Whingeing about legal aid cuts – a reply to Lord McNally

 

Lord McNally, who as justice minister in the coalition government helped steer the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [LASPO] through the House of Lords, wants lawyers to stop whingeing about cuts to legal aid. He thinks that lawyers “bandying about access to justice, it’s really quite fraudulent.”   I’m sure Lord McNally is well versed in access to justice. After all no single measure has cut access to justice to so many people in one go as LASPO which took whole areas of law outside the scope of the legal aid scheme. At a single stroke thousands of citizens were denied access to justice simply because they cannot afford to pay themselves.

 

At the same time as denying legal aid to thousands, the government of which Lord McNally was a member, presided over further cuts to the fees paid under the criminal legal aid scheme to solicitors and barristers who represent those unable to afford a lawyer from their own means. This matters because the more that fees paid under legal aid are cut the more good lawyers are put off from doing such work.   If the good lawyers desert legal aid we will be left with a rump of dedicated but mainly incompetent lawyers who would only do the work because they are not good enough to work in more lucrative areas. That would be a disaster for the millions of people who cannot afford a lawyer even when they need one. And people accused of crime need a good lawyer.   Lord McNally talks about opposition to cuts being fraudulent. Well, read on Lord McNally and let’s see where the fraudulent behaviour arises shall we?

 

Four of my colleagues in chambers were recently involved in a case in the crown court. The accused was charged with theft from his employer to the value of over £1,500, not an insignificant sum if he had been convicted.  As was his right he had elected trial by jury.   The first hearing was in July 2014. In September that year a PCMH was held. This is a substantial hearing for which the advocate has to prepare to deal with all matters relating to the preparation and readiness of the case for trial, such as which witnesses will be required, how long the case will last, what the defence will be and a number of other matters. The case was then listed for a three-day trial in December 2014.

 

The barrister prepared the case for the trial. On the day of trial there was no court available to deal with the case so it was adjourned. After defence representations that the prosecution case was hopeless and that there was no realistic prospect of a conviction the judge, who seems to have been sympathetic to this submission, told the CPS to review the case. It appears that they did not do so. That is not uncommon.

 

In April 2015 the case was listed for a mention and a new trial date was identified in May 2015. Since the original advocate was not available the case was passed to a second barrister. He prepared the case fully for trial. On the afternoon before the trial was due to begin the court pulled the case from the list and it was adjourned. Six months later in November the case was again listed for trial. The second barrister prepared the case again for trial and this time it was adjourned on the day of trial.

 

A third barrister was briefed for another mention hearing and the case was listed again for trial in January 2016. As none of the previous barristers was available a fourth barrister was brought in to take over the case. That barrister had a conference with the client and prepared the case for trial, the fourth occasion on which it had been prepared for trial. On the afternoon before the trial was due to begin the court decided the trial could not go ahead and the hearing became a mention instead of a trial.

 

Finally the case came on in June 2016, nearly two years after it had first been listed. This was the fifth time the case had been listed for trial and the fifth time counsel had prepared the case for a trial. Remarkably after all this time it seems that finally the CPS had got the measure of the case and the prospects of a conviction and they offered no evidence and the defendant was formally acquitted.

 

So after many hours of hard work by four different barristers preparing the case for trial on five separate occasions how many thousands of pounds of tax payers money do you think was wasted in paying the defence barristers on this utterly pointless venture? Don’t forget that the government love to quote how expensive the legal aid scheme is and newspapers love to talk about “fat cat lawyers” getting rich at public expense. So what do you think?  Remember that the trial had to be prepared five times. The barristers had to attend the hearings on numerous occasions.   Do you suspect the figure will be at least say, five thousand pounds, maybe more? The answer? £194! Yes one hundred and ninety four pounds all in, to cover the fees of all four barristers.    Out of that the four barristers had to pay their travel costs, in this case typically more than £20 on each occasion and 20% of their share of the £194 fees to Chambers to cover the costs of the staff and general administration of Chambers.   If you work out the hours of work done, the days in court and the time for travelling to court it means the lawyers were working for a few pounds an hour. Once travel costs are taken into consideration the barristers were actually losing money by doing this case at all. If Mike Ashley paid these rates there would be an outcry.

 

The justification for such derisory fees is said to be to ensure that defence lawyers don’t allow their clients to “play the system” by electing trial in the crown court to spin things out only to plead guilty at the last moment.   It is suggested that threatening to pay so little will act as an incentive to the lawyers to ensure the case is dealt with “expeditiously” and that those who are guilty own up at the earliest stage. Except that this man was innocent, a fact finally recognised by the CPS only after two years and five listings for trial. The CPS lawyers don’t care. They are employed and their wages, poor though they, are not dependent on the result of the case. So what has happened is that the defence lawyers get penalised because the prosecution case was so weak that the defendant rightly decided he would fight the case until the prosecution saw sense and gave in.

 

I’m not suggesting that such fees are representative of the scheme as a whole. Thankfully that is not the case but there is no justification for such pathetically low fees in any circumstances. Nor is it likely that any one barrister will find themselves in this situation every other week but I suspect most junior barristers will have had to put up with this at some point in the last few years.

 

I can’t imagine any other profession putting up with this. This is little short of scandalous. It shows how pathetic the leadership of the Bar who purport to represent barristers has been over the years that they have been prepared to tolerate this state of affairs.    But the Ministry of Justice is also to blame. The current fees scheme has not been revised for almost ten years and all we have had in that time have been further rounds of cuts to already low rates of pay.

 

Last October the Bar Council did in fact put to the government a revised scheme for payment of fees in criminal cases. As devised this scheme would apparently involve no new money but by revising various fees within the scheme it was said that the fees would more readily reflect the actual work done and as a result would be fairer all round.   To my mind this scheme is inadequate because we should be demanding that fees are increased rather than reshuffling the current “envelope” but in the absence of a grassroots demand by the criminal Bar for a rise in fees this scheme is the only show in town. However since October last year the government has sat on the Bar Council’s proposals. Various excuses about being engaged in other things such as the EU Referendum have been offered. Meanwhile, barristers and solicitor-advocates continue to have to put up with fees of this sort.

 

Lord McNally adds insult to injury by suggesting there is anything fraudulent about trying to protect access to justice. Lawyers are entitled to speak out about the denial of access to justice to the public. They are also entitled to speak out about continual cuts to their rates of pay. And when Lord McNally urges lawyers to shut up and stop whingeing he would do well to bear in mind that our patience is not infinite. The criminal Bar flexed its muscles in 2014 by taking direct action in an ultimately successful bid to prevent further cuts.   The government should not think they can simply fob us off with continual reference to the need for austerity.   It is high time the MoJ stopped prevaricating and implemented a scheme for the proper payment of criminal advocates including a mechanism for regular review to ensure fees at least retain their value.

Why History matters – who we are and how we got here

In the highly unlikely event that I should ever think it worthwhile writing my memoirs I think they would be called “The Accidental Advocate”.   Accidental because before ever I wanted to be a barrister I had already fallen I love with history. If things had worked out differently I might have ended up in some ivory tower surrounded by old books full of Norse sagas, ancient chronicles like the Anglo-Saxon Chronicles and other accounts by the likes of Bede.   Over the years many different events from different centuries and different continents have grabbed my attention but in the end I always seem to return to my first love, the history of England between the arrival of the Romans and the coming of the Normans in 1066.

 

Quite why it is this period that so attracts me I am not entirely sure of but there is something about wanting to know where I come from, who were my ancestors, how a group of disparate Iron Age tribes became a series of kingdoms and eventually by the 10th century had evolved into a genuine kingdom of all the English.   One powerful factor in all this for me is that the perfect answer to racist and nationalist bigots who bang on about racial purity and “England for the English” is that to study the development of these island over this thousand year period is to realise how complete a collection of mongrels the inhabitants of these islands really are. Even identifying ourselves as the “English” is only to have seized on the name of one of many cultural and linguistic groups who settled in this country from whom we might just as easily have taken our name.

 

For a start the Romans weren’t really Romans at all or at least lots of them weren’t. One very successful concept developed by the Romans as they extended their empire was to raise legions consisting of peoples who they had already conquered as a way presumably of convincing them of the benefits of being ruled by Rome.   Whether a Belgian or Spaniard being stationed in Britain on the wild north-west frontier of the empire in the first century AD would necessarily have seen it that way is perhaps open to question. Nonetheless that is what happened. The IX legion Hispana which set up camp in Lincoln before moving north across the Humber in about AD 70 to establish a home in what later became the ancient city of York, were as their name suggests mainly recruited from Spain.   Units who were later stationed on Hadrian’s wall in modern Northumberland and Cumbria in the second century included cohorts from the modern Netherlands and Belgium, early examples of the free movement of peoples perhaps. Other units came from Germany, Croatia, North Africa and shock-horror even Syria! So much for immigrants being the fault of the EU or the 21st century civil war in Syria!

 

I like to imagine a group of first century AD Yorkshiremen from the British tribe from around the York area known as the Brigantes sitting around a fire on a Friday night drinking the local ale.   I imagine them complaining about the bloody foreigners coming over here and ruining the lovely unspoilt countryside with building a huge wall of stone, laying roads across previously open land with aquaducts and viaducts and vineyards and all the other things Reg’s group in Life of Brian complain about the Romans bringing with them. And then of course there will have been the inter-breeding and before long those foreigners will have been settling down with British women and before you know it you would have had an even more multi-cultural population that we have in Britain today.

 

And after the Romans we had the Angles, Saxons and Jutes of whom the fabled “English”, the Angles were just one part. They came from the areas of modern north Germany and Holland. Other groups came from the south of modern Denmark.   From the late 8th century the Danes made their appearance in England and were here in large numbers until the Normans arrived in 1066. Before that though we also “welcomed” the Vikings from Norway although some of these had spent a century or so in Ireland before they took the short trip across to Lancashire. And those Normans were sort of French but their very name contains an important clue to their origins. These were the dreaded “Northmen”, cousins of those who attacked and then settled in England in the 9th and 10th centuries, who in the space of about four generations had become native Frenchmen. So pick the bones out of that lot before you start all this “England for the English” nonsense. When we speak of “the English”, we aren’t actually speaking of a tribe of thoroughbreds, but a collection of mongrels with all the fabulous diversity that mixing together and interbreeding has brought.

 

For me the study of history has to be about much more than merely reading books and ancient documents even if they include the works of writers like Bede or the Anglo-Saxon Chronicles, contemporaneous as they were from about the late 9th century or the study of fabulous creations like the Lindisfarne Gospels. Museums can also play an important part in helping to bring history to life but for me what really sets the sparks flying is to go to places were great things or maybe even rather mundane things happened and just stand there and soak in the atmosphere, close your eyes and imagine how this scene was at some much earlier time in history.

 

So it was that in mid-July I set off on the first leg of my Magical History Tour 2016. First stop was Lincoln. Lincoln is full of fantastic stuff starting of course with its magnificent cathedral.

IMG_0842

 

One of the things I like about driving to Lincoln on the A57 is that you can first see the cathedral from many miles away stuck up on top of a raised plateau as it is. You don’t need to believe in a deity to acknowledge this as one of the greatest and most beautiful buildings in Europe, if not the world. Built and re-built over several hundred years following a previous major collapse you can see the progress of the work in the building itself from the west face of the cathedral. From the crude round arches of the Normans who didn’t really understand load-bearing to the far more elegant and sophisticated structures the higher up you go. For years I have always enjoyed a visit to see the Lincoln copy of Magna Carta which until recently was housed in an unprepossessing council building in the grounds of the castle and Crown Court. In time for the 800th anniversary of this most celebrated document in English history a new room was built to house Magna Carta. Unfortunately the heating doesn’t work properly and was in danger of damaging the document so it has been closed and as a result Magna Carta is currently not on display.

 

Undeterred by this I set about investigating the Roman origins of Lincoln. Because they built in stone rather than wood a surprising amount of Roman Lincoln survives despite the fact the city had been in constant occupation since Roman times and modern development has undoubtedly destroyed a significant amount of the physical evidence. However the base of the eastern gateway to the city is clearly visible in the grounds of a modern hotel, including the base of a stone staircase.

IMG_0837

On the other side of the Roman city, part of the western gate remains on view beside the later gate in the castle walls. In between part of a wall called the Mint Wall survives and is particularly significant because this was part of the civil forum buildings rather than the military part of the city. The columns on one side of the forum were uncovered in the late nineteenth century and their location today is marked by a series of circles set in the roadway and pavement.

 

My favourite part of the Roman remains of Lincoln however is the Newport gate. This would have been the northern gate of the Roman settlement. It was built on Ermine Street which begins in London. This section marked the start of the length of more than thirty miles of Ermine Street that runs from Lincoln to Winteringham on the south banks of the Humber. What is most remarkable about Newport Gate is that it is still in use to this day as a gateway to the city and traffic can enter the city through its arch as it has done for more than 1700 years.

IMG_0826

It is the sole remaining Roman arch in this country that is still in working order for vehicular traffic.

IMG_0825

When you approach it is seems to be rather low for a working archway. The explanation for this lies nearby. On the west side of the arch you see the foundations of one of the pillars of the arch. It is set about two metres below the modern ground level. In other words back in the 3rd century the ground level through the arch itself would have been about two metres lower thus leaving plenty of height for the largest of wagons using it.

IMG_0823

 

Lincoln remains a bustling city to this day albeit on a modest scale compared to many other modern cities. But it was easy to stand by the Newport gate and imagine how it must all have looked and sounded back in bustling Roman times.

From Lincoln I drove north on Ermine Street.   It is surprising how faithful to the original routes laid down by the Romans over nineteen hundred years ago some of our major roads remain. The A5 for example which runs from London to near Shrewsbury pretty much follows the original route of Watling Street north of London. The same can be said for parts of the A1, the Great North Road although modern requirements have increasingly meant that the modern road has ploughed new furrows not necessary to cope with traffic demands in Roman times. But from Lincoln the present road, the A15 is pretty much a straight road for thirty odd miles until the road nears the Humber river. In Roman times there was a ferry terminal near the modern village of Winteringham, just a few miles west of the modern bridge over the Humber, which linked up with the Roman fort at Brough on Humber (Petuaria) on the north side of the river.

IMG_0009

Today there is little trace of either site but on a cloudy morning in July of this year I stood roughly where the Roman fort would have been from around 71 AD and imagined the traffic being ferried to and fro along that important Roman artery from York to the south.

IMG_0861

In my next blog I will turn to events at the other end of my favourite period of English history, namely 1066, a very significant year in English history and visit Riccall, York and Stamford Bridge.

 

Taking a horse to water – why hooligans did not cause the Hillsborough Disaster

There are some people who apparently still believe that the world is only about 6,000 years old. They base this crackpot idea on their reading of various parts of the Bible.   This creates a number of problems not the least of which is that dinosaurs must have co-existed with humans.   On the other hand the evidence, namely the science tells us that the earth is about 4.5 billion years old, that dinosaurs died out about 65 million years ago and that humans’ ancestors go back only a few million years, making the scary thought of co-existence with dinosaurs, one worry we needn’t bother about.  It just goes to show however that there is no accounting for the weird ideas people can come up up even when confronted with evidence directly to the contrary.

On an entirely different topic, namely Hillsborough, my attention was drawn a few days ago to a post on Youtube in which someone by the name of Thomas Baden-Riess sets out in somewhat rambling form his view that despite arguments, not to mention evidence to the contrary the cause of the death of 96 Liverpool fans in the Hillsborough disaster was the bad behaviour of a substantial minority of Liverpool fans.    Those familiar with the Inquests will have a horrible sense of deja-vu.

In the video posted earlier in August 2016 the author refers to having read the interim Taylor report published in the summer of 1989 and the findings of the Hillsborough Independent Panel published in the summer of 2012.   It isn’t clear however from the video that he has read any of the evidence from the recently concluded Inquests or alternatively that he kept up with what was happening during the Inquests by reading the reports of newspapers such as the Liverpool Echo which covered the entirety of the proceedings and which provided very useful and easily digested summaries of the evidence.

The author begins his piece by suggesting that the police teams ran the wrong arguments at the Inquests by trying to suggest the Liverpool fans were drunk, late and ticketless, describing these as “straw arguments” that it was easy for the family lawyers to demolish. He suggests that the police should have argued instead that the deaths were caused by the bad behaviour of the fans. This seems to be based on  pure supposition by the author and not by reference to any of the evidence heard by the jury in the course of two years of evidence.

The author might have paused to ask himself why, if his theory held any water, and despite the considerable array of legal talent at the Inquests representing numerous police teams, there was hardly any attempt to raise this particular argument.   I lost count of the number of times during the Inquests when the Coroner reminded the jury that no one was arguing that the disaster was caused by hooliganism.  It is true that counsel on behalf of the Match Commanders, who left no stone unturned in his desperate attempt to blame the fans, made a brief attempt to suggest that fans entering Pens 3 and 4 of the Leppings Lane terrace around 2.50pm were pushing in a malevolent way but even he gave up on this when the CCTV footage was played and showed no such behaviour.  There simply was no evidence of the hooliganism or bad behaviour to which Mr Baden-Riess refers either from CCTV footage or evidence from dozens of police officers at the ground on the day.  Without evidence Mr Baden-Riess is left with pure conjecture which is of course no rational basis for making serious allegations.

Nowhere in his video does the author acknowledge the very important fact that many of those who died in the crush were not in the ground before about 2.55pm.  I have dealt with this issue in a previous blog here  but as this is important it is worth repeating that between a quarter and one-third of those who died only entered the pens after being admitted into the ground by the police through the open exit gate C at 2.52pm.  In other words they were part of the mass of people who were allowed to enter the already grossly overcrowded pens.  I don’t understand even this author to be suggesting any of the Liverpool fans were intent on suicide.

The football authorities as well as the police were well aware at the time that many fans prefer to watch the game from as near as possible to one of the goals.  Fans entering the Leppings Lane end would have seen a large sign immediately above the tunnel with the word “Standing” on it.  No alternative entry point to the terraces was obvious.  It was in fact possible to enter the Leppings Lane terrace from both ends but the signage to this effect to the right hand side was so small you needed to be right underneath it to read it and to get to the terrace from the left hand side required fans to go through a small gateway in a wall which had no signs on it at all.  In addition many fans who gave evidence said that they would have expected, from their experience at other grounds, that once they had gone down the tunnel they would have been able to spread out along the terrace so that if they found the area immediately behind the goal was already uncomfortably full they could have moved towards the sides. However it was only once they had entered the central pens that they realised there was no way to move to the sides short of scaling 5 foot fences.  There was nothing remotely irresponsible, much less evidence of hooliganism in deciding to go down the tunnel that afternoon.  None of those entering could have known in advance what was happening inside those pens.

The evidence at the Inquests showed, as had the Taylor report and the HIP report that the South Yorkshire Police [SYP] had decided to leave it entirely to the fans to sort out where they stood on the terrace. This farcical policy was known as “find your own level”.  It amounted to an abdication of responsibility on the part of the SYP.  To this end there were no police officers behind the turnstiles to direct fans as to where to go. In particular and despite clear evidence that this had been done on many occasions before including at the corresponding match the previous year, no attempt was made to close the gates to the tunnel or to post a few police officers who could easily have prevented anyone else going down the tunnel and directed the fans as to how else they could get onto the terrace.  It was that abject failure by the SYP that lead to the deaths of the 96 not any supposed acts of hooliganism by them or their mates.  That much was clear from the jury’s conclusions at the Inquests.

In the end just as you can take a horse to water but you can’t make it drink, there is no way of persuading everyone of the truth about Hillsborough even if it is staring them in the face.  Mr Baden-Riess is entitled to his opinions but the rest of the world should know there is no evidence for what he says.  His musings are baseless.

 

 

 

“And the Sun Shines Now” – a review

IMG_0480

The title is a quote from the BBC’s Peter Jones at the end of his commentary on the day of the Hillsborough disaster. The author was in pen 3 on the Leppings Lane terrace that day. His experience was that of those who died except that by some twist of fate he didn’t die. So you might expect that this book published shortly after the conclusion of the recent Inquests would be about the Hillsborough disaster. But as the subtitle “How Hillsborough and the Premier League Changed Britain” suggests it is about a lot more than Hillsborough alone.

 

Having said that, the book both starts and finishes with Hillsborough. In the first chapter the author relates in terrible detail the experience of those caught in that deadly crush, how it felt and how it smelled when you think you are going to die. Then there was the indifference of the watching police officers to the plight of those thousands packed into a space that should have held about half the actual number present. In the final chapter the author deals with the recent Inquests themselves. He explains the impact of the Coroner’s controversial decision, [entirely unnecessary in light of the strong words of Judge LCJ when quashing the original verdicts, about not allowing the new Inquests to descend into an adversarial quagmire] to allow the police teams led by the Match Commanders yet again to raise the tired old theme that drunken, late, ticketless fans were to blame for the disaster. He explains how he and other survivors faced the dawning realisation that the Inquests could end up officially laying part of the blame for the disaster at the feet of the fans who themselves only just survived the crush. This was a dangerous game played by the Coroner which, no thanks to his judgment, ended with formal verdicts from the jury which entirely exonerated the survivors of the disaster. So Hillsborough bookends both the start and end of this story and provides the backdrop against which the author considers the impact that the Hillsborough disaster had on football.

 

Adrian Tempany considers how Lord Taylor’s report on the disaster provided the impetus for all-seater stadia in England’s top two divisions. Three years later the top clubs broke away from the Football League to form the Premier League. Adrian charts in detail the resistible rise of Rupert Murdoch and Sky TV when football decided to sell its soul to the highest bidder. Rising ticket prices, allegedly to pay for better stadia, led to the commodification and gentrification of football. It’s a tale many football fans will easily recognise.

 

There is an excellent chapter on the football magazines and fanzines that became so popular in the 1980s.   One of my favourite passages explored how the role of football and terrace culture in the passage between childhood and manhood should not to be overlooked. In one interview, a Sunderland fan explained the importance of kids seeing how grown men could behave in a completely different way when released from the constraints of normal life and experienced the unconfined joy of seeing their team score a goal and watching men who didn’t know each other “shouting and screaming and hugging one another”.   As the author says “there is terrace culture but there is no such thing as seat culture.”

 

The book also explores the extent to which clubs both in England and abroad have attempted to re-engage with the communities within which their grounds are located and the author has considered at some length the German model of fan ownership and participation in the running of their clubs.

 

Overall this is a fine book, obviously the result of a lot of detailed research and full of thought provoking arguments and it is absolutely no reflection on it that I remain pessimistic about so called top-flight football.  Those of us who regularly attend Premier League games are addicts who can’t kick the habit. I readily include myself in this as a season ticket holder at my club.   We’ve seen our clubs high-jacked by an assortment of crooks, spivs, tyrants, fraudsters and Mafiosi. Ticket prices make a trip with the kids to a Premier League game about as costly as a week’s holiday on the Med. Kick-off times are arranged not for the supporters attending the game, many of whom have to travel a hundred miles or more to get there but for the world wide audience [customers not supporters] mainly in the Far East. This season’s latest indignity is Friday evening kick-offs requiring major adjustments to work and family life just to attend. A game that is supposed to be about escapism from the rigours of work and the druggery of much of life now requires planning not unlike an expedition to the South Pole.

 

But if we are addicts we are also cowards. For all my dislike of Manchester United I am in awe of the several thousand Stretford Enders who decided that they had had enough when their club became the victim of a takeover by an American family who probably didn’t even know the shape of a football before they bought it. They spoke of buying not the football club but the franchise, as if Manchester United was a car dealership or a fast food outlet. It takes courage to walk away from the club you love especially when it happens to be the most successful club in the Premier League era and start all over again. The tale of FC United of Manchester and the fight by true fans to ensure that they keep their club because it is theirs and not some businessman’s toy is an inspiration and I hope that a future edition of this book will look in more detail at how the club was set up and has achieved what it has so far in the few years since its formation.

 

After almost three years of working solidly on the Hillsborough Inquests you might think this book would have been a bit of busman’s holiday for me. Not a bit of it. I got so into it that I had to slow down so as to allow the various arguments more time to take hold in my head. Even so I read it in three days and loved it. If you love football, if you hate the direction of much of modern game and if you still have a feel for injustice then this book has it all. Do yourself a favour and get a copy.

“And the Sun Shines Now” – a review

The title is a quote from the BBC’s Peter Jones at the end of his commentary on the day of the Hillsborough disaster. The author was in pen 3 on the Leppings Lane terrace that day. His experience was that of those who died except that by some twist of fate he didn’t die. So you might expect that this book published shortly after the conclusion of the recent Inquests would be about the Hillsborough disaster. But as the subtitle “How Hillsborough and the Premier League Changed Britain” suggests it is about a lot more than Hillsborough alone.

 

Having said that, the book both starts and finishes with Hillsborough. In the first chapter the author relates in terrible detail the experience of those caught in that deadly crush, how it felt and how it smelled when you think you are going to die. Then there was the indifference of the watching police officers to the plight of those thousands packed into a space that should have held about half the actual number present. In the final chapter the author deals with the recent Inquests themselves. He explains the impact of the Coroner’s controversial decision, [entirely unnecessary in light of the strong words of Judge LCJ when quashing the original verdicts, about not allowing the new Inquests to descend into an adversarial quagmire] to allow the police teams led by the Match Commanders yet again to raise the tired old theme that drunken, late, ticketless fans were to blame for the disaster. He explains how he and other survivors faced the dawning realisation that the Inquests could end up officially laying part of the blame for the disaster at the feet of the fans who themselves only just survived the crush. This was a dangerous game played by the Coroner which, no thanks to his judgment, ended with formal verdicts from the jury which entirely exonerated the survivors of the disaster. So Hillsborough bookends both the start and end of this story and provides the backdrop against which the author considers the impact that the Hillsborough disaster had on football.

 

Adrian Tempany considers how Lord Taylor’s report on the disaster provided the impetus for all-seater stadia in England’s top two divisions. Three years later the top clubs broke away from the Football League to form the Premier League. Adrian charts in detail the resistible rise of Rupert Murdoch and Sky TV when football decided to sell its soul to the highest bidder. Rising ticket prices, allegedly to pay for better stadia, led to the commodification and gentrification of football. It’s a tale many football fans will easily recognise.

 

There is an excellent chapter on the football magazines and fanzines that became so popular in the 1980s.   One of my favourite passages explored how the role of football and terrace culture in the passage between childhood and manhood should not to be overlooked. In one interview, a Sunderland fan explained the importance of kids seeing how grown men could behave in a completely different way when released from the constraints of normal life and experienced the unconfined joy of seeing their team score a goal and watching men who didn’t know each other “shouting and screaming and hugging one another”.   As the author says “there is terrace culture but there is no such thing as seat culture.”

 

The book also explores the extent to which clubs both in England and abroad have attempted to re-engage with the communities within which their grounds are located and the author has considered at some length the German model of fan ownership and participation in the running of their clubs.

 

Overall this is a fine book, obviously the result of a lot of detailed research and full of thought provoking arguments and it is absolutely no reflection on it that I remain pessimistic about so called top-flight football.  Those of us who regularly attend Premier League games are addicts who can’t kick the habit. I readily include myself in this as a season ticket holder at my club.   We’ve seen our clubs high-jacked by an assortment of crooks, spivs, tyrants, fraudsters and Mafiosi. Ticket prices make a trip with the kids to a Premier League game about as costly as a week’s holiday on the Med. Kick-off times are arranged not for the supporters attending the game, many of whom have to travel a hundred miles or more to get there but for the world wide audience [customers not supporters] mainly in the Far East. This season’s latest indignity is Friday evening kick-offs requiring major adjustments to work and family life just to attend. A game that is supposed to be about escapism from the rigours of work and the druggery of much of life now requires planning not unlike an expedition to the South Pole.

 

But if we are addicts we are also cowards. For all my dislike of Manchester United I am in awe of the several thousand Stretford Enders who decided that they had had enough when their club became the victim of a takeover by an American family who probably didn’t even know the shape of a football before they bought it. They spoke of buying not the football club but the franchise, as if Manchester United was a car dealership or a fast food outlet. It takes courage to walk away from the club you love especially when it happens to be the most successful club in the Premier League era and start all over again. The tale of FC United of Manchester and the fight by true fans to ensure that they keep their club because it is theirs and not some businessman’s toy is an inspiration and I hope that a future edition of this book will look in more detail at how the club was set up and has achieved what it has so far in the few years since its formation.

 

After almost three years of working solidly on the Hillsborough Inquests you might think this book would have been a bit of busman’s holiday for me. Not a bit of it. I got so into it that I had to slow down so as to allow the various arguments more time to take hold in my head. Even so I read it in three days and loved it. If you love football, if you hate the direction of much of modern game and if you still have a feel for injustice then this book has it all. Do yourself a favour and get a copy.

How SYP lies about Hillsborough convinced David Blunkett

David Blunkett seems to be one of many who have been misled by police lies about those who died at Hillsborough.  When contacted recently by the Liverpool Echo here Blunkett sent a note that said:

“Please see speeches in the Commons, which included a clear reiteration on several occasions that those killed and maimed in the disaster had by the very nature of their location in the ground, been at the match very early and could never be blamed in any way for what happened.”

This seems to be based on one of the myths about the Hillsborough disaster that was peddled by the South Yorkshire Police as part of their plan to divert blame away from themselves and on to other Liverpool fans.  According to this myth those who died had been in the ground very early on the afternoon of the disaster.  A number of police officers claimed in their witness statements and evidence that those arriving early were as they described them “decent family types” and included children, family groups and older spectators.  In the make-belief world of the SYP it was these people who were killed when a “tanked up mob” consisting mainly of drunken younger men arrived at the ground close to kick off in such large numbers that the police were overwhelmed and had little choice but to open an exit gate.  That allowed a tide of people to enter the stadium, many of whom rushed down the tunnel and killed the innocent fans at the front nearest to the perimeter fences.

The CCTV footage from the day, available to the police at the time, showed this was complete nonsense.  Those who were in the pens from early on that afternoon were just the same as those who came in later in the day.  They were ordinary football fans of different ages, predominantly young people, men and women.   The CCTV footage and still photographs of the crowd also showed many of those who died were still outside the turnstiles at around 2.50pm that day, just ten minutes before kick off.

One of those who had peddled this SYP particular lie for as long as any was a certain Paul Middup.  At the time of the disaster he was national chairman of the Police Federation representing 100,000 officers.   He seems to have had little hesitation in appearing on television in the days after the disaster giving vent to his opinions about the responsibility of the Liverpool supporters for the disaster.  When he gave evidence to the recent Inquests in February 2015 it was apparent he still believed the old police lies and hadn’t bothered at any point in the intervening twenty-six years to try to educate himself as to what really happened.

In a witness statement he had provided Mr Middup had said:

“When the order was given finally for the gate to be opened, the fans rushed in and went down the tunnel, something like a human train, and forced the people at the front onto the fencing.”

When questioned on 13th February 2015 the following exchange with Mr Middup took place:

Q. You were completely ignorant, weren’t you, that amongst these fans that you described as a mob were people who died in the pens a few minutes later?   A. I didn’t know that until yesterday.

Q. Well, that is what I was going to ask you next. Do I understand this, Mr Middup, that, at least until yesterday, your view of this disaster was that these fans had rushed in through this exit gate, down the tunnel, like, as you described it in your interviews, a “human train”, had crushed the innocent people at the front who had been in the ground in good time onto the fencing, and that’s how they died? A. Yes.

Q. So this is the group, is it, this “mob”, “tanked up”, as you elsewhere describe them, who are, at least in your view, partly to blame for this disaster?  A. That’s the view — that was the view of my members and, yes, I did believe it to be partly to blame for it, yes.

Q. But yesterday, apparently for the very first time, you learnt that, in fact, some of those who died in those pens were part of those very fans you describe as the mob rushing into the ground? A. I heard that yesterday for the very first time, but I still don’t know how many of those people were affected.”

The truth that for so long Mr Middup couldn’t be bothered to face is that many of those who were caught in the deadly crush and barely escaped with their lives only entered the ground after 2.52pm when the exit gate C was opened on the orders of Chief Superintendent Duckenfield, the match commander.  Somewhere between a quarter and a third of the 96 who died entered the ground in that way.

So the evidence as heard by the jury, but which people like Mr Middup could have discovered at the time, showed that the police fiction was just that and bore no relation to the truth.  Such myths, sufficient to persuade politicians like David Blunkett of their truth, became part of the widely accepted narrative of the disaster and it is one of the great achievements of the recent Inquests that this, along with many other lies peddled by SYP for so many years, can now be consigned to the dustbin of history.

It’s alright Jack, like taxes, the rule of law is only for the little people

Cripes! That was close.  For a minute or two there I thought that Sir Mark Allen and maybe even Jack Straw were in serious trouble.  Kidnapping and conspiracy to commit GBH is no laughing matter.  I mean Allen pretty much gave the game away when he was foolish enough to write a letter to Moussa Koussa, Colonel Gaddafi’s foreign minister admitting with obvious pride the part that he had played in the kidnapping and rendition [that’s security services talk for torture, its sounds less brutal] of two of Gaddafi’s opponents.  Of course that letter was never intended to be made public.  Imagine therefore the irony.  That letter only found its way into the public domain after NATO, with support from the UK government, bombed the Colonel’s compound in Tripoli.  Just goes to show that when  you bomb a foreign country you really should ensure that you do the job properly!

Its not likely that Allen went to all that trouble on his own initiative and without getting the approval of his boss, the then foreign secretary Jack Straw.   Trouble is poor old Jack’s memory’s not all it used to be. And anyway he was far to busy to remember if he did give his approval.  If he did Allen would have probably been in the clear thanks to s.7 of the Intelligence Services Act 1994.  The so-called “James Bond” clause protects MI6 officers from prosecution for acts done anywhere in the world that would otherwise be illegal providing they were authorised in writing by the Secretary of State which in this context means Jack Straw.

Anyway, after a four year investigation by the police, described as “thorough and painstaking”, that generated a file running to about 28,000 pages, Sue Hemming, head of the CPS’s special crime and counter-intelligence division has decided there is insufficient evidence.   Mind you just to be on the safe side she did get an opinion from the First Senior Treasury Counsel, Richard Whittam QC confirming there was indeed insufficient evidence. Phew, what a relief.  I mean when you consider the size of the prosecution file that Knacker of the Yard had put together it was always going to be a tall order to be able to pass that lot off as not being enough?   But happily our top prosecutors have come through.

It seems after all that like taxes, the rule of law is only for the little people.   Good job its not the same Sue Hemmings who is charged with making decisions about the prosecution of former Chief Superintendent Duckenfield of Hillsborough fame and other senior figures involved in the disaster and subsequent cover-up.  Oh, wait a minute…

Let’s be clear, Patnick was NOT the Hillsborough MP

Last Saturday’s Guardian Review section carried a review by Andy Beckett of Adrian Tempany’s new book “And the Sun Shines Now” about football since the Hillsborough disaster.  It was an excellent review of a book I can’t wait to read over the summer.  There was however one detail that Andy got wrong.  It’s a mistake that others have made before but it is important and it needs to be corrected.  I wrote a letter to the Guardian but as far as I can tell they have neither published the letter nor printed a correction to the review.  So here is the letter I wrote:-

“In his otherwise excellent review of this important new book on the Hillsborough Disaster, Andy Beckett makes an unfortunate but important error in describing Irvine Patnick as “the Hillsborough area’s MP”.  Patnick was not the local MP. He was instead MP for a neighbouring constituency in Hallam.  The error suggests that Patnick’s presence on the evening of the disaster at the police facility at Niagara Sports ground had a legitimacy that is does not deserve.  This was not the local constituency MP offering his support – he managed to completely ignore the families who gathered near the ground that evening  – this was the local Tory MP choosing to offer his support to the police force responsible for the disaster. Patnick used the opportunity to gather many of the more lurid accounts from police officers and he was largely responsible for helping to publicise many of the worst lies and calumnies heaped on the Liverpool fans, including in the notorious article later that week in The Sun.   As one of the barristers who represented 22 of the families at the recently concluded Inquests I hope you will correct this error.”

Playing with People’s Lives – Due Process in Alabama

The Equal Justice Initiative [EJI] has been fighting to save Jerry Smith’s life for many years now.   Mr Smith was convicted of capital murder and sentenced to death in 1998. Remarkably on 3rd June 2016 his death sentence was overturned for the fourth time and he now faces a fifth sentencing hearing.  The history of this case indicates an extraordinary lax attitude on the part of the State courts towards due process and basic fairness in a criminal justice system where the stakes could not be higher.

Alabama is one of only three states in the Union [the others are Delaware and Florida] where the jury merely makes a recommendation as to the appropriate sentence, which is then decided by the judge.  The concept of “judicial override” was overturned by the Supreme Court in Hurst v Florida 577 U.S. ___ (2016) in January of this year.  That in turn raises serious doubts about the Alabama death sentencing scheme which is likely to become a further complication in this case.

Mr Smith’s original death sentence was reversed by the Alabama Supreme Court because the trial court improperly excluded mitigating evidence from the jury’s consideration.  A second sentencing hearing was ordered.   By this time Smith had new attorneys from EJI.  The purpose of the punishment hearing was to decide whether Smith deserved the death penalty or whether he would be sentenced to life imprisonment.   During jury selection it became apparent to the defence attorneys that members of the family of one of the victims had been sitting outside the court talking with the jury panel and that the mother of one of the victims had been saying “he killed my son” and “he needs to die.”   When the venire panel entered the courtroom the family members came in with them and again sat with them unchallenged.  At one point a family member again said aloud “he needs to die. He took my son’s life.”  The prosecutor who obviously knew the family members from the previous proceedings had said nothing before the matter was raised in jury selection.  The State argued that no prejudice had been caused and the motion for a mistrial was rejected by the trial judge.  Five of the jury members selected had heard the prejudicial comments. Following a third death sentence, the judge’s ruling was upheld in the Court of Criminal Appeals who also considered that no prejudice had been caused.   Happily the Supreme Court of Alabama was not so sanguine and in October 2010 allowed Smith’s appeal.

A third penalty phase proceeding before a jury begun in January 2012,  This too ended in another death sentence for Mr Smith.  However because, on this occasion, the judge allowed the prosecution to rely on an aggravating factor that did not exist at the time of the offence this sentence was also overturned by the Court of Criminal Appeals.

In September 2014 Alabama tried again, for a fourth time.   It may be that on this occasion the court had in mind the unfortunate opportunity for interaction  between the jury panel and the general public that had caused the second penalty phase proceedings to be rendered null and void. However the court’s remedy for this was to exclude the public from the entire jury selection process.  Unlike in the UK where jury selection usually only takes a few moments jury selection in a capital case can last for days and includes individual cross-examination of prospective jurors to assess their suitability to serve on a capital jury.

After all the previous trouble you might have thought that on this occasion the court would have taken careful note of the objections made by Smith’s attorneys.  Amongst other things they pointed out that the judge was thereby excluding members of Mr Smith’s own family as well as the press.  Since the Sixth Amendment to the US Constitution explicitly requires “a public trial”, readers can probably see which way this was going to turn out.   Once jury selection had been completed the public were admitted to the court for the remainder of the hearing.  As before, the jury recommended a sentence of death by 10 votes to 2 [another aspect of the death penalty scheme that operates only in Delaware and Florida – in all other states a unanimous jury decision is required] and the court duly obliged.

It was this decision that was overturned on 3rd June this year.  In Presley v Georgia 558 U.S. 209 (2010) the US Supreme Court held that the Sixth Amendment right to public trial included the jury selection process. It was therefore not a hard task for the Court of Criminal Appeals to conclude that yet again Mr Smith’s death sentence was unconstitutionally obtained and had to be overturned.

Other important issues arise in Mr Smith’s case but have not so far been addressed.   The original trial jury was all-white, as so regularly happens in the deep South.   Mr Smith’s lawyers have raised this as an issue arguing that the prosecutor unconstitutionally eliminated potential black jurors.  A second important issue relates to whether Mr Smith is mentally competent to be executed due to his intellectual disability .  His lawyers from EJI raised this issue as long ago as 2008 when they  presented evidence that he was placed in special education classes.  There is evidence from a number of experts, including one working for the State, who have determined that he is intellectually disabled with an I.Q. of 67 and he cannot read or write.

As if that was not quite enough to raise serious doubts about whether Mr Smith has received his constitutional right to due process, the fallout from Hurst v Florida means that Alabama will also have to confront the question whether its death penalty statute remains constitutional and if not how it proposes to remedy that situation.  All in all, quite a mess.

When Life Means Life you gotta tell the jury – even in Arizona

In its decision in Simmons v South Carolina 512 U.S. 154 (1994) the US Supreme Court held that where the State is seeking the death penalty and argues that the defendant represents a future danger to society, and where state law prohibits the release on parole of a person sentenced to life imprisonment the due process clause of the Fourteenth Amendment requires the court to instruct the jury that the defendant is parole eligible.

It is clear from the transcript that the jury in Simmons imposed the death penalty because they were worried that the defendant might eventually be paroled.   After deliberating for an hour and a half they sent a note to the judge asking the question “does the imposition of a life sentence carry with it the possibility of parole?”   The true answer  would have been “No”.  Instead, the jury were then instructed by the judge that they were not to consider the question of parole or parole eligibility and that this was not a proper consideration for them as the jury.   25 minutes later the jury returned with a sentence of death.

In case anyone hadn’t quite understood the significance of the decision in Simmons, it wasn’t long before the Supreme Court got another chance to emphasise its ruling. In Shafer v. South Carolina 532 U.S. 36 (2001), the jury, having been in retirement for almost 3 ½ hours, sent a note to the judge asking if there was “any remote chance” of parole.   In spite of repeated requests from Shafer’s counsel that the judge should tell the jury what the South Carolina Code actually says about the meaning of a life sentence, the judge’s response was to instruct them that “parole eligibility or ineligibility is not for your consideration.”

With that unhelpful instruction ringing in their ears, which probably left the jury believing that Shafer would be paroled if given a life sentence, the jury then sentenced Shafer to death.   The Supreme Court, following its earlier decision in Simmons, again overturned that direction.   It is clear that in both cases the jury’s decision to vote for death was strongly influenced by the fact that they believed that this was the only way to be sure that the defendant would never be released. It also seems reasonable to conclude that in both cases, the jury might well have voted for a life sentence if they had been reassured that South Carolina law meant a life sentence did not carry with it any prospect of parole.

Granted that it is a long way from Washington to Arizona it is still curious that the Arizona Supreme Court in Lynch v Arizona 357 P. 3d 119 (2015)  felt that the Simmons decision and its progeny did not apply in that state.  The Arizona Supreme Court found that the State had put Shawn Patrick Lynch’s future dangerousness at issue during his capital sentencing proceeding and acknowledged that Mr Lynch’s only alternative sentence to death was life imprisonment without parole, 357 P. 3d 119, 138 (2015). But the court nonetheless concluded that Mr Lynch had no right to inform the jury of his parole ineligibility.

This was in fact the third time that Mr Lynch had been sentenced to death for offences committed in 2001.  It is worth noting that after Mr Lynch had been convicted, before the penalty phase trial began, the State moved to prevent his counsel from informing the jury that the only alternative sentence to death was life without the possibility of parole.  The court granted the motion.  Mr Lynch’s first penalty phase jury failed to reach a unanimous verdict.   A second jury was convened and sentenced Lynch to death. On appeal, the Arizona Supreme Court vacated the sentence because the jury instructions improperly described Arizona law.  The court did not address Mr Lynch’s alternative argument that the trial court had violated Simmons. On remand, a third penalty phase jury sentenced Mr Lynch to death.

The Arizona Supreme Court affirmed, this time considering and rejecting Mr Lynch’s Simmons claim. The court agreed that, during the third penalty phase the State argued that Mr Lynch could be dangerous.   The court also recognised that Mr Lynch was parole ineligible under Arizona law because parole is available only to individuals who committed a felony before January 1, 1994, and Mr Lynch committed his crimes in 2001.  Nevertheless, while “[a]n instruction that parole is not currently available would be correct,” the court held that “the failure to give the Simmons instruction was not error.”  357 P. 3d, at 138.

The Arizona Supreme Court thought Arizona’s sentencing law sufficiently different from the others this Court had considered that Simmons did not apply. It relied on the fact that, under state law, Lynch could have received a life sentence that would have made him eligible for “release” after 25 years.  But under state law, the only kind of release for which Lynch would have been eligible—as the State does not contest—is executive clemency. And Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant’s right to inform a jury of his parole ineligibility.

On 31st May 2016, in a 6-2 vote, the US Supreme Court held that the conclusion of the Arizona Supreme Court conflicts with the Supreme Court’s precedents including Simmons and Shafer.  Since the Arizona Supreme Court confirmed that parole was unavailable to Mr Lynch under its law, the decision in Simmons and its progeny establish Mr Lynch’s right to inform his jury of that fact. Accordingly the judgment of the Arizona Supreme Court was reversed, and the case was remanded to the Arizona courts for further proceedings not inconsistent with the Court’s opinion.