Did this kitten really conduct a criminal trial by itself… and WIN?

I am informed that one of the liberties you can take as a writer with a (undeserved and long-suffering) loyal following is to indulge in a little creative sleight of hand. One might, for example, in an effort to gain wider attention for a mundane-sounding issue, attach a ludicrous and unrelated clickbait headline to draw in the unwary – possibly including a shareable photo – with quiet confidence that you’ll be forgiven once the Greater Good of your evil plan becomes apparent.

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Let’s put that theory to the test.

Because, and this will surprise you, there is no kitten conducting criminal trials (or at least not winning them). The cat in the photo is not a registered practitioner. Instead, now that you’re three paragraphs in, we’re going to talk about the Ministry of Justice Single Department Plan.

Stay with me – we’ll be quick. Anger is conducive to brevity. This is the document published today setting out the MoJ’s “priorities” for the year ahead. The four key objectives are identified as:

  1. Provide a prison and probation service that reforms offenders
  2. Deliver a modern courts and justice system
  3. Promote a global Britain and the rule of law
  4. Transform the department

Of themselves, these objectives are inoffensive enough. Indeed, what the plan says about prisons has much to recommend it, particularly the emphasis on tackling reoffending through a focus on education and employment opportunities for prisoners. We’ll overlook for now whether bold solutions to improving prisons such as “preventing and disrupting serious and organised crime in prisons” are really solutions as much as vaguely-defined objectives. And whether any strategy to “ensure a sustainable prison population” can sensibly say nothing whatsoever about the steady increase in the average length of custodial sentences imposed by the courts. Those are quibbles for another day.

Because the silence that rings the loudest is that surrounding the dismal state of the criminal justice system. While, true to form, the MoJ trumpets its digital court modernisation programme at every turn (a counterpoint to which was provided the other week by the early progress report of the National Audit Office pointing out that said programme is already behind schedule, has “unresolved funding gaps” and will not deliver the benefits that the MoJ has claimed), much less is said about the problems that have forced criminal barristers to take urgent action and caused the entire system to grind to a halt. Below are just a selection, with the “Single Department Plan” response in bold.

  • The dilapidated state of our court estate is a matter of national shame. Ceilings are literally leaking human waste and falling in mid-trial. Courts all over the country now have no catering facilities – defendants, witnesses, jurors and lawyers are required (some under threat of imprisonment) to spend the day in a building where the public cannot even get a glass of water.  Nothing beyond a vague pledge to “continue the modernisation of our courts”.
  • The widespread scheme of court closures means that many people now have to travel several hours to reach their local court. Close even more courts: “Use fewer, better, more flexible court buildings more effectively for the benefit of citizens.”
  • The Crown Prosecution Service has lost a third of its staff since 2010 through budget cuts of over 25%. The problems this causes to the competent prosecution of cases is covered at length in the press (and in Chapter 4 of my book). No mention, save for a vaguely declared ambition to “improve the experience of victims of crime within the criminal justice system”.
  • Disclosure – the vital part of the criminal procedure where the police and prosecution provide the defence with material in their possession which could help establish someone’s innocence – remains a shambles. As a result, innocent people risk convictionNo mention.
  • The Innocence Tax continues to strip the homes and life savings away from innocent people wrongly accused of criminal offences. If you have a modest joint household disposable income, the state will refuse to give you legal aid, force you to pay privately for lawyers, and then when you are acquitted will refuse to fully reimburse you for your fees, potentially leaving you out of pocket to the tune of hundreds of thousands of poundsNo mention.
  • Legal aid rates, cut by around 40% in real terms, continue to force local solicitors’ firms out of business. Bright young people are either deterred from joining the criminal Bar, or forced out after a few years of earning below minimum wage. No mention.
  • Court listing practices continue to operate to please MoJ statisticians, to the detriment of victims, witnesses and defendants. People are dragged to court for their trial (thus allowing a court listing officer to say that the trial has been listed) only to find that their case cannot in fact be heard due to courtrooms sitting empty, as the MoJ won’t pay for judges to hear the trials. Trials are therefore adjourned repeatedly, sometimes until witnesses lose faith entirely and walk away from the process. No mention, save for a vaguely declared ambition to “improve the experience of victims of crime within the criminal justice system”.
  • Chris Grayling’s policy to deny victims of miscarriages of justice any compensation for years wrongly spent in prison continues to bite. Unless you can prove your innocence, you do not get a penny. No mention.
  • The number of unrepresented defendants in criminal proceedings is on the rise, and judges have expressed their concern in a report which the MoJ tried to hide (over which the MoJ has now been reported to the Information Commissioner). No mention.

All of these share a common diagnosis: they are the result of the unparalleled cuts that the Ministry of Justice budget has suffered since 2010 – 40% will have been slashed by the end of the decade.

What does the MoJ’s Grand Plan for 2018/19 say about this? Does it acknowledge the problem? Does it vow to fight the Treasury for the funds that the system desperately needs if it is not to collapse altogether?

Not quite. The MoJ promises instead to:

Maintain a continued tight grip on departmental finances

Which really says it all. This is not a department with an interest in improving the quality of justice. It is a cabal of ideologues playing financial chicken, tossing vulnerable people onto the motorways of fate with little care for the outcome, as long as they can boast to their betters about the tightness of their fiscal grip.

As of Friday, the criminal Bar will be withdrawing the goodwill on which the justice system runs. Documents such as this from the MoJ, making quite plain how utterly unimportant they consider our criminal justice system to be, make me seriously consider just walking away entirely.

 

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No Returns: A non-lawyer’s guide

Last night, following an intriguing debate in the House of Commons in which members displayed the full gamut of understanding of criminal justice, MPs voted to bring forth the “cost neutral” changes to the way barristers are paid on legal aid, which in some cases amount to cuts of 40%. (Technically the Commons voted against Labour’s motion to annul the statutory instrument heralding the new Advocates’ Graduated Fee Scheme, but that’s more of a wordy opening sentence).

This marked the latest step in the ongoing dispute between the Criminal Bar and the Ministry of Justice. More details are here, but in short we say that the criminal justice system is desperately underfunded and requires immediate and significant investment (there’s some book or other that goes into more detail). Part of this – but only a part – relates specifically to legal aid rates, on account of how we think it’s a bit unfair that junior criminal barristers are often working 80-hour weeks for rates sometimes working out as low as 50p per hour, and are concerned that bright young barristers are being forced out of the profession. The Ministry of Justice is firmly in This-Is-Fine-Dog-meme-mode, and is pressing ahead with its plans to (a) further “reform” criminal legal aid (by shuffling the deckchairs in such a way as to amount, in some complex cases, to a 40% cut); and (b) do absolutely nothing about the chronic underfunding of the courts, Crown Prosecution Service, police, Probation, prisons and many other decaying limbs of the criminal justice system.

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Presently, criminal barristers are not accepting any legal aid cases under the new fees scheme (which has applied since 1 April 2018). Today, in the face of governmental refusal to take the issue seriously, matters have escalated. The Criminal Bar Association has recommended to its members that, as of Friday 25 May 2018, they implement a “No Returns” policy. If you are a non-lawyer who follows legal types on Twitter, you may well have seen criminal barristers enthusiastically discussing this topic, but without necessarily understanding what it entails.

In a nutshell, a barrister’s work falls into two camps: First, there are cases on which a barrister is instructed in their own name (a solicitor calls the barrister’s clerks and asks specifically for a particular barrister). Secondly, there are “returns”. The reality of the courts, in particular the criminal courts, is that things rarely go to plan. In crime, numerous unstable elements – disorganised defendants and witnesses, the understaffed CPS and police, unreliable private contractors failing to bring prisoners to court, broken video link technology, absent interpreters, sick jurors and so forth – compound with resultant ubiquitous chaos. Trials overrun, or cases are suddenly listed without warning by a judge wanting to raise an urgent issue with the parties, or the court decides for its own convenience to move a hearing to a different date, and frequently the instructed barrister is not able to attend. What presently happens is that a colleague who has a gap in their diary, usually from the same chambers, agrees to accept the case as a “return”, and steps into the breach to cover. This usually happens between 4.30 and 6pm the night before the hearing, when it becomes clear that the instructed barrister is stuck, and their clerks desperately shuffle everybody’s diaries to arrange cover and accommodate the work, often with a spiralling domino effect.

In practice, accepting returns is often an unrewarding task. You are basically required to master an entire case – which can take several hours – at very short notice, and (unless it is a trial) for very little to no pay. Covering a “mention” for a colleague – that’s an umbrella term for a hearing covering a multitude of sins, which can last anything from 5 minutes to 6 hours, depending on the particular issue that needs thrashing out and how long the court keeps you waiting – pays £46.50 plus VAT if you’re prosecuting. And if you’re defending, you get £87 (which is paid to you by the instructed barrister). Gross figures which, after deductions, amount to between £20 – £40. If you’re travelling to a far-flung court, as the most junior practitioners are often required to (it’s not pretty at the bottom of the barristerial food chain), your train fare will often exceed your fee for the day.

So why do we do it? The first reason is self-interest; particularly when you are very junior, and are trying to build a reputation so that solicitors and the CPS will send you work in your own name, returns make up the bulk of your practice. For more established practitioners, returns fill gaps in your diary that arise when a trial you had listed is suddenly taken out of the court list the night before and kicked 6 months down the line because the court discovers it does not have any judges to hear the trial (a depressingly regular occurrence, and an abominable way to treat witnesses, victims and defendants).

But the second reason we accept returns is tradition; as a professional courtesy. We recognise that, if we didn’t volunteer to help out when our colleagues found themselves required to be in two places at one time, the courts would come to a halt almost overnight. No progress would be made on any case at any mention hearing, unless and until the instructed barrister became available to attend. Trials would be called on with no advocate to prosecute or defend. Defendants due to be sentenced would have no prosecutor to open the case, or no defence advocate to advance mitigation. Chaos would be piled upon chaos.

So, in what judges refer to (rather fawningly, usually when trying to get you as an advocate to agree to do something for free) as “the best traditions of the Bar”, barristers just accept that part and parcel of the job involves picking up other people’s mess, at very short notice, in order to help an under-resourced and madcap system maintain some semblance of order. We do so out of goodwill; we are not required to. (So low have legal aid rates fallen that barristers, usually professionally bound by the “cab rank rule” to accept instructions on any case, are not required to accept legal aid cases on account of the Bar Code of Conduct deeming the rates since the mid-2000s to be not a “proper professional fee”). We accept returns out of a sense of duty.

It follows that deciding not to accept any returns is a serious step. The impact will be instant, and it will be significant. Trials will not be able to go ahead. Mention hearings, plea hearings and sentence hearings will be listed and no barrister will be available to attend. We take absolutely no pleasure in this. But, like junior doctors forced to the streets by the mendacity and vandalism of Jeremy Hunt, we feel that we have no choice. It will place a particular financial burden on the most junior in our ranks, deprived of their regular £46.50 gruel, and as a profession we will do what we can to support them. It will inevitably have an impact on those who rely upon the courts; for this we are sincerely sorry.

But the Ministry of Justice is not listening. It is burning your criminal justice system to the ground and cutting adrift those, usually the most vulnerable, who depend upon our courts. And it is incumbent upon us, in the best traditions of the Bar, to speak up for unpopular causes to our own financial detriment. Even a cause as unpopular, and politically unloved, as the fate of our justice system.

Guest Post: The Secret BPTC Student on legal aid cuts and the criminal Bar

I am delighted that a current law student, and soon-to-be criminal pupil, has taken the time to write the following explainer on the ongoing dispute between the criminal Bar and the government over legal aid fees and the funding of the criminal justice system. A point which would be easy to lose – and which, more importantly, the Ministry of Justice hopes will be lost – in the clamour is that this is not simply about lawyers’ fees. The Ministry of Justice’s new legal aid pay rates for advocates (“Advocates’ Graduated Fee Scheme”), which amount in practice to a cut of up to 40% in complex cases, is simply the final straw. Our argument is that criminal justice across the board has been subjected to financial cuts unrivalled in other government departments, with the result that every aspect – from the police to the Crown Prosecution Service to legal aid to the crumbling fabric of our courts – is on its knees. Something has to change. This is the message that needs dutifully repeating to the public, as the below post emphasises. It also contains a very kind plug for my book, which I am obviously going to support.
 
The Criminal Bar is taking direct action as a result of new legal aid cuts. This post explains why action is being taken and why everyone should care about it. 
 
Since 3 April, 90 criminal chambers (at the time of writing) have refused to take on new government funded legal aid cases; this means that defendants will be unrepresented in the Crown Courts (where the most serious cases are tried). Such action could bring the courts system to a halt – a matter not lightly embarked upon. 
 
Action is being taken because the criminal justice system is in crisis.
 
Chronic underfunding of the criminal justice system has resulted in: 
  • cases not being heard for months if not years after an incident, 
  • victims and witnesses unsupported through the process, 
  • defendants on low incomes go unrepresented (being ineligible for legal aid),
  • police fail to disclose vital evidence until the 11th hour, 
  • prosecutors given only 15mins to prepare trials in the Magistrates’ Courts (where most cases are heard),
  • despite the backlog of cases, judges are unavailable to hear them and courts are being closed,
  • the prison estate is in meltdown, with violence and drug use soaring each year,
  • the probation service fails to appropriately manage offenders in the community, 
  • some forensic labs operate without proper certification, affecting the reliability of scientific evidence presented in court, 
  • and in one incident, part of the ceiling of a Crown Court fell in. A terrifyingly apt metaphor for the current state of our justice system. 

The most likely result of a broken criminal justice system? Miscarriages of justice.

This is not theoretical. 

On 27 March 2018, the Chief Inspector of the Crown Prosecutor Service gave evidence to MPs on the Commons Justice Committee. He approvingly quoted from a report (by the Criminal Cases Review Commission), which stated that, “…disclosure failings were the single most frequent cause in the steady stream of miscarriages of justice.” 

Miscarriages of justice have already occurred. You might be its next victim. And the situation is about to get worse…

From 1st April, legal aid rates have been cut by approximately 30%. This is on top of previous cuts to legal aid. Why should anyone care about this?

The principal consequence is that it makes it more likely that guilty people will go free and innocent people will be imprisoned. 

Barristers are independent, self-employed individuals who represent clients at court; as a result, they must prepare for cases during the evenings and at weekends, often at low rates or sometimes for free. Currently, the average yearly earnings for a junior criminal barrister starting out is around £12,000 gross, less than the minimum wage. 

As a result of these cuts, swathes of the bar will no longer be able to survive in practice, with women, those from BAME backgrounds and those at the most junior end bearing the brunt. If the bar remains a profession where only those with wealthy parents can afford to enter, it will neither become representative of the people nor will it guarantee high quality advocacy. Moreover, judges are predominantly drawn from the bar and their judgments have enormous impact upon the country. We need talented advocates who are representative of our society, at all levels of expertise, in order to ensure a fair justice system. We must retain our advocates and call for proper funding of the system as a whole.

As the late Sir Henry Brooke said, “This is not about money for lawyers. The liberties of England are at stake.”

 

Lawyers are taking action to save the criminal justice system. Please support them. 

How you can support our criminal justice system:
  1. Please share this blog post with everyone you know. 
  2. Please buy and read a copy of The Secret Barrister’s book ‘Stories of The Law and How It’s Broken’. It will both inform and entertain you about the crisis in our justice system. No legal knowledge needed. Published only two weeks ago, it has made the Sunday Times best sellers list, been quoted in Parliament, and lawyers have crowd funded to send a copy to every MP. Available on Amazon at: https://www.amazon.co.uk/Secret-Barrister-Stories-Law-Broken/dp/1509841105
  3. Write to your local MP. Let them know that their copy of the Secret Barrister’s book will be arriving; ask them to put it at the top of their reading list and ask them to take action to save the criminal justice system.

The Secret BPTC Student

Why Criminal Justice Matters: Live Event at the RSA

On Tuesday evening, the RSA (Royal Society for the encouragement of Arts, Manufactures and Commerce) hosted an event, “Why Criminal Justice Matters“, at which a panel of industry experts (plus me) discussed the plight of the criminal justice system, and what can be done to remedy its failings.

The discussion was chaired by Joshua Rozenberg QC, and the panel featured:

  • Penelope Gibbs, Founder of Transform Justice
  • Angela Rafferty QC, Chair of the Criminal Bar Association
  • Jonathan Black, Partner at BSB Solicitors
  • Nazir Afzal, Former Chief Crown Prosecutor for Northwest England at the Crown Prosecution Service
  • Me, via live Twitter feed.

It was a thoroughly enjoyable event, and I am extremely grateful to all  concerned for their participation and support. Tickets sold out quickly, I’m told, but for anybody who wasn’t present and didn’t catch the live-stream, the event can be watched for free here:

 

Bashing burglars and the law of self-defence

The headlines and news bulletins over the past two days have focused on this story:

(Your attention is respectfully drawn to the headline, rather than the libido-boosting diet to beat the menopause (no HRT required.))

I make clear at the outset that I offer no comment whatsoever on this particular case. While the editorial slants of the tabloids may hint at two-fingered salutes to the law of “strict liability” contempt of court, I am going to play safe by disclaiming that, as criminal proceedings in this case are “live” within the meaning of Schedule 1 of the Contempt of Court Act 1981 (a suspect having been arrested without a warrant), what follows is intended as a contribution to a discussion in good faith of public affairs or other matters of general public interest.

What I want to look at briefly, therefore, is the law of self-defence in what lawyers euphemistically refer to as “householder cases” – where force is used by a householder against a trespasser in a dwelling. In dipping into this legalese, I do not for a moment seek to minimise or cloak the stark reality that confronting a burglar in your home is one of the most terrifying experiences imaginable. Burglary of somebody’s home is an offence which, in my view, is treated with relative disdain by the criminal justice system. Its ubiquity means that insufficient resources are made available to police to investigate (hence shocking reports of 9 out of 10 burglary investigations being closed without a suspect being identified). Its prevalence means it is considered by the CPS to be one of the least serious criminal offences for the purpose of instructing prosecuting barristers, attracting a miserly fee (£480 for a 2-day trial requiring on average 20 hours’ work (2 days at court plus a conservative 4 hours’ preparation), so around £24 gross an hour, of which I would take home about £12), and is therefore prosecuted often by the least experienced in our ranks. And, while I am not one predisposed towards longer sentences, I have a lot of sympathy with members of the public who feel that a Sentencing Guideline starting point of 1 year’s imprisonment, of which a defendant will serve a maximum of 6 months, does not adequately reflect the harm done by the violation that breaking into someone’s home represents. The after-effects can last forever. It is not a mere property offence; it is an encroachment into a person or a family’s safest space. And I think many of us in the system can become inured to that truth.

So there is my opening salvo: I hold no affection for burglars. Don’t allow the clinical nature of what follows to lead you to think otherwise.

But, since the tale of Tony Martin in 1997, elements of the press and the Conservative party have become fixated on the notion that an Englishman’s home is no more his castle; that, confronted by an intruder in the dead of night, the householder is required to deferentially hand over the code to the safe and ensure that the burglar is safely escorted from the premises with his bag of swag bulging and his bodily integrity intact. What followed, under the intellectual guidance of Chris Grayling, was a change to the law in 2012 seeking to persuade Middle England that, in the words of the prematurely-celebratory Sun headline, “It’s Official: You Can Batter a Burglar“. We’ll have a look below at what that means in practice.

 

The law of self-defence

It is a longstanding principle of English common law that a person is entitled to use reasonable force in self-defence, or in defence of another. There are also statutory defences of using reasonable force in defence of property or in the prevention of crime and arrest/apprehension of offenders.

In 2008, the common law defence of self-defence was put on a statutory footing in section 76 of the Criminal Justice and Immigration Act 2008. What it means in practice is as follows:

  • A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
  • The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself an attack or imminent attack on himself or others or to protect property or prevent crime?
  • The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
  • The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.

Let’s break down what this means.

“A genuine belief that force is necessary”

The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).

 

“Reasonable force”

Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but section 76 reflects the famous words of Lord Morris in the case of Palmer v R 1971 AC 814, which are distilled in some form to juries when they are given their directions of law by the trial judge:

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

Further pointers in section 76 include the provision that if force is “disproportionate”, it cannot by its nature be “reasonable”. Which sounds self-evident, one might think, but we’ll come to this more in a second. It is also made explicit that, while the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit.

So in a nutshell, the law of self-defence means that the prosecution must make a jury sure that either a defendant didn’t really believe he needed to use force, or that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face – bearing in mind the broad scope of appreciation allowed in these cases.

Simple, right? Well, not, sadly, in cases involving burglars. As we shall now see…

 

Householder self-defence

In 2011, Prime Minister David Cameron, having promised in his party’s manifesto to afford “greater protection” to householders who use force against burglars, said:

‘We’ll put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.’

Quite how Mr Cameron intended to guarantee that fetter on the discretion of the independent Crown Prosecution Service was never explained, but the public was thereafter treated to Chris Grayling’s party piece at the Conservative party conference, which went someway beyond Mr Cameron’s hashed restatement of the existing law. And, as you might expect, Mr Grayling’s idea was as poor in execution as it was stupid in policy.

Grayling, having dissembled to the crowd about what the existing law of self-defence said, insisted that a new law was needed which changed the test.  No longer was “reasonable self-defence” a sufficient litmus. Instead, householders should only be convicted where they had used “grossly disproportionate” force. Merely “disproportionate” force, it followed, was no more than burglars deserved. Section 76(5A) was duly inserted into the Act.

Inevitably, once reality bit, Grayling’s dreams came crashing down around him. He lost the support of the Mail once they saw guidance sent to judges and prosecutors “admitting that the provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder.” (You can just hear the disappointment jumping off the page). The exemption did not apply to the use of force to protect property, for example. Nor did it apply to “non-dwelling buildings”. So if you saw someone stealing your lawnmower from your shed, you could not use disproportionate force to stop them.

But worst of all, when the High Court was called upon to interpret section 76(5A), it confirmed that its drafting did not in fact have the effect that Grayling had desired. The CPS had interpreted s.76(5A) in accordance with the newspaper headlines – only where the prosecution could prove grossly disproportionate force would it be appropriate to prosecute. But the High Court said otherwise: all the new law did was to confirm (as if confirmation were needed) that anyone using “grossly disproportionate” force could not, by definition, be using reasonable force. Force which was “merely” disproportionate could be reasonable in householder cases, but would not always be. The test, as with all cases of self-defence, remained whether force was “reasonable” in the circumstances.

So, in conclusion, where a householder is confronted by a burglar, if they genuinely believe they need to use force in self-defence, they can use such force as is reasonable in the circumstances. If they use “grossly disproportionate” force, they cannot rely on self-defence. If they use merely “disproportionate” force, that may or may not be reasonable. Got it? If not, you can blame Grayling for the unnecessary confusion injected by the pointless test of “gross disproportionality”.

 

Arrest

Much has been made about the fact that the 78-year old householder in the present case has been arrested and (presumably) interviewed by the police, before being released. It is worth remembering that the police have a legal duty to investigate cases where there has been a loss of life. Part of the investigation may involve arresting a suspect so that they can be interviewed.

Whether an arrest is necessary in a given case – as opposed to inviting a suspect in for an interview – depends on whether certain statutory factors have been satisfied. But on its face, there is little unusual in the police arresting somebody suspected of killing another person. The police will usually have a reasonable suspicion that a crime has been committed – because somebody has died a non-natural death – and the arrest will usually be necessary to allow a prompt and effective investigation, the combination of which means that an arrest is permissible. It is no indication of whether a charge will follow; rather it is on its face the police complying with their legal duties. When a suspect is arrested and detained at a police station, they have a panoply of rights, including the right to independent legal advice. If they are interviewed under caution (as one would expect), they will have the opportunity to advance any account of self-defence, which will then form part of the file that is passed to the Crown Prosecution Service for a charging decision.

 

The charging decision

The Code for Crown Prosecutors provides that when a charging decision is being taken the test is two-fold – (i) is there a realistic prospect of conviction on the evidence? (ii) Is a prosecution in the public interest. If a suspect offers self-defence as an explanation in their police interview, the CPS will have to be satisfied that there is sufficient evidence to disprove this beyond reasonable doubt, applying the above test. Even if they are satisfied of the evidence, they must then consider the public interest. CPS Guidance says:

When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:

  • the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
  • in discouraging vigilantism and the use of violence generally.

There is often a degree of sensitivity to be observed in such cases; this is particularly important when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.

 

Conclusion

Upon inspection of most of the tabloid’s causes celebres, one will often find a fairly sensible explanation for a decision to prosecute a householder who has injured or killed a burglar. Sometimes, as with Tony Martin, the homeowner will have used lethal force on a burglar fleeing the property, or will have chased him down the street and given him a sound thrashing. The bottom line, as has always been the bottom line notwithstanding the dishonesty of Chris Grayling, is that using reasonable force against a burglar will rarely result in a prosecution, much less a conviction.

Your questions answered on the John Worboys judgment

On Wednesday 28 March 2018, the High Court handed down its landmark judgment in the case of John Worboys, upholding the challenge by two of his victims to the Parole Board’s decision to release him. The judgment runs to over fifty pages and does not make for easy reading, so here’s my breakdown of this unusual and complex case for iNews.

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CrowdJustice Campaign – Alert your MP to the state of criminal justice

I am thrilled to be part of a brand new CrowdJustice campaign, launched today, aimed at shining a light on the crisis in the criminal justice system. The Criminal Bar Association and Young Legal Aid Lawyers are asking for pledges to raise funds so that every single Member of Parliament can be sent a copy of Stories of The Law and How It’s Broken and a copy of the Young Legal Aid Lawyers report on Social Mobility in a Time of Austerity. The frightening reality appears to be that too many of our elected representatives are oblivious to the parlous state of our under-funded, under-resourced criminal justice system. This campaign hopes to change that.

For my part, I shall be donating royalties raised by this campaign to the wonderful Bar Pro Bono Unit.

For more information, please see the CrowdJustice page here: