Lawyer was pilloried for doing his duty for our legal system
David Cameron’s recent description of a lawyer’s comment as 'inappropriate' has Patrick Nicholls scratching his head.
Few of us make it into late middle age without some brush with the law, however minor, so let me ask you this. Have you ever committed 'Inappropriateness?' Now, if you're not a lawyer, you will be about to Google 'Crime inappropriateness.' Well, I am a lawyer, so don't bother because there is no such crime, although the Concise Oxford Dictionary gives us a definition for appropriate, as 'suitable' or 'proper'.
So, 'inappropriateness' cannot, per se, be a crime because, unlike a crime, it calls for a subjective, not an objective, judgment. You think it's appropriate, I don't, but a crime is a crime. It's an objective reality. You know in advance of its commission that you lay yourself open to sanction.
In short, you know where you are with a crime. You've either committed it, or you haven't. Punishment for crimes committed is compatible with democracy, but what word would describe a system where you could be castigated, lose your livelihood, and be exposed to public opprobrium for using words which are deemed 'inappropriate' by the wisdom of the herd.
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Well what about tyranny? Because 'inappropriate' has become what 'fascist' once was. Merely to make the accusation is proof positive of its truth; to question it merely compounds the offence.
Earlier this month, at the Snaresbrook Crown Court, prosecuting counsel Robert Colover was outlining the facts of an offence of sexual activity with a 13-year-old girl. The defendant, Neil Wilson, 41, had pleaded guilty to two offences of making pornographic images and one count of sexual activity with a child. The images were unrelated to the child, the activity was one of contact, not penetrative sex. It seems to have been Wilson's first appearance in Court.
Under Section 9 (3) (b) Sexual Offences Act 2003, the punishment for sexual activity with a child over the age of 13 ranges between an absolute discharge and up to 14 years in the slammer and it was Mr Colover's duty for the Crown to present the facts as they were known to the prosecution, so that Judge Nigel Peters could decide where, in between those two extremes, the punishment should fall.
The facts, which were not in dispute, were that the child made all the running. Colover described her behaviour as 'predatory'. Did that in any way excuse Wilson's behaviour? Of course not and neither Crown Counsel nor the Judge, suggested for a moment that it did, but it was information that the Court needed to have, because had Wilson been the instigator, the offence would have merited even greater punishment.
How, therefore, can it be 'inappropriate' accurately to describe to the Court what actually took place? To represent the facts as other than what they were would most certainly have been, 'inappropriate', but that isn't what happened here. Of course, a safer and more traditional formulation, one that would have registered with the judge, but probably not with the world at large, that "It is not the Crown's contention that the defendant was the instrument of this child's corruption," would have served Mr Colover better, but it would have come to the same.
Robert Colover has practised criminal law for nearly 40 years. In that time, he may well have represented the Crown on hundreds, perhaps even thousands, of occasions, yet within hours the Crown Prosecution Service had joined the hue and cry, issuing a stinging rebuke. Even the Prime Minister weighed in, declaring "It isn't appropriate. We need a criminal justice system that stands up properly for victims."
And, of course, we do and, of course, it does. That's why Wilson was prosecuted and it's why we have a system for referring unduly lenient sentences to the Court of Appeal.
We live in an age where social media demands an instant reaction from even the most senior politician to any 'hack' in a hurry, but when Emily Thornberry, Labour's Shadow Attorney General and herself a barrister, can say that it's "appalling that after the scandals of Jimmy Savile and Rochdale that these awful Lolita prejudices are still being served up in Court," it's not just the English language that suffers violence, it's the criminal justice system itself.
This was not a case where the "victim was being blamed for the abuse she had suffered". Indeed, Judge Peters stressed that even though the girl may have been predatory, "That is no defence when dealing with children".
Rather, this was a case where the Court, with Counsel's help, was trying to arrive at a sentence which matched the seriousness of the crime. In that endeavour, the Court was entitled to expect that the political establishment would have protected them from the worst excesses of the Fourth Estate.
Good politics? Of course.
But good government it was most assuredly not.