Why Criminal Justice Matters: Live Event at the RSA

On Tuesday evening, the RSA (Royal Society for the encouragement of Arts, Manufactures and Commerce) hosted an event, “Why Criminal Justice Matters“, at which a panel of industry experts (plus me) discussed the plight of the criminal justice system, and what can be done to remedy its failings.

The discussion was chaired by Joshua Rozenberg QC, and the panel featured:

  • Penelope Gibbs, Founder of Transform Justice
  • Angela Rafferty QC, Chair of the Criminal Bar Association
  • Jonathan Black, Partner at BSB Solicitors
  • Nazir Afzal, Former Chief Crown Prosecutor for Northwest England at the Crown Prosecution Service
  • Me, via live Twitter feed.

It was a thoroughly enjoyable event, and I am extremely grateful to all  concerned for their participation and support. Tickets sold out quickly, I’m told, but for anybody who wasn’t present and didn’t catch the live-stream, the event can be watched for free here:

 

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Bashing burglars and the law of self-defence

The headlines and news bulletins over the past two days have focused on this story:

(Your attention is respectfully drawn to the headline, rather than the libido-boosting diet to beat the menopause (no HRT required.))

I make clear at the outset that I offer no comment whatsoever on this particular case. While the editorial slants of the tabloids may hint at two-fingered salutes to the law of “strict liability” contempt of court, I am going to play safe by disclaiming that, as criminal proceedings in this case are “live” within the meaning of Schedule 1 of the Contempt of Court Act 1981 (a suspect having been arrested without a warrant), what follows is intended as a contribution to a discussion in good faith of public affairs or other matters of general public interest.

What I want to look at briefly, therefore, is the law of self-defence in what lawyers euphemistically refer to as “householder cases” – where force is used by a householder against a trespasser in a dwelling. In dipping into this legalese, I do not for a moment seek to minimise or cloak the stark reality that confronting a burglar in your home is one of the most terrifying experiences imaginable. Burglary of somebody’s home is an offence which, in my view, is treated with relative disdain by the criminal justice system. Its ubiquity means that insufficient resources are made available to police to investigate (hence shocking reports of 9 out of 10 burglary investigations being closed without a suspect being identified). Its prevalence means it is considered by the CPS to be one of the least serious criminal offences for the purpose of instructing prosecuting barristers, attracting a miserly fee (£480 for a 2-day trial requiring on average 20 hours’ work (2 days at court plus a conservative 4 hours’ preparation), so around £24 gross an hour, of which I would take home about £12), and is therefore prosecuted often by the least experienced in our ranks. And, while I am not one predisposed towards longer sentences, I have a lot of sympathy with members of the public who feel that a Sentencing Guideline starting point of 1 year’s imprisonment, of which a defendant will serve a maximum of 6 months, does not adequately reflect the harm done by the violation that breaking into someone’s home represents. The after-effects can last forever. It is not a mere property offence; it is an encroachment into a person or a family’s safest space. And I think many of us in the system can become inured to that truth.

So there is my opening salvo: I hold no affection for burglars. Don’t allow the clinical nature of what follows to lead you to think otherwise.

But, since the tale of Tony Martin in 1997, elements of the press and the Conservative party have become fixated on the notion that an Englishman’s home is no more his castle; that, confronted by an intruder in the dead of night, the householder is required to deferentially hand over the code to the safe and ensure that the burglar is safely escorted from the premises with his bag of swag bulging and his bodily integrity intact. What followed, under the intellectual guidance of Chris Grayling, was a change to the law in 2012 seeking to persuade Middle England that, in the words of the prematurely-celebratory Sun headline, “It’s Official: You Can Batter a Burglar“. We’ll have a look below at what that means in practice.

 

The law of self-defence

It is a longstanding principle of English common law that a person is entitled to use reasonable force in self-defence, or in defence of another. There are also statutory defences of using reasonable force in defence of property or in the prevention of crime and arrest/apprehension of offenders.

In 2008, the common law defence of self-defence was put on a statutory footing in section 76 of the Criminal Justice and Immigration Act 2008. What it means in practice is as follows:

  • A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
  • The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself an attack or imminent attack on himself or others or to protect property or prevent crime?
  • The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
  • The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.

Let’s break down what this means.

“A genuine belief that force is necessary”

The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).

 

“Reasonable force”

Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but section 76 reflects the famous words of Lord Morris in the case of Palmer v R 1971 AC 814, which are distilled in some form to juries when they are given their directions of law by the trial judge:

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

Further pointers in section 76 include the provision that if force is “disproportionate”, it cannot by its nature be “reasonable”. Which sounds self-evident, one might think, but we’ll come to this more in a second. It is also made explicit that, while the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit.

So in a nutshell, the law of self-defence means that the prosecution must make a jury sure that either a defendant didn’t really believe he needed to use force, or that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face – bearing in mind the broad scope of appreciation allowed in these cases.

Simple, right? Well, not, sadly, in cases involving burglars. As we shall now see…

 

Householder self-defence

In 2011, Prime Minister David Cameron, having promised in his party’s manifesto to afford “greater protection” to householders who use force against burglars, said:

‘We’ll put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.’

Quite how Mr Cameron intended to guarantee that fetter on the discretion of the independent Crown Prosecution Service was never explained, but the public was thereafter treated to Chris Grayling’s party piece at the Conservative party conference, which went someway beyond Mr Cameron’s hashed restatement of the existing law. And, as you might expect, Mr Grayling’s idea was as poor in execution as it was stupid in policy.

Grayling, having dissembled to the crowd about what the existing law of self-defence said, insisted that a new law was needed which changed the test.  No longer was “reasonable self-defence” a sufficient litmus. Instead, householders should only be convicted where they had used “grossly disproportionate” force. Merely “disproportionate” force, it followed, was no more than burglars deserved. Section 76(5A) was duly inserted into the Act.

Inevitably, once reality bit, Grayling’s dreams came crashing down around him. He lost the support of the Mail once they saw guidance sent to judges and prosecutors “admitting that the provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder.” (You can just hear the disappointment jumping off the page). The exemption did not apply to the use of force to protect property, for example. Nor did it apply to “non-dwelling buildings”. So if you saw someone stealing your lawnmower from your shed, you could not use disproportionate force to stop them.

But worst of all, when the High Court was called upon to interpret section 76(5A), it confirmed that its drafting did not in fact have the effect that Grayling had desired. The CPS had interpreted s.76(5A) in accordance with the newspaper headlines – only where the prosecution could prove grossly disproportionate force would it be appropriate to prosecute. But the High Court said otherwise: all the new law did was to confirm (as if confirmation were needed) that anyone using “grossly disproportionate” force could not, by definition, be using reasonable force. Force which was “merely” disproportionate could be reasonable in householder cases, but would not always be. The test, as with all cases of self-defence, remained whether force was “reasonable” in the circumstances.

So, in conclusion, where a householder is confronted by a burglar, if they genuinely believe they need to use force in self-defence, they can use such force as is reasonable in the circumstances. If they use “grossly disproportionate” force, they cannot rely on self-defence. If they use merely “disproportionate” force, that may or may not be reasonable. Got it? If not, you can blame Grayling for the unnecessary confusion injected by the pointless test of “gross disproportionality”.

 

Arrest

Much has been made about the fact that the 78-year old householder in the present case has been arrested and (presumably) interviewed by the police, before being released. It is worth remembering that the police have a legal duty to investigate cases where there has been a loss of life. Part of the investigation may involve arresting a suspect so that they can be interviewed.

Whether an arrest is necessary in a given case – as opposed to inviting a suspect in for an interview – depends on whether certain statutory factors have been satisfied. But on its face, there is little unusual in the police arresting somebody suspected of killing another person. The police will usually have a reasonable suspicion that a crime has been committed – because somebody has died a non-natural death – and the arrest will usually be necessary to allow a prompt and effective investigation, the combination of which means that an arrest is permissible. It is no indication of whether a charge will follow; rather it is on its face the police complying with their legal duties. When a suspect is arrested and detained at a police station, they have a panoply of rights, including the right to independent legal advice. If they are interviewed under caution (as one would expect), they will have the opportunity to advance any account of self-defence, which will then form part of the file that is passed to the Crown Prosecution Service for a charging decision.

 

The charging decision

The Code for Crown Prosecutors provides that when a charging decision is being taken the test is two-fold – (i) is there a realistic prospect of conviction on the evidence? (ii) Is a prosecution in the public interest. If a suspect offers self-defence as an explanation in their police interview, the CPS will have to be satisfied that there is sufficient evidence to disprove this beyond reasonable doubt, applying the above test. Even if they are satisfied of the evidence, they must then consider the public interest. CPS Guidance says:

When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:

  • the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
  • in discouraging vigilantism and the use of violence generally.

There is often a degree of sensitivity to be observed in such cases; this is particularly important when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.

 

Conclusion

Upon inspection of most of the tabloid’s causes celebres, one will often find a fairly sensible explanation for a decision to prosecute a householder who has injured or killed a burglar. Sometimes, as with Tony Martin, the homeowner will have used lethal force on a burglar fleeing the property, or will have chased him down the street and given him a sound thrashing. The bottom line, as has always been the bottom line notwithstanding the dishonesty of Chris Grayling, is that using reasonable force against a burglar will rarely result in a prosecution, much less a conviction.

Bad law reporting and a public dangerously disconnected from criminal justice

The criminal law has long had an image problem.

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

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

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

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

Broken-Justice-System

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

A run of sentencing “outrages” has followed.

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

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

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

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

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

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

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

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

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:

IMG_1428

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.