James Grant

LCB says:

I agree absolutely, Riana but am 100% unsurprised. This is how much of society where I am has become, and I have seen many societies developing towards. It is the most distinct trend in any part of the world I have seen, I think. In fact, I think that Judge Masipa’s verdict is a kind of rare valediction of the due process of law and the upholding of the basic principles of law and procedure, such as proof and evidence, burden of proof, assumption of innocence without proof. In other words – look, when we don’t know, we don’t know. We are only human. Do we want to pretend we are psychic also? No, please. We ought to try not to let tragedy bring us down further, degrade what remains of our persons. Tragedy often has the potential to do that so keenly. It is important to be aware if we are to try not to let it.
The integrity of the law must be preserved.
I’ve been watching some court decisions, mostly rather high profile, in the UK for more than the last 10 years, having been to a law school in the UK before then. I am not a lawyer. I do not earn from the ongoing wheels of justice. Knowing what the law is, and the methods of test, objective, subjective, the meaning of reasonable in certain situations, common law meanings of each element, I was amazed sometimes how a jury could come to a certain conclusion based on the evidence presented. Often it seemed utterly impossible. Sure, you could say I have a good feeling that man killed that person, and even that, yes, it can seem probable he is the killer. But it cannot be proven beyond any reasonable doubt in law. Often, yes often, in these cases I followed, I very strongly doubted that there could even have been any proof on the balance of probabilities, should you wish to consider that lesser burden. This was very untypical, it seemed to me, before the millennium, in the 1970s to 1990s. Though it did happen, of course, as some overturned miscarriages of justice proved (and it would be foolish to think they would be all or perhaps even most of the wrong verdicts). But, generally, it was a rare thing before 2000, from what I was looking at. As well as the apparent inconsistency in evidence with conviction in murder, there was the recurring characteristic of choosing murder over manslaughter when I had the most strong doubts that murder could be the right verdict on any burden of proof, and manslaughter or culpable homicide was able to be proven but also intuitive.
Sometimes I thought these strange, more recent verdicts must have meant new laws were made without it being obvious. I was not working as a lawyer, and the law changes. But I checked some of these. In nearly all cases no commentators were saying that Ratio Decidendi inclusions in the verdicts or suggestions from the verdicts were new common law precedents which developed or modified the way existing law was understood. Nor had the law I knew been developed in the interim. There were no claims by analysts that the old laws had become any different or could have ceased to apply. The law from statute and common law precedents had remained the same, but cases had occurred where it seemed to me they could not lead to the conclusion of guilt by due process.
Instead, people were ignoring that it seemed rather clear that the verdict could not come from the facts presented, in strict legal terms. In the court of the high emotions and the wanting to convict some “monster” (now a favourite, regularly recurring term once limited to media but now favoured by courts, and *typically* in this part of the world, UK, yet strangely they don’t consider any insanity in nearly all of these cases.)
A number of these were high profile cases. Before seeing any published case notes, one just had to wonder if the media reported only half the situation and the courts were deciding on other evidence. Because, most times, I would follow the long running media discussions and conclude, yes that person seems a good, prime suspect and there may be a lot to suggest guilt there. But on the legal process I knew I didn’t know how the jury were actually going to convict them. I knew I couldn’t have. I wondered what I’d do in such a situation, if I were in the jury, where the media focus was intense and the people were calling for a conviction. Because I’d been to a law school, which over 99.99% of people haven’t, I knew I’d be alright. But I wondered if I would have just be carried away in the confusion if I hadn’t learned law as an adult, and was on the jury. I wondered how many of them thought, well, no-one else is being presented as being suspected, or suspected much. So with all they’re saying about this person it must be him. But juries are not told about other suspects much of the time, or much about other possible suspects, even if there has been any other police investigation. It can be easy to assume that guilt is likely not only because the state has decided to prosecute this person, but, in conjunction with this because it decided against prosecuting different persons who it must have investigated.
It seems that the juries of today can decide things, and nearly never will a judge bother to stop them and say, “but look, I understand you assume guilt, but it’s not possible following the strict legal procedures which need to be satisfied”. The truth is that judges simply don’t tend ever to do that to juries nowadays, whatever the jury decides. Which I suppose means, often enough, the law is not even being applied. The jury can come to any emotive conclusion, claimed to be based on what is allowable from facts but not able to be based on facts in each element of consideration, and the judge will not order them to reconsider based on any individual points.
Instead, people – the press, legal commentators, lawyers at least in public, and the public – were ignoring that it seemed rather clear that the verdict could not come from the facts presented, in strict legal terms. It seems that the juries of today can decide things, and nearly never will a judge bother to stop them and say, “but look, I understand you assume guilt, but it’s not possible following the strict legal procedures which need to be satisfied. You must reconsider.”. The truth is that judges simply don’t tend ever to do that to juries nowadays, whatever the jury decides. Which I suppose means, often enough, the law is not even being applied. The jury can come to any emotive conclusion, claimed to be based on what is allowable from facts but not able to be based on facts, and the judge will not order them to reconsider based on any individual points.
Then there are the questions about cover-ups and courts and police using the juries in this way to hide official secrets. Looking at other considerations for cases which seem to convict or favour a more serious charge where the law does not enable that, are very, very important.
For example, many people accept Jill Dando was probably murdered in England because she had made clear to some people that she was determined to try as a journalist to get to the bottom of the long term politicians, councillors and public figures paedophile rings. The organised child abuse, and also child murder, is known to have happened, over decades.
Whether or not that was the reason for her murder, it did happen, Ms Dando did communicate this deep formed, resolute intention to investigate and report to some people. Dando’s murderer is unknown to the public. The Metropolitan Police, after a miscarriage of justice, are not doing much. (For some reason or for very certain reasons, it is very likely most journalists had been more than just warned not to go near this area, from the time Dando was alive to today. I suppose they may be frightened. Jill Dando set aside her fear. It is further possible they have been served with ‘D’ Notices – official instructions to keep quiet or be imprisoned because of declared reasons of “national security”. More than just possible, it is known as fact this has occurred in at least some cases of child abuse carried out by public and state figures.)
The Metropolitan police convicted neighbour Barry George of Jill’s murder, and they ignored and suppressed witness testimony, eye witness murder scene testimony from locals that the murderer was not and could not have been Barry George. This evidence is still ignored and suppressed by the Metropolitan Police and was not the reason that George’s conviction was declared a mistrial. Only someone with knowledge of his special and emotional needs realised that George could not have murdered Dando, and led to his release. The state refused to consider compensating Barry George, perhaps in the attempt to sow seeds of suggestion in an underhand way he was acquitted on a technicality eventually. In any event, the miscarriage of justice against Barry George served its purpose for a few years, and deflected attention from investigation anyone else, and the suppressed witness testimony being considered by police, still to this day. It has only been leaked in the last couple of years or so by the media, with most mainstream outlets being slow to report it (if they did at all), and giving it very small coverage.
To take the Metropolitan Police in the 1980s, police members (as well as judiciary members) are known to have frequented the gay brothel Elm House in South London. (Although still generally unreported, it is known this place operated, with child abuse, well beyond the early 1980s, while it is the early time that most media reports focus on now.) Further, victims of awful, atrocious homosexual child abuse there now have made it a known fact that they were threatened by the Metropolitan Police that if they reported the crimes, they would be silenced and harm would come to them. Further it is known that members of the Metropolitan Police were being paid by the Elm House brothel which specialised in organised, severe child sexual abuse – an extortion fee paid to the police as police – to protect the brothel and cover up what went on. Whether or not the police members chose this or the owners suggested or chose it, it is still extortion, for something illegal. Also it is of course illegal in connection with child abuse. The lady owner paid the policemen for this. She said she was paying them because they were the police (rather than private individuals who also happened to be policemen), and that that meant that they knew what to do, and it must be ok.
The Metropolitan Police member’s connections with high profile figure and state figures (including at least one former British Prime Minister) child abuse, and child murder in the case of the former Prime Minister, go back beyond the 1980s. The consensual associations involve the Kray twins’ paedophilia rings and involve Savile. Little known, I know that members of the police or the social workers they contacted or both were involved in “telling” a female Savile child abuse victim when he was alive that if she said anything more, she would be incarcerated in an asylum. She was told she had to think of what that meant for her. I have been told this happened a number of times, involving more than one police force. It was just echoing how Savile approached many of his victims – “we can do anything”, he said. He told victims “It’s not good to be mad, you want to be ok, don’t you?”, “we can make sure you get the help and quiet you need if you want to say anything in particular. I know everyone and they know me. Police, judges, psychiatrists, social workers”. After physical and sexual abuse of the minors. Police and others did what Savile or his accomplices urged.)
I’ve really gone on about one case of Jill Dando and the police connections, mostly to one police force, and their associations known now in this internet age.
I chose that particular case as an example, however, because of the similarity in all the cases I’ve described where it seems someone can not be convicted beyond reasonable doubt on the facts, through the correct process of law.
I sat and watched the case as it developed, and indeed studied the court publications after, and the commentary. And before the verdict, just as after, I agreed that the case had been presented so that George looked like a very serious suspect without other evidence. (Not to know the police had supressed the most important evidence in existence about the murder of Jill Dando). But, without knowing anything further, I was sure Barry George could not have been convicted of murder on the facts presented. Further I was more or less convinced he should not have been found guilty should the burden of proof have been lesser – balance of probabilities – though I would not have been so indignant on the balance of probabilities. I conceived that some people might reason it possible to see guilt on that burden of evidence. But, again, certainly not on the burden beyond any (meaning all) reasonable doubt.
So, I’ve been saying that with many cases for years now I’ve had consistently an inability to understand in terms of process and evidence and reasoning how at all many juries have been able to convict a significant number of people on evidence. This is evidence it seems clear should be significantly or substantially unable to finally convict beyond doubt, through the strict process of statue and common law precedent meaning identification we know as the law in my part of the world. … Which must be that way, which must be that strict, or we roll back to the days of mayhem and witch trials. I gave the Barry George trial of murdering Jill Dando as an example, because, although I didn’t know it during the trial and still wondered how he could be convicted on the law as it was, there are the most serious reasons why some people may have arranged for Barry George to have been tried and convicted.
One must ask if similar reasons may exist in other cases. (Moving to Italy, look at the case of Knox and Sollecito for the murder of Kercher. What on earth is going on there? The police and prosecution seem even trying as hard as possible to portray a circus rather than a serious legal process.) One must ask also if the existence of such hidden reasons in a smaller number of cases may even be the reason for allowing (or developing) this trend of the last ten years or more of cases to convict when it seems the law itself says this may not happen.
For these reasons, I am grateful as a foreign citizen but a citizen of the world for the rationed reason on proper process of Judge Masipa on the case of Oscar Pistorius in South Africa this year.
I was not there, so I do not know if Oscar Pistorius in his presented state of being awakened in the night in the dark with residual paranoid feelings affecting him often anyway, acting in quite sudden, extreme fear and haste, intended or foresaw the death of his girlfriend, Reeva Steenkamp, or the death of anyone. I do accept Judge Masipa’s verdict that no count of murder was proven based on the prosecution’s case. I can be convinced by Judge Masipa’s decision that culpable homicide is a competent verdict, considering if the sentence is adequate. Most of all, however, I am dismayed how the psychiatrists and court can have decided that Mr Pistorius, through his own presentations was fully sane at the time. I think there is likely to be a grave error here.
I do think that the prosecution’s case could have been developed more, and that it can be thought that Oscar Pistorius made it very difficult in the court room for the prosecution to go further. Though I know completely that the latter two assertions do not mean to any degree, nor lead me to believe at all in themselves, that Oscar Pistorius murdered Ms Steenkamp. Again, I was not there, so I could not know and I am aware that a good and acceptable verdict is that murder was unable to be proven from the defence’s case while the accused is guilty of the criminal offence of culpable homicide. Personally, I am not able to suggest the verdict is flawed as to culpable homicide rather than murder, setting aside the sanity issue I’ve mentioned.
However, if I exclude the sanity issue I have personally with the case, i see that Judge Masipa has carried out a brave, though normal act. Normal in the sense of what ought to be, normally, rather than in the sense of what is typical of the times. I doubt very much indeed that, on the prosecution’s case, a British jury today would have decided anything other than murder, and I’m nearly sure a judge would not have queried any verdict they would have made. I am grateful for the plain speaking, simple clear legal logic read in public by Judge Masipa. I am heartened from this case that it has been avoided that it didn’t matter what kind of case the prosecution made as a serious suspect in a high profile case will nearly always be convicted of the most serious crime. I am not surprised that the people who disagree with the decision blame the judge rather than the prosecution, where only any blame could lie, as this is more typical of the social situation I have seen developing over these years. I begin to think that a judge trial is a far better thing than a jury trial when it seems that a judge will more or less never intervene in a jury’s verdict to advise them to reconsider on points because the law simply does not allow for them to reach the conclusion they have done, whether the accused is the killer or not. Although perhaps shocking for people to read, that can never be right, that the law can be put asunder in favour of an emotional fix of verdict, a quick social bandage, which wraps things up.
Courts should not be about emotions. Real life is about emotions and the court is a part of real life, but it must be different. It has to be. Courts can not be about emotions in the true, adult, mature light of day. It is the slipperiest slope, also. The Barry George trial is an example of where the emotions were targeted, but actually much less obviously than typical in these kind of cases. There was an arranged process designed to make a jury feel that this must be the man, a kind of a peculiar “sicko” you may sympathise with but a deviant nonetheless. A case was designed to persuade that the sympathy inducing, emotionally challenged deviant should not get away, where the facts could not have proven guilt by the way the law needs to work. (And where the most important evidence as to the murder was supressed and remains supressed by the police, later leaked.) But it is not uncommon today in this part of the world, UK.
Society has changed so much around it or of it or through it that people often no longer want to consider if the truth is being thought, and if the law is being maligned in the process, perhaps forever degraded to degrees each time this occurs. The gravy train of “get it sorted, whatever happens, tie it up, find a person, brand a monster, ensure the most grave offence is reached, however you get there” seems to reach everywhere.
I want people to realise that humans are limited. We do not keep eternal natural truth or justice behind the courtroom doors, we only make reasoned thinking animal processes to the best of our abilities, when we are most healthy and wise. When we attack the fabric of those processes, especially the more important pieces of the fabric, we slowly, inevitably get away from our health and wisdom and the possibility of such remaining in our world and the possibility of people even accepting such in the future in our world. Every day could be a false “Brave New World” step in a direction we don’t want if we are being sensible, and we ought not to let it, where possible.
Whether Mr Pistorius committed murder or not, I accept that culpable homicide is a competent and appropriate verdict on the reasoning given by a human and based on the prosecution case presented by humans. A competent verdict means a lot. The case is an illustration of humans trying. I feel sufficiently healthy and wise humans. Now, I suppose this next statement may or may not be being emotional. While the loss to her parents and family of Ms. Steenkamp and everyone who knew her including Mr Pistorius and the shame of her losing her life are both enormous, I have concluded, regardless of this verdict, I don’t have any reason to believe that Mr Pistorius is a bad man. He might be, but, regardless of Judge Masipa’s words, simply I cannot honestly hold it, being consistent to what I know. Checking and rechecking, I am utterly sure I can’t. I think that must be most important. At the end of the day, notwithstanding that I think there has been some tangible to substantial mishap (one can’t suggest the degree) in that some exposition of some kind of insanity (or insanity with automatism) did not form part of the court proceedings whatever meaning it would form, (where, again, that can’t be the judge’s fault), an appropriate justice is being served. I mean an appropriate justice based solely on the cases presented by both defence and prosecution, as they were able to in the circumstances. This is what we try for as humans who care about the law and what it means. More than that, it really is very important that we try to make sure we do not go beyond appropriate justice.

DJ says:

I heard not a single person argue that rejecting (significant) premeditation was an error. Although in South African law it can only be a few moments of thinking – such as the walk between bedroom and bathroom before shooting – the idea he “planned it” is not really something anyone has seriously been arguing about. Nel’s arguments for premeditation was solely the walk from bedroom to bathroom.
And in fact the judge agreed that Pistorius may have planned to shoot when he took the safety catch off his gun while going there. So the judge agrees with Nel’s interpretation of the passage, it gives time to reflect before.
In terms of Oscar’s version being the truth, the judge found it was reasonably possible “in general”. That doesn’t mean every little detail is the truth, or even that it is the answer to the case at all. It’s a finding. In fact, the judge agreed with the prosecution in some respects – it was clear Pistorius had not been “candid” about his “intentions”, it was clear he was “evasive” and a “very poor” witness. We still do not know why he fired four shots instead of one.
Given the case concluded with some important questions left unanswered, it is natural for people to feel that there is more to it. Indeed even the judge says “unfortunately” we will not be able to get answers to some of the things about his version that “do not make sense”.
She really left it open in some ways – so it remains a conundrum what ‘exactly’ took place, why ‘exactly’ he fired, even now.
Remember he said his gun went off by mistake – the judge rejected that part. Reasonable doubt kicked in to decide some kind of version about a burglar might be true, other than that, I feel we are none the wiser.