Announcement: Free Representation Unit

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Those who read these pages, follow on Twitter or have waded through the book will know that access to justice is a cause about which I’m prone to making a fair bit of noise. The rule of law only works if individuals have the means to enforce their rights in the courts, which is only possible if they have access to proper legal advice and representation. Not everybody, of course, can afford to pay privately for legal services, in the same way that most people cannot pay for private healthcare. This is why legal aid is often talked about in the same breath as the NHS and other pillars of the post-war welfare state. It should act as a safety net, ensuring that everybody has the ability to enforce their legal rights and that nobody is excluded from the justice system for lack of money.

Regrettably, as well we know, legal aid does not evoke the same degree of public sympathy or affection as healthcare or education. As a consequence, it has been politically possible for governments of all stripes to strip away legal aid from large swathes of the population, including many of the most vulnerable among us. The result is that often people are forced into a Sophie’s choice between representing themselves in complex legal proceedings, or simply not even trying. To lean on my favourite healthcare analogy, they are invited either to operate on themselves or just accept that they won’t get treatment.

This justice gap is why the work of pro bono legal charities is so vital. Like with food banks, we would rather live in a society where such charitable endeavours were not needed; however, for those with nowhere else to turn, pro bono units provide the safety net where the state would let people fall. And this is why I am delighted and honoured to announce that I have joined the Free Representation Unit (FRU) as a patron.

FRU was set up as a charity in 1972, and specialises in social security and employment law, providing free legal representation to clients unable to afford to pay for lawyers. Its representatives are volunteers – many of whom are trainee lawyers – and it is reliant on charitable grants and donations to fund a team of staff running the office and supervising the 500 cases it takes on each year.

At present, FRU is seeking funding to support disabled people, particularly those with mental health issues, through social security appeals tribunals, with a focus on Personal Independence Payment (PIP) appeals. A crowd-funding campaign is launched this week, with an initial target of £2,500.

If anybody reading is able to make a donation – however small – it would be hugely appreciated. I am kicking things off with a donation of my own, and we have 30 days to reach our target.

Thank you x

 

FRU says:

“Any legal case is a daunting prospect for anyone, but particularly for our clients if they suffer from mental health conditions. Our recent work has seen us act for a victim of criminal violence with a split personality disorder, a client who suffers from post-concussion syndrome following an attack during the Tottenham Riots, and a victim of a violent rape now suffering from severe PTSD.

 Supporting these claimants as they re-live such traumatic events makes a huge difference to their experience of litigation and their chances of success. This means they get money to cover the costs of their disability. For our clients, the lack of Legal Aid means that they can’t afford to be represented.

 The Chairman of the Work & Pensions Parliamentary Select Committee recently said that “Claiming a benefit to which you are legitimately entitled should never be a humiliating, distressing experience. Government must move now, faster, to make this right.”

 Research with people with legal problems recently found that “The process of trying to pursue justice without legal aid added extra physical and mental strain, which may exacerbate existing physical and mental health issues or cause new ones. This was particularly noticeable for disabled participants, who found the stress of trying to resolve a welfare issue with inadequate advice made their health condition worse”.

 The benefit of legal advice is clear: people who are represented are successful in 65% of cases whereas those who are unrepresented are successful in only 45% of cases. We help our clients to get their voices heard so that decision makers truly understand their situation.

 If a tribunal agrees with the client’s benefit appeal they could receive between £22 and £145 per week in social security payments. For disabled people on a low income this could mean the difference between not leaving the house and having a life or not having to choose between heating and eating.

 By supporting FRU you would contribute to a charity that makes a clear difference to the lives of some of the poorest and most vulnerable in society.

 We represent on average two clients in a tribunal haring every working day of the year. Over a year one legal casework supervisor can support hundreds of volunteers. £2500 will enable us to pay a legal supervisor for a whole month to support our volunteers to do a great job. Raising more would keep our service going for longer.”

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Why is the dangerous Anjem Choudary being released onto our streets?

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Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.

Guest post: Some calculations on the new Advocates’ Graduated Fee Scheme

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In the latest of a series of guest blogposts looking at the consultation on the proposed new Advocates’ Graduated Fee Scheme, a contributor has offered the following calculations and comments.

 

Dishonesty

For dishonesty offences (category 6), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  • in band 6.1 by around 5% (meaning, for example, that the basic trial fee for a leading junior would increase from £12,000 to £12,675);
  • in band 6.2 by just over 50% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £11,440).; and
  • in band 6.3 by around 40% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,825).

 

Band 6.1 is frauds over £10,000,000 or 20,000PPE. Band 6.2 is frauds over £1,000,000 or 10,000PPE. Band 6.3 is frauds over £100,000.

I have defended one Band 6.3 (that became a 6.2 by virtue of PPE) in 8 years and do 6.1s and 6.2s based on monetary threshold every NEVER. Those increases are also for leading juniors –  I have never been led never mind led anybody else. The frequently encountered frauds are category 6.5 (< £30,000) and are currently worth £325 on a G plea at PTPH; £450 if you manage to persuade the court to sentence on another day.

 

Drugs

For drugs offences (category 9), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  •  in band 9.1 by just over 15% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £8,700); and
  •  in band 9.4 by just over 30% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,625).

 Band 9.1 is 5000 PPE or 5kg of cocaine or heroin (for when you’re representing Scarface or the Taliban), 10,000 ecstasy pills (10,000 Es? The “Madchester” scene was the early 90’s, Shaun Ryder…) or 250,000 LSD tabs (not even Keith Moon, The Jimi Hendrix Experience and the Rolling Stones combined used that much. When did you EVER do an LSD case? 1968?). This increase is also for leading juniors only.

Band 9.4 is 1,000 PPE or 1kg of heroin or cocaine (more likely to be encountered by practitioners in your regional conspiracy cases).

However the standard drugs cases we regularly encounter that have less than 1000 PPE and involve a Kinder Egg’s worth of class A or < 40kg of cannabis (yes, <40 kg) attract no increase above the current £400 for a guilty plea and sentence on the same day.

 

Junior advocates

For junior advocates, both the junior bar and solicitor advocates, we propose:

  • increasing the basic fees for trials, guilty, and cracked trials in standard cases (band 17.1) by almost 20% and the daily refresher fee by more than 15%.

 Thanks, so my guilty plea to having an offensive weapon/blade or either-way burglary now gets a massive £55 increase on a guilty plea at PTPH from £275 to £330.

  • increasing the basic fees for trials, guilty pleas, and cracked trials in a range of other offences bandings, including bands for dishonesty offences (category 6) burglary and robbery offences (category 11), firearm offences (category 12), other offences against the person (category 13), exploitation and human trafficking offences (category 14) and public order offences (category 15)

 See Table 7, Table 8 and Table 9 on page 28 for the proposed increases to cases we encounter more often:

  1. Section 47 ABH, threats to kill, s.20 GBH/wounding (all category 3.5) currently attracting a basic fee of £600 or £300 for a guilty plea at PTPH; proposed increase to basic fee of £675 or £337.50 for a guilty plea at PTPH.
  2. Frauds of <£30,000 (6.5) or <£100,000 (6.4) currently attracting a basic fee of £650 and £750 respectively; proposed increase to £800 and £1000 respectively.
  3. Indictable burglary offences (Category 11.2 only; currently a basic fee of £675 or a guilty plea at PTPH attracting £340; proposed fee of £750 or a guilty plea at PTPH attracting £375 [G plea being 50% of the basic fee – see page 15 paragraph 60].
  4. “Other offences against the person” (Category 13) is your false imprisonment/kidnap; currently basic fee of £1300, guilty plea at PTPH of £650; proposed increase to £1460 or £730 for a guilty plea at PTPH.

 

Moving several offences (harbouring an escaped prisoner, the intimidation of witnesses, the intimidation of witnesses (sic), jurors and others, and assisting offenders) out of the standard cases band at 17.1, and into the offences against the public interest band at 8.1, with the basic fees for trials, guilty pleas, and cracked trials in these cases increasing by more than 100% as a result

 Good, but how often do you do these? Just one example; In 2016-2017, the annual NOMS Digest figures showed only 4 escapes from prisons, 3 from NOMS prisoner escorts and 8 from contractor escorts making a pool of 15 possible opportunities for somebody to commit the offence of harbouring an escaped prisoner that year unless they had a vacancy in their back bedroom for somebody who remained at large from the year before…

 

Increasing the fee for ineffective trials from £300 to £350, an increase of more than 15%

 Some courts are renowned for clinging onto trials even when the wheels are coming off. We have all experienced courts that are willing to proceed in absence of the Defendant or force the Crown, when they are unable to secure witness attendance, to accept pleas to lesser offences all to avoid an adjournment and the consequential effect on MOJ statistics.

 

Increasing the fees for appeals against conviction by 20% (which would mean, for example, an increase from £250 to £300 for a junior).

 Good news for new starters.

 

And finally, we propose implementing a 1% increase to all fees for cases with a Representation Order granted on or after 1 April 2019

 £1.25 increase to my sentence fee (assuming I don’t get sentenced the same day I plead) and not enough of an increase to cover the cost of a cup of tea from the court canteen.

 

Guest post by Francis FitzGibbon QC: A response to Michael Turner QC on Advocates’ Graduated Fees

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Another former Chair of the Criminal Bar Association, Francis FitzGibbon QC, writes in response to this week’s guest post by Michael Turner QC.

 

This is my reply to Michael Turner QC’s post. He doesn’t seem to have read the first ‘Monday Message’ by Chris Henley QC, the current Chair of the Criminal Bar Association.

Dear Mike

Having known you for over 30 years, since I was a pupil and you were a kind and generous junior criminal tenant at Cloisters, I am saddened and angered by your mean-spirited and ill-informed attack in the Secret Barrister’s blog on your successors as Chairs of the Criminal Bar Association. It calls for a public as well as a private reply, so I am going to put this letter in the comments below your post.

You resort to gratuitously and deliberately offensive personal comments: like a bad advocate or a third-rate politician, masking the feebleness of your argument. And you don’t even have the courage to name those who you regard as having failed the profession. ‘Willing to wound but afraid to strike’ sums it up.

On the substance, such as it is, you are perpetuating a false and dangerous ‘stab-in-the back’ narrative. The Bar leadership achieved genuine progress in the drawn-out AGFS negotiations. For all your fighting talk at the time, by how much were legal aid fees increased when you were Chair of the CBA in 2012-13?

You complain that there was no judicial review of the AGFS proposals: what decision or action by MOJ do you regard as being so flawed that a JR would have been feasible, let alone successful? I don’t see how an increase in the budget, following years of negotiation and an agreement, could be susceptible to judicial review. Have you considered the costs implications for the CBA and its members?

There was no question of the Bar taking an unfair advantage over the solicitors: remember that HCAs will benefit from the increased fees and their firms still retain the benefit of claiming litigator and advocacy fees for the same case.  If this is your attempt to curry favour – good luck.  Their battle with MOJ was different from ours. They were faced with an actual cut – we had a redistribution of a stable budget to negotiate, and ended up with an increase. The reason for the proposed LGFS cut was that the inflation of PPE claims by reason of increased volumes of ‘pages’, and the Napperdecision, blew a big hole in MOJ’s budget. Very different considerations applied to AGFS, as you should know.  If you can think of a principled basis for continuing to use page counts as a basis for calculating fees, I’d like to know what it is. There is no reason – and you give none – for reading the MOJ’s failures over LGFS across to AGFS. You are too smart to subscribe to infantile conspiracy theories – I hope.

You also need to understand that this was a negotiation – the sort of thing that your models in the trade unions have been doing for decades, in the interests of their members. That means give and take. You may regard compromise as a dirty word, but that’s what responsible people do.

Your apparent prescription – belligerence, divisiveness, sub-Churchillian rhetoric – is ill-suited to such negotiations. The Bar rejected it in a democratic vote – narrowly but nonetheless. The arguments on both sides were exhaustively laid out before a sophisticated electorate. Pragmatism won the day. Demanding the resignation of the current leadership, after the vote and three days into their terms of office, is nothing short of ridiculous.

No one says the settlement is perfect or the last word on the subject. We will see the true impact of the new scheme in the coming months, and we should not prejudge it. Your intervention – nasty, ill-informed, but mercifully short – does nothing to advance the Bar’s cause. And despite your disclaimer, it stinks of sour grapes.

I hope you will think better of what you have written. It is unworthy of you. You risk becoming an embarrassment to yourself.

Yours ever

Francis

Guest post by Michael Turner QC: Advocates’ Graduated Fees – Where are we now? Up the creek

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Michael Turner QC, former Chair of the Criminal Bar Association, writes regarding the new Advocates’ Graduated Fee Scheme. 

 

Much of what I would wish to say has been more ably put by Polly Toynbee in this recent article.

However, now that the cuts under the new Advocates Graduated Fee Scheme are beginning to bite, it is worth looking at what they actually mean. I set out only some examples of payment under the new scheme below:

 

Multi-handed Violent Disorder – up to 10,000 ppe + CCTV evidence

Brief fee: £750 (including all prep, cons and day 1 of trial)

Refresher: £400

 

Multi-handed conspiracy to GBH – up to 10,000 ppe + CCTV evidence

Brief fee: £1,000 (including all prep, cons and day 1 of trial)

Refresher: £500

 

Multi-handed conspiracy to Kidnap/False Imprisonment – up to 10,000 ppe + CCTV evidence

Brief fee: £1,300 (including all prep, cons and day 1 of trial)

Refresher £500

 

Child Cruelty/Child Neglect – up to 10,000 ppe, regardless of complexity, regardless of expert evidence on both sides

Brief fee: £750 (including all prep, cons and day 1 of trial)

Refresher £500

 

s20 GBH; Threats to Kill – up to 10,000 ppe + CCTV evidence

Brief fee: £600 (including all prep, cons and day 1 of trial)

Refresher: £325

 

Assisting an offender (even when your client is on the indictment in a murder trial but only charged with this offence) – up to 10,000 ppe + CCTV evidence

Brief fee: £550 (including all prep, cons and day 1 of trial)

Refresher £300

 

Some of these fees might increase modestly when the scheme is revised this autumn but these are the fees that we will currently receive if we accept these cases. Maybe more importantly, it was a mantra of the latest action that in taking the stand we were, we wanted to save the legal aid system as a whole. That cry was dropped almost as soon as it was uttered and did certainly not feature as part of the negotiations.

Whilst we were making our own ridiculous deal with the Government and thinking yet again we had got one over on our sister profession, they were taking the Government to Court. And guess what? They won.

Whilst we have given away the 10,000 page count they retain theirs.

Why did the Bar Council or the CBA not take judicial review proceedings, one may well ask. I am afraid I have not got the answer. I have asked them to publish any advice they had on the matter, however. That presupposes they sought any. To many of us this now an open wound as we were crying out that no negotiations could be continued and certainly not concluded until the Government revealed their figures. Well once again, when that stance has been challenged the court has wholeheartedly agreed.

In times gone by, when our leaders had made such a hash of things they would have hung their heads in shame and resigned. Taken the honorable way out. Not a bit of it; they prance around like the Emperor in his new clothes.

Do our venerable leaders have any idea how to rectify what has been given away so readily ? I expect that the answers will come on the back of a postage stamp, if at all.

This is not written as an “ I told you so piece”, but more to lay down the gauntlet to those who now lead us to suggest where we might acquire a paddle, more accurately two 90 horse power engines.

 

Michael Turner QC

The Ben Stokes trial: what went wrong?

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This is one of those posts carrying a title which I genuinely had no intention nor desire to write. It is also, I make plain at the outset, rampant clickbait, as I, like 7 billion other people who were not present for the duration of the court proceedings, am in no position at all to say what (if anything) “went wrong” in the Ben Stokes trial. However, given the ongoing social and tabloid media commentary and speculation, it seems that some general pointers on the law in this area would assist. I’ve done my best to piece together the facts from various outlets, but the standard caveat applies throughout: this analysis is based on the inevitably limited picture available.

 

What is the case about?

England cricketer Ben Stokes was on Tuesday 14 August 2018 acquitted by a jury of affray following a week-long trial at Bristol Crown Court. A co-accused, Ryan Ali, was also acquitted of affray. A third defendant, Ryan Hale, was acquitted of affray last week at the end of the prosecution case when the judge ruled that there was “no case to answer” against him.

The facts, put simply, are that in the early hours of 25 September 2017, violence broke out outside a nightclub in Bristol. Video footage captures part of what took place, and shows a male said to be Ben Stokes throwing punches at two other males. In the course of the incident, Ryan Ali was knocked unconscious and suffered a fractured eye socket, fractured tooth, cut eyebrow and bruising. Ryan Hale was also rendered unconscious and suffered concussion.

The prosecution case was that Ben Stokes was the aggressor and was “enraged” after a doorman refused to allow Mr Stokes and his teammate Alex Hales into a club. Ben Stokes was said to have homophobically mocked two men, Kai Barry and William O’Connor, immediately before the violence broke out.

Ben Stokes’ case was that he was in fact standing up for Mr Barry and Mr O’Connor after they were verbally abused by others. He said that Ryan Ali had then threatened him with a bottle, and that his actions thereafter amounted to lawful self-defence.

The prosecution conceded that Ben Stokes may have been acting defensively initially when threatened by Ryan Ali, but asserted that he “quickly became aggressor”.

Ben Stokes’ teammate, Alex Hales, was also present, and it was said by Stokes’ barrister that Hales could be seen on the CCTV kicking and stamping on Ryan Ali during the melee. Alex Hales was not charged with any offence.

The prosecution relied upon the evidence of a doorman and an off-duty police community support officer (PCSO), as well as video footage.

Mr Barry and Mr O’Connor were not called to give evidence by either side at trial.

 

What is affray?

Affray is a public order offence, contrary to section 3 of the Public Order Act 1986:

3 Affray.

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

Affray is an “either-way” offence, meaning it can be tried either in the magistrates’ court or the Crown Court before a jury. In the Crown Court, the maximum sentence upon conviction is 3 years’ imprisonment.

As we can see, an offence of affray involves the use or threat of unlawful violence, but is concerned not so much with the impact of the violence upon the individual concerned, but with the impact upon the passing public. The gravamen is the fear that this type of violence causes to bystanders. It is therefore quite different to an assault.

The Crown Prosecution Service guidance on affray provides a handy summary of the relevant law. There are quite a few interesting features. For example, the requirement that a notional “person of reasonable firmness” be put in fear for their personal safety means that not all violence will qualify as an affray. It’s possible for someone to assault another person in such a way as would not cause a bystander to fear for his own personal safety. Affray tends to apply in cases, such as this, where there is a brawl or outbreak of (often drunken) violence that members of the public might reasonably fear could spiral.

 

What is self-defence?

Self-defence is a complete defence to affray. I’ve written about self-defence in some detail before, here. For now, I’m going to copy and paste the relevant bit:

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 from 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.

 

How was Ben Stokes acquitted? The CCTV shows he was clearly being violent

That may well be so. But the question for the jury wasn’t “Does the CCTV show that he was throwing punches?” The question was whether the offence in law was proved.

To this end, the court has published the “route to verdict” provided to the jury. These are now produced by judges in most Crown Court trials, and are exceptionally useful. Frankly, I have no idea how juries of bygone years were supposed to decide complex cases without them. They usually take the form of flow charts or numbered questions, and are tailored to the issues in the particular case. Judges usually show them to the advocates before the document is given to the jury, so that the parties can offer observations.

Here is the route to verdict:

As can be seen, there were many theoretical routes by which a jury might have acquitted. We have no way of knowing why the jury in this case did.

 

Why wasn’t Ben Stokes charged with assault?

Many, including this honkingly poor Daily Mail piece, have been asking this question. It emerged that, on the first day of trial, prosecuting counsel Nicholas Corsellis applied to amend the indictment against Ben Stokes to add two counts of assault occasioning actual bodily harm (contrary to section 47 of the Offences Against the Person Act 1861), in relation to the injuries suffered by Ryan Ali and Ryan Hale. The judge refused, commenting on the “very late” nature of the application and the fact that Treasury Counsel (the most senior barristers instructed by the Attorney General) had been specifically asked to advise on the appropriate charge at the beginning of proceedings and had alighted upon a single count of affray against Ben Stokes as sufficient. The judge did say that, had the prosecution applied to add the counts to the indictment at an earlier stage, there would have been little problem; however, leaving it to the day of trial was not right. The judge also said that in his view such an amendment was “not necessary”.

Should Ben Stokes have been charged with assault occasioning actual bodily harm? Certainly Mr Corsellis thought so, even if Treasury Counsel (named by the Mail as Alison Morgan) initially instructed to advise on charges at the outset of the case thought otherwise.

The Crown Prosecution Service charging standards would appear to support Mr Corsellis. These specifically address the issue of when a public order offence and an offence against the person should be charged:

Charges Relating to Violence Against the Person

Charges of Assault that are appropriate to link to those of Public Order are set out below.

[…]

If there is sufficient evidence to justify a charge under sections 2 or 3 of the Public Order Act and an assault contrary to:

  • section 18 OAPA; or
  • section 20 OAPA; or
  • section 47 OAPA

It will usually be appropriate to charge both. It will not normally be appropriate to charge common assault (section 39 of the CJA 1988) together with an offence contrary to sections 2 or 3 of the Act.

Sometimes, prosecutors will charge tactically. It may be easier to prove affray, or the view may be taken that a conviction for assault is unlikely to add materially to the sentence for an affray, and the Crown may reasonably consider that adding a charge of assault would unnecessarily complicate the trial.

Without knowing the advice offered to the CPS, we cannot say why the decision not to charge s.47 assault was taken. But the expectation in such cases is that it usually should be charged. The CPS has released a brief statement saying:

“The CPS keeps cases under continual review. We selected the charge of affray at the outset in accordance with the code for crown prosecutors. Upon further review we considered that additional assault charges would also be appropriate. The judge decided not to permit us to add these further charges. The original charge of affray adequately reflected the criminality of the case and we proceeded on that.”

It may be – we don’t know – that the evidential position shifted in some way that meant that a charge of assault occasioning actual bodily harm was suddenly viable in a way it was previously not. By way of example, if the CPS suddenly come into possession of medical evidence proving injury, they might properly say that they are only at a late stage in a position to support a charge of ABH. But the reports of the judge’s ruling suggest that it was simply that the new prosecution barrister formed a different view to his predecessor. This is in itself not an an uncommon occurrence – because of the unpredictability of criminal court listings, trials overrunning etc, cases are often “returned” to a new barrister the night before trial, who may then advise the CPS in completely different terms.

 

Would a charge of assault have resulted in a conviction?

We don’t know. The newspapers have largely assumed this as a given, but if the tenor of the defence to the affray was self-defence, then my educated guess would be that a similar defence would have been run in relation to any assault charge. And while we don’t know how and why the jury acquitted, there’s a reasonable inference that if they couldn’t be sure that the prosecution had disproved self-defence on the affray, there would be no difference to the verdict on an assault charge.

It’s also worth noting that despite excitable commentary from the Telegraph that charging two counts of s.47 assault would have left Mr Stokes facing thirteen years in prison, this would require the judge upon conviction passing the maximum sentence for each charge (5 years for each ABH and 3 years for the affray) and directing them to run consecutively to each other, something which has never happened in the history of English and Welsh criminal law. Convictions for assaults on top of affray would have added a little by way of sentence, but not lots. The maximum sentence for ABH may be 5 years, but the range set by the Sentencing Guidelines (which judges are required by law to follow) is up to 3 years, and judges do not simply pile sentences on top of each other. They apply what is referred to as “totality”, and ask themselves “what is the overall sentence that justly reflects the total offending in this case?” In this case, the all-round sentence would, in my experience, be unlikely to be much more for the presence of two assault charges.

 

What about the missing witnesses? Why didn’t the prosecution call them?

Barry Kai and William O’Connor were speaking to the media in support of Ben Stokes immediately after the acquittal, raising the reasonable question of why they weren’t witnesses in the trial. The CPS has said:

“The evidence of Mr O’Connor and Mr Barry was disclosed to the defence but it was not deemed necessary to call them as witnesses in the case.”

Reading between the lines, it appears that whatever these two witnesses told the police, it did not help the prosecution case. This is why their “evidence” (by which the prosecution presumably means their witness statements or other informal accounts given to the police at the scene) was disclosed to the defence, rather than relied upon as prosecution evidence. This is far from unusual in affray cases, especially where most witnesses and participants have been drinking. Prosecuting an affray trial can be fiendish, as you have to pick out the bones from a pack of incoherent and inconsistent witness statements and decide how the prosecution puts its case. Usually you will rely upon the account of the most sober and independent witnesses, and disclose the remainder to the defence as “unused”. We know that the prosecution had two such ostensibly reliable and sober witnesses – the doorman and the PCSO – and if their evidence contradicted Messers O’Connor and Barry, the latter two may well have been considered unreliable.

It is notable that, despite their warm words for Mr Stokes, the defence did not choose to call them as defence witnesses. Plainly whatever they had to say was not considered sufficiently reliable or helpful to Ben Stokes’ case for them to say it on oath before the jury.

 

Why wasn’t Alex Hales prosecuted?

Based on what has been reported, this is a reasonable question. The defence told the court – and the police officer in charge of the case agreed in evidence – that the video footage showed Alex Hales kicking and stamping on Ryan Hale and Ryan Ali. Mr Hales was interviewed under caution by police but ultimately not charged. He apparently told attending police officers that he had only arrived at the scene after the police had, which does not sit easily with the footage. There is no explanation for the decision not to charge him beyond a bare statement from the police that “Early investigative advice was sought from the Crown Prosecution Service in relation to Alex Hales’ involvement in the incident and a decision was subsequently made at a senior level to take no further action against him.” 

 

Was the Ben Stokes verdict right? 

I don’t know. I didn’t hear all the evidence. And, unless you are a juror, reporter or member of the public who attended every day of trial and absorbed all the evidence, you don’t know either. You have an incomplete picture and should not be commenting.

 

So the verdict means that Ben Stokes is innocent, right?

He is presumed innocent, yes. Proven innocent, no. A “not guilty” verdict means only that the jury was not sure of guilt. This is what juries are told up and down the land ever day – if you are not sure of guilt, you must acquit. Look back at that route to verdict for the many ways in which a jury could have reached a not-guilty verdict. They may well have all agreed that Mr Stokes’ actions were most definitely reasonable self-defence. Or they may have found themselves almost sure – but not quite – that he was the aggressor and/or had gone way over the top. That is the spectrum of an acquittal  – sure of innocence right through to very nearly sure of guilt. That is why we say that an acquittal should never, by itself, be heralded as “proof” of innocence. The presumption of innocence remains intact – no criminal legal consequences now flow – but anyone relying on an acquittal as proof of innocence is reaching for a meaning that the verdict does not carry.

 

This case is a shambles, right? Heads should roll

Some of the criticism has been completely unfounded and misdirected. It was not, for example, a “blunder” for the Crown not to call Mr Barry and Mr O’Connor; unless it can be shown that their evidence was reliable and would have supported the prosecution case, it would be entirely right and proper for the Crown not to rely upon them.

However, there are understandable questions over Alex Hales’ role, and why he was not charged. Some detail from the CPS beyond the usual rote “The evidence did not support a charge” would help in cases such as this.

It is also arguable that charges of assault should have been preferred at an early stage as well as a charge of affray; although there is no evidence that this would have made a difference to the verdict.

Furthermore, and significantly, a not guilty verdict, we must remember, is not a conclusion that a case should never have been brought.

The test for prosecuting is: Is there a realistic prospect of conviction? If there had been no case to answer against Ben Stokes, the judge would have made the same ruling at the close of the prosecution case as he did in respect of Ryan Hale: he would have directed the jury to immediately acquit.

Guest post by Ryan Dowding: A Little Help From My Friends – Why Sajid Javid’s letter may have broken the law

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I’m delighted to host this guest blogpost by Ryan Dowding. Ryan holds a postgraduate degree in International Human Rights Law and kicks off his pupillage this October. He also teaches human rights in schools and colleges through the Your Rights Matter initiative and runs the law and politics blog Arguably. He tweets at @DowdingRyan.

The United Kingdom has for decades set its face firmly against capital punishment. However, this historic opposition was cast into doubt last month when a secret letter, from our Home Secretary to the Attorney General of the United States, was leaked to The Telegraph. Its effect would have been to render the UK complicit in the trial and possible execution of Alexanda Kotey and El Shafee Elsheikh – two members of ISIS captured, in February 2018, by US-backed Kurdish fighters in Syria. In what follows I set out some background information, before turning my attention to the legality of Sajid Javid’s controversial correspondence.

Background

Kotey and Elsheikh were part of an ISIS cell called ‘the Beatles’ by their captives because of their distinctive British accents. Despite growing up in London, they were stripped of their citizenship after their alleged involvement in the execution of a number of individuals, including journalist James Foley. These crimes were barbaric and warrant no sympathy. It is therefore clearly right that the two stand trial and, if found guilty, face harsh punishment. It is also right that those with probative information about their role cooperate with the US authorities in bringing them to justice. It was to that end that Sajid Javid dispatched his notorious letter on 22 July 2018.

The Home Secretary acceded to a request for Mutual Legal Assistance (‘MLA’) – i.e., the provision of material and assistance for use in the prosecution of the two men by the US. His letter referenced the need to deliver justice for the victims’ relatives who had voiced “demands that both detainees face the rest of their lives in prison”. This was a clear allusion to a poignant Op-Ed in the New York Times by Diane and John Foley, Marsha and Carl Mueller, Shirley and Arthur Sotloff and Paula and Ed Kassig – the parents of four victims of the so-called Beatles:

[W]e agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court […]

Instead, they should be tried in our fair and open legal system, or in a court of international justice, and then spend the rest of their lives in prison. That is what our children would have wanted.

It appears from the final paragraphs of his letter, however, that the Home Secretary was merely paying lip service to their wishes as he concluded that there were “strong reasons” not to seek assurances from the US that the two would not be executed if convicted. When the letter was leaked, the Home Office faced immediate backlash from human rights organisations, followed by threats of legal action. As a result, it temporarily suspended cooperation with the US. However, a spokesperson said that the government “had acted in full accordance of the law and … the government’s longstanding MLA policy”.

But what policy was the Home Office referring to? And was it in fact acting within the law?

 

The UK and Capital Punishment – A Potted History

Since at least the early 19th century, Parliament had incrementally hacked away at the death penalty, precluding its use in relation to an increasing number of specific offences. During the 20th and 21st centuries, however, a number of crucial steps were taken which eventually resulted in total abolition. The introduction of the Murder (Abolition of Death Penalty) Act 1965 did away with the punishment in respect of those found guilty of murder. Further piecemeal reforms followed, including the outlawing of the penalty, in 1971, for the obscure offence of arson at a naval dockyard and in respect of treason with the Crime and Disorder Act 1998. The final nails in the coffin came when the UK introduced the Human Rights Act 1998 and signed and ratified Protocols 6 and 13 to the European Convention on Human Rights (‘ECHR’) in 1999 and 2004. Cumulatively, they required the UK to abolish the death penalty in all circumstances. Our government has since produced a strategy document codifying the “longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.

It is perhaps unsurprising against this backdrop that leading human rights barrister, Ben Emmerson QC, wrote in The Guardian that the UK’s “opposition to the death penalty has … hardened into a constitutional principle”.

Home Office Guidance

I now return to the policy purportedly relied on by the Home Secretary. There are two which warrant consideration:

  1. Requests for MLA in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom (12th edition) (‘MLA Guidelines’); and
  2. Overseas Security and Justice Assistance: Human Rights Guidance (‘OSJA Guidance’).

The MLA Guidelines can be dealt with briefly. The document simply, at page 15, informs the rest of the world that the UK may refuse to provide assistance where there is a “risk that the death penalty will be imposed for the crime under investigation”. The more crucial document for our purposes is the OSJA Guidance which offers guidance to UK officials providing security and justice assistance overseas. Pursuant to that aim, a number of human rights risks are identified, including the possible use of the death penalty. The Guidance then sets out how to mitigate those risks. When the Home Secretary suggested there were ‘strong reasons’ not to seek assurances for Kotey and Elsheikh, his language mirrored the wording set out at page 22 of the OSJA Guidance. That section explains that although assurances should be sought where there is a risk of the death penalty being imposed, where they are not forthcoming, or there are ‘strong reasons’ not to seek them, the Foreign and Commonwealth Office (‘FCO’) may be consulted to determine whether assistance should nonetheless be provided.

There is no suggestion made in the letter that assurances would not be forthcoming. Indeed, it is clear that the US has offered assurances capable of satisfying the European Court of Human Rights (‘ECtHR’) in respect of high-profile terror suspects in the past. However, it was made clear by Sajid Javid that no such undertakings were sought:

[T]here are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.

The letter unfortunately omits any elaboration as to what reasons were relied upon. This may be because it is difficult – particularly in light of the UK’s human rights obligations – to imagine what lawful reasons could possibly justify the decision. Indeed, any reasons would have to be exceptionally strong in a case such as this, involving a positive decision not to seek any undertaking from the US.

Assuming, nevertheless, that the Home Office does have legitimately ‘strong reasons’, would its actions then be rendered legal?

In short – probably not.

Falling at the First Hurdle

To begin with, the Home Secretary may have fallen foul of the OSJA Guidance. While purporting to provide an exception to the need to seek assurances, the document adds a caveat where the method of the death penalty could amount to torture or inhuman or degrading treatment, for example, an excessive period on death row.

The intersection between the death penalty and torture will be returned to below. For present purposes, I draw attention to the 1989 case of Soering v United Kingdom in which the ECtHR made clear that the extradition of an individual to the US to face the death penalty violated his right not to be subject to inhuman or degrading treatment. This conclusion was not based on the administration of the penalty itself, but on the ‘death row phenomenon’ – in other words the harsh prison conditions on death row alongside the “mental anguish” and psychological damage which accompanies sitting around for years and waiting to be led to the electric chair. While other factors – including the age and health of the appellant – were at play in that case, a decade later the UK’s own Judicial Committee of the Privy Council ruled, in Pratt and Morgan v The Attorney General for Jamaica, that there would be “strong grounds” for believing that any delay before execution of over 5 years would constitute inhuman or degrading treatment.

As Lord Griffiths explained:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity.

These cases are important because as of 2010 death row inmates in the US wait an average of 15 years before their execution. It is not unreasonable to expect that Kotey and Elsheikh will be forced to wait for a significant amount of time given the complex legal issues which are likely to arise as they exhaust their various rights of appeal. The Home Secretary should therefore have considered the section of the OSJA Guidance relating to torture, which provides no exceptions to the need to seek assurances akin to those present in relation to the death penalty.

Why the Guidance Itself may also be Unlawful Under the ECHR

The OSJA Guidance is just that – guidance. It is neither primary nor secondary legislation and its drafters were required by the Human Rights Act to ensure its compliance with the ECHR. However, it appears they have not kept pace with developments at the European Court.

The ECtHR has, over time, broadened the scope of what it considers to be a violation of the right to life (article 2) and the prohibition on torture and inhuman or degrading treatment (article 3). These moves came to a head in the landmark case of Al-Saadoon v United Kingdom. In that case, UK soldiers operating in Iraq transferred the applicant, a captive in their custody, to the Iraqi authorities. He argued in turn that this was a violation of his rights under articles 2, 3 and Protocol 13 (right not to be subjected to the death penalty). In a powerful judgment which cited the almost complete abolition of the death penalty across Europe, the ECtHR agreed, finding for the first time that the death penalty as such is a violation of the rights listed above.

The Court noted in particular that:

[I]t is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention.

The ECtHR has also imposed a positive obligation on states to seek assurances that the death penalty will not be carried out. In 2014, having found Poland liable for ‘rendering’ – a euphemism for forcible deportation – the applicant to Guantanamo Bay, the Court took the unusual step of spelling out that Poland was required “as soon as possible” to rectify its violation by seeking assurances from the US that he would not be subject to the death penalty.

These cases suggest that the UK not only entered an unlawful agreement with the US, but may now be obliged to seek assurances that Kotey and Elsheikh will not be executed if convicted.

The developments also bear significance because of the UK’s stance on torture and inhuman and degrading treatment. To quote from a ruling by the late Lord Bingham, the common law set its face against the practice because of a “belief that it degrade[s] all those who len[d] themselves to it”. I would argue that there could hardly be a clearer case of a state lending itself to an unlawful practice than the UK’s offer to do the US’s dirty work and assist the prosecution of those likely to be condemned to death.  The move also, shamefully, ignores the pleas of the victims’ relatives that these people be tried and imprisoned; pleas by US citizens which might indeed have provided strong reasons for the US to accede to any request for assurance in this case.

While I have been unable – despite the ample space provided to me by The Secret Barrister – to leave no stones unturned, as the Howard League for Penal Reform gears up to take the Home Secretary to task, I hope I have provided a taste of the arguments likely to surface in due course.

Post-Script – A Brief Note on Jurisdiction

A potentially tricky point in terms of the UK’s responsibilities under the ECHR is whether or not it can be said to have exercised jurisdiction – i.e., authority or control – over the two men. Much smarter people than I have dedicated chapters of books to this byzantine principle (exhibit A; exhibit B etc…). I am unable to do the matter any real justice here. However, I would say that the suggestion that the UK bears no responsibility for the rights of those who it offers to help convict and potentially put to death, is arguably untenable given the ever-expanding notion of jurisdiction. This is particularly so in the face of judgments such as Stephens v Malta and, more recently, Vasilicius v Moldova. In those cases, the ECtHR held Malta and Moldova liable for the unlawful detention of the applicants in Spain and Greece respectively. Notably, in the former, the applicant was a UK national who had never set foot in Malta. The Court came to its decision on the basis that by issuing the arrest warrants Malta and Moldova exercised jurisdiction over the applicants and were therefore responsible for the end-result – namely, their unlawful detention.

It is difficult to see why the provision by a country of legal assistance which is likely to increase the prospect that an individual will be subjected to capital punishment should be treated differently. This is especially so given the “absolute and fundamental nature of the right not to be subjected to the death penalty” (Al Saadoon, above).

Ryan Dowding