cannot be made good, cannot be acquiesced in (you cannot agree in law to something that never happened in law) and can be challenged (even after judgment) without limitation of time (since a nullity can never be made good, it will always remain bad and can be declared to be so at any time). By ‘challenge’ I do not mean that a person can ask a court to make a void decision void, because it is already void and always was. Nonetheless, a person can ask a court to declare (in effect, acknowledge) that a decision is void. So this matter is not closed, not by a long way.

8. As Lord Denning (probably the greatest judge of the 20th century) said in MacFoy v. United Africa Co. Ltd. [1962]: 'If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.'

Introduction

9. The case considered in this paper is David Wilson v Procurator Fiscal [2005HCJAC97], which was an appeal in the High Court of Justiciary (Scotland’s supreme criminal court) in September 2005 against a conviction in the Glasgow Sheriff Court in October 2002. See the judgment of the High Court of Justiciary at http://www.scotcourts.gov.uk/search-judgments/judgment?id=e9ba8aa6-8980-69d2-b500-ff0000d74aa7.

10. I came across this case by accident while researching a completely unrelated legal issue, but the case interested me and, while reading it, it occurred to me that several things were seriously wrong with it, as I explain below.

11. In the first place, there is something very strange about the timing of the appeal. The accused (David Wilson) was found guilty in the Glasgow Sheriff Court on 24/10/2002 and sentenced to four months imprisonment on 14/11/2002. He appealed on 20/11/2002 but his appeal did not come before the court until 28/4/2004 and was then delayed again until 17/8/2005, some three months short of three years after his appeal was lodged. How is such a thing possible (although judges are generally unconcerned about civil cases going on for five or ten years - even more sometimes)? This is nothing short of scandalous and can hardly be unintentional.

12. I think the accused was trying to over-turn his conviction in order to get his job back, having been sacked after his initial conviction. His appeal failed and he committed suicide. This paper explains why his death amounted to murder by the judges involved. For media reports on the case see:

http://news.bbc.co.uk/1/hi/scotland/2356837.stm
http://www.telegraph.co.uk/news/uknews/1413195/BNP-man-jailed-for-race-hate-leaflets.html

David Wilson and religious hatred - bending the law on racial hatred

David Wilson, murder victim, arriving at Glasgow Sheriff Court on 24/10/2002.

13. To be found guilty of a criminal offence a person must generally have committed the crime ('actus reus'), that is 'done the deed', and have a guilty mind ('mens rea'); in other words, he must have intended to commit the crime - and the prosecution must prove, beyond reasonable doubt, that the accused intended to commit the crime (as well as that he 'did the deed' of course). Both elements have to be proved.

14. For instance, a man who kills another man accidentally should clearly not be convicted of murder because there was no intention to kill; he 'did the deed' but had no intention of doing it. Negligence and recklessness are another matter of course, but these would give rise to a charge of manslaughter, not murder.

15. What the accused (David Wilson) did in this case was to distribute a pamphlet about Muslims (not Pakistanis who were not mentioned), who are members of a religion, not a race.

16. The crime with which the accused was charged (under s.19(1)(a) Public Order Act 1986) was inciting racial hatred against Pakistanis, not inciting religious hatred against Muslims. There was no offence of inciting religious hatred in 2001 and you will appreciate that what the judges did in this case was to 'shoe-horn' a 'religious hate offence', which didn't then exist in law, into an existing race hate offence.

17. s.17 Public Order Act 1986 Act defines 'racial hatred' as 'hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins', but the pamphlet did not do this; it only referred to their religion.

18. Note, in this context, that inciting racial hatred necessarily implies inciting hatred amongst people who are not members of the relevant racial group. Logically, you cannot incite a group of people to hate themselves, so when I refer to the 'audience' I necessarily mean people who are not Pakistani.

19. Note also that the Racial and Religious Hatred Act 2006, which amended the Public Order Act 1986, states: 'Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.', so insulting, abusing and ridiculing religions or the practices of their adherents was specifically excluded when the offence of inciting religious hatred was introduced in 2006. So the judges convicted the accused, at least in part (it was they who said that the pamphlet was 'an affront to the dignity of Muslims living in Pollockshields'), on the basis of a crime that did not exist in law and which excluded such grounds when it was introduced five years later. Whoops!

The missing finding of fact

20. In order to prove the offence, it was therefore necessary to prove and thereby make findings of fact to the effect that:

a. the accused equated Muslims with Pakistanis;
b. the accused knew or believed that his audience did the same (because, clearly, if he was not aware or did not believe that his audience equated Muslims with Pakistanis he could not, as a matter of law, have intended to incite hatred of Pakistanis amongst his audience by inciting hatred of Muslims).

21. The court did not do this. The court established that local people (or rather 'people with a good knowledge of the local community') generally equated Muslims with Pakistanis but at no point did the court establish that the accused (who did not live in the area) knew this.

22. Think on this. You decide to equate penguins with giraffes, so that when you say ‘penguin’ you mean ‘giraffe’. If you approach a group of people and say hateful things about penguins, can it be said that you intended to incite your audience to hate giraffes if you did not know or believe that your audience equated penguins with giraffes? Of course not. The only basis on which it could be found that you intended to incite hatred of giraffes by saying hateful things about penguins is if you knew or believed that your audience equated penguins with giraffes, so that when you said 'Penguins are ugly!', you knew or believed that your audience would take that to mean 'Giraffes are ugly!' In other words, it is not enough for you to know; it is not enough for your audience to know; you have to know or believe that your audience knows or believes. I am glad we have sorted that one out.

23. It was established (apparently) that the accused knew that a high proportion of local Pakistanis were Muslim but there is a difference between knowing something yourself and knowing that other people know that thing.

24. The court therefore established a fact about a group of people ('people with a good knowledge of the local community') and assumed without any justification (there was no finding to that effect) that the accused, who was not a member of that group, knew or believed that fact.

25. You may feel that it was a reasonable assumption to make, but a criminal trial is not about making reasonable assumptions, it is about proving facts beyond reasonable doubt. This is critically important and the judges knew it. In other words, the judges were not entitled (and they knew they were not entitled) to assume he knew; his knowledge had to be proved beyond reasonable doubt. Re-read this paragraph.

26. In this context see 'Trial of the City of Glasgow Bank Directors', Ed. William Wallace, Sweet & Maxwell, London, 1905, p. 370-406 (http://archive.org/details/trialofcityofgla00city) where The Lord Justice Clerk (Sir James Moncreiff, 11th Bart. of Tullibole and 1st Lord Moncreiff (1811-1895)) said: 'His crime is his guilty knowledge, and nothing else. He is charged with personal dishonesty, and you must be able to affirm that on the evidence before you can convict him. But while I say that, gentlemen, I by no means mean to say that the knowledge which you must find must necessarily be deduced from direct evidence of it. You are not entitled to assume it; but you are entitled to infer that fact, as you are entitled to infer any other fact, from facts and circumstances which show and carry to your mind the conviction that the man when he circulated, or when he made that balance sheet, knew that it was false. You must be quite satisfied, however, before you can draw that conclusion, not merely that it is probable, or likely, or possible that he knew, but that he did, in point of fact, know the falsehood of which he is accused.'

27. This case concerned the publication of false financial statements, but the principle is the same; namely that in a criminal trial in such circumstances, guilty knowledge must be proved. Note that while a fact can be inferred from other relevant facts and circumstances, such facts and circumstances must be stated and it must be explained why the finding of fact can be deduced from them.

28. In effect therefore (but it wasn't stated) the court made a finding of fact (that the accused knew that local people equated Muslims with Pakistanis) which they knew* was not justified. Even if the court was entitled to make such a finding of fact they did not, in fact, make such a finding of fact, which is a critical gap in the chain of reasoning.

*The court clearly realized that it was critical to establish that Muslims were equated with Pakistanis in some way. We know this because of the finding to that effect and they were, after all, trying to prove a race hate crime, not a religious hate crime. However, it was not enough to show that local people equated Muslims with Pakistanis, it had to be shown that the accused knew or believed that local people equated Muslims with Pakistanis. It is the state of mind of the accused that matters (Surprise! Surprise!).

29. Let me put this the other way round. Is it acceptable to find a man guilty not on the basis of proof of what he knew or believed but on the assumption that he knew or believed what a group of people (of which he is not one) knew or believed?

30. In law therefore the accused was not guilty because it was not proved beyond reasonable doubt that he intended (had the requisite mens rea) to stir up racial hatred against Pakistanis (the critical element of the offence) but the judges decided to find him guilty nonetheless - in the public interest. This led to the man's death, which was a clear consequence of the fact that he had been criminalized. Is this OK with you?

31. You may feel that the accused deserved to be punished (if not killed) but should he have been punished not according to the law but according to the personal opinions of the judges? The point is that if this sort of conduct is satisfactory then why bother to have a requirement to prove intent at all? Why not just have a rule which says 'You will be found guilty if the judges think you deserve to be found guilty?' Of course, the mere existence of the requirement to prove intent with respect to a criminal offence is an acknowledgement of the fact that it is a just and necessary requirement. Thus are the judges hoisted by their own petards.

The right of free speech under Article 10 of the European Convention on Human Rights

32. If this is not enough, then consider this also. The accused asked the appeal court to consider whether the pamphlet was protected by the right of free speech under Article 10 of the European Convention on Human Rights (which, <i>inter alia, protects expressions which are insulting, abusive or offensive). The court refused to even consider this point on the grounds that he should have raised the matter before (i.e. in the lower court) or timeously in the appeal court and had given no good reason as to why he had not done so.

33. But there was a good reason, and that was that the accused was not legally represented in the appeal court and could not explain the conduct of the person who represented him (his solicitor advocate) in the lower court. In refusing to even consider the applicability of Article 10, the court demanded of the accused the same knowledge of the law (Are you familiar with s.182(3) of the Criminal Procedure (Scotland) Act 1995?) and court procedure that they would have demanded from a trained solicitor or barrister and made no allowance for the interests of justice, which clearly demand that such an important issue (freedom of speech) should be considered. Of course, the judges had the discretion (and they knew it) to consider the matter in the interests of justice.

34. In addition, the fact that the accused overlooked the issue of free speech does not excuse the judges from doing so themselves, and the idea that a judge cannot raise a matter not already raised by one of the parties is just nonsense. For instance, if a barrister argues a point on the authority of a certain case, a judge is quite free to refer to a different case, not referred to by the barrister, to contradict his argument - and judges do this all the time. In fact, judges have a clear duty to raise points of law not raised by the parties or their representatives.

35. In addition, the prosecution had a duty to draw the attention of the court to legal provisions, case law etc. that were prejudicial to its case (apart from anything else it is against their rules of professional conduct for solicitors and barristers to take advantage of a person representing himself in this manner). Were the judges right to ignore a clear breach of these duties? In fact, weren't the judges themselves in breach of their own rules of court/standards to the extent that they allowed the prosecution to take advantage of that person, given that those rules/standards require the court to do justice between the parties and to ensure that parties are not unfairly prejudiced? See ‘The Statement of Principles of Judicial Ethics for the Scottish Judiciary’ (May 2015), particularly with reference to equality, fairness and ‘doing right’.

36. In addition, courts have a statutory obligation under s.3 Human Rights Act 1998 to read and give effect to legislation in a way that is compatible with Convention rights and, under s.2, to take into account any relevant judgments of the European Court of Human Rights. Both the lower court and the appeal court failed to do this and, in the case of the appeal court, actually refused to do this even when specifically asked. Of course, the appeal ought to have been allowed on the simple grounds that the lower court had failed to comply with s.2 and s.3.

37. In addition, the decision of the lower court was void (a nullity in law) because that court did not take into account something (relevant ECHR judgments) that it was obliged by statute (s.2 Human Rights Act 1998) to take into account.

38. In this context see Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 where it was said: But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. […] It may have refused to take into account something which it was required to take into account. See also Boddington v. British Transport Police [1998] UKHL 13. Note that these are House of Lords/Supreme Court cases and so binding on all UK courts.

39. In addition, in MacFoy v. United Africa Co. Ltd. [1962] Lord Denning said: If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.

40. This means that the decision of the appeal court, being based on a nullity (the decision of the lower court) was also a nullity.

Were the actual findings of fact justified?

41. The findings of fact from which the intention to incite racial hatred was deduced were:

a. that the leaflet was 'threatening in character';

The appeal court affirmed this finding on the basis that nothing had been brought to its attention to suggest that the lower court was not entitled to make the finding. This does not actually answer the question put to the appeal court by the lower court (Glasgow Sheriff Court), which asked the appeal court to assess whether the leaflet was threatening in character ‘on the evidence before me’ (para. 5 of appeal court judgment); that is, the appeal court was asked to assess the evidence before the lower court. The appeal court did not do this, which is grounds for a further appeal in itself.

b. that it was 'likely to cause a breach of the peace and to provoke fear and alarm among residents in Pollockshields';

What have fear and alarm got to do with inciting racial hatred? Does the former (fear and alarm) amongst one group (local Pakistanis) necessarily cause the latter (hatred) in another group (local non-Pakistanis)? Did the court make a finding to this effect and, if so, on what grounds? If it did not make such a finding, and justify that finding, then it just leaped to a conclusion, which is not very ‘judicial’. With regard to ‘causing a breach of the peace’, surely people are responsible for their own violent reactions to things (breaches of the peace). To say otherwise is to excuse people for losing control of their behaviour (‘You annoyed me so I smashed your head in.’ ‘Oh, OK then.’). Just a thought.

c. that it 'contained written material which had clear racist overtones';

But somehow without mentioning race, as the court acknowledged. In my view, you have to have pretty strong reasons (stated in court) to conclude that a leaflet is actually about/targeted at something that it doesn’t mention. ‘Overtones’ is a very vague word and hardly comes up to the criminal standard of proof of beyond reasonable doubt. That word should have rung all the alarm bells in the appeal court.

d. that it contained information that was 'insulting and abusive to the Muslim population of Pollockshields';

This finding is based on religion, not race, and fails because the court did not prove that the accused knew or believed that his audience equated Muslims (a religion) with Pakistanis (a race). Remember, the accused’s guilty state of mind had to be proved beyond reasonable doubt.

e. that it was 'an affront to the dignity of Muslims living in Pollockshields and undermined their position in the community';

Again, this is based on religion, not race, and fails for the same reason as the preceding point.

Can a criminal court make assumptions about a man based on his membership of a group?

42. Ignoring the racial/religious question for a moment, if you insult and abuse someone with no good reason then the reaction of most people is likely to be the exact opposite of hatred for the person abused; it is likely to be hatred of the abuser. Most ordinary, reasonable people (and, by definition, most people are ordinary, reasonable people) would react in that way.

43. So if we assume that the accused was himself reasonably intelligent then he must logically have been aware of the likely (indeed probable) reaction to such conduct. If he wasn't reasonably intelligent then he may well not have been responsible for this actions and so would have to have been found not guilty on the grounds of diminished responsibility.

44. So why would someone do something which common sense tells him is likely to result in a reaction against himself rather than anything else? Unless, of course, what he said was actually true, which would raise the question of whether telling the truth should be criminalized.

45. The point is that if it is obvious that a certain course of conduct (abusing someone) is likely to cause a certain result (hatred of the abuser), how can it be argued that the intention was to produce some other, less likely result (hatred of the abused)? Ask yourself this question. If you want to provoke sympathy for someone is not one of the best ways of doing it to victimize him in public in some way?

46. In law if a certain course of conduct is clearly going to have a certain result (result 1) then it is illogical to argue that some other result (result 2) was intended without specific evidence beyond the course of conduct itself, because the course of conduct on its own implies an intention to produce result 1; the obvious and reasonable result. It's a sort of 'Why did the chicken cross the road?' question. Answer: 'To get to the other side.'

47. What evidence beyond the course of conduct itself was considered? Well, the only relevant additional finding of fact was that the accused was a member of the BNP. So it is clear that the intention of the accused was not deduced from his conduct (because that conduct was likely, in this country today, to have the opposite result to that which it was claimed he intended) but was deduced solely (no other relevant findings of fact are mentioned) from the fact of his membership of the BNP.

48. In other words, the reasoning was that it is well-known that members of the BNP hate Pakistanis,* so that any material critical of or offensive to Pakistanis created by a member of the BNP must be caused by hatred of Pakistanis and intended to cause hatred of them. If a Pakistani had created such material would it have been assumed that he did it out of hatred of Pakistanis, as opposed to, say, wanting to help them to be better people (even if by saying offensive things)? The critical point is that this chain of reasoning starts with an unproved assumption (certainly not a fact proved by evidence put to the court) that members of the BNP hate Pakistanis.

*Do they? There is a difference between hating people and not wanting them to ‘over-run your country’, which is what seems to me to be the BNP’s main concern. As far as I can see, many accusations of racism, including many of those made against the BNP, are just an attempt by ‘left-wingers’ to shut down the debate.

49. The judges may well have been right about this but they were not entitled to make that assumption because they are judges in a court of law who are required to make findings of fact on the basis of evidence, not assumptions on the basis of popular opinion.

50. In this way the judges were, in effect, guilty of the same underlying motive that they found the accused guilty of; that is, unjustified prejudice. The difference is that the prejudice of the judges caused a man's death (that of the accused) whereas the prejudice of the accused had no demonstrable impact whatsoever. Clearly, some forms of prejudice are acceptable (regardless of the consequences) while others are not.

51. Do you see what I am getting at? The finding of fact that the accused was a member of the BNP was clearly important (otherwise it would not have been mentioned), but what impact did that finding of fact have on the verdict? Evidently, it was assumed that, as a member of the BNP, the accused must hate Pakistanis, so that by producing ‘anti-Pakistani’ material he must have been intending to incite hatred of Pakistanis. But the point (that members of the BNP generally hate Pakistanis) was never proved, and even if it had been proved would it have been safe to make an assumption about one man based on his membership of a group?

52. Possibly, but would you, for instance, make assumptions about a man simply because he was, say, a German army officer during World War II? What if that officer was Claus von Stauffenberg, the man who tried to assassinate Hitler? Hmmm.

53. You may feel that the judges were morally justified in doing what they did (I am not arguing the point) but were they legally justified? This is the difference (or is supposed to be) between a court of law and a kangaroo court; the former acts according to the law, the latter does not.

54. So which type of court was this do you think?

Hey judge! I think you forgot the Christians! Again!

55. If this is not enough then consider this also. There are many Christians in Pakistan (Christian Pakistanis) and they are regularly subject to mob violence and state oppression. There have been repeated instances over the years of Christian Pakistanis (including women and children) being murdered by Muslim Pakistani mobs for ‘offending Islam’ or some similar form of perceived religious transgression.

56. Undoubtedly, some of these Christian Pakistanis have fled from Pakistan to the UK, and some undoubtedly live in Scotland. Given that Glasgow is the largest city in Scotland, some of these Christian Pakistanis undoubtedly live in Glasgow and some of these may well live in Pollokshields (though one suspects that they keep their heads down for fear of Muslim violence).

57. Naturally, the court did not consider this point, though it is critical. The question is whether Christian Pakistanis would have been offended, as Pakistanis (that is, by virtue of their race - since this was the charge against the accused), by a pamphlet criticizing Muslims (even Muslim Pakistanis). Since the pamphlet was targeted at a group of people who, of necessity (that is, as a requirement of their Muslim faith), consider Christians inferior (sometimes comparing them to animals - as Muslims also do with Jews) and even worthy of death, is it likely that Christian Pakistanis would be offended by that pamphlet? In short, can you be ‘offended’ by a pamphlet that targets people who regard you as ‘offensive’ and targets them for the very thing (their Muslim faith) which makes you ‘offensive’ to them? I think not; the idea is absurd.

58. So, logically, some Pakistanis (Christian Pakistanis) would not have been offended by the pamphlet. This means that (if we accept the court’s finding that the pamphlet was offensive to Muslim Pakistanis) there were some Pakistanis who were offended by the pamphlet and some who were not offended. The distinction between these two groups is a religious one, which means that the pamphlet was offensive on the grounds of religion, not of race. It follows that if the pamphlet did incite hatred, it did so on the basis of religion, not race. Hence, it did not, as a matter of law, incite racial hatred. Hence, the accused was not, could not have been, guilty of inciting racial hatred.

Kiran, a 17 year-old Christian Pakistani girl murdered in Lahore, Pakistan, on 13/1/2016 for refusing sexual advances by Muslim men (http://www.britishpakistanichristians.org/blog/christian-girl-killed-for-shrugging-off-advances-of-rich-muslim-boys). According to the logic of Lord Osborne, Lord Philip and Lord McEwan, she would (when alive) have been deeply offended by any anti-Muslim pamphlet. Naturally, she would have been particularly offended by any criticism of the Muslim belief that Muslim men can rape non-Muslim women (Koran 4:3, 4:24, 23:1-6, 33:50).

Summary of shortcomings

59. In summary, we have six very serious shortcomings in this case:

a. the scandalous and intentional delay of almost three years in hearing the appeal;

b. a critical missing finding of fact (to the effect that the accused knew or believed that local people equated Muslims with Pakistanis) without which the accused cannot, in law, have had the <i>mens rea (intent) required for the offence because his actual knowledge or belief on this issue had to be proved;

c. the courts failure (knowing and intentional refusal) to comply with its clear statutory duty to consider European Court of Human Rights case law relating to freedom of speech, which renders both the original hearing and the appeal void in law (a nullity);

d. key findings of fact are illogical and unjustified and were certainly not proved beyond reasonable doubt;

e. the courts unproven assumptions about the accused based on his membership of a group (the BNP), which the court clearly considered important (otherwise it would not have been mentioned);

f. the fact that Christian Pakistanis cannot have been (or, at least, were highly unlikely to have been) offended by a pamphlet targeting the very thing (the Muslim faith) that makes Muslim Pakistanis hate them, which means that the ‘offending pamphlet’ can only have been offensive, if it was offensive, on the basis of religion, not race (hence there was no race-hate crime).

Why is this murder?

60. For these reasons it is clear that the judges (Lord Osborne, Lord Philip and Lord McEwan) deliberately perverted the course of justice and caused a man's death as a result.

61. In the United Kingdom, murder is a common law offence, which means that it is not defined in statute:

a. In England and Wales, murder is defined as:

i. the unlawful killing of a human being by another human being, under the Queen’s Peace (that is, not the killing of an enemy in time of war), (actus reus - the deed);

ii. with the intention to kill or to cause grievous bodily harm (GBH) (mens rea - intention).

b. Both elements (actus reus and mens rea) have to be proved beyond reasonable doubt.

c. ‘It is, therefore [with an intention to cause GBH], possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Attorney General's Reference No 3 of 1994 [1997] UKHL 31; [1998] AC 245; [1997] 3 All ER 936; [1997] 3 WLR 421; [1998] 1 Cr App Rep 91; [1997] Crim LR 829).

d. In Scotland the law of murder is somewhat different. The actus reus is the same as in England and Wales, but the mens rea is either (1) an intention to kill or (2) ‘wicked recklessness’ as to the consequences of one’s actions or (3) an intention to cause grievous bodily harm.

i. With regard to ‘wicked recklessness’, a person will be ‘wickedly reckless’ for this purpose if he has a criminal purpose which entails an obvious risk to life and he proceeds regardless of that risk. This equates to the ‘intention to cause GBH’ under English law to the extent that grievous bodily harm entails an obvious risk to life. In Cawthorne v. HM Advocate 1968 S.L.T. 330 (HCJ) Lord Justice General Clyde said: “The mens rea which is essential to the establishment of such a common law crime may be established by satisfactory evidence of a deliberate intention to kill or by satisfactory evidence of such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences …. The reason for this alternative being allowed in our law is that in many cases it may not be possible to prove what was in the accused’s mind at the time, but the degree of recklessness in his actings, as proved by what he did, may be sufficient to establish proof of the wilful act on his part which caused the loss of life.” ‘Criminal purpose’ includes something like robbery where there is no intention to commit murder or even contemplation of a risk to life but where the criminal purpose entails an obvious risk to life.

ii. Grievous bodily harm ‘is not really a separate kind of mens rea at all but rather a factor from which wicked recklessness in the more general sense can be inferred’ (Scottish Law Commission’s paper ‘Attempted Homicide’, 1984, p. 19). Thus an intention to cause GBH necessarily involves recklessness as to whether that GBH might lead to death where the type of GBH involved does entail an obvious risk to life. For instance, the question might be ‘Does severe depression entail an obvious risk to life?’ If so, then an intention to cause severe depression or similar psychiatric harm constitutes the mens rea of murder under Scots law. Macdonald’s ‘Criminal Law of Scotland’, 5th edn., p. 90 says: “wherever there is grievous harm manifestly intended, or at least known to be a likely result of the act done, the crime is murder" (quoted in the Scottish Law Commission’s paper ‘Attempted Homicide’, 1984, p. 19).

iii. It follows that, under Scots law, engaging in a criminal purpose which the person knows is likely to cause GBH and which results in death is murder.

62. I am satisfied on the facts described here (it is up to you whether you agree with me):

a. that they knowingly acted in a malicious* and unlawful** manner;

*’Malicious’ is defined in law as ‘a wrongful act done intentionally without just cause or excuse’ (Rhodes v OPO & Anor [2015] UKSC 32 at 41).

**This is critical because a judge cannot be penalized for an act properly done in pursuit of his judicial duties.

b. that they intended to cause serious mental harm; that is, grievous bodily harm*;

*An intention to cause grievous bodily harm (GBH) is enough for the mens rea (guilty state of mind) of a charge of murder. ‘Harm’ includes mental harm, for which see Burstow R v.; Ireland R v. [1997] UKHL 34, where it was held that bodily harm does not have to involve either contact or physical injury. ’Grievous’ means ‘really serious’ (DPP v Smith [1961] AC 290) or ‘serious’ (R v Saunders [1985] Crim LR 230, [1985] LS Gaz R 100, Appleby, R v [2009] EWCA Crim 2693 at 2) at the discretion of the judge. ‘Really serious’ does not necessarily mean either permanent or life-threatening, for which see Hyam v DPP [1974] UKHL 2 where Lord Hailsham said there are many injuries which a jury would call really serious which in the ordinary course would not be likely to endanger life.

Note that in Burstow R v.; Ireland R v. [1997] UKHL 34 Lord Steyn said: ‘The appeals under consideration do not involve structural injuries to the brain such as might require the intervention of a neurologist. One is also not considering either psychotic illness or personality disorders. The victims in the two appeals suffered from no such conditions. As a result of the behaviour of the appellants they did not develop psychotic or psychoneurotic conditions. The case was that they developed mental disturbances of a lesser order, namely neurotic disorders. For present purposes the relevant forms of neurosis are anxiety disorders and depressive disorders. Neuroses must be distinguished from simple states of fear, or problems in coping with everyday life. Where the line is to be drawn must be a matter of psychiatric judgment. But for present purposes it is important to note that modern psychiatry treats neuroses as recognisable psychiatric illnesses: see Liability for Psychiatric Injury, Law Commission Consultation paper No. 137 (1995) Part III (The Medical Background); Mullany and Hanford, Tort Liability for Psychiatric Damages, (1993), discussion on "The Medical Perspective," at pp. 24-42, and particular at 30, footnote 88.’ Thus, neurotic disorders of a ‘lesser order’, like anxiety disorder and depression, are ‘recognisable psychiatric illnesses’ and were found to amount to grievous bodily harm.

c. that they were the 'but for' cause of his death; that is, he would not have committed suicide if he had not been convicted.

63. Note, in this context, that a person must, in law, take his victim as he finds him (R v Blaue [1975] EWCA Crim 3). In this case D injured his victim so that she needed a blood transfusion. Because she was a Jehovah's Witness she refused the blood transfusion and died as a result. D argued that death was caused by the victim's own act but he was convicted on the basis that he must take his victim as he finds him.

64. Note also, in this context, that an act by the victim or another person will not amount to a ‘new intervening act’ (novus actus interveniens - an act which breaks the chain of causation between the act of the accused and the death of the victim) unless that act can be described as an event of such impact that it rightly obliterates the wrongdoing of the defendant (Commissioners of Police for the Metropolis v. Reeves (Joint Administratix of the Estate of Martin Lynch, Deceased) [1999] UKHL 35; [2000] 1 AC 360; [1999] 3 All ER 897; [1999] 3 WLR 363). See also Corr v IBC Vehicles Ltd [2008] UKHL 13 generally.

65. An act does not have to be the sole or even main cause of death, merely an operative cause of (that is, contributes ‘significantly to’, which means ‘more than minimally to’) death. Even if death results from an act or omission of the victim (or another person) arising from D's act, then D will be guilty of murder. An example is where an armed policeman (A) shot and killed a woman (B) being used as a shield by a man (C) who shot at A. C was found guilty of the murder of B even though she was killed by A (Pagett, R. v [1983] EWCA Crim 1).

66. Thus, if D intends to cause serious mental harm and that is an operative cause of (that is, contributes more than minimally to) the victim's death, then D will be guilty of murder.

67. So, in this context, the questions are:

a. Did the judges intend to unlawfully cause serious mental harm? For instance, is wrongly sending a man to prison, depriving him of his family and ruining his career going to cause serious mental harm with a high enough degree of certainty that a jury could infer (find) that this was the intention of the judges? Hmmm. For the purposes of murder as defined in Macdonald’s ‘Criminal Law of Scotland’, 5th edn., p. 90 (see above), it would be enough that the judges knew that ‘grievous harm’ was a ‘likely result’ of their conduct; intention to cause grievous harm is not required.

b. If so, did that harm contribute significantly to the victim's death? This is a guilty either way situation, as far as I can see. If the accused had no existing tendency to commit suicide, then this increases the likelihood that it was his criminal conviction that drove him to suicide. If the accused did have an existing tendency to commit suicide, then he was a person at risk and his wrongful conviction was more likely to ‘tip him over the edge’. This would compound the wrong done to him. No way out, bro.

68. If the answer to both these questions is 'Yes' then the judges are guilty of murder. That is the law.

69. Sheriff Linda Ruxton, who heard the original trial in the Glasgow Sheriff Court, would also be guilty of murder on the same basis. She made her position clear when she said 'the claims in the leaflet were "inaccurate" and clearly targeted at members of the Pakistani community in Pollokshields, even though they did not explicitly say so. "Despite its disingenuous drafting, the intent of the leaflet is clear," the sheriff told the court. "Any attempt, if such an attempt there was, to circumvent the legislation and defeat parliament's intention has failed."' (http://news.bbc.co.uk/1/hi/scotland/2356837.stm). But, as we now know, she did not make a finding of fact (which she would need to have justified on the basis of evidence) that the accused knew or believed that his audience equated Muslims with Pakistanis.

70. Note that even if the conduct of the judges does not amount to murder, if they intentionally and unlawfully did something which reasonable people would realize risked causing some harm (not necessarily serious harm) and that resulted in death then they would be guilty of unlawful act manslaughter, under the law of England in any event (see the Crown Prosecution Service guidance ‘Homicide: Murder and Manslaughter’ at http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#unlawful).

71. Even if the conduct of the judges does not amount to either murder or manslaughter, it would appear that it does amount to either or both of an attempt to pervert the course of justice or misconduct in public office (for which see the appendices), both of which carry a maximum penalty of a life sentence. It also amounts to fraud. See Adcock (Edward) v Archibald [1925] ScotHC HCJ_1 where it was said: It is, however, a mistake to suppose that to the commission of a fraud it is necessary to prove an actual gain by the accused, or an actual loss on the part of the person alleged to be defrauded. Any definite practical result achieved by the fraud is enough.

Conclusion

72. When people think of murder they usually think in terms of Colonel Mustard stabbing Reverend Green in the library with a knife, or something like that; that is, an act which involves an actual intent to kill accompanied by a violent physical act which accomplishes that intention. But, as we have seen, an intention to inflict grievous bodily harm, which can consist of mental harm alone, can be sufficient for the mens rea’ (guilty state of mind) of murder, and we have also seen that the actus reus’ (physical deed) of murder can consist of an act which is not the sole or main cause of death, merely an operative cause of death, and can also be an act or omission of the victim (or even a third person - R v Pagett (1983) EWCA Crim 1) which is an operative cause of the victim’s death. It should be clear therefore, for instance, that a husband who, intending to cause grievous bodily harm, inflicts such intense mental suffering on his wife that she commits suicide will be guilty of murder - and rightly so. Few would challenge this idea I think, either in law or in justice.

73. In this context note the case of D, R v [2006] EWCA Crim 1139 (http://www.bailii.org/ew/cases/EWCA/Crim/2006/1139.html), which was reported by the BBC ('Husband not culpable for suicide', 16/5/2006, http://news.bbc.co.uk/1/hi/uk/4785728.stm).

74. The BBC headline is, in fact, misleading. The husband was charged with an offence under s.20 Offences Against the Person Act 1861 (inflicting grievous bodily harm) and manslaughter. With regard to the charge of manslaughter, the Crown appears to have tried to argue that it was the alleged grievous bodily harm that led to the wife’s suicide (and hence the charge of manslaughter). It would follow, on this basis, that if the charge of inflicting grievous bodily harm was found to be not proved then the charge of manslaughter must fail also. I am somewhat mystified by this because if a defendant has been charged with manslaughter, then the court must determine whether the charge is proved in accordance with the law relating to the offence. The parties cannot, in effect, erect a legal hurdle of their own making (grievous bodily harm) which, according to the law relating to the offence, does not need to be proved (illegal act manslaughter does not require the infliction of grievous bodily harm, as pointed out below). If I am a prosecuting counsel (barrister) in court, can I say: ‘I have decided that the charge of theft which I am trying to prove can only be sustained if the defendant was wearing a blue hat last Tuesday’? I think not.

75. Of the three expert opinions obtained, one said that the victim had a recognized psychiatric illness and the other two said that she did not.

76. It was held, on the basis of binding precedent (previous cases decided in the House of Lords/Supreme Court), that psychiatric harm which did not amount to a recognized psychiatric illness did not (mainly for public policy reasons - see my comments on nullities) amount to grievous bodily harm. The case was therefore dismissed on the basis (at 18) that there was no evidence on which a reasonable jury could be satisfied that Mr D inflicted grievous bodily harm on his wife. So the BBC headline should have been Husband who drove wife to suicide found not guilty of grievous bodily harm and therefore not guilty of manslaughter’¬ - but that would have looked silly.

77. At 32 it was said: 'As to manslaughter, in summary, as a matter of law, the prosecution of a spouse, or partner, or indeed any other individual whose unlawful conduct causes recognisable psychiatric illness, such as, for example, post-traumatic stress disorder, or battered wife syndrome, or reactive depression, with resulting suicide, subject always to issues of causation, is not excluded from the ambit of this offence.'

78. The requirement to cause a recognized psychiatric illness for a charge of manslaughter seems to be contrary to the Crown Prosecution Service guidance ‘Homicide: Murder and Manslaughter’ at http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#unlawful in relation to unlawful act manslaughter, which only requires an unlawful act which reasonable people would realize risked causing 'some harm, albeit not serious harm' (R v Church [1966] 1 QB 59), and which results in death.

79. Is it possible that neither the prosecution, nor the High Court, nor the Court of Appeal knew the law relating to unlawful act manslaughter? A ridiculous idea. So there is something funny going on here.

80. Of course, in English law (see above for Scots law) manslaughter can result from recklessness, but where there is an actual intention (as opposed to recklessness) to cause grievous bodily harm in such circumstances, that would amount to murder, not manslaughter, because you have the actus reus (death) and mens rea (intention to cause death or GBH) of murder.

81. Thus, where there is an intention to cause grievous bodily harm (serious mental harm), mental harm short of a recognized psychiatric illness is caused and that mental harm causes death, then you have the elements (actus reus and mens rea) of murder. This would seem to have been the case here or, at least, I think it would be possible to argue and for a jury to find that the husband’s long term treatment of his wife (not just the assault on the day of her suicide) shows an intention to cause GBH.

82. It seems that, with the present state of the law (if we follow D, R v [2006] EWCA Crim 1139), murder can occur without a recognized psychiatric illness but that grievous bodily harm cannot; that is, a more serious offence (murder) can be caused by a less serious injury (psychiatric injury falling short of a recognized psychiatric illness) but a less serious offence (grievous bodily harm) can only be caused by a more serious injury (psychiatric injury amounting to a recognized psychiatric illness). Yes, that makes sense.

83. In this context there is an interesting parallel (in the field of tort) with the words of Lord Neuberger in Rhodes v OPO & Anor [2015] UKSC 32, where he said at 116: 'Then there is the question as to whether a claimant can only bring an action if he suffers distress to a sufficient degree to amount to a recognised illness or condition (whether psychological or physiological - assuming that the distinction is a valid one). Like Lord Hoffmann in Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406, I consider that there is much to be said for the view that the class of potential claimants should not be limited to those who can establish that they suffered from a recognised psychiatric illness as a result of the actionable statement of the defendant.'

84. Note that in Reg. v. Ireland [1997] Q.B. 114, palpitations, breathing difficulties, cold sweats, anxiety, inability to sleep, tearfulness, headaches, stress and a nervous skin condition resulting from silent telephone calls were held to amount to psychiatric damage (D, R v [2006] EWCA Crim 1139 at 25). Does this sort of harm no amount to the ‘some harm’ required for illegal act manslaughter?

85. Note that under s.1 Disability Discrimination Act 1995 a person is legally classified as disabled, for the purposes of the Act, if he has 'a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.' On this basis stress can amount to a disability. It is difficult to see how a person (A) can become disabled as a result of the conduct of another person (B) without that person (B) having, by definition, inflicted some form of grievous harm on him (A). In short, how can you make someone disabled without inflicting grievous harm on him? Surely, making someone disabled is, by definition, to inflict grievous harm on him? It follows that if a man (A) intentionally inflicts, say, stress on another person (B) to such a degree that it has ‘a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities' and that person (B) commits suicide as a result, that A has murdered B. To find that A had not murdered B, a court would have to find that intending to make someone disabled (as defined in the Act) does not amount to an intention to inflict grievous harm on that person. Hmmmm.

86. There is clearly some confusion around the words ‘harm’, ‘injury’, ‘damage’ and ‘illness’. As was said at 30: 'As the Law Commission reports, the distinction [between mental distress and symptoms amounting to a recognisable psychiatric illness] "is not clear", quoting one medical consultee who suggested that the "overlap between mental health and illness is so large a grey area that it is not suitable for the legal purpose to which the diagnosis is being put". The classifications in DSM-IV and ICD-10 were not themselves always sufficient "to distinguish those with the greatest impairment of functioning", and several of the consultees commented that it would be unjust to rely on the criteria in these classifications to distinguish psychiatric illness from "mere mental distress". It was suggested that some did not "reflect the complexities of the psychological impact of trauma", and the current categorisation might exclude some diagnoses which were generally acceptable. Observations like these confirm that current understanding of the workings of the mind is less than complete.'

87. At 31 it was concluded: 'Our conclusion can be briefly expressed. The problem which we have to address is whether psychological injury, not amounting to recognisable psychiatric illness, falls within the ambit of bodily harm for the purposes of the 1861 Act. Chan-Fook drew a clear distinction between such identifiable injury and other states of mind. It did so consistently with authority in the civil law. The line identified in Chan-Fook was applied by the House of Lords to the criminal law, and has been consistently applied in claims for damages for personal injury. The logical conclusion of the argument for the Crown is that we should now permit or support a blurring of that line, or perhaps introduce a degree of elasticity into it. Although easy enough in theory, to do so would go beyond the well-understood principles by which the common law develops incrementally and logically. In our judgment the limits have been addressed in the House of Lords, in both the criminal and civil contexts, and provide authority binding on us. In any event, however, the extension sought by the prosecution would introduce a significant element of uncertainty about the true ambit of the relevant legal principles to which the concept of "bodily harm" in the 1861 Act applies, which would be compounded by the inevitable problems of conflicting medical opinion in this constantly developing area of expertise. By adhering to the principle of recognisable psychiatric illness, although some medical experts may be concerned with the way in which the definitions are arrived at, the issue which requires to be addressed can be clearly understood and those responsible for advising the prosecution and defendants can approach their cases with an appropriate degree of certainty.'

88. In essence, therefore, the courts have, in the interests of certainty, adopted a distinction which they know is dubious and which is bound to lead to serious injustice, as in the case described above.

89. On the above basis it becomes clear that a person will be guilty of murder if he intends to cause serious mental harm to another person, causes mental harm (even falling short of a recognized psychiatric illness) and that person commits suicide as a result.

90. Given that judges are subject to the criminal law in exactly the same way as everyone else, even when (particularly when) acting in a judicial capacity, it only takes one simple logical step to appreciate that if a judge, by his conduct in judicial proceedings, unlawfully causes a person intense mental suffering and that person commits suicide as a result, then that judge is guilty of murder. He is as guilty of murder as a man who drives his wife to suicide through years of mental cruelty. But there are limits to the suffering that an ordinary man can inflict in this manner (that is, mentally) and it often takes years of cruelty to have a really serious impact, while a judge, on the other hand, can ruin a man’s life in a few seconds by putting him in prison, making him bankrupt, ruining his career or reputation, causing the break-up of his family or taking away his children.

91. Incredibly, the judiciary now claim immunity from criminal prosecution (they didn’t always do so). On the judiciary.gov website at http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-acc-ind/independence (accessed 22/12/2015) it says: 'For example, judges are given immunity from prosecution for any acts they carry out in performance of their judicial function.' This is a misleading statement which implies (and is intended to imply) that judges are immune in respect of any act done in a judicial capacity.

92. But can a judge claim that he is acting in a judicial capacity when he intentionally or recklessly does something unlawful in court? No, because that would mean that it is ‘judicial’ (properly part of a judge’s function) to do something unlawful (intentionally or recklessly).

93. In M v Home Office [1993] UKHL 5 it was stated: ‘“when we speak of the 'rule of law' as a characteristic of our country, [we mean] not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment. or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person". (Introduction to the Study of the Law of the Constitution by A. V. Dicey 10th ed. 1965 p. 193).

94. In Begraj & Anor v Secretary of State for Justice [2015] EWHC 250 (QB) at 21 it was stated (quoting Sirros v Moore [1975] 1 QB 118, the leading case on judicial immunity): 'Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts.'

95. High-sounding words.

96. Here is a question then. Is a judge corrupt if he accepts a bribe and changes his decision as a result? Of course he is. OK then, on exactly the same facts, is a judge corrupt if he changes his decision in exactly the same way, but without accepting a bribe? Of course he is. While he did not accept money, he had exactly the same dishonest state of mind; he intended to do the wrong and he did it.

97. It follows that a judge will be guilty of a criminal act (attempting to pervert the course of justice or misconduct in public office - see appendices) whenever he deliberately and knowingly does something wrong in the course of judicial proceedings which has a tendency to pervert the course of justice. Depending on the circumstances, he may be guilty of more serious crimes, up to and including murder.

98. It matters not a jot why he did the wrong, just that he intended to do the wrong and did it. After all, in a murder trial, it doesn’t matter why the defendant killed the victim, it only matters that he intended to do so and did so (see above concerning the mens rea and actus reus of murder).

99. Here's another question. The courts come down extremely hard on anyone who does anything that interferes with, or tends to interfere with, the administration of justice, even the most minor offences. Is there any possible reason why we should not hold judges to the high standards to which they hold us?

100. It is quite clear that a judge, being a person who occupies high public office and who has an over-riding duty to see that justice is done (and who is paid and given public status accordingly), is, if guilty of such conduct, actually far more blameworthy than a cruel husband who drives his wife to suicide (or a thief or a murderer).

101. In the case of a cruel husband there might be some underlying reason (not justification) for what he did; he might be poor or unemployed, he might be uneducated, he might have been a victim of such treatment himself, he might have been seriously harmed in all sorts of ways. The quality of mercy calls on us to take notice of such things, even if we cannot excuse his conduct as a result (he is a sentient, rational being after all and must be held accountable for his actions).

102. But a judge is a highly-trained, well-educated, well-paid and experienced legal professional. Everything in judicial proceedings is done exactly the way he wants it and according to his timetable, even down to the minutiae of how files are presented (only a certain size of paper, printed on one side only, properly paginated, indexed, referenced and tabbed etc. etc.). He has all the arguments, authorities and so on laid out for him on a plate by the opposing parties, and if he doesn’t (that is, if one of the parties is self-represented), then he has a particular duty to ensure that the person is not unfairly prejudiced as a result. He is not exactly over-worked by the standards of the rest of us. He can break for lunch whenever he wants to - and does so. If he is unclear on a certain issue, he can invite submissions, he can adjourn the proceedings and research the matter further himself, he can consult with other judges (over a glass or two in the lunch hour) or he can ask a higher court for a ruling on the matter. Above all, he clearly knows when he is acting without sufficient factual or legal justification; that is, he knows when he doesn’t know (that is, when he lacks sufficient certainty - 'Am I sure that I am sufficiently informed on this matter?'). What excuse can he possibly have? None whatsoever.

103. Are you beginning to understand the implications of deliberate judicial criminality which has such serious results? And what if the case described in this paper (unlawful and malicious, or ‘just’ reckless, abuse of judicial office to put an innocent man in jail, who then commits suicide) is actually fairly common, bearing in mind the high suicide rate amongst prisoners? Is it not possible (even probable perhaps) that a high proportion of judges in the criminal courts have done such a thing at least once in their careers; in short, are murderers? And would this not mean that the proportion of serious criminals amongst judges is greater than the proportion of serious criminals amongst those who appear before judges accused of crimes; in short, that judges, as a class, are more criminal than the criminals?

104. Judges do not (on the whole) sit there thinking ‘I really, really want to kill this guy’, although they will ruin your life without a second thought. But there can be no doubt that they do want to inflict serious harm on certain types of people, such as the youth who stole a £3.50 bottle of water during the ‘London riots’, or the 85-year-old war veteran, Norman Scarth, who recorded court proceedings on his phone, or the elderly widow who refused to pay her council tax because her street had become infested by vandals, drug dealers and prostitutes (about which the council did nothing), or the rather eccentric man, John Hill, who produced a DVD arguing that the 7/7 London bombings could not have been committed by the ‘terrorists’ accused of the crime (he spent 151 days in prison before being found not guilty by a jury in Southwark Crown Court), or BNP member, David Wilson, who clearly thought, in his own way, that he was protecting his country (but other people, such as Muslim hate preachers, seem to be almost immune). They want such people to suffer in a very, very significant way. Sometimes, as with David Wilson, they want to nail the person even though they know that he is legally innocent. Sometimes, I am sure, they do this thinking they are doing what society wants and are giving the accused no more than he deserves, even if he is legally innocent, or that they are acting in the ‘public interest’ regardless of public opinion and the law. But, of course, when they do this they move (consciously and deliberately) over the line into outright criminality and, as we have seen, that criminality can extend to murder.

The bad news

105. Here’s the bad news. Can we say that the judges in this case (Lord Osborne, Lord Philip, Lord McEwan and Sheriff Linda Ruxton) are people of iron integrity who will apply the letter of the law even when they regard the defendant as a despicable hate-monger who ‘has it coming to him’? No, we cannot. What is worrying is that their abuse of the law and the judicial process can only be described as casual; they clearly did it without a second thought. Even worse, they did it (in public) knowing that there would be no come-back on them. They were, and are, 100% confident that they will get away with it (for which the following paragraphs).

106. Here’s the really bad news. The three judges in the High Court of Justiciary have risen to the very pinnacle of the Scottish judicial system. On this basis, we can fairly conclude that the judicial system in Scotland promotes the sort of people they are; that is, people who bend (criminally abuse) the law without compunction. They rose to the top of the Scottish judicial system not in spite of the sort of people they are, but because of the sort of people they are. If the Scottish judicial system was not infested in this way, what is the likelihood that in one criminal prosecution you would find not one, not two, not three but four bad judges? Quite. One bad judge can be regarded as ‘just a bad apple’; two bad judges is embarrassing; three bad judges might (if you are overly optimistic - or just blind to the facts) be described as a ‘local infestation’; four bad judges is a sure sign of a plague.

107. Here’s the really, really bad news. What this means is that the Scottish judicial system is populated (‘infested’ is a better word) with judges who bend (break) the law without a second thought (I have conclusive evidence of this sort of behaviour in other cases - believe me, you would be shocked). Can you imagine anything more dangerous to the well-being of society than a judicial system that has ‘gone rogue’ in this way, given that the legal system is the last resort of those who have suffered loss, harm, damage, injury or injustice and have nowhere else to seek a remedy, or given the fact that it is the judicial system that we rely on to hold wrongdoers to account? A healthy, functioning legal system is the bedrock and benchmark of a civilized society. Remove it and you will eventually have a society that is ruled by cronyism, corruption, theft and violence (the violence is usually done by the police at the sharp end). In such circumstances, what holds society together is not the rule of law but the threat of force.

108. Here’s the really, really, really bad news. What do you think would happen if I was to report this matter to the police, the prosecuting authorities, the judicial system itself or even to politicians (appropriate minister or parliamentary committee)? That’s right, nothing at all. They will not just do nothing; they will actively cover the whole thing up - and the worse it gets the more they will cover It up. The point is that if you report a crime and your allegations are not clearly unfounded, have at least some plausible basis in fact and law, a reasonable possibility of an arguable case, then the ‘authorities’ should at least investigate the matter in accordance with the proper procedures, even if they eventually dismiss it.* This will not happen. Why? Because it is not just the judicial system that is rotten to the core but the police, the prosecuting authorities and the government as well.

*In an article dated 22/4/2013 in ‘Policing Today’ (‘Police were ‘duty-bound’ to investigate Kent Youth PCC’), a police spokesman is quoted as saying: “Having received complaints in relation to Paris Brown’s comments on Twitter, Kent Police - as it is duty-bound in the event of allegation of criminal activity - undertook an investigation to ascertain whether any offences had been committed as was alleged.” Their words, not mine. In R. v. Commissioner of the Police of the Metropolis (ex parte Blackburn) 1968 2 QB 118, Salmon L. J. stated: "The chief function of the police is to enforce the law. The Divisional Court left open the point as to whether an order of mandamus could issue against a Chief Police Officer should he refuse to carry out that function. Constitutionally it is clearly impermissible for the Secretary of State for Home Affairs to issue any order to the police in respect of law enforcement. In this court it has been argued on behalf of the Commissioner that the police are under no legal duty to anyone in regard to law enforcement. If this argument were correct it would mean that insofar as their most important function is concerned, the police are above the law and therefore immune from any control by the court. I reject that argument. In my judgment the police owed the public a clear legal duty to enforce the law - a duty which I have no doubt they recognise and which generally they perform most conscientiously and efficiently. In the extremely unlikely event, however, of the police failing or refusing to carry out their duty, the court would not be powerless to intervene".

109. We know this beyond all doubt from the banking crisis, where the greatest financial scandal in the history of the world resulted in not a single prosecution amongst those responsible (those who run the big banks, the auditors, the regulatory authorities, the central banks and the government). Oh wait, there was one investigation with a view to prosecution, of the directors of the tiny Presbyterian Mutual Society in Northern Ireland, who were mostly elderly retired church ministers; hardly the ‘wolves of Wall Street’. A non-executive director was reprimanded and fined by the Financial Reporting Council (FRC) but the investigation of the company’s auditors is still ‘on-going’ after seven (yes, seven) years (https://www.frc.org.uk/News-and-Events/FRC-Press/Press/2015/November/Outcome-of-disciplinary-case-against-Philip-Black.aspx). One would have to laugh if it was not so in-your-face outrageous.

110. Of course, while the police have a duty to enforce the law and public prosecutors have a duty to prosecute crime, they rightly have a wide discretion to decide on the appropriate course of action, which can include a decision not to investigate or, having investigated, a decision not to prosecute. The exercise of the discretion (such as a decision not to prosecute) can be challenged by way of judicial review, but the courts are rightly reluctant to interfere. Sir William Blackstone said (Commentaries, vol.1, p.252): 'For prerogative consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner.’ This is a good system and works well when the bodies concerned are fundamentally honest; it doesn’t work at all when they aren’t; that is, when they cover each other’s backs. The banking crisis is incontrovertible proof of this.

111. Judges know that there are innocent people rotting in prison for years on end, if not most of their lives. They know that there are innocent people who have been wrongly convicted and who have committed suicide as a result. In many cases, they know that they personally put them in prison or caused their suicide (Don’t get me started on the Waterhouse Enquiry, which resulted in multiple suicides - of the victims). They know that the partners and children of such people will be irreparably damaged and, in the case of the children, will probably spend a lifetime being shuffled between jail and the tender mercies of Social Services and the court system (so it is a sort of self-perpetuating business model I guess). Broken families, broken homes, under achievement, domestic violence, drug abuse, petty crime, prostitution, alienation, hopelessness, suicide - the list goes on from generation to generation. They know that many of the convicted will be brutalized in prison and, if not criminal when they went into prison, will certainly be criminal by the time they get out.

112. Let me finish with words of Lord Denning, Master of the Rolls 1962-1982, probably the most famous judge of the 20th century, who said 'It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.' (de Burgh, Hugo, ed., ‘Investigative Journalism: Context and Practice’, Routledge, 2000, p. 117). When he says ‘the English judicial system’ he means ‘judges’.

113. Judges therefore allow innocent men to rot in jail, by ensuring that any appeal against a wrong sentence is stifled (but they also, as we have seen, send them to jail knowing they are innocent). They do this, according to Lord Denning, in order to protect the judicial system; that is, in essence, other judges. Judges protect the judicial system (other judges) and the judicial system (other judges) protect them (judges). Do you doubt my word on this? If so, just consider the case of the ‘Birmingham Six’ and other high-profile instances of ‘miscarriage of justice’.

114. What is the phrase I am looking for which describes people who conspire to protect each other from the consequences of their own wrongdoing? Ah, here it is - criminal conspiracy.

115. People who really care about justice will move heaven and earth for the sake of one innocent man wrongly convicted. You cannot compromise on such a thing - ever. Why? Because when those who wrongly convict such people know that they will be held accountable, then they will not do such things in the first place. It’s called ‘deterrence’, something one would have thought the police, prosecuting authorities and judges would know about. As Churchill said in a speech at Harrow School on 29/10/1941: "But for everyone, surely, what we have gone through in this period - I am addressing myself to the School - surely from this period of ten months this is the lesson: never give in, never give in, never, never, never - in nothing, great or small, large or petty - never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy."

Further action

116. Apart from publicizing this matter as much as possible, there are a number of steps that can be taken to progress this matter, as follows.

117. The normal thing to do in respect of a criminal offence is to report it to the police, but this would be pretty pointless in this case (given that the police were party to the original prosecution). You will just be ignored and obstructed and, if you persist, you (and your family, friends and associates - pregnant wife and children not excepted) will probably be put under surveillance, harassed, investigated, prosecuted for concocted crimes and possibly locked up under the Mental Health Act.

118. There is always the possibility of a private prosecution of course, but, in Scotland, the procedure has been ‘doctored’ in such way that it is almost impossible to bring a private prosecution, even though there is a fundamental legal right to do so. To bring a private prosecution in Scotland, it appears that an individual must apply to the High Court for a ‘bill of criminal letters’, which can be opposed by the Lord Advocate and the alleged offender. There must also be special circumstances to justify a private prosecution, which can be very difficult to establish. There were only two private prosecutions in Scotland in the 20th century, in 1909 and 1982 (Sweeney v X [1982] ScotHC HCJAC_1).* See also 'Woman loses attempt to bring private prosecution. Judges reject move on rape case,' The Herald, 2/6/1995). Yup, they have it sewn up.

119. In Sweeney v X [1982] ScotHC HCJAC_1 the Lord-Justice General said that the ‘very special circumstances’ required to allow a private prosecution to proceed were 'the marked change which has taken place in the complainer's health and, in light of that change, the Lord Advocate's indication to us that he does not oppose the passing of the bill'. He essentially said that the initial public prosecution should have gone ahead at the time, did not proceed due to the non-availability of the victim for health reasons, but could now go ahead because the victim was available. A (second) public prosecution would have gone ahead had the Lord Advocate not informed the defendants that he would take no further proceedings against them following the collapse of the initial prosecution.

120. The ‘very special circumstances’ were therefore that a public prosecution should now take place but could not do so; hence a private prosecution should be allowed. So the principle is that a private prosecution should be allowed to go ahead where there are sufficient grounds for a public prosecution but that public prosecution cannot happen for some reason (including, perhaps, an unjustified refusal by the public prosecutor to proceed with a public prosecution).

121. In addition, the Lord-Justice General referred to the claimant having a sufficient interest (locus standi) as the victim, but, in England and Wales, anyone can bring a private prosecution; you do not need to be a victim. This is why the RSPCA, for instance, can prosecute people. Is this a ‘human rights issue’ perhaps? On what grounds can people be denied a right (access to justice no less) in Scotland that they undeniably have in England and Wales?

122. In this context see the comments of the Lord Advocate in the House of Commons on 28/2/1887: 'In Scotland it is competent for a private individual to prosecute at his own cost and risk, and that the person accused is a Police Inspector makes the case in no way different from an ordinary one; but the private party cannot do so without the concurrence of the Public Prosecutor. On the other hand, the Public Prosecutor cannot capriciously or oppressively refuse to give his concurrence. If the private party can show that the Public Prosecutor has refused to give his concurrence, either on improper grounds or from corrupt motives, the High Court of Justiciary will intervene to prevent the injustice.’ (Hansard, 28/2/1887).

123. The Scottish Government’s paper ('Information for Bereaved Families and Friends Following Murder or Culpable Homicide', Section 4 - The criminal prosecution, 4.18) states: 'In certain circumstances an individual may seek to prosecute another person for a criminal offence. This is called a private prosecution. To bring a private prosecution you must have the Lord Advocate's consent. This process is very costly and you cannot claim legal aid. It is therefore very rare.'

124. With regard to England, Lord Wilberforce in Gouriet v Union of Post Office Workers (1978) 3 All ER 70 [1977], stressed the importance of the right to bring private prosecutions: 'The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority.' But such a right is not needed in Scotland because the ‘authorities’ never do anything wrong - apart from murder people that is.

125. In England and Wales, a person may, with the consent of the Attorney-General, apply to the High Court under s.13 Coroners Act 1988 for an order that a new inquest be held. Where a previous inquest has been held, under s.13(1)(b), the High Court must be satisfied that: '… whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise, it is necessary or desirable in the interests of justice that a fresh inquest be held'. This is a broad jurisdiction governed by a wide variety of statutory grounds and the interests of justice. Of course, if the Attorney-General refuses to give consent, his decision could be challenged by way of judicial review.

126. In Scotland there are no coroners and the equivalent functions are carried out by the Sheriff Courts under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. The Crown Office and Procurator Fiscal Service’s (COPFS) paper, 'Information for Bereaved Relatives - The Role of the Procurator Fiscal in the Investigation of Deaths', states: 'A Fatal Accident Inquiry is a type of court hearing which publically [sic] inquires into the circumstances of a death. It will be presided over by a Sheriff and will normally be held in the Sheriff Court. If the death has happened as a result of an accident while at work or if the death happened while in legal custody, for example in prison or police custody, a Fatal Accident Inquiry will normally be held. FAIs can be held in other circumstances if it is thought by COPFS to be in the public interest to do so. COPFS seeks to hold FAIs as soon as practicable after a death. The purpose of an FAI is to assess the circumstances surrounding the death and to identify any issues of public concern or safety and to prevent future deaths or injuries. The Procurator Fiscal has responsibility for calling witnesses and leading evidence at an FAI, although other interested parties may also be represented and question witnesses.' On this basis, it seems that an enquiry can be held if it is in the public interest to do so (s.1(1)(b) Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976), and that a decision not to hold an enquiry can be challenged by way of judicial review.

127. Note that the COPFS webpage ‘Our role in Investigating Deaths’ (http://www.crownoffice.gov.uk/investigating-deaths/our-role-in-investigating-deaths) states: 'All deaths where the circumstances are thought to be suspicious must be reported to the Procurator Fiscal. The Procurator Fiscal will instruct the Police to investigate the circumstances and consider whether criminal charges should be brought which may lead to a prosecution.' ‘Thought’ means thought by the person reporting the death (because the reporting of the death results from the fact that the death is thought to be suspicious).

128. The possibility of obtaining a public enquiry should also be considered. In this context see the comments of Nicholas Blake QC in ‘The Deepcut Review’ of 2006 where he wrote (para. 2.73): 'This Review is clear that if material comes to light to suggest there is a case to answer of collusion in a killing, or of a cover up by the state of discreditable conduct relevant to any of the Deepcut deaths, public confidence would demand that a public inquiry be held to substantiate or dismiss such a suggestion.' See also Mousa & Ors, R (on the application of) v Secretary of State for Defence [2013] EWHC 1412 (Admin) on the subject of public enquiries.

129. See also the comments of Nicholas Blake QC in ‘The Deepcut Review’ of 2006 where he wrote (para. 2.76): 'The Inquiries Act [which applies to the whole United Kingdom] came into force in June 2005, following the setting up of this Review, and would be a statutory regime available to the Minister to give effect to any recommendation for a public inquiry arising from the Review. Section 1 of that Act indicates that: “A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that - ... (a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred.” This is clearly a very broad power within the discretion of a Minister that does not afford much assistance as to the threshold of concern to be applied.'

130. Note also that under Article 3 of the European Convention of Human Rights (Prohibition on torture, inhuman or degrading treatment or punishment):

a. the state has a positive obligation to protect people from inhuman or degrading treatment both by state officials and by private persons;

b. where there are sufficient indications (and also where the state 'ought to have been aware') of inhuman or degrading treatment of any person within its jurisdiction, either by state officials or by private persons, the state has a positive obligation to carry out an effective and independent investigation with 'promptness and reasonable expedition' which is capable of identifying and punishing those responsible and which allows the victim to participate effectively in the investigation in one form or another, which necessarily implies telling the victim of the possible breach (that is, it is unlawful for the state to conceal a possible breach from the victim);

c. failure to carry out an effective investigation into a possible breach of Article 3 may amount to a further breach of Article 3 'because the actions or failures to act on the part of the judicial authorities have themselves caused such anguish to those seeking a remedy' (Directorate General of Human Rights, Council of Europe, 'The prohibition of torture - A guide to the implementation of Article 3 of the European Convention on Human Rights', p. 39).

131. Treatment has been held by the Court (ECHR) to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account (see, for instance, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and the Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55), but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

132. In this context see the ECHR cases of Labita v. Italy (Application No. 26772/95) at 120 and following, 97 Members Of The Gldani Congregation Of Jehovah’s Witnesses and 4 Others v. Georgia (Application No. 71156/01) at 96 and following and El-Masri v. The Former Yugoslav Republic of Macedonia (Application No. 39630/09)
at 175 and following.

133. See also Mousa & Ors, R (on the application of) v Secretary of State for Defence [2013] EWHC 1412 (Admin) at 144 with respect to Article 2 ECHR (Right to life) and investigations.

Appendix 1 - Attempting to pervert the course of justice

134. Attempting to pervert the course of justice, is a common law (criminal) offence carrying a possible life sentence. Note that an act does not have to actually pervert the course of justice, it merely has to have a tendency to (a risk that it might) pervert the course of justice.*

*’The accused’s conduct will have a tendency to pervert the course of justice if he has done enough for there to be a possibility, without further action on his part, that a perversion of the course of justice may result; it is irrelevant that the possibility does not materialise' (Murray [1982] 2 All ER 225 [1982] 1 WLR 475, CA).

135. Such conduct will also be malicious in the legal sense. In Rhodes v OPO & Anor [2015] UKSC 32 it was said at 41: 'Lord Herschell said in his judgment in Allen v Flood at p 124: "More than one of the learned judges who were summoned refers with approval to the definition of malice by Bayley J in the case of Bromage v Prosser: 'Malice in common acceptation of the term means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse.' It will be observed that this definition eliminates motive altogether."'

Appendix 2 - Misconduct in public office

136. The common law (criminal) offence of misconduct in public office carries a possible life sentence. Conduct amounting to the crime will also amount to the equivalent tort (civil wrong) of malfeasance in public office. The offence/tort occurs where (1) a public officer acting as such, (2) wilfully neglects to perform his duty and/or wilfully misconducts himself, (3) to such a degree as to amount to an abuse of the public's trust in the office holder, (4) without reasonable excuse or justification (Attorney General's Reference No. 3 of 2003 [2004] EWCA Crim 868 at 61).* On this basis, the official must act wilfully and the misconduct must be serious.*It is worth noting that the decision in this case was based in part on the court’s assessment of the public interest (at 56), in that the court decided that it was not in the public interest to make an offence out of misconduct that is not serious. But it is not the court’s function to decide what the public interest requires; that is the job of Parliament, which makes laws accordingly. The only function of a court is to ascertain the facts and the law and apply the law to the facts. As Lord Halsbury (England’s most eminent legal writer and three times Lord Chancellor) said in the Earldom of Norfolk case of 1907 (R. P. Gadd, 'Peerage Law', p. 110): 'Our duty is to the best of our ability to ascertain what the law is, and, having ascertained it, to give effect to it; to alter it or even modify it is the function of the Legislature, and not of your Lordships’ House.' The court therefore took into account something that it should not have taken into account and its decision was therefore void. In this context see Anisminic Ltd v. Foreign Compensation Commission [1968] UKHL 6 (a House of Lords case binding on the Court of Appeal) at 3: 'It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.' Whoops!

137. With regard to the requirement for the misconduct to be ‘wilful’, I think it is enough to say that misconduct will not result from mere inadvertence; that is, a mistake. If an act is not inadvertent then it is deliberate; wilful therefore means deliberate. This includes wilfully (that is, deliberately) disregarding the risk that the conduct is unlawful; in other words, recklessness as to the unlawfulness of the conduct.

*In Rhodes v OPO & Anor [2015] UKSC 32 it was stated at 84: 'A person acts recklessly with respect to a result if he is aware of a risk that it will occur and it is unreasonable to take that risk having regard to the circumstances as he knows or believes them to be.'

138. A person can intend to act unlawfully and intend a harmful consequence; he can intend to act unlawfully and be reckless as to any harmful consequence; he can be reckless as to whether he is acting unlawfully and intend a harmful consequence and he can be reckless as to whether he is acting unlawfully and be reckless as to any harmful consequence. Any of these combinations would amount to an offence if the person was, in fact, acting illegally, even if there was no harmful consequence arising from the illegal act, because they all include an intention to act unlawfully or recklessness as to whether the act was unlawful.

139. While there is no requirement to show that any harm resulted from the misconduct, the consequences of the conduct may be relevant to the question of whether the misconduct was sufficiently serious to constitute an offence. There may be situations where the misconduct amounts to an offence even though a serious consequence was unlikely or did not happen (Attorney General's Reference No. 3 of 2003 [2004] EWCA Crim 868 at 58). In my view, this is likely to be the case where the nature of the
public office is such that the very highest standards of conduct are demanded of the office holder - as in the case of a judge for instance.

140. With regard to the requirement for the misconduct to be serious, at 57 it was stated: 'As Lord Widgery CJ put it in Dytham, the leading modern criminal case: the element of culpability "must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment". The constitutional context has changed but the rationale for the offence remains that stated by Lord Mansfield in Bembridge: those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public's trust. By way of example, the failure of the constable in Dytham to act, in the absence of a justification or excuse, crossed the threshold for this offence. It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in G, will often influence the decision as to whether the conduct amounted to an abuse of the public's trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.'

141. This introduces a rather novel legal concept, namely that a crime has to be serious before it is prosecuted. After all, the courts do not say that if a person steals £10 (as opposed to £10,000) that does not amount to theft. No, the offence has still been committed and will (or should) be prosecuted; it is just that the seriousness of the offence will be taken into account in deciding upon the sentence. I know of no general de minimis concept in criminal law; theft of £1 is theft; an unwelcome kiss is battery (any unlawful physical contact) and so on. A youth who stole a £3.50 bottle of water during the ‘London riots’ was sentenced to six months in prison (‘London riots: Lidl water thief jailed for six months', Daily Telegraph, 11/8/2011), clearly because the courts wanted to ‘send a message’. So why should this de minimis concept apply in respect of what is, by its very nature, a very serious offence; the deliberate abuse of a public office? Do we not also need to ‘send a message’ to public officials who abuse their positions, and, surely, the more important the position, the less we ought to tolerate any misconduct and the more severe the ‘message’ (punishment)?

142. Since any deliberate abuse of an important public office, and particularly a judicial office, is an abuse of the public’s trust and therefore not acceptable, if follows that any deliberate abuse of a judicial office should be regarded as serious. ‘Seriousness’ should be measured both by the harmfulness of the result and by the acceptability of the conduct by reference to the public office held. If the public expects an officeholder to observe the highest standards of conduct, then the officeholder abuses that trust if he does not observe the highest standards of conduct.

143. At 51 it was stated (referring to Three Rivers District Council v Governor & Company of the Bank of England (No.3) [2003] 2 AC 1): 'Lord Hutton, at page 225A cited a passage in the judgment of Brennan J in the High Court of Australia in Northern Territory of Australia v Mengel 69 ALJR 527, at page 547: "It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office …".'

144. Now judges take the administration of justice very, very seriously and they punish the most minor infractions very severely, as happened on 25/7/2011 in the Bradford Crown Court when Judge Jonathan Rose (who I am guessing has no war medals) imprisoned an 85 year-old decorated war veteran*, Norman Scarth, for six months for contempt of court because he recorded the court proceedings using his phone. In passing, I have never understood why recording court proceedings can be wrong in any way; after all, you are merely recording what happened. How can an accurate record of anything prejudice the administration of justice (which is concerned with determining the truth) in any way?

*He is a veteran of the Arctic Convoys, probably the most dangerous assignment of World War II.

145. Does it not follow that any form of abuse of the office of a judge is serious, if only because when small wrongs go unpunished that inevitably leads to more serious wrongdoing - like murder?

Can judges really act in that way? Well, the above cases are all real, so we need to identify how these things can not only happen but happen regularly (indeed, every day).

Most members of the public see the judicial process as being essentially quite simple; it is just a process of finding out the facts and applying the law to those facts. Not only do the courts have carefully drafted laws and regulations to go by, they have court procedures, rules of interpretation, rules of evidence and the benefit of hundreds of years of case law (precedent). What could possibly go wrong? Lawyers and judges (and victims of the judicial mincing machine) know that a court can basically engineer the process to come to any conclusion they want; they know that this is actually what judges do (and consider themselves very clever in doing - in fact, that is the whole fun of the process). Indeed, they know that the judicial process consists of deciding on an outcome and then finding a way to justify that outcome, using whatever mixture of legal principle, interpretation and case law is required ('Ah, but the facts of this case need to be distinguished slightly from the well-known case of X v Y.'). It's all about the meaning of words. The way in which even the highest courts in the land can tie themselves up in knots over the meaning of one word is illustrated by the fact that the courts in the UK took over 20 years to decide the meaning of the word 'reckless' in the context of manslaughter. Is it objective, by reference to what a reasonable person ought to have known (i.e. the risk of death arising from a course of action), or subjective, by reference to what a person actually knew (See R v Cunningham [1957] 2 QB 396 (subjective test) and R v Caldwell [1982] AC 341 (objective test))? Of course, in this situation there was no deliberate distortion of the meaning of words but it illustrates the scope for deliberate distortion; if courts cannot work out the meaning of a word when they are genuinely trying to do so, how much worse will it be when they deliberately try to distort the meaning of a word?

Let's consider the words of a Professor of Law:

'A court invokes whichever of the rules [of interpretation] produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another.' (Professor John Willis, 'Statutory Interpretation in a Nutshell' (1938) 16 Can. Bar. Rev.)

With reference to the Committee for Privileges and the House of Lords Act 1999 this type of conduct is illustrated by the contradictory statements of two law lords. Lord Hope of Craighead told the Committee that 'I do not think that it is open to this Committee to question the extent and application of the doctrine of sovereignty' but in Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 at 106 he said: 'So here too [with respect to the Treaty of Union] it may be said that the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality.' He then goes on to do exactly what he said the Committee could not do - question Parliamentary sovereignty, which, after all the legal arguments, he rules in favour of (Para. 128) on the basis that it is a political reality! Lord Nicholls of Birkenhead told the Committee that clear language would be needed before article 22 'could sensibly be interpreted as intended to preclude all change' (i.e. he effectively inserted words into the Act in order to allow change i.e. when a document says 'x will apply' there is no express limitation of time and it amounts to inserting words to say otherwise) but in Inco Europe Ltd and Others v. First Choice Distribution (A Firm) and Others [2000] UKHL 15 (one year later) he said that a court could only add words where there was a drafting mistake.

So, the courts make decisions based on their sense of justice. What is wrong with that you say? There are a number of things that are wrong with it, all of which are very serious.

1. The first problem is that the courts do not make decisions based purely on their sense of justice; they weigh the need to do justice to you (which is not entirely absent from their minds) against what they see as the public interest* - and the former nearly always loses out to the latter (and when a judge sees himself as a god-like figure guiding the destiny of the nation - and believe me, that is how they see themselves (and so would you if you wore a funny hat and people called you 'My Lord' all the time) - your life and concerns do not figure largely in the scheme of things). This can, and very often does, lead to the grossest injustice to the individual, including causing people's deaths, ruining their lives and denying them a remedy, as illustrated. At the most fundamental level it is quite simply not the job of a court to decide what the public interest requires; that is the job of elected representatives - and they define what the public interest requires via.... laws. The only (I repeat only) function of a court is to decide on the facts and then apply the law to those facts. As Lord Halsbury said in the Earldom of Norfolk case of 1907 (R. P. Gadd, ‘Peerage Law’, p. 110): ‘Our duty is to the best of our ability to ascertain what the law is, and, having ascertained it, to give effect to it; to alter it or even modify it is the function of the Legislature, and not of your Lordships’ House.'

*Of course, where you have an essentially private issue, like an argument between 2 Russian billionaires, the court has no reason not to do justice; there is no public interest issue. They are quite happy to do justice to you where it doesn't conflict with their interests.

2. The second problem is that when a court can reach any decision it likes you no longer have the rule of law; in fact, you effectively have no law. You are left to depend entirely on what an individual (the judge) thinks is 'right in the circumstances'; the whim of an individual ('Ah, but I am the right sort of individual' counters the judge). That is not law; it is the antithesis of law. When you go to a lawyer for advice and ask him whether you will win a case he will invariably say that he doesn't know. He is not being annoyingly cautious in saying this; he genuinely has no idea because he knows that whatever the law, rules of procedure, rules of evidence or precedent (case law) may say the judge can and will decide whichever way he likes. Uncertain law is no law; you cease to be a litigant and become a supplicant (which is the way they like it).

3. The third problem is that judges are almost entirely unaccountable for their decisions because (1) they are free from civil suit (you cannot sue them), (2) because judges are very, very (very, very) reluctant to find fault with fellow judges (and a lot of them know each other) and (3) because the machinery for making complaints against judges actually operates as a mechanism for protecting judges from complainants, not for holding them to account*. In other words, judges know that they can do what they like and get away with it.

*If you complain to the Office for Judicial Complaints (OJC) that a judge has, for instance, made a decision that was clearly unlawful (e.g refused to admit clearly crucial evidence with no good reason), and provide clear evidence of it, they will reject your complaint on the basis that they can only investigate complaints relating to personal misconduct and not the judge's decision. In doing this, they ignore The Judicial Discipline Regulations (Prescribed Procedures) 2006 (SI 2006/676), section 14(1)(b), which makes it quite clear that the OJC cannot exclude complaints relating to a judge's decision where the complaint also raises a question of misconduct (so if a complaint does raise a question of misconduct the OJC should consider it even if it relates to the judge's decision, which you would have thought was fairly obvious - misconduct is misconduct). If a judge, say, deliberately ignores a critical piece of evidence in making a decision ('I saw him standing over the body with a smoking gun saying "I killed him! I killed him!"') does that not amount to misconduct, even if it 'relates to a decision'? Should a judge be held accountable in such circumstances? Hmmm, difficult one that. Also, there is no mention of 'personal misconduct' in these regulations. If you then complain about the OJC to the Judicial Appointments and Conduct Ombudsman on the basis that the information on the OJC's website (about not being able to investigate any complaint that relates to a judicial decision) is misleading (misleading information is - or rather used to be (they have removed it for some funny reason) - a specific ground for complaint allowed by the ombudsman), he will reject your complaint on the basis that the use of the phrase 'personal misconduct' is 'designed to facilitate complainants' understanding' (Letter from Sir John Brigstocke dated 26/8/2008, ref. 08/657). Well, it gives them an understanding I suppose, but it is a wrong understanding which is deliberately misleading - so, an understanding but not the correct one. This is like saying that a lie is designed to give you a clear understanding. Well, yes, a clear understanding but a wrong understanding. What all this means is that unless a judge calls you a bastard or pokes you in the eye, they will do nothing about it.

4. The fourth problem is that a judge's idea of the 'public interest' is geared heavily towards (1) protecting the legal profession and (2) protecting the establishment - in that order (these are the public interest in his view). To illustrate this point I only need to point out that a person is not allowed to be represented in court by anyone other than a solicitor or barrister. So if you are a poor old lady, who cannot afford legal representation, but who has a friend who, while not being qualified in law, is undoubtedly an expert in it, the courts will deny you the right to be represented by that person - but the party opposing you will, if they can afford it, be entitled to hire the best lawyer in the land. Thus the courts deliberately deny you the opportunity to have the best representation that you could obtain (that is, equality of arms), in spite of, I may say, an over-riding duty under the Civil Procedure Rules (CPR 1) to ensure justice between the parties (which makes those rules meaningless). Why do they do this? To protect the monopoly of the legal profession; that is themselves. In other words, they deliberately deny you access to justice (a fair trial) for money. This is what it boils down to. Clearly, as far as they are concerned, the legal system is there for their benefit, not yours. People who are prepared to act in this manner cannot be relied upon to be impartial - period. See also the heart-rending story of Peggy Wood (also article in The Indpendent 29/7/1993) where the courts decided that the Law Society did not owe her a duty of care. If you think about it this means that while the Law Society has a duty to investigate complaints against solicitors, the victim has no remedy against the Society if it fails to do a proper job i.e. we have a duty with no remedy/sanction for breaching that duty, which is no duty at all. Perhaps the court had not heard of the maxim of equity 'Equity will not suffer a wrong to be without a remedy' (but they would have found a way round that in any event). In Ashby v White (1703) 92 ER 126 Lord Holt said: 'If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.' Clearly, if a right must have an associated remedy for a breach of that right (otherwise it is not a right) then a duty must have an associated remedy/sanction for a breach of that duty (otherwise it is not a duty) - but this was apparently beyond the court's reasoning powers. Furthermore, while the ambulance service, for instance, owes no general duty of care to respond to medical emergencies, once the ambulance service has responded to an emergency call, it does owe a duty of care to the relevant person (see Aitken v Scottish Ambulance Service & Anor [2011] ScotCS CSOH_49) and it follows that once a regulator, such as the Law Society, has undertaken to investigate a complaint, it then owes a duty of care to the complainant to carry out the investigation properly (partly because he may well cease to consider alternative methods of obtaining a remedy). How can it be otherwise?

5. The fifth problem is that judges (indeed the whole judicial system) are heavily prejudiced against certain types of person, and the type of person they hate most is a litigant in person. This is confirmed by the report 'Litigants in person' (Moorhead, Professor R., and Sefton, M, Dept. for Constitutional Affairs, 2005) which says (p. 89): 'As we noted at the outset, many of those we engaged with about unrepresented litigants shaped their immediate reactions around notions that unrepresented litigants were ‘bad or mad’. The judges we spoke to were a notable exception and many staff were sympathetic and constructive in their attitude to unrepresented litigants [or said they were when talking to the authors of the report]Many however also displayed a less flattering undercurrent. It could simply be that the ‘mad, dangerous and stupid’ litigants were what occupied their thoughts because they posed the greatest challenge to their resources and skills, or that they provided better stories, but a notable effect of this tendency was the stereotypical portrayal of unrepresented litigants which in fact is not borne out by a more considered analysis of how often unrepresented litigants become obsessive.' (the evidence shows that litigants in person are no more obsessive than any other type of litigant). In short, if you are a litigant in person then not only do you have no guarantee about the outcome of your case but you can pretty much guarantee that you will be treated as 'bad or mad' and obstructed every step of the way*. This is, of course, a major problem when the majority of people cannot afford to hire a lawyer. Almost the only guarantee you do have is that the legal process will take years, be ruinously expensive and that if you are up against the establishment in any form, or a big company, you will almost invariably lose.

*This obstruction can be very serious. You will find that court staff will obstruct you in every way possible, including directly lying to you and even making you fill in unnecessary forms and pay fees that you are not required to pay. They may well refuse to allow you to send them anything by E-Mail or fax even though solicitors do this all the time. One or two may be helpful but you will find that they rarely know what they are talking about, other than the most basic rules (they are almost completely untrained); you will need to double check everything they tell you. If you complain they may threaten you with a financial investigation (this has happened). An example of this was where a litigant in person who lived over 300 miles from London needed to insert one or two pages into a court bundle held by the Administrative Court in London. The court staff said that they couldn't do it for him and that he would have to go down to London and do it himself. This was a lie as proved by Ewing, R (on the application of) v Davis [2007] EWHC 1730 (Admin), para. 57, which was in the very same court. The solicitors/barristers opposing you will resort to outright lies and character assassination (this will be their main tactic against you in fact), they will fail repeatedly to comply with court rules and court orders and the judge will let them get away with it. One of their main tactics will be to cloud the issues so that the judge loses sight of the key facts (you will be amazed how well this works). They will simply ignore law and case authority that prejudices their case (as will the judge - even if you raise them). You will get the feeling that the judge hasn't even bothered to read your arguments/submissions and you will probably be right about this (sometimes it will be quite evident that he hasn't read your arguments/submissions). Sometimes you will find the judge actually dealing with entirely the wrong matter (Judge: 'I reject you complaint against x.' You: 'Actually my complaint was against y.' A real example). The judge will hammer you for the most minor infringement of the rules and, if you are the claimant, quite probably strike out your claim. Even if he reads your submissions he will simply ignore most of your arguments, dismiss the rest as 'fanciful' and probably try to blacken you as a liar (he will have no compunction about branding you a liar in public). He will interrupt you, over-rule you and not allow you to speak; if you persist in trying to raise a point or ask a question he will simply threaten to lock you up (and then in his judgment he will accuse you of disrupting the hearing); he will bully you mercilessly. If you fight back (i.e. insist on your rights and compliance with the rules) he will simply impose a Civil Restraint Order on you, possibly even without allowing you to first make your case as to why he shouldn't (which is illegal). He will frequently break the rules of his own court in the most flagrant manner (which could even include - this is a real example - hearing a case entirely outside the jurisdiction of the court and continuing even after you have pointed this out to him). When he has finally ruled against you he will hammer you with the costs of the other side (which will be enough to run the legal service of a small country for several years), even though a very large part of those costs have resulted only from their time-wasting, obstruction, obfuscation and rule-breaking. They will heap expensive hotel accommodation and first class travel on you even though you are unemployed and broke. If you appeal you are quite likely to find the appeal court threatening to strike out your appeal because you have failed to provide a document (e.g. the judgment), but this is only because the lower court has failed to provide you with it (another real example). It is likely that this process will cause serious and long-term damage to your health, even a mental breakdown (I have seen repeated examples of this). Trying to be meek and reasonable will make no difference to their conduct, other than to save the judge the trouble of smashing you down. If you take the trouble to learn the court rules and become an expert in the area of law you are concerned with, this will just make the problem worse; the thing they hate most is being shown up by someone like you. All of this is cast iron fact. You will be shocked by it but at least you are forewarned. You may find helpful staff and a sympathetic judge but, frankly, the odds are against it. Even if you do it will probably hit you several months after the case that you have been actually been shafted (many never do wake up to the fact of course).

The question may have occurred to you: 'If the judicial system is so bad then why don't our elected representatives do something about it?' The answer is (1) that a high proportion of politicians are lawyers or ex-lawyers (they do not have your interests at heart), (2) those politicians who are not lawyers are probably not aware of the situation, (3) those politicians who are not lawyers but are aware of the situation are too scared, selfish or lazy to do anything about it (which leaves about 2 MPs (Members of Parliament) who are actually trying to do something about it - which neatly equates to the actual proportion of MPs with a conscience), (4) there is, in effect, a silent 'pact with the devil' between the legislature and the judiciary.

*How do we know that there is a 'pact with the devil'? Well, take s.5 Public Order Act 1986 which criminalizes, inter alia, 'conduct likely to cause alarm'. If you say 'Boo!' to a goose is that likely to cause it alarm? Quite probably. If you say 'Boo!' to an old lady is that likely to cause her alarm? Quite probably. Ergo, if you say 'Boo!' to an old lady you are quite probably committing a criminal offence (note that there is no requirement to prove that the old lady was alarmed, just that she was likely to be alarmed). The key lies in the words 'likely', 'harassment', 'distress' and 'alarm'. It was widely stated when the bill was being debated (i.e. before it became law) that the use of such words was too wide and uncertain; they would potentially criminalize all sorts of ridiculous things and, more importantly, that no-one would know with reasonable certainty what was criminal and what wasn't (see S H Bailey, D J Harris, D C Ormerod, ‘Civil Liberties – Cases and Materials’, 5th Edition, Butterworths, p. 490-492). The effect of not knowing where the boundary of the law lies (i.e. what is an offence and what isn't) is that people modify their conduct to prevent the possibility that they might commit an offence - which means that the effect of uncertain law is actually to ban a much wider range of conduct that was actually intended (or is reasonable - see the 'gay horse' incident above). The point is that Parliament passed this nonsense into law while fully aware of this consequence. In effect, they delegated to the courts the job of deciding what is criminal and what isn't. In other words, Parliament deliberately gave the courts the power to decide what the law ought to be, as opposed to merely applying the law as laid down by Parliament - and they turned you into a criminal for saying 'Boo!' to your granny at the same time. s.5 also covers conduct likely to cause distress. Question: If I say 'I hate your taste in ties' is that likely to cause you distress? Well, it might do so I'd better not say it; it could be criminal. So the law has effectively banned me from saying that I don't like your tie. Well, thanks for that. And don't believe for one second that they won't seek to criminalize such things; you just have to consider the 'gay horse' incident. People have been prosecuted for throwing snowballs, holding a children's birthday party in their own garden, kissing in the street, being nude in their own home and putting up a satirical poster of a politician. Think about the 'gay horse' incident for a moment. The youth who made the remark was let off but would you go and tell a policeman that you think his horse is gay? No. So the effect is that people are now frightened to make any silly remark to a policeman even though the youth was found innocent. Were the police unaware of this consequence? I don't think so. I think they knew the effect that the case would have even if the youth was found innocent and they charged him with the intention of producing that effect. Did Parliament foresee such things happening? I think we have answered that question already. The effect of s.5 is that Parliament has managed to outlaw a wide range of conduct without specifically making it criminal. If you wanted to clamp down on a population without appearing to do so, could you think of a better way? Not even Orwell thought of that.

But there is something even more worrying. What does the word 'likely' mean? Well, I think we can safely say that something can be considered 'likely to happen' if there is a more than 50% chance of it happening. But how does this fit in with the requirement in criminal cases to prove guilt beyond reasonable doubt? People who are prepared to put a figure on the phrase 'beyond reasonable doubt' generally say that it means more than a 90% chance. So, faced with an allegation of an offence under s.5 Public Order Act, a court must be satisfied beyond reasonable doubt that your conduct was likely to cause alarm, harassment or distress; that is, that there is at least a 91% chance that there is at least a 51% chance that your conduct could (not did) cause alarm, harassment or distress. What this means, as any mathematician will tell you, is that the court only needs to be satisfied that there is a 46% chance that your conduct could cause alarm, harassment or distress. In other words, you can be found guilty of a criminal offence when it is more than likely that you did not commit the offence!

In practice, of course, courts (i.e. magistrates and judges) do not think in terms of percentage probabilities, they think in terms of general impressions ('I have an idea that I think this man might be guilty' - combined with their idea of the public interest and an overwhelming unwillingness to conclude that the police are lying). This means that, in practice, courts are quite likely to convict you when there is less than a 46% chance of your having committed the offence. Perhaps 40%? Perhaps 35%? Can we safely assume that courts do not convict on such a basis? No. So there is a reasonable possibility that people will be convicted when there is, say, only a 35% chance that they actually committed the offence, which means that there is a 65% chance that they did not commit the offence. How often this happens we do not know, but we can be reasonably sure that it does happen a lot more than it should - which is never. The point is that a law should never, ever be capable of convicting a person when it is more than likely that they are innocent.

But here's the rub. It is clear that a very wide range of conduct will actually be criminal under such criteria. No problem, you say, because the authorities will only prosecute a tiny fraction of instances of such conduct. But that is precisely the point of course. We are all guilty, but the government decides who gets punished. History tells us that such a state of affairs (the ability of the state to punish whoever it likes) will ALWAYS be abused. And we can only assume that the people who passed this Act into law are not idiots and that they therefore INTENDED to create a situation where, in effect, the government can lock up pretty much anyone it wants. And THAT is why there is a pact with the devil.

This is somewhat comparable to the common rule in companies that people should not use the company internet connection for private use. Now, we all know that everyone uses their company's internet connection for private use, even if only occasionally. But who are the people accused of abuse? Only the people who the company wants to victimize FOR SOME OTHER REASON - and then you can pretty much guarantee that an allegation of abuse of the company's internet connection will be made. Voila, that is how it works. That is how you know it works. And that is how MPs know it works. So we have them sussed.

Not convinced? Well, that was just a taster. Consider the North Wales Child Abuse Scandal, which ultimately led to a judicial enquiry in 1997, the Waterhouse Enquiry, conducted by a judge, Sir Ronald Waterhouse QC (now dead unfortunately - unfortunate because he cannot be held to account). The scandal flared up again in 2012 when allegations surfaced following the exposure of Jimmy Savile as a paedophile; this seems to have given victims the courage to come forward. The 2012 allegations were not new; the complaint was that they had been made during the original enquiries but were either covered up or not properly investigated. A number of points are relevant to this matter as follows:

1. A lot of the abuse seems to have occurred outside the care homes when children (usually boys it seems) were taken away from the homes by car and abused at various locations (motels and so on). In an interview on BBC Radio 5 on 9/11/2012 one of the victims, Keith Gregory, said that it was the 'senior figures', including senior police officers, judges and MPs, who took the boys away from the homes to abuse them. It appears that this abuse was not properly investigated (or not investigated at all) because the remit of the enquiry (see page 19 of the official report) was to investigate 'the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974' and it was considered that since the abuse occurred outside the homes the children were not (technically) 'in care' when the abuse took place*. This was the reasoning that was put forward in a number of media reports in late 2012. So what do you think? Did the authorities cease to have any responsibility for the children the moment those children went out of the front door of their care homes? Do you regard that as an adequate excuse? Would you accept such an excuse from a body or institution responsible for the care of your own children? Note that under s.1(1) Children and Young Peoples Act 1933 it is a criminal offence for a person who is responsible for a child to neglect or ill-treat that child or expose the child to neglect or ill-treatment. Since the local councils had such a legal responsibility, they were criminally liable for what happened. So how many prosecutions were there under s.1(1) Children and Young Peoples Act 1933? That's right. None.

*The report outline on page 18 of the official report says:

'Part I: Introduction
Part II: Alleged abuse of children in care in local authority homes in Clwyd between 1974 and 1996
Part III: Alleged abuse of children in care in other non-private residential establishments in Clwyd between 1974 and 1996
Part IV: Alleged abuse of children in care in private residential establishments in Clwyd between 1974 and 1996
Part V: Alleged abuse of children in foster homes in Clwyd between 1974 and 1996
Part VI: The responsibility of higher management in Clwyd
Part VII: Alleged abuse of children in care in local authority homes in Gwynedd between 1974 and 1996
Part VIII: Alleged abuse of children in care in private residential establishments in Gwynedd between 1974 and 1996
Part IX: Alleged abuse of children in foster homes in Gwynedd between 1974 and 1996
Part X: The responsibility of higher management in Gwynedd
Part XI: The role of the Welsh Office
Part XII: The police investigations in Clywd and Gwynedd
Part XIII: The successor authorities
Part XIV: Conclusions and other recommendations'

The concentration on abuse which took place only on the premises of the care homes and residential establishments is borne out by a deeper examination of the report. Within Part II, for example, the report on abuse at Bryn Estyn only deals with abuse which actually took place at Bryn Estyn itself and not outside the home. But, as stated, the most serious allegations made by the victims concerned abuse by high profile individuals at locations outside the home. The report therefore shows how it is possible to compile an apparently comprehensive 900 page report without looking into the most serious allegations at all and to utterly mislead by the use of a single word - 'in'. It takes an expert legal mind to concoct such a cunning deception, so Sir Ronald Waterhouse put his legal training to good use (in one sense). There is a brief description and assessment in Part XII of child abuse outside homes and residential establishments but this relates only to a tiny handful of victims and, while it does conclude that a paedophile ring probably existed in the area at the time, goes no further than that and does little more than re-hash past enquiries. Essentially, it was decided not to pursue the matter further ('the evidence is insufficient, in our judgment, to establish satisfactorily that particular named individuals committed specific offences on identified occasions' - para. 52.35 i.e. it was the victim's word against the others); some witnesses were examined (para. 52.36) but they denied the allegations and that, it appears, was that. Note that the remit of the inquiry did not include establishing individual culpability, so the reason given for not investigating the matter further was a simple lie.

If you are not persuaded yet then consider this. The first thing that Sir Ronald Waterhouse did (p. 20 of official report) was to issue an order making it (or appearing to make it) contempt of court to identify victims of abuse or those accused of abuse 'bearing in mind (amongst other things) the wide terms of sections 1 and 2 of the Sexual Offences (Amendment) Act 1992'. But sections 1 and 2 of the Act only ban identifying victims. So we have a question. If the law does not ban identifying those accused of abuse then why was such a ban imposed here? The excuse he gave (para. 1.09) was that abusers might be deterred from giving evidence if such a ban was not imposed, but the enquiry had the legal power to force people to attend and to answer questions under ss. 1 and 2 Tribunals of Enquiry (Evidence) Act 1921, under which the enquiry was set up. So he was just lying - plain and simple.

In addition, you will see below that the state has a legal obligation under the Article 3 of the European Convention on Human Rights to conduct any investigation into inhuman or degrading treatment (and I assume that child abuse qualifies as such) in a way that is capable of identifying and punishing perpetrators; and this necessarily implies that an investigation must have the power to summon those accused and make them give evidence. Sir Ronald Waterhouse therefore afforded abusers a protection that was unecessary; he was, in effect, protecting abusers - and this was the first act of the enquiry. He later acknowledged that he had no power to do what he did ('I accept that this Tribunal has no power to make an order affecting the press, apart from statute, and I make clear that no order has been made by the Tribunal under either section 4 or section 11 of the Contempt of Court Act 1981. The word `direction' that appears in the material guidance is, at least partly, a misnomer.' - Appendix 4). The clear fact of the matter is that Sir Ronald Waterhouse had no power to make it contempt of court for the press to identify those accused of abuse but that he tried to mislead the press into thinking that he did. Why would a judge do that?

2. On 8/11/2012 the Channel 4 news programme (7pm) (see http://www.channel4.com/news/child-abuse-north-wales-waterhouse-inquiry-sian-griffiths) interviewed Sian Griffiths, former Head of Personnel at Clwyd Council, who was closely involved in the various enquiries. She said a number of things as follows:

Firstly, she recounted that a senior police officer (Detective Inspector Peter Ackerley of North Wales Police) had, while giving evidence to the enquiry, read out a list of names of people who the police had investigated and referred to the Crown Prosecution Service. He came to the name of a person who 'had been high up in the government and at that point Sir Ronald Waterhouse said "No, that's enough. Stop." and that was it'. Channel 4 reported that this person was a high profile public figure and is still alive.

Secondly, she recounted how one of the abusers, Gary Cooke, had, while giving evidence to the enquiry, mentioned the name of a particular person and how that person was called to appear before the enquiry. She also described how Cooke also mentioned the name of another person (a 'big name') who was not called to appear. She did not know why this 'big name' had not been called to appear before the enquiry. In an interview on BBC Radio 5 on 9/11/2012 one of the victims, Keith Gregory, said that the Waterhouse enquiry was only interested in the lower level perpetrators ('staff at the home and care workers') and ignored the high profile ones. He recounted how the names of high profile perpetrators were removed from their witness statements (by the police) and that, when giving evidence at the enquiry, they were told that they 'must stick to the statements and obviously there were no names [of the high profile perpetrators] on the statements'.

Thirdly, she recounted that an order was made (this must be by Sir Ronald Waterhouse) to destroy photographs of men abusing boys; these photographs apparently showed the faces of the men concerned (see para. 52.61-63 of the official report though it is not clear that these paragraphs relate to the photographs which were destroyed). See also the Daily Mirror article 'Photographic evidence of men abusing boys in care homes 'deliberately destroyed'' (8/11/2012) and the ITV News report of the same date.

Fourthly, when asked what was 'the ultimate price paid by some of those boys' she said 'They died. They died.' and gave a list of names of boys who had committed suicide or died from drug overdoses or similar causes.

In an interview on BBC Radio 5 on 9/11/2012 one of the victims, Keith Gregory, said that 'most of them were members of the freemasons'. He then referred to an earlier report, called the Jillings Report, which had been pulped at the insistence of the council's insurers and which he said would 'show names'. The allegation of masonic involvement was dealt with briefly in the Waterhouse report (p. 718-720) which said at one point (para. 50.45) that 'we have received no evidence whatsoever in support of this allegation'; the point being that an enquiry is surely supposed to actively look for evidence, not wait passively for evidence to fall into its lap. It is perhaps hardly surprising that no evidence was found if none was looked for. A small point. In addition, the Waterhouse enquiry managed to overlook (surprisingly!) the existence of a Masonic Lodge for North Wales Police officers (Custodes Pacis of Llandudno), whose members included a police officer whose prosecution for child abuse had been recommended but was shelved by the Crown Prosecution Service. The lead counsel (barrister) for the enquiry, Gerard Elias QC, was a freemason (Dinas Llandaf lodge). Waterhouse claimed that Elias was a 'desultory' freemason but he was, in fact, master of the lodge in 1984.

So, it appears that:

1. The remit of the Waterhouse Enquiry was limited (by William Hague, then Secretary of State for Wales) in a way that prevented (or allowed the prevention of) investigation of abuse by high profile individuals.
2. The police and the judge conducting the enquiry prevented the names of high profile individuals from appearing in witness statements made by the victims (i.e. they removed them) and refused to allow the victims to name such individuals when they gave evidence to the enquiry.
3. Sir Ronald Waterhouse prevented a senior police officer from naming high profile individuals and ordered the destruction of photographs which showed the faces of such individuals while they were actually abusing children (there are no possible circumstances in which the destruction of evidence by a judge can be justified and this is a clear case of perverting the course of justice; no question).
4. Many of the high profile individuals who committed the abuse were freemasons.
5. Many of the victims committed suicide or died of drug overdoses or similar causes.

So there we are. A cover up do you think? A masonic cover up possibly? Whatever you may think one thing is absolutely clear; that the judge conducting the enquiry committed serious criminal offences, including the destruction of critical evidence, which undoubtedly contributed to, if not actually led to, as a result of the failure of the state to provide an effective remedy for the victims or punishment for the offenders, the deaths of a number of children who had been put into the care of the state for their own protection. It is difficult to imagine a more heinous crime.

Oh, by the way, on the following day (9/11/2012) the BBC (you know, those people who tried to cover up the child abuse by Jimmy Savile) broadcast a news item saying that the Waterhouse Enquiry had been 'meticulous'.

I am afraid it gets worse. Read on.

Following the 2012 allegations two new investigations were announced, one (led by Mrs Justice Julia Macur) to look urgently into the terms of the original inquiry and whether it was properly constituted and one (Operation Pallial involving the police and Serious Organized Crime Agency) to look into how old claims of abuse were handled and at fresh allegations. The problem is that neither of these investigations meet the government's obligations under Article 3 of the European Convention on Human Rights (Prohibition on torture, inhuman or degrading treatment or punishment); the first because it is not an effective investigation capable of identifying and punishing those responsible (Labita v. Italy - Application no. 26772/95 at 131), the second because it is not independent since, as Keith Gregory said in the Channel 4 News on 8/11/2012, it involves the police investigating the police (El-Masri v. The Former Yugoslav Republic of Macedonia - Application no. 39630/09 at 184).

The ECHR cases below show that the government has:

1. a positive obligation to protect people from inhuman and degrading treatment (i.e. not just a negative obligation not to inflict inhuman and degrading treatment), including inhuman and degrading treatment by private persons (i.e. people who are not state officials) as well as state officials;

2. a duty to carry out effective and practically independent official investigations into allegations or indications of such treatment;

3. a duty to carry out such investigations in response to complaints or where no complaint is made but where there are sufficiently clear indications of inhuman and degrading treatment;

4. a duty to carry out such investigations with 'promptness and reasonable expedition'.

5. a duty to carry out investigations that are capable of identifying and punishing those responsible (i.e. an official investigation which is not allowed to allocate blame, such as the Francis Enquiry into the Mid-Staffordhsire NHS Foundation Trust scandal, does not fulfil the government's legal obligation).

6. a duty to allow the victim to 'to participate effectively in the investigation in one form or another'.

In summary:

1. the state has a positive obligation to protect people from inhuman or degrading treatment both by state officials and by private persons;

2. where there are sufficient indications (and also where the state 'ought to have been aware' - see below) of inhuman or degrading treatment of any person within its jurisdiction, either by state officials or by private persons, the state has a positive obligation to carry out an effective and independent investigation with 'promptness and reasonable expedition' which is capable of identifying and punishing those responsible and which allows the victim to to participate effectively in the investigation in one form or another, which necessarily implies telling the victim of the possible breach (i.e. it is unlawful for the state to conceal a possible breach from the victim);

3. failure to carry out an effective investigation into a possible breach of article 3 may amount to a further breach of article 3 'because the actions or failures to act on the part of the judicial authorities have themselves caused such anguish to those seeking a remedy'.

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58559

CASE OF LABITA v. ITALY (Application no. 26772/95)

'120. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517-18, §§ 52 and 53, and the Assenov and Others judgment cited above, p. 3288, § 94).

Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account (see, for instance, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and the Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55), but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

121. Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161 in fine).

122. In the instant case, the ill-treatment complained of by the applicant consisted of, on the one hand, being slapped, blows, squeezing of the testicles and baton blows and, on the other, insults, unnecessary body searches, acts of humiliation (such as being required to remain in handcuffs during medical examinations), intimidation and threats.'

....

'131. The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86; and the Yaºa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance (see paragraph 119 above), be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see the Assenov and Others judgment cited above, p. 3290, § 102).'

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-80395

CASE OF 97 MEMBERS OF THE GLDANI CONGREGATION OF JEHOVAH’S WITNESSES AND 4 OTHERS v. GEORGIA (Application no. 71156/01)

'96. In general, actions incompatible with Article 3 of the Convention incur the liability of a contracting State only if they were inflicted by persons holding an official position. However, the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals (see Pretty, cited above, §§ 50 and 51). A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases (see A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V; and M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003-XII).

This protection calls for reasonable and effective measures, including with regard to children and other vulnerable individuals (see Okkalı v. Turkey, no. 52067/99, § 70, ECHR 2006-... (extracts), and paragraphs 24-27 above), in order to prevent ill-treatment of which the authorities were or ought to have been aware (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, 12 October 2006).

97. Furthermore, Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, cited above, § 151).

Thus, the authorities have an obligation to take action as soon as an official complaint has been lodged. Even in the absence of an express complaint, an investigation should be undertaken if there are other sufficiently clear indications that torture or ill-treatment might have occurred. A requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. Tolerance by the authorities towards such acts cannot but undermine public confidence in the principle of lawfulness and the State’s maintenance of the rule of law (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts); Abdülsamet Yaman v. Turkey, no. 32446/96, § 60, 2 November 2004; and, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 72, ECHR 2002-II).'

Directorate General of Human Rights, Council of Europe, 'The prohibition of torture - A guide to the implementation of Article 3 of the European Convention on Human Rights'

http://echr.coe.int/NR/rdonlyres/0B190136-F756-4679-93EC-42EEBEAD50C3/0/DG2ENHRHAND062003.pdf

p.16

'Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either actual bodily injury or intense physical and mental suffering.'

'Degrading treatment is that which is said to arouse in its victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them. This has also been described as involving treatment such would lead to breaking down the physical or moral resistance of the victim, or as driving the victim to act against his will or conscience. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, regard should be had as to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3.'

p. 39

'Failure to adequately respond to allegations of violations may in and of itself give rise to a separate and discrete violation of Article 3 on the part of the judicial authorities. This can arise because the procedural aspects of Article 3 have not been fulfilled, or because the actions or failures to act on the part of the judicial authorities have themselves caused such anguish to those seeking a remedy. Judicial authorities must have the tools at their disposal to offer and give effect to effective protection to persons from prohibitive behaviour. That means that the legal system needs to be adequately structured, and used, to provide effective protection. Gaps in the legal system will leave the judicial authorities exposed to potentially violating Article 3.'

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115621

CASE OF EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 39630/09)

JUDGMENT

STRASBOURG

13 December 2012

'175. The UNHCHR submitted that the right to the truth was an autonomous right triggered by gross violations, as in the case of enforced disappearances. This right was also embodied in Article 13 and woven into Articles 2, 3 and 5 of the Convention. In enforced disappearances cases, the right to the truth was a particularly compelling norm, in view of the mystery surrounding the fate and whereabouts of the victim, irrespective of the eventual reappearance of the victim. Knowing the truth about gross human rights violations and serious violations of humanitarian law afforded victims, their relatives and close friends a measure of satisfaction. The right to the truth inured to the benefit of the direct victims of the violation, as well as to their relatives and to society at large. Rights holders were entitled to seek and obtain information on various issues, namely the identity of the perpetrators, the progress and results of an investigation and the circumstances and reasons for the perpetration of violations. On the other hand, the right to the truth placed comprehensive obligations on the State, including duties (1) to carry out an effective investigation; (2) to give victims and their relatives effective access to the investigative process; (3) to disclose all relevant information to the victims and the general public; and (4) to protect victims and witnesses from reprisals and threats. Lastly, the UNHCHR argued that the right to the truth was recognised in international law (the Convention on the Protection of All Persons from Enforced Disappearance) and the jurisprudence of the Inter-American Court and the African Commission on Human and Peoples’ Rights.

....

182. The Court reiterates that where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII; Corsacov v. Moldova, no. 18944/02, § 68, 4 April 2006; and Georgiy Bykov, cited above, § 60).

183. The investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others, cited above, § 103 and Bati and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV (extracts)). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrikulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999-IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Boicenco v. Moldova, no. 41088/05, § 123, 11 July 2006).

184. Furthermore, the investigation should be independent from the executive (see Ogur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).

185. Lastly, the victim should be able to participate effectively in the investigation in one form or another (see, mutatis mutandis, Ogur, cited above, § 92; Ognyanova and Choban v. Bulgaria, no. 46317/99, § 107, 23 February 2006; Khadzhialiyev and Others v. Russia, no. 3013/04, § 106, 6 November 2008; Denis Vasilyev v. Russia, no. 32704/04, § 157, 17 December 2009; and Dedovskiy and Others v. Russia, no. 7178/03, § 92, ECHR 2008).'

You will appreciate from what I have said that the legal system is effectively out of control. You are not a litigant able to demand your rights from them but a supplicant with no remedy against them. This is the reality of the situation. Even the European Court of Human Rights (ECHR) does not really affect this situation. Sometimes the UK courts are over-ruled by the ECHR (but ECHR judges broadly share the same attitudes as UK judges) but they just take that in their stride with a shrug of the shoulders; it's no skin off their noses. Whatever the outcome they will not be held to account (and by the time it gets through the ECHR they will probably have retired anyway).

So, which judicial system do you prefer? The judicial system as it exists in the UK today, as described above, where you have no guarantee whatsoever of the outcome, other than that the need to do justice to you will almost certainly take second place to the judge's idea of the public interest, and where going to court is not only uncertain as to outcome but is a ruinously expensive process that will take years and probably cost you your home (to pay legal fees), or would you prefer a feudal baronial court, where you will be tried in an afternoon by a jury of local people (your peers) who may not know how many angels you can fit on the head of a pin but do have common sense and a sense of fair play? Has it occurred to you that you are actually worse off (vis a vis the legal system) than a feudal peasant? Bring back the bad barons! All is forgiven!

Before you answer that question may I remind you of the words of Lord Devlin, a Law Lord:

'The power that puts the jury above the law can never safely be entrusted to a single person [including a judge] or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.' (Lord Devlin, 'The Conscience of the Jury', Law Quarterly Review, July 1991, Vol.107, p.404.)

and the words of Thomas Jefferson:

'Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny'

The answer to the problem is that the rule of law can only be safeguarded by a jury system and by having an effective remedy against bad judges (preferably involving an axe or a length of rope). The first ensures the fairest outcome for you; the second ensures that bad judges will be held to account. In any event, the role of the judge should be severely restricted to matters of procedure and nothing more (give them an inch and they will take a mile).

The choice is yours (Well, it isn't actually but you know what I mean).

'It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.' - Theodore Roosevelt (Speech at the Sorbonne, Paris on 23 April 1910)


'The Descent of Hughes'

Index