COVID 19: A PROTOCOL TO ASSIST SOLICITORS WHO ARE WORKING REMOTELY AND ADVISING SUSPECTS IN RELATION TO POLICE INTERVIEWS

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I am pleased to publish a protocol for solicitors advising suspects at police stations during the COVID-19 crisis. It has been drafted by Keir Monteith QC, Lucie Wibberley, Patrick Roche and Vicky Meads.
The starting point is  no one should put themselves at risk…. the opening paragraph states:

  1. We need to act now to protect the lives of solicitors who are called to a police station and the lives of suspects who require representation. In short, solicitors should not be required to attend police stations and suspects should only be detained and interviewed in the most serious of cases.

Thereafter the protocol provides advice and assistance on the difficult decisions that are now having to be made including: whether to attend the police station, should there be an interview; if so should a prepared statement be served immediately or post event. Where possible, the authors have made reference to helpful codes of practice, a Home Officer Circular and case law.

The bigger picture is that there needs to be a joined up Government approach that provides consistency from arrest to final disposal – a proper triaging of cases.

 

Comments and observations are encouraged.
The protocol can be found by clicking on the link here.

Lives are being put at risk by the intransigence of the government and the courts. Jury trials must be suspended immediately.

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UPDATE: At 8am on Monday 23 March 2020, the Lord Chief Justice announced a suspension of new jury trials. The details are vague, and hint at a resumption “where specific safety arrangements have been put in place”, but for now, at least, it seems as if a level of sense has prevailed. Regrettably the announcement came far too late to reach many jurors, who will have already embarked upon needlessly risky travel by public transport, but joined up thinking has never been part of the justice system’s core values.

 

Today, thousands of citizens of England and Wales will attend their local Crown Court in answer to a summons compelling them, under threat of imprisonment, to do their civic duty and serve on a jury.

They will queue with dozens of other strangers to be herded into a packed jury waiting room. Once selected for a jury panel, they will pile into a dirty, windowless courtroom and sit next to each other for five hours a day. At lunch they will mingle with the hundred or so other jurors in the building. At the conclusion of the trial, they will shuffle into a tiny unventilated retiring room, where they will make a decision which could ultimately determine whether somebody spends years of their life in prison.

This is because, even though the government has closed schools, restaurants, pubs, cafes and leisure centres, one area of public life in which, to quote a government minister, we are “operating normally”, is in the criminal courts.

So while Scotland and Northern Ireland have temporarily suspended jury trials, in England and Wales the Lord Chancellor Robert Buckland and the Lord Chief Justice have decreed that jury trials lasting up to three days – estimated to be 75 per cent of trials – must take place.

They will do so in filthy conditions where lack of hot water, soap and paper towels is widespread; where broken hand dryers and leaking toilets and burst pipes and crumbling roofs and walls are par for the course; conditions which in the good times we in the courts accept as a permanent feature of a chronically underfunded justice system, but which in the current climate present a far more alarming proposition.

Criminal courts are, basic sanitation aside, a petri dish. Scores of defendants are piled into waiting areas. Most travel by public transport; some travel in “sweatbox” security vans from our infested, overcrowded, virus-rivenprisons. Defendants and their families mix with their barristers, who mix with court staff, who mix with witnesses, judges and jurors, who mix with other witnesses, judges and jurors. Courtrooms vary in size and style; in some of our more antique Victorian courts, jurors are squeezed onto hard wooden benches without an inch between them, let alone the government-recommended two metres. In a fairly typical court I was in last week, the defendants, barristers, clerk, usher, witness box and jury box were all within a two-metre radius of each other.

And by insisting that the shortest trials go ahead, the government is ensuring the highest possible churn of cases; the highest possible turnover of strangers coming into contact with each other.

Over the past few days I have been flooded with messages from terrified jurors, witnesses and court staff aghast that, at a time when the government is frantically urging social distancing on the ground that “infections spread easily in closed spaces where people gather together”, they are being required by law to expose themselves to such conditions. In a closing speech last week, one of my colleagues thanked the jury for their dedication at a time when they were no doubt worried about themselves and their families. One of the jurors burst into tears.

This situation is appallingly unfair to all concerned. How on earth can jurors be expected to concentrate on their task? How can any defendant or victim of crime have faith that the twelve people trying their case are paying full attention to the nuances of the evidence, when those twelve are burdened with the knowledge that, as a direct result of their jury service, they, or someone they love, could die?

And contrary to MoJ dicta, we are not operating normally. Judges are self-isolating; defendants, jurors and witnesses are staying at home as they break out with symptoms; and trials are collapsing all over the country. The Witness Service, the organisation responsible for looking after witnesses at court, has withdrawn its volunteers. Many Crown Court judges are making no secret of their disdain for what the MoJ would wish to term a “strategy”, but which more closely resembles a tribute act to Monty Python’s Black Knight chirpily dismissing each collapsed trial as a mere flesh wound.

The official government line is that “justice is not optional”. A sweet homily, betrayed only by the evidence of the past decade, in which victims, defendants and witnesses have found their cases mishandled or delayed for years due to enormous cuts to the budgets of the police, CPS, courts and legal aid. Justice has been optional whenever financially or politically convenient.

The three-day trial rule has no public health basis behind it, other than a chipper optimism that a trial of such a length might have an outside chance of completing before too many of its core participants drop down. The three-day trials will in general concern the less serious and more straightforward criminal allegations which could realistically wait another few months without too much harm being done.

The primary reason for the intransigence appears to be Mr Buckland’s fear of being the Lord Chancellor Who Closed The Courts, a disfiguring blemish on the CV of any aspiring careerist in this Tough On Crime government. There is also a secondary, practical concern: because of cuts, we have a backlog of over 30,000 Crown Court trials and are currently trying cases for offences said to have occurred two or more years ago. The government knows that a standard two-year delay could quickly become three.

The government should adjourn all jury trials listed in the next twelve weeks. In the Autumn, when it may be safer to do so, we can resume with the adjourned cases, only with the financial firehouse turned on. Instead of running at half-capacity, every Crown Court should run at maximum; the Treasury’s largesse must be extended to the justice system so that we don’t endure the farce of perfectly usable courtrooms sitting locked and empty due to “lack of sitting days” while judges get paid to sit at home. The backlog, both Covid-caused and historic, can be blasted away.

In the meantime, of course, justice and the courts cannot halt completely. Technology may – subject to the disastrous history of IT procurement in the courts – be capable of keeping shorter hearings on the road over the coming weeks and months. Video-links and telephone hearings have a poor record in practice, but offer a theoretical throughroad. Penal policy will have to change; early release of low-risk prisoners, hugely reduced sentences for guilty pleas and a statutory presumption against imprisonment may not be popular, but have to be given serious consideration. By minimising the number of participants required to attend hearings, reducing prison overcrowding and ensuring the court estate is fit for human habitation, urgent court business can tick along until we are through the worst.

Justice need not – indeed cannot – stop. Urgent court business must carry on. But jury trials as we know them cannot continue. It is telling that, when it first published its “priorities” in “managing our response to coronavirus”, the Ministry of Justice included no reference at all to the welfare of those actually using the courts. On the day that the “three-day rule” was announced, Robert Buckland tweeted that he was cancelling his constituency surgery because of “the government’s social distancing advice”.

The Lord Chancellor, and Lord Chief Justice, need to afford jurors, witnesses and court professionals the same consideration, and recognise the human cost of their stance before any more lives are unnecessarily put at risk.

Guest post: Open Letter to Leaders of the Criminal Justice System – Call for a National Protocol

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I am delighted to host this guest post by Beheshteh Engineer, a third-six pupil. The views expressed are personal and do not necessarily reflect the views of her chambers.

Why is a functional Criminal Justice System important during a national crisis?

During a short-term national crisis, the CJS must provide two key functions:

  • To deal with urgent matters e.g. bail apps, warrants, CTLs
  • To protect the vulnerable from immediate harm.

We call for a national protocol to address how courts must work during this crisis.

We suggest the following principles for the operation of courts:

  1. The protocol must minimise the risk to the health of court staff and users, following government guidance.
  2. The protocol must allow the CJS to continue to provide its two key functions.
  3. The protocol must default to adjourning cases where the above two principles cannot be met.

Globally, many courts have begun to impose restrictions on cases (CJEU, New Zealand, Canada, some American states, have all closed courts except for the most urgent cases)

What are the current problems?

The current system presents 3 distinct problems:

  • That we are all required to self-distance, but court attendance requires the opposite, and
  • That the government has only adjourned trials with a TE of 3 days or more, and
  • That we do not currently have a set up that allows us to do most hearings remotely, thus requiring people to continue to attend court in person.

Social distancing

We are all being told to practice social distancing and as of 20 March, the government ordered bars and other shops, to close. Doctors all over social and traditional media are imploring people to stay at home. The message is clear: people should not be going out unless they are essential.

In the past week, we have seen the following: people coming to court displaying the symptoms, prisons bringing sick defendants to court, jurors/advocates/witnesses going into self-isolation, and a total lack of cleanliness, or hand gel, or soap, or masks, or hand sanitizer, or protective screens available in courts. Juniors with health issues are still attending court; those who are second and third six pupils feel they have no choice.

Government’s response

The government has adopted a halfway house approach by only adjourning trials three days or longer. Those in charge of the CJS continue to advocate ‘business as normal’ while all other branches of government sound the alarm.

The Bar leadership has said that anyone in an at-risk category or anyone who feels that working conditions are unsafe, can return cases with no ethical problems. This is welcome leadership on this issue. More is needed; those not in the at-risk category can still carry the virus, potentially infecting their own families and anyone else they come into contact with at court. Court advocates, particularly those most junior, are frightened, both for their health and their incomes

Additionally, the government has not yet put in place the resources to protect the self-employed from finding themselves without work and thus, without income. Many have children and mortgages to pay for, others have rent and basic expenses. Many of us at the criminal Bar are struggling and right now, going to court may be the only option, even if that will put ourselves and those we live with, at risk of getting the virus

Lack of investment in technology for the criminal courts

Papers in Crown Court cases are now all on DCS and the courts occasionally use video links where a defendant is in custody. Video links often fail to work, and there are insufficient video links to run the court system at even close to full capacity. Consequently, we have continued to conduct most hearings in person. There are good reasons for this; often material is not uploaded until the day of the hearing, a client has to enter a plea and instructions need to be taken. Nevertheless, the reality remains that there has not been proper investment in technology use in the CJS. As a result, it will require leadership and investment to switch to a system where many hearings are virtual.

Leadership to date on this issue has been poor. The CEO of HMCTS’s letter to the Chair of the BC on 19 March 2020 says that the senior judiciary has given guidance on encouraging the wider judiciary to use telephone and video hearings. There is also a link to this site, guidance which reads, “The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.” This means that all courts can operate according to their own rules. We are already hearing of plenty of cases where a client’s attendance has not been excused despite a reasonable request, as well as hearings in the CC being refused to be conducted by video when there is no good reason for physical attendance.

At a time of national crisis, this is a woeful response from HMCTS and senior leaders. It is also a deeply inefficient way to run any kind of system, never mind one of such importance.

The civil Bar, family Bar as well as some Tribunals are already ahead of us on this; they either already regularly use digital technology or have implemented a new protocol. Cases have been conducted (and won!) from advocates’ living rooms. If other Bars and Courts can manage remote hearings, we can too.

How can we solve some or all of these issues?

We should be limiting the number of people going to court. We should be protecting those who have to attend court. There should be no room for courts to do things on a court-by-court basis.

We must not continue in a way that puts our health, the health of our families and the general public, at risk. Continuing as we are will only help spread the virus further.

This letter suggests that we create a national protocol – similar to a practice direction – to address how every single court should manage their work during this time of crisis. Decisions need to be centralised and as new problems emerge, decisions must be taken and publicised online. We need to use technology as much as we can.

We also have to communicate updates as clearly as possible. Recent example today: jurors being told they had to attend court tomorrow (Monday) while being in an at-risk group. The message came back that they are excused. The question has to be asked, why are we doing this on twitter? We need a clear method of communication that is accessible to all.

We know that all the various legal bodies are meeting with the Ministry of Justice to lobby them for a proper plan. We add our voices to that. These are complex problems that require a great deal of thought, creativity, and effort to resolve.

How might such a national protocol work?

Suggestions for the protocol must both address issues of law and detail the ways in which we are going to take action. It is no good having vague suggestions and leaving each court to figure out how to implement it, because that way nothing will get done. We need to address the practical issues. This letter has attempted to do so, and in doing so you may find that some ideas are simply not workable at this time. Irrespective, we have a duty to not only think hard about these matters but to publish and debate these ideas so that we can keep people safe.

We propose the following immediate rules:

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020.
  2. All other hearings to be by video link OR telephone.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily adjusted.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly.
  6. We need a new arrangement for magistrates’ court hearings.
  7. We need a new protocol for those in custody.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations

How might these things work in practice?

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020 Rationale:
    1. It is important to set a fixed date for when trials might resume, even if these are later abandoned. Dates to work to focus the mind.
    2. Stage dates to be put back so that work continues.
    3. Re-arranging listing on such a scale as we are seeing even if it remains just those with TE 3 days or more, is going to take time and proper thought. We should not do this on the fly otherwise there will be chaos.
    4. Such re-listing then needs to be properly communicated to all parties and should take into account advocates’ diaries, so that they do not lose out.
    5. If all hearings are virtual and all clients excused as standard this saves 100s of hours of manpower – all that then needs to be done is for clients to be told that they don’t need to attend court.
    6. If this is the default position, then hearings can continue in a way that avoids an advocate having to announce that they are in at at-risk group or are scared of attending court or who have some other legitimate reason.
    7. This also helps to preserve income, an important point. Many of us working in the CJS are self-employed; we need to attend hearings so we can get paid. We are not currently being afforded much support from the government.

    How might this work in practical terms?

    1. Listing are obviously the point people to arrange virtual hearings and will need to find a sensible way to schedule hearing times. This is done in the crown court and it can be done in the magistrates. Cases should also be re-fixed to accommodate advocates’ diaries so those booked to have trials do not lose out.
    2. Each court has to work out what technology they will use: skype, Teams, something else? Many barristers and HHJs are working together to try and figure out what works but we need a proper system. Also, I’m not PC users are having difficulty with skype for business. We are going to waste hours in court, at risk to our health, if we’re all trying to figure this out on the day.
    3. Once each court has figured out what tech they can use, this has to be communicated clearly on a single website acting as one point of reference.
    4. Chambers and Solicitors firms already have a list of emails and contact numbers for listing offices. These should be shared with advocates so that they can send individual email sand track hearings themselves [without the middle man] to ensure that matters are arranged sensibly and to take into consideration whether or not an advocate can do a telephone or video hearing or if other provisions need to be made.
    5. We should also share email addresses of those advocates at the CPS down to do a particular hearing so that CPS and defence can communicate in advance and so that the Crown can/attempt to upload relevant papers onto DCS in good time.
  2. All other hearings to be by video link OR telephone
    1. Hearings that can be done by delegated powers e.g. adjournment or CMH
    2. If parties email the listing office with the issues to address, this can be passed to the requisite court on the day of the hearing, and will save time.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily amended:
    1. If pleas need to be taken, the parties should work together to narrow down the issues ahead of time. This requires the Crown to upload material earlier than the day of the hearing. It requires effort and forward thinking to work.
    2. Where a G plea cannot reasonably be put in, everyone is to put in a NG plea and credit must be preserved until such time as 1) CPS serve all material and 2) counsel have been able to take instructions. We need detailed guidance on this. Defendants must not lose out. Same rule to be applied in the magistrates’ court.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly:
    1. Extending a CTL should not be routine
    2. Matters should be on a case-by-case basis: e.g. *some* defendants in an at-risk group should be strongly considered for release on stringent bail conditions.
    3. For other cases (maybe DVs) where there’s no bail conditions, Crown might want to apply for some? Ensure protection of potential victims?
    4. New cases should be bailed with conditions where appropriate.
  6. For magistrates’ courts:
    1. Papers for first appearances usually only arrive on the morning of the hearing. This will be difficult to change as it is the CPS that produces these papers. If the CPS can produce these bundles the night before the hearing, that would assist.
    2. Advocates can set up video conferences or telephone hearings with clients remotely to attend on the day of the hearing. As soon as they have the papers, the conferences can be held.
    3. The only remaining issue is how to list matters in a magistrates’ court: traditionally it is whomever is ready goes on first. If hearings are being done remotely, there will have to be a system or rule in place to decide who can call in.
    4. It may well be that the legal advisor or clerk in court will have access to a system whereby they can determine who is going to be heard next.
    5. First appearances and business in the magistrates’ courts, for it to continue working ‘as normal’ will require significant thought. It may be that some of these problems cannot be overcome anytime soon. They also require effort and someone to care enough to design a system so that these can be done remotely. There is a workable solution, but it requires all parties to work together and for those in authority to have the significant desire to make it work.
  7. For those in custody (predominately but not solely in the magistrates’):
    1. Conferences should take place by video-link wherever possible. However, we acknowledge that whether a defendant is on video from prison or in custody in the cells, a video-link may not always be possible. This is both a technical and legal hurdle that may take time to address.
    2. In the interim, no one should be required to hold a conference with someone in the cells where the court does not have a glass divider. In such cases, conferences should be held in a court room or other room available so that representatives are not put at risk.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations
    1. police station representatives are reporting disparity of process when it comes to being asked to rep someone suspected of having the virus. There should be a protocol in place.

Other points

Following feedback from practitioners, a few other points are worth noting:

  • Some hearings have been “saved” by use of FaceTime. Some others are suggesting Zoom. There is a range of technology available but not all of it will be secure, or available to everyone. This may well be a problem.
  • Special provisions need to be put in in place for vulnerable people: complainants, witnesses and defendants. For example, a defendant with a MH issue or lack of good internet may not have the ability to participate in a virtual hearing. The issue of what to do when an interpreter is needed, should also be considered.
  • Every step taken into a police station is fraught with areas where someone can come into contact with the virus. The custody sergeant is responsible for the safety of police station representatives yet often a representative is taken immediately to a consultation room so there’s no option to speak to the custody sergeant unless it is insisted upon. We’re also being told that areas in the police station (the consultation room, amongst others) are not being regularly cleaned.
  • Prisoners should be considered for release, where appropriate.
  • If the plan is to keep courts open for as long as possible, there needs to be a nation-wide rollout of soap, hand sanitizer, wipes and a proper cleaning regime in place.

Conclusion

It is the case that with many of these things, what will suffer is the principle of open justice. That is a dilemma that needs to be thoughtfully considered.

The ideas in this letter are just one way to address matters. There may be problems with the ideas suggested – they are not perfect. But they are a start and hopefully a platform to encourage discussion.

We must work together to limit the spread of this disease while maintaining the criminal justice system.

Author: Beheshteh Engineer, junior criminal barrister (3rd six)

Views are those of the author alone, and not representative of those of her chambers.

 

Televising sentencing remarks is a gimmick that has not been thought through

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As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.

The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.

So why am I concerned?

There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.

But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.

The problem is that I don’t think it will do that.

The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.

However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.

There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.

And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.

And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles [2019] EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:

  • There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly. 
  • The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. 
  • On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it. 
  • The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
  • Findings of fact should be announced without, in most cases, supporting narrative.
  • If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course. 
  • Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.

For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.

Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?

And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.

We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.

A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.

10 things you should know about the London Bridge attacker and “early release”

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No time can be afforded in 2019 to respect the dead. Not when there’s an election at stake, and the tantalising prospect of scoring cheap political points winks coyly at you from a special advisor’s email. So it is that, within 24 hours after the killings by Usman Khan at London Bridge, politicians have lined up in descending order of deplorability to exploit the tragedy for their own ends. The Prime Minister obviously went first, leaping in front of Sky cameras last night to claim:

” I have long argued that it is a mistake to let serious and violent criminals out of prison early and it is very important that we get out of that habit and that we enforce the appropriate sentences for dangerous criminals, especially for terrorists that the public want to see.”

This, one presumes, is a nod to his well-publicised manifesto pledges to “toughen up sentences”, although (as we shall see) it is well worth reminding Mr Johnson, as he seems to have forgotten, that absolutely nothing in his manifesto would have made the slightest difference to the sentence or release in a case like that of Usman Khan. There followed a dash to ascribe culpability for the fact that Mr Khan had been released from prison after serving 8 years of a 16 year custodial term for a terrorism offence; it was the Parole Board, then the judges who had passed sentence on Khan, then, somehow, the EU, then, in perhaps Twitter’s lowest moment today, Khan’s blameless lawyers. This afternoon, Labour and Conservative figures took turns to cast blame, each frantically trying to plunge the hands of the other into the victims’ blood before it dried, notwithstanding the pleas of victims’ families not to make political capital out of lost lives.

Amid all the shouting and, in the case of the government, outright lying, the truth about how and why Khan was sentenced as he was has barely had a look in. So it is worth taking a quick look at ten things we actually know.

 

1. What was Usman Khan convicted and sentenced for?

Usman Khan, then aged 20, pleaded guilty on 31st January 2012 to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. This is an offence carrying a maximum sentence of life imprisonment. Although widely reported as relating to a plan to bomb the London Stock Exchange, the full facts (reported here) are worth reading, as the reality is more complicated. Khan, then aged 19, was part of a group based in Stoke who in November and December 2010 were engaged in a well-developed plan to raise funds to build a madrassa in Kashmir to train terrorists. While they had contemplated that some of those trained might return to the UK and involve themselves in terrorism, the basis on which they were convicted was that although they had discussed perpetrating a terror act in Stoke, they did not intend to participate in an act of terrorism in the UK in the immediate future. What they did do, however, was liaise with other groups in London and Cardiff, who were actively planning to leave an explosive device in the Stock Exchange. The groups, including Khan, had meetings and discussed common interests, such as how to make a pipe bomb, but by the time of conviction, the prosecution and defence had agreed that the Stoke group were not in fact involved in the Stock Exchange plot, and the guilty pleas that were entered by the various defendants reflected this, as they were pleas to different counts on the indictment.

Nervtheless, Khan was an obviously dangerous individual. He demonstrated “a serious long term attitude to establishing, funding and recruiting British Muslims to attend the madrassa and to then be available to commit terrorism abroad and at home.” And for that reason, on 9th February 2012, he was sentenced as a dangerous offender to detention for public protection (“DPP”) with a minimum custodial term of 8 years (minus time served on remand).

2. What is “detention for public protection”?

Detention for Public Protection (DPP) is a relative of the slightly more famous Imprisonment for Public Protection (IPP). Someone aged between 18 and 21 is sentenced to detention, rather than imprisonment, but the sentences are substantially the same. They were introduced in 2005, and where a defendant convicted of certain serious offences was assessed by a court as dangerous – meaning they posed a significant risk of serious harm to the public – but the seriousness of the offence they had committed did not justify a life sentence, IPP (or DPP) could be imposed instead. The effect was similar to a life sentence. The Crown Court would set a minimum term (tariff) which a defendant would have to spend in prison. After serving the minimum term, he would have to satisfy the Parole Board that his imprisonment was no longer necessary for the protection of the public. If he did so, he would be released on licence for at least 10 years. If he couldn’t, he would stay in prison until he could, potentially forever.

The minimum term was half of the equivalent sentence that a defendant would have received if he’d been sentenced to a standard determinate sentence. Why half? Because (as we’ll see below), since 2005 defendants serving determinate sentences have been automatically released at the halfway point. So in theory, if a dangerous offender fully rehabilitated himself in prison, he could be out at the same time as if he hadn’t been assessed dangerous in the first place.

So in Khan’s case, the sentencing judge found that, taking into account Khan’s young age and his guilty plea, the appropriate determinate sentence would have been 16 years, meaning the minimum term was 8 years.

3. So why was Khan’s sentence reduced by the Court of Appeal?

As ever, the best explanation is in the full judgment, which I’d urge you to read. Boiling the appeal down to its barest bones, the argument made on behalf of Khan was this. The London defendants – the ones who had planned to bomb the Stock Exchange – were deemed by the sentencing judge to be less dangerous than the Stoke defendants. This was because, although their criminality was, to quote the prosecution, “equally serious”, the Stoke defendants, including Khan, demonstrated a level of sophistication that made them more dangerous. The Court of Appeal, having heard arguments from the prosecution and the appellants, reached the conclusion that the judge was wrong to distinguish between the groups in this way. “If the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal [the Stoke lot] than those who were far closer to doing so [the London Stock Exchange lot],” in the word of Lord Justice Leveson.

Accordingly, the Court of Appeal gave Khan and his Stoke associates the same type of sentence as the London group received – an extended sentence. They disagreed with Khan’s argument that the custodial term of 16 years should be reduced.

4. What is an “Extended Sentence”?

This is where things get messy. Because we have had a lot of versions of Extended Sentences over the past 15 years, as governments have battled to secure headlines by tweaking and amending the various regimes on numerous occasions. The best summary is in this document by the Prison Reform Trust. In simple terms, if a defendant was found to be dangerous (as defined above), and a determinate sentence could not manage his risk, the court had to consider whether an Extended Sentence would do; if not, it would be IPP or life imprisonment. An Extended Sentence involved a custodial term (the same as would have been imposed for the offence for a “normal” defendant), with an extended period of licence of up to 5 years (for a violent offence) or 8 years (for a sexual offence).

So when the Court of Appeal passed an Extended Sentence on Khan, his custodial term was 16 years (as the sentencing judge thought it should be) and his period of extended licence was 5 years (the maximum).

5. When is somebody released from an Extended Sentence?

This is why it’s complicated. Successive governments changed the law governing release on multiple occasions. The full history is in the Prison Reform Trust document above, but suffice to say that in 2012, when Khan was sentenced, prisoners serving Extended Sentences were released automatically at the halfway stage of their custodial term, just like determinate prisoners. It therefore looks as if Khan was automatically released having served 8 years of the 16 year custodial term, and would have been on licence for the remaining 8 years, plus the extension of 5 years.

6. A dangerous offender being released automatically? That doesn’t sound very safe

No. It wasn’t, really. “EPPs” as they were called (Extended Sentences for Public Protection) were introduced alongside IPPs in 2005. Up until 2008, an EPP prisoner would be referred to the Parole Board at the halfway point of their custodial term. If they satisfied the Parole Board that their imprisonment was no longer necessary, they would be released on licence. If not, they would serve the full custodial term. In 2008, the law changed so that at the halfway point offenders were automatically released – no Parole Board input. This was in large part because the way in which the existing legislation required courts to treat dangerous offenders meant that the prison population had spiralled to uncontrollable levels. People were being given IPPs for relatively minor offences and finding themselves stuck in prison years after their minimum terms had expired. The prisons were unable to provide the courses that dangerous offenders needed to satisfy the Parole Board that their risk had reduced, and so many EPP prisoners were serving their full terms. The Criminal Justice and Immigration Act 2008 tweaked the law to give judges greater discretion as to when to pass an IPP, and also sought to introduce a release valve by automatically releasing EPP prisoners.

As for why we have automatic release at all, it’s worth addressing this briefly, as there remains an understandable public bugbear when it comes to the concept of automatic release at the halfway stage of a prison sentence. I’ve written about this in my book. The public hear or read “10 years”, and feel justifiably deceived when they discover that 10 means 5 (minus any time already served on remand awaiting trial or sentence). There are various reasons as to why we grant automatic release halfway through a sentence. One reason is that this mechanism saves the government money, gifting them the tabloid headlines of long prison sentences without the Treasury having to actually pay for them. Less cynically, it is also argued that it helps reintegrate prisoners into society and aids rehabilitation. If they reoffend on licence, or breach the conditions of their licence, they can be recalled to serve the remainder of their sentence. Automatic early release has varied throughout the years. The Conservatives in 1991 introduced the framework for the modern system, but it was in 2005 that the Labour government introduced automatic halfway release for all determinate sentences (as well as the IPP and EPP sentences) – more detail here. Worth remembering whenever one party accuses the other of being to “blame” for automatic release that all parties have at one time or another thought it a jolly good idea.

7. So at the time Khan was sentenced to an EPP, he would have been eligible for automatic release with no Parole Board oversight?

This now becomes even messier, because Khan’s appeal was heard after EPPs had been replaced by EDS, albeit he was originally sentenced when EPPs were in force. The Parole Board has emphasised that it had no part to play, but there has been much confusion over this, due in part to the BBC’s decision in its 2013 news report of the appeal to quote a part of the judgment completely out of context. The BBC reported this:

“Lord Justice Leveson said: “There is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous.

“There is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the Parole Board for consideration proximate in time to the date when release becomes possible.””

This sounds very much as if Leveson LJ is imposing a sentence that involves the Parole Board, right? Well put in its proper context, my interpretation is that, to the contrary, he was simply weighing up the competing arguments before concluding that an EPP, even though it meant automatic release, was appropriate:

Dealing first with the question of dangerousness, at the time that these appellants were sentenced, in our judgment there is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous within the meaning of the legislation: that includes Hussain and Latif to whom we refer below. Furthermore, given that it is difficult to identify the extent to which those who have been radicalised (perhaps as a result of immaturity or otherwise) will have modified their views having served a substantial term of imprisonment and there is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the parole board for consideration proximate in time to the date when release becomes possible.

On the other hand, the extent to which the evidence demonstrated that the threat of a terrorist attack had progressed beyond talk (however apparently determined) is relevant to the risk posed by the offender and the need to protect the public. The judge certainly concluded that the London planning had not progressed so far as to demonstrate such a risk that imprisonment for public protection was necessary and although we recognise that training terrorists in the use of firearms could only lead to potential loss of life, whereas the intention of the London defendants did not encompass death or serious injury (while recognising the serious risk that such would result), on any showing, the fulfilment of that goal was further removed and there were other obstacles (not least as a consequence of the fact that their activities had come to the attention of the security services in Pakistan). Furthermore, there is no suggestion that any of the Stoke defendants had, in fact, been trained, let alone that they would be in a position to activate, operate or participate within a training facility not then built, however keen they might have been to do so and however much they might have talked up their prospects between themselves or to others whom they sought to influence.

Notwithstanding the considerable respect that the conclusion reached by Wilkie J merits, we have come to the conclusion that if, as he concluded, the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal than those who were far closer to doing so.

So it appears as if the Court of Appeal understood that it was imposing an old-style EPP, which makes sense given that the Court of Appeal’s powers on allowing an appeal against sentence are to “pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence. This would have meant that the Court of Appeal imposed the same type of old-style Extended Sentence as was passed on the London co-defendants, and that therefore, as it has confirmed, the Parole Board had no role to play in Khan’s release.

8. Are dangerous offenders still automatically released at the halfway stage of their sentence?

A lot has changed since 2008. IPPs have now gone. The failure of the prison system to make available to prisoners the rehabilitative programmes they needed to take to secure their release, due to the horrendous overcrowding, was a genuine Kafkaesque nightmare, which the European Court of Human Rights in 2012 declared was unlawful.  The coalition government responded by abolishing IPPs in 2012 (although not for prisoners still serving those sentences), and introducing new Extended Determinate Sentences. It is worth emphasising, to rebut nonsense published by Breitbart contributors today, that the ECtHR ruling on IPPs had nothing whatsoever to do with the Court of Appeal decision in Khan’s case. The Court of Appeal could have lawfully upheld the IPP if it wanted. It was not forced, either by government or by the ECtHR, to change the sentence.

These new Extended Determinate Sentences (EDS) worked like old EPPs, except that you would be automatically released at the two thirds stage of your sentence if your custodial term was under 10 years, and would go before the Parole Board at the two thirds stage if your custodial term was 10 years or more or you were convicted of certain specified offences.

9. So the coalition government were still automatically releasing dangerous offenders?

Yes. They were being kept in for slightly longer, but there was still no Parole Board oversight, except for the most dangerous of dangerous offenders. This changed in 2015, when all EDS prisoners were required to secure Parole Board approval for release at the two thirds stage. That remains the position today.

10. What is the government proposing to do?

To listen to the Prime Minister’s rhetoric, plenty. To read his manifesto, nothing. The changes that are proposed to release provisions relate specifically to offenders who do not receive EDS – the government wants to make it so that a tiny handful of defendants who are possibly a bit-sort-of-dangerous-but-maybe-not will serve two thirds of their sentence before automatic release. So they are not proposing to introduce any further Parole Board oversight of these prisoners – simply to keep them in a bit longer so that Johnson can boast about increasing sentences.

Much of what has been said today by government ministers is completely false. Priti Patel claimed:

This is a lie. The courts had several options to deal with “dangerous terrorists” that would have avoided automatic release. The reason for Khan’s sentence was that the Court of Appeal ruled (to be proved tragically wrong) that Khan’s risk did not require the input of the Parole Board that an IPP would have guaranteed.

Brandon Lewis said, in response to Yvette Cooper getting bogged down in confusion over Leveson’s comment about the Parole Board:

This is a lie. Nowhere has the government proposed in its manifesto to “ensure that people serve their full term”. Likewise Ms Cooper spread misinformation when she suggested that the government’s 2012 reforms had a bearing on the sentence. This, as we’ve seen, is simply untrue.

And, of course, the Prime Minister:

Repeating Lewis’ claim, if this is something Johnson has “long said”, one might ask why ensuring defendants serve the full term of their sentence is not mentioned in the manifesto. If this is such an obvious failing, why not promise to remedy it? Heaven forfend this is ad-hoc, evidence-free electioneering.

11. So where does the blame lie?

Blame is rarely helpful, as with almost all of these cases, the tragedy is multi-causal. Labour introduced automatic release for EPP prisoners in response to its own prisons crisis (caused by its own “tough on crime” rhetoric), but the Coalition government was responsible for the statutory regime at the time of Khan’s case. It’s nonsense to suggest that Labour’s changes in 2005 prevented judges from passing adequate sentences on dangerous offenders; for one, the government had plenty of time until 2012 to amend the sentencing regime it inherited from Labour if it considered it to be so inadequate. The Court of Appeal finds itself in the unusual position of being criticised for being too lenient; almost every criminal law practitioner would tell you that the Court of Appeal is (in)famous for its reluctance to interfere with convictions and sentences, finding sometimes ingenious/disingenuous ways of upholding Crown Court decisions. The judgment appears well-reasoned given the known facts, but hindsight casts it in obvious doubt. For what it’s worth, the Sentencing Guidelines that now exist for terror offences would, on my interpretation of the facts, be likely to lead to a life sentence for Khan were he being sentenced today. And something that has been missed is that since 2015 nobody imprisoned for a terrorism offence is automatically released; in the unlikely event that he is not sentenced to EDS or life imprisonment, the court is required to order him “an offender of particular concern”, meaning that at the halfway point of his sentence he has to apply to the Parole Board for release.

Perhaps the focus, rather than on “tougher sentences”, ought be trained a little closer to the less tabloid-friendly dimension of criminal justice: Prisons and probation have been ravaged by huge cuts and disastrous reforms, meaning that Khan would have likely received little meaningful rehabilitation while in custody. If I were directing an inquest, I’d start there.

***

UPDATE: Overnight, the Prime Minister’s posturing has crystallised into hastily scrawled new policies, announced in op-eds in the Sunday tabloids repeating various untruths dealt with above, including falsely suggesting that we still have the same system as in 2008 and claiming that he has been talking about “abolishing automatic early release” for “four months”, despite not devoting a single word to this is his manifesto, nor making any effort to include this change in the recently enacted Counter Terrorism and Border Security Act 2019, a flagship piece of anti-terror legislation which focussed specifically on sentencing for terrorism offences. He also claimed, with characteristic fidelity to accuracy, that Khan was “sentenced 11 years ago”. Anyway, the overnight brainwave will apparently now herald a minimum 14 year sentence for defendants convicted of (unspecified) terrorism offences, with a suggestion that they will be required to “serve every day of their sentence, with no exceptions.”

As this is likely to run and run today, forgive me if I repeat this: In 2019, no terrorist sentenced to a term of imprisonment is subject to automatic early release. The Prime Minister’s attempts to suggest that we have the same system as applied at the time of Usman Khan’s sentence, and that he is the man to fix it, are dishonest, cynical and exploitative.

“Life means life for child killers” – the truth behind the headlines

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There used to be a time, once Chris Grayling had hung up his butcher’s apron at the Ministry of Justice and Theresa May ushered in a quieter, more respectful justice strategy of wanton neglect, that I wrote about something other than Boris Johnson. Unfortunately, the Prime Minister keeps booting the justice football around the pitch with the swagger and fervour he usually reserves for tackling small children, so I feel that the decision is being taken largely out of my hands.

Today, in advance of tonight’s first leadership debate, a raft of Tuff On Crime initiatives have been peppered across the bulletins. We woke up to whole life sentences for child killers, and are ushering in twilight with a guarantee of immediate arrest, charge and court appearance for those carrying knives. Short, snappy policy snackettes that have the advantage of electoral delectability and tabloid acclaim, and only the minor drawback of being entirely pointless and/or unworkable.

As with so many recent announcements on criminal justice, there is a risk that fact-checking the substance only serves to amplify unreliable headlines, but it is worth looking closer at exactly what this “life really will mean life” for “child killers” policy means.

What is the headline policy?

The appeal is obvious. Monsters who murder children should be put away for a very long time indeed. As Justice Secretary Robert Buckland says today, writing in The Sun:

“Any adult who commits the crime of killing a child should spend the rest of his or her life behind bars. It is as simple as that.”

But is it?

Before considering what the Conservatives are actually proposing, let’s look firstly at how the law currently works.

 

What is murder?

The first point to note is that despite the false claim by the Conservative spin machine that the proposed policy targets “child killers”, it doesn’t. It targets child murderers. There are, unpleasant as it undoubtedly is to dwell on, many ways in which people can be unlawfully killed. Unlawful act manslaughter, gross negligence manslaughter, corporate manslaughter, causing death by dangerous or careless driving, infanticide, causing or allowing a child or vulnerable adult to die, and murder. These are all discrete legal concepts.

Murder is the most serious. Murder, in law, is where a person unlawfully (i.e. not in self-defence or for any other lawful purpose) kills another person, intending either to kill them or to cause grievous bodily harm (really serious harm, is how it’s explained to juries). That may surprise you. You can be convicted of murder even if you didn’t intend to kill someone.

It follows, in case the point needs making, that, while all murders are serious, some are more serious than others. A distraught mother struggling with severe depression who shakes her child intending to cause really serious harm and unintentionally causes death is in a different category to a predatory paedophile who abducts, tortures and intentionally kills a toddler. Likewise a man who acts in genuine self-defence when attacked but goes overboard and, using unreasonable force, unintentionally kills a burglar is to be distinguished from a gangster who guns down a rival drug dealer. Forgive me labouring the point, but when politicians demand blanket “whole life” sentences for all people convicted of certain broad categories of murder, it is necessary to highlight the obvious injustice that would follow.

And this truism is reflected in how murder is currently sentenced.

 

What is the sentence for murder?

While all offences of murder carry a mandatory life sentence, what a life sentence means can vary. This is because a court has to firstly identify a “minimum term”, which is the minimum period that the defendant will spend in prison before becoming eligible for parole. If a person is deemed safe for release by the Parole Board (the test being whether the Board is satisfied that imprisonment is no longer necessary for the protection of the public), they will be released on “life licence”, with conditions. If at any time it is considered that they are a risk to the public, they can be recalled to prison.

How is the minimum term calculated? Judges must have regard to principles set out in Schedule 21 of the Criminal Justice Act 2003. This provides starting points, and the judge can then move up or down from the starting point to reflect further aggravating or mitigating features.

It’s worth a brief look at the different categories.

 

Whole life orders

We can see that if the court considers that the seriousness of the offence is exceptionally high,and the offender was aged 21 or over, the appropriate starting point is a whole life order – in other words, no prospect of release. There is then a non-exhaustive list of examples of cases that would normally fall within this category, including, multiple sadistic or sexually motivated murders, terrorism, murder of a serving police or prison officer, and, significantly for our purposes, the murder of a child if involving abduction or sexual or sadistic motivation.

30 year starting point

If a defendant is aged 18 or over and the seriousness is not exceptionally high, it may fall into the next bracket down, which provides for a 30 year starting point:

25 year starting point

This category covers cases where the offender took a knife or other weapon (not a firearm – this goes into the 30-year bracket) to the scene of the murder and used it.

15 year starting point

For all murders that do not fall within the other categories, the starting point is 15 years. Unless the defendant is under 18, in which case the starting point is 12 years.

The court then considers the aggravating or mitigating factors which may result in the starting point moving up or down. Critically, the legislation allows for a “minimum term of any length (whatever the starting point), or in the making of a whole life order”  – in other words, even if a murder is not specifically included as an example of a whole life order, the judge still has a discretion if she thinks the seriousness is exceptionally high.

So that, put crudely, is the existing framework. What does the Conservative Party want to do?

 

What does the Conservative Party want to do?

Notwithstanding Robert Buckland’s boast to The Sun above, or his widely reported assertion that:

“any murderer who denies a young, innocent child the right to life surrenders their own right to liberty. They do so permanently, and they do so without exception.”

the truth is that there are a number of exceptions to this new policy, as admitted in the press release. For one, as we have already seen, it applies only to crimes of murder, not to all “child killers”. Many homicide offences which capture public attention do not in fact involve murder, and will not be affected. Secondly, whole life orders will still only be available for offenders aged 21 and over. Thirdly, although Schedule 21 defines a child as a person under 18, this new policy would be more restrictive, applying only to children under 16. Fourthly, only murders which are “premeditated” are caught by the policy. Fifthly, the press release concludes by stating that “the sentencing decision will continue to rest with the judge”. At its height, this policy appears to introduce a presumption that qualifying cases will be met by a whole life order, but this is by no means the automatic, life-means-life that has been sold to the tabloids.

On this final point, it appears that the government has majestically failed to understand how the current system works, as the press release claims, falsely, that:

“The current rules require the murder to be of multiple children, or to be sexually or sadistically motivated, to attract a Whole Life Order, which is too restrictive.”

As we have seen, this is not what Schedule 21 says at all. It in fact expressly states the opposite – just because a type of murder is not listed in the examples of appropriate “whole life” cases does not stop a judge imposing a whole life order if she thinks the seriousness is exceptionally high. So the worst cases of the murder of children, say where an adult defendant commits a premeditated murder of a very young child, are already eligible for whole life orders.

In summary therefore, the Conservative Party either doesn’t understand (or is lying about) the law, and is pushing a policy to give judges a discretion to impose a sentence they can already impose.

 

How many cases will actually be affected?

Perhaps the most important question that has still not been answered by the government is how many cases this policy will actually affect.

The Office of National Statistics has been quoted in news reports as calculating a figure of 67 relevant cases involving the killing of children in 2018, but closer inspection suggests the true figure is much, much smaller. This figure of 67 includes offences of manslaughter and infanticide, not just murder. It includes the terrorist attack in Manchester. It also appears to includes child-on-child killings, which are regrettably common in inner-city inter-gang warfare. There is no apparent way of ascertaining how many of these 67 were murders, how many involved defendants over 21, and how many were premeditated. Nor can the government tell us how many of the cases which did involve the premeditated murder of children by adults in fact resulted in a whole life order anyway, and how many resulted in a minimum term which was unacceptably low.

The actual answer may well be in single figures, if not zero.

Guest post by Laura Hoyano: Terminology does matter: ‘believe the victim’, investigative mindsets and unlearned lessons from miscarriages of justice

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I am delighted to host this guest blogpost by Laura Hoyano, a barrister and Senior Research Fellow at Wadham College, Oxford.

 

On 18 December 2014, Detective Superintendent McDonald of the Metropolitan Police (MPS) declared to the media that ‘Nick’ had made “credible and true” allegations of child murder and horrific abuse against a deceased Prime Minister, current and former MPs, Peers, a Home Secretary, Heads of MI5 and MI6, and a D-Day hero and head of the armed forces. On 22 July 2019, ‘Nick’, now named as Carl Beech, was convicted of 12 counts of perverting the course of justice and one count of fraud, and sentenced to 18 years’ imprisonment. Irreparable damage was done to those wrongly accused and subjected to a deeply flawed investigation. As more of the unredacted review of Operation Midland of retired High Court Judge Sir Richard Henriques has been published, we know more about how this débacle came about. But have the lessons been learned?

This description of ‘Nick’s’ complaints was planned (Henriques [2.4.9]). DSU McDonald made his declaration without having read any of his interviews or blogs ([2.4.9 response to MPS]), which showed “gross inconsistency” ([2.4.14]).

 

The genesis of the “belief” directive

McDonald justified it on the basis of MPS Special Notice 11/02 “Principles of the Investigation of Rape and Serious Sexual Assault”: “It is the policy of the Metropolitan Police to accept any allegation made by any victim [sic] in the first instance as being truthful. An allegation will only be considered as falling short of a substantiated allegation after a full and thorough investigation.” [quoted by Henriques [1.21]).

The 2002 Notice was issued against a background of justified concern about the high number of sexual assault allegations being ‘no-crimed’ with little or no investigation. A 2014 Report by Her Majesty’s Inspectorate of Constabulary found that of the 1,077 reviewed decisions to ‘no-crime’ a reported rape, 220 were incorrect; in the worst forces, more than two-fifths of rape no-crime decisions were wrong ([7.70]-[7.71]). HMIC recommended that for recording all forms of reported crime – notwithstanding that only 6% of errors could be attributed to the ‘victim’ not being believed ([7.75)] —  the “presumption that the victim should always be believed should be institutionalised” ([1.31]).

 

Recording and investigating rules become conflated

Guidance for Operation Hydrant (Nov 2015), a hub which co-ordinates the investigations of non-recent sexual abuse allegations against other prominent persons and institutions in England & Wales, stated that “[t]he focus of the investigation is on proving or disproving the allegation against the suspect, and not on the credibility of the victim. Investigators will need to consider issues relative to the victim’s credibility but this should not be the primary focus of the investigation.” This injunction is contradictory, and even non-sensical when the only evidence is an accusation and a denial. The guidance was republished in this form in Nov 2016, after Henriques; it is under review, but only in Sept 2019.

 

Henriques’ demolition of the ‘belief’ directive

Henriques provided a devastating critique of the ingrained terminology of victimhood and belief which tainted the police’s approach to ‘Nick’ during Operation Midland [para 1.23]: “a starting point that eliminates doubt has the hallmark of bias”, striking at the very core of the criminal justice process, which “has and will generate miscarriages of justice on a considerable scale” ([1.30], [1.31]). He found “plain evidence” that “an instruction to believe complainants has over ridden [sic] a duty to investigate cases objectively and effectively” ([1.25]), and that “a major contributing factor” in the many police failures in Operation Midland was the “culture that ‘victims’ must be believed” ([2.3.8.58]).

 

Responses to the Henriques Review

The College of Policing commissioned from Assistant Commissioner Beckley (MPS) a comprehensive and thoughtful Review into the Terminology “Victim/Complainant” and Believing Victims at the Time of Reporting(Feb 2018).  AC Beckley observed that “[i]t is not at all surprising that, for officers and staff, “believe” and “belief” has leaked into the wider investigative environment” ([8.4]), and concluded that “maintaining a stance involving believing victim accounts, however limited, has potential to undermine the legitimacy of the process” ([8.6]).  The result was a clear recommendation from the College of Policing that whilst the term ‘victim’ should be retained, the  Home Office should amend the crime recording counting rules to remove the words “The intention is that victims are believed” to be replaced by “The intention is that victims can be confident they will be listened to and their crime taken seriously”. Training materials would then be reviewed to provide guidance on “how accounts (including initial accounts) can be clarified, tested and appropriately challenged in the most supportive and explanatory way possible” ([Beckley [8.10], [8.12]).

The Home Office rejected this considered view in September 2019, retaining the controversial wording in the Crime Recording General Rules whilst adding (in italics):

“The Standard directs victim focused approach to crime recording. The intention is that victims are believed and benefit from statutory entitlements…. This seeks to ensure that those reporting crimes will be treated with empathy and their allegations will be taken seriously. Any investigation which follows is then taken forward with open mind to establish the truth.”

The diktat to ‘believe the victim’ appears throughout the Standard as a “presumption”, eg paras 3.2, 3.5, 3.8.

The 2019 edition of the draft guidance for Operation Hydrant repeats this advice to Senior Investigating Officers, claiming, rather anxiously, that it is “entirely consistent with the approach that should be taken at the outset of an investigation into non-recent child sexual abuse and acknowledges the need to gather all evidence, both towards and away from the allegation” ([1.2.3]).

So the inherent logical contradiction criticised by Henriques is now entrenched in this ‘two phase’ approach: how can an officer be required to “believe” the complainant, and then suddenly become objective and impartial in interviewing the suspect ([1.25])?

“Any policy involving belief of one party necessarily involves disbelief of the other party. That cannot be a fair system… That is a simple reversal of the burden of proof.” ([1.26], [1.27]) “The instruction foisted upon investigators to believe a ‘victim’ perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind. If a judge were to direct a Jury to believe a complainant during evidence in chief, and only to question credibility thereafter, it would constitute a most  serious misdirection.” ([1.32]).

 

Rhetoric snags on legal duties

Moreover, the ‘belief’ injunction snags on (at least) six more protruding procedural nails for the police, from start to finish of an investigation:

  • their duty under the Criminal Procedure and Investigations Act 1996 Code of Practice para 3.5 to investigate *away* from the suspect is triggered at the complainant’s initial interview, yet the interviewer is instructed to “believe” the complainant in this and (presumably) subsequent interviews and in taking a witness statement (‘Nick’ gave 17 hours of recorded interviews over 6 months);

 

  • ex parte applications for search warrants give rise to a duty of candour to the court under Criminal Procedure Rule26(3), requiring a mindset of balanced scepticism in evaluating the consistency of the totality of the evidence (this duty was unlawfully breached in Operation Midland according to Henriques ([2.4.9 response to MPS], [2.4.47], [2.4.49], [2.4.51], [2.3.8.56]) and the district judge who issued the warrants, but not according to the Independent Office of Police Conduct);

 

  • files sent to the Crown Prosecution Service must identify and evaluate weaknesses in the prosecution case;

 

  • their common law duty to disclose any information which might assist the defence immediately arises if it would assist with the early preparation of their case including at a bail hearing (CPIA Code of Practiceparas 6.6, 7.1);

 

  • their specific duty to disclose any material casting doubt on the reliability of a prosecution witness, such as the complainant (CPIA Code of Practice para 7.3) and

 

  • their continuing statutory duty under the CPIA throughout the proceedings to disclose material to the defence which might undermine the prosecution case or assist the defence (CPIA s. 7A).

Henriques’ observation that “a genuine and truthful complainant has nothing to fear from a directive that prioritises investigation ahead of ‘belief’” ([1.35]) is unanswerable; a complainant is entitled to be treated with dignity and seriousness, but not to go unchallenged at any stage through probing questions.

It is inexplicable that the Home Office has rejected Henrique’s irrefutable and unqualified condemnation of the terminology of ‘believe the victim’ as impeding open-minded and impartial investigations. What greater evidence of this is required than Operation Midland?

The Rules should record plausible allegations for the narrow purposes of initiating investigations and quantifying police activity in various offence and geographic sectors. The College of Policing’s recommendation was correct: ‘belief’ is unnecessary for the Standard to be rigorous and effective. Investigative training must stress a neutral starting point, not expect officers to hold two conflicting mindsets. Otherwise mistrials will continue when police witnesses cannot defend the impartiality of their investigation under cross-examination, or refer to complainants as ‘victims’ whom they were required to ‘believe’ from the outset.

 

Laura Hoyano is a barrister at Red Lion Chambers, a Senior Research Fellow at Wadham College, Oxford, and a member of the Faculty of Law, University of Oxford. She represents the Criminal Bar Association on the end-to-end review of obstacles to the prosecution of serious sex offences being conducted by the Ministry of Justice and Home Office.

Guest post by Joanna Hardy: We need to talk about lunchtime

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A few years ago, a poster was stuck up in the robing room at Snaresbrook Crown Court. There was to be a charity raffle.

The prize? “Win lunch with the Snaresbrook Judges!”.

This prompted much mirth. An unimpressed barrister scrawled beneath it “Second Prize: TWO Lunches”. Another quipped that they would rather eat their own wig. Counsel threatened to enter their opponents into the raffle for a laugh, hoping to inflict an hour of judicial caesar salad on those who had wronged them.

This was all light-hearted. Everyone knows the Snaresbrook judges are really rather nice and, importantly, they have a dining room. And actual cutlery. The dark days of 2012 are long behind us and we try not to mention them in polite company.

I thought about that raffle a lot yesterday. I was wrestling with a Crown Court vending machine to extract my own lunch. A Kinder Bueno and a carton of Ribena. This was my seventh day of Vending Machine Bingo at a court with no catering facilities save for a roaring trade in the rare and disgusting delicacy of refrigerated packets of crisps.

The slot swallowed my money, the machine rumbled into action, the metal coil jammed and my chocolate bar was stuck. I eyed the machine for size and wondered if shaking it might be considered professional misconduct. I recalled that more people are killed by vending machines falling on top of them than from shark attacks. I decided not to risk it and poured more money in. Two Kinder Bueno. Jackpot.

I glanced at the time. A quarter of lunchtime had passed. I needed to see my client in the cells, see my opponent to discuss some evidence, finalise a document for the jury, consider some recent disclosure, return a frantic call from my clerk and, time permitting, use the bathroom. Clock ticking, time tocking, I shoved the chocolate into my mouth. “A speed lunch! The finest tradition of the bar”, a senior barrister bellowed at me as he commenced his own futile battle with the evil vending machine.

It was then I realised – we need to talk about lunchtime.

If a speed lunch, or no lunch at all, are traditions of the bar then they are bad ones. Like all traditions, we ought to occasionally ask ourselves why we are still doing them.

If the Wellbeing initiative is to conquer anything then her first victim must be the macho work culture that led us here. The at-all-costs attitude that shames people for basic activities like having a cup of tea or gathering their thoughts. The creeping obsession with sitting statistics and an unquestioning devotion to the “effective use of court time” has a price. Are we, as counsel, willing to pay it?

Because one thing we do find time to swallow is the frustration of being asked to perform a lunchtime miracle at a court that has closed the canteen, hired no recorders, broken the boiler, locked all the conference rooms and sealed off half the toilets. It is our shoulders that bear the loss of lunch, rest, and wellbeing to keep the show on the road, to keep the statistics high and to not keep anyone waiting.

As part of our Wellbeing revolution, we ought to now consider how we realistically structure the court day in the scorched landscape of cuts, closures and reduced facilities. It should be widely acknowledged that there will be trials and times when a longer lunch break, or multiple short breaks, are appropriate. Not always and not often. But for those trials where time is short, pressure is high and facilities are lacking we must call it out. We should be bold enough to insist that heavy tasks are undertaken within court hours and brave enough to recognise there is no shame in needing a rest. Justice is not a race and it will not be achieved by a drained, exhausted profession. We ought to now insist that the “effective use of court time” includes provision for us to remain effective too.

Joanna Hardy is a criminal barrister at Red Lion Chambers. She tweets @joanna__hardy