'Cadno and the rule of law' - This week's Carmarthenshire Herald

See below for this week's Cadno opinion piece from the Carmarthenshire Herald. An interesting article, self-explanatory, and well worth a read;

Cadno and the rule of law

Cadno believes in the law. 

He also believes that the law is nothing to do with justice. 

If you seek justice, look to philosophers and those who are concerned with abstracts. 

The law is a set of acts of parliaments, precedents derived from case law, judicial interpretation of statute and common law, regulations, and rules. 

And because laws are made by human beings, laws can be fallible. 

In 1996, the then Conservative government introduced the Criminal Procedures and Investigations Act. It was so badly written and conceived that it created absolute chaos. If you were charged with separate offences relating to a course of conduct allegedly committed either side of the date the Act became law, then under the Act’s terms you were subject to separate committal proceedings. In one, the evidence could be tested by hearing and cross-examining witnesses under oath; in the other, all the Magistrates had to find that there was a prima facie case based on the papers. 

So, and this happened, readers: in the old-style oral committal the prosecution case was revealed as more full of holes than a fisherman’s landing net; in the ‘paper committal’ – using exactly the same evidence in the form of police statements – the Magistrate was compelled to find there was a prima facie case to answer and the case headed off to trial. 

That was not just. It was the law. 

In the end, the House of Lords decided the law was indeed an ass and imposed some common sense. But not before a number of people had been subjected to pointless trial by spineless prosecutors too afraid to pull the plug on hopeless compromised cases. 

Or, try this one for size: under the same Act, a duty fell upon the officer in charge of disclosure to list all evidence the police had considered, both used and unused. The unused evidence could be requested by the solicitors representing the Defendant. In one case it emerged that part of the evidence that the disclosure officer had certified he had read, considered, but which the prosecution was not relying upon, did not exist. It had never existed. The police officer concerned had merely made an enquiry of a third party, been told it had material, and listed it as though he had read it. 

What kind of plonker would do that, readers? 

Cadno knows, but wild horses and the fear of being hunted down by humourless rozzers carrying truncheons and set on vengeance would not tear the officer’s name from his lips. 

So, we can be clear, readers: not only can the law be an ass, but even high-flying police officers contemplating truly stellar careers can be wrong and wrong cubed, to boot. 

Last week Jacqui Thompson had a case brought against her by Dyfed Powys Police at the behest of Carmarthenshire’s County Council’s most special snowflake, much-loved and admired CEO Mark James CeebeeEee, dropped for lack of evidence. Mr James claimed he had been harassed by the content of Mrs Thompson’s blog. 

It’s an interesting Act, the Protection from Harassment Act 1997. Also a creature of the same legal geniuses that dreamed up the Criminal Procedures and Investigation Act (above). 

Section One opens with the deathless statement, a person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other. 

And yet those seeking a definition of what constitutes ‘harassment’ are bereft of guidance from the words of the statute as to what harassment is. 

Thankfully, the Courts have stepped in to provide sense where the plain words of a statute provide none. 

The CPS prosecutors’ code states: ‘The definition of harassment was considered in Plavelil v Director of Public Prosecutions [2014] EWHC 736 (Admin), in which it was held that the repeated making of false and malicious assertions against a doctor in connection with an investigation by the GMC could amount to a course of harassment. The Court of Appeal rejected the argument that malicious allegations could not be oppressive if they could easily be rebutted. 

‘A prosecution under section 2 or 4 requires proof of harassment. In addition, there must be evidence to prove the conduct was targeted at an individual, was calculated to alarm or cause him/her distress, and was oppressive and unreasonable’. 

In the case against Mrs Thompson, therefore, the prosecution had to prove that the alleged harassment of Mr James was calculated to cause him distress and was oppressive and unreasonable’. Not and/or – both oppressive AND unreasonable. 

Despite combing Jacqui Thompson’s blog, the CPS determined that there was insufficient evidence to support the allegation. 

Last week, Herald columnist Matthew Paul neatly skewered the Erewhon nature of the allegations against Mrs Thompson. Having read some of the posts concerned in the initial complaint – curse those IP addresses – Cadno can only conclude that Mr Paul was seized with uncommon generosity of spirit not to lampoon the meagreness of the complaint’s subject matter in terms of its capacity to cause offence to anyone, other than those with their nerve-endings situated so close to the surface of their skin that even wearing clothes must be the most exquisite agony. 

There is also the question of the Kafkaesque harassment warning issued to Mrs Thompson before the last complaint. That warning was issued by the Police, and one can only suppose that it was not issued with the backing of the CPS or any oversight of the process. 

Let’s hope that the officers involved in that decision thought long and hard about issuing the notice. 

It comes back to one of Cadno’s nagging and persistent concerns about Dyfed Powys Police’s involvement in the whole imbroglio concerning the County Council’s CEO and a lone blogger. And it is this: when the potential target of a criminal investigation was most senior council employee, the Police recused themselves from acting because of the authority’s close relationship with the Force. 

When the complainant was the Council’s most senior employee, there was no issue. 

That cannot be right. Because while the law has nothing to do with justice, enforcing the law has everything to do with fairness and consistency. Those who are under investigation are entitled to certainty and consistency – the Force did not act consistently and that is not good enough. For the public to have confidence in the Police it has to be like Caesar’s poor wife Pompeia: it was not enough for her to be blameless, she had to be above suspicion. 

So should the Police. As a bare minimum.

Republished with permission from The Carmarthenshire Herald