Criticisms of Liz Truss have nothing to do with lawyers’ sexism

Let’s knock one evolving conspiracy theory on the head before court starts. Since the new Prime Minister appointed Liz Truss as Lord Chancellor and Secretary of State for Justice in lieu of the defenestrated, and relatively popular, Michael Gove, a number of lawyers and politicians have suggested that Ms Truss – the third consecutive non-lawyer appointed to a specialist Cabinet role traditionally reserved for senior qualified lawyers – is a poor choice.

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Former Labour Lord Chancellor Charlie Falconer thundered that the Prime Minister had failed to ensure that Truss was “qualified by experience” as required by section 2 of the Constitutional Reform Act 2005, which imposes a unique (although extremely loosely drafted) criterion upon prospective Lord Chancellors, and that Truss’ appointment was therefore “unlawful”. (For what it’s worth, I think he’s wrong in law on this point – section 2 affords the Prime Minister a discretion as to what “experience” means which is so broad as to be meaningless).

This was accompanied by the resignation of Lord Faulks from the Ministry of Justice, whereby he complained that Ms Truss lacks “clout” to fulfil her statutory and constitutional duties to uphold the rule of law and defend the independence of the judiciary, echoing Falconer’s suggestion that Truss’ relative juniority and presumed career ambitions marked her out as wholly unsuitable for the role. There followed unconfirmed reports that Anna Soubry, a fellow Conservative minister and qualified criminal barrister, had refused the offer of a junior ministerial position under Truss as “an insult”. Bob Neill, chair of the Justice Select Committee, of which Truss was briefly a member, piled in, asking whether her lack of legal knowledge, senior ministerial experience and – that word again – clout, would stymie her ability to stand up for the judiciary.

Immediately, the Truss spin machine whirred into action. How did it respond? Did she, like Gove, seek immediately to reassure the profession that she understood the validity of their concerns, that she understood and valued the magnitude of her position, and wanted to listen to and work with solicitors and the Bar to remedy what those on the inside know is a justice system in a state of collapse?

Sadly no. Instead, her people told the Guardian that what we were witnessing was simple, ingrained misogyny from a legal profession that couldn’t cope with being presided over by a woman.

“I don’t see the basis of [the criticisms]. This is coming from old, white, male judges and politicians. She [Liz] will of course be having a series of meetings with the relevant stakeholders. She will be doing those in to summer recess. But as far as I can see, this is thinly veiled misogyny,” the source said.

This narrative has now taken hold. In particular, people have been quick to leap on what they assume is a contrast in the reception afforded by lawyers to Truss and to her male predecessors, Messrs Grayling and Gove.

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These being but two among too-many-to-embed comments by people who, with respect, were presumably wearing particularly heavy duty ear muffs at the time of the appointment of Chris Grayling. Because when one indulges in a cursory google, it is obvious that the initial hostility towards Grayling – the first non-lawyer in the post – blows any criticism of Truss out of the water.

This selection of comments by lawyers reacting to Grayling’s appointment, compiled at the time by Legal Cheek, is of particular note. But that is the tip of the iceberg. While Grayling deserved every drop of criticism for his conduct while in post, it is fair to say that he was immediately up against it from a profession aghast at the notion that a non-lawyer with no ministerial experience in justice could be awarded such an historic role.

It wasn’t just lawyers, of course, giving Grayling a tough time. Political commentators remarked upon the wisdom of his appointment, although in light of the above tweet this was presumably a different Michael Crick decrying how Grayling’s arrival had resulted in a government with a “dangerous lack of legal experience”. Crick also referred in this piece to the broader lack of heavyweight legal talent in Cameron’s reshuffled cabinet, including the Attorney General Jeremy Wright, a junior barrister parachuted into the most senior legal position in government solely on the basis that, unlike his predecessor Dominic Grieve Q.C., he wouldn’t tell Mr Cameron the truth about the European Convention on Human Rights. The legal profession’s reaction to Mr Wright’s appointment is also worthy of remembrance. It is not just underqualified Justice Secretaries who incur the derision of Legal Twitter.

Such was the relief when Grayling was removed by the men in white coats from further experimenting his scorched earth policies on the justice system, that Gove, it is right to say, received a comparatively warm welcome. But that is the privilege of the person who turns up at the picnic with a tray of plain digestives after the shit-sandwich course. (Although the comments threads on legal websites demonstrate the number of lawyers hostile to Gove’s lack of legal bona fides.) That Truss’ welcome has fallen somewhere between these two stools is a result, partially, of her immediate predecessor having acquitted himself rather well as a listening, liberal reformist and having been rudely removed due to internal party politics rather than competence. Truss was also not helped by the thwarted anticipation that Dominic Grieve Q.C.’s support of Theresa May during the leadership elections might just propel him into the Lord Chancellor’s Office.

But, putting aside the airing of grievances from Parliamentary lawyers, my perception has been that the reaction among the profession, while inevitably of disappointment given the qualified alternatives open to May, has also been of cautious wait-and-see-ism. My blogpost on this very theme has received near-unanimous agreement from my fellow legal readers. From many quarters, she has been welcomed with open arms – such greetings often accompanied by favourable (if factually incorrect, according to Lord Pannick) comment on her becoming the first female Lord Chancellor. The Law Society, the Bar Council, the Lord Chief Justice, The Howard League, to name but a handful, all extended cheerful how-dos to the new incumbent. Where criticism has been expressed among lawyers, it has been related solely to qualification, and in terms no more strident than were directed towards her male forebears.

This is not, I should disclaim, to suggest that the legal profession does not have a problem with sexism. It does. I see it every day. I have written about it. But I don’t think that’s what we’re seeing here. At least not from the profession. We’re seeing resistance from a loud minority of politician lawyers, each with their own agenda. Charlie Falconer was, until a few weeks ago, Shadow Justice Secretary and Lord Chancellor, for example. Anna Soubry’s chagrin, if as reported, can safely be attributed to understandable indignation at being passed up for someone objectively far less qualified, rather than sexism.

At Faulks and Neill, however, I should pause. Because there is something else at play there. The credibility of Bob Neill’s professed concerns for justice is borne witness by how readily he merrily prostituted himself over the airways to support Grayling’s insane proposal to forbid defendants from choosing their own lawyer – a policy so fundamentally stupid that even Grayling himself abandoned it. Lord Faulkes’ principles, allowing him to serve for 18 months under that despicable, dangerous, mendacious constitutional vandal Chris Grayling but prohibiting him from serving one day under the unproven Ms Truss, appear similarly transient. It would be nice if, instead of simply regurgitating their protestations of concern, the press had asked these two men why they felt able to wholeheartedly support the least-qualified, most incompetent Secretary of State of all time, yet not an equally under-qualified woman.

This – at politics – is where dark questions as to malign intent should be directed. Not at the professions. As Mr Gove would no doubt tell you, we can be quite nice sometimes.

The new Justice Secretary – does it matter that she’s not a lawyer?

So, as anticipated, our new Prime Minister has favoured punishing disloyalty over rewarding competence and sent Mr Gove and his ambitious, compassionate prison reforms to the naughty back benches. This morning has brought a transfer-deadline-day-style frenzy to Legal Twitter, anticipation and trepidation converging as rumours and supposition threw up name after name as possible new Secretary of State for Justice and Lord Chancellor. All it needed was Theresa May leaning out of her Range Rover window teasing Sky Sports with a, “Well, we’ve got a little bit goin’ on ‘ere and there, but who knows?”

Theresa May

Theresa May

Stretching the analogy, perhaps the biggest disappointment is that established incompetent and gold-plated tit Mr Grayling didn’t get to play the role of Peter Odemwingie, driving 300 miles all pumped up with a misplaced certainty of being hired only to be cruelly turned away at the door. But he has not been let back near the levers of justice, and for that, at least, we must all be grateful, although anyone reliant on a functioning public transport system should probably prepare for 4 years of taxi rides.

So not Grayling. Nor, to the despair of several (including me), the lawyers’ favoured choice of Dominic Grieve Q.C., a serious heavyweight silk whose defenestration as Attorney General ranks among David Cameron’s most petty, stupid decisions. Anna Soubry, who has recently practised as a criminal barrister, would also, I’ve suggested, make a fine Justice Secretary, having the advantage over her three predecessors of actually having seen the inside of a criminal court in the past decade. But again, love unrequited.

Instead, Mrs May has opted for Liz Truss, an MP of six years with a background in management accountancy and particular political interests in education and free enterprise. She has no legal training, nor has she any ministerial experience in the Ministry of Justice, having instead hopped from junior minister at Education to Secretary of State for Environment, Food and Rural Affairs. It is right to note that from March 2011 to September 2012, she was a member of the Justice Select Committee, although Philip Davies‘ continued presence confirms that membership is no proof of intelligence, reason or compassion, the three qualities  required above all in the most underestimated and undervalued cabinet role.

My instinctive reaction to Ms Truss’ appointment, therefore, was one, to put it politely, of disillusionment, as, for a third successive time, the historic office of Lord High Chancellor of Great Britain, charged with upholding the independence of the judiciary and ensuring the provision of resources for the efficient and effective support of the courts, has been entrusted to a politician who has, to my knowledge, no experience of the courts or judiciary in action. Similarly, when one considers the brief for the concurrent role of Secretary of State for Justice, there is little among Ms Truss’ contributions in the House of Commons to suggest a zeal for prison reform or court modernisation. Indeed, as Twitter has been quick to point out, her most outspoken contribution on the subject of justice appears to be when she proudly announced that the milk in UK prisons would henceforth all be British, returning to a theme the subject of which inspired a performance which some cruel trolls suggested did not augur well for her advocacy skills.

But, having had the day to reflect, is that fair? Why does it matter that Ms Truss is not a lawyer? Does it matter?

A brief history lesson, if I may. Lord Chancellor was, until the passage of the Constitutional Reform Act 2005, a multi-faceted office starting out in medieval times as secretary to the King, and gradually accumulating a weird and wonderful collection of executive, judicial, ecclesiastical and Parliamentary functions. By 2003, the Lord Chancellor’s duties included being head of the judiciary, in which capacity he attended Cabinet, being responsible for appointing judges, acting as effective Speaker in the House of Lords, and having responsibility for criminal legal aid. In the case of Lord Irvine, he also sat as a judge in the judicial House of Lords. Appointment to the role was therefore considered the pinnacle of a distinguished legal career, rather than the preserve of ambitious politicians. (see Gee, G. What are Lord Chancellors for? [2014] Public Law 11).

While there were plainly benefits to having the independence and interests of the judiciary upheld and represented in government, you have possibly spotted the rather startling contravention of the separation of powers inherent in the Lord Chancellor’s office, allowing him to sashay between sitting as a judge, attending cabinet and holding sway in the House of Lords. And so in 2003, the government abolished the Lord Chancellor’s department and installed the LC in the newly-created Department of Constitutional Affairs, with the intention of abolishing the post of LC altogether. Due to Mr Blair having uncharacteristically taken this decision without any consultation whatsoever, people got quite cross and various committees were set up to consider the various constitutional implications. The denouement was the Constitutional Reform Act 2005, whereby the LC’s responsibilities as head of the judiciary and House of Lords speaker were stripped and transferred to others, and the power to appoint judges was diluted by the establishment of a Judicial Appointments Commission. In 2007, the Ministry of Justice was created, with responsibility for prisons and other bits that the Home Office were keen to get rid of, and the role of Lord Chancellor was thereafter conjoined with Secretary of State for Justice.

Up until 2012, the role continued to be performed by senior, experienced lawyers. However the removal of the judicial function meant that, technically, legal knowledge was no longer strictly a requirement. Rather, section 2 of the Constitutional Reform Act 2005 merely requires that the Lord Chancellor be “qualified by experience”, defined as follows:

2 Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these-

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section “qualifying practitioner” means any of these-

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland

So, strictly speaking, the Prime Minister “may” take into account the above, but also may not. S/he may in fact choose to appoint a block of stilton wearing a fez or, to even lesser benefit, Chris Grayling MP, the first non-lawyer in post since the 1600s. And this is where the problems began, because Mr Grayling was, and I’m sure remains, an ambitious man. He is no lawyer, no jurist and no philosopher – he is very much the epitome of a career politician, who has bounced from portfolio to portfolio, having his knuckles rapped for untruthfulness and incompetence at almost every turn, and upon entering office, saw an opportunity to assume the role of renegade outsider boldly taking on the vested interests of the legal system. He slashed legal aid like nobody’s business – aided by entirely dishonest campaigns against publicly-funded lawyers – splurged public funds on defending his unlawful policies in court, and in so doing exposed the irreconcilable tension between his self-image as an Osborne-pleasing austerity advocate and his Lord Chancellor’s oath to ensure the provision of resources for the efficient and effective support of the courts.

It was against this background that in 2014, the  House of Lords considered whether a grounding in law ought to be a prerequisite to the role. The House of Lords Constitution Committee concluded that, while it was not strictly necessary for the Lord Chancellor/Justice Secretary to be legally qualified, it would plainly be “a distinct advantage” for them to be so, and recommended that the government ensure that at least the permanent secretary at the Ministry of Justice be legally qualified. In a giant slap to the face to Grayling, whose policies were routinely held in judicial reviews to be unlawful – and whose solution to this problem was, rather than just acting lawfully, to try to stop the use of judicial reviews – the Lords further recommended that the Ministerial Code and Lord Chancellor’s oath be amended to remind all of the Lord Chancellor’s duty to uphold the rule of law. The government pretty much laughed in the face of the report, and here we are today.

And if that’s where the story ended, I’d unhesitatingly conclude that the experiment with a lay Lord Chancellor had been tested to destruction. But then enter Michael Gove. Also a non-lawyer, but one who from the outset made clear that he was not merely seeking to mend bridges where Grayling had burned them, but to learn, respect and embrace the constitutional and societal gravitas of his twin roles. He stopped picking fights with professionals. He seized upon prisons – simply concrete punishment cubes to his predecessor – and resolved that their overdue reform, and the transformation of the prospects of those within, would be his legacy. He overturned policy after regressive policy – from book bans to the Criminal Courts Charge – set down by Grayling.  He was by no means perfect – his failure to properly reform legal aid or employment tribunal fees stand as but two examples of enormous flashpoints that his early departure has allowed him to evade. But I, at least, while not agreeing always with everything he said or did, allowed myself to believe that he recognised his lack of firsthand knowledge of his new subject area, and rather than, as did Grayling, trumpeting his ignorance, listened carefully to professionals (experts, eh?) and treated his office not as a rung to better things, but as the career zenith it was for Lord Chancellors of yesteryear. As if it was – and indeed, it may transpire to be – his last, defining contribution to public life.

So yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes, one fears, on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.

But if Mr Gove has taught us anything, it is that it is only right and fair to  pause and see what Ms Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.

Because if that’s the kind of Lord Chancellor Ms Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.

One final, tangential observation – Ms Truss has already in Parliament fallen for the myth of the “most expensive criminal justice system in the world”. I would respectfully recommend that, if she wants to get off to the best possible start, educating herself as to the reality, and resolving to act upon it, would be among the best things she could do.

A truly remarkable democratic mandate

On last night’s BBC Question Time, Dominic Raab, Minister for Human Rights at the Ministry of Justice and noisy Vote Leave campaigner, mounted his high horse and trotted up to what has swiftly been informally assigned the next frontier in the Referendum fall-out war – “democratic legitimacy”.

Unprompted, Mr Raab described the 51.9% vote in favour of leave as:

“[A] remarkable direct democratic mandate to leave.”

He went on to venture:

“In my lifetime I’ve never seen anything or anyone get a democratic mandate like that.”

The remarkable direct democratic mandate is an intriguing, and it appears malleable, concept. For Mr Raab, along with almost every Conservative MP who supported leaving the EU, voted in favour of the Trade Union Bill (now the Trade Union Act 2016), seeking to impose minimum voting thresholds on Trade Unions balloting members over industrial action.

A stonking great hypocrite

A stonking great hypocrite

The 2016 Act, in short, requires, in order for industrial action to be lawful, a 50% turnout of “those who were entitled to vote” (section 2 of the 2016 Act, amending section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992), and, where those voting are “engaged in the provision of important public services”, an additional requirement applies, namely that “40% of those who were entitled to vote answer “yes”” (section 3(2) of the 2016 Act).

The rationale, as set out in the Conservative Party manifesto for the 2015 General Election, is:

“Strikes should only ever be the result of a clear, positive decision based on a ballot in which at least half the workforce has voted. This turnout threshold will be an important and fair step to rebalance the interests of employers, employees, the public and the rights of trade unions. We will, in addition, tackle the disproportionate impact of strikes in essential public services by introducing a tougher threshold in health, education, fire and transport. Industrial action in these essential services would require the support of at least 40 per cent of all those entitled to take part in strike ballots – as well as a majority of those who actually turn out to vote.”

To paraphrase, actions which have significant consequences for the general public, particularly where such actions carry a threat of enormous disruption to people’s everyday lives, should only be performed where a “clear, positive decision” is indicated by, not just a majority of those who turn out to vote, but a significant proportion (40%) of all of those entitled to vote.

Whether this is a good argument does not matter for these purposes. What matters is that the Parliamentary Conservative Party – including Boris Johnson, Iain Duncan Smith, Chris Grayling, Michael Gove, Priti Patel and John Whittingdale – thought that it was. So good that they voted for it. So important to them was the principle that important decisions affecting the public at large should attract the support of 40% of the registered electorate, they attended the House of Commons on behalf of their constituents to cast their “aye” and ensure that the Bill became law.

So what of the vote to leave the EU? The most important decision our country will ever make, in the unchallenged words of the (now outgoing) Prime Minister.

Well, 51.9% of a 72% turnout equals 37.4% of the registered electorate voting to take the country out of the European Union.

37.4%.

The “most remarkable democratic mandate” in Dominic Raab’s lifetime is one which would not be sufficient, under his own law, for train drivers to withdraw their labour for an afternoon.

When I tweeted this yesterday, a number of Leave supporters were irritated by what they perceived as speculative ifs-and-buts by a bitter Remainer. The Trade Union Act doesn’t apply to referendums, they quite correctly said. There’s no threshold required for a General Election; we don’t seek to re-run GEs until there is a special majority (or even a simple majority) of voters in favour of one governing party, was another common refrain. But the latter argument is to misunderstand the distinction between a referendum and an election. A referendum – much like a strike ballot – is a binary choice between the status quo and change. Between the relative certainty of remaining as we are, and the unknown consequences of all walking out. And the point I am making, academic as it may be, is not that we should definitely have a second referendum. Nor that we retrospectively impose a voting threshold.

But simply that those who are leading us into this brave new world, reneging on a new preposterous election vow as regularly as Corbyn loses a fresh shadow minister, are not merely charlatans for the new clothes they’ve peddled to our plebeian emperors, but unspeakable hypocrites of the highest order when they doll up their victory as a remarkable democratic mandate, secretly knowing that, under their own terms of engagement as publicly committed to statute, they ought honestly to be proclaiming this as a victory for the status quo.

What would happen to Brock Turner in an English criminal court?

On 18 January 2015, Brock Allen Turner committed a series of serious sexual assaults against an unconscious woman on an American university campus. Two graduate students at Stanford University saw the 20-year old Turner lying on top of the motionless victim behind a dumpster. Her underwear and bra had been partially removed, and Turner was thrusting on top of her unresponsive body until disturbed by the grad students. When interrupted, Turner immediately ran from the scene, only to be fortuitously apprehended by the Good Samaritans. The police were called, and found the victim to be completely unresponsive and heavily intoxicated. When she awoke three hours later, she told police she had no memory of what had happened. Turner admitted “fingering” the victim’s vagina, but insisted that, although drunk, she was fully consenting.

In March of this year, Turner was unanimously convicted by a jury of  three felonies – assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object.

What followed has been internationally dispersed through news organisations and a livid social media commentariat. Because, on 2 June 2016, the now-21 year old Brock Turner was sentenced by Judge Aaron Persky for offences tantamount to attempted rape, to 6 months’ imprisonment in a county jail with probation.

Due to, Judge Perksy said, Mr Turner’s youth, his positive character references and the impact that prison would have on him, he would follow the Probation Officer’s recommendation and impose 6 months in a county jail. Of which, it is reported, Turner will (as would be the case here) serve half before being released.

3 months for the attempted rape of an unconscious human being.

Brock Turner

Brock Turner

The reaction has been audible across the Atlantic. We have seen published in full the haunting victim impact statement, searing unabridged, unapologetic primal human pain indelibly into the reader’s – and one can only hope Turner’s –  consciousness, its honesty and fluency justifying every one of its 7,000 words (and I speak as someone who has read many victim impact statements, to the point, I had thought, of becoming inured). We were then treated to the gawking lack of self-awareness, nay basic humanity, demonstrated by Mr Turner’s father – and, as released on Monday, his mother – writing pleas for clemency to the sentencing judge which hovered on the fringes of crassness, before filling the tank with a gallon of denial, hitting the accelerator and ploughing remorselessly into ugly victim-blaming. Why punish my son, Turner Senior innocently enquired, for “twenty minutes of action”? The fact, repeated ad nauseum in the character references and led in the opening stanza of every media report, that Turner was an accomplished swimmer from an apple pie family, appeared to vindicate long-held suspicions that judicial attitudes towards sentencing turn all too often on from which side of the tracks a defendant hails.

The case has been raised in the House of Representatives, where Republican Congressman Ted Poe has said:

“This judge got it wrong. There’s an archaic philosophy in some courts that sin ain’t sin as long as good folk do it. In this case, the court and the defendant’s father wanted a pass for the rapist because he was a big-shot swimmer. The judge should be removed.”

And, before long, 1.2 million people worldwide had signed a change.org petition to impeach the judge (not to recall him, as has been widely reported), and it is reported that he has since, appallingly, received death threats.

Publicly, the sentiment appears to be leaning one way. In legal circles, however, consensus crumbles. The Santa Clara County District Attorney’s office condemned the sentence, complaining, “The punishment does not fit the crime”, and bemoaning its impotence to challenge the sentence. By contrast, a representative from the Santa Clara County Public Defender’s Office published this defence online, applauding the Judge for his “holistic sentencing exercise” which prioritised rehabilitation over conforming to America’s “culture of mass incarceration”, and praising the judicial exercise of “discretion and mercy”.

Writing as an English lawyer with no formal training in California State Law, or U.S. Federal Law, my view on Judge Persky’s application of the law carries no authority. The (astonishing) lack of official data collated on California criminal sentencing prevents me from even assessing whether statistically this represents a major outlier.

But what I can offer, by way of (perhaps) interesting contrast, is a consideration of what would have happened to Brock Turner in an English court, had he been convicted of our equivalent offences. Could the same thing happen over here?

 

The offences

Turner faced sentence for three felonies (serious offences) – reported as assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object, carrying, it is said, a maximums sentence of 14 years’ imprisonment. The “foreign object” is not specified in any reports that I could find, and the police report and felony complaint (the equivalent to a Crown Court indictment setting out the charges) make no reference to penetration with an object other than the defendant’s fingers, so for these purposes I shall assume that the penetration was digital. Our law doesn’t distinguish, for charging purposes, between a conscious or unconscious complainant, and so, both penetrative acts would likely be charged as assault by penetration, contrary to section 2 of the Sexual Offences Act 2003, which carries a maximum sentence of life imprisonment. It is possible that repeated acts of digital penetration, committed initially while the complainant was conscious but incapable of consenting and continued once she had lost consciousness (as I interpret the charges to represent), would be charged here under a single count to represent the whole activity. (Either way, as below, it will make little difference to sentence).

As to “assault with intent to commit rape”, the act of removing a person’s underwear and thrusting on top of them while they are passed out would probably be charged as attempted rape (contrary to section 1(1) of the Criminal Attempts Act 1981), also carrying a maximum of life imprisonment.

Further details of the case, not widely reported, can be found in the original police report here. These have to be taken with caution, as initial police reports invariably reflect the preliminary view of the police officer author(s) rather than an objective assessment of the evidence that is before a jury at trial. But the report is nevertheless instructive.

 

The Sentencing Exercise

The court in Turner’s case was not required to follow any formal sentencing guidelines (save for the mandatory sentence that was waived, see below). By contrast, in the Crown Court judges are required, by section 125(1) of the Coroners and Justice Act 2009 to follow any “relevant sentencing guideline”. A number of such guidelines have been published by the Sentencing Council (formerly the Sentencing Guidelines Council), including the Sexual Offences Definitive Guideline. The operation of these guidelines is designed to be simple, although rarely is in practice. The principle is to assess the seriousness of the offence by reference to harm caused and the defendant’s culpability, and then to reflect the features that aggravate or mitigate the position. Thus, on the guidelines, one feeds the facts of the case into the given matrix to arrive at a category for “harm” and a category for “culpability”, which combined gives you a “category range” and a “starting point”. The Judge can then move the starting point up or down within  (or, exceptionally, outside) the range to reflect the aggravating and mitigating features of the offence as specified.

Where sentencing for multiple offences, judges are required to have regard to the principle of “totality” – i.e. to pass a proportionate sentence that reflects the whole of the offending, rather than simply aggregating individual sentences for each offence. Therefore, in a case like this, where all of the offences arose out of the same incident, the court would usually pass a higher sentence on the “lead” (most serious) offence, uplifted to reflect the other offences, and pass concurrent sentences on those other offences.

So, what’s Brock Turner looking at?

For assault by penetration, this to me looks like a Category 2 case for harm, due to the judge’s finding that the victim was particularly vulnerable due to her incapacitation. For culpability, none of the factors in Category A appear to apply, so giving Turner the benefit of the doubt he would fall within Category 2B. This provides a starting point, for a single offence, of 6 years’ imprisonment after a trial (which, incidentally, is what the prosecutor in California recommended), with a sentencing range of 4 to 9 years’ imprisonment.

For attempted rape, one considers the similar-looking rape guideline, and, again, we appear to be looking at a Category 2B offence. Rape is considered more serious than assault by penetration, and so the starting point for a 2B rape is higher – 8 years’ imprisonment after trial, with a range of 7 to 9 years. However, as this was an attempt, rather than a completed act, the court will reduce the starting point to reflect that fact. So we probably again end up with a starting point around the 6-year mark.

One then considers the presence of aggravating or mitigating features. And this is interesting, because what the judge considers to operate in Turner’s favour would be viewed very differently in a Crown Court.

 

Intoxication

Judge Persky held that, “there is less moral culpability attached to the defendant who is legally intoxicated” than a sober defendant committing the same offence. Our Sentencing Guidelines explicitly provide that, by contrast, committing an offence under the influence of alcohol or drugs is an aggravating feature, public policy militating against crediting people who willingly get tanked up and commit unlawful acts. Far from limiting his culpability, Turner’s drunkeness would aggravate his position.

 

Severe psychological or physical harm

Judge Persky found this to be present, having regard to the Victim Impact Statement, and I would be inclined to agree.

 

Specific targeting of a vulnerable victim

The police report, and comments attributed to the prosecutor, suggest that Turner made persistent efforts to kiss the plainly uninterested victim and her companions throughout the night. This, I would submit as a prosecutor, represents specific targeting of a (already established to be) vulnerable victim. Aggravating feature ticked.

 

Attempts to dispose of or conceal evidence

It is arguable (although I probably wouldn’t submit it with much vigour) that Turner’s fleeing the scene ticks this box. But many defendants run to evade capture, and it is rarely factored into a judge’s final sentence.

 

No previous convictions

This is a big one in Turner’s favour. No previous for any similar offences will usually go a long way.

 

Positive good character

The best mitigation you can hope for as a defence lawyer is good character and a guilty plea. Turner doesn’t qualify for the latter, but a judge over here would be entitled to, in most cases, afford some weight to a defendant’s positive character. BUT, the Sexual Offences Guideline is different to many others, in that it provides that “in the context of this offence, previous good character should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence“. So being a golden boy champion swimmer, while possibly contributing, to a limited extent, in projecting the image of a good chap who acted entirely out of character, is going to go much less further on these shores.

And what about the tone of those references? In particular Dad’s? Is that likely to help? Plainly Judge Persky was not affronted by Turner’s dad solemnly reporting that the stress of proceedings had put Brock off his favourite ribeye steak , but would this help or hinder Brock’s break for freedom?

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Personally, I would not in a sqwazillion years have submitted those references to an actual judge with eyes. I can’t think of any who would have subconsciously treated them as anything other than an aggravating factor. The musings of a father who, when confronted with the finding that his son penetrated an unconscious woman’s vagina and took steps towards raping her, suggests that what is really needed is for this woman to learn about “the dangerous of promiscuity”, are unlikely to inspire sympathy in any judge I have ever appeared before. Characterising an offence of near-rape as “20 minutes of action” is similarly an attitude I, as a defence lawyer, would wish to distance from my client. In practical terms, this letter would demolish all mitigation I had carefully laid before the court during my heartfelt plea for leniency. You want references to say how nice your boy is, how sorry he is for what he’s done to the victim and how you, as his parent, recognise he needs to be severely punished for a serious offence. Then you stick in your paragraph pleading to give him a light sentence.

 

Age or lack of maturity where it affects the responsibility of the offender

Another feature afforded much weight by Judge Persky was Turner’s youth. And he would receive similar latitude from a Crown Court. But not much. And the suggestion that he is merely a victim of accepted “campus culture” is unlikely to assist him.

 

Remorse

Judge Persky, in a feat of reasoning that I still don’t understand at the fifth time of reading, found that Turner was remorseful, even though he maintained his version of events rejected by the jury at trial. The judicial attitude can be summed up as, “Well, he said sorry today, even though it appears it’s a politician’s “I’m sorry for any offence caused” rather than a “I’m sorry for sexually attacking you” and, well, kids will be kids and the two of them are probably never going to agree on what happened, so, y’know, let’s say he’s sorry and I can justify the sentence I’m about to hand down.” Seriously. Read it and tell me if you come to any other interpretation. Nil points in my court, sunshine.

 

Media attention

This was listed by Judge Persky as pertinent to his decision; however it is a bold advocate over here who argues that their high-profile client warrants special dispensation by virtue of his infamy. Turner’s case can be distinguished, possibly, from most “celebs” in that he did not invite media attention prior to the trial, but committing a serious offence and having the press hound you for it would be considered, by most English judges, as par for the course. And certainly not reason for special treatment.

 

Impact of imprisonment

Not a specific consideration on our Guidelines, but this would be addressed in an English Pre-Sentence Report (say below), and particular difficulties in adjusting to prison may influence a borderline decision. But this usually applies where a defendant has extreme physical or medical requirements, or where they are a plain suicide risk, or have vulnerable dependents on the outside world. The fact that you’re used to the Good Life will not usually be prayed in your aid.

 

The Probation Report

The Probation Report by the county probation officer recommended the sentence that Turner ultimately got, and this has been cited in support of the Judge’s ruling. Over here, most defendants, particularly sex offenders, will have a Pre-Sentence Report prepared by a probation officer. And Judges will pay careful attention to, and often follow, the recommendation as to sentence (i.e. should it be immediate custody or should it be a rehabilitative community order/suspended sentence?) However. While most reports are excellent, some, whether through authorial inexperience, or being provided with scant details of the offence, or through plain misjudgment, do occasionally propose sentencing disposals for serious cases that, as a barrister pleading mitigation, you have to acknowledge at the outset are batshit cray cray, lest the judge transfer his apoplexy at the recommendation on to your client. “Your Honour, I recognise that the recommendation in the Pre-Sentence Report is unrealistic in this case…” is a phrase I’ve had to gabble more times than I can remember. The fact that there is a recommendation would not, in the Crown Court, save you if, as a barrister, you submitted that the Court should adopt a plainly unduly lenient sentence. And it of course does not absolve the Judge of his or her duty to impose an appropriate sentence. Some cases are so serious that only immediate custody will suffice. Rape and kindred offences, as per the Sentencing Guidelines, tend to fall within that bracket. I have seen, in exceptional cases, recommendations for alternatives to immediate custody in cases of this type, but they are in the tiny, tiny minority, and usually arise where there are truly incredible features to the case. Nothing that is listed in Judge Persky’s judgment would, in my experience, persuade a judge that the probation recommendation was realistic.

Exceptional Circumstances

Weighing everything into the balance, I would expect Turner to be looking at between 5 and 6 years, all in. But could a Crown Court judge take an exceptional course? Judge Persky was required to impose a minimum of 2 years’ imprisonment and prohibited, under Penal  Code section 220, from imposing probation except in unusual cases where the interests of justice would best be served (Penal Code section 1203.065). That interests of justice test is expanded upon in Court Rule 4.413(c) and applied by Persky, and he relies in particular upon Rule 4.413(c)(2)(C), which provides that the interests of justice may permit a departure from the mandatory prohibition on a light sentence followed by probation “where a defendant is youthful and has no significant record of prior criminal offences”. And it is on that feature, primarily, that Persky hangs his hat (before listing the various other features of mitigation that he feels assist Mr Turner). Would that be enough, in English courts, to get the sentence down to the 6 month mark? It’s difficult to compare, as we don’t have the concept of a short sentence in a county jail (rather than the state prison reserved for lengthier sentences) followed by lengthy probation conditions determined by the Judge; rather we impose a sentence (of whatever length) in a prison and the defendant, when released (usually at the halfway point) remains on licence until the expiry of the sentence (if over two years), or for 12 months after his release (if the sentence is less than two years). But my opinion, for what it is worth, is that a short custodial sentence would be the least likely outcome in our courts. The very best Mr Turner could pray for is a suspended sentence of two years’ imprisonment (the maximum for a suspended sentence), and that, on the facts reported, would appear wholly unlikely.

Notification

Judge Persky paid significant regard to the fact that Turner would, as a convicted sex offender, be required by Penal Code 290 to register with the authorities as such. This, he considered, represented a further punishment that was relevant to his consideration of sentence. Over here, “notification requirements” (or “being put on the sex offenders register” as the media have it, notwithstanding that no such register exists) automatically apply to these offences by virtue of section 82 of the Sexual Offences Act 2003, and, assuming a sentence of around 6 years, those requirements would also last indefinitely. It would not be considered at all relevant to sentence, although the position in California may differ due to the public availability of information about registered sex offenders (through, for example, Megan’s Law).

 

Prosecution Appeal

The District Attorney, while professing incredulity at the sentence, has declared itself unable to challenge a sentence unless wrong in law. By contrast, our Attorney General can refer sentences in such cases to the Court of Appeal if he considers that they are unduly lenient and, if the Court of Appeal agrees, the sentence can be increased. I would, as a prosecutor, be drafting my advice to the Attorney General before I’d left court had that been my case, and I’d wager that it would take something extraordinary for the Court of Appeal to find that a 6-month sentence was not unduly lenient for offences of this type.

 

Conclusion

On the information available, including Judge Persky’s sentencing remarks, the victim impact statement and the character references published, I would be astounded if a defendant in Brock Turner’s circumstances appeared before an English Crown Court and received the sentence that he did. Sexual offending, while occasionally (in my personal opinion) dealt with leniently in our  courts, is still usually recognised as comprising the most degrading violations that one person can inflict upon another. That Judge Persky appears, notwithstanding the victim impact statement, to have overlooked the public policy imperative in imposing condign sentences for acts involving the deliberate, brutal, callous and humiliating sexual exploitation of a vulnerable victim, is a failing unlikely to be repeated in the English Criminal Justice System, and, to that extent, Turner should be eternally thankful to be an American.

 

Note: This blogpost has been compiled by an English barrister with no formal training in California State or U.S. federal law. Apologies at the outset for any error in my interpretation or explanation of the relevant law; any proposed corrections are welcomed.

Defendants In Person: Aliens, Freemen on the Land and the insanity of false economies

“Right.” The legal advisor looked at me, then back at the defendant. “And are any of them going to be witnesses for you today?”

“Any of who?” replied the defendant.

The legal advisor looked at me again and cleared his throat. “Any of the aliens?”

The defendant shook his head angrily. “No! My case isn’t that aliens did make me do it – it’s that at the time I believed they were making me do it. I was insane, yeah? Insane!” He brandished his antique copy of Archbold triumphantly, as I, a newbie to this prosecuting lark, took my seat and settled in for what proved to be a particularly long trial.

Alien

Notwithstanding the years that have passed since that remorseless day, defendants in person, and the attendant idiosyncrasies they bring to criminal proceedings, are far from a bygone relic.

Transform Justice, a charity campaigning for a fairer justice system, last month published a report, self-explanatorily titled, “Justice denied? The experience of unrepresented defendants in the criminal courts”. Drawing on statistical and anecdotal evidence from professionals and court users, the report concludes that magistrates’ courts are encountering DiPs in ever greater quantities.

As a prosecutor, it must be said that certain defendants in person do not inspire sympathy. Aliens Man, a frequent flier in this particular court, certainly gave a damn fine impression of someone determined to get himself convicted, with his refusal to swear an oath or affirmation and tactical decision to meet every question – regardless of context – with an increasingly angry, “I was insane, yeah?” It was impressive how creatively (and doggedly) those four words were deployed to expand the trial into the late evening.

But sympathetic or not, everyone – even a man furiously declining to give evidence in his own defence “until that prosecutor goes into the witness box first” – is entitled to justice. And what we see all too often, as reflected in the report, is that injustice – perceived and real – waddles hand-in-hand with a lack of access to legal representation. Occasionally it will be a conscious choice to eschew professional assistance, as with every criminal advocate’s favourite Magna Carta-quoting oddballs, Freemen on the Land, who with a defiant ignorance of constitutional law and a fistful of printed internet “legal” advice, try valiantly to persuade the court that is has no jurisdiction to try them without their consent, coz Magna Carta. But the recent proliferation of DiPs is largely attributable directly to conscious executive fiat.

A low means-testing threshold (a disposable household income of £22,325 in the magistrates’ court,) and punitive legal aid contributions for those who do qualify force many middle-income defendants into self-representing.  Thrashing through the administrative process if you’re self-employed is a nightmare, the impenetrable ambiguity of the Legal Aid forms seemingly designed to ensure rejection at the first attempt. The Legal Aid Agency is the institutional embodiment of jobsworthiness, kicking out valid applications for the most trivial – and occasionally non-existent – of perceived slights.

Putting aside the truism, attested by any Judge, solicitor or barrister, that any costs saved in depriving litigants in person of public funding are spunked ten times over by the added court time and resources needed to deal with their cases, the danger, particularly in the magistrates’ court, is of significant miscarriages of justice.

I’ve had years of dubious pleasure watching magistrates deal with defendants in person. Many benches do their best to assist the bewildered through the process. But many don’t. I recall vividly watching agog as the bench – abetted by their legal advisor – invited a defendant in person to plead guilty to having an offensive weapon – a hammer – on the basis that he said in interview that he had it with him but intended only to frighten with it. A hammer not being offensive per se, the offence could only be committed if he’d intended to use it to cause injury.  Fortunately another solicitor, exchanging raised eyebrows with me, interjected to inject some law into proceedings.

And the fear has to be, as courts are smoothly re-engineered as whirring production lines of justice through Better Case Management, putting the emphasis on speed ahead of quality, that defendants in person will get dragged between the grinding mechanism beneath, their cries unheard and their cases undiscovered.

There’s little more to cheer in the Crown Court. While the figure for defendants in person is currently steady, this won’t last. The indefensible removal in 2014 of legal aid from defendants with disposable household incomes of £37,500 will collide, I grimly predict, with the exponential increase in prosecutions of historical sexual allegations – in which many defendants will find themselves bitten by the threshold – with what can only be forecasted as appalling consequences for justice.

The brave new digital world pioneered by the Ministry of Justice is currently predicated on the assumption that all will be represented, the MoJ Jekyll seemingly blissfully ignorant of the MoJ Hyde’s bloody night-time battering of legal aid. Quite how a defendant-in-person is expected to muster the wherewithal to extricate disclosable Social Services records from an exhausted Crown Prosecution Service, or manage the inevitable 500-page-strong Notice of Additional Evidence casually tossed onto the defence on the first day of trial, Lord alone knows.

Many of these problems could be ameliorated by the simple automatic grant of legal aid to anyone accused by the state of a criminal offence, with provision to recoup that money, where available, in the case of convictions. Utterly unobjectionable in principle. Sadly the modus of successive Justice Secretaries has been subservience to the false economy of plundering legal aid, plunging other departmental budgets into the red in satisfaction of a laughably dishonest public commitment to “fiscal responsibility” and “tough spending decisions”.

Now that really is insane, yeah?

A version of this article first appeared in Solicitors Journal, and can be found here: http://www.solicitorsjournal.com/blog/defendants-person-aliens-and-moj-jekyll-and-hyde 

It’s official: the Criminal Justice System is broken, and no-one seems to care

Friday 27 May 2016. The day on which the following events were deemed worthy of historical record on the front pages of the English press:

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It is also the day, you may be interested to know, that the criminal justice system was officially declared “close to breaking point”. Not by me or my kindred professional complainers, but by Parliament. The House of Commons Public Accounts Committee today published a report, “Efficiency in the Criminal Justice System”, in which the very first line is:

“The criminal justice system is close to breaking point.”

Easy pickings, one might think, for magpie subs struggling to summon a splash on a topic of public interest beyond facile comments by a fame-chasing wannabe TV bimbo, or something that happened on Britain’s Got Talent. [If that sentence had been pasted closer to the first two front pages above, that joke might have worked. As it is, we’ll move on and pretend nothing happened. But just so you know, that could have been something really special.]

But no-one took the bait. Notwithstanding that the facts of the report would have been available, and known, prior to last night’s print deadlines, the tumbling of justice was apparently considered not of general interest. Let alone worthy of usurping Johnny Depp’s divorce.

In truth, much of what’s in the PAC report is drawn from other non-reported reports, and there is nothing new to surprise those stuck festering in the system. The procession of complaints can be recited rote by anyone involved with criminal justice, like a contestant trapped in a Groundhog Day version of the Generation Game conveyor belt:

  • Unacceptable delays – months, years – in cases getting to trial;
  • A consequent enormous backlog of serious criminal cases;
  • Gross inefficiencies in preparing and reviewing prosecutions;
  • An overall system that is both underfunded and overstretched;
  • A lack of accountability;
  • “Cost savings” which simply shunt costs from one part of the system to another;
  • Callous treatment of witnesses and victims;
  • Insufficient judges, CPS staff and court sitting days to manage the caseload;
  • No credible plan by the Ministry of Justice to use its court buildings efficiently – e.g. £100,000 was recently spent on installing new windows at Torquay magistrates’ court even though the MoJ intended to close the building down;
  • No thought given to how defendants, jurors and witnesses might physically get to court once the MoJ has closed down all the smaller rural courts, and they have to travel 100 miles without access to regular public transport.

Those familiar friends all feature for express criticism in the report, to which I might add, for completeness, the mischief caused by interpreters not turning up, prisoners not being brought to court, legal aid being removed from middle-class defendants, the disastrous privatisation of the Probation Service and the omnipresent shadow of CPS disclosure failings. And of course many, many other prizes, none of which present as novelty to lawyers, defendants, victims or witnesses.

But to those fortunate enough to currently find themselves outside the criminal process, who may one day, through the vagaries of fate or circumstance find themselves dragged screaming into the system, either as the victim of a crime or accused of one, this surely has to be big news? It cannot be a story that peaks at item 3 on the Today programme 7am bulletin, before being folded and put away in a drawer until the next revolution of this relentless cycle of despair.

It deserves more. It deserves anger. Passion. Rage. Frustration. Umbrage. Indignation. Shock, awe, outrage, hysteria – everything that social media is accused of being, and often is, our entire society should be right now. Because a functioning justice system is vital to a functioning society. It is as crucial as health. Education. Economic policy. Because without proper justice, the social contract by which we all live crumbles. I cringe as I write this because of its sixth-form general studies simplicity, but plainly somewhere in our society there is a blockage. And people have stopped caring, beguiled by an implicit cocksure certainty that the courts – and crime in particular – is something that only affects Other People.

Early on in my career, due to CPS failings, a defendant got bail. He went on to kill. I have seen – we have all seen – provably guilty people walk free, and not-guilty people locked up. There’s no use in squealing for extra bobbies on the beat if nearly 40% of the wrong-uns they catch don’t have their cases reviewed by the CPS, and as a consequence don’t get justice. There’s no point in reporting an assault where you’re going to be cross-examined on the minutiae of that day two years after the event, with the inevitable gaps and inconsistencies in your truthful account providing the key to your tormentor’s acquittal. And if you are accused of something you didn’t do, for which you could lose your job, your home and your liberty, it’s too late at that point bemoaning the delay in your case being heard, the failure of the CPS to disclose crucial material that would secure your acquittal, or the injustice of a third, fourth or fifth adjournment of your trial because the MoJ refuses to keep open enough courtrooms.

Criminal justice matters. If the House of Commons had published a report that opened with the conclusion, “The NHS is close to breaking point”, that would be headline news. Editorials would be screaming for ministerial accountability. If the report concluded that the Department for Health had “overstretched” hospitals and “exhausted the scope to make further cuts” – and yet the DoH insisted that a further 15% would be cut from the budget by 2019/20, no-one would believe it. The injustice – the human casualties of this macabre, sadistic approach to administering a fundamental pillar of developed nationhood – would be the headlines. Their stories, their misery, their pain.

Not Alesha fucking Dixon.