Examining Iain Duncan Smith’s understanding of Brexit

Today, in response to an op-ed in the Daily Mail in which Iain “Bit of a thicky” Duncan Smith pushed Hanlon’s Razor to its limit with his “interpretation” of the Supreme Court proceedings, I published a series of tweets. They have proved, contrary to expectation, common sense and decency, to be quite popular, and I have had several requests to collate them in a blogpost. So for those who so wish, here I do. For those who aren’t fussed or have already seen, sorry for the diversion and have a nice day.

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Louise Mensch’s claims that Thomas Mair had an unfair trial are unsupported and wildly dangerous

There’s something particularly undignified about a spiralling Twitter spat. The cumulative ‘quote tweeting’ and punctuated “replies” designed to alert innocent passers by to your often solipsistic, and usually entirely pointless, tit for tat exchanges with someone you’ve never met and have no desire to know.  I am guilty of indulging in such indignity this afternoon, after taking umbrage at something said by erstwhile MP and author Louise Mensch, and ending up in the digital equivalent of one of those awful blazing rows you see pissed up couples having outside kebab shops to the evident embarrassment of passers by.

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On this, I also owe an apology to the doyen of criminal legal bloggers, Matthew Scott, whose name has been unwittingly dragged into the debate. If I conducted myself online with his restraint and temperament, I, and the timelines of my followers, would no doubt be much better served. But I do wish to say one final thing, just by way of consolidation, as Ms Mensch has unwittingly performed a public service by highlighting a particular strand of obnoxious and dangerous ignorance prevalent in commentary on criminal law, particularly pertaining to the conclusions that can safely be drawn from what is reported about criminal proceedings.

Mensch today published an article about the trial of convicted murderer Thomas Mair, in which she drew heavily on sage observations made by Matthew Scott on his blog relating to features of the proceedings. Matthew noted, for example, the unusual step of the court receiving into evidence an agreed witness statement from Stephen Kinnock MP, which appeared (if reported accurately) to amount to no more than “good character” evidence of the victim Jo Cox. If this was the purpose for its admission in evidence, it would be highly unusual. Matthew also observed, in his comments made pre-sentence, that based on what had been reported in the media, we might expect the issue of Mair’s mental health, although not led in evidence as relevant to his guilt (for example by way of a defence of insanity or diminished responsibility), to feature in the judge’s contemplation when considering sentence.

Louise Mensch seized on these observations and concluded definitively that Mair had had a “prejudiced” and “unfair” trial. The Judge had “played to the gallery” in allowing Kinnock’s evidence to be read. When challenged about this on Twitter, she doubled down and insisted that the Judge “acted wrongfully and immorally“.  Despite Matthew politely writing in the comments under her blog to caution against leaping from his observations to the conclusion that trial was unfair, Mensch has continued to repeat this from the rooftops over the last few hours.

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And this needs shutting down. Because it’s rot.

Mensch is not a lawyer. She was not involved in Mair’s trial. She was not present in court, nor it seems has she spoken directly to those who were. So her “conclusion” is in fact mere speculation. None of us who were not present know the legal grounds under which Kinnock’s statement was read. It might have been in some way helpful to the defence. It might be that it was favourable to the prosecution and on its face inadmissible. It might be that the Judge was wrong in letting it go before the jury. If so, Mair’s extremely experienced defence Q.C. will no doubt have objected and, if the Judge erroneously ruled against them, this could possibly form the subject of an appeal. But this, like Mensch’s musings, is completely speculative. We don’t know. And if we don’t know the full facts behind and reason for a decision, we cannot, and should not, claim to be able to draw a safe conclusion as to whether it was correct. Or, more pertinently, the motives of the decision maker, in this case the Judge.

The same applies to the issue of mental health. Mensch may have read a lot in the papers that gives her cause for concern (the same papers, it should be noted, that she rails against for printing other inaccuracies about Mair), but she is not a doctor. She is not a lawyer. She was not in the trial. She has no idea what material was before the courts, what material was available, and what the judge took into account when sentencing. She appears to speculate baselessly that Mair might have had an available defence on mental health grounds, implying that his defence, or the judge, were in error in not eliciting this. She goes on to claim that similar errors were made in the sentencing exercise. Certainly the sentencing remarks make no mention of mental health, but to assert, as does Mensch, that the Judge was wrong not to take Mair’s mental health into account relies on a number of astonishing assumptions. First, that Mair has relevant mental health issues. Second,  that his experienced Counsel, experienced solicitors and the experienced High Court Judge hearing the trial failed to identify the potential relevance of mental health issues and cracked on without giving it due regard. Or third, in the alternative, that there was relevant material which the Judge ignored when sentencing. Again, I am not saying for sure that none of those are right – they might be. But we don’t know. Mensch does not know. And if she does not know, she cannot guess.

She makes salient points about adverse publicity pre-trial, of which there was much following Mair’s arrest, particularly on social media. But again, not being in court and not having done her basic research, she has no idea of the repeated, careful warnings that are given to juries in such cases. Or if she does, she doesn’t acknowledge this. She leaps straight to the conclusion that this too renders the trial unsafe, her expertise far outweighing, it seems, that of Mair’s legal team who did not see fit to argue (as they could have done) that his case was so prejudiced by unfavourable media coverage that it ought to be stayed as an abuse of process. Mensch doesn’t pause to consider this. She doesn’t bother to learn the law. She guesses.

And she shouldn’t guess. Because in this toxic, febrile climate, claims that Neo-Nazis are not given fair trials can have serious consequences. These claims feed into the narrative that democratic institutions are broken, and foster the paranoia of those susceptible to taking the, to them, only rational action that one can take when democracy breaks down – violence. It is the same danger that lay behind Trump’s claims that the election was rigged, and UKIP’s baseless allegations that the High Court judges in the ‘Brexit’ case were biased. This is not to say that democratic institutions shouldn’t be scrutinised or criticised, or that concerns should not be raised; plainly they should be. But on solid and intellectually honest bases, by people in command of the facts and the arguments, reaching available conclusions sensibly and responsibly.

Not by professional antagonists seeking their latest hour in the sun, ignorant of the facts and oblivious or, worse, maliciously indifferent, to the succour they give to extremist tropes which, taken to their logical conclusions, could result in violence on the streets.

Thank You

Some of you may have seen that, in defiance of all common sense and decency, I was today named Independent Blogger of the Year at the Editorial Intelligence Comment Awards 2016. While entirely out of keeping with the general tone of cynical nihilism that pervades these posts, I would like to sincerely thank not only the judges at EI for their generosity, but more importantly all those who follow, read, comment upon and even troll my  nonsense, both below these lines and on Twitter. At the risk of coming over all Gwyneth, I genuinely could not have foreseen when I started this blog 18 months ago that over half a million of you would take the time to read the workings of this disturbed legal mind, far less that your support would lead to any sort of recognition beyond possibly mild ridicule from established, better writers. That so many of you have supported me in my vanity project owes far more I’m sure to your collective patience than to any talent on my part, but I am nevertheless sincerely grateful to you all for joining me on my fool’s errand to bring law to the people. It is appreciated more than you know.

Thank you X

SB

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The “Walter Mitty” law is misconceived and dangerous in equal measure

Every now and then, as Bonnie Tyler so nearly put it, I fall apart sobbing in giddy astonishment at the folly of our elected representatives. And I need you now, dear reader, and I need you more than ever as the willing sounding board in my echo chamber of lawsplaining.

Today’s culprit is Conservative MP Gareth Johnson, who has captured the imagination of news outlets desperate for something to distract from the relentless nihilism of our politics. His Private Members’ Bill, the Awards for Valour (Protection) Bill has won the support of the House of Commons Defence Committee, and thereby takes a military step towards its Second Reading on Friday.

A deeply uncunning plan

A deeply uncunning plan

The Bill aims to prohibit the wearing or public display, by a person not entitled to do so, of medals or insignia awarded for valour, with the intent to deceive. To borrow the media-speak, it targets the “Walter Mittys” who adorn themselves with unearned medallions and insist that everyone call them “Colonel”, causing enormous offence to genuine service personnel and their loved ones.

And it is wholly misconceived.

The text of the Bill is short and can be reproduced here:

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The drafting is at least to the point. Pretend to have been awarded a medal for valour and face up to 3 months in prison (although the Committee in fact agreed with Mr Johnson’s suggestion that the maximum should be 6 months, so we can expect an amendment). If there is merit in its brevity, however, the plaudits end there. It is in every other way an appalling Bill.

There are two kinds of people who dishonestly wear military medals that they haven’t earned. Those who do so in order to obtain some sort of advantage, usually financial. And those who do so simply because they like the undeserved attention that the artifice confers.

The first category is plainly conduct requiring a criminal sanction. If you deceive in order to gain for yourself or to cause a loss to another, the law should intervene to protect the victim. And it does. We have the Fraud Act 2006 for just such an eventuality. So if you are duplicitously pinning on unearned medals to persuade people to donate to your fictional charitable cause, that is an offence under section 1 and 2 of the Fraud Act 2006, carrying a maximum sentence of 10 years.

The second category comprises, in the words of the Committee, “contemptible fantasists” – those tragic, often lonely men, whose deceit and/or delusion may well be deserving of public contempt, opprobrium and mockery, but who cause “harm” only to the extent that one equates “harm” with “moral offence”. Which I do not. First year undergraduates will be able to knock out essay after essay on the “mala in se” and “mala probihita” debate far more fluently than I, but I start from the philosophical position that criminalising conduct not because it causes harm but because it offends broader public sensibilities is a regressive misuse of the state’s coercive powers.

The Defence Committee in its report, regrettably, disagrees. It identifies that harm in such behaviour arises due to the “insulting” nature of the conduct, and the damage to the integrity of the system that it assumes flows therefrom. From this, the Committee gallops swiftly to its conclusion that a law is needed to protect the sensibilities of those offended.

The Defence Committee’s report is crammed full of other evidential gaps and leaps of logic. It confidently asserts, for example, that “We have received evidence that points to a continuing problem with military imposters”, before conceding that it is unable to identify with any accuracy the scale of this problem due to lack of recorded statistics. It acknowledges the Royal British Legion’s evidence that such conduct is “rare” and “not widespread”, but decides to favour the anecdotal evidence of the Bill’s sponsor and other witnesses. Quite how the Committee could hear conflicting anecdotal evidence and conclude that it was sure  that the integrity of the system was imperilled is a mystery.

The Committee draws analogies with the offence of impersonating a police officer, which does not require proof of gain, without recognising the very different, specific and real harm that is caused by the public being misled into believing that an individual is invested with the coercive powers of the police.

It does not even take heed from history. For we had a law like this until a decade ago. A corresponding offence appeared in section 197 of the Army Act 1955, until it was abolished in the Armed Forces Act 2006. Justifying this decision at the time, the MoD said:

“the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform” and that the general offences under the Fraud Act 2006, which potentially attract much more serious penalties, would cover those eventualities. There was also a concern that “an offence based on an intent to deceive which did not involve fraud (for example, where there was no attempt to make a financial or property gain, or cause someone loss) was likely in practice to cause difficult questions of proof”.

The Report acknowledges this, before swiftly moving on without addressing the argument. Because it cannot be addressed. This new offence will be at once difficult to prove and entirely unmeritorious.

The report sensibly proposes that the MoD publish an online database of those awarded medals, to allow for swift public verification of claims to honours. This is a fine idea. It is a shame that this was not the sole remedy alighted upon, and that the Committee considered that instead stretched police, CPS and court resources should be expended on more prosecutions.

I do not for a moment doubt the offence caused to military personnel and their families. And I agree that there is a particular degree of unpleasantness and aggravation of offence, given the particular sacrifices that are by those who earn such honours. But it is worth remembering that the Walter Mittys of this world do not restrict themselves to the misappropriation of military honours. They pretend to be doctors, inventors, Nobel prize winners, retired detectives, lawyers, decorated firefighters and much more besides. And once we start saying that the law should criminalise deceitful conduct based not on harm but on offence, we will find other groups seeking similar protection. Why, it may reasonably be asked, should the same criminal sanction not be imposed on those who falsely claim to have saved lives in war zones as a member of Médecins Sans Frontières?

The Report also pays scant regard to the personal circumstances of those who will likely fall foul of this law. Many will be elderly. Many will have mental health problems. All, by virtue of the fact that they have not been charged with fraud, will be entirely harmless.

To suggest, on the day that the Lord Chief Justice correctly points out that our prisons are bursting at the seams with prisoners who we do not need to lock up, that what we urgently require is more tragic, deluded, harmless old men locked up for up to 6 months, represents exactly the kind of muddled thinking and crass appeal to populism that our MPs should know better than to indulge.

Liz Truss is unfit for office and should resign

I didn’t expect to be writing that headline less than five months into Liz Truss’ reign as Lord Chancellor and Secretary of State for Justice. Truthfully, I hoped I would never be writing it at all. Amidst the wails of protest that greeted her appointment, I was one of those urging that we give the new Lord Chancellor time. No, she had no legal qualifications or experience. Yes, she was trailed by suggestions that she harboured the type of damned ambition that drove Chris Grayling to such ruinous vandalism across the justice system. And the less said about that cheese speech the better. But, I counselled, Michael Gove should give us all pause for thought. Because, putting aside whatever other noses he may have put out of joint, during his brief tenure at the Ministry of Justice, he was impressive. He demonstrated genuine interest in and respect for not only his political brief, but the particular constitutional significance of the role of Lord Chancellor, which uniquely requires the office-holder to swear an Oath and discharge a statutory duty to defend the independence of the judiciary and respect the rule of law. And, notwithstanding the vocal scepticism of Ms Truss’ predecessors and colleagues over whether she had the mettle to stand up to her fellow ministers in discharging these duties,  it was only right that she be given a chance to prove herself.

Today was that chance. Today was her first big test. And she has failed spectacularly.

Yesterday, the High Court handed down its judgment in R (Miller) v Secretary of State for Exiting the European Union. You may better know it as the “Brexit ruling”. It wasn’t anything like that, of course; the Court was at pains to distance itself from the political question of whether we should leave the EU, or what such Brexit should look like. But the Court was asked, and everyone concerned – including the government’s lawyers – agreed that it was proper that the Court should determine, whether notice to leave the EU pursuant to Article 50 could be given by the Prime Minister exercising the Royal Prerogative, or whether an Act of Parliament was required. The Court, in a scrupulously reasoned judgment, held that an Act was required. As was inevitable regardless of outcome, this decision will be appealed upwards to the Supreme Court, who may reverse it, but as it stands the decision represents an inconvenient, although by no means insurmountable, bump in the road to the government’s planned March 2017 Art. 50 notification.

The merits of the judgment are for other, better legal blogs. But what followed can be discerned by any sentient, non-foaming person as hysteria beyond imagination.

UKIP naturally got in on the act first, its various idiotic pretenders to its cheap, nasty throne jostling to shout loudest for the “sacking” of these “unelected, activist judges”. They were soon joined by the intellectually backwards rump of the Tory party. Last night on Question Time, Sajid Javid, a government minister, danced around the issue of whether the independent judiciary had “thwarted the will of the British people”.

And then we woke up. And the front pages of the tabloid press looked something like this:

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Words are not enough. Not mendacious, misinformed, contemptuous nor dangerous, of which it is all these things, and far more besides. These were the front pages of failed states. Where judges are routinely dispatched to the netherworld at the whim of megalomaniacal dictators, and “law” amounts to the fancy of the armed masses. Our judges were out of touch, elitist, posh, democracy-thwarting, Europhile, corrupt and biased Enemies of the People. MailOnline yesterday famously – before quickly deleting the evidence – denounced the fact that the Master of the Rolls, one of the three judges, was “a gay ex-Olympic fencer”. The Daily Express, declaring the judgment “a crisis as grave as anything since the dark days when Churchill vowed we would fight them on them on the beaches”, actively called for its readers to rise up and “Rise up and fight, fight, fight.” Naturally, within minutes there were calls on Twitter for judicial executions.

A starker, more blatant attack on judicial independence is hard to conceive. It is one thing to criticise court rulings. Or to draw attention to judicial decisions where they fall into error. But when the legislature and executive join forces with the media to launch rocket after rocket of personal, unwarranted abuse that is intended not to criticise or inform, but to demean, undermine, unnerve, terrify and intimidate independent judges who cannot answer back, we have a genuine constitutional crisis. The separation of powers is not just breached but scorched to the ground.

And it matters. It’s not just an empty turn of phrase trotted out by lawyers like a lot of the obsolete latin we cling to. It’s of fundamental importance to the way we run our democracy. The separation of those who make our laws, apply those laws and govern the country is integral to ensuring that each branch of our constitution – legislature, judiciary and executive – can do its job. Key to this is judicial independence. We want our judges to be able to comply with their judicial oaths and apply and interpret legislation and case law faithfully and fairly, without fear or favour. They have to be free to rule when government purports to act unlawfully, without the lurking threat of personal or political consequences. Judges who have that independence compromised are, using the term in its proper sense, dangers to the people. Because they no longer apply the law on the basis of independent assessment of the merits of a particular interpretation, but to curry favour or avoid censure. There’s a reason our judiciary travel the world training judges in other states. Our model is the model to which others aspire.

And so what of our Lord Chancellor? How long did it take her to step out of the shadows and call for calm? To remind us all – populace, media, Parliament and executive – that due process to challenge the judges’ decision is taking place, and that the vicious, misinformed and unwarranted rage on display represents a dangerous and unjustified threat to the foundations of our democracy?

How many hours passed, after the Prime Minister pusillanimously refused to acknowledge that there was a problem, for Ms Truss to stand up to the PM and her cheerleader press editors and release a statement defending the right of judges to carry out their vital constitutional function without being gratuitously abused and threatened?

Nothing by lunchtime. The calls came louder. Shadow Lord Chancellor Richard Burgon released a statement condemning the behaviour and urging the Lord Chancellor to join him. The Lib Dems did likewise.

And as the clamour grew, as the legal profession watched on expectantly, waiting for the self-styled guardian of the judiciary to step into public view and remind her Parliamentary colleagues, fellow ministers and the media of the centrality of judicial independence to our constitution, and of the inherent danger in misrepresenting and hounding judges in such vile terms, there was the deafening sound of silence.

The Lord Chancellor said nothing. Not a single word.

So what we have is the Rule of Law being roundly trounced and judges being threatened for having had the audacity to apply UK law to a UK legal question and conclude that the UK Parliament was supreme.

And our cowardly, charlatan Lord Chancellor, cowering in the good graces of her Prime Minister and a rampant, ugly tabloid media, sitting meekly by and watching the world burn.

There’s still time, it’s true, for Ms Truss to spin out a belated, mealy-mouthed press release, with her fingers crossed that it doesn’t unduly offend those whom her Prime Minister is so desperate to please. But by now,  close of play on Friday evening, it’s too late. Like the Queen being shoved before the cameras several days after Diana’s death, the pause betrays the reality. Faced with the choice between upholding her Oath and pleasing her masters, she has unforgivably opted for the latter.

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A sick joke

She won’t resign, of course. It’s obvious now what her plan is. It’s the same as Chris Grayling’s. Stick around for 18 months, do the bidding of others who care not for quaint notions of justice and the Rule of Law, and slide quietly up the ladder to the next portfolio. Her Oath to protect the founding principles of our civilisation means less to her than the emergence of Chinese pork markets.

As someone even angrier than I once said about the serious subject of how much cheese we import:

That. Is. A. Disgrace.

 

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UPDATE: At 14:14 today, two days after the abuse of their judges started, the Ministry of Justice tweeted the following comment from Liz Truss:

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A cowardly, mealy-mouthed and vapid comment which is notable only for its banality, this represents a contemptuous failure to even attempt to discharge her statutory duty to defend the judiciary. She may as well have stayed silent.

Why did the government block the SNP’s Alan Turing Bill?

This post was written last Saturday when it was achingly vogue, then lay forlornly unposted over the weekend until staleness set in, by which time it appeared destined to linger forever in my draft folder. Serendipitously, it has been offered a second wind after one of the subjects tweeted me out of the blue, allowing me, I reckon, to segue to a discussion of why, last Friday, Justice Minister Sam Gyimah powered into the media’s bad graces by apparently blocking a Private Member’s Bill which sought to automatically pardon men convicted of now-abolished sexual offences.

When SNP MP John Nicolson presented the Sexual Offences (Pardons Etc) Bill for its second reading in the House of Commons last Friday, he and many other MPs spoke eloquently and passionately about the symbolic importance of enacting legislation which would extend the pardon granted to Alan Turing in 2013 to all men, living and deceased, convicted under historic legislation that criminalised homosexual activity between consenting males over the age of 16. Sam Gyimah, a new fixture in the post-Gove Ministry of Justice, then stood up and asked Mr Nicolson to withdraw the Bill. When Mr Nicolson refused, Mr Gyimah articulated his objections at sufficient length to ensure that there was no time for a vote on whether the Bill should progress to Committee stage, effectively, as it has been reported, “filibustering” the Bill.

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Cue outrage. Gyimah was variously “a disgrace”, “shameful” and, in the words of Labour MP Wes Streeting:

So what on earth has gone on?

To understand, we need to rewind to the origins of Nicolson’s Bill, and the pardoning of Alan Turing in 2013. Following a vigorous public campaign, and a Private Member’s Bill presented by Lib Dem peer Lord Sharkey in 2012, the government exercised the Royal Prerogative to posthumously pardon World War II code-breaker Alan Turing, who was convicted in 1952 of gross indecency for a consensual same-sex relationship with a 19 year-old man. Turing was one of an estimated 50,000 men who, until the decriminalisation of homosexuality in 1967, were convicted under provisions of the Sexual Offences Act 1956 – mostly sections 12 (buggery) and 13 (gross indecency between men) – or (as in Turing’s case) its predecessor, the Criminal Law Amendment Act 1885, and whose lives were scarred, if not ruined, by being criminalised and often brutally punished for the sin of loving another.

In recognition of the injustice occasioned by this legislation, a further legacy of the Turing campaign emerged. Section 92 of the Protection of Freedoms Act 2012 provided for a procedure whereby anyone convicted under the relevant provisions of the 1956 legislation (or its predecessor) for consensual sexual activity with someone over the age of 16 could apply to have their conviction “disregarded”. The practical effect of this was that if the Home Secretary agreed that the sexual activity founding the conviction would not be an offence today, it would be wiped from the record.

Having a conviction “disregarded” under this procedure is not the same, it should be noted, as being pardoned. “Disregarding” results in the conviction being wiped from the record books. The effect is that no offence was ever committed. By contrast, a pardon “removes from the subject of the pardon all pains, penalties and punishments whatsoever that from the said conviction may ensue” (R v Foster [1985] QB 115, 130), but does not eliminate the conviction itself. Its function is therefore, as far as historical convictions are concerned, largely symbolic. Furthermore, the disregarding process is presently only available to those still alive to use it. For the thousands of other Turings and their families, the stain of a criminal conviction lingers. It was for this reason that, at the 2015 General Election, the Conservative Party manifesto included a commitment to introducing posthumous pardons for historical sexual convictions that no longer amount to an offence.

Which brings us to Friday, and John Nicolson’s Bill. The Bill, in short, sought to automatically pardon anyone convicted of a “specified offence”. This included anyone eligible for the disregarding process, as well as those convicted under section 32 of the 1956 Act (solicitation by men), which was omitted from the scope of disregarding. The Bill also extended the disregarding procedure to permit relatives of deceased men to apply on their behalf for a posthumous disregarding. Which, one may think, would be the sort of thing that the government would support, given its manifesto pledge.

So why didn’t it? Well, the day before the Bill’s second reading, Mr Gyimah announced in a blaze of publicity that the government was enacting an “Alan Turing Law”, by throwing its weight behind a proposed amendment to another Bill currently at the House of Lords Committee stage, the Policing and Crime Bill. Lord Sharkey, he of the Turing pardon Bill, had proposed an amendment which would do two things: firstly, automatically posthumously pardon anyone deceased who was convicted of a “relevant offence”; secondly, provide that anyone living who applied successfully for a conviction to be disregarded would also be pardoned.

Therefore, the MoJ announced, it would not support Nicolson’s Bill, instead preferring to plough its own furrow with the Sharkey amendment. What Friday brought was then a gritty stalemate in the House, as each side waved its flag and ordered the other to join its cause.

Those in favour of Nicolson’s Bill argued that the symbolism of an Act specifically and solely addressing the injustice to be remedied was vital. Appending such a socially significant statement as an afterthought to an unremarkably-titled Policing and Crime Bill did the magnitude of its symbolism a disservice. It warranted the status of being an Act in its own right.

More than this, though, a blanket pardon would cater for the many people who may not want to relive a deeply unpleasant period in their history by going through the formal disregard procedure, but would take comfort from a law formally absolving them of any moral fault. The disregarding procedure has not been widely used. In some historic cases, key documents may no longer be available, presenting an obstacle to demonstrating that, for example, the sexual activity was consensual. The fear of a refusal to have a conviction disregarded, and the further shame and indignity of official rejection, no doubt plays heavily on the minds of many elderly men. A blanket pardon would offer the official acknowledgment to these men that they have been wronged, with the disregarding procedure available for those who wished further to take advantage of the practical effect of having a conviction expunged from the record.

The MoJ’s truculence was twofold. First, it was argued that the amendment to a Bill currently before the Lords afforded a quicker vehicle to bring about the desired change. Second, and loudest, the MoJ objected that the Bill as first drafted was wide enough to appear to pardon people convicted for gross indecency in cases involving non-consensual sexual acts, particularly with children. Historic sexual allegations were, and still are, prosecuted under the 1956 Act, with many nonconsensual acts prosecuted as gross indecency or buggery (typically acts that would nowadays be prosecuted as oral or anal rape), and the MoJ understandably did not want such convicts swanning around with the glow of a pardon. Or worse, it was suggested, using a pardon to worm their way around safeguarding provisions and obtain employment working with children.

This was still Mr Gyimah’s position on Friday. But it appears entirely disingenuous. Before Friday’s debate, the Bill was amended to make clear that the pardon would only apply to cases involving consenting parties over the age of 16, section 2(4) broadly mirroring the disregarding provisions. Even if the technical drafting leaves something to be desired, this could be ironed out at Committee stage. So this argument, still being peddled by the MoJ, is patent nonsense. As for the suggestion that there may be a queue of elderly paedophiles at the job centre looking to brandish a (false) pardon in support of applications to work as school dinner monitors, Gyimah well knows that the pardon itself would be ornamental. Section 2(6) provides that a pardon under the Bill would not affect any conviction, nor give rise to any right, entitlement or liability. Even if a pardon was wrongly “appropriated” by someone who didn’t qualify, it would have no practical effect. The conviction would remain on the record until formally disregarded.

For my part, I see no principled or legal objection to the proposal by Crispin Blunt MP, whose observation appears unimpeachable:

“[The government’s] approach ties the pardon to the process of disregarding convictions from criminal records that already exists and would be extended by clause 3. There need not be such a link. The Government can be more generous. They can make a distinction between the powerful symbolic effect of the general pardon to men—some alive, many dead—and the mechanism by which individuals can benefit from the practical effects of a pardon through the disregard process. This, therefore, ensures that criminal offences that remain criminal offences today are not included in any practical consequences of the pardon. I know that the Minister will present a marginally different view and different concerns, but that discussion should be had at the Committee stage of this Bill. If the Government are not satisfied with the discussion in Committee then this Bill will not make progress towards becoming an Act.”

So why was Mr Gyimah so keen to ignore his Honourable Friend’s plea and obstruct the Bill’s passage? The only explanation one can infer is that of petty, partisan politics. A childish tussle over who gets their name in the history books. A decree from on high that it must be the Conservative party, not the SNP, to bask in the credit of bringing in The Alan Turing Law, regardless of whether the Sharkey amendment, well-intended though it undoubtedly is, fully addresses the injustices at stake. Given the choice, the government would rather appropriate a Lib Dem amendment and pass it off as their own than allow the SNP any credit for a Bill which may do the job better.

It is not right, as some have done, to level accusations of homophobia at Gyimah. But it is right to point out that the effect of his charge for vainglory may well be that a monumentally symbolic law is passed with the appearance of being a regrettable appendage to other, more worthy legislation. And that many thousands of men, who society accepts have done nothing wrong, are denied the pardon that might go some way to restoring their dignity.

An open letter to Jess Phillips MP and colleagues on Ched Evans

Dear Jess and colleagues

I read with interest your letter today to the Attorney General, in which you expressed some concerns about the operation of the law in the Ched Evans case, and made some suggestions as to how the law on using a complainant’s past sexual history might be changed. I hope you don’t mind me writing to you in this open letter format; Ched Evans has become, somewhat unintentionally, a source of particular interest for me over the past week, and I have some observations that I hope will inform your campaign.

I write, I should make clear, in the spirit of solidarity. You and I are on the same team. I agree wholeheartedly with what lies at the heart of your campaign; that is the fundamental right of complainants, particularly in cases of sexual abuse, to be treated with dignity and respect in criminal court proceedings. Giving evidence, any barrister will agree, is a uniquely difficult experience. When the subject matter is so personal and when questions and evidence invade the most private spaces of a witness’ life, it is plainly even harder, and the prospect of being asked about one’s sex life in court no doubt deters many victims of sexual abuse from coming forward. As a criminal lawyer who prosecutes as much as defends, I’ve seen first hand the distress that the trial process can cause to vulnerable victims of serious crime. It is therefore right that there are rules to minimise, as far as we fairly can, the discomfort of witnesses in the trial process. It is also right, I’m sure you’d agree, that we ensure that the right to a fair trial, enshrined in domestic and international law – perhaps most famously in Article 6 of the European Convention on Human Rights – is not disproportionately interfered with. The consequences of conviction, particularly in sexual cases, are as you know serious, and it is imperative that we avoid the injustice of wrongful convictions. It’s a balancing exercise, isn’t it? The rights of a complainant versus the rights of the defendant. We need to find the right balance.

I understand from your letter today to the Attorney General that you collectively feel that the balance is wrong. That it’s currently weighted against the complainant. Your fear is that the reporting of the decisions in the Ched Evans case might serve to deter victims of sexual abuse from cooperating with the authorities. Again, on that point, you and I share the same concerns. It is imperative that serious criminal allegations are properly litigated, and that complainants are not deterred by horror stories that they read in the media. I’m sure you agree that crucial to securing this is the need for accuracy. We don’t want newspapers printing half-truths and speculation. We don’t want knee-jerk whoops and hollers from people who don’t have all the facts. We want a climate of calm and informed discussion. Members of Parliament, with their public platform and media reach, are central in this regard. It’s with this in mind that I hope to assist, if I may, by responding to some of the points made in your letter.

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You start by expressing your “grave concerns for the precedent set last week in the case of footballer Ched Evans”. Now I have already offered some views on whether a precedent was in fact set (you can find them here if you’re interested), but I feel obliged to point out that last week was the trial of Ched Evans. It was at Cardiff Crown Court, and, as you know, no Crown Court can, as a matter of law, make a ruling that amounts to precedent. Only the High Court, Court of Appeal and Supreme Court can do that. The Crown Court merely followed the Court of Appeal’s ruling from April, when the CoA allowed Evans’ appeal and ordered a retrial after confirming that fresh evidence should be admitted. No doubt that is the point you are making, but I’m slightly concerned that, when you say things in your opening paragraph such as “precedent set by the proceedings and the judge’s ruling” and “the verdict and events in this case sets [sic] a dangerous precedent” – and even suggest that the jury “quashed” Evans’ conviction – you give the impression of not being entirely au fait with how the law works. Which isn’t a hanging offence – law is complicated. But I’m sure you wouldn’t want to leave the impression that you are confused as to the operation of the law, given how eager you all are to change it.

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You then discuss the particular provision of law that causes you worry. So that we’re all on the same page, we all know that section 41 of the Youth Justice and Criminal Evidence Act prohibits leading evidence or asking questions concerning a complainant’s previous sexual behaviour in sex cases. There are certain exceptions to this rule, and the Court of Appeal found in Ched Evans’ case that the complainant X’s previous sexual behaviour was relevant to the issue of consent and was “so similar” to the sexual behaviour of X at the time of the alleged rape that “the similarity cannot reasonably be explained as a coincidence“. It was therefore admissible under one of the statutory exceptions, found at section 41(3)(c)(i) of the Youth Justice and Criminal Evidence Act 1999. I’ve emboldened the (i) because in your letter you refer throughout to section 41(3)(c)(ii), a similar, but different provision of the Act which was not relevant in Ched Evans’ case. I don’t for a moment suggest that you haven’t read the Court of Appeal judgment, or the Act itself, particularly as you confidently accuse the Court of Appeal of falling into “serious legal error”, but I’m sure you would agree that attention to detail is important in this instance.

Because attention to detail, after all, forms the substance of your complaint about the present legislation. Your fear is that the Court of Appeal has, in interpreting s.41(3)(c)(i), adopted an interpretation of “similarity” that was far wider than Parliament intended, and that this opens the door to defendants and their lawyers applying gratuitously to cross-examine complainants on their sexual history. You also raise a concern about social media being used by defendants to solicit information about former partners, but I’ll leave that aside, if I may, as it’s tangential to the main issue you raise, which is the drafting of the legislation.

You state that the subsection “was intended to be used only for unusual sexual behaviour” [my emphasis], and quote approvingly the former Attorney General Lord Williams speaking in the House of Lords during the debate on the 1999 Act. You draw attention to his use of the words “strikingly similar” when discussing the application of what would become s.41(3)(c)(i), and from there build your argument that a test of “unusualness” ought be added to that of “similarity”, to ensure that similar but non-unusual sexual behaviour – such as in your view occurred in Evans’ case, would not be admissible to go to the issue of consent.

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Now, I’m a little concerned at some of what follows. You say, “the only other case where it is known that [previous sexual behaviour] has been allowed in under this subsection was quoted in the Evans case and concerned having sex upright in a children’s climbing frame”. This is a reference to R v T (Abdul) [2004] 2 Cr App R 32, which is certainly case in which this section was relied upon (and which the Court of Appeal ruled reflected an appropriate use of the provision), but to describe s.41(3)(c)(i), as you later do, as having been “successfully used only once in 16 years”, is misleading. The fact that the Court of Appeal  only referred in its judgment in Evans to one such case does not mean that it is the only such case. As an undergraduate law student could tell you, the Court of Appeal is not in the habit of listing every single authority that has ever been decided on the same point. In fact, it positively discourages advocates from relying on authorities unless they contribute something substantive to the argument at hand. A rudimentary search on Westlaw, the leading database of legal cases, brings up more Court of Appeal and House of Lords case law referring to section 41 than I can begin to count, so unless you have spent the past week carefully analysing the last 16 years of Court of Appeal decisions, your proposition is, with respect, astonishing. Not to mention that you seem to forget the unrecorded cases in the Crown Court in which this provision is successfully relied upon. This is not often, I must stress – successful section 41 applications are rare. But even I don’t suggest they are so rare as to amount to one single case in 16 years. I’m mystified as to why you make this bizarre claim.

If I were mischievous, I’d go further and ask how, in any event, this supports your argument – are you relying on how rarely-used this provision is to support your contention that it is used too much, and must therefore be changed? But to ask that question would be disingenuous on my part, so I won’t; your point is clearly that the Court of Appeal has widened the scope, and your fear is that unless Parliament acts quickly to narrow the provision, it will be abused by ruthless defence lawyers. I’ll address that shortly.

Before I do, though, I note that you throw in another prediction, that “The outcome in the case of Ched Evans will send the signal once again that if you can discredit a complainants’ [sic] sexual behaviour or draw comparisons with even commonly used sexual practice with events claimed to have taken place in a particular incident to somehow indicate evidence of consent“. To my eye, there’s a word missing somewhere as I can’t get that sentence to make sense, but I have to take issue with the use of the words “discredit a complainant’s sexual behaviour”. As you know, s.41(4) expressly provides that a court must rule evidence of sexual behaviour as irrelevant if the purpose, or main purpose, for adducing it is “for impugning the credibility of the complainant”. For you to ignore this, and to use phrases such as “victim blaming” is not a fair nor accurate representation of the current law.

But back to the scope of the provision. You say that the criterion that the behaviour be “unusual or bizarre” was “agreed by everybody involved in the House of Lords”. I’d respectfully suggest not everybody involved, otherwise it would appear in the legislation. It doesn’t. Parliament – Commons and Lords – decided on the test of “so similar that it cannot reasonably be explained as coincidence”. Nevertheless, let’s look at what you propose. You seem to offer two solutions. The first, which you describe as “the easiest solution”, is to insert the words “and so unusual” into s.41(3)(c)(i) as an additional, specified criterion. The second, in the next paragraph, is: “We believe that the use of a complainant’s sexual history should never be used in our courts as evidence of consent” [my emphasis]. This is quite something. This would amount to a repeal of the whole of subsection (3)(b) and (c). This would mean that, even in the climbing frame example that you appear to concede was an appropriate use of previous sexual history as evidence supporting a defence of consent, that evidence could not be admitted. I wonder whether you mean what you say. I hope this is an error. If so, I’d be grateful for clarification as to exactly what you are asking for. You’ll be aware, of course, that s.41(3)(c)(i) was only one of two gateways under which the Court of Appeal said the evidence in Ched Evans’ case was admissible, the other being s.41(3)(a) (where the evidence is relevant to an issue other than consent). In that case, the evidence was relevant not only to the issue of consent, but of Evans’ reasonable belief in consent. Your letter is silent as to whether you consider s.41(3)(a) to be in need to similar fundamental reform.

In light of this, when I return to your first, less drastic, “easiest” solution, inserting a further criterion so as to narrow s.41(3)(c)(i), I’m a little concerned that perhaps you haven’t given as much thought to the practical, moral and legal consequences of your proposal as you might want to. I don’t pretend that I have, either. Who has the time? With that in mind, I have an idea. I think we need a higher court to consider your suggestion. We want the most senior judiciary – more senior even than the Court of Appeal – to review the operation of section 41. They can have that extract from Hansard put before them. They can assess how section 41 as a whole, and in particular s.41(3)(c)(i) should be interpreted, so as to offer maximum protection to complainants, without infringing on the absolute right to a fair trial. And we should have the finest Q.C.s to argue the points before the court. If we’re talking dream teams, for the defence I’d go for Peter Rook Q.C. (the Judge who writes the definitive practitioner textbook on sexual offences law). For the prosecution, I’d have David Perry Q.C. –  the deputy High Court Judge who edits the judicially-endorsed criminal law practitioner textbook and represents the government in all the big cases at the European Court on Human Rights. And, as this is fantasy stuff, if I’m allowed a third party intervener, as this is an important point, I’d splash out on the country’s best-known, globally-respected public law Q.C., presently instructed in the Brexit proceedings at the High Court – Lord Pannick. Let those megabrains, and the finest judges in the land, dwell on the historical, moral and philosophical groundings of section 41, ingest the highest-brow academic theses on the subject and indulge in comparisons with corresponding legislative regimes in foreign jurisdictions. Let them consider not only the impact of domestic law, but international concerns, and the applicability of fundamental human rights as guaranteed in longstanding, cherished treaties. Having done so, they can give us a fully considered answer. And then we, and the Court of Appeal, will know what to do.

Agreed?

Good. Because, as luck would have it, that’s exactly what we had. In 2001, the House of Lords considered this whole issue in R v A  [2001] UKHL 25.  They particularly analysed the operation of the “similarity” test, and whether a “striking similarity” or “unusualness” was required. This was not a back-of-the-envelope job. The judgment stretches to 179 paragraphs. Having reflected on the purpose of the legislation, the need to protect the interests of vulnerable complainants and the importance of not depriving the defence of important, relevant evidence, they concluded that the “unusual” or “striking similarity” test was not correct. For one, Parliament in drafting section 41 had deliberately chosen not to use those words. But more importantly, such an interpretation would be so, so strict as to imperil the right to a fair trial. The Law Lords gave lengthy, detailed examples of the flaws of such an approach, of the injustice that would reign were defendants prevented from putting before the court relevant, probative evidence of a complainant’s previous sexual history. I won’t regurgitate them here, but they are all set out in the judgment. I urge you to read them (see Lord Hutton at [159], for instance). The Lords expressly considered whether such evidence should be”unusual” in order to clear s.41(3)(c)(i), and concluded in the negative. There had to be similarity such that it was beyond coincidence, but to say it had to be unusual was unduly restrictive. Lord Clyde met the issue head on, and said: “[T]he similarity must be such as cannot reasonably be explained as a coincidence. To my mind that does not necessitate that the similarity has to be in some rare or bizarre conduct.

The test, approved by the House, was summarised by Lord Steyn:

“The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded.”

The reference to the Human Rights Act appears because the House of Lords was specifically asked whether the operation of section 41 was incompatible with the right to a fair trial under Article 6 of the European Convention on Human Rights. And it was a close-run thing. Although they managed to swerve the ultimate question, the majority expressed serious concerns that section 41(3)(c)(i), as presently drafted, was “disproportionately restrictive” [per Lord Slynn], and “amounted to legislative overkill” [per Lord Steyn]. It was only by interpreting the legislation in the way above that they were able to say that the legislation was just compatible with ECHR standards. That test by Lord Steyn was the deal breaker.

And that is the test that the Court of Appeal in Evans followed. They cited R v A extensively, quoting the Law Lords at length in the judgment. And so accusing the Court of Appeal of ignoring the views of “everybody in the House of Lords” has a particular irony, no? The Court of Appeal, as required by law, followed the binding authority of the Appellate Committee of the House of Lords, rather than the non-binding words of the debating chamber.

Your complaint, therefore, I would suggest, is 15 years too late. A precedent was set, but not by Ched Evans’ case. That matters not, of course – you can still pursue your aim to amend section 41. But I’d ask, before you do, that you read R v A carefully. As you know, section 3 of the Human Rights Act 1998 requires courts to interpret domestic legislation in a way which is compatible with the rights set out in the European Convention on Human Rights. If legislation simply cannot be read compatibly – if there is an irreconcilable conflict – the court will issue a “declaration of incompatibility”. These are extremely rare, and obviously embarrassing to Parliament. It is the court saying: You have legislated in a way that fundamentally contravenes international human rights.

I’d suggest that it is clear from R v A that, if you were to succeed in your desired legislative reform to make section 41(3)(c)(i) even more restrictive than it presently is, there would be a declaration of incompatibility almost immediately. What you are calling for, if you’ll forgive the repetition, is a deliberate contravention of fundamental, international human rights.

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 And I wonder whether you are aware of this, as I am sure this is not the effect that you intend. As I said at the outset, we are aiming for the same things. Fairness to witnesses and fairness to defendants. Key to that, to return to where I opened, is openness, honesty and clarity of purpose when discussing sensitive, potentially inflammatory matters of public policy. I fear that your letter represents a heady rush to Do Something, without ample consideration of what that something should be, or even, upon calm reflection, whether it is needed. I’m not saying that the law is perfect, and there may well be scope for sensible reform. What you have proposed, with respect, is not it. Your letter suggests that you have not taken time to consider why the law operates in the way  that it does, and the wide-ranging implications of placing further restrictions on defendants adducing relevant evidence in their defence. “The easiest way”, as you call it, may not be a fair, or even lawful, way. I fear that, in the noble endeavour to safeguard the welfare of complainants, you have disregarded entirely the interests of the accused, some of whom, we must never forget, are wholly innocent. They deserve protection too.

I would urge you all, please, to read the case law I have set out. Please read the legislation. And please review your suggestion to the Attorney General, having reflected on the operation of the law as it is, not how you assume it to be. This is an emotive topic that inspires understandably raw passion in campaigners, but for that reason it is all the more pressing that cool heads, particularly in Parliament, prevail.

Yours sincerely,

The Secret Barrister