Will Quince MP: An addendum

This serves as an addendum to the previous post, but I thought it was worthy of attention in its own right.

To those who missed it, a brief recap: Will Quince, MP for Colchester, publicised a letter he had sent to the Lord Chancellor, in which he expressed his view that a sentence passed in a local Crown Court on two burglars was unduly lenient, and invited the LC to agree. I took umbrage at the fact that this settled criticism had been formulated without knowledge of the full facts of the case, nor any acknowledgment of Sentencing Guidelines that judges are required to follow, and wrote a fairly impolite and intemperate rejoinder.

Mr Quince and I corresponded on Twitter, and having reflected I updated the post and apologised to Mr Quince for its original tone. Since that time, we have exchanged emails and discussed matters further. Mr Quince has then yesterday sent this letter to the Lord Chancellor, Attorney General and Bob Neill MP, Chair of the Justice Select Committee:

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The letter speaks for itself. And, if he will forgive me saying so, it also says much positive about Mr Quince.

Although (for the reasons expressed in the last post) it appears to me that the Sentencing Guidelines were properly applied in this case – and that a comment from the Lord Chancellor on a specific case is unlikely – I obviously cannot and do not take issue with him posing the question and seeking further information. It is similarly entirely proper for him to reflect the concerns of his constituents and to ask whether the Sentencing Guidelines, as presently drafted, command public support. He is not alone in his concern that Sentencing Guidelines sometimes betray inconsistencies and appear out of kilter with public expectations; many in the professions would agree. For completeness, I would add that the links to the public consultation exercise that informed the Burglary Guidelines can be found here (with an explanation of the role and functions of the Sentencing Council here).

It is rare for a public figure, when challenged or corrected on the way they have represented the law, to admit an error or a rush to judgment. It is even rarer for them to take steps to publicly adjust their position.

It is to Mr Quince’s enormous credit that he has done so with such speed and candour, not least given that I did not initially engage him in particularly cordial terms. For that, I again apologise. It is too easy to assume that all MPs who opine misleadingly on the law do so with the chronic, wilful ignorance and boastful obstinance of Philip Davies, rather than to countenance the possibility that this is a human being making a mistake in good faith. I am grateful to Mr Quince for, through his conduct over the last few days, reminding me of this.

A court soft on burglars, or an MP missing the facts?

It would be nice to usher in 2017 with an exciting fresh take on a vibrant, buzzing legal issue of the day. As it is, the first post of the New Year is to be spent – and I fear this will be a recurring theme – reminding an elected Member of Parliament how the law works. That this has to be done in any case is depressing enough, but today’s is particularly disquieting given that the MP in question, Will Quince (Con, Colchester), is a qualified solicitor.

His LinkedIn profile states that he spent just under two years post-qualification working  in the Business Services department of a firm of solicitors in Colchester before being elected to Parliament in May 2015. It is unclear whether he has ever practised in crime. Nevertheless, he has this weekend made it his business to write, on Parliamentary letterhead, to the Lord Chancellor Liz Truss about “far too lenient” sentences that were passed last week on two local burglars, inviting her to join him in his condemnation.

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A burglar

Mr Quince was not actually at Ipswich Crown Court for the sentence of Raymond Tauchert (55) and Carlton Ho-Ten-Pow (36) following their guilty pleas to a single count of burglary. But he read a report in his local newspaper about how the two men broke the window of the Colchester branch of Ernest Jones jewellers with a hammer in the early hours of October 20th last year and grabbed £8,200 worth of jewels, and how a two-year suspended sentence was imposed in each defendant’s case, and he is jolly cross about it. And Mr Quince wants the Lord Chancellor, the press and his Facebook fans and Twitter followers (to whom he has retweeted the press coverage of his campaign) to know.

It is a shame, I would respectfully observe, that he didn’t acquaint himself with the facts before doing so.

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Because had he done so, he would have learned several things. Firstly, he would know that there is no such offence as “armed burglary”. Secondly, that there is in any event an important distinction between being armed for the purpose of threatening violence, and having a tool with you to break a window. Thirdly, and more pertinently, he would have been alerted to the existence of Sentencing Guidelines. These are the guidelines, produced by the Sentencing Council, which courts are legally required (section 125 of the Coroners and Justice Act 2009) to follow when passing sentence on a defendant. Specific guidelines exist for burglary. And at page 12 we see how a court is required to approach offences of non-dwelling burglary, step by step.

As the tenor of Mr Quince’s complaint – soft judges passing soft sentences – is a familiar refrain among politicians, it might assist to play through the sentencing exercise that courts are required, by legislation passed by those same politicians, to follow.

Step 1 is reproduced below. The court must first identify which category the burglary falls into, to arrive at a sentencing range. This is done by looking at a list of factors indicating “greater harm” and a separate list indicating “greater culpability”, and seeing which apply to the facts of the case.

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Immediately, you may spot a problem – how do we know the exact facts of the case? Well, we don’t. We know about as much as Mr Quince. Which is what a journalist has chosen to selectively report from what the prosecuting and defending advocates have said over the course of a twenty to thirty minute hearing. We haven’t seen a transcript of the prosecution opening of facts, nor of the mitigation advanced, nor the judge’s sentencing remarks. We haven’t read the detailed Pre-Sentence Reports prepared by the Probation Service. And we haven’t seen the prosecution papers containing all the evidence. So we are going to have to follow Mr Quince’s lead in arriving at conclusions based on partially-glimpsed fragments of the full picture.

But let’s have a go.

Goods to a value in excess of £8,000 were stolen, and even to a large jewellery company, that would still amount to a “significant loss”, and for that reason this is a case of “greater harm”. None of the other factors indicating greater harm appear to be present. There was no suggestion that anyone was at work – this was after all the middle of the night – nor that there was any ransacking or vandalism beyond the damage caused to the window. Nor are there any factors indicating lower harm. Higher culpability is also present – this was a group (it is suggested that three men were involved, the third remaining at large) and they had a hammer to effect the break-in. So this is comfortably a Category 1 offence.

What does that mean? We turn the page:

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It means a starting point of 2 years’ imprisonment. With a range of 1 to 5 years’ custody. We then see a range of factors that increase and decrease seriousness, which the judge applies to move the sentence up and down that range. It’s worth interposing here the (perhaps rather obvious) point that each defendant is treated separately. You don’t, as Mr Quince’s letter seems to imply, add up the combined convictions of both defendants and punish each for the other’s previous misdeeds.

What we are told about Tauchert is:

  • He has 18 convictions for 52 offences;
  • He was on licence at the time of the burglary having been jailed for nine years in 2010 for conspiracy to supply class A drugs and handling stolen goods having been part of a gang raiding warehouses;
  • He was released in March 2013 and had not committed an offence in over three years;
  • His mother died in the summer from cancer and he returned to taking heroin. He took 100 morphine tablets and was committed to hospital.

His convictions are plainly an aggravating feature, as is the fact that he committed this offence while on licence. We also know the offence was committed at night, although not, it seems, when anyone was likely to be present at the store. In his favour, a 3-year period of non-offending is notable for someone of his criminal history, and he appears to have taken steps to address a longstanding addiction. Importantly, there was, the court appeared to accept, a genuine trigger for his recent tumble back into old ways. It does not excuse his criminality, but it mitigates it. And will give a court cause to pause to consider whether a return to prison is likely to do more harm than good to his long-term rehabilitation.

Of Ho-Ten-Pow, we know only that:

  • He has six convictions for 22 offences, including an offence for drug trafficking;
  • He was the subject of a community order at the time of the burglary;
  • He has expressed remorse;
  • He was in a bad relationship, had lost 4 1/2 stone and had fallen back into drug use.

Similar considerations apply, albeit his sob story may not pack the same punch. It’s worth noting that we know nothing about his existing community order. The court will have had all that information as its fingertips. The Probation Service will have reported on his progress on this order and whether, in its professional view, this is a defendant worth persevering with.

We also know that both defendants pleaded guilty and were entitled to one third credit for an early guilty plea. This is standard across all courts. Guilty pleas save everyone – court and witnesses – time, expense and worry, and so defendants are given a discount on their sentence if they admit their guilt early on.

Additionally, and importantly, both defendants had been remanded in custody since their arrests in October. So they had already served around 3 months in prison (the equivalent of a 6 month sentence), which would by law count towards any sentence of imprisonment.

Putting that all together, the Gazette reports that the judge adjusted the sentence up from 2 years to 3 1/2 years to reflect the aggravating features. Given what we know, this appears entirely sound. This is not the most serious Category 1 offence – as far as “diamond heists” go, this was hardly Hatton Garden territory, and, crucially, there was no confrontation with any individual, which is the usual trigger for a sharp tilt towards the top of the range. 3 1/2 years is around what I would advise a client to expect after a trial for this offence.

There then appears to have been a downward adjustment to 3 years – perhaps for the personal mitigation – before the judge (or Recorder, as he was) applied the one third credit to arrive at 2 years’ imprisonment.

Any sentence of 2 years or under can be suspended. We do not know for sure why the judge suspended it in this case, but the history of drug use, rehabilitation and relapse may well have led the judge to conclude that it was worth taking a chance on these defendants and giving them a suspended sentence with drug treatment and rehabilitation requirements. If they foul up, they’ll go straight to prison. If not – if they get clean and stop committing crimes – everybody, in particular the good and law abiding folk of Colchester, wins. Pre-Sentence Reports are often persuasive in these cases.

So considering what little we know about the offences, there does not, to my professional eye, appear to be anything outrageous about these sentences. The men were fortunate, perhaps. Some judges may not have taken the chance, and may have sent them straight down for two years. Possibly a little more. But nothing about this case suggests that the judge has done anything that he was not fully entitled to do on the guidelines.

And this would have all been plain to Mr Quince had he taken the time to to research the law and the facts, or to ask a criminal lawyer for help, or to seek a source of information beyond a 640-word news article, before firing off his letter to Liz Truss.

Most disappointingly of all, the letter is entirely misdirected. The Lord Chancellor is not in the business of joining excitable MPs in breaching the separation of powers and criticising judges for “soft sentencing” on the basis of inchoate media reports. The Lord Chancellor’s statutory duty is to uphold the independence of the judiciary. Liz Truss does not do this very well, but even she in her resplendent incompetence is not going to endorse Mr Quince tutting how “gobsmacked” he is at the judge’s conduct, nor whatever point this sentence is supposed to express:

“It flies in the face of members of the public who went to collect evidence, to the police officers who investigated and who made the arrests and to costs of the court.”

A more appropriate addressee for Mr Quince’s letter would have been the Attorney General, who superintends the Crown Prosecution Service and has the power to refer unduly lenient sentences to the Court of Appeal; but even then, it would have been to nil effect, burglary not being one of the offences that can be referred. If, having soberly reflected, Mr Quince genuinely believed that there had been a serious judicial error requiring disciplinary intervention, his recourse would lie with the Judicial Conduct and Investigations Office, assuming they stopped laughing long enough to formally process and reject his complaint.

The conclusion that one is regrettably driven to is that Mr Quince does not really know what he is saying or what he is doing. Which is a pity, because as a Parliamentarian and a lawyer, he is one of the people his constituents might reasonably expect to accurately and sensibly guide them on this type of issue, rather than firing up the torches and leading the villagers blindly towards the courthouse. When Liz Truss responds to Mr Quince, I hope that she reminds him of this in terms. And that he publicly circulates her reply with the same vigour as he has his original letter.


UPDATE: The advantage of blogging is that if, upon reflection, you realise that an argument you had made, or the way in which you have expressed a point, is wrong, you have the power to correct it. In the original text of this post, I think that I made such a mistake. Mr Quince politely responded on Twitter and engaged in a very civil exchange in which he indicated that, in light of the observations I had made, he would send a follow up letter to the Lord Chancellor. He also opined that he found my blogpost to be “unnecessarily rude”, referring in particular to the original title of the blog, in which I (rather weakly, in search of a rhetorical device) suggested he was “soft in the head”. Regular readers will know that deference to public figures who deliberately or recklessly mislead the public on the law is not the style of this blog. And certain people (I think in particular of Philip Davies MP, Katie Hopkins and other repeat offenders), who have been given countless opportunities to reform their ways and plough on in their pig-headed ignorance, deserve a dose of unapologetic and colourful impoliteness. I make no apology to them and their kind. But with Mr Quince I think I may have prematurely, and unfairly, crossed the faint line between stridency and rudeness in the way I sought to make my point. A number of people whom I respect took issue with the tone and style, which distracted from the thrust of what I maintain is a solid argument. And that  – having a good point lost because of the manner of its expression – is bad advocacy. As well as poor form in general.

With that in mind, I have moderated the text of the original post, I hope to no less effect, and possibly to greater. There is a balance to be struck between being punchy and strident, and being snarky and rude. I certainly did not intend the latter over the former, but if that was the effect of my words and style, I apologise to Mr Quince. For his part, I still urge him to consider the broader danger posed by MPs attacking court decisions without knowing the law. He may well, as a representative of the people, have strong views of his own and of his constituents concerning matters of local criminal justice. And it is of course proper for him to address such concerns through the appropriate channels. But in doing so, little is achieved (and much damage is done) if careful and sober reflection give way to knee-jerk reaction and a clamour to politically capitalise in the media without learning the full facts. Mr Quince has indicated that, notwithstanding the analysis above (which he accepts), he still considers the sentences to be unduly lenient, and I have offered him a right of reply on this blog for him to set out his position. I shall post any response below.

Were the judges “incompetent f****-ups” to refuse Marine A bail?

There is a risk, I am acutely aware, of this blog appearing to transmogrify into The Secret Judicial Cheerleader. Which it is not. By way of pre-emptive self-defence, I should point out that much of my professional life is spent politely pointing out to judges why, in my respectful submission, the course they are thinking of taking, which just happens to be adverse to my client, is wrong.

And sometimes, I dare say I’m even right about that. Because judges are fallible. From magistrates – especially magistrates – through to Supreme Court Justices, errors in reasoning and application of the law occur. And people far brighter than me forge glittering careers appearing in the higher courts, and publishing brain-stretchingly clever academic criticism, telling judges just how wrong their brethren – or they – are.

But what those types of argument have in common is that those making the case against judicial decisions do so in full possession of the relevant facts and law. Which is a precursor, you might think, to entering any debate, whether in court, print media or online. Know what you’re talking about. If you’re not sure why something happened, pause and find out, before leaping to the settled conclusion that, because that something instinctively offends you, it must be wrong. Or unjustifiable. Or evidence of systemic corruption. Or proof of some other cosy conspiracy theory.

It’s rather sad that I feel I have to open with such obvious points, but increasingly it becomes clear that they escape many who wish to inflict their opinions on their large, and often inexplicable, followings.

And so to Marine A, or Sgt Alexander Blackman. I touched on his case a few days ago, when his application for bail pending his appeal against his conviction for murder was adjourned. Yesterday the Court Martial Appeal Court (CMAC) heard the bail application, and refused it. The appeal will be expedited and listed as soon as possible next year, but the appellant will not be coming home for Christmas.

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On cue, a band of merry speaking heads sprang up, Whack-A-Mole style, to denounce this decision. That so many did without being in court and before the Court published its judgment perhaps tells you something about the factual soundness of their premise. A choice few include:

So what happened? As a brief recap of the case, Sgt Blackman was convicted of murder in 2013 by a Court Martial, having shot an Afghan detainee at point blank range in 2011 while on tour in Afghanistan.  The case pricked emotions all round. For many, this was an act of cold-blooded murder which degrades the reputation of our military and endangers fellow servicemen, and Blackman was rightly prosecuted and convicted. For others, this was a mistake by a respected hero risking his life for our safety, and the morality and legality of such things done in the fog of war cannot be second-guessed by civilian commentators or media.

The details of the appeal are subject to reporting restrictions, but what we know is that the Criminal Cases Review Commisison has presented fresh psychiatric evidence which it is said relates to the appellant’s state of mind at the time of the shooting, and which renders the conviction for murder unsafe. It will be submitted that the correct verdict should have been manslaughter, on the grounds of diminished responsibility. There are also further grounds relating to, amongst others, alleged incompetence of the trial representatives. (The full issues for appeal, some referred by the CCRC, some raised for the first time by the appellant, are listed at para 9 of the judgment.)

Yesterday was the first effective hearing at the CMAC. Bail was sought and refused. Why? Was it, as Bannatyne says, because judges are incompetent? Was it because they are, in the poetic words of Jon Gaunt, “fucked up”? (A side note on Mr Gaunt – he is the radio presenter who, after being sacked by Talksport for calling a guest a “Nazi”, took his case against Ofcom as far as the High Court, where it was held that “the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification”. Which will no doubt be his epitaph.) Was Blackman failed by judges maliciously applying lesser standards to a war hero than they would a migrant rapist, out of loathing for their country?

Actually, the reasons are set out in the judgment, which, if one takes the time to read it, makes for a far less scandalous tale. As para 18 patiently explains, bail pending appeal is rarely granted. This accords with most practitioners’ experience of appellate proceedings. Bail will only be granted in “exceptional” circumstances. Before conviction, there is in most cases a presumption in favour of bail, and the court will need to be satisfied that there are substantial grounds for withholding bail (e.g. the defendant is a flight risk, or there is a risk of further offending). But where someone is convicted and is seeking to appeal, entirely different considerations apply. Exceptional circumstances must be made out in order for bail to be granted. What amounts to “exceptional”? The test is set out in case law. Normally, “exceptional” requires that the merits of the appeal are overwhelming, or that the appellant will have served his sentence by the time of the appeal, rendering it practically nugatory.

Here, neither of those was satisfied. The Crown, although neutral on the issue of bail, do not accept the premise of the appeal. They do not agree that the new psychiatric evidence establishes a potential defence of diminished responsibility, and will argue that the conviction for murder is safe (para 13). With this in mind, and the Court having seen the fresh evidence, it considered that the case cannot be seen as “overwhelming”. (And anyone who feels able to positively  disagree with this assessment without seeing the evidence is frankly beyond reason.)

Turning to the second limb, even if a conviction for manslaughter were successfully substituted for murder, it does not follow that by the time of the appeal, he will have served all of his sentence. Exceptional circumstances, the Court held, are not made out on the test that the Court has to apply. The test is not, as some would wish, whether one has sympathy with Sgt Blackman, or whether the judges know the true meaning of Christmas. It’s the same test that is applied to all murder convicts. Reaching for the trite point, if you were the family of the deceased, you would want the Court to follow the law when entertaining a bail application from your beloved’s killer, rather than to base their decision on the whims of the public mood. This is the rule of law, folks. It’s there to protect us all.

The timing of the appeal is also important. In recognition of the urgency of the appeal, the Court has agreed to sever the various issues raised in the grounds of appeal and to expedite the seemingly most pressing – that of the psychiatric evidence. The appeal on this ground is likely to be heard at the end of January 2017 or start of February. To those abusing the judges for their lack of compassion, for the Court of Appeal to list a substantive murder appeal hearing involving fresh psychiatric evidence within a month of the CCRC reference being received, is rare. This case, whether rightly or wrongly, is getting afforded attention and speed of treatment that many equally, if not more, meritorious appellants can only dream of.

Again, I’ll close with repetition: this is not, as some like to suggest, blanket support of the decisions that judges take. It’s not even saying that this particular decision is unimpeachable. It’s certainly not saying that people shouldn’t feel strongly about cases like this. But there’s a difference between criticism factually-grounded and forcefully expressed, and ignorant, gratuitous abuse such as that spat out by Bannatyne and his ilk.

The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:

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Which perhaps, at this stage, is all that properly can be said.

Katie Hopkins and the judiciary: another pointless lie

On the day that Katie Hopkins’ wilful disregard for the truth landed her, and the Daily Mail, in £150,000 worth of piping hot water, it is reassuring to see that she has not been deterred from jumping straight back on her unicorn.

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After Hopkins viciously libelled a family of Muslims as Al-Qaeda supporters in her MailOnline column, a grovelling apology was pushed out on her behalf by the Mail, and was meekly (and, we can safely assume, by obligation of the terms of the settlement) tweeted by Hopkins herself at 2am this morning, in the following sincere terms:

 Happily, for anyone who might have missed this display of fulsome contrition, Twitter was on hand to ensure that it reaches an audience commensurate with that which consumed the false story in the first place. Hopkins though has moved on to bigger and better things, including retweeting her latest column. Which is on the law.

And so, with a heavy sigh, I rise to make the following brief observations, accuracy being I am sure uppermost in Hopkins’ mind at the present time.

Hopkins is exercised about the case of Sgt Alexander Blackman, whom you may otherwise know as “Marine A”. Sgt Blackman was convicted in November 2013 by a Court Martial of the murder of an injured Afghan prisoner after shooting him at point blank range, while on tour in Afghanistan in 2011. He was sentenced to life imprisonment with a minimum term of 10 years, reduced to 8 years on appeal. His original appeal against conviction was dismissed, but he now has a further bite of the cherry after the Criminal Cases Review Commission considered that further information relating to Blackman’s mental state at the time of shooting gives rise to new grounds of appeal.

Which is where Hopkins enters. Because her latest column sees her accompany the supporters of Sgt Blackman to the Royal Courts of Justice last Friday, 16 December 2016, where the case was listed before the Court Martial Appeal Court for an application for bail pending the full appeal hearing. And from her vantage point she is able to offer some brief, sage observations on the criminal justice system.

She begins with the following opener:

“Big Al is not even here. He’s keeping clear of the courts in case he jinxes the outcome, preferring to stay and wait quietly, hoping, holding his breath.”

I don’t pretend to be intimately acquainted with the case, but I would observe that section 27 of the Court-Martial (Appeals) Act 1968 provides that an appellant has no right to be present at any proceedings preliminary to an appeal (unless the Court grants him leave), so it’s a curious narrative spin. But who knows – maybe he did apply for leave to be present, have it granted and then turn it down out of superstition. Maybe Hopkins knows something I don’t.

But where I take stronger issue is with the concluding paragraphs, as Hopkins describes how the proceedings are adjourned:

“Then bad news came. This will not be sorted yet. An adjournment. Another week of waiting whilst the prosecution make more submissions.

This wasn’t how I imagined it to be. This was not the happy Christmas the street lights were promising. This was not what we came for. This was awful.

‘The judge is a wanker’ shouted an angry man in the crowd, cross, disappointed.

I am not certain this is true.

But I am sure the law is an ass. A law which goes after our own soldiers, when migrant rapists have human rights to a family life here. A law which tells our Chelsea pensioners they are being investigated for their efforts in Northern Ireland forty years ago when ex IRA sympathisers, Gerry Adams and Martin McGuinness can assume power, blame free.

I walk away despondent. And wonder, if those judges had to spend another seven days behind bars at Christmas, or their wives endure more time horribly alone, whether they would adjourn a hearing quite so casually ever again.”

The penultimate paragraph is a Hopkins special – a proper old-fashioned brew of non-sequitur and urban legend – but it’s the final line that needs challenge, seeing as this is the dum-dum-dum Eastenders dramatic finish, the rhetorical swirl of her sign-off.

Judge-bashing is of course terribly modish, but in between the schoolgirl giggles at “wanker” judges and condemnation of their “casually” adjourning the hearing, there is space for some cold, hard fact. Fact which Hopkins could have easily discerned by listening to what the Court in fact said. And by reading what it published when explaining why the hearing had been adjourned. Which was as follows:

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So, as we can all see, this wasn’t the Court lazily knocking off for an early Friday finish. Or casually adjourning the case for a week because it doesn’t care about the liberty of the subject. But because the CCRC had not served its full reference – the document setting out the details of its investigation and the evidence behind its conclusions – on the prosecution. And the prosecution was therefore unable to indicate its stance on the appeal, or the issue of bail.

I go to these lengths to pick up on these tiny points, because each time an idiot with an audience or their paymasters tell 2 million people that our judges are corrupt, or are wankers, or don’t care about decent normal folk, or are enemies of the people, this all bit by bit chips away at public faith in the rule of law. There is a lot to get upset about when it comes to the administration of law in this country. And often much to legitimately criticise in various judicial decisions. But when sensible, level criticism gives way to name-calling and baseless accusations of bias or negligence, it cheapens debate and demeans public life.

If we had a functioning Lord Chancellor, she might say something like that to warn off the Hopkins of this world. As we don’t, I shall have to rely on a complaint to IPSO. Unless of course, Hopkins wishes, in the spirit of her recent discovery of penitence, to withdraw her unpleasant and untrue attack on the judges and publish a full apology and clarification.

She might even consider tweeting it during working hours.

Examining Iain Duncan Smith’s understanding of Brexit

Today, in response to an op-ed in the Daily Mail in which Iain “Bit of a thicky” Duncan Smith pushed Hanlon’s Razor to its limit with his “interpretation” of the Supreme Court proceedings, I published a series of tweets. They have proved, contrary to expectation, common sense and decency, to be quite popular, and I have had several requests to collate them in a blogpost. So for those who so wish, here I do. For those who aren’t fussed or have already seen, sorry for the diversion and have a nice day.

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Louise Mensch’s claims that Thomas Mair had an unfair trial are unsupported and wildly dangerous

There’s something particularly undignified about a spiralling Twitter spat. The cumulative ‘quote tweeting’ and punctuated “replies” designed to alert innocent passers by to your often solipsistic, and usually entirely pointless, tit for tat exchanges with someone you’ve never met and have no desire to know.  I am guilty of indulging in such indignity this afternoon, after taking umbrage at something said by erstwhile MP and author Louise Mensch, and ending up in the digital equivalent of one of those awful blazing rows you see pissed up couples having outside kebab shops to the evident embarrassment of passers by.

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On this, I also owe an apology to the doyen of criminal legal bloggers, Matthew Scott, whose name has been unwittingly dragged into the debate. If I conducted myself online with his restraint and temperament, I, and the timelines of my followers, would no doubt be much better served. But I do wish to say one final thing, just by way of consolidation, as Ms Mensch has unwittingly performed a public service by highlighting a particular strand of obnoxious and dangerous ignorance prevalent in commentary on criminal law, particularly pertaining to the conclusions that can safely be drawn from what is reported about criminal proceedings.

Mensch today published an article about the trial of convicted murderer Thomas Mair, in which she drew heavily on sage observations made by Matthew Scott on his blog relating to features of the proceedings. Matthew noted, for example, the unusual step of the court receiving into evidence an agreed witness statement from Stephen Kinnock MP, which appeared (if reported accurately) to amount to no more than “good character” evidence of the victim Jo Cox. If this was the purpose for its admission in evidence, it would be highly unusual. Matthew also observed, in his comments made pre-sentence, that based on what had been reported in the media, we might expect the issue of Mair’s mental health, although not led in evidence as relevant to his guilt (for example by way of a defence of insanity or diminished responsibility), to feature in the judge’s contemplation when considering sentence.

Louise Mensch seized on these observations and concluded definitively that Mair had had a “prejudiced” and “unfair” trial. The Judge had “played to the gallery” in allowing Kinnock’s evidence to be read. When challenged about this on Twitter, she doubled down and insisted that the Judge “acted wrongfully and immorally“.  Despite Matthew politely writing in the comments under her blog to caution against leaping from his observations to the conclusion that trial was unfair, Mensch has continued to repeat this from the rooftops over the last few hours.

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And this needs shutting down. Because it’s rot.

Mensch is not a lawyer. She was not involved in Mair’s trial. She was not present in court, nor it seems has she spoken directly to those who were. So her “conclusion” is in fact mere speculation. None of us who were not present know the legal grounds under which Kinnock’s statement was read. It might have been in some way helpful to the defence. It might be that it was favourable to the prosecution and on its face inadmissible. It might be that the Judge was wrong in letting it go before the jury. If so, Mair’s extremely experienced defence Q.C. will no doubt have objected and, if the Judge erroneously ruled against them, this could possibly form the subject of an appeal. But this, like Mensch’s musings, is completely speculative. We don’t know. And if we don’t know the full facts behind and reason for a decision, we cannot, and should not, claim to be able to draw a safe conclusion as to whether it was correct. Or, more pertinently, the motives of the decision maker, in this case the Judge.

The same applies to the issue of mental health. Mensch may have read a lot in the papers that gives her cause for concern (the same papers, it should be noted, that she rails against for printing other inaccuracies about Mair), but she is not a doctor. She is not a lawyer. She was not in the trial. She has no idea what material was before the courts, what material was available, and what the judge took into account when sentencing. She appears to speculate baselessly that Mair might have had an available defence on mental health grounds, implying that his defence, or the judge, were in error in not eliciting this. She goes on to claim that similar errors were made in the sentencing exercise. Certainly the sentencing remarks make no mention of mental health, but to assert, as does Mensch, that the Judge was wrong not to take Mair’s mental health into account relies on a number of astonishing assumptions. First, that Mair has relevant mental health issues. Second,  that his experienced Counsel, experienced solicitors and the experienced High Court Judge hearing the trial failed to identify the potential relevance of mental health issues and cracked on without giving it due regard. Or third, in the alternative, that there was relevant material which the Judge ignored when sentencing. Again, I am not saying for sure that none of those are right – they might be. But we don’t know. Mensch does not know. And if she does not know, she cannot guess.

She makes salient points about adverse publicity pre-trial, of which there was much following Mair’s arrest, particularly on social media. But again, not being in court and not having done her basic research, she has no idea of the repeated, careful warnings that are given to juries in such cases. Or if she does, she doesn’t acknowledge this. She leaps straight to the conclusion that this too renders the trial unsafe, her expertise far outweighing, it seems, that of Mair’s legal team who did not see fit to argue (as they could have done) that his case was so prejudiced by unfavourable media coverage that it ought to be stayed as an abuse of process. Mensch doesn’t pause to consider this. She doesn’t bother to learn the law. She guesses.

And she shouldn’t guess. Because in this toxic, febrile climate, claims that Neo-Nazis are not given fair trials can have serious consequences. These claims feed into the narrative that democratic institutions are broken, and foster the paranoia of those susceptible to taking the, to them, only rational action that one can take when democracy breaks down – violence. It is the same danger that lay behind Trump’s claims that the election was rigged, and UKIP’s baseless allegations that the High Court judges in the ‘Brexit’ case were biased. This is not to say that democratic institutions shouldn’t be scrutinised or criticised, or that concerns should not be raised; plainly they should be. But on solid and intellectually honest bases, by people in command of the facts and the arguments, reaching available conclusions sensibly and responsibly.

Not by professional antagonists seeking their latest hour in the sun, ignorant of the facts and oblivious or, worse, maliciously indifferent, to the succour they give to extremist tropes which, taken to their logical conclusions, could result in violence on the streets.

Thank You

Some of you may have seen that, in defiance of all common sense and decency, I was today named Independent Blogger of the Year at the Editorial Intelligence Comment Awards 2016. While entirely out of keeping with the general tone of cynical nihilism that pervades these posts, I would like to sincerely thank not only the judges at EI for their generosity, but more importantly all those who follow, read, comment upon and even troll my  nonsense, both below these lines and on Twitter. At the risk of coming over all Gwyneth, I genuinely could not have foreseen when I started this blog 18 months ago that over half a million of you would take the time to read the workings of this disturbed legal mind, far less that your support would lead to any sort of recognition beyond possibly mild ridicule from established, better writers. That so many of you have supported me in my vanity project owes far more I’m sure to your collective patience than to any talent on my part, but I am nevertheless sincerely grateful to you all for joining me on my fool’s errand to bring law to the people. It is appreciated more than you know.

Thank you X

SB

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