LEGAL ADVICE FROM THE WEB: # 2

COMMUNALLY PROVIDED

LEGAL REPRESENTATION:

AN EXPERIMENT.

A Pleb’s Eye View of the Administration of “Justice”;

And – News of a Forthcoming Attraction!

“This is a court of law, young man, not a court of justice!”

Oliver Wendell Holmes, American Judge.

It’s been such a long time since I posted the first in this web-based legal advice experiment, having imagined I might write at least once a week – and engaging readers with debate and analysis of this or that basic principle, or fine point, of law.

But after one or two encounters with the courts, I realised such writings would be about as interesting – and as useful – as a 200,000 word disquisition upon “the meaning” of some glued, tied and nailed structure formed from the random contents of a skip, placed in the Tate Modern and bestowed with the Turner Prize.

What does it all mean? Whatever you want it to.

Instead – continuing with the surrealist theme – I thought I’d give a description of my experiences so far of what passes for the administration of justice in Jersey – as approved by Jack Straw and the Labour government – and intersperse and illuminate events with some apposite quotes concerning lawyers, judges and the law.

I will also, towards the end of the posting, describe just what the prime motive is behind the action against me. This having become very obvious in recent weeks.

But – before I embark upon another impressive display of my diplomatic skills – some news of a forthcoming attraction!

At some point later this week I will be posting an essay that the Jersey oligarchy are not going to like.

Not one little bit.

Oh yes.

But most readers of this blog will find fascinating.

Now – that’s that teaser out of the way – back to my legal travails.

I thought I’d search for some more novel quotes than the obvious wisecrack uttered by ‘Dick the Butcher’ in Shakespeare’s Henry VI – “The first thing we do, let’s kill all the lawyers!” – not least because so much more foul are lawyers than even politicians, many a lawyer has attempted, with heroic sophistry, to argue the quote is favourable to lawyers because it is uttered by a villain.

Of course, the quote has remained widely known and popular, from Shakespeare’s day until this, because it so accurately sums the experience of the ordinary person when encountering the profession.

Let us be frank – people do not hear that famous line, and smile beatifically at the thought of “m’learned friends” being, in some way, defended because the line is spoken by a villain.

No. That line is as fixed in popular consciousness as ‘to be or not to be’, or ‘shall I compare thee to a summer’s day’ because – well – lawyers? Everybody bloody hates them.

OK – as with politics, there are one or two honourable exceptions – but, buy-and-large, the public have got it right in identifying the four most vile professions on Earth – when placing lawyers and politicians right down there in the gutter – along with journalists – and estate agents. I mean, how much lower can you get?

And should you still not be convinced that our greatest minds had the true mark of lawyers, just consider these oh so wise words by John Keats:

“I think we may class the lawyer in the natural history of monsters.”

So – what’s happened since I last wrote on my encounters with “justice”?

Just in case you’ve been relying on the Jersey Evening Post for your information, a brief recap; I am, in fact, facing four charges. These are the alleged offences of forgetting to renew my driving licence, and, likewise, not updating the registered address of my car in time; and disclosing controlled data, and having unlawfully obtained the data in question.

To read that esteemed journal, ‘The Rag’, one could be forgiven for thinking the charges were merely the two comparatively minor alleged infractions of the motor traffic law – the vastly more serious data protection law charges being reluctantly nailed onto the end of the JEP’s reports in a manner designed to elude most people – along with the profoundly serious issues that arise from the necessity of public interest disclosure of data by elected representatives.

Though it is only a matter of time until I have ‘contempt of court’ charges laid against me, for the moment, I won’t go into too much detail concerning my resistance to all of the charges.

You’ll just have to take my word for it – for the moment – but there is more to these things than yet meets the eye.

But – here I am – on trial – in a mode foreseen by Kafka – and made real by Stalin – whilst certain senior civil servants continue to earn £250,000 of tax-payers’ money a year – without incurring so much as a suspension from their job – even though they spent the 1980s routinely savagely beating to a pulp vulnerable children in their “care”.

“The vices of the rich and great are mistaken for error; and those of the poor and lowly, for crimes.”

Lady Marguerite Blessington.

Although both British case-law, and European Court of Human Rights case-law seemed pretty clear to me – in my naivety – concerning a “fair trial” and “equality of arms” – apparently I was foolish and ignorant to imagine those dictums meant anything in practice.

I had already been refused legal aid, so had to be representing myself – but as though this didn’t put me at a great enough disadvantage, Jersey’s Attorney General, William Bailhache – de facto politician and exculpator of child abusers -decided he just had to set his leading prosecutor on me, one Advocate Baker.

God only knows how much Baker costs the public; but it isn’t only him. I couldn’t help but notice during the last court hearing that he had not one – but two – ‘helpers’ with him – scrawling notes and stuffing them into his hand during the proceedings.

So much fire-power?

Against a self-representing carpenter?

One could be forgiven for thinking they’re very worried about this case.

One of the intriguing features of this experience are the predictable occasions on which the judges have said, “You will not make political speeches. This is a court of law – not a political occasion!”

Setting aside the brick-skulled notion that judicial processes aren’t ‘political’ (read The Politics of the Judiciary, by J.A.G Griffith) – and going along with their little game, I’ve striven to work within the expected paradigm. For example, I had, promptly, delivered to the prosecution – on the 26th June – a 16 page letter describing my skeleton argument, and listing the disclosures the defence required.

Now, naturally one didn’t expect them to co-operate – or disclose all the evidence necessary to the defence pleadings.

But I’ve found it a bit rich to listen to Baker – on more than one occasion – taking the opportunity of addressing the court with various political and personal insults against me – the very kind of thing one expects to encounter in politics – but that I have been expressly told I can’t engage in, in court.

According to Baker – it is – apparently – outrageous that the defence cites public interest disclosure concerning the data in question.

That any information I’m alleged to have disclosed was pure politics – and nothing whatsoever to do with seeking to prevent the murder of frail elderly patients.

That my motive – my “mens rea” – was simply to attack that wonderful Mr. Birt – former Attorney General – and now, recently appointed, Bailiff.

And that I had used a poor unfortunate data subject as a ‘victim’ to pursue this foul political aim.

And that by resisting their charges – and availing myself of exactly the same rights as any other person to a defence – and a fair hearing – I was “making a mockery of the island’s judicial processes!”

‘Therefore’ – bellowed Baker – ‘no public interest disclosure defence could stand!’

‘OK’, thought I, ‘there’s the prosecution argument, in a nutshell, so what do I need to do to undermine and disprove that argument – as I know I rightly can?’

So in correspondence with the prosecution I made it clear that in order to support the defence case, and undermine that of the prosecution, I required some additional, specific disclosures of evidence.

For example – all of the police, prosecution and Health & Social Services records – and identity of potential witnesses – relevant to the episode in question.

Now – trying to view things from the purely ‘legal’ perspective – and setting aside all political considerations – that seemed to me to be the entirely correct way forward – given the prosecution had nailed their colours to the mast of there being ‘no public interest defence in this case’.

After all – all the case-law on disclosing evidence that supports the defence and undermines the prosecution was – I thought – pretty clear.

Though, the thought did occur to me, from that forbidden political perspective – ‘My God – just how stupid are these people?’

‘They’ve stated their case, which I can now attack with all available evidence – which they must disclose to me – and, frankly, if it meant being taken out and shot – still, from a public interest perspective, it would be a good arrangement – given how much truth would be disclosed in open court.’

So – I wrote, demanding all the relevant evidence.

But – funnily enough – and who on Earth would have predicted this – the prosecution suddenly decided that the grounds of their case were now completely different. That their argument didn’t any longer hinge around the actual facts behind the data I’m alleged to have improperly disclosed.

A dramatic change in prosecution position which was enthusiastically supported by the Magistrate last week.

Now, the prosecution case is – ?

Well – I’m not entirely sure. The charges were hopeless before.

Now, they’re even more hopeless – and an abuse of the court’s processes – and a misuse of public money – than they were at the outset.

But, I’m getting ahead of myself here.

Between those initial appearances before the Magistrates’ court – and that of last week – we had a trip to Jersey’s Royal Court – where I was making an appeal against the refusal of the Magistrate to deem herself conflicted, given the politicisation of the island’s judiciary – and the fact that that – in-no-way-partisan-or-biased figure, Phil Bailhache – presided over her swearing-in to Office – and used the opportunity to mount a direct personal and political attack on me.

This is the relevant part of what Philip Bailhache said, referring to me, during the swearing-in of Ms. Shaw –

“But wholesale attacks upon the judiciary and suggestions that they are collectively incapable of dealing with any outcomes of the current child abuse inquiry are ignorant and unwelcome, and I deplore them. Senior politicians, should know better than to attempt to subvert public confidence in our judicial institutions in pursuit of a personal agenda.”

No doubt, in my ignorance, I’m missing some other subtle legal distinction here – but it rather seemed to me that the various political speeches – like that one, and others – delivered by Phil Bailhache and his brother, Attorney General Bill Bailhache did – of themselves – prove that the Jersey judiciary was politicised and partisan – and thus incapable of being competent in the abuse inquiry.

What is it – if not overt politicisation – when the man who is chief judge – and Speaker of the island’s legislature – makes a speech in which he falsely ascribes a ‘personal agenda’ to a politician who is simply working on behalf of dozens of his constituents who are abuse survivors?

So, Ms. Shaw being politically contaminated from that moment on – I pursued my right to a fair hearing, as can any other person, with an appeal to a higher court.

The case was heard by one Sir Richard Tucker, a UK-based, long-standing Commissioner of Jersey’s Royal Court.

“A judge is a law student who marks his own examination papers.”

H. L. Mencken.

You might imagine that a UK-based judge would be free of all the baggage that so contaminates the local crew – that they would satisfy the objectivity test?

Sorry. This is Jersey we’re speaking of – where the “administration of justice” is an artefact of make-believe – only kept in hallucinated existence by ‘the Tinkerbelle Effect.’

For Sir Richard Tucker – as with all judges who sit in Jersey’s various courts – was sworn-in to Office by the Bailiff. In his particular case – the Bailiff in question being one Sir Philip Bailhache.

These various UK judges who serve in Jersey’s courts invariably become acquainted with – often very closely – the Jersey characters. Indeed – often becoming friends with them.

The judge may come from the UK, but will usually know people like the Bailhache brothers, many other members of the Jersey judiciary – such as Michael Birt or Frankie Hamon – and the ‘Jurats’, for example, Jurat John Le Breton.

With those individuals, and others like them, being inextricably embroiled in the whole saga – and thus the political efforts to crush me – naturally, I had to make a recusal application to the Royal court – given the very strong likelihood that any judge sitting would know – or even be friends with – these political opponents of mine.

Having a right to a fair trial, like any other person, I informed the prosecution and the court administration that I would need to question any judge as to the extent and nature of any potential conflict of interest; question them to discover if they were known to, and associated with, any of the other parties to the action, and if so, to what extent?

Because – and no doubt our legal friends will correct me if I’ve got this wrong too – in making a recusal application – the burden of proof rests with the applicant; me, in this case.

It was the task of the defence to show – on the balance of probabilities – that the judge in question was conflicted – to an extent that an ordinary, dispassionate observer would look at the situation – and feel a suspicion that the judge may not be impartial and objective.

OK. So my prime evidence for such a conflict of interests would be the nature and extent of any personal acquaintance or friendship the judge had with the other ‘interested’ parties.

And – in order to obtain and test that evidence – I would have to question the judge.

A fair hearing does – does it not – require access to the relevant evidence and testimony?

Apparently not – in this case.

My opening requests to ask the judge questions were largely trampled into the dirt with the predictable pomposity and hubris which I’m rapidly discovering to be some kind of prerequisite for membership of the British judiciary.

Though he did, with reluctance, concede that, yes, he knew Phil Bailhache – and maybe one or two others – but, no – I couldn’t question him on the extent or depth of his acquaintance with them.

It was, though, rather a pity he seemed to be unaware of the UK Judicial Conduct Guidance, which has this to say on a judge’s responsibilities in the event of a possible conflict of interests:

Section 3.12 of that guidance says this:

“If circumstances which may give rise to a suggestion of bias, or appearance of bias, are present so that they are to be disclosed to the parties, that should be done well before the hearing, if possible. Case management procedures will often enable this to be achieved.”

And section 7.2.2 says this:

“Personal friendship with, or personal animosity towards, a party is also a compelling reason for disqualification. Friendship may be distinguished from acquaintanceship which may or may not be a sufficient reason for disqualification, depending on the nature and extent of such acquaintanceship.”

Both stipulations which were not – even faintly – met in this case.

Sir Richard, likewise, seemed wholly disinterested in the rock-solid and unambiguous case-law of Pinochet –v- R in which the vague and indirect conflict of interests of Lord Hoffman was sufficient to have the Law Lords’ judgement against Pinochet set aside as unsafe.

So – not being able to access my principal evidence – again, I was unable to obtain a fair hearing.

Which was rather a pity – as I had done my homework on the subject – and already knew, for a stone fact – that Sir Richard Tucker was very well acquainted with Sir Philip Bailhache; had been for some years, and that they socialised together.

And that Sir Richard was a key guest at Phil Bailhache’s retirement dinner – which took place on the 30th June.

Obviously, I wasn’t present – but nevertheless, interesting reports reached my ears.

In fact – so enthusiastic a guest was Sir Richard at Phil’s retirement dinner, that he spent a good 15 to 20 minutes – in the presence of several people – seriously embarrassing himself – in ways I’m sure he’d rather I didn’t elaborate upon.

Naturally, my recusal application was thrown out.

And – not content with that – for good measure, he agreed with the application made by Phil Bailhache’s brother, Bill – to have Crown costs awarded against me.

“In England, justice is open to all – like the Ritz Hotel.”

Sir James Mathew

See? Doesn’t this just get better and better?

So – following the failed attempt to secure a “fair hearing by an independent and impartial tribunal” – the case was back on the road to the Magistrates’ court – for a “directions hearing” – which took place last week.

I was labouring under the delusion that the directions hearing was actually quite important. Very important, in fact – because the likely outcome of this case may depend entirely on the directions given by the court.

The defence argument is that the charges are manifestly hopeless – given both the statute and case-law on public interest disclosure – politically motivated, maliciously brought, simply the latest episode in a long-running and very well-evidenced criminal conspiracy by the Jersey establishment to keep politically embarrassing crimes hidden and unpunished – in order to protect the oligarchy’s “image”, After all, we wouldn’t want anything to “Shaft Jersey Internationally”, now, would we?

Thus the charges are a plain abuse of the court’s processes, counter to the public good and should be thrown out.

Again – correct me if I’m wrong – but my reading had given me the impression that when making a case for dismissal of charges – a stay of proceedings application on the grounds of abuse of process – the burden of proof was upon the applicant.

The burden of proof is reversed, and the defence has to prove – on the balance of probabilities – that an abuse of process has occurred.

So the defence – me – has been seeking disclosure of the evidence required to prove the contention of the defence; in fact, seeking disclosure of that vital evidence for at least two months now.

How surprising do readers find it that the prosecution has exhibited a rabid refusal to disclose that evidence necessary to support the defence’s case and undermine that of the prosecution’s?

Which is why the directions hearing was so fundamentally crucial to the defence. Prove to the judge that disclosure was necessary to the defence case – and the defence obtains the evidence which would prove its contentions.

Fail to persuade the judge that disclosure was necessary – and 90% of the evidence necessary to support the defence is not admitted to the proceedings.

Therefore – before a trial-proper has even begun – the prosecution will have succeeded at the outset in destroying the defence case through using some legal ‘technicality’ to deprive the accused of 90% of the evidence they need.

“Lawyers, I suppose, were children once.”

Charles Lamb

Knowing the directions hearing to, in all likelihood, be pivotal to the entire case, I set about the task of informing the prosecution and court of what evidence I would be citing – and, in particular – what witnesses I would be calling.

However, Baker wrote back to me, urgently asserting that “the directions hearing was not an evidential occasion” – and therefore I couldn’t cite evidence or call witness.

I later came to realise it was during this episode that the prosecution had engineered a “guilty” verdict – long before the actual trial has even begun.

“The lay litigant enters a temple of mysteries whose ceremonies are dark, complex and unfathomable. Pre-trial procedures are the cabalistic rituals of the lawyers and judges who serve as priests and high priests. The layman knows nothing of their tactical significance. He knows only that his case remains in limbo while the priests and high priests chant their length and arcane pre-trial rites.”

Stephen Elias

The prosecution – knowing full-well that the evidence required for disclosure by the defence would nullify their charges – and be immensely politically damaging for the oligarchy – have rabidly fought against virtually all the disclosures sought by the defence.

Knowing I’d have to evidence my case extremely well in order to stand any chance of getting the judge to require disclosure – I followed the correct procedure for subpoenaing certain witnesses – Attorney General William Bailhache amongst them.

My Letter of Instructions was found to be in order, and was accepted by the relevant authority who – I was assured – would proceed to serve the summonses.

The summonses to my witness did not get issued.

Now – you might want to sit down before you read any further – or perhaps have a stiff drink at hand.

It was – days later – that Bill Bailhache sent around an e-mail – to the court, the prosecution, the Viscount’s department, who issues summonses, and me – in which he informed everyone that “he had heard that I may be subpoenaing witnesses some days earlier – and had, therefore, contacted the Viscount’s department, – and “advised” them not to issue my summonses – as he “didn’t consider them appropriate”.

This, even though he was one of the witnesses to be summoned himself – and is a party to the case – in more ways than one.

Neat, no?

When I get summonsed for not paying Bailhache’s costs order against me – why, I’m just going to get in touch with the Viscount’s department and tell him not to issue the summons -“as I don’t consider it appropriate”.

No – wait – this gets even better.

In an attempt to protect themselves, Bailhache and the Viscount’s department knew they couldn’t undertake this action unilaterally – they knew they needed the court – the judge’s endorsement; some kind of ruling from her that she agreed with them that the directions hearing need not be an evidential occasion.

Bill Bailhache’s “approach” to the Viscount – and the resultant agreement not to issue the defence summonses – was effected via a letter to the judge from the Viscount’s department seeking “guidance” – and the judge’s agreement with Bailhache’s intervention.

The defence side was – finally – notified of all this unilateral and covert intervention with the judge – some days after Bill Bailhache’s interferences began.

Once again, I’m sure I must simply be terribly ignorant of these things – but I had thought that when procedural points are raised with a judge by a party – which both parties have a right to do – the other party had to be simultaneously copied-in on all the relevant correspondence – and given an equal opportunity to argue their position.

Such practice being essential to the concept of a “level laying field”, “equality of arms”, and a “fair hearing”.

I had thought – silly me – that covert approaches by a party to the justice apparatus – in a plain effort to massively disadvantage the defence case – was simply – and straightforwardly – an attempted perversion of the course of justice.

Especially when the judge agrees to go along with it.

“Laws are the spider’s webs which, if anything small falls into them they ensnare it, but large things break through and escape.”

Solon

So – last Thursday, I appeared in court – for the pivotal directions hearing – the legal oligarchy, amongst themselves, having stitched-up whatever chance I may have had of securing the disclosure of the evidence that is required for my defence.

And Baker then stood there – and without batting an eyelid – proceeded to denounce me for “Making a mockery of justice in Jersey!”

I had to strive mightily not to laugh out loud at this Orwellian gem.

I doubt if I’ll bother next time.

The proceedings were predictably Kafkaesque. Baker, supported by his two colleagues was given pretty much free-reign to say what he wanted, when he wanted.

I was allowed a little more opportunity to speak on this occasion – but only a little bit – and even then, only because I complained about it.

I attempted to make a case for the disclosures I require – but it was a futile effort – as I couldn’t prove the relevance of the evidence I sought – because I didn’t have it – because I couldn’t prove its relevance – because I didn’t have it – because I couldn’t prove its relevance – because I didn’t have it – be…. – I’m sure you get the picture.

Even setting aside the defence’s detailed disclosure requirements, as laid down in my letter of the 26th June – the few, key items of evidence I asked for last Thursday were dismissed by the judge.

The defence case rests – fundamentally – on abuse of process, of public interest disclosure, of the evidenced need for that public interest disclosure, an extremely well-evidenced consistent, dangerous and corrupt pattern of the concealment of serious malfeasances by the Jersey establishment, abuse of powers – and a criminal conspiracy to keep such malfeasances, and their concealments, hidden.

My ability to run that defence – and associated applications – was, effectively, terminated last Thursday by the Jersey judicial oligarchy.

The judge called several, frankly mystifying, adjournments in the course of the afternoon – which gave every impression she was taking guidance or advice from some other person or persons in her chambers.

In addition to agreeing with the prosecution that the defence evidence should not be disclosed – she also agreed with them that they needn’t call any witnesses to the trial except those they want to. Which has the effect of leaving the defence to summon any witnesses it considers to be relevant – but – get this – because the defence has been left to call them – the defence cannot then cross-examine them.

Oh well – I try to look on the positive side – when my action for personal damages is mounted against Jack Straw – or whoever may succeed him – it’s all further grist to the mill.

In fact, there were a couple of mysterious gentlemen in black suits sat at the back of the court. I didn’t know who they were, but my sources have suggested to me they were UK Ministry of Justice spooks.

No doubt trying to figure out if this farrago will be remotely defensible once it gets to Strasbourg.

Or trying to assess just for how much longer the British Judiciary can continue to get away with assigning judges to cases involving me – who are friends with the Bailhache Brothers and Co?

“Judges are but men, and are swayed like other men by vehement prejudices. This is corruption in reality, give it whatever other name you please.”

David Dudley Field

Why – given the actions they’re taking involve dicing with disaster – are the Jersey oligarchy – and the “Friends at Court at Whitehall” – proceeding in this way?

As I’ll explain on another occasion – there have been, and continue to be, several obvious and different motivations behind these oppressions.

There is, however, one – which is both fundamental – and very obvious from the nature of the prosecution arguments so far.

Convicting me is not their prime objective; they know that as soon as the charges reach a civilised court – even if that does have to be Strasbourg – they’ll be thrown out.

Their prime motivation is the exculpation of Michael Birt.

They want to try and get Birt off the hook for his failures to prosecute a number of very serious crimes.

Pure and simple.

In the alleged breach of the data protection law, Michael Birt – now Bailiff – and thus figure-head of the Jersey oligarchy – is condemned for not seeing through the prosecution of the immensely dangerous data subject in question, back in the day when Birt was Attorney General.

The authorities know Birt’s position is precarious – hopeless, in fact – but they want to try and salvage him anyway.

The prosecution of me – therefore – is nothing more than an opportunity for the police to stand up in the dock and take to themselves responsibility for not prosecuting the man concerned.

The cops will claim, “well, we just didn’t think we could make it stick, so we gave up”.

“It was not because of any input or decision of that wonderful Mr. Birt.”

That being the political objective of the prosecution – they can hardly then actually disclose to the defence lots and lots of evidence which may well disprove their attempted spin on Birt’s position.

I mean, just imagine if evidence which showed a Culture of Concealment, and of the failure to prosecute serious crimes, was made available to the defence – as it should be, given that that argument is central to the defence case?

Not only would the court be having to consider the full evidence concerning this data subject and associated episode.

The defence would be citing Birt’s failure to prosecute those responsible for concealing child abuse for at least 15 years at Victoria College.

And – the defence would also be examining in great detail Birt’s corrupt decision to let the child-torturing McGuires off the hook.

By this stage – I’m sure you are a smart enough bunch of readers to have made the obvious extrapolation.

If a former Attorney General – who went on to become Deputy Bailiff – and now Bailiff – can have his reputation deservedly annihilated because of a repeated failure to prosecute serious crimes – such as child abuse – then what is to stop a similar public interest disclosure happening again in the future?

Perhaps when another former Attorney General – who went onto become Deputy Bailiff – and will go onto become Bailiff – finds his despicable failure to prosecute child abusers exposed – and his “reputation” likewise destroyed?

A certain Mr. W. Bailhache wouldn’t care for that prospect.

Not one little bit.

Which is why they’ve got to crush me and rescue Birt.

Who said politics was boring!

“Make crime pay. Become a Lawyer.”

Will Rogers.

Stuart.

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