How Boris Johnson’s partygate win reduces Keir Starmer’s beergate woes

Note: Durham police have now (8 July) accepted Keir Starmer and Angela Rayner have no case to answer on “beergate” – as suggested below
It’s an enigma wrapped in a mystery: how could the London Metropolitan Police possibly have decided the UK Prime Minister Boris Johnson attended a party on 13 November 2020 that was illegal under Covid regulations yet do so wholly lawfully? The regulations, after all, are clear:

8.—(1) No person may participate in a gathering which—
(a) consists of two or more people, and
(b) takes place indoors (including indoors within a private dwelling).

(The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020)

There were exceptions in Reg. 11 for gatherings “reasonably necessary” for “work purposes” – but no exemption for work parties nor for a prime minister who clearly “participated” in the gathering (he gave a speech, raised a glass, drank a little wine before heading off to his flat to partake of a doubtless rather classier wind-down bottle of something after a hard day’s work).

The police failure to act left many baffled, including the barrister Adam Wagner, who knows a thing or two about Covid regulations. But there have been sufficient clues to understand their thinking and, potentially, to suggest that the Labour leader Keir Starmer has an even better case to be let off the hook for his own apparent “beergate” infraction in Durham.

Grenfell effigy bonfire and Section 4A – a flawed piece of legislation

Was a criminal offence committed when a group of friends took it into their head to mock up a Grenfell Tower cardboard effigy and set it ablaze on Bonfire Night? The short answer would seem to be … it’s complex – and that the law six of them have been arrested on is deeply flawed and potentially oppressive.

The question for the police is: did their action amount to causing intentional harassment, alarm or distress according to Section 4A of the Public Order Act 1986? This says:

1. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
   (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
   (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
   thereby causing that or another person harassment, alarm or distress.

The cardboard Grenfell Tower is a “visible representation” and setting it alight is “behaviour”. But the issue is the motivation of those doing it. Leaving aside the social media issue, the burning of the effigy was in a private garden – possibly among like-minded friends. Can the police show intention to cause  harassment, alarm or distress to a particularly defined group? Can they also show that such harm was, in fact, caused?

The Section 4A provision of the Act that the police are using is something of a confused botch-up. Significant parts of the Public Order Act are very much about public, open places or public buildings. It is about avoiding public disorder: riot, affray, provocation of violence; that sort of thing.

But Section 4A was introduced in the Criminal Justice and Public Order Act 1994, at a time when a new sense of public threat was abroad under a tough new Home Secretary, Michael Howard (the 1994 Act also cracks down on trespassers and squatters). The political focus was on victims and toughening up the law dealing with the remarkably subjective harms of “harassment, alarm or distress” (wording also in Section 5, and controversially so; see Harvey v DPP 2011; see here) but not explicitly in a there-and-then public space.

In contrast, Section 4 (part of the original Act) on provocation uses similar wording, criminalising threatening, abusive and insulting words and behaviour and visible representations etc but only insofar as there is “intent to cause that person [the victim] to believe that immediate unlawful violence will be used against him or another by any person”.

Gunman v gander: whose side is the law on in the Sandon goose case?

So is it illegal to shoot a goose? Police are investigating the alleged drive-by shooting of the Sandon goose some (possibly only the media) called Grumpy Gertie (though it was actually a gander).

Gertie (if that was actually his/her name) was of unknown origin but had housed itself in an old phone box in the Hertfordshire village. It was renowned for adopting ducks and ducklings, hissing at strangers, amusing locals and was generally considered a good egg. There is even, apparently, a £250,000 reward out for the alleged killer. But what is the offence that may have been committed?

Certainly under the Wildlife and Countryside Act 1981 Section 1(a) it is an offence if someone “kills, injures or takes any wild bird”. But there are exceptions allowing hunters to go about their jolly sport. Sandon sits within prime huntin’ and shootin’ land, so maybe someone disappointed in their bag of wildfowl for the day decided to pop one off at poor old Gertie (Gary?).

If so, he should have checked the schedule to the act of “birds that may be killed or taken”, which does include various sorts of geese. Canada Goose? Go get ’em. Greylag? Pinkfooted? White Fronted? They are there for the taking. But the breed of common farmyard or Emden goose of which Gertie (Gary? We’ll call him Gary) was a member? Completely off limits to the sporting gun fraternity.

Criminal Court Charges: a return to pre-Victorian values

We need a tougher justice regime in these austere times – so why not bring back Dickensian-style debtors’ prisons? We’re not there yet, but we’re several steps along the way thanks to the UK Government’s Criminal Court Charges.

Magistrates have become concerned that they are obliged to impose these new charges – and potentially to jail offenders if they fail to pay them. In contrast to imprisonment for defaulting on fines, the Criminal Court Charges are not discharged by serving time in jail. There are set maximum levels for time in jail according to the amounts outstanding. So, if the Charge comes on top of other fines and payments, it can mean longer periods in jail for each defaulter.

The Debtors Act 1869 abolished imprisonment for contractual debt in England and Wales. Parts of the Act are still in force and make clear imprisonment is still available for “Default in payment of any sum recoverable summarily before a justice or justices of the peace” meaning fines, compensation and costs. The Government has in effect created a new category of imprisonable debt. Prison may be used only when the individual is “guilty of wilful refusal or culpable neglect” in failing to pay – the same wording used in guidance regarding the Criminal Court Charge. The potential term of imprisonment depends on the level of the amounts due (See Schedule 4 to the Magistrates Courts Act and notes below). The failure to pay the maximum £1,200 Criminal Court Charge could be penalised by up to 45 days in prison – at a cost of about £90 a day – more than three times the Charge itself.

Judge fails to release foreign sex offender shock

“Judge frees illegal immigrant sex offender in human rights shocker”. That’s a story. “Judge leaves failed asylum seeker in jail without charge for potentially two years or more.” That, apparently, is not a story. But it is worth looking at the case, not least to dispel the notion that unaccountable UK judges spend much of their time releasing foreign criminals at the drop of a cat because of the Human Rights Act.

The case is R (Abdulrahman Abunasir) v Secretary of State. Abunasir had been released from an 18-month sentence for an attempted sexual assault by digital penetration, a “very serious and frightening sexual offence, committed against a young woman, while she was on her own in the street, by a man unknown to her and who had been in the country in all probability less than a fortnight” in April 2013.

While in jail he made an asylum claim saying he was a refugee from Syria. Language tests suggested he might actually be from Egypt. Bio tests did not. Served with a deportation notice he argued in November 2013 that he could not be returned to Syria “as to do so would breach the UK’s obligations under the Refugee Convention”. He completed his  sentence on the 13 January 2014 and was immediately detained under s. 36(1) UK Borders Act 2007 pending a decision whether to deport him. He is held under The Immigration Act 1971 Schedule 3 para 2(1).

Abunasir thus fell into a common limbo: foreign nationals whom the government does not want to release onto the streets of Britain but who cannot be deported because of fear of torture back home, for example or simply because of the seriousness of troubles in their own country. Here there was no way of engaging with authorities amid the Syrian chaos to establish Abunasir’s claim to nationality. The result has been he has remained in jail for 18 months beyond his prison sentence. He was deemed as being of high risk of offending, likely to abscond and had no family ties in Britain. Much work was done by investigators and the probation service to resolve the issues – the possibility of release under probation or return to Syria under the Facilitated Return Scheme (which involves the individual disclaiming rights to pursue legal action, which Abunasir seemed for a time willing to do). To no avail.

The MoJ barrister, the ‘Muslim weapons website’ – and a bad case of alleged racial profiling

The UK Ministry of Justice has been spared an embarrassing tribunal case in which a barrister employed at a London magistrates court alleged racial discrimination. Haras Ahmed, a magistrates court adviser, had come under suspicion because another more junior employee, who was also Asian, had been taking bribes. An employment tribunal found their “shared ethnicity” was part of the reason for the suspicion of Ahmed, which was unfounded.

A suggestion had also been made to senior management that Ahmed had links on his computer to “Muslim sites containing weapons”. They turned out to be pictures of clay pigeon shooting.

The Tribunal considered that Ahmed’s removal from Redbridge Magistrates Court arose from “pressure from senior management due to concern that the Claimant may be implicated in the Redbridge fraud” and hence was done unreasonably and in bad faith. HM Courts and Tribunals Service were in effect under an obligation to prove their conduct was not racially motivated, said the Tribunal.

Anderson and surveillance: RIPA is still the law – and it’s being broken

The Anderson report on surveillance (according to the media) suggested that UK security services should “keep” their powers of bulk surveillance – the downloading and storing of communications and internet material, basically without limit except the limitations of the technology they have. The report has come out in the same week that the Metropolitan Police were unable to confirm or deny (for which read “confirmed”) that dummy mobile phone towers, or Stingers, were lifting material from the phones of passers-by, apparently ad hoc and without specific investigatory purpose.

But it is really not clear that bulk surveillance powers do have legal sanction in Britain – and nor does Anderson say unequivocally that they do. Which is why, under Theresa May’s new “snooper’s charter” (the draft investigatory powers bill), she will be seeking to legalise something she claims is perfectly legal already – but really isn’t.

So what is the law? The key piece of legislation is the Regulation of Investigatory Powers Act 2000 (RIPA) – which Anderson wants replaced. This is often referred to as source of surveillance powers for just about anyone from GCHQ to schools checking on the residency of parents of local authorities looking at our recyling.

In fact it is intended to control, curb, restrict and limit surveillance – and in particular it is intended to prevent the state’s (and private bodies’) disproportionate bulk downloading and retention of the private information – which is just what the security forces do now as far as they technically can and which they will be able to do far more effectively under the investigatory powers bill, requiring ISPs, Google and the rest to keep such information for them.

Court of Appeal upholds Keith Best’s right to keep house he squatted

Builder Keith Best has won a Court of Appeal case allowing his ownership of a £400,000 house after he refurbished it and started squatting it in 2001 – even though he was squatting illegally after 2012.

Best had noticed the empty house in Church Road, Newbury Park, Ilford, in 1997 and decided to make it habitable, moving in in 2001. Around 2013 he applied to the Land Registry to have it registered in his name. The law says an occupier “in adverse possession” (ie squatting without permission of the owner or having established possession by other means, such as putting a fence around the property) can apply to the land registrar to place it in his name after 10 years.

But Best staked his claim after the criminalisation of residential squatting in 2012. The registrar argued that since Best was in illegal occupation after that time, his claim could not be registered. Ownership would not be transferred to him.

The Court of Appeal has now said the registrar was wrong. The criminalisation of squatting in Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO S.144) did not prevent a perfectly legal claim to a property under the 2002 Land Registration Act. Lord Justice Sales said:

“I consider that the true inference is that in enacting section 144 Parliament did not intend to produce any collateral effect upon the settled law of adverse possession in respect of either registered or unregistered land.” (Para 75)

Adverse possession is covered by Schedule 6 to the Land Registration Act 2002 which says: “A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.”

A further two years is allowed while the registrar contacts the previously registered owner (“the proprietor of the estate to which the application relates,“) plus others with a potential interest to see if they object to the transfer to a new owner. “Possession” need not be by squatting but by an action that counts as possession. Best did a lot of work on the house over the years but was not always actually living there during his 10 years of adverse possession. Nevertheless he accrued the Schedule 6 right to make his application. The new ruling from the Court of Appeal confirms that the “adverse possession” (without permission but without objection or resistance by the owner) may include a period of time when occupation is unlawful under LASPO S.144.

Daniel Gauntlett hypothermia death verdict

Note: A full report on this inquest is now in this post: Question’s unanswered in the Daniel Gauntlett inquest

A coroner has recorded a verdict of death by natural causes exacerbated by self neglect in the case of Daniel Gauntlett, a 35-year-old unemployed man who died on the step of an empty boarded up bungalow in Aylesford, Kent, in February 2013.

Campaigners have claimed that he was in effect a victim of  Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which criminalised squatting in residential property. It had been suggested he “died as a result of obeying the law” because police told him not to squat the empty house.

It has been argued that Gauntlett’s human rights may have been breached either because the Government failed to put in place Article 2 European Convention (right to life) protections when it passed Section 144; or because the police or social services had failed to offer sufficient help to him.

However, the inquest made barely any mention of the squatting issue. Nor was there any call for an examination of Gauntlett’s Article 2 rights under a “Middleton inquest” procedure. The court was told that Gauntlett died from hypothermia on a bitterly cold winter night. Evidence was given of his chronic alcoholism which his father said began when his younger brother died in a road traffic accident at the age of 18.

The deputy coroner for Mid Kent, Kate Thomas, sitting on 10 December 2014, had documentary evidence of Gauntlett’s accident and emergency admissions before her. A local community warden said Gauntlett had refused help on a number of occasions. No evidence was offered regarding squatting or any police intervention to stop him squatting the house he died in front of.

Read a fuller report of the inquest here: Question’s unanswered in the Daniel Gauntlett inquest

Twitter: alrich0660

An earlier piece on the death of Daniel Gauntlett is here
More on the squatting law on Thinking Legally: How protection of property could crumble
And a piece also Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure
Also a piece on Ministry of Justice guidelines on Nearly Legal here.

 

Jeremy Wright’s rule of law: Justice shall not be sold – unless the price is right

Dicey? Bingham? Or perhaps you prefer the Wrightean doctrine of the Rule of Law as it operates in the UK? For Jeremy Wright (the Attorney General for those who’ve forgotten – or perhaps never knew) has given us his thoughts on this complex and contested legal principle.

Generally “the rule of law” might be boiled down to a simple phrase: No one is above the law – even the Government. This though, is not the quite message Mr Wright wishes to get across. His speech “on the UK’s long commitment to the Rule of Law” was delivered at the London Law Expo in the City of London. The Expo is a sort of legal/business fest with, this year, Dragons’ Den man James Caan as keynote speaker. Wright’s intended audience, therefore, was the business community – specifically the international business community. What excites Wright is less Britain’s commitment to the rule of law, forged through revolts and rebellions and the slow painful birth of a democratic society. No, what excites him is this: that

“the numbers show just how successful the legal services sector has been: in 2012 it was worth over £20 billion, or 1.5% of UK GDP and contributed some £4 billion in export value. There were over 300,000 people employed in our legal services sector with over 200 foreign law firms operating in London and elsewhere in the country”.

Britain, for these reasons, is not just a place to do business. It is a place to do law. So the point of  the rule of law is: it’s good for business. “Our long commitment to the rule of law I believe, is of central importance to the British economy”. For Wright has very little interests in the philosophy or practice of the rule of law; rather he is concerned to established Britain’s (or perhaps only London’s) unique selling point: “All companies know that they will be judged by clear rules applied in accordance with the law.” The rest of the speech is a promotion of UK plc’s legal services. Somehow he even manages to spin the Libor scandal as a “good” story: