Bad law reporting and a public dangerously disconnected from criminal justice

I have today written a piece for Legal Cheek, in which, like a stuck record, I bemoan the standard of public legal education and tabloid law reporting, and submit that the public should be outraged by the justice system — but not for the reasons they think.

If this sounds like your sort of thing, the article is here.

Broken-Justice-System

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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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Harriet Harman’s proposal to keep sexual histories out of court will put innocent people in prison

I have today written a piece for iNews on Harriet Harman’s resurrected plans to ban all evidence of sexual history from the courtroom, and why this is quite simply one of the most dangerous and stupid ideas of recent times.

Full piece is here:

https://inews.co.uk/opinion/harriet-harmans-proposal-keep-sexual-histories-court-will-put-innocent-people-prison/

Angela Eagle Challenges Jeremy Corbyn For The Labour Leadership

An Oxford medical student stabbed her boyfriend with a bread knife. So why is she not going to prison?

Remember all the fun we had earlier this year with the Cricket Bat Case? You know the one – where the defendant, Mustafa Bashir, assaulted his wife with a cricket bat, forced her to drink bleach and was given a suspended sentence, partially because the judge took account of the defendant having been offered a professional cricketing contract? And everyone got terrifically angry about it, even though they clearly hadn’t taken the time to obtain the facts? And Diane Abbott and Harriet Harman traversed the airwaves and the plains of social media in furrowed unison to whip up the cries for the judge to be “sacked” for what he’d said, even though he hadn’t said it? And, even when, at the “slip rule” hearing where the defendant was sent to prison after it emerged that the cricketing contract was a fiction, the judge took the time to carefully explain his earlier, misreported remarks, no-one listened and wrapped themselves up in a cocoon of impervious self-righteousness? Remember all that? Yeah? What larks.

Well luckily for us, we may be about to go through it all again. Because once more, Mercury scoots in with a message of justice gone wrong, in the form of a case of domestic violence where the defendant stabbed the complainant with a bread knife, only to be assured by the judge that, when the time comes for sentence, she will most likely not be going to prison. The reason? Her “extraordinary” medical talent.

This post comes dangerously close to breaching one of my cardinal rules, vis not commenting on cases until they are concluded and the full facts (or as close to them as we can get) are known. But given that there has already been a steady buzz of interest in the case online, I thought it worth heading off some of the likely queries at the pass, not least as comparisons with the Bashir case are already circulating.

Facts

The published facts are limited. The Guardian offers us this:

“Aspiring heart surgeon Lavinia Woodward, 24, punched and stabbed her boyfriend during an alcohol-and-drug-fuelled row at Christ Church College. She admitted unlawfully wounding the Cambridge University student, who she met on the dating app Tinder. […] Woodward, who lives in Milan, Italy, with her mother, stabbed her then-boyfriend in the leg after punching him in the face. She then hurled a laptop, glass and jam jar at him during the attack on 30 September last year.”

According to Mail Online, the guilty plea was entered before Oxford Crown Court at an earlier hearing. At a hearing yesterday, sentence was deferred to 25 September 2017. In deferring, HHJ Pringle Q.C. noted that this was an “exceptional” course and indicated that come autumn she may avoid an immediate custodial sentence due to the impact such a sentence would have upon her future career:

 “It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to would be a sentence which would be too severe,” he said.

“What you did will never, I know, leave you, but it was pretty awful, and normally it would attract a custodial sentence, whether it is immediate or suspended,” he said.

It is further reported that Ms Woodward has had articles published in medical journals including the Annals of Thoracic Surgery, Hypertension, and The Journal of Physiology. The Telegraph quotes a source as saying that she finished top of her year in her third year pre-clinical tests at Oxford.

Finally, we are told are that her barrister informed the court that Ms Woodward had a “very troubled life”, struggled with drug addiction and had been abused by a former partner.

So what is going on here?

Deferred sentence

Deferring sentence is nowadays an unusual step to take. It is not to be mistaken for adjourning a sentence hearing, which happens all the time for various reasons – to obtain probation or psychological reports, for example. Rather a deferment is a specific statutory power (section 1 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask) which a court can use where it wants to observe the defendant’s conduct post-conviction before arriving at a final sentence. If a court is satisfied that it would be in the interests of justice, “having regard to the nature of the offence and the character and circumstances of the offender”, sentence will be deferred to a fixed later date.  Typically, we tend to see it in cases where a judge wants to see if a defendant can make a sustained effort at rehabilitation – say by holding down a job or undergoing voluntary drug or alcohol treatment. If a defendant agrees to a deferment, the court will impose “requirements” as it considers appropriate – in this case, it has been reported that the judge required that the defendant remain drug free and not re-offend.

When she comes back to court on 25 September, the judge will determine whether the defendant has substantially conformed or attempted to conform with the expectations of the court – i.e. by staying clean and keeping out of trouble – and, if she has, she can legitimately expect that she will not go immediately to prison.

Sentencing Guidelines

It appears from reports that the defendant pleaded guilty to unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. While a serious offence, it is of note that it in fact carries the same maximum sentence – 5 years’ imprisonment – as assault occasioning actual bodily harm, which was the offence in the Bashir case. It is also of note that section 20 covers two different offences – inflicting grievous bodily harm, and unlawful wounding. It is one of the many (unjustified) quirks of the law that these two offences are treated equally even though the injury caused in a wounding can be relatively minor (it merely requires a break of the skin), whereas GBH by definition entails really serious harm. Here, we know nothing about the level of injury.

As with all sentence hearings, a court is required by law to follow relevant Sentencing Guidelines published by the Sentencing Council. In this case, we look to the Assault Definitive Guideline. By plugging the facts of the offence into the grid, we theoretically arrive at a category of offence, which gives a starting point for sentence, and a range which the court can move between depending on the aggravating and mitigating factors at play. The Guideline is here:

Now, we have little idea, absent further facts, what category the judge will put this case into. We know nothing about the level of injury, the ongoing effect on the victim, and the circumstances leading up to the assault. But even if the judge were to conclude that the offence was so serious as to fall within the highest category – Category 1 – (which on the given facts I think is unlikely) this would provide a starting point of 3 years, the relevance of which is that once you take off the 1/3 credit that is awarded for a timely guilty plea (assuming that it was), you arrive at something around the 2 year mark. And the relevance of the magic 2 years is that any sentence of 2 years or under can be suspended.

This is a long-winded way of saying, simply, that on the Guidelines, the judge will not have to struggle to arrive at a sentence capable of being suspended, if, as I suspect, this is what he envisages proposing at the next hearing.

Whether he should suspend it is, of course, another matter. And it is here that we find ourselves back in Bashir territory. The parallels are striking: A defendant with no previous convictions; a serious offence of domestic violence using a weapon; and personal mitigation including a promising career. Ms Woodward’s offence is more serious in the statutory hierarchy of violent offences; however she has what appears to be powerful mitigation relating to her reported issues with substance misuse and history as a victim of domestic violence.

While there is no strict test for suspending a sentence of imprisonment, the Guideline offers the following pointers:

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We do not know enough to say whether any of the left hand column is made out; but it could be argued that at least two of the factors on the right apply. The court must have regard to the statutory five purposes of sentencing – punishment, reduction of crime (including by deterrence), reform and rehabilitation of offenders; protection of the public; and making reparations – and will need to assess the appropriate emphasis in any given case. While stabbing with a bread knife is plainly serious, if the injury is not particularly grave, and if the court is of the view that more can constructively be achieved by avoiding sending a promising young defendant to prison and shattering their future life prospects, instead offering in the first instance a sentence focussing on rehabilitation to address deep-rooted problems laying behind the offending, then it is arguably in service of those five principles that a suspended sentence of imprisonment, with punitive and rehabilitative requirements attached, might be imposed.

And, lest anyone be seduced by the reflexive narrative that such merciful sentences are only afforded to white, middle class defendants, let me assure you: this course (as I said in the Bashir posts) is not unusual. Where a defendant who has never been in trouble is facing a custodial sentence of  2 years or under, and where they have the prospect of employment, education or caring responsibilities, judges will often strive to avoid passing a sentence of immediate imprisonment. That is not to deny that unconscious social or racial bias plays a part in judicial decisions; basic neuroscience teaches us that it does, to some degree at least. But the suggestion that this exceptional course is only ever reserved for the Prom Queens (or whatever our British equivalent is) is tired and lazy. The reason you don’t hear about the suspended sentences handed down for less photogenic defendants – for the 19 year-old lad starting his apprenticeship, or the 48 year-old mobile hairdresser – is mainly because the media tends not to report on them.

Conclusion

It is too early to draw any conclusions. That is really the beginning and end of it. But if we must go a little further, I would observe that, although understandably surprising to the non-lawyer, there is nothing on the reported facts of this case to suggest yet that anything is amiss. We will wait and see what September brings (and hope that, given the pre-emptive press rumblings, the judge takes the step of formally publishing his sentencing remarks in full), and reassess then. But it is entirely plausible that this is a sad and difficult case where a talented young woman bearing pains that few of us can imagine acted out in an uncharacteristically raw and violent fashion, in a manner that demands condemnation, but the punishment for which the court will temper with mercy, avoiding the compounded tragedy of extinguishing a bright life in the squalid pits of our rotting prisons.

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POSTSCRIPT: In the event that the judge imposes a suspended sentence on 25 September, there will be calls, as with the Bashir case, for the Attorney General to apply to refer the sentence to the Court of Appeal as unduly lenient, in the hope that the Court of Appeal will increase the sentence. Offences of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 are not included in the lists of offences that can be the subject of such an application. So if you know of, or are, a politician champing at the bit to call for the sentence to be increased, screenshot this paragraph and have it in your back pocket for September: It can’t be done.

 

Myth-busting the “Tory election fraud” – A 10-point guide

The offending Battle Bus

1. So what’s all this about a Tory election fraud?

The Crown Prosecution Service today announced that, following a police investigation into allegations relating to Conservative Party candidates’ expenditure during the 2015 General Election campaign, no charges will be brought. Fourteen police forces submitted files of evidence for the CPS to consider, said to show that candidates and their agents had submitted inaccurate expenditure returns and, in the case of all but one (a decision on which is pending), the CPS have concluded that no criminal charges should be authorised.

2. What was inaccurate about the expenditure returns?

In short, there are complex rules governing expenditure during election campaigns. One of the more simple is a legal requirement that all candidates – or in practice, their agents – submit to the returning officer within 35 days of the election a “true return” declaring their expenditure, stating all payments made relevant to the campaign together with invoices and receipts. This allows, among other things, for people to check that a candidate has not breached the spending limits (calculated according to a convoluted formula set out in section 76(2) of the Representation of the People Act 1983) to secure an unfair advantage. There are similar rules prescribed for registered political parties in relation to national campaign spending. In the 2015 General Election, the Conservative Party deployed “Battlebus2015”, a campaign in which party activists were bussed into target marginal seats. Problems arose when it emerged, as part of a Channel 4 investigation, that the travel, accommodation and subsistence costs of those activists had been classified as national party expenditure – part of the nationwide Conservative Party campaign – rather than local expenditure, and was therefore not declared on the records of the candidates whose campaigns the activists appeared to be helping. It was suggested by political opponents that this represented a deliberate attempt to circumvent the spending limits.

3. This sounds familiar. Hasn’t there already been a prosecution?

You’re thinking of the Electoral Commission investigation, which reported in March of this year. One of the many inexplicable quirks of electoral law is that it is enforced separately at national and local level. The Electoral Commission is the statutory regulator with investigatory and enforcement powers over registered political parties, and is responsible for securing compliance with requirements relating to, inter alia, political party campaign spending. The Commission has the power to investigate alleged breaches of the law and, if it finds a breach proved, to impose financial penalties, as set out in the Political Parties, Elections and Referendums Act 2000 (PPERA). But as I say, this is only at the national party level. The law governing individual candidates is the criminal law set out in the Representation of the People Act 1983 (RPA), enforced in the criminal courts by the police and Crown Prosecution Service. So where, as here, there are allegations that local expenditure has been misrecorded as national, it straddles the two parallel regimes. The Electoral Commission therefore investigated what offences, if any, were committed by the party, with the police and CPS looking at individual candidates and their agents.

4. What allegations did the Electoral Commission consider?

The Commission investigated a series of alleged discrepancies arising out of three by-elections in 2014 (Clacton, Newark and Rochester & Strood), European Parliament elections in 2014 and the General Election in 2015. This was wider than the CPS investigation that followed, as criminal proceedings in respect of any offences committed in 2014 were time-barred by statute, meaning the CPS were only concerned with the 2015 allegations. The full report is here, but in short, the Electoral Commission considered a series of allegations that the Conservative Party had failed to declare a complete statement of its spending, both by wrongly declaring local expenditure as national and by omitting certain expenditure – including £63,487 on the Battlebus – altogether; had failed to provide adequate accounting records; and had failed to keep invoices and receipts. Responsibility for this was said to ultimately fall on the Treasurer, Simon Day (who is presently under police investigation and so about whom nothing more will be said).

5. What did the Electoral Commission conclude?

It found that there had been three failures to keep accounting records sufficient to adequately show their transactions (in contravention of section 41 of PPERA), all of which related to the 2014 by-elections. And it found proved two offences proved under section 82(4)(b) relating to the 2015 General Election: firstly failing to submit a complete spending return (by wrongly including £118,124 of local candidate spending and omitting at least £104,765 of national spending); and secondly failing to provide receipts and invoices to the value of £52,924. The Commission fined the Conservative Party a record £70,000.

6. That sounds pretty damning. So why are the CPS are now refusing to prosecute?

It has to be borne in mind that the Electoral Commission and CPS were considering separate issues and applying separate tests, albeit with a common factual nexus. As far as the local candidates were concerned, there were two available criminal offences:  “knowingly making a false declaration” contrary to s.82(6) of the RPA, amounting to a “corrupt practice” punishable upon conviction by up to two years’ imprisonment; and a lesser offence of failing to deliver a true return, amounting to an “illegal practice” contrary to sections 81 and 84, punishable by a fine. The distinction between “corrupt” and “illegal” in this context is that to prove the more serious “corruption” offence, the prosecution must prove that the individual acted dishonestly – i.e. that s/he knowingly acting dishonestly according to the ordinary standards of reasonable and honest people. When considering whether to prosecute, the CPS applies the “Full Code Test”. This has two parts – the evidential test and the public interest test. The evidential test is simply: is there a realistic prospect of conviction – i.e. of persuading a court of guilt beyond reasonable doubt – based on the available evidence? If this is satisfied, you go on to consider whether a prosecution is in the public interest. The CPS formed the view that, as the candidates and their agents had been assured by Conservative Party HQ that the Battlebus expenditure was legitimately part of the national campaign, it would be very difficult to prove that the candidates or agents acted dishonestly, as opposed to having acted mistakenly in good faith. In relation to the lesser offence of failing to deliver a true return, the CPS concluded, perhaps charitably, that for for the same reason it was not in the public interest to charge any of the agents or candidates with that offence.

7. So the Conservatives did nothing wrong?

You would be forgiven for thinking so, given the undignified grandstanding indulged in by Conservative Party members today – including utterly ludicrous calls from Karl McCartney MP, one of those investigated, to “abolish the Electoral Commission”, as if the CPS’ decision in any way undermines the Commission’s findings. It is a far leap from “insufficient evidence to prosecute in this instance” to “proven innocent of any wrongdoing ever”. The CPS appeared satisfied, as was the Electoral Commission, that the returns were inaccurate. You do not get fined £70,000 for playing by the rules. Furthermore, it must not be forgotten that during the Electoral Commission’s investigation, the Conservative Party was wilfully obstructive and refused to cooperate fully with the inquiry. This was one of the reasons cited in the Commission’s report for the unprecedented level of fine:

“The unreasonable uncooperative conduct by the Party, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation. This in turn increased the public funds incurred by the Commission during the investigation.”

8. But the Prime Minister said earlier

“The CPS has decided – they are an independent body – they have decided that no charges will be brought against any candidate in relation to this matter. Candidates did nothing wrong. It’s very important and I repeat that – I have said it many times – candidates did nothing wrong.”

and

“[The CPS] confirmed what we believed all along” – that “local spending was properly reported”.

Is she lying?

Yes. Brazenly. The CPS in fact said the opposite, concluding, as we’ve seen, that there was evidence to support a prosecution of failing to submit true expenditure reports, but declined to prosecute as an act of clemency on public interest grounds.

In fact, lest anyone else be tempted to swallow the claim that the Party and its candidates have nothing to be ashamed of, the Commission’s reasons for imposing the £70k fine are worth reproducing in full:

  1. In determining this penalty the Commission took into account the following factors:
  • The magnitude of the contraventions and the harm caused to confidence in the PPERA regime were, in the Commission’s view, significant.
  • The correct apportionment of spending between parties and candidates has a significant impact on the effectiveness of, and public confidence in, the PPERA regime.
  • The advantage obtained by the Party from its actions with each invoice provided to each of the three candidates and agents which inaccurately understated the amount spent by the Party on behalf of the three candidates. This is irrespective of whether, in the end, the Party’s candidates were successful in the by-election.
  • The significant uncertainty for voters as to whether the Party complied with its duties significantly, which increased the weighting to be attached to the magnitude of the breach and the impact on public confidence.
  • The lack of cooperation by the Party during the investigation.
  • The fact that the Party does not accept the requirement to keep records of this type, which leads the Commission to consider the risk that the Party may follow a similar course of action in future if the Commission does not take robust action to make its position clear.
  • An acceptance that, while the second and third contraventions were no less serious than the first, the three separate failures resulted from the same misconceived course of action.
  1. In respect of the offence under section 82(4)(b) of PPERA related to the failure to deliver the Party’s 2015 UKPGE spending return with a statement of all campaign spending payments, the Commission has imposed the maximum financial penalty of £20,000.
  2. In determining this penalty the Commission took into account the following factors;
  • The omission of over £100,000 of spending from the Party’s return alone, which was a significant loss of transparency and a failure of significant magnitude. The actual value of the under- and overstated spending was likely to be far greater.
  • The advantage obtained by Party by its actions; the inclusion in the Party return of what in the Commission’s view should have been reported as candidate spending meant that there was a realistic prospect that this enabled its candidates to gain a financial advantage over opponents. In this respect the Commission noted that the Battlebus2015 campaign visited target constituencies and that South Thanet was also a key priority for the Party.
  • The unreasonable uncooperative conduct by the Party, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation. This in turn increased the public funds incurred by the Commission during the investigation.
  1. In respect of the offence under section 82(4)(b) of PPERA related to the failure to deliver all the required invoices or receipts with the Party’s 2015 UKPGE spending return, the Commission has imposed a financial penalty of £5,000.
  2. In determining this penalty the Commission took into account the following factors:
  • The harm caused to confidence in the party finance regime represented an aggravating factor, in light of the value of the payments and the campaign to which they related. The omission of supporting information undermines the ability of the Commission and the public to review and verify the spending figures within the return. There was a consequent impact on transparency and most likely, as a direct result, on public confidence.
  • The unreasonable uncooperative conduct by the Party during the investigation, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation.
  • The Party has now provided the missing invoices and receipts. However, these were only provided as a result of the Commission’s enquiries.

9. This sounds like a giant cover-up. Jeremy Corbyn is right to publicly announce that he is “surprised” by the CPS’ decision.

No. No no no. No. Just no. There is no evidence at all to reasonably support the claim that the CPS have reached the wrong decision; in fact it was predicted by much wiser commentators months ago. It was always likely to be tricky to prove that local candidates completing their expense returns in reliance on the advice of party HQ were individually dishonest, as opposed to careless. Furthermore, the golden rule in all such cases is that anyone not privy to the evidence, and who is limited to the information in the public domain, should tread carefully before reaching a view on the correctness of the CPS’ determination. To criticise a prima facie explicable decision without having seen the evidence on which it is based, or to imply conspiracy or undue influence, is to snap Occam’s Razor in a political tantrum.

10. So everything’s fine?

No. I wouldn’t say that either. Reform of the law in this area merits serious consideration. It is confusing and unjustifiable to have parallel systems for registered parties and individual candidates. There is something artificial about distinguishing between “national” and “local” expenditure where, as here, the national party focusses its resources on helping candidates in marginal local seats. As David Allen Green sensibly points out, the current set-up invites problems such as those that arose in this case. The statute of limitations of 12 months, which excluded consideration of the 2014 by-election, appears ripe for reconsideration. And the powers of the Electoral Commission are puny. A maximum fine of £20,000 for a single offence committed by a national Party does not even approach a deterrent. Commission chairman Sir John Holmes observed:

“There is a risk that some political parties might come to view the payment of these fines as a cost of doing business; the Commission therefore needs to be able to impose sanctions that are proportionate to the levels of spending now routinely handled by parties and campaigners.”

It’s not just the Conservatives at fault, either. It must be pointed out that the Electoral Commission has recently fined both Labour and the Lib Dems £7,000 and £20,000 respectively for similar failures to declare spending. There is much wrong in this case, and plenty that we can learn. Unfortunately for the more excitable on the internet, neither a failure by the CPS to pin down a clear Tory electoral fraud, nor vituperative incompetence on the part of a bumbling Electoral Commission persecuting innocents, is the lesson to take home.

UKIP’s “Integration Agenda” is a masterclass in legal ignorance and shameless racism

Some political proposals are so self-evidently preposterous that to analyse them is to risk conferring dignity on the undignifiable. However, UKIP’s “Integration Agenda”, a rat’s nest of racialised assumptions masquerading as putative legal reform, trespasses egregiously onto the criminal law. Which, as any fule should know, is this blog’s turf. And on this turf, no idiocy is too stupid to be rebuffed.

The Integration Agenda is in many ways an admirable feat, in that it  diminishes by comparison the barminess of Gisela Allen, the UKIP local election candidate who this weekend called for a buffet of reform that included bringing back the guillotine and cat-o-nine-tails, euthanising people to stop them “getting too old” and banning women from public life. It reads as follows (H/T @jessicaelgot):

 

Dimensions of time and space prohibit an examination of the full manifesto, so let’s consider a choice selection, hold our noses and inspect the intellectual machinery at work:

“Pass a law against the wearing of face coverings in public places. Face coverings are a deliberate barrier to integration and, in many contexts, a security risk too. The time has come to outlaw them. People should show their face in a public place”

By “face covering”, UKIP plainly intends to target the “niqab” (or, as Kippers inaccurately often refer to it, the burkha), in an emulation of the ban enacted in France in 2010. The problem with such laws, as France has discovered, is that in order to maintain the façade that this is not an attack on a particular group of people, rather a general principle, you have to ban all face coverings. Which means prima facie outlawing balaclavas, motorcycle helmets, Halloween masks, gimp suits, zentais (those all-in-one spandex body suits beloved of stag parties abroad) and football mascots, and then working backwards to create exemptions to avoid the law being utterly unworkable. UKIP has today spent significant effort responding to questions as to whether large, face-obscuring hats as worn on Ladies Day will be criminalised, and whether the ban would include beekeepers. Whatever your position on the liberal principles at play, the practical flaws with such laws are obvious.

“Implement school-based medical checks on girls from groups at high risk of suffering FGM. These should take place annually and whenever they return from trips overseas.”

Female Genital Mutilation (FGM) is a vexed topic with an unhappy history of state inertia at its heart. Needless to say, any pragmatic legislative changes that might save the ritual devastation of thousands of young girls each year should be given serious thought.

Serious thought, however, is the magical missing ingredient from UKIP’s proposal. It appears to take its inspiration from the controversial approach in France, where the law provides for widespread medical examinations of children, which it is said has assisted in the prosecution of cases of FGM (albeit under French law there is no specific such offence).  But there are key differences. Firstly, the French system is not mandatory, although receipt of social security is dependent on participation. Secondly, it covers all children up to the age of six. For older children, girls identified as being at particular risk of FGM are required to attend for annual check-ups, and to submit to examination when returning from abroad.

When the French model was considered by the Home Affairs Committee in 2014, they heard evidence that the model had had the effect of increasing the age at which girls were forced to undergo the procedure so as to avoid the “mandatory” tests. Furthermore, the Royal College of General Practitioners told the Committee that routine screening could alienate hard-to-reach individuals and communities, which may prove self-defeating.

But whether the French model is desirable or not, a key difference is that, unlike UKIP, it is not premised on targeting unspecified social “groups”. Up until six, all children are examined. Beyond that, the focus is on girls identified as being at risk. There is an element of non-arbitrariness and proportionality, which is important when you are talking about invasive medical examinations of children. Similarly over here, compulsory medical assessments of children generally require the authority of a court (as with Child Assessment Orders) which will consider whether, on the facts, such invasive action is necessary. I will be corrected by anyone with greater expertise in the area, but I struggle to see how blanket compulsory invasive examinations of children of an undefined particular “group” can possibly be proportionate and not amount to undue interference with the child’s right to privacy and personal autonomy (as guaranteed by the UN Convention on the Rights of the Child).

By focussing on chosen “groups” and not individual assessments of risk, UKIP opens itself to charges of malign motivations, particularly in light of the rest of the Agenda (see below). And what of those unidentified “groups”? Does this include the child’s race? The child’s ethnicity? The child’s nationality? The child’s religion? Or does the heritage test run deeper? The parents’ race/ethnicity/nationality/religion? What if a child is adopted? Or mixed race? What if the child was born in Somalia to Muslim parents, but came to the UK and was raised by white Christian relatives? What happens to a 15 year-old convert to Islam? Does it matter if she is of African heritage? What if she is white? What  will be the statistical threshold of “high risk”? Unless UKIP has answers to these, it will take significant effort not to hear a screeching dog whistle behind this policy, and infer that by “groups” they mean, loosely, “Muslim”, “brown” and “black”.

A final salute must be given to the intellectual endeavour behind the broadness of the final criterion, “whenever they return from trips overseas”, ensuring that the unfortunate child taken to Disneyland Paris for a weekend will enjoy a return journey contemplating her Monday morning at school spent with a stranger inspecting her labia.

“Make failure to report an instance of FGM by someone who has knowledge that it has taken place a criminal offence itself.”

Positive: The germ of a good idea.

Negative: This is basically already law. Section 3A of the Female Genital Mutilation Act 2003, as amended by section 72 of the Serious Crime Act 2015, makes it a criminal offence, punishable by up to 7 years’ imprisonment, for a parent or other responsible carer of a girl under 16 to fail to protect her from an act of FGM. Section 5B of the 2003 Act places a positive obligation upon healthcare professionals, teachers and social workers to report discoveries of FGM to the police.

“The CPS to operate under a presumption of prosecution of any parent whose daughter has undergone FGM [Female Genital Mutilation]”.

Putting aside the casual reversal of the presumption of innocence lying at the heart of our justice system, a “presumption of prosecution” means one of two things: either it surpasses the current test for prosecuting, about which below, or it doesn’t, in which case it is meaningless.

If it is intended to have meaning, it must supplant the existing Code for Crown Prosecutors, the guidance governing decisions to prosecute, which is issued by the Director of Public Prosecutions (DPP) under section 10 of the Prosecution of Offences Act 1985. Criminal prosecutions must only start or be continued where the Full Code Test is met. This comprises two parts: (i) the evidential test; and (ii) the public interest test.

The evidential test is simply expressed: On the evidence available, is there a realistic prospect of conviction? The public interest test comprises consideration of various factors, including the seriousness of the offence, culpability of the suspect, harm caused to the victim, age of the suspect, community impact, proportionality of prosecuting and national security.

It is unclear which of these two tests the “presumption of prosecution” is expected to override. If the former, it will mean that cases where it has been judged that there is no realistic prospect of conviction (such as where one parent is estranged from the child and does not appear to have the requisite “frequent contact” with her) will be prosecuted at significant public expense, with young, brutalised girls deliberately dragged through the mire of criminal litigation to no avail. If the presumption in favour of prosecution is to kick in at the public interest stage, then UKIP would be advised to read the existing Code, which, in the chapter dealing with the pubic interest test, states (at 4.8):

 “Once the evidential stage is met […] a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.”

Or what one might call a presumption in favour of prosecution.

“In cases where the victims of grooming gangs are of a different racial or religious group than the offenders, the CPS should cite this as an aggravating feature of the offence when prosecuting, opening the way to a longer sentence.”

 The meat of the racist pie. What this is not-so-subtly aimed at is those stories that excite the tabloids where gangs of Asian (often Muslim) men groom white girls. For UKIP, if there is one thing that aggravates the rape of a child, it’s a mixing of the races.

Currently, courts are required by law (section 145 of the Criminal Justice Act 2003) to treat racial or religious aggravation in the commission of an offence as an aggravating factor in sentencing (save for in relation to specific offences which are by definition racially/religiously aggravated, such as racially aggravated common assault).

What amounts to “racial aggravation” under s.145? The definition, set out at section 28(1) of the Crime and Disorder Act 1998, is where:

at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

This, it can be seen, is a definition that focuses on the defendant’s specific conduct. It doesn’t matter what race the defendant or victim is – it is the particular intent that matters. The offender and victim might be of different races, or the same – it’s irrelevant. UKIP’s reform would turn this on its head, focussing not on what the defendant did or said, but entirely on the colour of his skin. All that would be required, in certain (unspecified) offences related to child grooming, is that the victim belong to a different racial or religious group than the offender. The actual existence of racial or religious aggravation would be irrelevant. The message, whether intended or not, is, “It is worse to rape a child of a different race to your own.” It is difficult to discern a motivation behind this policy other than naked racism.

 “CPS and police to be instructed to treat a so-called “honour” dimension of any act of violence as an aggravating feature, leading to it being accorded a higher –priority for investigation and prosecution and not a lower one.”

The premise of this pledge is that “honour” acts of violence are presently a “lower” priority for the police and CPS.  And I agree. What have the police and CPS ever done about “honour” violence for us? Apart from the ACPO (Association of Chief Police Officers) Honour-based Violence Strategy, of course. And the National Police Chiefs Council’s Honour-based abuse Policing Strategy. Also the CPS Protocol on handling “so called” Honour Based Violence/Abuse and Forced Marriage Offences. I suppose there’s also the long-running Violence Against Women and Girls Strategy, as detailed in the Cross Government VAWG Action Plan, overseen by the VAWG Inter-Ministerial Group. But apart from that, what have the police and CPS ever done about it? And when have they ever considered this to be a priority for investigation and prosecution? Aside from the action plan developed last year to address ways to improve prosecutions. Etc. Etc.

No-one wants to suggest that UKIP are a bunch of hog-brained, village ninnies who haven’t even consulted Google before firing off a range of mind-spasmingly senseless policies designed to prey on the very worst racial prejudices of their core voters. But an Integration Agenda that proposes intimately examining the genitals of children from minority groups, dragging such children through courts as witnesses where there is no prospect of conviction and locking up people for longer on the basis of their race, does not assist their cause.

 

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UPDATE: A number of commenters with first-hand experience of the French system have been in touch and advised that the position as understood by the Home Affairs Committee regarding compulsory medical checks in France is incorrect. I am informed that, in fact, the medical checks that take place up to age 6 do not include invasive genital examination. The evidence reported by the Committee in 2014 and 2016, upon which I have relied, can be found here and here.

Convicting the dead shows that we misunderstand the purpose of our criminal courts

Monday’s column for the i newspaper, for those interested, can be found here:

“Convicting the dead shows that we misunderstand the purpose of our criminal courts” https://inews.co.uk/opinion/convicting-dead-shows-misunderstand-purpose-criminal-courts/

Oliver_Cromwell_by_Samuel_Cooper-e1478589160860

And while we’re at it, a couple of other recent pieces for iNews that I forgot to link to:

“Both sides are wrong in the Marine A controversy” https://inews.co.uk/opinion/sides-wrong-marine-controversy/ 

“At £131,000, Katie Hopkins should realise trolling on Twitter is an expensive hobby” https://inews.co.uk/opinion/comment/131000-katie-hopkins-realise-trolling-twitter-expensive-hobby/