Legislating without due care and attention

21 08 2010

Category: Law, Criminal Law, Politics

Solicitor Nick “Mr Loophole” Freeman is so proud of his reputation for securing acquittals for road traffic offences that he has a google ad that pops up if you type Mr Loophole. He has also trademarked the name – click here.

One of Mr Freeman’s clients was comedian Jimmy Carr. He was cleared of using his mobile phone while driving – click here –  because his lawyer said his mobile phone was being used as a dictation machine to record a joke, and not as a telephone.

When the same client was charged with speeding on another occasion – click hereMr Freeman argued the penalty was invalid because the order relating to the placing of the camera was ambiguous about the name of the road. That case, for speeding remember, needed 15 hearings. And in yet another case for Jimmy Carr – click herefor Jimmy Carr, he managed to turn a postponement into an acquittal.

The barrister who defended a cricketer trying to avoid a drink-drive ban – click here – ban because he wanted to free a kitten (seriously, that was the defence), lists ‘technical defences’ to road traffic charges as his speciality. Before putting forward the ‘kitten defence’ he argued the case should have been dropped because procedures were not properly followed.

Overcomplicating law creates a culture of legal defence based not on winning the argument or putting forward the best case but in looking for procedural or technical gaps and trying to drive a wedge in them.

Rather than simply keeping the existing offence of Careless Driving and issuing guidance that use of a mobile phone is automatically careless driving, or leaving it to the courts to establish that principle under common law, we have a new offence, and new cracks to exploit. The more precision; the more scope to spot the cracks.

And the more the law is taken away from honest contest of argument and evidence, the more gamesmanship intrudes. If that weren’t the case those who specialise in ‘technical defences’ would be out of business.

One of the reasons for this is the legacy of dodgy coppers. Not just the out-and-out wrong ‘uns but those who greased the wheels of justice by helping ensure the conviction of those they genuinely considered to be guilty; called ‘noble cause corruption.’

To protect against police over-egging their case lots of procedures and protections came in. Couple that with the Human Rights Act and ‘technical defence’ can become an artform.

Protecting defendants against corrupted police practices is just, as is protecting citizens against state excess.

But is it just when Mr Loophole™ can promise his clients a strong chance they will not be convicted, a chance that newpapers price at £10,000 per day for his time; when the Bentley-driving Mr Carr can be acquitted of an offence the Skoda-driving Mr Smith would almost certainly be convicted of?

It’s likely to be a while before the government removes the complexities that are so costly not just in in terms of legal fees and court time, but also costly in their social consequences – the perception that justice that can be bought.

In the meantime have a look at Mr Freeman’s website; simply type Mr Loophole into Google and click on his ad – at least it’ll cost him for you to have a look.

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