Some further reflections on the Ched Evans case

My slightly fuller legal analysis of the Court of Appeal’s decision to allow the complainant’s previous sexual behaviour to be adduced as evidence in the Ched Evans retrial can be found here at the New Statesman:

Ched Evans was a star player at Sheffield United.

For anyone interested in reading my previous post on a fancier, mainstream news website, it can be found reproduced here:

I News

The Mirror

The Sun

10 myths busted about the Ched Evans case

Footballer Ched Evans was today acquitted after a retrial of one count of rape. The jury at Cardiff Crown Court returned a unanimous verdict of not guilty, Mr Evans’ solicitor read out a statement on his client’s behalf to the gawping media on the court steps in the time-honoured fashion and, within seconds, social media duly exploded with more speculation, myths, distortions and unjustified fury than one might suppose 140 characters could contain.

Ched Evans was a star player at Sheffield United.

The facts, as reported, can be briefly summarised: Ched Evans was originally tried with a co-defendant, and fellow footballer, Clayton McDonald, in April 2012. On 29 May 2011, Evans and McDonald had sex with the complainant, X, in a hotel room. McDonald had met X on a night out, taken her back to the hotel room, and had alerted Evans that he had “got a girl”. Evans duly arrived, made his way to the room and, seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that neither man reasonably believed that she was consenting. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to 5 years’ imprisonment, of which he served the standard half before being released on licence.

That much, most people know. The further details, very few have bothered to acquire before forming judgment, firing off angry electronic missives and, in the cases of certain activists who should know better, offering vacuous quotes to the media.

So, in an effort to extinguish at least some of the stupid, herewith 10 myths we can squash at the outset:

1. So Ched Evans has been proved innocent, right?

Wrong. You’d be forgiven for thinking this, given that it was in the prepared statement read out by his solicitor, but Ched Evans has not “demonstrated his innocence”. That is not how our criminal justice system operates. It is not a means by which the truth of a situation or event is conclusively and fully determined. Rather the jury are asked one simple question – are you sure that the prosecution has proved its case beyond reasonable doubt (or, as juries are commonly instructed, so that you are sure)? “Not guilty” means just that. The jury were not sure that he was guilty. They may have decided that he was totally, utterly innocent, but we don’t know. All we know is that they considered the evidence, and were less than sure of his guilt. As I tell juries in every closing speech – if you think the defendant probably did it, he’s still not guilty. 

2. Well at the very least, the verdict means that the complainant has lied, surely?

No. Absolutely not. A not guilty verdict in most cases is insufficient to safely infer that the jury have concluded that a complainant lied (as opposed to the jury not being sure one way or the other), but in this case the facts suggest the opposite. As the Court of Appeal made clear in its judgment allowing the appeal, X has never asserted that she was raped. She has always simply maintained that she had no memory of what happened. It was the prosecution case – the case theory of the Crown Prosecution Service – that she was raped. The defence case was based not on the “usual” he said/ she said dispute over consent, but rather he said/ she can’t remember. There is absolutely no safe basis for suggesting she has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans’ acquittal.

3. Regardless, she has trashed his reputation and must be named and shamed.

That is extremely silly. And illegal. As a complainant in a sex case, she has anonymity for life. If you publicly identify her – including on Twitter – you will be prosecuted. It has happened before to friends of Mr Evans. It will happen to you.

4. How come she gets anonymity when he doesn’t?

Because that is the law. If you want to read my views on it, for what it’s worth, they are here. You may not like the law, but you should obey it. There’s some free advice.

5.This is a victory for rape apologists. She was blind drunk, he admitted not speaking to her before, during or after, and this shows that consent does not mean consent. 

No it doesn’t. It shows simply that the jury were not sure of both of the following limbs to the prosecution case, that need to be established to prove rape:

(i) That X was not consenting (because she was incapable through intoxication);

(ii) That Evans did not reasonably believe X was consenting.

Now based on the evidence, including the fresh evidence (see below), it might be that the jury thought X was consenting. And if they did, having heard all of the evidence, they are in a far better position to make that assessment than anyone not in the courtroom. Drunk consent, as juries are reminded by judges, is still consent. But it is equally plausible that they were sure that X could not consent, but were not sure, given her described behaviour, that Evans did not reasonably believe that she was not. Even if the jury thought that X was not capable of consenting, and that Evans probably didn’t reasonably believe that she was, he would still be not guilty – not because of a flaw in the law, or inherent misogyny, but because of Question 1 above, the burden and standard of proof. 

6. X was grilled on her sexual history, in contravention of the law. We’re back in the dark ages.

This was the analysis offered immediately post-verdict to the Guardian by Women Against Rape, a charity which should really know better, and Sandra Laville, the Guardian’s crime reporter. It has since been adopted and virally transmitted throughout the media. Questions about a complainant’s previous sexual history are not allowed in sex trials, unless a very strict set of criteria (set out in section 41 of the Youth Justice and Criminal Evidence Act 1999) are met. As the Court of Appeal explained (at [44]), these provisions are designed to counter the myths that “unchaste women are more likely to consent and less worthy of belief”. Yet X was cross-examined by the defence barrister over other sexual incidents – so what happened?

Well, in short, the law was followed. This point hinges mainly on “fresh evidence” that was not available at the first trial. Leave to appeal against Evans’ conviction was refused by the Court of Appeal in 2012, and Evans thereafter approached the Criminal Cases Review Commission with “fresh evidence” which had since emerged and which he claimed undermined the safety of his conviction. We now know that the principal nature of this fresh evidence was as follows:

  1. A man, O, gave evidence that, two weeks after 29 May 2011, he had been out drinking with X, and had engaged in consensual sexual intercourse, during which she instructed him to penetrate her vaginally from behind, shouting, “Fuck me harder”. 
  2. A second man, S, gave evidence that, on 28 May 2011, X had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, “Go harder”.

Evans’ case at trial was that X had acted in the same way on the 29 May 2011, encouraging him to penetrate her “doggy style” and using the words “fuck me harder”. This, it was argued, demonstrated that she was consenting, and also supported the reasonableness of his belief that she was consenting. 

One of the exceptions under section 41(3) allows for evidence of sexual history to be adduced, and questions asked of the complainant about it, where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is “so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be described as a coincidence”. In short, it is beyond coincidence, the defence argued in the Court of Appeal, that X would consensually engage in this specific type of sex act using these specific words on occasions around the time of 29 May, but that she was not consenting in the same circumstances on that date. This tends to show that, drunk though she was, she was sufficiently in control of her senses to give consent, and, furthermore, to give Evans the impression that she was consenting. This, the defence argued, is relevant to the jury’s assessment of whether she was consenting, and whether Evans reasonably believed that she was. 

The Court of Appeal, having considered other case law, agreed that in these unusual circumstances the fresh evidence ought to be admitted, and that X should be questioned on what the new witnesses had to say. Now it may be (I haven’t had the time to properly apply my mind to it) that a forensic analysis of the Court of Appeal’s reasoning will reveal a flaw, or an inappropriate leap, or even a misinterpretation of previous binding authority. It may be that the Court’s application of the strict criteria for agreeing to admit fresh evidence was arguably not met. Such things are not unknown. The Court of Appeal sometimes fluffs up. But unless you’ve read the judgment, and have carried out the legal analysis and the research, you’re not able to say, are you? So, I urge you, stop spreading speculation which is not only misleading and removed from fact, but likely to deter victims from coming forward. 

UPDATE: A special mention goes to the raft of claims in the press that this case sets a new, special precedent allowing the sexual history of complainants to be admitted in evidence in any future case, solely for the purpose of shaming the complainant in a dark return to the 1970s.  Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour. The newspapers, activists and charities propagating this false message are needlessly terrifying present and future victims, and will only risk deterring them from coming forward.

BONUS 11 and 12:

11. The evidence of previous sexual history was used to attack X’s credibility.

Dangerously untrue. The purpose for which the evidence was admitted was expressly limited, as per 6 above. Section 41 explicitly forbids previous sexual history being used for the purpose of attacking a complainant’s credibility. It was not admitted so that the defence could say, “She consented to sex with other men, therefore she must have consented to sex with this man”. It was admitted because of the specific similarities identified by the court which, it was held, were relevant to the issues of whether X consented and whether Evans reasonably believed that she was consenting.


12. The acquittal of Clayton McDonald at the first trial shows that Evans’ conviction was not safe in the first place.

I have heard this view expressed several times over the weekend, including by broadcasters. The argument runs as follows: “If the jury thought that X was consenting, and capable of consenting, to intercourse with Clayton McDonald, how can it be that within a matter of minutes she was incapable of consenting to sex with Evans?” The premise and conclusion here are both flawed.

Firstly, we do not know why the jury acquitted McDonald. Nor why they convicted Evans. So speculating about verdicts and questioning the jury’s reasoning is rarely helpful. But we do know, as per 5 above, that they were considering two separate issues for each defendant: (i) Was X consenting (and capable of consenting)?; and (ii) Did the defendant reasonably believe that X was consenting? And, from this, several permutations of findings of fact arise. One of these, which may have been the jury’s reasoning, was that X was too drunk to consent with either man. However the circumstances in which the two men met X are vastly different. McDonald met X, engaged her in conversation and took her to the hotel. Evans simply arrived once McDonald and X were having sex and, putting it starkly, joined in without saying a word. Thus the jury could have concluded that, while X was too drunk to consent, she may have given McDonald a reasonable belief that she was consenting, whereas Evans, not having the benefit of having spoken to X, had not established “reasonable belief” in consent before engaging in intercourse.

This point, largely academic now but being advanced by some as holding greater significance, was in fact considered by the Court of Appeal at Evans’ first application for leave to appeal in 2012. I leave the final word to the Lord Chief Justice who heard that application [my emphasis in bold]:


“The jury [at the first trial] was directed as follows: “When you come back …. you will be asked to return separate verdicts in respect of each of the two defendants. Accordingly, when you retire you must consider the case, that is to say the evidence for and against each of the two defendants separately. Whilst there is a considerable overlap in that evidence, the evidence is not identical, and whilst your verdicts may very well be the same in the case, they might be different. The important thing for you to remember is your approach to the case for and against the defendants must be considered separately.”

Given that direction, it was open to the jury to convict both defendants, to acquit both defendants, or to convict one and not the other defendant. That was the point of a joint trial in which separate verdicts were to be returned. It was open to the jury to consider that even if the complainant did not, in fact, consent to sexual intercourse with either of the two men, that in the light of his part in what happened — the meeting in the street and so on — McDonald may reasonably have believed that the complainant had consented to sexual activity with him, and at the same time concluded that the applicant knew perfectly well that she had not consented to sexual activity with him (the applicant). The circumstances in which each of the two men came to be involved in the sexual activity was quite different; so indeed were the circumstances in which they left her. Those were matters entirely open to the jury; there was no inconsistency.”


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Why we need legal aid for the worst people in society

As the digital revolution in the criminal courts affords all stakeholders (as we must now refer to ourselves) the bonus of many accumulated hours of waiting patiently for online forms to load and Wi-Fi signals to fade in and out of range, so I find myself with expanded time to ponder the weightier philosophical concerns of our age. By which I mean idly engage in Twitter debates with strangers.

In particular, I’ve noticed an increase in the number of people getting cross about legal aid. I don’t know whether this can be causally linked to the backing tracks expertly laid down by our new Lord Chancellor, adopting the smooth jazzy beats of her pre-predecessor Chris Grayling to create a steady percussive “legal-aid-bad, legal-aid-bad” filtering through her more recent public pronouncements. Or whether it is linked to the influx of legal aid scare stories pumped out of the Ministry of Justice’s favourite tabloid antagonists. Or whether, like the tide, anger over legal aid is perennial, dipping out of eyeline only temporarily before its inevitable resurgence in deference to the gravitational pull of the moon. Or, for those of the Douglas Carswell Academy of Astronomy, the sun.

But whatever the cause, it’s always dispiriting to see the Legal Aid Monster rear its mythical head, not simply because the call for its restriction threatens my narrow self-interest (DECLARATION: I have fed and clothed myself thanks to legal aid), but because it again reinforces how poor a job we in the system are doing in explaining to people why legal aid matters.

The Legal Aid Monster. Or Honey Monster. I forget which.

The Legal Aid Monster. Or Honey Monster. I forget which.

This morning I have enjoyed a spirited exchange of views with a Twitter user who I understand to be involved with or linked to the police, whose views on criminal justice I always enjoy hearing (particularly the anonymised Tweeters with the liberty to speak freely about the chaos in which they are forced to operate, such as @InspGadgetBlogs and @ConstableChaos). Quite often, we echo each other’s despair at the non-workings of the system; sometimes, police officers offer an insight into problems that barristers don’t see first-hand, but which inform the issues that we deal with in court. Today, by contrast, my partner and I came at the issue of criminal legal aid from the polar extremes. I think there’s not enough of it, and that people are often left without adequate (or any) representation; he thinks that there is far too much, and that it should be removed entirely from repeat offenders.

His view, I speculate, is one that might prove popular with people fortunate enough to have avoided the criminal courts. He is certainly not the first person to have expressed it to me. But it’s a view which, with respect, is based on a fundamental misunderstanding of the purpose and function of criminal legal aid.



Let’s start with the proposition that legal aid should be “for the needy”. A lot turns on that definition, but it is employed above in contradistinction to “career criminals with multiple convictions”. So I infer that by “needy”, the writer means “not guilty”. Or at least, “not guilty very often”. Which is problematic. For me, legal aid should be available to anyone whom the state accuses of a criminal offence. Like healthcare or education, it should be a universal civil right. You don’t choose to get ill or be born, so healthcare and education are provided by the state. You don’t choose to be accused of a criminal offence, so you should have the right to properly funded legal advice and representation when the state engages you in criminal litigation. Of course, some people invite criminal proceedings by committing the offence, but we only know that once proceedings have started and guilt has been admitted or established. I have no problem in principle with recovering the cost of legal aid and/or criminal proceedings from convicted defendants who have the means, but the flaw in the “legal aid for the innocent” argument is that you need the former before you can determine the latter.

Why do I say that? Surely, channelling the mantra of the magistrates’ court, a defendant knows whether he’s done it? Well, he may know that he’s done something. But knowing whether he’s committed the specific criminal act alleged by the state is something else entirely. He may know, for example, that he pushed past the shop assistant, nipped behind the counter, tried to grab money from the till but in fact grabbed a tenner that (unbeknownst to him) a customer had just put on the counter to pay for some cigs, and then grabbed the cigs and threw them to his mate (unwittingly striking him in the  eye and blinding him) before running off and accidentally knocking over a wonky display of uber-breakable glasses on his way out. But, as law undergraduates would be asked in this funhouse of an exam question, who is guilty of what? Is the first defendant guilty of theft? Burglary? Robbery? An attempt at one of those? If so, who is the victim? What level of assault is he guilty of, if any? Is he guilty of criminal damage if he didn’t mean to knock over the display? What of his mate? Is he guilty as a joint principal or an accessory? Or is he guilty simply of handling stolen goods? Or receiving criminal property? And what difference would the various permutations of charges make to his sentence?

My adversary suggested that a career criminal would know just as well as a lawyer which offence he has committed. My response was that his having attending a dentist once a year for 50 years does not qualify him to conduct root canal surgery. If I’d had more than 140 characters, I’d have posted the paragraph above. Criminal law is complex. It’s not something that can be absorbed by proximity. And it matters that it’s done right.

It matters because, whether you’re a nice or a nasty person, you should not be convicted of an offence that you have not committed. Not only because it offends fundamental notions of fairness and justice, but because once we accept wrongful convictions as an acceptable bargain in a cost/benefit trade-off, we endanger not just the individual but wider society.

If, as the commentator suggests, we remove legal aid from repeat offenders, we put them at the mercy of the prosecution agencies. It will not simply be a case of a defendant mistakenly pleading guilty to robbery (maximum sentence life imprisonment) when he is in law only guilty of theft (maximum sentence 7 years), but of defendants, unqualified and unable to present their own defence, being convicted of offences of which they are wholly innocent. Because the police do arrest entirely innocent people. And the CPS charge them with the wrong offences. And the only obstacle to a lengthy, undeserved prison sentence is a defence solicitor or barrister, challenging the prosecution case, testing the factual and legal correctness of the allegations and fighting their client’s corner. Without a lawyer, a defendant is often a sitting duck.

And if there were a system where the police, under pressure (as they are) to improve clean-up rates and buff their statistics, knew that charging repeat offender Big Dave with a burglary would see him being denied legal aid, whereas charging first-time offender Small Steve for the same offence would result in a defence lawyer fighting his case, there is a mighty incentive in place to pin the crime on the man with two arms tied behind his back, irrespective of the evidence. While most police would not, some would bend to the  temptation. Some already do. I see it every day.

We would thus roll into a system that encouraged prosecutorial malpractice. The wrong people being convicted, and the even wronger people – the real burglars, thugs, rapists – getting away with it.

Legal aid for career criminals isn’t a treat or privilege to personally enrich them. It is a safeguard that ensures, as best we can, that when the cell door slams shut, society has satisfied itself that the person inside is the person who is guilty of the offence. Removing legal aid in such cases may satisfy some primal urge to vengeance, or natural hostility towards those who repeatedly breach our social and criminal codes, but it makes us no safer, saves us no money, and, in the long run, would make our streets a far more dangerous place.

The prosecution of Gazza raises some troubling questions

I am going to break my cardinal rule and offer comment on a legal case without having read the judgment or sentencing remarks. My excuse is that the case in question was a guilty plea at Dudley Magistrates’ Court, and my exhaustive research suggests that the District Judge has not followed the modern fashion of making his sentencing remarks publicly available. Therefore it is armed only with what I accept at the outset are (inevitably) incomplete media reports that I step up to bat for Paul Gascoigne.


Gazza yesterday, on the day of trial, pleaded guilty to what was widely reported as “racially aggravated threatening or abusive words or behaviour”, which I assume to be a reference to an offence contrary to section 31(1)(c) of the Crime and Disorder Act 1998. This law provides for a racially aggravated version of the offence of using threatening or abusive words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to thereby be caused harassment, alarm or distress (section 5 of the Public Order Act 1986).

The facts, as reported, are that Gascoigne, while presenting “An Evening With Gazza” at a venue in Wolverhampton, said to a black security guard working at the show and standing in a dimly lit part of the auditorium, words to the effect of, “Can you smile please, because I can’t see you.” The audience were understandably unimpressed at this unwitting spontaneous tribute to Bernard Manning, and several walked out. The guard, for his part, felt sufficiently upset by what he perceived to be an attempt to humiliate him in front of a large audience to contact the police. A remorseful Gazza told the rozzers that he didn’t mean to upset the target of his quip, but it was too late – cue a decision to charge Wolverhampton’s newest failed comic under the legislation above, and, ultimately, his guilty plea, criminal conviction and sentence.

It is undeniable that what Gascoigne said was offensive. It is wholly understandable that his manifestly unfunny joke based on the race of the blameless security guard would have caused the man significant embarrassment (although, for context, the £1,000 compensation he was awarded by the court for his hurt feelings is the maximum that a victim of a moderate sexual assault could hope to receive from the Criminal Injuries Compensation Authority). One cannot ignore the cultural and historical context of such remarks, redolent of an era when marking the otherness of minority racial groups was not merely a source of ribaldry but a necessary precursor to normalised discrimination and violence.  As the District Judge said in terms when passing sentence, Gascoigne’s comments – and the suggestion advanced on his behalf in mitigation that such bantz are standard fare in football dressing rooms – betray an attitude ill-fitting with the progressive 21st century.

But – but but but but – it is not a criminal offence to hold or display attitudes ill-fitting with the progressive 21st century. It is not a criminal offence to give offence. It is not a criminal offence to tell bad jokes. Even racist jokes. And the application of the law in this case causes me some concern. Not least as the Judge, if his comments have been reported accurately, appears to himself have misunderstood the scope of the legislation. “As a society, it is important that we challenge racially aggravated behaviour in all its forms,” he observed. Which as a meme, is fine. But as an authoritative statement of law is simply wrong. “All forms” of “racially aggravated behaviour” are not prohibited by law. By social codes and contemporary standards of decency, yes, but the particular sanction of the criminal law is reserved for contraventions of accepted norms that Parliament deems sufficiently serious for the state to mark through impinging upon individual liberty.

The legislation sets out the conduct that carries the unique stigma of a criminal conviction. An offence under section 5 of the POA 1986 is itself a dubiously-deployed law, often the tool of first resort of police officers faced with low level disorder, but even its broad scope is limited as follows. To commit an offence, a person has to do two things:

  1. Use threatening or abusive words or behaviour, or disorderly behaviour
  2. Within the sight or hearing of someone likely to be caused harassment, alarm or distress.

After much effort by free speech campaigners, this law was modified in 2014 so as to remove the reference to “insulting” words or behaviour. Insulting someone is no longer a crime. To trigger section 5, your words or behaviour must be abusive or threatening, or your conduct disorderly. On the available information, we can discount that Gascoigne’s words amounted to threats or “disorderly behaviour”. Which leaves us with abuse. It is ultimately a matter of fact for a court whether words are abusive, but given that there is an explicit distinction between abusive and insulting, the former must amount to more than the latter. You can insult someone without being abusive. You can offend someone without being abusive. You can be unpleasant, without being abusive. You can, as the legislation provides, threaten someone without being abusive. And you can display racist views, without being abusive. You can, for example, posit in a lecture theatre that a certain race is genetically inferior, and politely or jovially back this up with cod science and debunked theories off the internet, causing all manner of offence, without being abusive. I labour the point, but it is important, because as offensive, insulting, demeaning, humiliating and upsetting as Gascoigne’s off-the-cuff remark may have been, categorising it as “abusive” does not, in my mind, work. There are words for what this was, but “abuse” isn’t one of them. “Abuse” contemplates a measure of ill-will; or as Merriam-Webster has it:

“language that condemns or vilifies usually unjustly, intemperately, and angrily”.

It is difficult to see how this applies to the reported conduct. And this leads into a second issue arising from the legal definition of “racially aggravated”, as provided by section 29(1) CDA 1998. Prohibited conduct is “racially aggravated” if:

(a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial […] group; or

(b)the offence is motivated (wholly or partly) by hostility towards members of a racial […] group based on their membership of that group.

In other words, there must be either objectively demonstrated hostility, or a subjective hostile motivation behind the offence. And again, I accept that something may have been lost in reporting or translation, but an offensive joke from a performer towards a person in an auditorium, based on race or otherwise, would not ordinarily be an automatic indicator of hostility. It can be, and much depends on delivery. But hostility is difficult to infer from what we have been told. Again, I emphasise, there is a distinction between expressing racist views and doing so with hostility. Both are socially unacceptable. Both are ripe for mockery, condemnation, shunning and re-educating. But only the latter brings the might of the state to bear upon an individual.

Gascoigne, by pleading guilty on the day of his trial, is deemed to have admitted that his conduct was both hostile and abusive, and he will no doubt have been fully and competently advised by his lawyers that he should not plead guilty unless he accepts those elements of the Crown’s case. But people do plead guilty for various reasons, not least the desire to avoid the stress or public exposure of a trial, notwithstanding whether the evidence truly supports the prosecution charge (and it is noted that his solicitor, when mitigating, still maintained that there was “no malice” behind the comments). Given that this is a man with a well-documented history of personal, medical and psychological difficulties, it is difficult not to wonder whether his vulnerabilities played a part in his decision not to mount a defence. At the very least, those vulnerabilities, and the apparent borderline criminality of his conduct, raise questions over whether the public interest was truly satisfied by dragging this damaged man through the criminal courts.

The criminal law has no business interfering in bad relationships

On 29 December 2015, to relatively little fanfare, a well-meaning but ultimately silly criminal law was brought into force. Today, some 8 months on, the Guardian reports that the number of people being prosecuted under this silly law is low, inviting remedy under David Allen Green’s so-prescient-that-it-surpasses-satire Something Must Be Done Act 2014.

The silly law itself could in fact have been enacted pursuant to the SMBDA’s untrammelled prohibitionist jurisdiction, satisfying the Act’s requirement that things that can be banned shall be “the things which a Minister of the Crown says are bad for us”. And what is bad for us, in this instance, is unpleasant, non-violent conduct in private relationships. Hence the birth at the eve of last year of section 76 of the Serious Crime Act 2015, creating a criminal offence of engaging in controlling or coercive behaviour in an intimate or family relationship, an offence which, it emerges, the police and prosecutorial agencies are not wielding with the vigour that campaigners had anticipated. Only 62 people have been charged under the legislation, as opposed to 20,000 for offences involving domestic violence over the same period.

The reason for this, I politely suggest, is twofold. First, this is a largely pointless law, re-criminalising already-criminalised conduct. And second, where it does provide for something new, it trespasses on territory over which the police cannot reasonably be expected to ride.


The Law Against Bad Relationships

The intention behind this law, I add as a rider, is noble. The genesis of many violent domestic relationships can be located in non-violent but controlling and coercive behaviours exhibited early on. If we can address the latter, we can hopefully reduce the former. So far, so unobjectionable. It’s the next step of the argument that trips up the logician – namely that the best way to address controlling or coercive relationships is to pass a shiny new law threatening a 5-year prison term for those whose relationships do not cut the mustard. Like a pissed-up Premier League chairman on transfer deadline day throwing good money after bad, Parliament convinces itself that unwanted, ingrained human behaviour can be eradicated if we just chuck another law at it and send the bobbies in. Or, in the official argot of the Guidance to the Act:

“This offence sends a clear message.”

As any lawyer will tell you, and as I’ve said before in relation to the utterly useless stalking legislation, creating criminal offences to “send a message” is the golden ticket to ensuring the enactment of thoroughly bad law.

The law

So what is the law? An offence under section 76 is committed by a person (A) where:

(a) A is or was previously in an intimate or familial relationship with another (B);

(b) A engages in repeated or continuous behaviour towards B that is controlling or coercive;

(c) That behaviour has a “serious effect” on B, in that it causes either (i) B to fear, on at least two occasions, the use of violence; OR (ii) serious alarm or distress which has a substantial adverse effect on B’s day to day activities; and

(d) A knows or ought to know that their behaviour will have that effect.

The offence carries the same maximum sentence (5 years’ imprisonment) as inflicting grievous bodily harm, in presumed observance of the (unreferenced) assertion in the Statutory Guidance that “a repeated pattern of abuse can be more injurious and harmful than a single incident of violence”.

The legislation is silent as to what constitutes “controlling and coercive behaviour”, but the Statutory Guidance Framework offers examples of “types of behaviour associated with coercion or control”.

And these are, well…problematic.

Some of these example “behaviours” are, as the Guidance acknowledges, already crimes. And crimes carrying a rather pricklier stick than section 76:

  • Threats to kill (Max sentence 10 years)
  • Child neglect (Max sentence 10 years)
  • Assault (Depending on injury, max sentence of 6 months, 5 years or life imprisonment)
  • Criminal Damage (Depending on quantum of damage, max sentence 6 months or 10 years)
  • Rape (Max sentence life imprisonment)

As for the rest of the list, it stands as a glistening example of the problems inherent in attempting to regulate the intangible, indefinable dynamics of other people’s relationships. Highlights include:

  • Repeatedly putting [a person] down such as telling them they are worthless;
  • Threats to reveal private information;
  • Financial abuse, including control of finances, such as only allowing a person a punitive allowance;
  • Monitoring a person via online communication tools;
  • Monitoring their time;
  • Preventing a person from having access to transport or from working.

These are all, in certain contexts, indicators of toxic, damaging and unhealthy relationships that will spiral into violence. They are also, in certain contexts, the hallmarks of toxic, damaging and unhealthy relationships that won’t. Relationships that will sail their ghastly, destructive, hateful course through to natural completion without accelerating towards physical altercation. Relationships which, in a liberal society, people must be free to pursue and to endure, as long as that is their choice. Neither section 76, nor the police officer charged with enforcing it, has any way of predicting which route a shit relationship is going to trail. Whether it is going to turn violent – in which case, the criminal law should intervene to obviate objective harm – or whether it will remain simply miserable. If the latter, lovely as it would be if relationships were universally sprinkled with mutual respect, courtesy and affection, it is no role of the state to criminalise all deviations from the Richard Curtis romantic ideal, on the statistically vague hypothesis that some of these will turn violent. And to suggest that the police should be more proactive in identifying “coercive and controlling relationships,” and lining them up for prosecution, is broadening the ever-expanding role of overstretched and under-resourced police officers beyond law enforcement and into the arena  of relationship analysis.

If this sounds like a counsel of despair, that is not the intention. Rather it is an attempt to recognise the limited scope of the criminal law in modulating complex, intimate human relationships. If the government believes that it could “save” more women from potentially violent relationships by intervening to “fix” them when they are merely “controlling and coercive”, then that is surely the preserve of social workers, not police officers or prosecutors, and not least in a climate where police and prosecutorial resources are so depleted that cases of serious domestic violence are collapsing on a daily basis. If you try to legislate against every inappropriate personal interaction, you end up with a fuzzy mess like section 76, criminalising everything and nothing.

That, more than anything, might explain why only 62 prosecutions have been pursued. Key to good law is certainty and consistency. ‘Don’t use violence’ is a legal imperative that everyone understands. ‘Make sure you don’t excessively monitor your spouse’s time, and ensure that you don’t give them only a punitive financial allowance’ is the kind of sentiment which no doubt makes sense to well-meaning campaigners, but offers little clarity to the average Josiah or Josephine. Or to the poor sod of a police officer expected to enforce it.


UPDATE: A number of people have pointed out a rather glaring topical omission from this discussion, given that this is the week of Helen’s attempted murder trial in The Archers. Helen, of course, was the longstanding victim of controlling and coercive behaviour at the hands of her husband, Rob, culminating in her stabbing him with a kitchen knife. She also provides an instructive example of the inadequacy of laws such as section 76. The difficulty in Helen’s case, and indeed the difficulty with many cases of domestic abuse, is that Helen for a long time did not consider herself to be a victim. Had concerned friends and family contacted the police, attending officers might have observed an isolated, dominated and deeply unhappy woman, bereft of self-worth living with a controlling, manipulative man, but without Helen’s recognition of her circumstances, and her willingness to support a prosecution, there would have been no chance at all of successfully prosecuting Rob under section 76. And here lies a further problem: Any criminal lawyer will tell you that the greatest obstacle in prosecuting allegations of domestic violence is securing the lasting cooperation of the complainant, for obvious and often understandable reasons. The power dynamics in abusive relationships are such that, even if the police manage to obtain a witness statement from a complainant at the time of an alleged assault, she will often have withdrawn support for the prosecution before trial. While allegations of assault can occasionally be successfully tried without the support of a complainant – through evidence of third parties or medical evidence of injury – cases such as will be brought under section 76 will inevitably require the complainant to give evidence not just of the facts of the coercive behaviour but of the personal impact upon her. In short, a successful prosecution under section 76 will usually require two things – (i) sufficient self-esteem and awareness of one’s circumstances, and (ii) unwavering support for a criminal prosecution – that for all too many victims of domestic abuse, for entirely understandable reasons, are absent. This too may explain why few successful prosecutions emerge under this legislation.

If MPs are going to attack judges, they should at least understand the law

I don’t want defending the indefensible to become my default position. At least not outside the courtroom. And I’m well aware that what I’m about to say amounts to a defence of a section of society whom very few – particularly among lawyers – would leap to support. And that, following the reaction to my previous blog, there’s a risk of perceived contrarianism creeping into these posts.

But a word must be said sticking up for our judges. At least in this following, narrow, context.

Today, UKIP MP Douglas Carswell took to Twitter to retweet a nonsense article by Daily Telegraph leader writer Philip Johnston berating Mr Justice Hickinbottom. He, for the uninitiated, is the High Court Judge who this week ruled that the Labour Party National Executive Committee (NEC) breached its contractual obligations towards its members through the imposition of the 6-month “cut-off” designed to prevent a large number of party members who joined post-January 2016 from voting in the upcoming leadership election.


The thrust of the article, endorsed by Mr Carswell, was that this being a party political matter, the courts had no place determining it. Johnston stormed:

“In his judgment, Mr Justice Hickinbottom said he accepted and fully endorsed the proposition that “the courts must be careful not to interfere in political matters”. He should have stopped there and declined to hear the case.”

This too is the view of Mr Carswell, who in less temperate words declared:



I’ve asked Mr Carswell to define his understanding of judicial activism, but he has declined, preferring instead to simply insist that there are cases which he is unable to name which disprove the point I’m about to make. Which is this. Judicial activism is a term commonly used to criticise judicial decisions where a judge is perceived to be straying out of the legal arena and into politics. Going beyond his or her Judicial Oath to apply the law and instead shaping it in his or her own image. And understandably this is something of which many people are wary. Carswell’s position appears to be that, in agreeing to hear the claim, the Judge is guilty of straying into politics. And not just a bit guilty, but “foolish” and “appalling” for having done so.

But here’s the problem: This is not judicial activism, you ninnies. Carswell and Johnston are both naughty boys who have failed to do the most fundamental research into how the legal system works. It’s a shame, because if they’d bothered to read the judgment of the case that they both deem themselves qualified to comment upon, they’d have seen that early on, at paragraph 8, the Judge takes the trouble to explain the entirely non-contentious legal principle that the Labour Party, as an unincorporated association, is subject to the law of contract, and therefore an alleged breach of contract (in this case, the terms of membership) is a matter firmly within the jurisdiction of the courts. The Judge even helpfully provides the long-established line of case law confirming this. When I say it’s not contentious, I’m not underplaying it – there was never a suggestion, not even by the experienced Queen’s Counsel appearing for the NEC, that the court shouldn’t hear the case. And that’s because all involved, all those who know the law, know that it’s beyond moot. The court has jurisdiction, so the judge has to hear the case. It’s not a matter of discretion. This isn’t “judicial activism” where Mr Justice Hickinbottom has rolled up his sleeves, winked at the gallery and giggled, “I know I shouldn’t but…”. It’s a judge applying the law. As he swears an Oath to do. He can’t refuse to apply the law of the land because it might upset some twit of a Telegraph hack and an MP who, even when proved wrong, clings to his crumbling life raft of ignorance rather than issuing the simple apology that would lift him back on to dry land. To do so would, in fact, be an act of the very judicial activism that these twin nincompoops deplore.

This may seem a small thing to get upset about, but it’s important. I don’t mind Carswell saying that party politics should sit outwith the jurisdiction of the court. I don’t agree, but he’s free to say it and to call for change. But that’s not what he’s done. He’s attacked a judge as “foolish” and “appalling” for following the law as it stands. And as an elected representative, Mr Carswell, if he’s going to throw around words like “appalling” and “awful”, should at least have the common decency to ensure that his factual premise is correct. Here, as he has embarrassingly demonstrated, his ignorance of the law is dwarfed only by his arrogance in refusing to accept that his legal understanding might not match that of the many many lawyers who have lined up today to correct him. Like a low-budget UK Donald Trump, Mr Carswell has fired off a barrage of abuse at an entirely blameless target, and rather than say sorry would prefer to obfuscate, block and repeat. There’s something appalling and awful about this little tale, alright, but it’s certainly not the judiciary.

And my offer to Mr Carswell remains open. If I’m wrong, and the court could have refused to hear the claim, I will happily apologise. It will be my misunderstanding. The cases that he claims to know which show that the courts can disapply the law when it suits can be posted in the comments below.

What else was Byron Burger supposed to do?

So, here’s an unpopular opinion to release into the world:

I don’t see what Byron is supposed to have done wrong.

The gourmet burger chain – previously thrust into the media spotlight as George Osborne’s late-night indulgence of choice – has enjoyed 24 hours of social media’s most vitriolic virtue signalling after 35 of its migrant workers were found to lack the right to work, having, it appears, secured employment through the use of falsified identity documents.

The circumstances in which this came to light are unclear, but in any event Byron cooperated with the Home Office, and consequently the workers were, on 4 July this year, arrested and detained. Some have subsequently apparently been deported.

Not a Byron burger

Not a Byron burger

The exact circumstances have not been confirmed, but a number of outlets have suggested that Byron hand-delivered their workers to the relevant enforcement and prosecutorial authorities by organising a “training day” at which, instead of PowerPoint slides of Double Bacon Cheeses and courgette fries, they were greeted by immigration officials. Byron has released a statement as follows:


But as with all such modern tales, we are beyond truth. What matters, the narrative splutters, is that the big mean corporate baddie collaborated with the feds and sold out its poor, exploited workforce, some of whom had devoted years of faultless service, in what must only be characterised as an act proximate to a hate crime, and must be duly sanctioned in the court of public opinion, boycotted by all right thinking people, its CEO dragged naked through the streets of Shoreditch smeared in burger sauce and pickle juice.

Piling in with the rallying cry of the intellectually dispossessed, deputy leader of the Greens, Amelia Womack, opined that “the bosses at Byron should be utterly ashamed of themselves for turning these people’s lives upside down”.

To which I, as an inhabitant of those rather less excitable courts of law, would respectfully say this:

Your outrage is mystifying. Or, at best, utterly misdirected.

Byron, like any employer – nay, like any company or individual based in this country – is required to comply with the law. It hurts to start with such a facile point, but needs, it appears, must.

And the law says at least two rather important things in this context. Firstly, that it is a criminal offence – punishable by an unlimited fine and up to 5 years in prison – for a person or a company employing someone knowing or having reasonable cause to believe that the employee is disqualified from employment by reason of their immigration status. That’s not Byron’s company handbook talking – that’s sections 21 and 22 of the Immigration, Asylum and Nationality Act 2006, as enacted by our democratically elected Parliament. If you find out that you have accidentally employed someone without the right to work, and you continue to employ them, you are committing a crime.

Also the position, with reference I’m afraid to that same unfashionable commitment to “the rule of law”, is this: those workers, if employed on the basis of fraudulent identification documents, may have committed criminal offences contrary to section 4 of the Identity Documents Act 2010. And that’s before you throw in the Fraud Act 2006 for good measure.

Now there may be an explanation. This could be a misunderstanding. Some documents may in fact be genuine. Or it may be that these workers, like many clients I have represented, will say that they themselves were hoodwinked by chancers in their home countries who sold them what they believed to be a genuine “right to work” package. In which case every sympathy must be extended to them. But the fault for that state of affairs is not Byron’s.

There may, of course, be an alternative narrative that has plainly escaped those who say, with a straight face, that Byron should have simply tipped off their workforce and let them loose into the night, rather than dob them in to the pigs. Putting aside that those Byron managers who did so would potentially find themselves before a Crown Court for perverting the course of justice, this bold suggestion starts with an enormous, unforgivable assumption about the history of the people concerned. Many undocumented migrants arrive on our shores as a result of human trafficking and exploitation. Where they are packed, twelve, thirteen, twenty to a bedroom in a small terraced house by their unscrupulous, violent gangster sponsors, who take each week’s wages as protection money and exploit them physically, financially and sexually every single day.

None of us has a clue whether that applies to any of those workers. But – and I sound my “unpopular defence of immigration laws” warning klaxon – that is one of the mischiefs that immigration laws, and the requiring of documentation and the right to remain and work, are designed to combat. That’s not a fig leaf – that is fact. I have defended and prosecuted enough of these tragic cases to tell you with authority that there are a good many people whose lives have been saved by immigration enforcement officials. And one or more of those could have been among the Byron workers.

But, and this is really the point – we just don’t know. Any or none of the above might apply. All we know is that Byron were informed of circumstances which caused them to believe that they, and their workforce, were at risk of having committed a criminal offence. And they cooperated with the authorities. The only alternatives, of turning a blind eye, or of sending the workers out into the world with a nod and a wink, may have satisfied the appetites of the Twitter hordes unaware of and unwilling to acquaint themselves with law or reason, but the reality is that in so doing Byron would have been passing the problem on to the next employer to be defrauded and exposed to prosecution, or, even worse, releasing vulnerable, exploited human beings back into the grasping hands of those who would do them harm. As well as, of course, exposing Byron and its lawful employees to risk of prosecution and, ultimately, imprisonment.

This is not to defend the principle of immigration controls. You want to campaign for global freedom of movement under the banner that “people aren’t illegal”? Sounds good to me. But we have rules that have been enacted by Parliament. And if you don’t like those rules, your recourse is the democratic process. Not ill-thought-out hate campaigns and playground chants of “tattle tale” against people or companies who, far from “making people illegal”, are simply obeying the law.


UPDATE: Matters have progressed since this post was first published. There have been vigilante acts of vandalism, threats and abuse directed towards Byron for their perceived complicity in enforcing inhumane immigration law, but as yet I have not heard a single sensible explanation for the rage. I would recommend the comments below (in particular Oliver’s), and summarise the position as I see it:

1. Byron employed workers who were unlawfully working. That is agreed. The Home Office’s position is that Byron were duped by false identification documents when they conducted the checks required by law when employing a person. I can tell you from professional experience that fake ID documents can nowadays be of very high quality. It is easy to get a NI number with these documents, and there is nothing unusual about tax and NI having been paid on their behalf. It happens in most cases I see. If Byron hadn’t checked properly, or if they were obviously fakes, it is to me implausible that the Home Office would not make an example of them by prosecuting.

2. All we know of the circumstances of the Home Office becoming involved is what Byron and the Home Office have said, namely that it was the HO who contacted Byron first. Legally, therefore, Byron’s options were immediately singular. From that first point, Byron was under a legal obligation to cooperate. It had to supply its workers’ documents, and, when the documents were confirmed as fake, from that point onwards a criminal investigation was in effect active. If Byron had at any point tipped off the workers as to HO suspicions, the individual doing the tipping off would be liable to prosecution for perverting the course of justice, or at best assisting an offender. Any non-cooperation with what was not only an immigration but also a criminal matter risked not only Byron’s commercial reputation, but the liberty of the managers or staff who obstructed the investigation.

3. The “above and beyond” argument. By trapping the workers in the way reported, Byron acted as an executive arm of the state. They didn’t need to. They could have told the Home Office that they were not willing to facilitate the peaceful apprehending of their workers. This is the common refrain. And yes, they could have done. But to what effect? To do so would have been to invite a  raid, unpleasant and disorderly for all staff and customers, to the same ultimate effect. It’s not as if Byron could have tipped off the workers, as per 2 above. One perspective is “above and beyond”. The other is “agreeing to the most peaceful resolution of the inevitable”.

4. The only interpretation of events that justifies anger, that I can see is this: Byron deliberately hired illegal workers and shopped them in as part of a Faustian pact with the HO to avoid prosecution. This would be outrageous. But there is simply no evidence that this is the case. I would suggest that this theory appears odd on all counts – why would Byron risk prosecution by knowingly hiring unlawful workers at market rate? Why would the HO pass up the deterrent benefits of prosecuting a well-known employer for the sake of catching 35 people? – but even if plausible, there is no evidence. By all means, people can question and investigate and report their findings. But there is no safe or rational basis for concluding, as many seemingly have, that this is what has happened.

5. Anyone calling for Byron to defy an unjust law in order to take a “principled stand” against the (very real) injustices concerning immigration laws and the treatment of detainees, is calling not just for a rich company to risk a fine, but for actual people – shift managers, waiting staff – to risk prison. That is what your call amounts to. And if you feel so strongly that immigration laws call for this sort of self-sacrifice and courage, you should go do it yourself, rather than volunteer low-waged migrant proxies to take that risk for you. And it is certainly inexplicable to throw cockroaches at people when they don’t.