Don’t fall for Boris Johnson’s criminal justice con tricks

Yesterday morning, newly-appointed Justice Secretary Robert Buckland told Radio 4’s Today programme of his pleasure that the Prime Minister is taking an interest in the criminal justice system. And certainly, after three years of wilful abandonment under Theresa May, I would in principle gladly welcome some Downing Street-level political attention on the ruinous state of our criminal courts.

When this attention is coupled with more money for the criminal justice system, this sounds very much like the sort of thing those of us working within have been crying out for. So surely we should all join hands with Mr Buckland and celebrate that in Boris Johnson we finally have a leader taking criminal justice seriously?

Don’t believe a word of it. The entire project is a con.

Starting with the “new money”. Mr Johnson has announced that 20,000 new police officers will be recruited over the next three years. This is vital, certainly, but falls far short of what is required, given that that figure barely replaces the number of officers cut since 2010. Meanwhile, not only is crime increasing, but investigations are becoming ever-more complex, with digital evidence sucking resources and quadrupling the effort that would have been required a decade ago.

There’s £85m for the Crown Prosecution Service, which sounds like a healthy sum, until you realise that it’s a fixed payment over two years, and that the CPS budget for 2018/19 was a quarter of a billion pounds less in real terms than in 2009/10. The CPS has lost a quarter of its staff and a third of its lawyers since 2010. Two tranches of £42.5m will not begin to fix the problems that plague prosecutions up and down the country.

There’s a promise of 10,000 new prison places, when the previous promise of 10,000 places in 2015 fell short by 6,000, and another 9,000 places alone are required simply to address the present, longstanding overcrowding. There is £100m for technology to aid prison security, but no mention at all of the extra prison staff needed to safely manage the new offenders, given that even after a recruitment drive in 2017, numbers are 15 per cent down since 2010. There has been a huge drain of experience since 2010, as the most experienced officers were among the first to go when the government decided to slash prison staff by over a quarter, at a time when the prison population has climbed.

But the problem extends far beyond inadequate promises to redress chronic underfunding. The propaganda accompanying these announcements betrays not only the Prime Minister’s trademark opportunism and dearth of intellectual rigour but the sticky, putrid tar clogging the heart of the Johnson Crime Agenda.

Announcing his plans in a series of weekend puffs in tame newspapers, Boris Johnson declared, “Left wingers will howl. But it’s time to make criminals afraid – not the public.” Declaring his mission to ensure that criminals “get the sentence they deserve,” Johnson continued a theme begun in his Telegraph columns on the campaign trail, when he railed against “early release” from prison and inadequate prison sentences being passed. The solution to our criminal woes, the subtext screams, is to lock up more people for longer.

And let’s make no mistake, punishment is a legitimate and important part of criminal sentencing. It is one of the five purposes of sentencing listed in statute, alongside the reduction of crime (including by deterrence), reform and rehabilitation, protection of the public and making reparations to victims. Few if anybody involved in criminal justice would disagree with the notion that people who commit crime should be punished in a way that reflects their culpability and the harm they have caused, and that for some people, notably the most serious violent offenders, lengthy prison sentences are inevitable.

However, the notion that longer prison sentences by themselves make any of us any safer is a fantasy. The notion in particular that knife crime will be solved if we simply lock up young men for years on end is a hoax. The public may well be protected from that particular individual for the duration of their incarceration, but the idea underpinning this rotten philosophy – that longer sentences have a deterrent effect on crime – has been shown to be bogus. What does act as a deterrent is not severity of sentence, but certainty. The likelihood of being caught and dealt with swiftly, in other words.

But crime reduction and prevention is not achieved solely by deterrence. Rehabilitation is a vital part of protecting the public. This is why, when dealing with complex, multi-causal offending intractably rooted in social and cultural problems, the courts may take the view that more can be done to protect the public by keeping a young man on the cusp of custody out of the prison warehouse estate, and offering focussed intervention in the community. Sending someone to prison usually means ripping them away from all and any stabilising factors they may have. They lose their job, their social housing and their relationship, and exit prison with no support network other than the new friends they’ve made inside. This is why the evidence suggests that reoffending rates are lower when offenders are kept in the community.

But the evidence is of no concern to the Prime Minister. This is why he is forced into infantile ad hominems as a pre-emptive rebuttal against the people who have read and studied the evidence, and might be minded to offer some as a counter to his claims that our system is soft.

We already have the highest incarceration rate in Western Europe. Prison sentences have on average got longer year-on-year. We have more prisoners detained on indefinite and life sentences than all the other countries in the Council of Europe.

The notion that our courts routinely hand out “soft sentences” is simply not true. When we do see “soft justice” stories in the headlines, they will either be an aberration, usually corrected on appeal, or they will be the product of inaccurate or dishonest reporting, removing context or omitting facts.

Which brings us to Johnson’s public statements. Because at the centre of his musings on criminal justice is a rich stuffing of bullshit. He has lied and lied and lied. He lied when he claimed that “a convicted rapist out on early release” had raped again (the man in question was neither a convicted rapist nor out on early release). He lied when he suggested that the notion of allowing some prisoners to be released on temporary licence was “criminally stupid” (the government’s own evidence shows that reintegrating prisoners into the community in this way cuts reoffending). When he told the Mail this weekend that there are “thousands of “super prolifics” – criminals with more than 50 convictions to their name – who are being spared jail altogether”, he did not tell you that one of the reasons they were spared jail might be that they were being sentenced for non-imprisonable offences. He is lying to you when he tells you that the solution to crime is More Police, More Prisons.

He is lying so that he can turn the volume up to 11 on his remix of “Prison Works” to ensure the oldies at the back of the conference hall can hear in the run-up to the inevitable autumn general election.

And while Mr Johnson is lying to you, the rest of the criminal justice system rots.

Courts are being closed down and sold off all over the country. Half of all magistrates’ courts have been closed, meaning that defendants, victims and witnesses are forced to travel for hours on ineffective public transport to their “local” court.

Of those courts remaining standing, many are unfit for purpose. Decaying, crumbling buildings with no working lifts, holes in the roofs, sewage leaking into public areas, no air conditioning in summer and no heating in winter. In some, the public cannot even get a glass of water.

Of the courts that remain unsold, all are now run at artificially low capacity due to Ministry of Justice restrictions on “court sitting days”. We have, in many large city Crown Courts, the farce of full-time, salaried judges being forced to sit at home taking “reading days” – their perfectly serviceable courtrooms sitting locked and empty – while trials are fixed for Summer 2020 due to an alleged “lack of court time”.

We still have the abominable system of “floating trials” and “warned lists” – where defendants, witnesses and lawyers are expected to give up days or weeks of their lives just sitting around at court on the off-chance that a courtroom suddenly becomes free to take their trial. When, inevitably, no courtroom becomes free (because the MoJ won’t pay for the sitting day, ibid), their case is adjourned for months, and the cycle begins again.

The one thing that does act as a deterrent to criminals – certainty – is being eroded by ensuring that justice is doled out literally years after the event, because the government will not pay for the courts to process cases clogging the pipeline.

Meanwhile legal aid is being stripped away from citizens, forcing them to self-represent in cases in which their liberty is on the line.

This is why I am angry. Not because I’m a “lefty” inherently resistant to Boris Johnson’s white hot public service reforms. I’m angry because as a prosecutor I am still having to sit down with crying witnesses week after week and explain that their torment is being prolonged for another six months because the government refuses to pay to keep courtrooms open. I’m angry because the Innocence Tax – the policy that forces the wrongly accused to pay privately for their legal representation and then denies them their costs, bankrupting them, when they are acquitted – is not even in the political peripheral vision. I’m angry because our Prime Minister is a man who looks at the record rates of death, violence, suicide, overcrowding and self-harm in our prisons and whose first question is, “How do we get more people in there?”. I’m angry because the notion that you “crack down on crime” by chucking a few more police officers onto the streets and shoving more and more people into our death-riven prisons is a con. It is a con to victims of crime, and it is a con to you, the public. I’m angry because we have the indignity of a dishonest, cowardly and exploitative Prime Minister fiddling with his Party’s g-spot while the criminal justice system burns.

Don’t fall for his con trick.

Peter Hitchens’ comments about Jo Cox’s killer betray a fundamental ignorance of the basic facts

A familiar sound for readers of the Mail on Sunday is the deafening cymbal-clash of Peter Hitchens colliding with reality. This last Sunday offered a particular highlight, which, although there is undoubted wisdom in leaving him alone to figuratively wander the 21stcentury in his dressing gown shouting at clouds, cannot pass without comment.

Summarised by this tweet:

https://platform.twitter.com/widgets.js

he shared his considered view that Thomas Mair, who was convicted by a jury of the murder of Jo Cox MP and sentenced to imprisonment for life, has wrongly been tarred a terrorist.

Undeterred by the fact that there was a wealth of evidence before the court which he, as somebody who was not in court for the duration of the trial, has neither seen nor heard, Mr Hitchens, armed with a fistful of second-hand newspaper reports of snippets of the case, assured readers that he, the clear-sighted rationalist, can see the case for what it is: “a tragedy twisted into a bogus ‘terror plot’”.

The premise of his thesis, as he expanded in a further blogpost on Monday, appears to be twofold. Firstly, it is “absurd” for anyone to claim that Mair was a “rational, coherent political actor”, as his actions “predictably achieved more or less the exact opposite of what he supposedly intended – and he would have grasped this in a second had he been in a normal state of mind”.

Allied to this is the second proposition: in Mair’s trial, there was evidence of mental ill health, which was suspiciously omitted from the legal proceedings. “Mair’s lawyer said he would not bring his medical history into the case. But why not?” “Why does the authority ignore such vital facts?” he demands, fingers twitching towards the tin foil with millinery intent. “Does the government want to believe, and to spread the idea, that there is some organised Right-wing terror plot?”

We can deal with the first argument swiftly: irrationality and mental ill health are two discrete concepts. The former may be a symptom of a latter, but they are not necessarily linked. Most of the people who cross the threshold of the criminal courts are irrational.  I’ve prosecuted more burglars than I can count who, despite their extensive experience, have still failed to process that climbing through a broken window is likely to result in your blood being left at the scene. The number of young men who, disqualified from driving and flagged down by the police, decide not to cut their losses and take their dues but instead to lead the police on a merry 90mph pursuit through residential areas and red lights before, inevitably, being caught, adding dangerous driving to the charge sheet – irrational? Tick. Incoherent? Tick. Achieving the exact opposite of what they supposedly intended? Tick. Colloquially they might be said to, in Hitchens’ words, be “roaming along the outer frontiers of sanity”, but mentally ill? That’s something different.

But amateur diagnostics aside, let’s consider Hitchens’ overarching theory: the suspicious omission of medical evidence of mental ill health from Mair’s trial. Referring to comments in news reports, he finds various examples of people claiming to know Mair – none apparently medically qualified – and offering anecdotes and opinions on Mair’s mental health. There is also a suggestion that Mair was in receipt of psychotropic medication. From this, Hitchens decries the “puzzling decision to ignore the plentiful evidence of Mair’s mental abnormality, reported at so many different times by so many independent people, but not discussed before the jury.”

Well this is only suspicious and puzzling if you don’t understand the first thing about how a defendant’s mental health is relevant in criminal proceedings. And it is regrettable that, given how frequently Mr Hitchens finds novel ways to be wrong about the criminal law, he did not think to ask anybody involved in criminal justice for their insight. Had he done so, he may have been told something along the following lines.

Evidence is carefully filtered in every criminal case. The court is only allowed to receive evidence that is relevant. Many defendants in criminal proceedings have lengthy histories of mental health problems. But it is only in a handful of trials that their condition is relevant to the issues that the jury have to determine.

How might mental ill health be relevant?

If a defence solicitor or barrister believes that a client may be suffering from mental ill health, they will as a matter of course obtain the client’s medical records and commission a psychiatric report. That report may be asked to comment on one or more of a variety of matters.

A psychiatrist may be asked to assess whether a defendant is “fit to plead” – legalese for being fit to participate in the trial process. This involves an assessment of whether a defendant can: understand the charges; decide whether to plead guilty or not guilty; exercise his right to challenge jurors (if, say, he knows one of them); instruct his legal representatives; follow the course of proceedings; and give evidence in his defence. If he can’t do one or more of those things, and if a judge hearing the evidence of two psychiatrists finds that the defendant can’t, he will be unfit to plead. This means that instead of a criminal trial there is a modified process (known as a “trial of the facts”), where a jury decides not on guilt but whether the defendant “did the act”. If so found, the court’s powers are limited to strictly rehabilitative options.

A psychiatrist may alternatively or as well be asked to opine on whether a defendant has a defence of insanity, defined as:

at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong

In murder trials, there is also a partial defence of diminished responsibility:

Furthermore, if a defendant were not capable of forming the specific intent to kill or cause grievous bodily harm (the mens rea for murder), whether because of a psychiatric condition or because of intoxication, that would also provide a defence to murder.

Finally, a psychiatric report may help with sentence. It may afford mitigation, if the offence was committed against the background of a mental health condition that reduced his culpability. It may make recommendations for particular disposals, such as hospital orders. And it may comment on issues that the court have to consider such as future risk.

Now the headline with all of these is that any such reported obtained by the defence attracts legal privilege. This means that the defence do not have to show anybody else – the court or the prosecution – the contents of the report if they do not wish to. So if a psychiatric report does not help the defence case, there will usually be no point in serving it. Many, many psychiatric reports are prepared for court cases every day and ultimately not relied upon. Often, the conclusion will be, “The Defendant suffers from psychiatric or psychological disorders, namely X, Y and Z, but not to the extent that any of the legal defences apply”. Sometimes, worse still, the report will be positively harmful to the defence. “The Defendant expressed no remorse and in my view presents a significant risk of serious harm to the public” is the last thing you want the court to read if you are trying to do the best for your client in mitigation. But, and I will repeat this, the fact that mental health issues were not “discussed before the jury” does not mean that all relevant mental health issues were not considered and dealt with appropriately.

Now we do not know why Mair’s lawyer did not rely on medical evidence. But we do know, because the defence barrister told the court at a pre-trial hearing, that Mair had been subject to an assessment.

So that leaves us with two possibilities:

  1. The defence lawyers considered that the contents of the psychiatric evidence, although perhaps showing that the defendant had mental health problems, did not assist the defence case;
  2. The defence lawyers ignored the psychiatric evidence, or negligently failed to appreciate that it was legally relevant and of assistance, and Peter Hitchens, who has never seen the evidence and is not legally trained, has correctly guessed this by piecing together things reportedly said by friends and neighbours.

Mistakes happen, of course. Negligence happens. Lawyers and judges are far from infallible. We see awful cases on appeal where the courts and/or defence representatives failed to appreciate the significance of a defendant’s mental health. But there is absolutely nothing to suggest that this is what happened in Mair’s case; to the contrary, his highly experienced lawyers indicated to the court that mental health had been considered and was not, for reasons that they do not have to state openly, going to be relevant to the issues the jury had to decide. Nor, from the sentencing remarks, was there any mental health issue relevant to mitigation. You’ll note that Hitchens does not suggest in respect of which legal issue – fitness to plead, a defence (and which one) or mitigation – the evidence of mental ill health ought to have been adduced. He just vaguely asserts that it should have been “discussed before the jury”, without deigning to tell us to what end.

Hitchens’ hang-up appears to stem from the false presumption that because an issue wasn’t raised before the jury, it wasn’t considered. That is wrong. No such deduction can safely be made. If Hitchens has spoken to those involved in the case, or has somehow seen Mair’s medical records or psychiatric reports, he may be onto something. Without any of those, it is nothing more than a conspiracy theory, and, given the imputation that Mair’s lawyers have been professionally negligent in service of a government agenda, a potentially libellous one at that.

Despite this all being pointed out to him, by numerous people, Hitchens remains characteristically recalcitrant. He insists that he is not seeking to excuse or defend Mair’s conduct, but he remains strangely keen to leverage minimal evidence of mental ill health to distance Mair from the “terrorist” label. The evidence of political motivation behind Mair’s actions was abundant, as the sentencing remarks made plain, but Hitchens goes to tortuous lengths to try to rebut this, climaxing with: “To me, his very insistence to police that “I am a political activist” shows that he was nothing of the sort.” Or as Brian’s followers would have it, “Only the true Messiah denies his divinity.”

Quite why Hitchens is so wedded to a thick black line that does not exist – attempting to separate mental ill health and terrorism into mutually exclusive camps – is also a mystery. Why he cannot accept the proposition that a person can be mentally unwell whilst still capable of committing deliberate and knowing acts of political carnage is as baffling as his determination to cast Mair as a victim of a state fit-up. The whole argument, as with so much of what Hitchens writes, is achingly bizarre. By the time you’ve finished deconstructing it, you almost forget why you started. Like the time he mistook the origins of the term “county lines” and got himself in a week-long tantrum, his thinking on this issue betrays a millefeuille of irrationality, incoherence and counterproductive reasoning. Hitchens has a term for that, but I expect he would not take kindly to it being applied to him.

The Ben Stokes trial: what went wrong?

This is one of those posts carrying a title which I genuinely had no intention nor desire to write. It is also, I make plain at the outset, rampant clickbait, as I, like 7 billion other people who were not present for the duration of the court proceedings, am in no position at all to say what (if anything) “went wrong” in the Ben Stokes trial. However, given the ongoing social and tabloid media commentary and speculation, it seems that some general pointers on the law in this area would assist. I’ve done my best to piece together the facts from various outlets, but the standard caveat applies throughout: this analysis is based on the inevitably limited picture available.

 

What is the case about?

England cricketer Ben Stokes was on Tuesday 14 August 2018 acquitted by a jury of affray following a week-long trial at Bristol Crown Court. A co-accused, Ryan Ali, was also acquitted of affray. A third defendant, Ryan Hale, was acquitted of affray last week at the end of the prosecution case when the judge ruled that there was “no case to answer” against him.

The facts, put simply, are that in the early hours of 25 September 2017, violence broke out outside a nightclub in Bristol. Video footage captures part of what took place, and shows a male said to be Ben Stokes throwing punches at two other males. In the course of the incident, Ryan Ali was knocked unconscious and suffered a fractured eye socket, fractured tooth, cut eyebrow and bruising. Ryan Hale was also rendered unconscious and suffered concussion.

The prosecution case was that Ben Stokes was the aggressor and was “enraged” after a doorman refused to allow Mr Stokes and his teammate Alex Hales into a club. Ben Stokes was said to have homophobically mocked two men, Kai Barry and William O’Connor, immediately before the violence broke out.

Ben Stokes’ case was that he was in fact standing up for Mr Barry and Mr O’Connor after they were verbally abused by others. He said that Ryan Ali had then threatened him with a bottle, and that his actions thereafter amounted to lawful self-defence.

The prosecution conceded that Ben Stokes may have been acting defensively initially when threatened by Ryan Ali, but asserted that he “quickly became aggressor”.

Ben Stokes’ teammate, Alex Hales, was also present, and it was said by Stokes’ barrister that Hales could be seen on the CCTV kicking and stamping on Ryan Ali during the melee. Alex Hales was not charged with any offence.

The prosecution relied upon the evidence of a doorman and an off-duty police community support officer (PCSO), as well as video footage.

Mr Barry and Mr O’Connor were not called to give evidence by either side at trial.

 

What is affray?

Affray is a public order offence, contrary to section 3 of the Public Order Act 1986:

Affray.

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

Affray is an “either-way” offence, meaning it can be tried either in the magistrates’ court or the Crown Court before a jury. In the Crown Court, the maximum sentence upon conviction is 3 years’ imprisonment.

As we can see, an offence of affray involves the use or threat of unlawful violence, but is concerned not so much with the impact of the violence upon the individual concerned, but with the impact upon the passing public. The gravamen is the fear that this type of violence causes to bystanders. It is therefore quite different to an assault.

The Crown Prosecution Service guidance on affray provides a handy summary of the relevant law. There are quite a few interesting features. For example, the requirement that a notional “person of reasonable firmness” be put in fear for their personal safety means that not all violence will qualify as an affray. It’s possible for someone to assault another person in such a way as would not cause a bystander to fear for his own personal safety. Affray tends to apply in cases, such as this, where there is a brawl or outbreak of (often drunken) violence that members of the public might reasonably fear could spiral.

 

What is self-defence?

Self-defence is a complete defence to affray. I’ve written about self-defence in some detail before, here. For now, I’m going to copy and paste the relevant bit:

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 from 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.

 

How was Ben Stokes acquitted? The CCTV shows he was clearly being violent

That may well be so. But the question for the jury wasn’t “Does the CCTV show that he was throwing punches?” The question was whether the offence in law was proved.

To this end, the court has published the “route to verdict” provided to the jury. These are now produced by judges in most Crown Court trials, and are exceptionally useful. Frankly, I have no idea how juries of bygone years were supposed to decide complex cases without them. They usually take the form of flow charts or numbered questions, and are tailored to the issues in the particular case. Judges usually show them to the advocates before the document is given to the jury, so that the parties can offer observations.

Here is the route to verdict:

As can be seen, there were many theoretical routes by which a jury might have acquitted. We have no way of knowing why the jury in this case did.

 

Why wasn’t Ben Stokes charged with assault?

Many, including this honkingly poor Daily Mail piece, have been asking this question. It emerged that, on the first day of trial, prosecuting counsel Nicholas Corsellis applied to amend the indictment against Ben Stokes to add two counts of assault occasioning actual bodily harm (contrary to section 47 of the Offences Against the Person Act 1861), in relation to the injuries suffered by Ryan Ali and Ryan Hale. The judge refused, commenting on the “very late” nature of the application and the fact that Treasury Counsel (the most senior barristers instructed by the Attorney General) had been specifically asked to advise on the appropriate charge at the beginning of proceedings and had alighted upon a single count of affray against Ben Stokes as sufficient. The judge did say that, had the prosecution applied to add the counts to the indictment at an earlier stage, there would have been little problem; however, leaving it to the day of trial was not right. The judge also said that in his view such an amendment was “not necessary”.

Should Ben Stokes have been charged with assault occasioning actual bodily harm? Certainly Mr Corsellis thought so, even if Treasury Counsel (named by the Mail as Alison Morgan) initially instructed to advise on charges at the outset of the case thought otherwise.

The Crown Prosecution Service charging standards would appear to support Mr Corsellis. These specifically address the issue of when a public order offence and an offence against the person should be charged:

Charges Relating to Violence Against the Person

Charges of Assault that are appropriate to link to those of Public Order are set out below.

[…]

If there is sufficient evidence to justify a charge under sections 2 or 3 of the Public Order Act and an assault contrary to:

  • section 18 OAPA; or
  • section 20 OAPA; or
  • section 47 OAPA

It will usually be appropriate to charge both. It will not normally be appropriate to charge common assault (section 39 of the CJA 1988) together with an offence contrary to sections 2 or 3 of the Act.

Sometimes, prosecutors will charge tactically. It may be easier to prove affray, or the view may be taken that a conviction for assault is unlikely to add materially to the sentence for an affray, and the Crown may reasonably consider that adding a charge of assault would unnecessarily complicate the trial.

Without knowing the advice offered to the CPS, we cannot say why the decision not to charge s.47 assault was taken. But the expectation in such cases is that it usually should be charged. The CPS has released a brief statement saying:

“The CPS keeps cases under continual review. We selected the charge of affray at the outset in accordance with the code for crown prosecutors. Upon further review we considered that additional assault charges would also be appropriate. The judge decided not to permit us to add these further charges. The original charge of affray adequately reflected the criminality of the case and we proceeded on that.”

It may be – we don’t know – that the evidential position shifted in some way that meant that a charge of assault occasioning actual bodily harm was suddenly viable in a way it was previously not. By way of example, if the CPS suddenly come into possession of medical evidence proving injury, they might properly say that they are only at a late stage in a position to support a charge of ABH. But the reports of the judge’s ruling suggest that it was simply that the new prosecution barrister formed a different view to his predecessor. This is in itself not an an uncommon occurrence – because of the unpredictability of criminal court listings, trials overrunning etc, cases are often “returned” to a new barrister the night before trial, who may then advise the CPS in completely different terms.

 

Would a charge of assault have resulted in a conviction?

We don’t know. The newspapers have largely assumed this as a given, but if the tenor of the defence to the affray was self-defence, then my educated guess would be that a similar defence would have been run in relation to any assault charge. And while we don’t know how and why the jury acquitted, there’s a reasonable inference that if they couldn’t be sure that the prosecution had disproved self-defence on the affray, there would be no difference to the verdict on an assault charge.

It’s also worth noting that despite excitable commentary from the Telegraph that charging two counts of s.47 assault would have left Mr Stokes facing thirteen years in prison, this would require the judge upon conviction passing the maximum sentence for each charge (5 years for each ABH and 3 years for the affray) and directing them to run consecutively to each other, something which has never happened in the history of English and Welsh criminal law. Convictions for assaults on top of affray would have added a little by way of sentence, but not lots. The maximum sentence for ABH may be 5 years, but the range set by the Sentencing Guidelines (which judges are required by law to follow) is up to 3 years, and judges do not simply pile sentences on top of each other. They apply what is referred to as “totality”, and ask themselves “what is the overall sentence that justly reflects the total offending in this case?” In this case, the all-round sentence would, in my experience, be unlikely to be much more for the presence of two assault charges.

 

What about the missing witnesses? Why didn’t the prosecution call them?

Barry Kai and William O’Connor were speaking to the media in support of Ben Stokes immediately after the acquittal, raising the reasonable question of why they weren’t witnesses in the trial. The CPS has said:

“The evidence of Mr O’Connor and Mr Barry was disclosed to the defence but it was not deemed necessary to call them as witnesses in the case.”

Reading between the lines, it appears that whatever these two witnesses told the police, it did not help the prosecution case. This is why their “evidence” (by which the prosecution presumably means their witness statements or other informal accounts given to the police at the scene) was disclosed to the defence, rather than relied upon as prosecution evidence. This is far from unusual in affray cases, especially where most witnesses and participants have been drinking. Prosecuting an affray trial can be fiendish, as you have to pick out the bones from a pack of incoherent and inconsistent witness statements and decide how the prosecution puts its case. Usually you will rely upon the account of the most sober and independent witnesses, and disclose the remainder to the defence as “unused”. We know that the prosecution had two such ostensibly reliable and sober witnesses – the doorman and the PCSO – and if their evidence contradicted Messers O’Connor and Barry, the latter two may well have been considered unreliable.

It is notable that, despite their warm words for Mr Stokes, the defence did not choose to call them as defence witnesses. Plainly whatever they had to say was not considered sufficiently reliable or helpful to Ben Stokes’ case for them to say it on oath before the jury.

 

Why wasn’t Alex Hales prosecuted?

Based on what has been reported, this is a reasonable question. The defence told the court – and the police officer in charge of the case agreed in evidence – that the video footage showed Alex Hales kicking and stamping on Ryan Hale and Ryan Ali. Mr Hales was interviewed under caution by police but ultimately not charged. He apparently told attending police officers that he had only arrived at the scene after the police had, which does not sit easily with the footage. There is no explanation for the decision not to charge him beyond a bare statement from the police that “Early investigative advice was sought from the Crown Prosecution Service in relation to Alex Hales’ involvement in the incident and a decision was subsequently made at a senior level to take no further action against him.” 

 

Was the Ben Stokes verdict right? 

I don’t know. I didn’t hear all the evidence. And, unless you are a juror, reporter or member of the public who attended every day of trial and absorbed all the evidence, you don’t know either. You have an incomplete picture and should not be commenting.

 

So the verdict means that Ben Stokes is innocent, right?

He is presumed innocent, yes. Proven innocent, no. A “not guilty” verdict means only that the jury was not sure of guilt. This is what juries are told up and down the land ever day – if you are not sure of guilt, you must acquit. Look back at that route to verdict for the many ways in which a jury could have reached a not-guilty verdict. They may well have all agreed that Mr Stokes’ actions were most definitely reasonable self-defence. Or they may have found themselves almost sure – but not quite – that he was the aggressor and/or had gone way over the top. That is the spectrum of an acquittal  – sure of innocence right through to very nearly sure of guilt. That is why we say that an acquittal should never, by itself, be heralded as “proof” of innocence. The presumption of innocence remains intact – no criminal legal consequences now flow – but anyone relying on an acquittal as proof of innocence is reaching for a meaning that the verdict does not carry.

 

This case is a shambles, right? Heads should roll

Some of the criticism has been completely unfounded and misdirected. It was not, for example, a “blunder” for the Crown not to call Mr Barry and Mr O’Connor; unless it can be shown that their evidence was reliable and would have supported the prosecution case, it would be entirely right and proper for the Crown not to rely upon them.

However, there are understandable questions over Alex Hales’ role, and why he was not charged. Some detail from the CPS beyond the usual rote “The evidence did not support a charge” would help in cases such as this.

It is also arguable that charges of assault should have been preferred at an early stage as well as a charge of affray; although there is no evidence that this would have made a difference to the verdict.

Furthermore, and significantly, a not guilty verdict, we must remember, is not a conclusion that a case should never have been brought.

The test for prosecuting is: Is there a realistic prospect of conviction? If there had been no case to answer against Ben Stokes, the judge would have made the same ruling at the close of the prosecution case as he did in respect of Ryan Hale: he would have directed the jury to immediately acquit.

Why was a homeless man jailed for pretending to run the London Marathon?

A homeless man who picked up a lost race number and “completed” the London Marathon has been jailed for 16 weeks.

Yesterday at Uxbridge magistrates’ court, Stanislaw Skupian (38) was sentenced by magistrates having pleaded guilty at an earlier hearing on 18 May to fraud, after he picked up a race card number dropped by runner Jake Halliday at the 23-mile mark and illicitly joined the race himself. He crossed the finish line and celebrated with the medal intended for Mr Halliday, who found himself removed from the race 300 metres from the Finish line when marshals spotted that he was not wearing a race number.

The Chair of the bench passing sentence told Skupian, a homeless father-of-one who had recently suffered a temporary breakdown in his mental health, “The offences are so serious [that] only a prison sentence will suffice”. 13 weeks’ imprisonment was passed, with three weeks’ imprisonment imposed consecutively for unrelated matters of theft.

The Chief Executive of the London Marathon, Nick Bitel, reportedly said that “justice has been done”. His apparent pleasure with the sentence was not matched by many people on social media, who expressed consternation at a mentally-unwell homeless man being squeezed into our bursting prisons for a non-violent offence.

So what the Dickens has gone on?

The offences

Stanislaw Skupian was charged with fraud by false representation, contrary to sections 1 and 2 of the Fraud Act 2006. The “false representation” being, presumably, the implied representation that he was the rightful owner of Mr Halliday’s race number and was entitled to complete the race and claim the finishers’ medal. This offence carries a maximum sentence of 10 years’ imprisonment in the Crown Court, or six months’ imprisonment in the magistrates’ court. He was sentenced to 13 weeks’ imprisonment.

He was also charged with three unrelated offences of theft. He was arrested at the multi-faith prayer room at Heathrow Airport, where he was found with items including a primary school worker’s identity card and a pink diary holding overtime hours worked by airline staff. It was said that Skupian viewed the airport as a temporary home and had picked up items discarded. This would amount to theft (referred to in court as “theft by finding”) under s.1 of the Theft Act 1968. He received three weeks’ imprisonment for these offences, to run consecutively to the 13 weeks imposed on the fraud (it is unclear whether this was one week consecutive for each of the three theft charges, or three weeks on each directed to run concurrently to each other, or some other mad configuration dreamed up by the magistrates).

He was further made subject to a Criminal Behaviour Order, which is the new replacement for the old-fashioned ASBO. These can be imposed where the court is satisfied that a defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and where a Criminal Behaviour Order will help in preventing the defendant from acting in that way. In this case, the court deemed that banning the defendant from Heathrow Airport for three years, unless he has a pre-booked flight, was an appropriate use of that power.

 

The Sentencing Guidelines

To look at what sentence we might expect, we have to look at the Sentencing Guidelines, which are published by the Sentencing Council and which courts are required by law to follow. So let’s look at the Definitive Guideline for Fraud, Bribery and Money Laundering Offences. The seriousness of an offence is judged by considering the “culpability” of the offender and the “harm” caused by the offence.

On the Guideline for straightforward fraud, the first step is to assess culpability by reference to the below factors:

There are plainly no elements of “High culpability” in this case. It would appear, in the absence of any evidence to the contrary, that this was an opportunistic, one-off offence with very little planning, which points towards Lesser culpability.

Now we turn to the assessment of harm:

For fraud, you take as your starting point the financial loss to the victim. Here, it is very low indeed. The cost of entering the London Marathon ballot, at £39, is probably the closest financial value you can attach to this unusual offence (the value of the medal not being easily assessed due to it not being something purchasable on the open market). This puts us in the lowest category, Category 5.

But then we have to look at the impact upon the victim, to see whether it warrants the sentence being moved upwards. This is a slightly unusual case, because although (I expect) the charge would have been drafted with London Marathon as the nominal victim, the person most directly affected is arguably Jake Halliday. He was stopped 300 metres from the finishing line and told that he was not allowed to cross due to his number having fallen off. He had raised £49,000 for a charity, Bloodwise, and was prevented from completing the race, having run the best part of 26 miles, in the cruellest of circumstances. What was (one might expect) a lifetime ambition was snatched away. That no doubt had a considerable detrimental effect on him.

However. Can it really be suggested that Skupian was responsible for depriving Mr Halliday of his moment of glory? It was said in court (and seemingly not disputed) that he spied the discarded race identifier on the floor and saw an opportunity. He did not steal or otherwise remove the number from Mr Halliday. It does not appear that he watched it fall and swooped in. If, as the court apparently accepted, he had simply seen it on the ground, was the damage not already done? Perhaps he could have handed the card to an official, but it is unclear how it could have been reunited with Mr Halliday in order for him to have been able to complete the race. The London Marathon Final Instructions to runners emphasises the importance of taking care of the running number – “Duplicate numbers cannot be issued under any circumstances”. It is also stated that anybody taking part without a number will be removed from the race by marshals “before you cross the Finish line”. Once that number had fallen, it would appear (and I’ll be happily corrected if I’m mistaken) that the game was over for Jake Halliday.

Against this backdrop, it might realistically be argued that while Skupian exploited Mr Halliday’s misfortune, his criminal behaviour did not cause it. The anger and humiliation felt by Mr Halliday when he learned that somebody had claimed his number and completed the race in his stead may well be significant, but is it so great as to move the harm out of “Lesser impact”? I suppose it might. Just.

My assessment is that for these reasons, this case probably falls somewhere between, categories 4C and 5C:

We can see that the latter provides a starting point of a ‘Band B fine’, which equates to around 100% of somebody’s weekly income. The category range is a discharge – a slap on the wrist – up to a medium level community order. If the harm caused is deemed serious enough to lift it up to the next category, the starting point is a medium level community order. Still the category range does not extend to custody. In order to arrive at a category where a custodial term is available, the court would have to have assessed culpability as “B”. I find it tricky to see how this was done.

We then look at aggravating and mitigating factors:

 The defendant had a previous conviction for attempted theft. That was the only matter mentioned in court. So while it is a similar type of offence, this is hardly the kind of record which would seriously aggravate a defendant’s position to make the difference between custody and not-custody. No other aggravating features listed are relevant.

In mitigation, the court heard that the defendant has lived in the UK for 11 years. He suffered a neck injury in a serious car crash last year, forcing him to take sick leave from his catering job. His marriage broke down and he lost his home. Shortly before the race, he had suffered a “short, temporary breakdown in his mental state”. It was also submitted that he had committed the offence out of excitement, without fully appreciating that what he was doing was wrong.

Putting all this together, I’d say there’s more to mitigate his position than to aggravate it. This would mean moving below the starting point on the Guidelines.

We then have the issue of credit for guilty plea. He admitted the offence at the very first hearing, and so is entitled to one third off his sentence. This means that the magistrates must have taken a starting point of 20 weeks in order to arrive at a final sentence of 13 weeks for this offence.

[The thefts we shall put to one side as we do not know their value. What we can infer, however, is that they were considered significantly less serious than the fraud.]

 

Conclusion

Based on what we know, this appears to be a very harsh sentence. While this is not the type of fraud envisaged by those who drafted the Guidelines, it is difficult to see how a straightforward assessment of culpability and harm could lead a court to a starting point of 20 weeks for this single offence. The defendant has an automatic right to appeal his sentence to the Crown Court. I would not be surprised if he exercised it.

There are unknowns, of course. There would have been a Pre-Sentence Report prepared by the Probation Service, whose views would have informed the court’s. It may be that they were unable to offer any alternative to custody, although experience would dictate that a homeless man with a limited criminal record and mental health problems is the kind of person the Probation Service try to persuade the courts to let them help. It would be a sad day indeed if all that our justice system could offer to improve this man were two pointless months of incarceration.

I have written about magistrates before, including in my book, and one of my criticisms is that sometimes a sense of perspective is lacking when these non-legally qualified volunteers are sentencing offenders. Just because a power of imprisonment exists does not mean that it has to be used. This sentence, based on what we know, appears to be one such example. That it can be said that the offence was so serious that only a prison sentence can suffice is, with respect to the sentencing court, perverse. Courts often find ways to avoid immediate custody in cases which are far more serious, involving offenders with significantly worse records.

And I’ll seize on those words – “based on what we know” – to pirouette into a final flourish on my soapbox, if I may:

This case had received national media attention when Mr Skupian made his first appearance at court and pleaded guilty. It was plain to the court administration and to the magistrates that the outcome of this case would be widely reported. Yet still the magistrates did not see fit to publish written sentencing remarks explaining their decision.

This is a drum I have unapologetically beaten for some considerable time. Because while good court reporters should accurately reflect the full reasons given for a sentence passed, inevitably there will be occasions where something is missed in the hustle of a chaotic magistrates’ court list. Submissions and decisions as to where the case falls in the Sentencing Guidelines, for example, hold little interest to the average reader and may understandably not make it into the final copy, but to lawyers analysing and explaining the decision these can be critical.

Magistrates, judges and lawyers cannot complain that their remarks or decisions have been unfairly portrayed if they don’t bother to do the basics. It would have taken an extra ten minutes, one supposes, for the remarks to have been committed to paper, copied and distributed before being read out, and then everybody would be able to see how and why the decision was reached.

As it is, we are once again left groping in the dark, or at best the dusk, in trying to understand how our criminal justice system is – or in this case is apparently not – working.

Don’t wear skirts, and nine other ways people can protect themselves from crime

Today marked a milestone in the magnificent campaign by Gina Martin to persuade Parliament to legislate against “upskirting”, the intrusive practice of taking photographs of a person under clothing (usually their skirt) without permission. A Private Member’s Bill to create a specific criminal offence of upskirting was introduced by Wera Hobhouse MP, before being blocked by Sir Christopher Chope, and aimed to eliminate an existing loophole in the law which means that some instances of this behaviour cannot be prosecuted. This, it seems, was not welcomed by the man who brands himself ‘Mr Loophole’, solicitor Nick Freeman. Mr Freeman, channelling his best Aunt Lydia, tweeted:

The response was critical, to put it mildly. And I confess to being one to initially reproach Mr Freeman for his comment. However upon reflection, it might be that he has hit on something. After all, there are ways in which women – indeed all victims of criminal offences – might better help themselves, which are well-known to us legal beagles, but perhaps not to the general public. So in the spirit of public service, herewith some tips on how, by taking responsibility, we might all keep ourselves a bit safer:

  1. If you are a shopkeeper, take responsibility for the plague of shoplifting (section 1 of the Theft Act 1968) by locking all your produce in the stock room and keeping your shelves conscientiously empty.
  2. Save yourself from an impending physical assault by punching yourself on the nose. If the court can’t tell whether your broken schnoz was caused by you or by your assailant, they cannot formally declare you a victim of assault occasioning actual bodily harm (section 47 of the Offences Against the Person Act 1861).
  3. The legal definition of burglary includes entering a “building” as a trespasser (section 9(1) of the Theft Act 1968). A tent is not a building, so avoid the scourge of burglary by razing your provocative dwelling house to the ground and setting up camp in the front garden.
  4. Landlords, if you have any self-respect you will protect yourselves from drunk and disorderly troublemakers (section 91 of the Criminal Justice Act 1967) by barring all except your regular punters. And then bar them too, just to be sure.
  5. See that fluffy kitten? He’d be immune from all acts of cruelty under the Animal Welfare Act 2006 if only he weren’t so damn kickable.
  6. Nobody is blaming you for being a victim of witness intimidation (section 51 of the Criminal Justice and Public Order Act 1994), but if you will choose to witness a criminal offence and cooperate with the authorities, you have to be accountable for your decisions.
  7. While there is no excuse for racist abuse, victims could help themselves by trying – just trying – to be a different race.
  8. Yes, online banking fraud is bad, but knowing that it exists, shouldn’t you sensibly be eschewing the concept of money and transactional capitalism altogether?
  9. Murder is indefensible; however having your vital organs clustered together under such easily-perforated skin is a lifestyle choice of which you need to take ownership.

This post was first published in the i paper, here.