The Oxford Bread Knife story pootles on, given fresh wind each day by some hot take or other in the op-eds. There has been a lot of reaction on social media, and many people have taken the time to contact me to explain, in varying degrees of politeness, why they do or do not agree with what I’ve said. One article in particular is of interest – this blogpost here by Richard Moorhead. It is a thoughtful piece, with which I largely agree; although it leads me to worry that my position, not only on this story but on legal reporting in general, might have been misunderstood. I took it to be suggesting that, in explaining the legal framework of the Bread Knife story, I might be offering “a minimalistic defence” of the decision. Richard, rightly, said that, “Patting an irritated public on the head and saying, you don’t understand the law sweetypops doesn’t get you very far”, and, equally validly, suggested that “seeking to neutralise arguments on the basis that the law has been followed is not much help”. I don’t know if these last two were general points or aimed at my post in particular; but in any event, I appreciate that there is a risk that I have not explained myself sufficiently clearly, such that misapprehensions have been allowed to gather. So I wished to briefly clarify, as a standing disclaimer to which I can return as a shorthand in future debate, some of the ground rules underpinning my writing.

quill and parchment

My starting point is that the law, and understanding of the law, should be a shared asset. We are all bound by it, and all rely on its proper and just functioning to underpin the fundaments of our daily lives. Criminal law is of particular importance, and holds particular public intrigue, as it regulates the Golden Rules of civilised society, breaches of which are met not merely with financial penalties – as with civil law – but with the state swooping in to interfere with the subject’s liberty. To commit a crime is to break a social rule so important to our shared values that its enforcement cannot be left to private individuals. A crime against one person is a wrong against us all.

It follows that we all have an interest in ensuring that criminal law meets our expectations of “justice”. We may differ on exactly what that entails, but we can probably reach a democratic consensus on its core elements: We should all receive equal treatment before the law. We should all have a say on what the law is, through our democratically elected representatives in Parliament. We are each of us, when we are accused, entitled to a fair trial before a independent public tribunal. We are entitled to know the case against us and to receive independent professional advice on how the law applies. We should be permitted legal representation to robustly test the law and evidence against us, irrespective of our means. If we are a victim of or witness to a crime, we deserve to be treated humanely and with dignity, and our discomfort should be minimised, permitted only where necessary to ensure a fair trial for the accused. Where guilt is proved, the state response must be proportionate, striking the delicate balance between the overlapping and competing aims of punishment, rehabilitation, reduction of crime, public protection and restitution. And we should have a fair and functioning corrective; an appellate system to step in when things go wrong.

My fear, and one which propelled me when I started this blog, is that criminal justice in practice often fails our lofty ideals. Sometimes the problem is with the law itself; sometimes with its execution; sometimes the problem is that the system is financially starved or otherwise perverted by political interference. And most of the time, the public have little idea what is going on. There is, in criminal justice possibly more than any other sphere of public life, a devastating lack of public education, exacerbated by inaccurate, ill-informed media reports and political pronouncements that betray an ignorance of the legal system that stretches up to the very top of government. This lack of understanding means that politicians escape scrutiny when terrible things are wreaked upon criminal justice – such as the policy that you can be wrongly accused of an offence, denied legal aid and then denied the cost of your private legal fees even when acquitted – and that, when we see a legal story reported in the press – such as the latest “look at how much legal aid this murderer received from YOUR TAXES” – we often lack the tools to critically evaluate it.

Part of the problem, as well, is the legal profession. We do a stunningly poor job of explaining to people what the law is, and why it matters. Too many of us are content to busy ourselves in our own work, safe in the knowledge that what we do is important, but without feeling the need to deconstruct for the man on the street why two wigged figures incanting Latin before an old man wearing a giant purple robe, and the obscured codes and rules governing this mediaeval ritual, has any relevance to their everyday life. We then wonder why there is an obvious disconnect between the legal system and the people it exists to serve and protect.

This is where I hope to help. By writing about popular legal stories in the news, I aim to shine a few shaft of light on what is happening beneath the headlines. I want to give the context that you may not be getting from news reports, to explain the legal structures that inform legal outcomes, and to point out where information gaps lie. Often this will involve challenging media narratives – such as “The Ched Evans case sets a precedent for a rapist’s charter” – other times I will simply point out that the gaps in our knowledge about a particular case render it difficult to draw any conclusions as to whether a problem exists, or what its cause might be. Often I will find myself – a far cry from the day job – standing up for judges, explaining why an unpopular decision might not be their fault. Other days I might robustly disagree with a legal decision or policy, but for reasons adjacent to what has been reported.

When I do this, I am not seeking to neutralise argument or shout down opposing views with a patronising, “You wouldn’t understand, sweetypops – it’s the law”. If I ever appear to do so, or if I ever seem to be suggesting that “It’s the law” is the end to an enquiry about whether an outcome is just, I am at fault, because, to the contrary, I want to incite and inform debate. I want people to be excited, livid, passionate and furious about criminal justice. But I want that debate, so long defined by misrepresentations and outright lies by tabloid newspapers and mendacious politicians, to be informed and accurate. When we are livid at a sentencing decision that offends our instinctive conception of justice, I want us to be able to distinguish between a decision that has been foisted upon a judge by case law or Sentencing Guidelines, and a free exercise of judicial discretion, so that we can properly target the root of the “problem”. When someone isn’t charged or convicted, or prison isn’t imposed where we might expect it to be, I want to explore from professional experience what other factors might explain an apparently odd decision. If we are told that victims are being failed and the law is in urgent need of reform, I want us to understand the competing arguments about defendant’s rights, and present the law and facts that might inconvenience campaigners. If commentators wheel out the Legal Aid Fat Cats trope in support of government efforts to restrict your access to legal representation when you are wrongly accused, I want to debunk it.

None of this is intended, necessarily, as taking a position on or mounting a “defence” of the substantive decision or the law itself.  Often I won’t be able to defend a decision, for the simple reason that we don’t know enough about a given case to form a fair view, and I will give a tepid call for calm. This should not be mistaken for complacency or a denial that there is any merit in public concerns; unless I state otherwise, it will be intended as a (perhaps unsatisfactory): We Simply Don’t Know Enough About This To Draw Conclusions, But Here’s What the Law Says. If your response to that is, “Well I want to know more, and I want some conclusions” – then we are on the same page. Sometimes, where I feel I can, I will offer a view on the merits of a debate – as with the Bashir case, in which I opined that the sentence appeared lenient given the facts, or in the Ched Evans case, where I explained why the argument presented by certain politicians was factually and legally inaccurate. In other cases, I will hold up my hands and say that I am not sure which side of the line I fall – as with the Marine A case, in which I explained why both extremes of the argument were wrong.

But I repeat, because it is vital: my stridency or irritation with the presentation of the law should never be read as seeking to protect it from scrutiny, or to casually dismiss issues of concern. It is obviously proper – no, vital – that people raise questions about the law, even where there is little information. I would never blame anyone for asking, “How is it that a person can stab their partner and avoid prison?” I would not take issue with anyone using these stories as a jumping off point to call for more information into an area of criminal law, such as whether we are all really treated equally under the law.  But I do take issue with, and will challenge, people reaching settled conclusions – the judge was an idiot, or biased, or the law needs comprehensive reform – based on partial media reports of a single case. It is this rush to swallow sensationalist soundbites without pausing to gather facts, that I hope to stymie, whether with expositions of the law, data (where available) or anecdote from professional experience.

So that is why I write. I come not to bury criticism of the law, but to praise it. There is a lot wrong with the law – procedurally, substantively and culturally. Just because something is lawful doesn’t make it just. If a few years at the coalface of criminal justice teaches you anything, it is that. I will sometimes say simply: “This is the law”, and leave the deeper question of substantive justice unanswered, for others to mull over. If I ever appear to be relying on, “This is the law” as a full explanation for the justice of a decision, pull me up on it. Because they do differ. And it is occasionally too easy for those like me, stuck in the system, to fall back on that.

Finally, I don’t expect – nor do I want – universal agreement to my meandering streams of legal consciousness or precious political posturing. I want all of us to constantly re-evaluate and question the assumptions underpinning justice, assumptions which I no doubt, despite my efforts, fall prey to. I want us to argue about what the law should be, how it should work in practice and what it says about our society. I want us to care about its failings and campaign tirelessly for its improvement. My aim is simply that when you and I, or you and those Twitter armies, or you and your workmate, cross swords over a legal story, we all stride onto the battlefield equally armed with the law, facts and acknowledged gaps in our understanding.

Because ultimately this affects us all.

thesecretbarrister Contemplations, Lawsplaining , , ,

17 Replies

  1. Well explained stance on a complicated and largely misunderstood subject.
    Enjoy your posts, even if I don’t get it either!
    As a , somewhat specialist, law enforcer I like learning about legal nuances and having those light bulb moments.
    Keep up the good work!

  2. Please insert appropriate extracts from this post into every other post you write.

  3. As a former lawyer, albeit not a criminal practitioner, I find your blogs measured and very helpful. On occasions I have posted or sent links to friends who appear to react to the media spin to try to set things into a proper context.
    I hope you’ll not be deterred from continuing.
    Many thanks

  4. Please keep on explaining this law-stuff; it matters, a lot.

  5. This is a great defence of your writing – and good practise to stand back at this stage and consider/explain why you blog. I enjoy your posts very much and hope you will continue to debunk ignorant representations of the law for a long time to come.

  6. We are all grateful for your commentaries on cases in the public eye; those who aren’t lawyers have difficulty sometimes understanding how things came to be where they are.

    Nonetheless, I feel it is worth endlessly repeating that the Courts give ‘law’ and not ‘justice’, and emphasise the difference between the two. You might explain why when it says outside ‘The Royal Courts of Justice’ that inside people get ‘law’ instead.

    Behind all this there are further difficulties which I think you haven’t addressed. ‘Evidence based’ practice is the name of the game today in many spheres, certainly in mine — medicine. It’s not enough to hold an ‘opinion’, this must be backed up by evidence gained from research.

    Research into legal practice seems to be to be lacking; perhaps I don’t look in the right places. Yet we are not allowed, on pain of penalty, to investigate how a jury came to the conclusion it did. Judges commonly refer to a jury as a cornerstone of common law legal practice; but are we clear that the jury (almost) always reaches a conclusion based on the evidence carefully considered? Or are there other factors — wanting to get home early for tea, for example?

    You may be aware of Diplock Courts in N Ireland, where a judge in a criminal case decided the question of guilt — there were major problems with jury nobbling and threats. Are such verdicts really as valid as those that a jury might give? What evidence is there that says that juries are usually correct? (I do allow that juries occasionally give perverse verdicts, a two fingered salute to authority.)

    And sentencing: you explain the rules and guidelines clearly. Yet I have read that judges can give harsher sentences in the period before lunch, and much more lenient ones after they are replete. Is there really evidence for this? Has the question been asked and answered?

    In the past there were ‘hanging judges’; are we to believe that those days are gone?

    The absence of evidence around trials, verdicts and sentences must surely imply that the law regards itself as above inquiry and investigation; is this still appropriate today?

    1. It is unlikely that juries hurry their decisions in order to get home for tea nowadays, because jury service doesn’t work that way anymore. Once jurors have reached a decision on one case, they can be immediately assigned to another, so long as it starts within the two week period specified when they were called (it doesn’t matter whether it finishes within that period – if it drags on that’s just tough). What I can imagine though, is that a jury might spin their deliberations out, to ensure that a case finishes too late for them to be assigned to another. It would be interesting to see statistics for finishing dates and times of cases, my suspicion is that you get a lot finishing late on Friday afternoons, with comparatively few on Thursdays or Friday mornings.

  7. Thanks again for your blogging. It is valued.

    Obviously, there are plenty of questions worth asking about the legal system (as noted in the comment above). But it’s still worth explaining why it works the way it does, and where necessary, defending it, to those less well-informed. The real problem is that plenty of intelligent people in this country have no real knowledge of basic points about the legal system, and often no desire to know. We could do with an element of legal education being on the National Curriculum…

  8. Sorry, can’t just “like” your post because WordPress is special. I appreciate your blog largely for the reasons you post to it, even though I’m in Australia. We have a similarly opaque legal system and a great deal of Murdoch-owned media telling us about it. With similar results, as it happens – in Victoria they explicitly cut early childhood education to fund a private prison (to hold the children left as criminals for want of early intervention. It’s very clever).

  9. Sorry, can’t just “like” your post because WordPress is special. I appreciate your blog largely for the reasons you post to it, even though I’m in Australia. We have a similarly opaque legal system and a great deal of Murdoch-owned media telling us about it. With similar results, as it happens – in Victoria they explicitly cut early childhood education to fund a private prison (to hold the children left as criminals for want of early intervention. It’s very clever).

  10. Thank you for taking the time to try to unpick some of the important issues in high profiile cases.
    IMHO you always do so with clarity and objectivity and,as far as I see it,without beating a drum for your own view of the rights and wrongs of the outcome.
    Keep it up.What you are doing is admirable,clear and interesting.

  11. Thank you for your explanation above, but I think, in a nutshell, most of us already know that the law doesn’t necessarily have anything to do with justice but primarily reflects the vested interests of those who hold the most power in society.

  12. Reblogged this on seftonblog and commented:
    The Lone Ranger was a childhood favourite, righting wrongs, doing justice. “who was that masked man?” The Secret Barrister should have a horse called called Silver. The SB is my OAP hero.

  13. I agree entirely with your extremely thorough and well present explanation as to why the sentence in all circumstances might very well be appropriately sentenced (according to the guidelines) by way of a suspended sentence. There are many examples of people with similar good character, but without the university background and career opportunities as this Oxford University student, who have also received suspended sentences for similar offences. The difficulty I think a lot of people have is that the judge appears to have cited this defendant’s ability and desire to enter a certain profession as the reason for possibly stepping back from an immediate custodial sentence.

    The judge is reported as saying, “To prevent this extraordinary, able young lady from following her long-held desire to enter the profession she wishes to, would be a sentence which would be too severe,”

    The first point is that it will not make the slightest difference to her chances of entering this profession whether this sentence is suspended or not. This conviction will be disclosed on her application to join the profession regardless. A suspended sentence is still a custodial sentence, and any discretion the professional body might want to exercise as to whether she can join that profession will depend on the facts of the conviction as disclosed by the Disclosure & Barring Service/Police as well as any representations she chooses to make at the time of application, not the judge’s decision to suspend or not. Therefore, for the judge to cite that as a reason for stepping back from an immediate custodial sentence (assuming the reporting is accurate) is mistaken.

    Second point (and more importantly) is that by expressing himself in that way it appears to the wider public that her “extraordinary talent” and long held desire to enter the medical profession are the reasons for potentially stepping back from immediate custody.

    The reasons for not imposing an immediate custodial sentence are very clear from your excellent explanation of the guidelines, but the perception to the general public as to why custody was not imposed appears to have been clouded by the unfortunate way the judge has expressed himself with his impression of her academic talents.

    On a separate note, I do also wonder whether the judge might have been considering a non-custodial, community sentence. After all, a suspended sentence is still a custodial sentence… “What you did will never, I know, leave you, but it was pretty awful, and normally it would attract a custodial sentence.”

    1. Employment as a medic in the NHS requires a disclosure of all convictions; for the NHS, and others, convictions aren’t ‘spent’.

  14. Regarding criticism of the law, IANAL but I do have a significant amount of contact with the CJS to the end that I have spent many hours looking at charging standards and sentencing guidelines.

    Therefore I wonder in what circumstances would a significant number of victims, such a gross and no mitigation (a lack of previous convictions not being confused with a lack of a pattern of offending) get us outside of the Category 1 range. I refer to

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