Could Donald Trump be arrested for inciting hatred when he visits the UK?

The nominal President of the United States has had quite a week. My personal highlight was his absent-mindedly tweeting a confession to obstruction of justice, and then wildly thrashing around looking for someone else to blame for penning a tweet which was written both under his own name and in his own, inimitable, grammar-hazing style. His personal lawyer, John Dowd, was designated as the fall-guy, and dutifully announced to the press as he stepped in front of the bus that he, a practising lawyer with no prior reported involvement with any of Trump’s Twitter activity, had decided to commandeer Trump’s account and tweet something both staggeringly incriminating and legally illiterate (“pled” receiving as many raised eyebrows the other side of the pond as over here), seemingly apropos of nothing. As acts of self-sacrifice go, it was very Dark Knight. John Dowd is very much the hero Trump desperately needs right now, albeit not one he deserves.

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John Dowd

But that debacle has taken a back seat on these shores to the diplomatic cake-smash caused by Trump retweeting a racist British far-right group’s anti-Muslim videos and doubling down when lightly ticked off by the Prime Minister. The response has been vigorous. Calls for Trump’s State Visit invitation to be rescinded have reverberated throughout newspapers and in the Houses of Parliament. And some Members of Parliament have gone as far as to call for Trump to be arrested in the event he sets foot on British soil.

Which is where I come in. Because, while the image of Trump being wrestled to the ground CNN/WWE-Gif-Style and handcuffed on the Mall has an undeniable, gorgeous aesthetic, legally it doesn’t appear as plausible as some politicians assume it to be.

Is Trump guilty of inciting racial or religious hatred?

Possibly. For the uninitiated, Trump retweeted to his 44 million followers three videos posted on Twitter by Jayda Fransen, the deputy leader of “Britain First”, bearing the titles: “Islamist mob pushes teenage boy off roof and beats him to death!”; a “Muslim Destroys a Statue of Virgin Mary!” and “Muslim migrant beats up Dutch boy on crutches!” [They are not embedded here for obvious reasons.]

Parts III and IIIA of the Public Order Act 1986 provide for various offences of racial and religious hatred. Although popularly referred to as “racist”, Trump’s various denouncements of Muslims would not, under English law, amount to an act of racial hatred, the definition under the Act providing for:

hatred against a group of persons […] defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins

Muslims are not presently recognised as a racial group (unlike Sikhs and Jews); however they would qualify as a religious group (section 29A), namely:

a group of persons defined by reference to religious belief or lack of religious belief

and so would be protected by the corresponding provisions of the Public Order Act prohibiting acts of religious hatred.

Right, so what such “acts” are covered?

Firstly, there’s an offence contrary to section 29C of the Act of publishing or distributing written material intending thereby to stir up religious hatred. It is well-established that posting content online amounts for these purposes to publishing and/or distributing. Secondly, and perhaps more fittingly, we can see an alternative in section 29E – distributing, showing or playing a recording intending thereby to stir up religious hatred. Each of these offences carries a maximum sentence of 7 years’ imprisonment.

The next issue for resolution is whether in retweeting the videos Trump intended to stir up hatred towards a group of persons defined by reference to religious belief or lack of religious belief. “Hatred” is a term of fact, not law, and has its ordinary meaning. It usually requires an element of hostility. There is also an inbuilt statutory protection for legitimate free speech as follows:

Nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

So is Trump intending to stir up hatred?

The first observation is that the videos were posted by a woman with a conviction for religiously aggravated harassment, in her capacity as deputy leader of a group committed to resisting the supposed “Islamification of the UK“. Her purpose in posting them is plain. Trump has said and done nothing to suggest that he disavows or disapproves of that purpose.

Furthermore, were I prosecuting this imaginary trial, I would be making a lengthy “bad character application” to adduce Trump’s proud and extensive record of anti-Muslim comments and policy initiatives. The Muslim ban; his equation of Muslim refugees with ISIS fighters; his baseless claims about watching “thousands and thousands” of Muslims celebrate in New York as the Twin Towers fell; his proposals to shut down mosques; obsessive and spiteful attacks on London Mayor and Muslim Sadiq Khan in the aftermath of London terror attacks; his refusal to distinguish between Islamists and Muslims; the fact that he has, a week on, not deleted the re-tweets despite being informed, by the Prime Minister of Great Britain and Northern Ireland, no less, that Britain First is a far-right, Muslim-hating flock of lobotomites, and, particularly pertinently, that the videos do not even show what is alleged. Against this background, what possible other intention could Trump have, members of the jury, in disseminating these videos? It can only be to stir up hatred, in what one presumes is the satisfaction of the urges of his base of deplorables. If I were defending someone with Trump’s public record, I would be advising him in the strongest terms that this is an argument he is not going to win.

So the offence is made out, right?

Not quite. “Hatred”, if proved, is not the end of the matter. There is a final requirement with religiously aggravated offences, as opposed to racially aggravated offences, that the material in question be threatening, not merely abusive or insulting. Again, “threatening” carries an ordinary meaning. Were Trump’s tweets threatening? I’m struggling with this. They may have been designed to incite hatred, they no doubt play to the gallery of people who would seize upon the videos as justification for threats (or worse), but without more, I think that this threshold is difficult to meet.

What about the fact the alleged offence was committed abroad?

Cases involving internet communications, particularly where a party lives or a website is hosted outside of England and Wales, can be tricky. Put simply, the test for whether our courts have jurisdiction over an alleged criminal offence is whether a substantial measure of the alleged activity involved took place within the jurisdiction. The leading case is R v Sheppard and Whittle [2010] EWCA Crim 65, in which a defendant based in the UK used a remote Californian server to host a website publishing antisemitic material. “Almost everything in the instant case related to the UK, which was where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only foreign element was that the website was hosted by a server in California, but the use of the server was merely a stage in the transmission of the material”, held the Court of Appeal in finding that the “substantial measure” test was easily satisfied.

Trump’s position is slightly more complicated. Looking at the core of his tweets, there is certainly an argument in favour of a substantial measure of the activity having taken place here:

  • The video was initially shared and distributed by Jayda Fransen, a British citizen;
  • Fransen was, presumably, based in the UK at the time that she sent the tweet;
  • It was originally intended for a British audience, being tweeted in her capacity as Britain First member;
  • Trump’s subsequent tweet to Theresa May, refusing to apologise and impliedly standing by the videos, could perhaps suggest that this particular theme was aimed at a British, and not just an American, audience. (I’m not convinced on this point)

However:

  • Twitter’s servers for the USA are based in the US;
  • Trump is based in the US and appears to have been in the US when the tweets were sent;
  • He would no doubt contend that his retweets were intended for a domestic audience.

This would be a hurdle that I am not confident the prosecution would clear.

But apart from that, there are no other obstacles, right?

There’s the small matter of section 29L(1) of the 1986 Act: No prosecution for religious hatred may be initiated without the consent of the Attorney General. This is a concession won during the Act’s controversial passage through Parliament in 2005, designed to ensure that the legislation is not abused to stymie criticism of religion. What this means in practice is that even if the Crown Prosecution Service formed the view that there was sufficient evidence to prosecute and that a prosecution was in the public interest (the two-part test applied to all prospective prosecutions), political considerations could override that assessment. The Attorney General is a member of the cabinet, and thus unavoidably vulnerable to political persuasion. The Prime Minister’s views on the desirability of attempting to prosecute the head of a friendly state moments after rolling out the red carpet for a State Visit I can only guess at. But I would surmise that consent may not be rapidly forthcoming.

But if the Attorney General says yes, we’ve got him right?

Absolutely. Apart from the fact that, as a Head of State, Trump has immunity from criminal prosecution in England and Wales pursuant to section 20 of the State Immunity Act 1978.

This provision confers upon Heads of State, members of their families in their household and their private servants the same diplomatic immunity as is extended to embassy staff under the Diplomatic Privileges Act 1964, which itself incorporates the Vienna Convention on Diplomatic Relations. This is what allows diplomats to park illegally anywhere, run up thousands in parking tickets and hop on a plane with no risk of ever being pursued.

As Head of State, Trump enjoys immunity from criminal prosecution for acts committed both as part of his official function and in private. The only exceptions would be if Trump had committed something akin to torture or a war crime, in which case technical arguments arise as to whether immunity is overridden by international law, as the House of Lords considered in the late 1990s when General Pinochet attempted to avoid extradition for authorising torture in his homeland. In 2003, the Attorney General told the House of Lords that no action could be taken against Saddam Hussain in UK criminal courts as long as he was Head of State of Iraq. And the principle of state immunity was further confirmed during an unsuccessful attempt to arrest Robert Mugabe for torture in 2004.

So why, if we couldn’t arrest Mugabe on charges of torture, do some MPs think we can arrest Trump for sending some tweets?

That is a good question. It’s possibly something those MPs may have wished to ask themselves before their tubthumping hollers in the House of Commons for Trump to be arrested and prosecuted. Sort of a basic, one might think. But, sighing heavily as the credits roll and I smile wearily to camera, who has time these days for something as minor as checking the facts before speaking?

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Thank you

Some of you may have seen that, in further defiance of all common sense and decency, I was yesterday named joint winner of the Independent Blogger of the Year award at the Editorial Intelligence Comment Awards 2017, defending my barely-deserved crown, to be shared with the wonderful Liz Gerard (@gameoldgirl), author of the superb SubScribe blog.

Last year, I came over all Gwyneth when thanking you, my long-suffering readership, for your support. Time has both weathered and hardened my soul, so if I may, I will say only this:

Thank you, again, for all of your support, comments and criticism. That this blog did not wither two months into infancy is down to the unmerited attention and generous engagement of all of you who read these half-formed thoughts and follow me on the Twitter. Its success lies as much with you as me.

Here’s to another twelve months of lawsplaining.

Thank you all

SB x

 

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Bad law reporting and a public dangerously disconnected from criminal justice

The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

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And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

This article first appeared on Legal Cheek, and is available here.

Why those of us in the system must share the blame for the lack of public faith in criminal sentencing

Good news breaks from Newcastle Crown Court, where four men have been convicted and sentenced for serious offences involving child sexual exploitation. Soran Azizi, Palla Pour, Ribas Asad and Saman Faiaq Obaid each received sentences of imprisonment for crimes including trafficking for sexual exploitation, sexual activity with children and supplying controlled drugs, the latter a grimly familiar tool used by abusers to achieve the former.

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As I say, good news, and a good job by the Crown Prosecution Service. So why does it sound as if I’m taking a run-up to go off on a peevish tangent? Well, it’s because – and I accept that it sounds like a little thing, but bear with me – it’s because of this tweet from the official CPS account:

For now, let’s put to one side the question of whether this feeds into an increasing, Americanised tendency by the CPS to publicly cheer “tougher” sentences (this traditionally not being the role of the prosecutor in England and Wales, in stark contrast to the US system). I instead want to look briefly at that number – 32 years – because I think it’s an example of a deeply unhelpful trend in modern reporting.

The figure of 32 years is arrived at by aggregating the sentences of the four defendants. Azizi got 6 years, Pour got 12 years, Asad got 9 ½ years and Obaid received 4 years 9 months. And this aggregation, when you think about it, is an entirely pointless exercise. It tells us nothing about the seriousness of the offences committed. It tells us nothing about the sentence imposed in respect of each man. It tells us nothing about how long they will serve, and – importantly to many people – when they will be released.

Its only purpose appears to be to present an eye-catching headline figure to draw the reader in to the story. In a tabloid newspaper, this is one thing. But by the CPS?

The problem is not just that this headline does little to educate the casual reader who doesn’t study the press release down to the Notes to Editors. It’s that it contributes to a serious disconnect we have in criminal sentencing between the system and the general public. One of the most common complaints we hear from non-lawyers is that sentences frequently don’t mean what people think they mean. Part of this is because of the inherent complexity of sentencing legislation and early release provisions, which even judges struggle to interpret (Lord Philips in the Supreme Court famously said that “hell is a fair description” of this legislation). But part of the issue is because even in straightforward sentencing cases, the basics are not reported in their full context.

Anyone scanning the CPS Twitter account and seeing the words “32 years” would be forgiven for thinking that the men convicted in Newcastle were likely to be serving at least the best part of a decade in prison. In the case of Obaid, he will serve a maximum of 2 years and 4 ½ months, minus any time he has served on remand awaiting his sentence. None of the defendants will serve anything even close to half of 32 years. The most any one of them will serve is 6 years (Pour). Nowhere in the press release, or even in the notes to editors, is this spelt out. One can only hope that the vulnerable young victims of this predatory offending have had the real position fully explained to them.

I appreciate that the CPS tweeter was no doubt aiming for snappy, 140-character brevity, and that the main takeaway is that serious criminal behaviour has been successfully prosecuted and justly dealt with; but I do think this is a problem. This kind of headline inflation of sentences is how we end up with ridiculous red-top myths about serious sex offenders being released only a couple of years into a 22-year sentence, which in turn serves only to feed a toxic circular narrative of “soft sentences” and “joke justice”. We can’t possibly expect the public to have faith in criminal sentencing if the system adopts the same clickbait tropes.

I devote a lot of words on this blog to chiding journalists about accurate reporting of criminal cases. It’s regrettably evident that some need to be directed at those of us in the system as well.

9 reasons why this vile murderer should be given taxpayers’ cash to sue the government

Just a quick one. A number of people online were yesterday disturbed by this tweet from court reporting Twitter account @CourtNewsUK, relating to Michael Adebolajo, one of the two murderers of Drummer Lee Rigby:

The story has been picked up by The Mirror, which gasped with similar horror that a “top judge” has “insisted [Adebolajo] should be given taxpayer cash to pay for his court fight against the Ministry of Justice.”

The anger has burned through the night and looks set to smoulder for the rest of the day, Radio 4’s Today programme finding space for a mention among its bulletins. And I understand why. On its face, this appears an instinctively unjust state of affairs. A High Court Judge loftily calling for yet more taxpayers’ hard-earned money to be poured into the pockets of a man guilty of unspeakable savagery.

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But scratch beneath the surface, and you quickly see that there’s more to this story than the tweet suggests. For a start, no decision has been made to grant Adebolajo legal aid for his personal injury claim against the Ministry of Justice, which arises out of injuries he sustained while being restrained by prison officers. Indeed, personal injury practitioners will correct me if I’m wrong, but I understand that legal aid for claims of this type is vanishingly rare. And proceedings are still at an early stage; today’s hearing at which the judge’s comments were made was a preliminary hearing. Details are scant. It is not clear whether the claim has any merit at all; whether it will run to trial, or whether it will be struck out as entirely frivolous.

But let’s suppose that the claim is heading for a trial. And let’s suppose the judge’s comments above were fairly and accurately reported in their full context [SPOILER – they were not, and we’ll come to that]. Here, resuscitating a thread I posted yesterday, are my thoughts on why legal representation should be made available to Michael Adebolajo, at taxpayer cost if need be:

  1. Any trial will take far longer if he is not legally represented. The conclusive experience of the courts is that legal proceedings involving unrepresented parties take far, far longer than when lawyers are instructed. The reason is simple – law and court procedure is hideously complicated. It cannot be – despite what some DIY law websites will tell you – be mastered through Google. Unrepresented litigants, even those who are impressive experts in their own professional fields, will make errors and cause delays. Lawyers are trained to hone in on the issues of law and fact that best support their case. Litigants-in-person may not appreciate their best points, or how to concisely argue them, or how to apply the law. Judges loyal to their judicial oaths are required to assist litigants as best they can to ensure fairness, but this all takes time. The experience of the family courts, in which 34% of cases now involve unrepresented litigants on both sides since legal aid cuts in 2012, bears witness to this.
  2. Any trial will be far more expensive if he’s not represented. This follows logically from 1. The more court time that is taken up dealing with a case, the greater the cost to the court, and ultimately, if the money can’t be recouped from the losing party, the taxpayer. Providing legal aid will usually save money in the long run, as lawyers will (a) advise the client robustly if the claim is devoid of merit, potentially avoiding the need for any further hearings; and (b) ensure that any trial is conducted much quicker, and therefore much cheaper, than if the individual was self-representing.
  3. The experience for the witnesses will be much more unpleasant if he’s not represented. Have you ever watched a sadistic criminal cross-examine a witness in court? Put another way, would you like to be cross-examined by a wild-eyed terrorist blundering his way through a series of irrelevant and potentially abusive questioning over several hours, punctuated by interruptions from the judge shepherding the questioner back on track? Or would you rather be cross-examined for 20 minutes, politely (and slightly ineffectually) by me, with my natty court dress and solemn demeanour? The prison officers who are the subject of the allegations by Adebolajo will have to give evidence and be cross-examined by someone. For their own comfort and dignity, I’d be prepared to chip in for this to be done professionally. Which brings us to the next point.
  4. The allegations are serious. Adebolajo claims that the prison officers held him by the head and arms in such a manner that he lost two teeth. If he is right, the truth is far more likely to emerge if his case is presented, and the questions are asked, by a trained professional.
  5. Convicted murderers have rights. Our darker selves might secretly welcome the news that a convicted murderer has had a good roughing up. No more than he deserves, right? But the mark of our civilisation is that we hold ourselves up as better than the people who harm us. We do not descend to vengeance, much less vigilantism. For what he has done, Adebolajo will be imprisoned for the rest of his life. That is his punishment. It does not follow that public servants have carte blanche to use unlawful violence against him. As despicable as we may find him, we cannot let his actions degrade our basic standards of justice. If we do, he has won. Therefore if his rights are breached, he is entitled to a remedy. It may not taste nice. But the rule of law does not require that justice be dispensed only to people we like.
  6. There is a wider issue of public safety if he is being truthful. Aside from Adebolajo’s rights, there are also the rights of other prisoners to consider. If he is truthful, and prison officers have used unlawful force against him, this needs addressing. Because prison officers are not just in charge of the Adebolajos of this world, but many other prisoners who, by nature or circumstance, are inherently vulnerable to abuses of power. And some of these prisoners will be remand prisoners awaiting criminal trial. They have not yet been convicted of an offence, and some will never be. There are innocent people in the charge of the state in our prisons. They deserve an environment where they are not subject to gratuitous state-sanctioned violence.
  7. Adebolajo will not be “given taxpayer cash” whatever happens. The beloved tabloid trope envisages giant, Wheel of Fortune-style novelty cheques being proudly handed over, or oodles of cash being ladled into wheelbarrows and delivered to Adebolajo in prison, for him to fritter as he sees fit. This is a nonsense. Any legal aid granted would be paid – at modest rates – directly to regulated solicitors and barristers. There is no financial benefit to Adebolajo at all. If we start from the premise that he has no money, and so will not be able to pay for legal representation come what way, the options are stark: either he doesn’t pay and is unrepresented, with the consequences above; or he doesn’t pay and is represented in some form, whether under a conditional fee agreement (“no win, no fee”), by lawyers acting for free (pro bono) or through legal aid. We don’t know the details, but the judge who does appears to think that only the latter is a viable option at this time.
  8. The law is for the benefit of us all. As the Supreme Court was at pains to point out to the oblivious Ministry of Justice when recently ruling employment tribunal fees to be unlawful, court cases do not only matter to the parties involved. I’ll leave the articulation of this point to Lord Reed:ED5B7877-8DF4-4B9E-AF62-6788697419CBEF549A28-9FDD-401E-B9AE-B90811A0C157C045B493-201C-4163-8BDC-266582F788FAD8CEEB25-B763-4E8A-889C-407412406379
  9. The outrage isn’t that Adebolajo might be granted legal aid, but that so many others are denied the legal aid and help they need. This is borrowed in its pithy entirety from a tweet by barrister Douglas Lloyd (@DouglasLloydUK). There is certaintly an argument of disparity and unfairness here; but not the one upon which most are alighting. The devastation of legal aid and soaring increase in court and tribunal fees over the past decade have served to exclude vast swathes of mostly poor and desperate people from the justice system. This case raises questions – but distracted by our own uncritical rage, we are asking the wrong ones.

Putting the above together, I think there’s a compelling case for saying that justice – to all involved – is best served by having this man legally represented. Legal aid may or may not be granted; I do not know enough about this field to opine. But if it is, it will not be a taxpayer-funded privilege lavished on an ungrateful terrorist; it will be a sensible and restrained direction of public funds towards ensuring that justice is served to all involved – government, claimant, prison staff, prisoners and taxpayers.  Which, when one looks at the judge’s comments in context, is exactly what he was saying:

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A reply to Lord Adonis on sentencing, prisons and judges

I’ll be honest, out of all the ‘robust debates’ I’ve had online about criminal justice and sentencing of offenders, I would not have expected the most frustrating, fiery and ill-informed to be with someone advocating for less use of prison. It takes a special talent, I would suggest, to present an argument in such a way that you manage to alienate those who agree with your conclusion. Arise for your special badge, Lord Andrew Adonis, former Head of Policy at Number 10 Downing Street and erstwhile Transport Secretary.

The past few days have seen Lord Adonis stagger around Twitter swinging aimlessly at lawyers and judges like a punch-drunk case study on a late night police reality TV show. Every effort to gently usher him into the back of the van for some calm, reasonable, evidence-based discourse is met with another wild lunge towards camera – he has now blocked nearly every lawyer on Twitter – compounding the schadenfreude of rubbernecking passers-by. Unfortunately for Andrew, his identity is not pixellated to spare his embarrassment; rather emblazoned across each and every one of his (increasingly peculiar) assaults on the “cobwebbed judicial system”.

Let’s start with the common ground: Adonis believes that we have too many people in prison. I agree. As do, I would expect, most people who work in criminal justice. The statistics are trite, but no less shocking for that: England and Wales currently has around 85,500 people in prison. We imprison more people per capita than any other country in Western Europe (146 prisoners per 100,000 citizens). We have more prisoners serving indeterminate sentences – sentences for which there is no guaranteed release date – than the other 46 countries in the Council of Europe combined. Sixty-nine per cent of our prisons are overcrowded. Violence has soared by 68 per cent since 2006, with a 32% increase alone between 2015 and 2016 (a total of 25,000 assault incidents). Assaults on prison staff have risen by 40% in a decade. Deaths in custody have risen by 38% in between 2015 and 2016. The horror correlates with the £1bn cut to prison budgets by the last government and the 30% reduction in prison staff. And whatever else prison is supposedly achieving, stopping reoffending is not it: 44% of adults are reconvicted within one year of release. For those serving sentences of less than 12 months this increases to 59%.

And numbers have increased steeply over the past two decades. The prison population rose by 90 per cent from 1990 to 2016. This is a recent, and peculiarly English-and-Welsh, problem.

For Adonis, the prescription is simple. The problem is the judges, whacking their gavels and sending people to prison for longer:

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Why are judges doing this? “Fear of tabloids”, Adonis posits:

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Extracts cannot really do justice to the tirade of tweets that Adonis launched towards the judiciary on this theme, and I’d recommend reading his Twitter timeline (with a glass of something stiff) to get the full flavour, but this is the nub:

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Now some of us hacks did indeed offer a defence of judges (who, by constitutional convention, are not permitted to speak out publicly to defend themselves). And we did so not because, as Adonis suggests, we have a desire to become a judge (I think I have successfully set fire to that particular lifeboat for myself through this blog and my forthcoming book), or because we think all judges are wonderful (SPOILER: They’re not – most are excellent, but some are significantly less so), but because we see criminals being sentenced every single day, and have a certain experience in this field. And I struggle to think of many cases I’ve been in, either prosecuting or defending, where I have suspected that a sentence has been inflated because of an eye on reporters in the public gallery.

As for Adonis’ experience, I did ask how many judges he had seen passing excessive sentences out of fear of tabloid retribution, but received the following, less-than-full response:

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The thing is, while to a layperson Adonis’ criticism would seem to make sense – judges are the ones passing these sentences, after all – a little knowledge of the law teaches that, to a large extent, judges’ hands are often tied, or at least lightly bound with handkerchiefs. That is because sentencing is not, as many might imagine from pop culture, an exercise in plucking a figure out of the air, whacking a (non-existent) gavel and intoning, “Take him down”. Crown Court judges are instead required to apply a horrendously complex morass of sentencing law and guidelines, which severely limit their room for manoeuvre. While they have discretion to pass a sentence that meets the justice of an individual case, it is a fallacy to presume that this discretion is at large.

Firstly, there are Sentencing Guidelines for most criminal offences, which judges are required by law to follow. We’ve looked at these guidelines in previous posts dealing with specific cases, but in short, they provide judges with a mixture of flow-charts and grids, setting out sentence “starting points” and “ranges” depending on which factors are present in a particular case. There is ultimately discretion built in as to where on the guidelines a judge pitches a case, but you can see for yourself that there is often not a great deal of wiggle room. Guidelines are set by the Sentencing Council, whose members are drawn from the judiciary, magistracy, legal practitioners, academics, police and the Director of Public Prosecutions. Guidelines are subject to public consultation, and the Council is accountable to the Ministry of Justice and has a statutory duty to consult with Parliament. The Sentencing Council is not, lest you be confused by Adonis’ complaints, a gaggle of judges operating under a cloak of secrecy.

Now I make clear – I do not agree with all of the guidelines. I think, for example, the way in which drugs are sentenced is largely ludicrous. A starting point of 4.5 years’ imprisonment for someone selling a few wraps of crack cocaine to fund their own habit is, with respect, the hallmark of a society that doesn’t have a clue what it is doing with drug policy, although the malaise for that lies with political culture at large, not the Sentencing Council. But even if you accepted Adonis’ view that the Council was a bunch of industry insiders fixing oppressively long sentences out of a desire to placate the red tops, it does not explain how, as Adonis postulates, it is fair to level cowardice charges at the several hundred other judges who are required day-to-day to follow the guidelines.

And, more importantly, judges must follow the law. Sentencing legislation is made by Parliament, which includes among its members Lord Adonis, as a member of the House of Lords. And judges have to follow the law set by Parliament. There is no discretion here. That is the essence of the rule of law and our basic constitutional settlement. I say this, because Adonis has suggested that judges should have “argued against” the government’s “policy” – by which he can only mean that they should have revolted and refused to follow the law that the government enjoined Parliament to make. So let’s get that sixth-form concept straight: judges have to follow the law set by Parliament.

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Now, as for what the law says, we can see that over the past two decades, politicians have scrambled to salute Michael Howard’s prison works squawk and increase the ways in which they can force judges to pass longer sentences. This included “mandatory minimum” sentences for repeat offenders – such as the 3-year minimum sentence for repeat burglars and the 7-year minimum for repeat drug traffickers – brought in by the New Labour government of which Adonis was a part. This same legislation – the Powers of Criminal Courts (Sentencing) Act 2000 – also introduced mandatory life sentences for offenders committing a second serious offence (a provision later abolished, re-imagined and re-enacted).  And there are many, many others.

But for now, I want to look briefly at one area to which Lord Adonis refers in the above tweet – indeterminate sentences.

In 2003, when Adonis was ensconced in the bosom of Downing Street as Head of the Policy Unit, New Labour brought forth the Criminal Justice Act 2003, a huge, unwieldy piece of legislation which did many things, including introducing the notion of Imprisonment for Public Protection (IPPs). You may have heard of these – they have been in the news recently, as people given short “minimum terms” of as little as 10 months ended up serving over a decade under such sentences. The way that IPPs worked in theory was as follows: The judge would set a “minimum term”, after which the defendant would be eligible for release on licence, as long as he could satisfy the parole board that he was no longer dangerous. If he could’t satisfy the parole board, he would be detained until he could, potentially forever. As it happened, the government decided that they couldn’t afford to provide the rehabilitation courses that prisoners were required to pass in order to satisfy the parole board, meaning IPP prisoners were trapped in a Kafka-esque nightmare. For this reason, the Court of Appeal found that then-Justice Secretary Jack Straw had acted unlawfully in failing to provide the rehabilitation programmes, and in 2012 IPPs were repealed (although those passed before that date remained).

Now when IPPs were first introduced, if a defendant convicted of certain violent or sexual offences was found to be “dangerous” – the legal test for which was that he posed a significant risk of serious harm to the public – an IPP had to be passed. The judge had no discretion – the law was clear. If the offender met the risk threshold, the judge was not allowed to deal with him in any other way. This, unsurprisingly, led to an explosion in prison numbers – around 3,700 prisoners were serving IPPs by 2007.

This was the law until 2008. Parliament, realising its error, then amended the legislation to give judges discretion as to whether to impose IPPs where certain criteria were met. The word “must” was changed to “may”, and the threshold for imposing IPPs was heightened, to remove the scenario of tiny minimum terms (one as low as 28 days) resulting in years being spent behind bars. And, given discretion, judges stopped imprisoning as many people under IPPs.

Why do I focus on IPPs? It’s because they are the prime factor responsible for the increased use of prison. As the Parliamentary statistics that Adonis himself cites shows (thanks to @ProfChalmers), the length of sentence for all offenders has remained relatively stable across the 11 year period (2005 – 2016) except for a notable increase in indeterminate sentences.

That is not to say that all IPPs imposed were rightly so. Judges after 2008 did have discretion, and no doubt there will have been instances where it can be argued that an IPP was imposed where it need not have been (and many such cases will have been argued successfully before the Court of Appeal).

But what this incontrovertibly shows is that far from judges imposing increasingly lengthy sentences “out of fear of tabloids”, it was in fact politicians – Lord Adonis and his colleagues – forcing judges to impose certain types and lengths of sentence that was the greatest contributing factor to the increased use of prison. As for why politicians felt compelled to act in this way, you would have to ask them. But it may be there that “tabloid fear” finds its rightful resting place.

As for other factors of note that we can identify, we can see from the chart above an increase in determinate sentences of over 4 years. We can also see over the past 16 years a surge in prisoners convicted of violent and sexual offences:

Partly, this will be because of the increase in violent crime. Partly this will be attributable to the fact that the CPS are prosecuting more sex offences than ever, particularly allegations of historic (or “non-recent”) sexual abuse. Neither of these factors have anything to do with the judges. And, faced with serious sexual or violent offending, the guidelines and the legislation make clear what judges are required to do.

Conclusion

Ultimately, this is a silly argument, given the broad area of agreement between Lord Adonis and most lawyers. But I waste my Sunday afternoon to unpick Adonis’ complaints, even though I think we are on the same side, because there is no point embarking upon a remedy if you have mis-diagnosed the illness. And what is increasingly clear from Adonis’ tweets is that he lacks some fairly rudimentary understanding of the legal system.

For example, he suggests that Lady Hale, as the new President of the Supreme Court should “call out the trend to ever longer sentences”, apparently oblivious to how the Supreme Court operates.

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Sentencing policy has nothing to do with the Supreme Court. The Supreme Court’s only role in criminal sentencing is to rule on the infinitesimal number of criminal sentence appeals that make it to the Supreme Court from the Court of Appeal. Why are so few criminal sentence cases heard at the Supreme Court? It’s because in order to appeal upwards from the Court of Appeal to the Supreme Court, either the Court of Appeal or the Supreme Court has to certify that “a point of law of general public importance is involved in the decision”. This is a high threshold, and excludes the vast majority of sentence appeals (which tend to turn on their individual facts, rather than wider points of public importance). If you think that this threshold is too high, and that more criminal sentence cases should be capable of being litigated before the Supreme Court, you know who you can blame? Either the Parliament which enacted s.33 of the Criminal Appeal Act 1968. Or the Parliament which created the Supreme Court and defined its jurisdiction under the Constitutional Reform Act 2005. Head of Policy Unit at Number 10 Downing Street when the Supreme Court was created in 2005? Andrew Adonis.

Nor, regrettably, can the Lord Chief Justice, who is head of the judiciary and president of the Court of Appeal (Criminal Division), which hears sentence appeals from the Crown Court, decide of his own motion to “cut most sentences”. What on earth does this mean? That every sentence appeal he sits on must be allowed, irrespective of merits, in order to achieve an overall reduction? That the current legal test that the Court of Appeal applies, allowing appeals against sentence where sentences are “wrong in law or principle” or “manifestly excessive” be lowered to something less? If so, that is not within the gift of the Lord Chief Justice alone.

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I fear that Adonis has a rather childlike conception of the interaction between our various courts. If the Big Judge at the top says something, then all the other little judges will do it, seems to be the gist. It is alas not that simple. Sentences will not become shorter across the board simply because Lady Hale decrees, a propos of nothing, that it should be so. It is the same simplistic view of the world that claims, with a straight face, that the judges should, somehow, have stopped Adonis’ government from doing the reckless and damaging things it did:

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The solution, unfortunately for Lord Adonis, lies closer to home. Politicians, who are paid to make the arguments, need to change the tone of public debate on criminal sentencing. The corrosive tabloid culture that Adonis rightly decries is not going away. Parliamentarians need to be brave, and confront the toxic narrative of longer sentences and prison holiday camps that has informed Ministry of Justice policy for the past decade. Constituents should be told about the realities of prison and its proven limitations in reducing crime. The Dutch model that Adonis has held up as an example should be advocated by mainstream politicians on prime time interviews, not relegated to social media spats between ex-policy wonks and lawyers. The statutory manacles forcing judges to impose long sentences for certain offences should be re-examined and, where appropriate, released. The Justice Secretary could consider using s.128 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which would allow him to change the test for releasing the 4,000-odd remaining IPP prisoners who have served beyond their minimum terms. The plan to double the powers of magistrates – non-legally trained volunteers – to imprison people, allowing them to lock defendants up for a year for a single offence, could be snuffed out. If short prison sentences don’t work, why not consider a presumption against their use, as proposed by the Lib Dems at the last election? The increasingly popular trend for the Attorney General to “refer” (appeal) sentences as “unduly lenient” to the Court of Appeal – and to feed the prison works narrative by boasting about its successes – could be challenged. There has been a 108 per cent increase in AG References since 2010, no doubt attributable in part to media campaigns whipping up anger at perceived “soft sentences”, opinions often formed in wholesale ignorance of the facts.

There is a lot that could be considered as part of a remodelling of criminal sentencing. And no doubt judicial inclinations will form part of it. I don’t deny that some judges use prison too readily; of course they do. They are subject to the same human frailties and cognitive biases as the rest of us. But it is Adonis’ eagerness to pin the bulk of the blame on the judiciary, and the unsubstantiated assertion that they habitually falter out of genuflection to the tabloids, that I consider to be unfair. Because as we can see, that is not where the real problem lies.

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POSTSCRIPT

In case anyone saw, listed amongst his various grievances with the legal system, the following tweet by Lord Adonis, I should like to make two brief points.

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  1. The Law Commission is a statutory independent body that conducts detailed research and consultations and makes recommendations, usually accompanied by weighty published reports, for changes in the law “to ensure the law is as fair, modern, simple and as cost-effective as possible.” The decision on whether to implement a recommendation by the Law Commission is for Parliament alone. Parliament. Which includes Lord Adonis. If “nothing changes”, the fault is entirely with the politicians.
  2. But it’s not right to say that “nothing changes”. Two thirds of the Law Commission’s recommendations have been implemented. For a look at exactly what recommendations have been accepted, implemented and are pending, there is a handy list here, with which Lord Adonis may wish to familiarise himself. A subsequent apology to the Law Commission for his ill-informed and intemperate tweet as a senior Parliamentarian would, he might feel, be the very least he can do.