Wednesday 1 January 2014

I fought the law, and the law won: 2013, a year in Broken Barnet, Part Two - our days in court

Maria Nash and solicitor Gerald Shamash attend the One Barnet Judicial Review

Mrs Angry is of course a woman of many talents: an accomplished auditor, dedicated citizen journalist, and yes, domestic goddess: but 2013 has enabled her to add yet another skill to her CV - court reporter. 

Oh. How many trips to court have you made this year, Mrs Angry, you may be asking? 

That you can write about in this blog, anyway? 

Trips to County Court, Magistrates Court, Crown Court - but most frequently, to the Royal Courts of Justice.

Put it this way. The court of Appeal, where sit the Master of the Rolls and an array of begowned senior judges , is hidden away in a very obscure part of the magnificent, neo-gothic High Court building. But now, after several visits this year, Mrs Angry could probably find her way there blindfolded, like Justice herself - or as we would fondly like to believe she is. 

In fact, m'lud, in my humble opinion, on closer acquaintance, it seems to me that very often the law, sir, is indeed a ass, and, with the assistance of the present government's war of attrition on the poor, disadvantaged and dispossessed, becoming the luxury and privilige of a minority section of society: those with money, and power; and those who most need access to the protection of the law, in order to obtain justice, are sinking further and further into the mire of despair.

When Barnet's Tory councillors gave their formal approval to the first Capita contract, they did so in conditions of some considerable uncertainty. Not only were residents sitting in the committee room, in their seats, protesting and baying for their electoral blood, they took a vow to continue the fight against One Barnet. And the legal fight had already begun, because news had just broken that  Maria Nash, a disabled woman from Barnet, had lodged an application at the High Court for a Judicial Review. 

The Review hearing took place over three days in March, as reported here ...

and in two subsequent posts.  

A collection of Barnet bloggery at the High Court

Judge Underhill cut straight to the central arguments: the case from Barnet was largely based on a long, long statement from the Commercial director, which was by Maria's QC Nigel Giffen as  'an awful lot of narrative' a tedious task to read' and a  'smokescreen'. the judge agreed and commented that it had 'no analysis at all'.  In fact, this was because there was nothing Barnet could produce to support its case that there had been a proper process of consultation with residents over the massive programme of privatisation that was about to be foisted on them. There was no consultation, because clearly, properly informed, residents would have opposed such proposals. And the interested parties - council, consultants, and bidders - were determined that privatisation would take place.

So determined were the promoters of One Barnet that they took steps to ensure there would be no process of engagement with residents over privatisation plans. Most blatant of these measures was the amendment of the local constitution, just before the tender process got underway, to forbid any mention, let alone discussion or criticism, of any council policy at residents' meetings. 

The Judge was visibly astounded by the extent of Barnet's refusal to involve its own residents and taxpayers in the decision to outsource almost all their council services, and found that the authority had been in breach of the statutory requirement to do carry out such consultation. Unfortunately, he also found that the claim by Maria Nash was too late. 

A moral victory, out of time. A judgement based on the view that application for review should have been made as soon as the relevant decision was made. Even though there was still no clear agreement as to when that relevant decision was enacted. And you might well ask that if learned counsel and High Court judges cannot themselves identify that defining moment, how on earth can it be reasonable that an ordinary citizen should have been able to assess this, before acting, and when the authority had gone to such extraordinary lengths to keep its own residents in the dark about their proposals?

But of course, as Mrs Angry was to learn this year, the gulf between the law as understood by the judiciary, and the demands of natural justice, is wider than an ocean, and one that is being pulled further and further apart by the seismic forces of the ruthlessly targeted political policy of the Condem government. 

Judical Review was hard enough to obtain, and only available in this case through the legal aid supported application of Maria Nash. In future, such legal challenge will be nigh on impossible for most of us, is becoming impossible for anyone without means - the new limits of access to legal aid, like most of the other changes wrought by this administration is a policy set on creating a society where justice, education, and healthcare are available only to those with wealth, power and influence. The new injustice of the withdrawal of legal aid will fall - is falling - hardest on the most vulnerable: the poor, the disadvantaged, women, especially those caught in abusive relationships - it is a shameful policy, a deliberate policy, and unforgiveable.

There are other ways of resorting to legal action, of course, without relying on your own financial means, but these routes may be fraught with risk, and controversy.

Another court hearing attended by Mrs Angry this year was the libel case involving Welsh blogger 'Caebrwyn' - Jacqui Thompson. Jacqui's blog has highlighted many issues regarding the largely unaccountable activities of Carmarthenshire County Council, presided over by Chief Executive Mark James. 

In 2011, Mr James called police to a council meeting because Mrs Thompson was filming a few minutes of the proceedings with her phone camera. She was arrested, put in handcuffs, and taken to a police station, where some of her clothing and her wedding ring were removed, and where she was kept for several hours until she agreed not to repeat her behaviour. An extraordinary incident, and one which unsurprisingly resulted in widespread criticism from all over the UK. 

The implications of this incident, and the legal consequences which followed are of importance to all bloggers and journalists writing about local political issues, expecially those who try to do exactly what Eric Pickles insists is our right: to hold the activities of local government to account.

Mark James took it upon himself to make comments about what had happened on another blog, the nature of which were such that Jacqui felt she had no option but to issue libel proceedings. She did so under a no win, no fee agreement. Mr James then issued a counter-claim, and Carmathenshire County Council made the decision to fund his costs via an indemnity scheme. This highly controversial move has been the subject of complaints to the Welsh Audit Office, and is reported to be unlawful - the Audit Office is believed to be poised to issue a public interest report on the matter. See blogger Y Cneifiwr for the latest on this:

Jacqui Thompson has written about many issues of public and local interest in her blog, many of which are now serious enough to be raising a serious level of concern amongst local politicians, with one local MP calling for the authority to be put in special measures:

Unfortunately for Jacqui Thompson, the Judge accepted the view promoted by Mr James' publicly funded counsel that her blog was a personalised and vindictive campaign focused not on the council but on Mr James, and the resulting judgement was so severe in condemnation of her that the insurance policy supporting her no fees position was revoked, and she now faces the loss of her home in order to pay costs and the compensation owed to Mark James. 

Such are the risk of blogging, and the gamble of taking civil action in libel cases. If you are wealthy, you may obtain a high level of protection for your reputation. You may do so through the use of a superinjunction, perhaps. The reputation of the wealthy, the powerful and the influential, is more important than the good name of ordinary people, so this is only fair, is it not? 

But what if you are a blogger, or a freelance journalist, or a 'small publisher'? Advocates of the new Royal Charter, promoted as the answer to the awful deeds of Fleet Street tabloids uncovered by Leveson, insist that the Charter will be a boon to the citizen journalist, and that we should all welcome the shackles of bondage to the new regulatory body. Being punished for the sins of Rupert Murdoch is something we should accept as our lot. Mrs Angry had a slight disagreement on this issue with Hacked Off's Hugh Tomlinson, QC, described in Private Eye as the 'Sultan of Superinjunctions' - as you may read here:

Of course bloggers will find themselves bullied into joining up with the new body, as if they do not, and are involved in a libel case, even if successful there is a real risk that judges will be inclined to award costs against them. 

The weight of importance given in law to the management of libel reflects, rather gratifyingly, the continuing power of the written word, and a sense of panic in some sections of the establishment from the increasing challenge from a new source, from scrutiny and comment no longer confined to the mainstream press, or broadcast services, but from online media, reflecting the opinion of individuals, and democratising the process of political debate. 

In a local context, the expansion of the blogosphere has succeeded in a vacuum created by the decline of investigative journalism, and wherever there is a democratic deficit caused by a less than challenging elected opposition. This applies in Carmarthenshire, and in Barnet, and in local authorities all over the country.  

These comfortably placed councils, that formerly operated under the cover of a lack of scrutiny, can no longer function in the same way, unnoticed, and that is why some of them are resorting to desperate means to silence their critics, either through the law, the local constitution, or by a refusal to comply with the demands of open government, and the requirement of the Freedom of Information Act. 

Breathing down the neck of local authorities, and other public sector bodies, and now with their feet marching towards the new market of the NHS are the major companies bidding for contracts, determined to evade the demands of transparency in their interesting partnerships and tendering activities. It is the right - and duty - of journalism, citizen or mainstream, to challenge them at every step, and hold them to account. 

The law is meant to hold to account those whose actions or failures to act lead to misfortunes for others. This year saw the prosecution of the Fremantle group which manages a care home in Finchley, in which an elderly resident died after an unexplained fall from a first floor window, w hich had been left unsecured.  Fremantle has also had legionella traces found in its homes. 

Mrs Angry attended the hearing at Wood Green Magistrates Court - no one from the local press bothered to come, unfortunately:

Fremantle was found guilty of breaches of health and safety legislation, and fined at what the judge described as a deterrant scale. The value of Yuk Kiu Lee's life was set at £175,000: only £55,000 more than one year's salary for the Chief Executive, who had a pay rise this year. And Barnet Council, while legal proceedings were in progress, and before the outcome of the trial, had happily renewed its contract with Fremantle for another ten years. 

Not all our days in court this year were a complete disappointment, of course. 

Yes, I'm talking about Brian Coleman.

At last, in May, the Totteridge councillor made the long journey to Uxbridge Magistrates Court to stand in a graffiti covered dock and face charges of common assault by beating of Finchley cafe owner and traders' spokesperson Helen Michael - and another motoring offence relating to the incident.


On the morning of the trial, Councillor Coleman changed his plea to guilty of assault, having denied both charges until the last minute. The female judge fined him £1400, including costs and compensation to his victim. He offered no apology to the court, and his fellow Tory councillors refused to comment, actions which serve only to underline two facts: the deep rooted misogyny of Barnet Conservatism, and the equally profound depth of cowardice that they have always showed in standing up to this man - even when convicted of a criminal assault. 

Mrs Angry, ITN news, Uxbridge ...

Despite his conviction, local Tories failed to move to censure him, and his ejection from the membership of the party was eventually forced by central office. He now sits as an Independent member, and has taken revenge on his former colleagues in a particularly spiteful blogpost, which makes allegations about their sexuality and characters. 

Natural justice prevails, however, in the most fitting of ways: Coleman's political career, such as it was, is over. From all his publicly funded posts at the GLA, LFEPA, and Barnet Council, nothing remains. 

Google alerts that used to inform dutiful bloggers of his latest gaffe now bring news of namesakes in small-town America committing petty crime, or winning golf titles: nothing could be more galling for Coleman than such a fate: no fine, or conviction - to be forgotten, and ignored is the real punishment. 

In its way, another example of where the weight of the law, and the rule of statutory justice, is so much less effective now, in the eyes of an increasing number of people, than other forms of redress, and alternative, more direct forms of action - which will bring us neatly, and finally, to Part Three ... if Mrs Angry gets around to it, possible some time before New Year's Day, 2015. 

Mrs Angry has decided to spend 2014 in bed, sulking, and feeling sorry for herself, but wishes a Happy New Year to all friends, and especially to you, dear reader - oh, and to you, Brian ... x

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