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Blog Name: Isobel Williams's blog

Supreme Court: don't leave me
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18 May 2018


Ne me quitte pas.

I give oracular significance to the first thing I hear on Radio 3 each day. Jacques Brel is bang on target this morning. Georgia Mann, the presenter, allows the tragic anthem to die away then tells us: 'Brel apparently said that that wasn't a love song but a hymn to the cowardice of men.'

Is cowardice the guiding force today, though? Why choose headline-hogging litigation and have your marital rows anatomised under the searchlights rather than simply let your wife divorce you? Mrs Owens claims that her marriage has irretrievably broken down, under section 1(2)(b) Matrimonial Causes Act 1973. Mr Owens claims it hasn't.

Where is the gratification here?

Mushrooms grow in the dark. They are capable of exerting great force when they grow. They can live off dead things. They cast their spores randomly. Mr Owens is a retired mushroom farmer. There is something about this case which remains hidden in darkness.

Time for a song.

The way you wear your hat,
The way you sip your tea...
The way your smile just beams,
The way you sing off key...

The way you hold your knife...

They Can't Take That Away From Me (lyrics by Ira Gershwin) is a love song but could so easily be the reverse. Even that smile could turn into a maddening manic grimace. Who's to judge how bad a marriage is, and whether there are grounds for divorce? Lawyers are trying to divine the opinion of the hypothetical 'right-thinking person'. So far, Mrs Owens's own opinion has been deemed inadequate. The trial judge said her allegations about her husband's behaviour lacked 'beef'.

(The 'right-thinking person' is what used to be the man on the Clapham omnibus, redefined by the President of the Family Division when this case reached the Court of Appeal as 'the man or woman on the Boris bus'. Reason remains rooted in London. On my way home today I see yet another hapless passenger whacked in the face by the boorish back door of the Boris Routemaster, designed by Heatherwick Studio.)

Much is made in this case of the airport incident, the restaurant incident, the pub incident and the recycling incident. Every married couple will now quietly think of incidents of their own.

In the Court of Appeal judgment, Lady Justice Hallett said: 'I very much regret that our decision will leave the wife in a very unhappy situation. I urge the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed.'

Professorial outfit in court

As Lady Hale points out today, the judges have to interpret the law, not create new law. On the morning of the appeal, Resolution is out campaiging for no-fault divorce which would end 'the husband said/the wife said' bickering in court, and indeed would end having to create some legally acceptable fault if none really exists.

Resolution is the intervener in this appeal.

But we'll leave this forensic fetishism and return to Jacques Brel casting his spores in the fungal gloom:

Laisse-moi devenir l'ombre de ton ombre...
Let me turn into your shadow's shadow...

Ne me quitte pas
Ne me quitte pas
Ne me quitte pas
Ne me quitte pas 
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Supreme Court: is marriage patriarchal?
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15 May 2018
Rebecca Steinfeld and her partner Charles Keidan are conscientious objectors to what they see as an historic patriarchy embedded in marriage.

I wonder how far back they are going. Elizabeth I would have agreed with them. To show that Venice ruled the waves, the Doge married the sea each year. The Married Women's Property Act, which allowed wives to own and control their wealth, was dated 1882. But are things so bad nowadays? I mean. Don't ask me. I wear my late mother's wedding ring, Dr Freud.
It's easy to dismiss couples who reject marriage as a case of Je t' non plus (I love neither), or as a triumph of experience over hope, but Steinfeld and Keidan are sincere in their public quest which has become the monolithic R (on the application of Steinfeld and another) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary).

Steinfeld and Keidan want to enter a civil partnership; in the UK this is available only to same-sex couples who choose not to marry (gay marriage is not allowed in Northern Ireland but that's another story). They argue that the UK's ban on mixed-sex civil partnerships breaches their rights under Articles 8 and 14 of the European Convention on Human Rights.

Their sentiments are echoed in Tim Loughton MP's private members' bill, the Civil Partnerships, Marriages and Deaths (Registration Etc) Bill 2017-19, which is at the parliamentary committee stage. Choices which a government might eventually chew over could include civil marriage for all, gay or straight, with a religious ceremony as an optional extra; civil partnerships could be phased out; consultation would be needed. 

This campaign takes stamina. The case came to the High Court in 2016. Today Karon Monaghan QC says: 'It will be nine years before we expect to see legislative change.' And that's assuming Brexit allows a (coalition?) government time for anything but fire-fighting.

Lord Wilson points out that the couple are knowingly running risks as unmarried cohabitees with children but without automatic rights. If either of them were to die in the interim there would be 'serious economic repercussions', he says.

Meanwhile, adopt the brace position for royal nuptials this Saturday. Which is also the anniversary of Anne Boleyn's beheading in 1536. Henry VIII certainly took a patriarchal view of marriage. As I leave the court, I see this van outside Westminster Abbey.

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Supreme Court: shades of innocence
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09 May 2018

Innocent until proven guilty. But if you are proved guilty, then ruled to be the victim of a miscarriage of justice, are you proved innocent? Can law squeeze the toothpaste back into the tube?

The court is hearing two joined appeals: R (on the application of Hallam) v Secretary of State for Justice and R (on the application of Nealon) v Secretary of State for Justice.

Sam Hallam and Victor Nealon had been imprisoned for serious crimes, then their convictions were quashed. Miscarriage of justice, as defined in the Criminal Justice Act, bars compensation unless a new fact shows beyond reasonable doubt that the person did not commit the offence. But is that incompatible with the presumption of innocence in Article 6 of the European Convention on Human Rights?

Outside the court, the first day of the hearing is marked by two veterans of notorious miscarriage of justice cases related to IRA bombing campaigns: Paddy Hill (of the Birmingham Six) and Patrick Maguire (of the Maguire Seven) are among those who've come to hold up a banner for Sam Hallam.


Paddy Hill is "driven by seemingly endless reserves of fury" - I'm quoting Jon Robins in his new book Guilty Until Proven Innocent (Biteback Publishing, £12.99) which dissects the calamitously underfunded, under-resourced British criminal justice system. 

Robins writes that "Patrick Maguire visited Hallam in prison in 2006 and, convinced of Hallam's innocence, campaigned for his release. 'My biggest sentence started when I was released - and Sam will have to go through this too,' Maguire said when Hallam was freed [in 2012]."

Sam Hallam served seven years in prison. Victor Nealon served 17 years.

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Old Bailey judge in crime cover-up
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19 March 2018

Tom Keating
Cold case - evidence sought. In 1979 a crime was committed in the dock of Court no. 1 at the Old Bailey, in front of the judge.

The perpetrator was Tom Keating, artist, picture restorer and master forger. On trial for unleashing his 'Sexton Blakes' (rhyming slang for fakes) on to the art market, he was defended by Lord Hutchinson.

Here is an extract from Jeremy Hutchinson's Case Histories by Thomas Grant QC:

"Meanwhile Keating himself spent his time in court drawing. It was reported that he had already accomplished seven sketches of faces in court and that the 'policeman whose job it is to make sure he doesn't bolt for it was full of admiration for his work'."

Sir James Miskin by Richard Stone Guildhall Art Gallery
It is illegal to draw in courts below the Supreme Court. When I tell people this, they visualise all those pastel sketches and contradict me. But these have to be drawn from memory. Please see section 41, Criminal Justice Act 1925. The penalty for drawing in a court or its ill-defined precincts is a fine and a criminal record.

Judges have no discretion in the matter. Except for one, it seems. Was Sir James Miskin, the Recorder of London, indulgent, unobservant or just a bit rusty on the Criminal Justice Act?

He and Keating are now dead. Does anyone know what happened to the sketches?

The prosecution abandoned the case after Keating came off his motorbike and was not well enough to attend court. Some said the art market should have been in the dock, rather than Keating, who became a folk hero. If you find Civilisations a tad disappointing I suggest you watch his enlightening Channel 4 series Tom Keating on Painters on YouTube.
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The UKSC Yearbook in the spirit of fan-fiction
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14 February 2018

..."and what is the use of a book," thought Alice, "without pictures or conversation?"

The UK Supreme Court Yearbook is more Wisden than Wonderland but passes Alice's test if you interpret 'conversation' generously. I'm asked to do a couple of drawings for re-issued back numbers.

First, would I depict the emblem? Logos are sacrosanct but I persuade myself that it would be OK to represent the iridescent wall panel in Court 2, in the spirit of fan-fiction. Apologies and respect to Yvonne Holton, Herald Painter in Scotland at the Court of the Lord Lyon and Dingwall Pursuivant of Arms, who created the emblem.

The editors select just the central posy (Tudor rose for England, flax flower for Northern Ireland, leek leaves for Wales, thistle for Scotland, let's not think about breaking the union). But here is the complete picture which includes omega (court of last resort) and Libra (justice), as well as my windblown colour tests.

Then, would I draw the building? I've got an unfinished sketch (a preliminary drawing for the cover of my harrowing exposé, The Supreme Court: A Guide for Bears), so I rub out my furry friends and continue. To allow a clear view I ignore a tree and the stone benches guarding the front.

I'm asked if the court is a little, erm, left-leaning. It's a fair cop - I have a strong left-handed curve. The original is above; in the Yearbook the court has shifted to the right.

The UK Supreme Court Yearbook, Volumes 1-8, published by Appellate Press, is available from bookshops including Wildy & Sons and online retailers. The latest issue has a drawing of Miller, the Article 50 appeal, by Robin Sukatorn, whose book Drawing Democracy is out this month.
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Supreme Court carols
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15 December 2017

The Treasury Singers are never knowingly over-rehearsed and a good thing too, considering the day job. This year they are raising money for Shelter by singing carols in the triple-height library of the Supreme Court, boosted by voices from the Parliamentary Choir, the Westminster Abbey Choir and the court's own Can't Sing Choir, a misnomer in Santa hats.

The library inscriptions include a quotation from Martin Luther King: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

The Lords and ladies are away leaping or dancing - no Justices are here. But are job applicants casing the joint? The bench has vacancies.

I find a discarded note downstairs in the café. A girls' school party has been observing today's appeal, which is not about cats. I learn from the internet that baffed [sic] is a word, distinguishable from baffled. Girls, judge not, that ye be not judged (Matthew 7:1), or at least don't leave the evidence lying around.

Should've stopped at this stage, I never learn
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Supreme Court: smoked out
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01 November 2017

The tobacco-laden fug of Courtroom 1
The tawny sky over parts of England in October was the colour of a pub ceiling before the ban on smoking in some public places.  

But what is a public place? Today’s appeal, R (on the application of Paul Black) v Secretary of State for Justice, asks whether the Health Act 2006 applies by necessary implication to a prison administered by the Crown.

Mr Black, a prisoner, complains that the ban is not enforced in his prison’s common parts. He says prisoners should have anonymous access to the NHS Smoke-Free Compliance Line which allows callers to shop violators to the local authority. To be practical, this line does not exist. Perhaps that indicates how long the case has been in the courts. A number that does come up online, 0800 587 1667, is unobtainable.

Philip Havers QC (who must be fed up with being described as Nigel Havers's brother) points out that some 80% of prisoners smoke. This is more than four times the national rate. I know nothing about smoking or prison so I asked someone who has experience of both to comment. The following words in italics are his.  

Surprised (and not surprised) they haven’t sorted this one out. When I was a guest, after the ban came into force, smoking happened in cells and all communal areas, but was officially allowed only in cells. Officers (in the open prison) usually went outside to smoke, but very likely smoked on the wing after lock-up. I don’t recall smoking in the gym or education block. I got the impression that the ban was not enforced because it could increase tension, violence etc, even riots. Also many prison officers smoke.

As we know well from the debate about the distribution of condoms in the early days of the AIDS crisis, prisons are public places (condoms could not be distributed to prisoners because homosexual acts were permitted only in private). 

This is the Orwellian/Carrollian unreality of the prison system. The entire system is about fear, first of the ‘other’ who needs to be locked up, but much more pervasively from the point of view of the lower castes of the criminal justice system (prison officers, some police officers), fear of ending up on the wrong side of the door, very justified by the fact that the state monopoly on violence attracts these servants who take a deep enjoyment in the enactment of this violence. They are often people with strong criminal tendencies who are able to act out their natures in a structured and legalised manner. 

Tobacco, clean urine, drugs etc are currency in prison. And as such vectors of violence. The removal of the privilege of being able to purchase tobacco from the canteen is also a major (violent) sanction available to the prison authorities.The health of prisoners is of no account. So that is not a reason to stop smoking in prisons. All actions by the prison are intended only for the benefit of the prison. It is a closed system: physically, emotionally, spiritually, legally, morally. Read Solzhenitsyn.

There are as many opinions on prison as there are prisoners; prison reformers - professionals and volunteers - would do their best to counter some of the views above. Meanwhile, the current situation on the smoking ban’s application to prisons seems to be an obscure tangle of expediency and riots.  

He looked past him and seemed indifferent, but he noticed that after each puff (Tsezar inhaled at rare intervals, thoughtfully) a thin ring of glowing ash crept down the cigarette, reducing its length as it moved stealthily to the cigarette holder. Fetiukov, that jackal, had come up closer too and now stood opposite Tsezar, watching his mouth with blazing eyes. Shukhov had finished his last pinch of tobacco and saw no prospects of acquiring any more before evening. Every nerve in his body was taut, all his longing was concentrated in that cigarette butt—which meant more to him now, it seemed, than freedom itself—but he would never lower himself like that Fetiukov, he would never look at a man's mouth.
– Alexander Solzhenitsyn, One Day in the Life of Ivan Denisovich  

Story Time, a free exhibition in the Supreme Court, features works by offenders, secure patients or detainees under 18.

Two items in particular catch my eye. The first, Inside, represents either the controversial Hymn by Damien Hirst, or the Humbrol toy of which Hirst asked technicians to make a 20-foot-high copy. In 2000 Hirst paid an undisclosed sum to avoid a breach of copyright action by the toy’s designer and manufacturer.  

The Guardian wrote: ‘The artist has also agreed to restrictions on future reproductions of the polychromatic bronze figure, described by one critic as " a masterpiece" and "the first key work of British art for the 21st century", which Hirst admitted was inspired by his son Connor's anatomy set.’

I am also intrigued by Vinopoly, a cryptic board game by an entrant from Vinney Green Secure Unit (detail shown here). The exhibition, run by the Koestler Trust with Victim Support and the Supreme Court Arts Trust, ends on 7 December 2017.
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Supreme Court: there's rue for you
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27 October 2017

The Royal Borough of Kensington and Chelsea, where I live, runs a special group for young mothers. A mother has to be at least 12 years old to join. 

For the 40-odd years of their fertility, girls and women are playing in a fixed match where the other side doesn’t get pregnant.

At university I was naively surprised to meet otherwise educated girls – even biochemistry students – who were slapdash about contraception. It seemed that they were more likely to come from secure, well-off families which could cope privately with any consequence, rather than humbler stock haunted by ancestral fears of ruin. I never met my Toxteth grandmother who was a teenage unmarried mother without chances.

Fifty years later, metropolitan women could sign up at the Margaret Pyke Centre, a legendary NHS birth-control research and training powerhouse (now shrunk by the cuts). Back in the day you might have got an appointment there with one-time physician to The Grateful Dead Dr Sam Hutt, aka country and western singer Hank Wangford, whose albums include Cowboys Stay on Longer

I remember him being rather touched during a coffee shortage in the 1970s when grateful vasectomy patients plied him with jars of instant. He still trains doctors and nurses between gigs. 

Until 2002 the Centre was led by the non-judgmental Professor John Gillebaud who in his book The Pill points out that giving a child or a woman the right to say no is a powerful contraceptive. He is concerned with population and sustainability, and as we move to standing-room-only we are reminded that the planet has the right to say no to the lot of us.

Nobody would advocate abortion as primary birth control, but when there’s a failure of hardware or society or health a pregnant woman may find out who claims to own her. 

Today’s case (day two of a three-day hearing) is In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review. It asks if failure to allow abortion in cases of serious foetal malformation, rape or incest violates the European Convention on Human Rights. 

In Northern Ireland, abortion is allowed only to preserve the mother’s life, because the 1967 Abortion Act does not apply there, and the maximum penalty for illegally procuring a miscarriage is life imprisonment. Some of the cases cited today are heartbreaking.

In The London Review of Books (17 Aug 2017), Joanna Biggs writes: ‘Northern Irish feminists can’t rely on Westminster: many people reminded me of the moment in 2008 when Harriet Harman blocked a move to extend the 1967 act to Northern Ireland in order to gain votes from the DUP for 42-day detention of terrorism suspects. If it makes travel to England harder, Brexit will make access to abortion harder too.’

She adds: ‘The 1967 act was preceded by the Bourne case of 1938, when a gynaecologist turned himself in having performed an abortion at St Mary’s Paddington on a 14-year-old girl who had been raped by several soldiers. (She had been turned away by St Thomas’s on the grounds she might be carrying a future prime minister.)’

We have a prime minister who is still in hock to the pro-life DUP. A report on abortion law in Northern Ireland, completed last year, is yet to be released because of the stasis in Stormont.

In a letter responding to Biggs’s article, writer Elizabeth Gabriel describes what happened after a condom failure when she was a student at Bristol before the Abortion Act: ‘I knew that I wasn’t ready to have a baby, so I tried jumping off tables (gingerly), taking scalding baths, drinking a lot of whisky. Then a friend gave us the name and number of a midwife in the docks who sometimes provided abortions to dockers’ wives whose husbands refused to use contraception.’ Legal minds will know whether that was technically an assault by a husband on a wife.

In court today, Lady Hale pounces on a contronym: she asks counsel if he is using the word ‘sanction’ to mean ‘permit rather than punish’. Contronyms have contradictory meanings, such as cleave and oversight. I am at the stage of life where I feel more keenly how quite a lot of things harbour their opposite, including life itself.

‘It’s an emergency,’ says the young woman asking the pharmacist in Boots for a continuation supply of the Pill without a prescription. The pharmacist and I glance at the self-conscious emergency himself, standing beside her. She gets her supply. True privilege is not knowing how privileged you are. 

Counsel cites Lord Bingham on Pretty beneath his portrait

 'There's rue for you,' says Hamlet's Ophelia, handing out an abortifacient. Is she pregnant?

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Supreme Court: a shard of history
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05 October 2017

I wish I'd watched a recent episode of Coronation Street in which an artist breaches section 41 of the Criminal Justice Act 1925 by drawing live action inside one of the lower courts (i.e. not the Supreme Court, which doesn't sit in Weatherfield).

In real life, an artist has to draw such scenes from memory. This was not a plot line but a collective mistake. The subject of the picture is the alleged victim of sexual abuse so she would not be portrayed anyway, even from memory. It has led to complaints to Ofcom and apologies from Corrie chiefs.

This is Lady Hale's first session as President, joined by two of the three new Justices, Lady Black and Lord Lloyd-Jones. All is serene on the bench while courtroom nerves are about normal: just before the second half, a lawyer breaks a glass. Symbolists would say this represents a ceiling.

The usher emerges cheerfully from behind the scenes: 'Did someone make an impact in there? Everything OK? I've seen a lot worse.' He sorts everything out.

The appellant, who in 2010 was the first barrister to become a partner in a legal disciplinary practice, is here to observe. Daphne Evadne Portia O'Connor v Bar Standards Board asks whether, in a claim that a prosecution breaches human rights, the time limit for bringing proceedings under the Human Rights Act 1998 runs from the date of acquittal/conviction or the date on which any appeal is concluded. And was the High Court judge right to conclude, for the summary judgment application, that Portia O'Connor's claim of indirect discrimination under ECHR had a realistic prospect of success?

Counsel are softly-spoken. Lady Hale reminds them: 'The first duty of any advocate is to be heard,' adding that the microphones are mainly for recording and transmission, with only a small amount of amplification.

'I can't hear anything,' says the woman behind me. She adds, 'They are all beautiful,' referring to the row of students in front of us, and leaves.

Outside, another bench, another beginning.

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Bench pressing: 'Debating Judicial Appointments in an Age of Diversity'
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03 October 2017
Are you bench-fit? There's a handy 'Am I Ready?' guide on the Judicial Appointments Commission website.

I picked up this tip in Debating Judicial Appointments in an Age of Diversity (Routledge, £115) edited by Graham Gee and Erika Rackley. These essays by the great and good and their observers commemorate the tenth anniversary of the JAC. The writers spotlight key questions, such as the level to which judicial appointments should be political.

And what is merit? Sir Thomas Legg, former Permanent Secretary to the Lord Chancellor, writes: 'We appear to owe the concept of merit for public appointments originally to the Chinese Civil Service in the Qin and Han dynasties.' I would like a whole chapter on this, with sample exam papers and ink drawings of Confucius, but it is not to be.

Legg expresses doubt about lay members of selection committees: 'For many reasons, lay members are often likely to defer to their judicial colleagues in these decisions.' This is countered by Jenny Rowe, the first Chief Executive of the Supreme Court: 'The judges were always very respectful of these levels of expertise and welcomed the perspective offered by lay members. Indeed, in a situation where inevitably many of the applicants were known to the judges, the lay members were well placed to identify and probe issues which may not have been so apparent to those more familiar with their day to day work. There was no shortage of lively discussion and debate, and no question at all of the lay members being supine.'

Sadly, proof-reading budgets are slashed nowadays. For example, page 34, with its three references to the 'Prime Minster' [sic], sounds the Proof-Reader Attention Deficit Alert (PRADA), pointing to that trippy state in which subconscious urges to be skimming Vogue over-ride what you see. But cost-cutting doesn't allow for a second proof-reading and sometimes not even a first.

Sketch of Christopher Allan at Judicial Images workshop
Uncritically, I would say that the best bit of the book is Appendix IV - included in Amazon's free preview - which is about how I came to draw the cover illustration. I'm indebted to Christopher Allan, Court and Ceremonial Manager at Ede & Ravenscroft, for giving me a close-up view of the robes in his care, groomed like champion race-horses.

If you think you're hard enough for the bench, then - even without issues of diversity - you'll be interested in the matters this book raises.

Coda: if you prefer the soft and fluffy, may I recommend The Supreme Court: A Guide for Bears.
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