Why Criminal Justice Matters: Live Event at the RSA

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

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

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

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

 

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Bashing burglars and the law of self-defence

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

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

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

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

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

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

 

The law of self-defence

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

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

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

Let’s break down what this means.

“A genuine belief that force is necessary”

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

 

“Reasonable force”

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

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

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

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

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

 

Householder self-defence

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

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

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

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

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

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

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

 

Arrest

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

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

 

The charging decision

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

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

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

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

 

Conclusion

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

Your questions answered on the John Worboys judgment

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

John-Worboys-003

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

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

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

For more information, please see the CrowdJustice page here:

 

What’s in a name? Anonymity and me

“There are plenty of other practising lawyers who put their names to their opinions. Why should you be different?”

This, entirely fair, question has been put to me in several interviews I have given in the run-up to the release of my book. It often tops or tails chains of correspondence between my publicist and intrigued media outlets, and has in some cases proved a stumbling block for those displeased with my response and insistent on my revealing my wholly uninteresting real self as a precursor to the grant of publicity.

But despite its ubiquity, I have still not yet properly got a handle on answering the question. At least not as succinctly and pithily as I would like. This is almost certainly a fault of my own solipsism; of my failure to appreciate that just because I instinctively know why anonymity (or pseudonymity, as I suppose it is) is so important to me, it is not necessarily self-evident to others. No doubt I haven’t properly considered how best to explain to an understandably curious audience why, unlike other barristers brave enough to speak out under their real identity, I insist on keeping the mask on. Why, as it is properly wondered, I should be different.

So today, the date of publication of my first pseudonymous book, seems as good a time as any to try to explain.

Put simply, anonymity buys me the ability to speak plainly, frankly and without fear or favour about the problems that I see in the criminal justice system, in a way that I don’t think I could under my real name. It respects and protects the identity and privacy of the individuals concerned where I draw on real-life examples of cases from professional experience, none of whom have asked for the attention that I might otherwise unwittingly direct their way. And it protects, albeit not inures, against any perception that I am tempering or modifying my opinions out of a desire to preserve my professional reputation or my income stream. I have no need to pull punches or defer to authority when mounting my high horse to decry the ruin of criminal justice, nor do my colleagues or chambers have to fear or suffer the consequences of my chippy activism. By the same token, when I speak out in partial defence of the system – for example, to stand up for a judge being unfairly demonised in the tabloids – it is clear (I hope) that I do so without a dog in the fight. There is no benefit to me in adopting any particular stance on any given issue. I will not be a Secret QC on the back of my writing, and I have even fewer pretensions at becoming The Secret Judge. When I cheer the valiant, Sisyphean efforts of overworked CPS caseworkers or underpaid defence solicitors, I do so not in the hope of sourcing sympathetic new instructions, but because they damn well deserve the praise.

My hope is that anonymity preserves, even bolsters, my independence in a way that I think is difficult to achieve writing under one’s real byline. Even if you are as scrupulously fair and even-handed as most named legal commentators undoubtedly are, treading onto any politically sensitive topic forces them to contend in the first instance with a barrage of irrelevant and groundless accusations of self-interest, bias or unchecked privilege. By taking my identity off the table, I hope to keep the focus on the issues, rather than the speaker. I am exactly what I say on the tin – a jobbing junior barrister; nobody that anyone will have heard of, certainly not (as I’ve heard suggested) Keir Starmer (!), nor indeed anyone with any sort of public profile. And that – my mundane existence as a practising criminal barrister – is the only fact which I think a reader requires to engage with what I write. Most people who interact seem to accept that premise; that the only information of relevance is that I am a junior barrister who specialises in criminal law, and therefore have a vague grasp on the subject matter I’m dealing with. Being able to identify and attach a non-descript name and face to my posturing will not assist anybody’s understanding of the arguments I offer or the opinions I spout. If the former are misguided or the latter half-baked, they will fall on their demerits, rather than crumble under the weight of bogus assumptions.

More than this, anonymity allows me to discuss cases handled and things seen and heard with a frankness which I fervently hope is helpful to a non-legal audience. When asked how it feels to defend an alleged paedophile in whose guilt you secretly believe, I don’t have to rely on the abstract; I can speak openly from personal experience to demystify and discuss the issues raised by that question, without any fear of the involved parties being identified. I can walk a lay reader through the criminal process, describing the flaws and pitfalls by reference to things I have seen, without feeling obliged to sugar coat or descend into generalities. The driving purpose behind this blog and the book is to try to open up the dusty legal system to the public who owns it. Anonymity, when I was starting out three years ago, struck me as the simplest and easiest way to achieve this.

And finally, the last reason I offer up is perhaps, to me, the most immediately important. My desire, from the day I wrote my first blogpost, has been and remains simple: to be able to continue to practise in a job which, for all its frustrations, I love, while drawing attention to the problems in the system. This arrangement allows me to do just that. While I would hope that, in the event of my unmasking, there would be sufficient recognition of my good intentions to allow me to continue to practise, it would be naive to suppose that I could carry on writing as well. At least one would have to fall. I would, in reality, either slink back with sun-burned wings into a muted practice; or walk away from the Bar and contemplate another life altogether. That is a choice which I know that ultimately I may be forced to make. But it’s not one I want to. Not while I still hope I have a contribution to offer to both.

Legally Blonde: The Live Tweet

In the final (for now) instalment in my relentless flogging of pop culture, Friday night was spent Live-Tweeting the legal cinematic classic, Legally Blonde. If you want to find out how it went, click on the Tweets below.

 

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Love In The First Degree: Analysing the legal misconceptions of Bananarama

This weekend’s Twitter thread, which has received a surprisingly warm reception (even from Bananarama themselves), is as below. It is important, it struck me as I sat stationary on a snow-stranded train, that we always hold (girl) power to account and challenge legal myths wherever they arise, however difficult that may be.

🎵And the judge and the jury, they all put the blame on me

They wouldn’t go for my story, they wouldn’t hear my plea…

Only you can set me free, coz I’m guilty, guilty as a girl can be

Come on baby, can’t you see, I stand accuuuused of love in the first degree🎵

[THREAD]

There are many legal inaccuracies and errors that Bananarama fall into here. I think it’s important that we address them.

 

Firstly, Bananarama erroneously assume that the judge AND the jury are judging the merits of the defence. This is simply not true. Judges in Crown Courts, even Courts of Love, are judges of law alone. The verdict is for the jury.

 

The ONLY way this would stand up to scrutiny is if the judge had ruled, as a matter of law, that a particular defence was not available, and directed the jury in such terms. Absent further detail, we cannot assume that this happened.

 

Secondly, the existence of a jury indicates that there is a contested trial to determine guilt. HOWEVER…

 

…Bananarama confess – openly – that they are not only guilty, but guilty as a girl can be (by which they are presumably accepting a degree of culpability placing them at the top of the range of the highest category on the relevant Sentencing Guideline).

 

In such circumstances, it is nonsensical for them to express surprise or complaint at the jury rejecting their “plea” (by which they presumably mean defence). They are to blame for admitting guilt in front of the jury and for wasting scarce court resources on a needless trial.

 

If Bananarama simply wanted to contest the *factual basis* of their admitted guilt, then they should be having a trial of issue (“Newton hearing”) in front of a judge alone. Their advocate should have advised them as such. This is plainly negligent.

 

In any event, there are live criminal proceedings and Bananarama are imploring the key witness (“only you can set me free”) to intervene to prevent the consequences of their admitted criminality. Bananarama are shamelessly attempting to pervert the course of justice.

 

In these circumstances, it is frankly unsurprising that, at the start of the song, Bananarama are “locked in a prison cell”. The judge was clearly right to withhold bail given the substantial grounds for believing that Bananarama would interfere with witnesses if granted bail.

 

In practical terms, Bananarama would be properly advised to spend less time imploring the complainant to help them, and seek advice on the merits of an appeal against conviction. That they haven’t is almost certainly down to savage legal aid cuts depriving them of representation.

 

My view, for what it’s worth, is that such an appeal would have merit. Because, and I have reread ALL my law books to make sure I’m right on this, there is NO criminal offence in England and Wales of “love in the first degree.” This is simply a common tabloid misconception.

 

That the CPS charged this case at all is a damning indictment on its chronic lack of resources and obsession with targets above all else. Far better, I would advise, to concede the appeal and bring new charges for the perverting the course of justice (above).

 

In conclusion, nothing about this Bananarama trial sits right with me. While we must be calm and not jump to conclusions without knowing the full facts, I am deeply troubled that something has gone badly wrong. Or that Bananarama’s legal research is not what it should be.

[ENDS]

 

Next Friday (assuming the trains are still not moving): “Was Meatloaf being incited to commit a criminal offence, and therefore well within his rights to refuse to do *that*?”