FB’s Column in Justice of the
Peace (No. 1)
|172 JPN (11 Oct 2008) 673-675
||Doc. No. 2008.024 JPN075A
An Occasional Medley of Legal Snippets
This is the first instalment of a new column
in which I propose to lay before readers a miscellany of short topical pieces
about the law. I can best explain the title by recalling that in chapter
81 of Don Quixote Miguel de Cervantes has the Don’s henchman Sancho
Panza ask for a bowl of olla podrida, “wherein all sorts of good things
are stewed”. There will be some imaginative touches here and there,
but I will strive to make all the legal facts given true and accurate.
How Can A Mister Be A Lord?
My friend Igor, a White Russian Prince whose family were driven out by the
Bolsheviks, is always asking me awkward questions about the British constitution.
In 1917 his family managed to get most of their vast wealth out of Russia
just ahead of seizure by the revolutionaries, so Igor has time on his hands.
He spends a lot of it studying our law for his own amusement.
Igor tells me that Lord Scott of Foscote, a retired Law Lord, has declared
the Constitutional Reform Act 2005 to be unconstitutional. Igor does not
know on what grounds His Lordship says this, but one thing he does know
about the Act. “What’s that?” I ask. “Well”,
Igor says, “It has a lot of provisions about a Lord called the Lord
Chancellor but they’ve appointed a Mister to be Lord Chancellor and
he still calls himself that, Mister Jack Straw. How can a Lord be a Mister?” I
confess to Igor that I don’t know the answer to that, just as I don’t
know how a Mister can be a Lord.
“Is Mr Straw what is called a Jack in office?” Igor asks. I say he
very well might be.
Not Quite What One Intended
When drafting the Consumer Credit Act 1974 I did not foresee one curious
outcome. It was made known in a 2008 case before His Honour Judge Simon
Brown QC, sitting as a Judge of the High Court. The case was on five related
claims concerning a Mr and Mrs Rankine and their financial affairs.
His Judgment makes clear that at the hearing Judge Brown was sorely tried
by the conduct of the Rankines. The Judgment says they represented themselves,
and were granted the usual indulgences to litigants in person by the court
and the advocates appearing for the financial institutions. However the
Rankines “misused those indulgences . . . by producing blizzards of
lengthy, argumentative and incoherent pleadings and witness statements”.
In their evidence they were “perversely and deliberately untruthful”.
They used arguments that were “pure sophistry” and made submissions “totally
without factual or legal merit”. In a blast at Mrs Rankine Judge Mason
“In my judgment, Mrs Rankine was deliberately seeking to be perverse and
untruthful in seeking to avoid a substantial debt despite having all the
benefits of equipment she expects the credit company to pay for on her behalf.
Her behaviour in Court was perverse, argumentative and obstructive.”
That was not all. Many litigants in person plague the courts in the manner
described. What was new to me was the final allegation that Judge Mason
levels at Mr Rankine.
“Recently eight (I believe) claims arrived in various courts in the Birmingham
Civil Justice Centre about the Rankines’ financial affairs. These
are just five of them and an undisputed schedule of debts amounts to £20,231.50
and £17,334.80 in the cases of Mr and Mrs Rankine respectively. During
evidence. Mr Rankine boasted to the Court that they had managed to wriggle
out of a further £65,000 of similar debts by raising Consumer Credit
Act legal technicalities, leaving the financial institutions to write them
off as bad debts rather than take the trouble and expense of litigating
for dubious reward by enforcement against two individuals who are apparently
on income support and exempt from paying court fees.
It also emerged during evidence that Mr Rankine was seeking to make a business
out of this by offering his services to others for percentage reward as
a credit card buster with a website and publicity generated in the media
about his ‘victory’ in the Court of Appeal in one of his cases
This sort of thing was not what was intended by those responsible for the
enactment of the CCA. As Judge Mason points out, the Act was introduced
to protect the individual who is unsophisticated in financial affairs and
contracts with unscrupulous and sophisticated financial institutions. “It
was not designed to help individuals in the financial services business
make money out of financial institutions through exploiting its undoubted
Well that was rather what I thought too, having I fear created many of the
Is An Oath Meant To Be taken Seriously?
Igor has given further study to the Constitutional Reform Act 2005 and comes
back to me with another awkward question. “It is reported that for
2008 there is a £90 million budget deficit in the financing of the
courts” he says. “Isn’t that very serious?” I reply
that it seems to me to be a very grave matter indeed. “Well”,
asks Ivan, “What will they do to the Lord Chancellor Mr Straw? Will
they lock him up in the Tower of London?”
I say that this is unlikely, whereupon Igor says that they
ought to because
of the oath the Act requires. What oath? I ask. Igor says the Act requires
a Lord Chancellor to swear an oath to “discharge my duty to ensure
the provision of resources for the efficient and effective support of the
courts for which I am responsible”.
Ivan seems to think that the Act is meant to be taken seriously, so that
breach of the Lord Chancellor’s oath should have harsh consequences.
If they won’t lock Mr Straw up in the Tower of London, what punishment
will they give him? I confess I don’t know. Probably none at all I
would like to add, but refrain from doing so. I dread the tirade of puzzlement
such an answer would cause to descend on me from Igor.
Modern governments often display delusions of grandeur. This is another
way of saying that the fairly ordinary men and women who nowadays constitute
the cream of our parliamentary contingent are prone to entertain such delusions.
An example is the 2007 Green Paper titled The Governance of Britain (why
not just “Government”). This has led to the draft Constitutional
Renewal Bill (more grandiloquence) which is presently being considered.
The Green Paper is said to have been based on four “key goals”:
• To invigorate our democracy;
• to clarify the role of government, both central and local;
• to rebalance power between Parliament and the Government, and give Parliament
more ability to hold the Government to account; and
• to work with the British people to achieve a stronger sense of what it means
to be British.
Well I have stared at these four so-called goals, over and over again. I
have held them upside down and shaken them. I have squinted at them sideways.
Still I can’t make any sense of them. Words like “hot air”, “flatulence”,
and “puffed up” float around my brain. In the end I can’t
improve on the word I started with. Grandiloquence. The Oxford English Dictionary
defines a grandiloquent person as “characterized by swelling or pompous
expression”. Yes, that’ll do.
Is There Really A Courts Deficit?
I decided to investigate Ivan’s story that there is a £90 million
budget deficit in the financing of the courts, having just seen a news report
that the deficit is really £3 billion. There was nothing about it
on the HM Courts Service (HMCS) website, where one would expect to find
such things. I tried calling the HMCS Senior Press Officer Vincent Burke.
I gave him my name and said I was a member of the Bar who was writing an
article about the alleged deficit. He demanded particulars. Where had I
read news of the deficit? What paper was I writing for? What was the address
of my Bar practice? After he had run out of inappropriate, indeed impudent,
personal questions Mr Burke gave me an official statement from the Justice
Minister Lord Hunt:
“There is no a black hole in Her Majesty’s Courts Service budget. There
will be no impact from efficiency savings on the service provided to victims
and witnesses or to the effective delivery of justice. As with any other
Government department or agency there is a duty to ensure taxpayers’ money
is spent efficiently, and Her Majesty’s Courts Service is committed
to ensuring this happens.”
Pressed on this, Mr Burke said it was the only information that was being
released on the matter of the alleged deficit. I said that “black
hole” was mere slang, and that I wished to know whether or not there
really was a budget deficit and if so what is its amount and what period
does it cover?
Mr Burke replied “we have no further publicly available information
on this matter”. He suggested I speak to Simon Steel in the Ministry
of Justice Press Office if I wished to discuss it further. I did this, without
result. Mr Steel merely repeated that Lord Hunt’s statement was all
the Government were prepared to say. If I wanted more I would have to ask
the Press Office of HM Revenue and Customs. I decided to give up at this
As well as being Lord Chancellor, Mr Straw is also the Secretary of State
in charge of the Ministry of Justice. Is it not remarkable that his own
Press Officer declines to answer properly an inquiry concerning Mr Straw’s
alleged failure to carry out his statutory duty? Frustrated by this I decided
to probe the story further.
I discovered from the internet that on 4 September this year the London
Times published a report headlined “Courts face closure as judges
are told of £90m shortfall in collection of fees”. There was
no mention of Lord Hunt’s “black hole”, but the report
“The criminal courts are facing their biggest cash crisis in decades after
a warning to judges and magistrates of a £90 million shortfall in
the budget for the justice system. Judges and magistrates in England and
Wales have been told of the emergency, which is likely to result in trial
delays, cancelled court sittings and redundancies.”
Surely such a report in the prestigious Times ought to be taken seriously,
and answered properly, by the minions of the Ministry of Justice? I asked
Mr Burke when Lord Hunt’s statement was made, as he had omitted this
information. He replied:
“Lord Hunt’s statement was made on 3 September in response to press
enquiries on the subject. It was not made in the House of Lords and so there
is no Hansard reference.”
The dates suggest that the “press enquiries” emanated from the
Times. Yet its report did not mention Lord Hunt’s statement. All very
Living With Bats
I occasionally buy collections of old letters from bookshops or at auction
sales. They cost next to nothing and invariably include interesting missives.
The other day I acquired a collection of copy letters from the recent past.
Each is headed “From the Rt. Hon. Earl Forsooth K.G.”. The address
shown is Montmorency Castle, Rutland. I suspect the name to be a pseudonym
because I can’t find it in Debrett. However I have checked that the
letters deal with
actual events, so I decided to publish some
of those that are of legal interest in this column. Here is the first.
31 July 1997
Mr Magnus Magnusson
Dear Mr Magnusson,
Living with bats
I am writing to you about the item in today’s Daily
the Chief Constable, Mr William Wilson, who was driven from his home by
an infestation of thousands of bats. You are mentioned as chairman of Scottish
Natural Heritage, which complained to the Procurator-Fiscal about Mr Wilson’s
wholly understandable rejection of these unpleasant creatures. You must
be held responsible for the most bizarre action against a householder I
have heard of in years.
The bats roosted in the roof of the house, and in the end occupied every
room. Because he naturally attempted to eject these repellent reptiles,
Mr Wilson fell foul of a ludicrous statute which protects them even in such
circumstances. Nothing objectionable to Mr Wilson would have been done about
this if your busybody organization had not reported him to the authorities.
The newspaper item says of Mr and Mrs Wilson-
“The couple have been living with bats for the past five years, and
sought the advice of Scottish Natural Heritage two years ago when the animals
indoors. During hot weather earlier this month the smell in the £140,000
house became unbearable. Scottish Natural Heritage has reported Mr Wilson
for failing to follow its advice not to disturb the bats. He was told that
the animals would leave once their young had been taught to fly.”
Have you not heard that under our law a man’s house is his castle?
This ancient, sensible principle was even known to Roman law. It is expressed
in the Latin maxim domus sua cuique est tutissimum refugium (a man’s
house is his safest refuge). I’m sure that must have come up in “Mastermind”.
The least you can do now is resign from this absurd organization calling
itself Scottish Natural Heritage. First however you should give it a good
telling-off and see that the excellent Mr Wilson is suitably compensated.
claims were Nos. 8BM40009-13.