Open letter to Lord Lester of Herne Hill

Open letter to Lord Lester of Herne Hill

Dear Lord Lester of Herne Hill

I note in your biography that you "campaigned for thirty years to make the European Human Rights Convention directly enforceable in British courts". As you know, when it came to convicted prisoners, and Article 3 of the First protocol, I was unable to directly enforce this right. On Monday it will be the 5th anniversary of the ECtHR judgment in the Prisoners Votes Case. However, I will not be celebrating the victory because of the government's subsequent refusal to remedy the blunt instrument of s.3 of RPA 1983.

I killed my landlady with the blunt end of an axe, and served 25 years of a discretionary life sentence for manslaughter, by reason of diminished responsibility, even though my tariff was set at 15 years. There was no procrastination when it was R v Hirst, but much dragging of heels when it comes to Hirst v UK(No2).

If this case highlights anything, it is the need for constitutional reform.

I am a living example of prisoner reform. Going from law breaker to law-maker.

In spite of suffering from Asperger's Syndrome, I am very bright with an IQ of 155+. Although a genius, I am a flawed genius. Nobody is perfect.

Last Sunday I appeared on The Politics Show (fast forward 30 minutes). http://www.bbc.co.uk/iplayer/episode/b00j9mpj/The_Politics_Show_Yorkshire_and_Lincolnshire_22_03_2009/

Whilst being an Aspie has its drawbacks. On the positive side, I have an eye for detail. For example, the similarities between Cambridge University Queen's gatehouse and the gatehouse at Wormwood Scrubs. http://jailhouselawyersblog.blogspot.com/2009/03/double-take.html I know Charles Falconer read law at Cambridge University and I read law in the "University of Crime". I know that on the day that the Grand Chamber handed down the judgment, I was being interviewed by BBC1 Look North in Hull, and Charles Falconer was being interviewed for The World At One in London. The Look North film crew and I awaited for my mobile phone to ring for the AP journalist in the Court in Strasbourg to give me the news. He informed me that the Court only read out the gist of the judgment, and that the judgment in full was to be published at a later time. I passed on the gist to the rolling camera. On the other hand, the then Lord Chancellor, rushed into the radio studio with a faxed copy of the judgment which he had not read and announced to the listeners what the judgment did not say when he did not know himself what it did say. My witness is Juliet Lyon of the Prison Reform Trust who was also in the studio to be interviewed. Although I do not claim to possess any formal legal qualifications, whereas Lord Falconer of Thororton is formally legally qualified, I would not think of giving my legal advice on a case without first reading the relevant judgment. For the then Lord Chancellor to have done this I will be eternally grateful, because I mentally took him as my prisoner. Whilst I do not agree with much of what Jonathan Aitken has to say, he was right in this respect: "The Lord Chancellor on The World at One gave a dangerous hostage to fortune when he said yesterday, "Not every convicted prisoner is in the future going to get the right to vote … we need to look and see whether there are any categories that should be given the right". http://jailhouselawyersblog.blogspot.com/2009/03/jailhouselawyer-v-jonathan-aitken-round.html

In my view, it should have been a simple matter for the High Court to declare that s.3 of RPA 1983 was incompatible with Article 3 of the First Protocol of the Convention. When I read the HRA 1998, I immediately spotted the weakness of the Act in that Parliament had not given the Judiciary the power to strike down offending primary legislation. It says something when Parliament does not trust the Judiciary! In my view, Kennedy LJ, was intellectually dishonest in deferring to Parliament. He failed in his duty by not ensuring that my Convention right was directly enforceable in a British court. And, herein lies the problem of judicial review not being an effective remedy under the Convention. O'Reilly v Mackman needs to be revisited and the necessary amendments made. Moreover, Parliament should amend the HRA 1998 to give judges the power to strike down offending primary legislation. There needs to be a genuine Separation of Powers, if the checks and balances are to mean anything and be effective to stop abuse of power. The first law text I ever read was Foulkes' Administrative Law, 6th edition, and this quote sums up the position very nicely for me: "There is a need for public power and it's efficient exercise: there is a need for protection against abuse of power".

Killing my landlady was an abuse of power. By the same token, the state is abusing power in relation to the Prisoners Votes Case and refusing to rectify the situation.

Recently, the UKIP press officer in Brussels, Gawain Towler, contacted me and when I asked him why, he replied that he thought he ought to speak to the person who knows what he is talking about in relation to Hirst v UK(No2) and Europe. Why hasn't anyone from the government contacted me? And, why hasn't anyone from Parliament or the House of Lords contacted me? It is not that long ago that Labour spoke about a government of all talents. I think I can safely lay claim to be the foremost expert in this respect. I did happen to mention this to Phil Wheatley, Director General of the National Offender Management Service, and he replied that he had suggested as much to Ministers and the response was "What would the Sun or Daily Mail say?". Personally, I do not allow myself to be governed by either their headlines or editorials. And, in my view, neither should they. It saddens me that they are so shortsighted. Because, when I went from law breaker to law-maker, I also went from poacher to gamekeeper. In other words, I laid the traps.

When I started to study law, and wished to take a claim to the county court, six solicitors visited me and all claimed Legal Aid Green Form fees and I am still waiting for their advice to this day, and that was back in 1989! The Magnificent Seventh solicitor, a friend of a friend, who worked at the Humberside Law Centre, came to see me and dispensed with the Green Form, and said "I am relatively ignorant of prison law, teach me". So I did, and we won the case on the courthouse steps when the Treasury Solicitor conceded and I was awarded my full damages of £362.50p! We took another case, and I noted that he had written in Instructions to Counsel that he was relatively ignorant of prison law. It was an eye opener to me to discover that the barrister was also ignorant. Bearing in mind the legal maxim "ignorance of the law is no excuse", I set about educating him too. It is generally assumed that a client goes to a lawyer for advice, however, in the Topsy-Turvy world of prison the opposite applied. Lawyers knowledge stopped outside of the prison gates. I bridged the gap. I developed what I term Prison Law Inside Out. It is unique. I specialised first, then went backwards and read "A" Level texts and "O" Level texts to get the basic principles. It was like jumping into the deep end of a swimming pool and learning to swim or drown! Here there was no lifeguard. I now teach students up to their PhD's. It saddens me that no university has yet recognised my achievements enough to offer me a honorary degree in prison law. Whereas Lord Falconer and Jonathan Aitken received the traditional 'black letter of the law' teaching, which did not have any European element to it, I studied EU law. Prison Law Inside Out takes a Law in Context approach which takes into account the historical, "social, economic and political contexts and formations out of which the law arises and in which it operates" (Phil Harris). It wasn't just the solicitors and barristers who displayed ignorance, but also judges and politicians. I recall reading Hague and Weldon and one Law Lord in deciding wrongly opined "given the day to day realities of prison life". With all due respect, I know as much about the House of Lords tearoom as he knows about the day to day realities of prison life. And when I read about a statement given in the House of Commons, during Thatcherism, which claimed that prison food was not based upon a monetary budget but instead upon a dietary scale, I asked a Kitchen Principal Officer for his comment and he replied "bollocks!". When I studied jurisprudence, I think Oliver Wendell Holmes hit the nail on the head "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict".

According to Mike Fitzgerald "It is no accident that the most crucial question raised by lawyers at a 1971 Prisoners' Rights Conference 'How does one get a court decision implemented?' remained unanswered".

According to Juliet Lyon, the problem is that MPs fear that giving votes to prisoners will mean that they themselves will lose votes. Forgive me if I do not have sympathy for MPs who adopt this view. My late personal officer, Trevor Drewery used to say, when defending me against other prison officers who all thought that I was a cunt, "John is right 99.99% of the time, it's the way that he says it which is wrong". This is one of the problems with Asperger's Syndrome, it is said, the tendency to say inappropriate things. I am different. What you see is what you get. I say what I mean, and mean what I say. Another aspect with AS, it is said, those suffering from it do not know how to lie. Isn't it a shame that MPs do not all suffer from AS? Personally, I prefer to know the truth even if it hurts than be told a lie. Phil Wheatley once said, that I am too truthful for my own good. I beg to differ that anybody can be too truthful. However, I understand what he meant. A Master of Law once said to me that some people will resent my knowledge. Bloggers have called me "Honest John", when I exposed the lies and hypocrisy of the so-called top political blogger. He was offended by my accusations, and demanded that I withdraw them and apologise to him. Instead I proved what I had said was true. It comes to something when a criminal leads a law-abiding life and MPs break the law. And is more honest than MPs. I have right on my side, and so do the prisoners in this case. We have the law on our side and the government does not. We stand on the high moral ground on this issue, and will not surrender it. The Tory party has given Jonathan Aitken a second chance which, in my view, he does not deserve because, he has not reformed and there is no redemption. "Locked Up Potential - A strategy for reforming prisons and rehabilitating prisoners" authored by Jonathan Aitken, and published by the Centre for Social Justice, is as fraudulent as Lord Falconer's consultation document and the WMD dodgy dossier. I have not let down the government, nor Parliament, nor the Judiciary, and yet I have not been given a first chance by the powers that be.

I am prepared to assist in the reforms needed to put the country on the right track. On a matter of principle, I am not prepared to have the government stick its two fingers up at prisoners, Europe, and myself, any longer. "Procrastination is the thief of time". Prisoners know all about time. It is time to put a stop to this. The hue and cry goes out, "Stop thief!".

I would appreciate it if you read out this letter in the House of Lords for me.

Yours sincerely

John Hirst