Category Archives: Contemplations

Guest post by Jamie Fletcher and Dr Samuel Walker: Sexual violence, the Overton Window and the limits imposed by the law

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I am pleased to host this guest post by Jamie Fletcher and Dr Samuel Walker, who are Lecturers in Law at Bournemouth University.

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  1. Introduction

The aim of this post is to discuss the increasing prevalence of consensual sexual violence and its relationship with criminal law. It will be shown that acceptance, engagement and growing tolerance of consensual sexual violence is at its highest because BDSM has seeped into popular culture and modified people’s acceptance and use of its practices.[i] This blog will deploy the political science concept of the Overton Window[ii] to explain how this process has occurred. The Overton Window describes how a once socially unacceptable behaviour can over a period of advocacy be moved into plausibility.

The problem that this blog would like to impress upon readers is that whilst the Overton Window has moved, and sexual violence might be conceived as an acceptable part of popular culture, the law and has not followed suit. Rather, the law is governed by a precedent from the early 1990s criminal case R v Brown.[iii] Unlike the new position of the Overton Window, Brown is kink negative[iv] and its ruling means that a large proportion of sexual violence is in fact criminal behaviour. Note this blog post is not making a normative case for or against Brown, rather it aims to highlight to participants in BDSM sexual activity that whilst their behaviour might now be considered socially acceptable, due to the shift in the Overton Window, the law may not agree. Equally, it will show those who support the ruling in Brown that their efforts need to go beyond reforming the law to change public opinion.

Recent public debate has suggested that putting Brown on a statutory footing is needed to address the use of consenting to BDSM activities as a defence in murder cases.[v] This would affirm and entrench the criminalisation of BDSM in legislation exacerbating the divide between the law and public attitudes toward BDSM.[vi] Any reforms to Brown, therefore, need to be debated and resolved in the immediate future. Once statutory entrenchment of Brown occurs English law could be trapped with its consequences for another generation.

It is also important to educate new individuals participating in consensual sex of issues surrounding BDSM and sexual violence and the law. Without this education, there is a risk that either (a) the sex or (b) the violence or (c) both aspects of the sexual activity will lack consent. Consequentially, it is hoped that this blog will also serve as an introduction to some of the legal limits that new practitioners of BDSM and sexual violence must pay attention to.

To support its objectives, this blog will be split into six sections. This section has served to introduce the issues. Section two considers the type of sexual activity this blog is limited to. It is vital to understand that we are only concerned with incidents in which both the sexual activity and BDSM are consented to. Moreover, it is important to understand that this blog is focused on individuals who might be perceived as being outside the traditional BDSM community and have had their sexual palate opened by the increased presence of BDSM and sexual violence in mainstream sexual culture. In section three, the Overton Window will be explained. Building on this, section four will demonstrate how this applies to changing public perception of BDSM and sexual violence. Contrasting this new public perception, section five will explain how the law remains the same as it did in the 1990s. Finally, in section six, potential future issues this may cause will be considered. This paper will not offer many solutions to these issues – that is beyond the scope of this blog. Our aim is to promote discussion of these issues. Additionally, we invite any comments, suggestions, or potential for future collaboration or projects on these issues.

 

  1. Understanding the type of case this blog is considering

Most blog entries this week have addressed issues juries should consider when hearing cases in which consent has been withheld.[vii] These types of cases can loosely be split into two categories. Firstly, cases in which one person performs a sexual act on another person without the consent of that person. In these cases, an act is deemed criminal since an individual has disregarded the autonomy of another human’s body through an unwanted sexual intrusion.[viii] Quite often with these non-consensual sex acts, violence is used as a means of securing an intrusion. Secondly, there are cases in which two or more people might be engaged in consensual sexual activity, but during, one party, without agreement of all parties, engages in unwanted violence, which then renders the sexual activity non-consensual.[ix] In some circumstances, the use of violence might result in the assaulted party also withdrawing sexual consent.

There exists, however, a third type of case in which the issues of consent, violence and sex mix. These cases are not considered under sexual offences law as consent is always present. In fact, the violence is not only consented to, it actually heightens the enjoyment and pleasure of both parties involved in the sexual activity. Most commonly, this issue arises in sexual activity commonly referred to as bondage, BDSM, or S&M. In these cases, the sexual violence is normally (a) consensual and (b) used to improve the sexual excitement that both parties experience from the sexual behaviour.

At first glance, an individual might question why this might ever be a criminal law issue.[x] People might look at the situation and ask, what business does the law have in what occurs between two consenting adults in the privacy of the bedroom.[xi] Nevertheless, the law does not permit one to consent to certain actions regardless of whether one actually has the mental capacity to do so.[xii] With this in mind, the law chooses where it wishes to set the bar for the level a consenting adult can receive. Exceeding that level of harm will be deemed criminal.

One of the most significant elements of this issue concerns the wider social context in which the law operates – in particular the place of women within a gendered patriarchal society. One of the concerns of those advocating for legislation prohibiting BDSM as a defence in murder cases is the historic denigration of female victims in court. For example, the use of sexual history to draw in notions of loose women, the ‘she asked for it’ narrative and the idea that once women consent to sex they consent to whatever happens during sex. The social attitudes affect how public bodies operate, how women are viewed in court and how they can be portrayed by defence lawyers. In cases where the woman is deceased this can be even more problematic as they cannot speak for themselves. It is this wider context of misogyny that use of BDSM as a defence may be problematic. On the other hand, it would be a denial of individual autonomy to say that individuals cannot or do not consent to BDSM activity. The issue is how to protect those who consent and those who do not – and in the worse case scenario, how to punish those who murder their partners and use sexual autonomy as a defence.

Another issue, which this blog is going to explore is how the popularity of this form of sexual activity has increased, with more and more people incorporating aspects of sexual violence into their sexual activity. Within the traditional kink community and its activists, the topic of consent is widely discussed, educated upon, and respected.[xiii] However, the influx of new participants to sexual violence, through the growth of mainstream tolerance of its practices, means there exists a portion of people who are practicing BDSM and/or sexual violence who have been educated primarily through the popular culture they have consumed.[xiv] And primarily, this comes in the form of American media. In the next three sections, this will be explored in more detail.

 

  1. What is the Overton Window?

The Overton Window, named after political scientist Joseph P. Overton, explains that whether a policy or law is accepted by the public as adoptable is dependent on public discourse and is not fixed.[xv]  When the public is exposed to a new potential policy, law, or certain social behaviours, however extreme they might once seem, through habituation in discussion potential adoption will eventually become viewed as acceptable. This is because such discourse naturally widens debate to include all potential policy outcomes that lay between the current mainstream position and the most extreme version of what is being debated.[xvi] The consequence of this is that a policy, law or social behaviour once seemed ‘radical’ or ‘unthinkable’ becomes thinkable, and eventually, acceptable or popular. It has been argued that politicians use the Overton Window as a tactic to achieve their preferred political outcome.

The window moves when those on the fringes of the political spectrum, policy groups, pressure groups and radicals propose policies far outside the Overton Window. As Maza notes:

“the easiest way to move that window was to force people to consider ideas at the extremes, as far away from the window as possible. Because forcing people to consider an unthinkable idea, even if they rejected it, would make all less extreme ideas seem acceptable by comparison — it would move the “window” slowly in that direction.”[xvii]

To visualise this window, Overton proposed that all policy outcomes can be placed on a scale from “more freedom” to “less freedom”. Overton picked these terms to avoid traditional political tags such as “conservative” and “liberal” or “socialist”. Somewhere on this scale rests the ‘Overton Window’, a space occupied by the range of policies and laws that the general public would accept as popular or sensible. Outside the window, however, are “radical” and “unthinkable” policies.

A perfect example of how this works was the 2010-2015 coalition government austerity programme. The government would always announce that ‘unthinkable’ or ‘radical’ cuts to public services were necessary to balance the budget. Shortly after the announcement of these ‘unthinkable’ cuts to public expenditure, the government would swiftly announce that the required level of cuts had been overestimated. These cuts were still damaging and resulted in large scale reform to public expenditure, however, when placed against the previously mooted cuts seemed ‘sensible’.[xviii] Nonetheless, had the figures been released without the original red herring figure, these cuts would have themselves been perceived as ‘radical’or ‘unthinkable’. The red herring cuts, however, moved public discourse and the Overton Window. Another example, the rise of Jeremy Corbyn has moved British politics to the left so that the Conservative party can adopt domestic policies that would, not so long ago, have been the province of the Labour party.[xix]

Applying the Overton Window to the problem of BDSM, it is contended that as the more radical activities that might have been deemed as ‘unthinkable’ or ‘radical’ forms of sexual violence are introduced into public discourse, other less extreme forms of sexual violence become seen as ‘acceptable’ or ‘sensible’ because they are less extreme than the ‘unthinkable’ BDSM relationship. This leads to the normalisation of certain previously condemned activities. Once these less extreme forms of sexual violence embed themselves into our culture, the original extreme BDSM relationship is no longer viewed as ‘radical’ or ‘unthinkable’ and becomes acceptable as a logical conclusion of the now ‘popular’ and ‘policy’ of accepted sexual behaviour. Thus, while BDSM and bondage has been prominent as a gay sub-culture for a longer period of time, and an underground niche within heterosexual culture, it has now entered the heterosexual mainstream.[xx] It is through this process that BDSM has over the past decade become central to our sexual culture and led to inclusion of sexual violence as a normal part of mainstream sexual intercourse.[xxi]

It is extremely important to again emphasis that this blog post is not arguing for or against the inclusion of either BDSM and/or isolated sexual violence in mainstream sexual culture. Rather, this blog post is arguing that BDSM and sexual violence are more central to mainstream sexual culture than they once were, and that, the law does not reflect the fact that BDSM and sexual violence are now current within mainstream sexual culture. In addition to this, the criminal law surrounding this issue is not widely known by these new participants. Participants need to be better informed on how to ensure they are properly gaining consent and what limits the law imposes upon their activities.

 

  1. How does the Overton Window apply to BDSM and sexual violence?

Published in 2011, Fifty Shades of Grey,[xxii] an erotic romance novel, which spawned a series of sequel books, and a highly successful movie franchise, has led to changes in the public perception of BDSM relationships. According to a YouGov poll, 94% of British people have heard of the books.[xxiii] In fact, Fifty Shades of Grey dominates the bestselling books list of the 2010s. The first instalment of the trilogy has to date sold over 15.2 million copies worldwide. The book in fourth, the first non-Fifty Shades of Grey book, The Hunger Games[xxiv], sold only 8.7 million books, nearly half the quantity of Fifty Shades of Grey. Drdova and Saxonberg have noted that this has undoubtedly “had a significant influence on the mainstream view of BDSM subculture.” [xxv]

Drdova and Saxonberg highlight how the book has led, at least in part, to BDSM moving from an activity that “has been historically labelled as being deviant” to one that is “on the border of mainstream society”.[xxvi] And they are right to suggest that this transformation goes beyond Fifty Shades of Grey and into many aspects of our culture stating, “the commodified picture of BDSM is omnipresent in today’s western mainstream culture.”[xxvii] One example is the way in which BDSM style sexual relationships are imposed upon male-female sexual relationships in an array of period dramas and fantasy. Most significantly in Game of Thrones, a television adaptation of the books, A Song of Ice and Fire.[xxviii]Whilst these books included sexuality and a mostly traditional patriarchy, it is through the use of BDSM and sexual violence that the television adaptation drives home visually the gender hierarchy. Most evidently we see this in the BDSM style sex games sadistic King Joffrey plays with the prostitutes bought for him as a birthday present.

Proof of BDSM still remaining only “on the border of mainstream culture” is the fact that a YouGov Poll conducted in 2015 shows that only 12% of respondents had in fact participated in BDSM.[xxix] Nonetheless, whilst only this small had participated in BDSM, 71% people did not believe that people should be discouraged from BDSM. If people consented to the BDSM, these people believed it was the choice of the participating individuals to decide whether they should be allowed to participate. The movement of the Overton Window can also be seen when breaking down the responses to this YouGov Poll by age. On all three questions the younger the respondent the more likely they are to view BDSM as acceptable. Conversely, the older the respondent the more likely they are to view BDSM as unthinkable or radical.

The shift of the Overton Window on BDSM and sexual violence, however, is most evident not from how society now views the previously ‘unthinkable’ or ‘radical’ forms of sexual violence such as BDSM, but rather, its increased acceptance of the incorporation of specific acts of sexual violence and how these acts which would have previously been on the borderline of our sexual culture are now considered popular and sensible parts of sexual activity. Evidence of this shift comes in a Savanta:ComRes poll conducted of 18-39 year old women.[xxx] The poll investigated the frequency with which women experienced sexual violence. In line with the YouGov poll in the previous paragraph, the ComRes poll displayed a clear correlation between age and sexual violence.

 

Question/Age Group 18-24 24-29 30-34 35-39
Striking 62 59 57 55
Choking 54 41 32 23
Gagging 46 35 29 25
Spitting 25 22 17 14
Hair Pulling 67 66 63 56
Biting 63 61 57 54

The younger the respondent, the more likely they were to have encountered sexual violence. The correlation is present in responses to the following sexual acts; slapping, choking, gagging, spitting, hair-pulling, and biting. Most clear is the changing social attitude to choking, which is arguably the most dangerous in this list. Of those polled aged between 35 and 39, only 23% of women have experienced choking during sexual activity. This increases in the younger age ranges; 32% for 30-34, 41% for 25-29 and 54% for 18-24. Interest in choking as an act of sexual gratification peaked in early 2017, when Daddy Choke Me achieved a 100 score on the google trends search facility, and in fact, has remained above the 25 score since April 2016, having previously peaked at a 7 score in September 2007.[xxxi] A similar story can be seen when searching google trends for Choke Me memes. A meme is normally an image shared on social media to convey a particular message. Included below are several choking memes.

All of these memes normalise choking amongst 18-24 years old and more alarmingly, those who are younger. Similar memes can be located on the internet for other acts of sexual violence, for example, spanking. The fifth meme, in which choking is included on a list of positive relationship attributes is interesting for the way in which it might be perceived to subliminally cause people to consume the notion of choking being a positive sexual act.  In fact, it is a fair prediction based on the ComRes data to suggest that the figure of those who have experienced sexual violence like choking will continue to rise.

 

  1. The current law R v Brown

The law regulating when an individual can consent to harm is outlined in R v Brown[xxxii] and does not reflect the rising tolerant attitudes demonstrated in Section 3. Brown concerned five homosexual men who took part in voluntarily agreed BDSM. It is important to note that the levels of harm caused as a result of these activities ranged from the most minor, battery, to the most severe level of harm, grievous bodily harm. Battery is legally defined as any non-consensual application of harm that does not amount to a level of harm deemed more than transient or trifling. The Crown Prosecution Services, in their charging guidelines state, battery would normally be the charge when injuries consist of scratches, abrasions, minor bruising. Injuries that will be considered more than transient and trifling, and thus amount to actual bodily harm include broken noses, minor fractures while grievous bodily harm covers permanent disability and a fractured skull among other things.

In Brown the House of Lords (now the Supreme Court of the United Kingdom) held that an individual could only consent to battery. In normal circumstances, individuals cannot consent to any harm greater than this. It did, however, establish that if there was a ‘good reason’ for allowing them to, the court could find exceptions to this rule.

In Brown the court declared that BDSM did not constitute a ‘good reason’ and thus was not an exception to the general rule. In his judgment, Lord Templemen explained the reasoning behind this:

“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”[xxxiii]

In the eyes of the law, therefore, BDSM is a cult of violence. A cult of violence in which legal protection will not be offered to those who willingly engage in violent conduct that amounts to either actual or grievous bodily harm, regardless of the presence of consent. BDSM can be distinguished from a long list of exceptions that the court has found to constitute a good reason; properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, and dangerous exhibitions. On this reading, tying someone up and spanking them would be something someone can consent to provided the level of harm caused fits within the definition of a battery. Choking is more ambiguous. Light choking may fall within the concept of battery but severe choking may be classed as actual or grievous bodily harm.

In R v Wilson[xxxiv] the Court of Appeal applied the ‘good reason’ test to a newly married couple. Mr Wilson had used a knife to brand his initials into his wife’s buttocks and the question was whether a ‘good reason’ per the Brown judgment existed for allowing this behaviour. Russell L.J. decided that a good reason did exist because unlike Brown there was “no aggressive intent… far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment.”[xxxv] The different language used to characterise this conduct can be seen in the following:

[T]he appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.[xxxvi]

The Court of Appeal in Wilson allowed the appeal and quashed his conviction even though this case came about as the result of the wife seeking medical treatment for her burns, while none of the participants in Brown required medical attention. Thus, we have a case necessitating medical action and another where medical attention was never needed yet the judicial system upheld the conviction of those who had caused less harm and quashed the conviction in an incident involving greater harm. The only reason apparent for the decision in Wilson was the marital status of the couple and the fact that branding was readily equated to tattooing. As Russell LJ put it when delivering the Court of Appeals judgement, ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution’.[xxxvii] He even went so far as to say ‘The so-called victim was the wife of the appellant’ indicating that their Lordships did not consider the wife the subject of an offence at all.[xxxviii]

Here their Lordships used different language to frame the activity as positive – the nature of the relationship between the individuals, the location in which it happened and the motivations of the people involved were all reaffirmed in a loving, affectionate and enduring romantic relationship. Their Lordships could have just as easily used a physical description to frame this event, focusing on burns suffered, the blistering of the skin, the risk of infection and the need for medical treatment. Essentially, the language used could have mirrored that of Brown emphasising the physical risks and suppressing the consensual element of the activity. Even so, based upon the social acceptable of BDSM identified in Part 3, the negative narrative presented in Brown would not evoke negative reactions from people. If this blog is correct, and the Overton Window has shifted, people would view the behaviour in Brown as part of mainstream sexual culture. And even if they do not themselves support or participate in such behaviour, it is within mainstream discourse enough that they do not believe it deserves criminalisation.

In conclusion, whilst bondage or violent acts are not expressly criminal whenever they are part of sexual activity, if they amount to the more than a battery, the law does not allow an individual to consent to such harm being inflicted upon their own body, and consequentially, the inflictor could face criminal prosecution.

 

  1. The problems and challenges of this gap between social understanding and the law

This disparity between public opinion and the law raises many issues for debate. Detailed debate of these issues, however, is beyond the scope of this blog. Nevertheless, it is important for us to at least highlight and provide some commentary on these issues to flag them for future discussion.

A major problem with this gap between public perception of BDSM and sexual violence and the law is the role the jury plays within the criminal law process. It is contended that the law is very clear, an individual cannot consent to harm above a battery (unless covered by an exception) but that does not prevent a jury from finding a defendant not guilty. No matter how clearly the law points towards a particular outcome, if the jury disagrees with that outcome they can find in the opposing direction. This type of jury decision is known as a perverse jury. These juries are perverse in the sense they ignore the law and decide based on their own perceptions of justice. It is contended that the reason the defence of consent to BDSM has become more prevalent and successful is not because the law is inadequate, or fails to protect victims of sexual violence, but that jury members view such behaviour as sufficiently normalised to view criminalisation as inappropriate. An example of this was in the case of Stephen Lock.[xxxix] In this case, the law is very clear, the complainant was unable under Brown to offer Stephen Lock her consent to the level of harm he caused, nonetheless, the jury decided Stephen Lock was not guilty. Reinforcing the idea that the Overton Window of acceptable sexual behaviour Herring noted that Lock claimed in his trial to be “inspired” by Fifty Shades of Grey. It is submitted, therefore, that rather than trying to change the law, which is already restrictive enough to find people like Stephen Lock criminal for their behaviour, campaigners need to turn their attention to re-educating the general public about the issue of consent to impact upon how juries approach cases involving BDSM and sexual violence. Without this public education campaign, no substantive changes to Brown will have any impact because juries may simply ignore the law.

There needs to be a public education campaign that engages with those who are experienced members of the kink community and those individuals who have had their sexual palate expanded by the movement of the Overton Window. These people need to be made aware of the fact that law is not as tolerant as public opinion. They need to understand that involvement in BDSM or sexual violence, which amounts to more than a battery, might result in criminal prosecution. People involved in the BDSM community and who enjoy sexual violence will need to know this to (a) ensure consent is properly granted, (b) protect themselves from potential criminal liability, (c) consider whether their desired BDSM or sexual violence fits within the current legal framework and (d) know the current criminal law baselines to more effectively advocate for reform.

Additionally, there has been a lot of public debate around individuals claiming the defence of consent where the submissive partner has died as a result of BDSM or sexual violence. These cases have been labelled ‘consent gone wrong’ cases. The recent death of British Backpacker Grace Millane has led to increased public prominence of this issue. In these cases, debate needs to occur about whether death of a victim during BDSM or sexual violence needs to be treated different than other forms of harm.

While we hold the law allows individuals to consent to some forms of BDSM, a BBC 5 Live poll suggests that just over 50% of women never want sexual violence.[xl] Although this would need to be confirmed through larger more comprehensive studies, it does indicate that only approximately half of women would engage in some form of kink during sex – and then not all the time. The challenge for the law is how to protect both those who genuinely consent to kink and those who do not. This problem is particularly acute in murder cases as the woman cannot speak for herself.

Consent to BDSM is possible but the use of it as a defence in court risks feeding into the ‘she asked for it’ narrative and doubly punishes victims. This is the source of the problem, the social prejudices that affect the interpretation of consent involving female victims. The law could protect the genuine choice to engage in kink but may fail to protect those who are victims of non-consensual BDSM. Unless the law acknowledges this complexity it will both fail to protect the sexual autonomy of genuinely consenting adults and those who refuse consent. This is particularly acute if the law continues to ignore the social context and prejudices that affect how women are or can be portrayed during the legal process.

 

  1. Conclusion

Through the shifting of the Overton Window, BDSM and sexual violence has become part of mainstream sexual culture. Whilst some might advocate for or against the mainstreaming of BDSM and sexual violence, under our current law, a certain level of BDSM and sexual violence is permissible. Whilst those involved in BDSM through the traditional kink community might be aware of these legal limits, new participants, who gained interest though this shifting of the Overton Window, and who learned BDSM and sexual violence through media such as Fifty Shades of Grey need to be educated on safety, risk and the law, which might effect their new found sexual practices.

 

[i] D Langdridge and T Butt, A hermeneutic phenomenological investigation of the construction of sadomasochistic identities (2004) 7(1) Sexualities 31-53.

[ii] Joseph Overton, ‘The Overton Window’ (Mackinac Center) <https://www.mackinac.org/OvertonWindow>  accessed 6 February 2020.

[iii] R v Brown [1993] UKHL 19, [1994] 1 AC 212.

[iv] P. Murphy, “Flogging live complainants and dead horses: we may no longer need to be in bondage to Brown” [2011] Crim. L.R. 758.

[v] Caroline Lowbridge, ‘Rough sex murder defence: Why campaigners want it banned’ (BBC, 22 January 2020) <https://www.bbc.co.uk/news/uk-england-51151182&gt; accessed 5 February 2020.

[vi] Ibid, Samantha Pegg, “It might just be that shift in culture and they think a jury might believe them, or in fact it might be true. But we can’t stop them doing that.”

[vii] Various Authors, ‘Blogs’ <https://www.starsdorset.org/Blogs/sexual-abuse-and-sexual-violence-awareness-week&gt; accessed 5th February 2020.

[viii] Most of these crimes are contained within the Sexual Offences Act 2003.

[ix] Most of these are either (a) domestic abuse crimes or (b) Non-fatal offences against the person crimes.

[x] There is a philosophical debate around this issue See… William Wilson, Criminal Law (Longman Law Series 6dn 2017) Chapter 2.

[xi] John Stuart Mill, On Liberty, Utilitarianism and Other Essays (Oxford Worlds Classic, 2nd Edn 2015)

[xii] R v BM [2018] EWCA Crim 560

[xiii] L. Drdova and S. Saxonberg, Dilemmas of a subculture: An analysis of BDSM blogs about Fifty Shades of Grey (2019) Sexualities, October 2019, 5-6.

[xiv] Ibid.

[xv] See Note 1.

[xvi] Ibid, “the Overton Window can both shift and expand, either increasing or shrinking the number of ideas politicians can support without unduly risking their electoral support.”

[xvii] Carlos Maza ‘How Trump makes extreme things look normal’ (Vox, 21 December 2017) <https://www.vox.com/2017/12/21/16806676/strikethrough-how-trump-overton-window-extreme-normal> accessed 4 February 2020

[xviii] Similar analysis has been done with regards to Brexit- John Lanchester, ‘Brexit Blues’ (2016) 38 London Review of Books.

[xix] George Eaton ‘How Jeremy Corbyn – and Brexit – have moved British politics to the Left’ (Newstatesmen, June 2018) <https://www.newstatesman.com/politics/uk/2018/06/how-jeremy-corbyn-and-brexit-have-moved-british-politics-left> accessed on February 4 2020.

[xx] Margot Weiss, Mainstreaming Kink: The Politics of BDSM Representation in U.S. Popular Media (2006) 50 Journal of Homosexuality, 103-132.

[xxi] Ibid.

[xxii] E.L. James, Fifty Shades of Grey (Vintage Books 2011).

[xxiii] YouGov, ‘Popularity/Fame’ < https://yougov.co.uk/topics/media/explore/movie/Fifty_Shades_of_Grey-Movie> accessed February 3 2020.

[xxiv] Emily Temple, ‘Best Selling Books’ (Lithub, December 2019) < https://lithub.com/these-are-the-10-best-selling-books-of-the-decade/> accessed February 2 2020.

[xxv] L. Drdova and S. Saxonberg ‘Dilemmas of a subculture: An analysis of BDSM blogs about Fifty Shades of Grey’ Sexualities (2019)

[xxvi] Ibid

[xxvii] Ibid

[xxviii] George R R.  Martin, A Game of Thrones (Bantam Spectra 1996)

[xxix] YouGov Poll, ‘BDSM’ <http://cdn.yougov.com/cumulus_uploads/document/h38baes6ei/InternalResults_150209_BDSM_Website.pdf&gt;

[xxx] Savanta:ComRes ‘BBC 5 Live, Women’s Poll – 21st November 2019’ http://www.comresglobal.com

[xxxi] Google Trends.< https://trends.google.com/trends/&gt;

[xxxii] [1994] 1 AC 212

[xxxiii] Ibid,  237

[xxxiv] [1997] QB 47

[xxxv] Ibid 50

[xxxvi] Ibid 50

[xxxvii] Ibid 50

[xxxviii] Ibid 48

[xxxix] https://www.bbc.co.uk/news/uk-england-suffolk-21145816

[xl] Savanta:ComRes ‘BBC 5 Live, Women’s Poll – 21st November 2019’ http://www.comresglobal.com

Guest post by Joanna Hardy: I’m an online lawyer now. Can you hear me?

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“I haven’t met the defendant, Your Honour,” I tell a screen in my kitchen. Silence. “Can… can you hear me?” My words echo through the judge’s laptop in a courtroom three miles away. I hear them again in prosecution counsel’s dining room. My client, who has never set eyes on me before, sits in a prison just a few streets from my house. He stares at new faces on digital screens and blinks. His prison link is separate to ours. Someone has perched his screen in front of a second laptop in the hope his voice will carry across two devices and into my kitchen. When he speaks, he sounds a million miles away. He might as well be.

Long-predicted changes have arrived in our courts by necessity and at speed. Court staff have worked miracles with limited resources, judges have been patient, everyone has tried their best. Lockdown has spurred us into action and will revolutionise the system as we know it. We ought to be open-minded and recognise that the Luddite days of resistance are behind us. Some civil proceedings may be transformed entirely. Unnecessary assembly at court should be confined to history. We will save time, save money and be better for it. Once the technology improves, and it is about to, there will be questions to answer. Is this still a sticking plaster? Or is this the new normal? The answers will depend not on what the technology is capable of – but where we choose to draw the line.

As I look at my client – a mile, a prison wall, and a microphone away – I try to pinpoint why it feels like there is a barrier to communication. Is it just the improvised technology? That will improve. I remind myself that GPs hold sensitive appointments by telephone and on the internet. Court videolinks are not new. So why then, in certain circumstances, does online feel like second best?

Our job as courtroom advocates, bewigged and gowned, often takes centre stage. This is the front-of-house business of criminal lawyering. But it is backstage, early in the morning and late in the afternoon, where the most challenging advocacy takes place. In windowless conference rooms and dank cell areas across the country, difficult decisions are made and delicate conversations are held.

These are the moments when voices need to be heard.

Meeting a vulnerable complainant and finding the right words with the right tone. Speaking to a bereaved family at a sentencing hearing with professionalism and care. Being in the same room to negotiate compromises that deliver justice for a victim and a community. Looking a defendant in the eyes and delivering unwelcome advice that cannot be ignored by pressing a button. Watching for voice patterns, breathing rates and unspoken signs of agitation. Noticing the nail crescent imprints on a nervous clenched hand. It is managing the head-in-hands frustration, the raised voices and the unspeakable sadness of those we sometimes encounter. Sometimes, it is just hearing the heartache in the silence. It is spotting when someone may need an interpreter, an intermediary or their asthma inhaler. It is being able to navigate the fine lines between fear, confusion and bravado. It is the ability to speak to a 13-year-old obsessed with TikTok in the morning and an anxious pensioner in the afternoon. It is everyone in between. It is taking our strange, archaic language and distilling it into manageable chunks of reality. It is drawing the jury with a crayon and colouring them in to explain a majority verdict to a child. It is a judge reassuring the parties that they have as long as they need – as long as the building is open – to resolve a case. It is answering the difficult questions in a decent way: “What should I pack for my son if he is sent to prison?”

Those are not legal skills, they are human. It follows that they are not legal objections to mass online litigation – it is more delicate, more nuanced than that. These are the occasions when the way we communicate matters – not just the fact that we are communicating at all.

Recent events have required compromise and pragmatism. Once we safely emerge from the lockdown, we will need to identify the circumstances where online hearings can help and when they hinder. Which of our old habits were good and which were bad? Do certain tasks need to be perfect or do they just need to get the job done? Technology will help the criminal courts to streamline and to simplify. It is long overdue. We should be open-minded to improvements in technology, to new ways of working and to giving it a fair try. But lockdown has made me realise that it is not just whatwe do that is important – it is also how we do it. An anonymous Circuit Judge wrote recently about their digital experience in the family jurisdiction. They remarked that when we deliver justice “how we go about it as well as the bare fact of it being delivered, really really matters”.

Stripped bare of human interaction, I have found the job unrecognisable. The tasks I usually perform are changing. Some of them are online now. Some of them will be online in the future. But some of them, I hope, will always stay “in the room”. We will need to draw the lines of our new landscape with care.

My client gazes at a screen of strangers as his case is adjourned. We choose a date in the future when we hope that something, anything will have changed. Our microphones are unmuted, our volume is up – but can the people who matter most really hear us?

Joanna Hardy is a criminal barrister. She tweets @joanna__hardy

Guest post by Aparna Rao: Why the decision to quash the conviction of Cardinal Pell might strike lawyers as troubling

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I am pleased to host this guest post by Aparna Rao, of 5 Paper Buildings, published in response to yesterday’s guest post by Edward Henry QC, which argued that the approach taken by the High Court of Australia in allowing the appeal of Cardinal Pell was one that the England and Wales Court of Appeal (Criminal Division) should emulate. The author qualified in law in Australia before moving to practise in England and Wales, and is a former judicial assistant at the High Court of Australia.

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Earlier this month, the High Court of Australia made international headlines when the full bench agreed unanimously to acquit George Pell.

A sufficiently momentous event had already occurred on 11th December 2018, when Pell, a Cardinal of the Catholic Church, was unanimously convicted by a jury of five offences involving sexual abuse of a child (under the age of 16) in St Patrick’s Cathedral, Melbourne, in the State of Victoria.[1]

 

Background

Australia inherited its common law system from England and Wales. The High Court of Australia (“HCA”) is the final court of appeal. Its decisions are binding and set legal precedent.

The format of a criminal trial in Australia is based on the same principles as in England and Wales. A judge presides, determines questions of law, and a jury of 12, following those directions, determines questions of fact. Barristers for the prosecution and defence test the evidence in an adversarial system. The burden and standard of proof are the same: the prosecution has to prove its case beyond reasonable doubt. In England and Wales this test is now referred to as “being sure”, but both tests have the same source and effect.

The five charges related to incidents alleged to have taken place in 1996-1997 against two choirboys, A and B. The trial heard evidence from A only, as B was deceased. The HCA judgment sets out the evidence and the defence objections to it in some detail and I will not rehearse it here. In summary, Pell’s defence was that the actions complained of never happened and could not have taken place. Much of the evidence concerned whether Pell would have had the opportunity to commit the offences as alleged. The prosecution accepted that there were inconsistencies in the evidence but argued that the jury could nonetheless be satisfied beyond reasonable doubt that the offences had been committed.

 

Appeal

Pell appealed the guilty verdicts, first unsuccessfully to a three-Judge bench of the Court of Appeal of the Supreme Court of Victoria (“VSCA”),[2] and then to the HCA.

The HCA applied a common law test for overturning a jury’s verdict of guilty: whether there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.[3] The HCA made secondary reference to the statutory test which formed ground 1 in the VSCA, namely where the jury’s verdict is unreasonable or cannot be supported having regard to the evidence.[4]

In England and Wales, the test when appealing a conviction to the Court of Appeal (Criminal Division) is whether the members of the Court “think that the conviction is unsafe”.[5]  Criminal practitioners will be entirely familiar with the CACD’s way of dealing with this test.

The most common refrain is that, ‘despite our finding that a serious error was made by the trial judge, we consider that the evidence against this appellant is so strong that the conviction cannot be unsafe.’

More apt here, perhaps, is the only slightly less frequent conclusion: ‘Although there were flaws in the evidence, the jury was properly directed in law, had the benefit of defence submissions on those flaws, and nonetheless was sure of the defendant’s guilt.’ The pre-1996 concept of “lurking doubt”[6] rarely finds favour with the CACD these days.[7]

The sanctity of the jury process casts the Pell judgment in a remarkable light for practitioners in England & Wales.

The HCA held that the evidence was so flawed that the jury could not have convicted Pell on these five counts. The fact that all of these flaws were pointed out to the jury by skilled defence Queen’s and junior counsel, and that the jury’s verdict meant these points had been rejected, was not enough for the HCA.[8]  In the CACD it is very likely that this would have been fatal to the defence argument on appeal.

Instead, the HCA appears to have treated the jury’s decision as one that should, in effect, be subject to judicial review for some species of irrationality or Wednesbury unreasonableness. Thus: no reasonable, rational jury, with full knowledge of the flaws in the evidence, could have found the defendant guilty. This jury, in convicting, was acting unreasonably and irrationally, and so the convictions must be set aside.[9]

 

Remedy

However, the HCA did not then remit the case for a retrial pursuant to the statutory options on a successful appeal.[10] It would seem that not only was there a “significant possibility that an innocent person [was] convicted”, but that there was no possibility that he could have been convicted at all.

Having, in the manner of a judicial review, found that the decision-maker had made an unlawful decision, the HCA did not remit it to be remade lawfully. It took upon itself the decision on the merits and entered acquittals, substituting the correct decision for the jury’s unreasonable one.

Some courts, having quashed the convictions, might have considered that the evidence should then be re-examined, challenged or otherwise supplemented before a new jury. But Pell’s was a case where the HCA decided that there was no possibility of conviction. The decision implies that any prosecution of these allegations was bound to fail and should never have been brought.

 

Analysis

The Pell decision might strike criminal lawyers as troubling.  Whatever one’s individual views of the facts of this case, and this note expresses no opinion about the facts, there are well-established, powerful reasons why appellate courts should be reluctant to interfere with a jury’s verdict. Key among these are the finality of verdicts, the jury’s advantage in hearing the evidence first-hand, and public confidence in the integrity and independence of the trial process, which necessitates a separation between the judiciary and the jury. Simply put, if a country’s criminal justice system relies on trial by jury, then it is juries that should decide whether an accused is guilty or not guilty.

The adversarial trial process is designed around the existence of the jury. It gives the parties the opportunity to test the evidence, so that the jury has the benefit of making its decision in full knowledge of the reliability of and flaws in that evidence. There is no indication that this did not happen in Pell’s trial.[11]

If it is considered that the case ought not to be left to the jury at all, there are mechanisms available during trial to have the case stayed or withdrawn if the evidence is flawed. Indeed, the prosecution was obliged to abandon separate proceedings against Pell (in relation to an unrelated incident) after adverse rulings casting doubt on the strength of the evidence.[12]

In England and Wales, in the face of unchallenged evidence that is inconsistent with the complainant’s allegation, the defence might have been well-advised to seek a dismissal, stay, or ruling of no case to answer. These would also then form strong grounds of appeal. But the jury’s verdict, reached in full knowledge of the inconsistencies, would be likely to stand absent some new argument or evidence that could not have been advanced below.

The HCA judgment reveals no complaints about the judge’s conduct of this trial, rulings of law or directions to the jury. Nor is there any suggestion that the HCA was privy to fresh evidence that was not before the jury. It would appear that the only error made in this case was a factual one: this jury reached a verdict that the HCA could not agree with.[13] This is the kind of substitution that the CACD deprecates.[14]

 

Conclusion

What the Australian appellate process reveals, via this case, is an unrivalled opportunity to have the facts of one’s case re-heard by three different tribunals: the jury, the state appellate court, and the HCA. Of course, not all convicted defendants will have the means to pursue all these options. And the same avenue is not open to the Crown should a jury irrationally acquit a guilty defendant.[15]

It is noteworthy that all seven Justices of the HCA agreed to allow the appeal. There was no dissenting voice, as there so often is. The Justices did not even publish separate judgments with variations on the reasons for their agreement, which is quite common. A joint judgment of this nature is fairly rare. It will usually have been written by one Justice and joined by the others.  It also suggests that the Court was keen to avoid any misinterpretations or arguments about the reasons for what would undoubtedly be a controversial decision. Yet this consideration has not prevented members of previous compositions of the HCA from issuing dissenting judgments in controversial cases.

Traditionally, decisions of this respected court of final appeal carry significant weight in fellow Commonwealth jurisdictions. Pell v The Queen will undoubtedly feature in numerous appeals for many years to come. In Australia, it is yet to be seen whether the case will end up being confined to its facts, or whether there will now be substantially increased scrutiny of jury verdicts. The latter would be a radical shift indeed. It may not find much favour in the courts of England and Wales.

Endnotes

[1] For the trial judge’s sentencing remarks see [2019] VCC 260, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/260.html. This was a retrial, as the first trial in August 2018 resulted in a hung jury.

[2] Pell v The Queen [2019] VSCA 186, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/186.html?context=1;query=[2019]%20VSCA%20186;mask_path=. The court dismissed the appeal by a 2:1 majority.

[3] Pell v The Queen [2020] HCA 12 para 9 and footnotes.

[4] Pell v The Queen [2020] HCA 12 para 39.

[5] Criminal Appeal Act 1968, s.2 (England & Wales), in force from 1st January 1996.

[6] R v Cooper [1969] 1 Q.B. 267.

[7] It was described as “outmoded” in R v S [2017] EWCA Crim 204, and its use deprecated in R v Fanning [2016] EWCA Crim 550. Its only application is very restricted indeed: see R v Pope [2013] 1 Cr. App. R. 14 para 14. “As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.”

[8] In light of the increasing reliance on remote video hearings today, it is useful to note that the jury viewed much of the oral evidence in a pre-recorded video format: see [2019] VSCA 186 para 1031. The trial was fully recorded, and the VSCA was asked to view parts of it in making its decision. While the HCA was willing, in principle, to accord deference to the jury’s verdict, it was not minded to give any weight to the VSCA’s view of the same evidence.

[9] At para 119 in relation to counts 1-4: “Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue … was whether the compounding improbabilities caused by the unchallenged evidence [contradicting A’s account] nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”

At para 127 in relation to count five: “The unchallenged evidence … [was] inconsistent with acceptance of A’s evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury’s advantage, there is a significant possibility that an innocent person has been convicted.”

[10] Criminal Procedure Act 2009 (Victoria) s.277: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s277.html.

[11] A distinction can be drawn with R. v. B. [2003] 2 Cr. App. R. 13 where the defendant was fatally disadvantaged by being put in an impossible position to defend himself. That case has been criticised (R v E [2004] 2 Cr. App. R. 36) and would perhaps be viewed differently today, given the manner in which many allegations of sexual abuse now surface.

[12] Evidential ruling: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/149.html?context=1;query=pell;mask_path=au/cases/vic/VCC. The case was later discontinued: https://www.smh.com.au/national/pell-won-t-face-trial-on-allegations-from-the-70s-of-pool-impropriety-20190226-p510b7.html.

[13] As the majority in the VSCA put it, [2019] VSCA 186 para 13: “It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law — for example, by admitting certain evidence or in giving (or failing to give) the jury a particular direction of law — no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it was reasonably open to the jury to convict the accused.”

[14] R v Fanning [2016] EWCA Crim 550 para 58: “We deprecate the use of the phrase “lurking doubt” as it represents an invitation to this court to substitute its view for that of the jury.”

[15] Similar to England and Wales, the Crown does have the ability to appeal judicial rulings that result in a not guilty verdict, and to prosecute some offences again if fresh and compelling evidence is available (modified double-jeopardy rules).

 

Guest post by Edward Henry QC: Reflections on the case of Cardinal Pell

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I am pleased to host this guest post by Edward Henry QC, of QEB Hollis Whiteman, reflecting on the case of Pell v The Queen [2020] HCA 12, and what the Court of Appeal (Criminal Division) in England and Wales can learn from the High Court of Australia.

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On 7th April Cardinal Pell was cleared by the High Court of Australia of wrongful allegations of historic sexual assault on a chorister. In its judgment, the HCA found that for all five charges, there were many improbabilities that had not been fully considered by the jury, amounting to “a significant possibility,” the judges wrote, “that an innocent person has been convicted.” Edward Henry QC considers that cases involving historic allegations of sexual abuse can present a real danger of injustice, which the CACD too often seems to ignore. The approach of the HCA is one the CACD should adopt in making an assessment of whether a conviction is ‘unsafe.’

The case of R. v SJR & MM [2020] 1 Cr. App. R. 7 (in which I appeared for the appellants) represented a personal nadir in my professional life. A sense of injustice still haunts me. A weak case, as was submitted to the Court, replete with inconsistencies and serious anomalies, including the admission of patently inadmissible evidence, was rationalised by the Court of Appeal [Criminal Division] with the same old-saw: “the critical issue was whether or not the jury were sure that [the complainants] were telling them the truth.” Appeals dismissed, and in so doing both Appellants (to whom another constitution of the Court had granted leave to appeal less than six weeks before) were left condemned to rot inside, one in such poor health that it is unlikely he will ever be released.

How different is the approach of the High Court of Australia [“HCA”] the equivalent, since 1986, of the UKSC. Not for them the “Sacred Cow” that a jury is always right, or that the complainant’s credibility is necessarily determinative. That may be the ruthlessly expedient default option for other appellate courts, but it was not the route the HCA took: a road less travelled for many Court of Appeal judges. But it would be wrong to assume that the HCA decided the case simply by finding that Pell’s accuser was a liar.

Pell v The Queen [2020] HCA 12 is striking because the HCA proceeded on the basis that the complainant was credible. The foundation stone upon which the HCA constructed its unanimous judgment was set down with startling candour as to its own unflinching duty:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

 In the course of its judgment, the HCA passed reflection on the majority judgment of the Supreme Court of Victoria, which upheld the convictions, on the basis of its “subjective assessment, that [the complainant] was a compellingly truthful witness.” This was in spite of the magisterial dissenting judgment of Weinberg JA. The HCA, tellingly, made this observation, which provides the key to how they evaluated the testimony of Pell’s accuser in the context of all of the evidence:

Weinberg JA did not assess A to be such a compelling, credible and reliable witness as to necessarily accept his account beyond reasonable doubt. The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour-based judgments. [Emphasis added]

It is refreshing to note this frank recognition that demeanour-based judgments are highly subjective, and thus credibility, alone, can be an unreliable yardstick for determining guilt. Mr Justice Weinberg’s analysis prevailed before the HCA in the light of his profound sifting of the evidence, citing a number of ‘compounding improbabilities’, which combined to render the alleged episodes distinctly unlikely. Australian jurisprudence has been steeped in such probabilistic reasoning, owing perhaps to the influence of the late Sir Richard Eggleston QC, the widely respected law professor, appellate judge, and author of “Evidence, Proof, and Probability.” Eggleston was esteemed by no less than Lord Bingham[1], who distilled his method of appraising a witness’s account under five headings:

  • Analysing the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence to have occurred;
  • The internal consistency of the witness’s evidence;
  • Consistency with what the witness has said or deposed on other occasions;
  • The credit of the witness in relation to matters not germane to the litigation; and finally, and last and least of all,
  • The demeanour of the witness.

The HCA, in quashing the convictions, concentrated exclusively on the first issue: there was no opportunity for the offences to have occurred (consistent with the burden and criminal standard of proof) based upon an exacting review of the ‘solid obstacles to conviction,’ all derived from credible prosecution witnesses, noting the impact such evidence had upon the prosecution case. This was a highly nuanced and fact-centric approach, assaying the case in detail, as opposed to the ‘broad brush’ psychologically primitive slant of, on occasions, the Court of Appeal. The HCA’s inquiry into the whole facts, in the circumstances of this case, fully justified the convictions being overturned, as scrutiny of the seven judge unanimous decision reveals.[2]

In contrast, in this jurisdiction  appellate courts are notoriously reluctant to disturb first-instance findings of fact which turn on questions of credibility, or reliability. Should our senior judiciary absolve themselves by chanting the mantra ‘we must not usurp the jury?’ The demise of the Cooper “lurking doubt” ground of appeal is consistent with this attitude. That ground is now rare and successful appeals, pursuant to it still rarer. I would contend that Widgery’s LJ thesis in Cooper should be reframed, not as a general feeling of unease, dependent on the Court’s “feel” for the case, but upon a rigorous assessment of the entire matrix of evidence, whether it might contradict or undermine the complainant, i.e. is itreasonably possible that the complainant’s account was not correct, such that there is a reasonable doubt as to the applicant’s guilt?

There needs to be honest acceptance that accounts of historic abuse, however convincing, and apparently credible, can be unreliable. Especially, as was found in Pell, where such allegations cannot be reconciled with, or are flatly contradicted by, other credible evidence.

The HCA’s approach, echoes something we all know, and which Shakespeare expressed succinctly, thus:

“There’s no art / to find the mind’s construction in the face.”

In spite of this collective wisdom, from Literature, common experience, and psychology, the Court of Appeal (in its Criminal Constitution) has shut its eyes to this troubling and self-evident truth – that demeanour is a profoundly unreliable way to resolve cases. This has been known to the Civil & Family Divisions for many years. In his Neill lecture to the Oxford Law Faculty on 10th February, 2017, Lord Neuberger stated that he was:

“very sceptical about judges relying on their impression of a witness, or even on how the witness deals with questions. Honest people, especially in the unfamiliar and artificial setting of a trial, will often be uncomfortable, evasive, inaccurate, combative, or, maybe even worse, compliant. And our assessments of people are inevitably based on our particular experiences and subconscious biases. Sometimes it might appear that factual disputes are being resolved by reference to who calls the best-performing witness, not who calls the more honest witnesses.”

In saying this, he was following in the footsteps of Lord Devlin, and more recently, Lord Bingham. For Lord Devlin, judicial confidence in reading the witness, thereby discerning truth or falsehood, was overstated:

“The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated. It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of the particular witness.”

Leggatt LJ, who joined the UKSC on 21st April, 2020, made the following declaration in a commercial case, which he tried as a puisne Judge in 2013,that memory is not to be trusted, an opinion that surely accords with the objective experience of most criminal practitioners:

“While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony.”

This quotation from Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) potently describes the ‘elephant in the room,’ which has been worse than ignored in criminal trials. Whilst generic directions on ‘stereotypes’ are deployed in the Crown Court, often to the defendant’s disadvantage, the accused is not afforded even the most rudimentary précis of that ‘century of psychological research’ which calls the reliability of memory into question.

Gestmin has been widely approved and cited elsewhere, as one might expect, since Leggatt’s J analysis was a cogent exposition as to why the nature of historic oral evidence is an evolving creation, as opposed to a ‘flashbulb’ image. Having sign-posted a number of issues as to why memory is fallible and subject to certain biases created by the trial process (which could arguably apply to pre-trial criminal procedure) he came to this conclusion:

“Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

This takes on more ominous importance where a witness may have convinced themselves of something entirely fallacious in a criminal court. Given that Lord Leggatt’s tenure at the UKSC has just begun, it is to be hoped that before it ends an appropriate challenge can be brought before the UKSC in an historic case predominantly based on the credibility of a complainant, as Pell did in the HCA. Until then, innocent defendants will remain at the mercy of their accuser’s memory, which Oliver Goldsmith once described as “thou fond deceiver, still importunate and vain!”

Endnotes

[1] Chapter 1, The Business of Judging, The Judge as Juror

[2] http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/12

Does it matter that Quiz got the law so hopelessly wrong?

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Last week, ITV premiered the three-part drama Quiz, based on the real-life story of the “coughing Major” Charles Ingram (who, despite his popular title, in fact engaged in no coughing himself), and his wife Diana, who along with co-conspirator Tecwen Whittock were convicted at Southwark Crown Court in 2003 of procuring the execution of a valuable security by deception, having apparently cheated their way to the £1million prize on Who Wants to Be A Millionaire.

Adapted from a successful stage play, it was in many respects an accomplished and entertaining piece of television, boasting a fine cast (topped by a terrifyingly Tarrant-like Michael Sheen) and compelling storytelling, gently inviting the viewer to question the safety of the convictions (which have always been denied). But the part which, inevitably, caught the attention of Legal Twitter was the re-enactment of the trial at Southwark Crown Court, which, it is fair to say, departed from reality in almost every conceivable respect.

As many have rightly pointed out, dogmatic fidelity to tedious reality does not make for great TV. And not even the most precious legal pedant – and I obviously include myself in this sad category – expects a three-hour drama to painstakingly chronicle the full in-and-out-of-court proceedings surrounding this four-week criminal trial. Selectivity and artistic licence are the bedfellows of a successful courtroom drama. Nobody wants to see three hours of junior counsel sitting in Southwark Crown Court waiting for a turgid pre-trial review to be called on for legal argument, or twenty minutes of embarrassed silence as the jury wait for the court to find a working DVD player.

But the number of errors that Quiz managed to cram into a relatively short space of time was remarkable. No legal consultant was listed on the credits (albeit there was a curiously-titled “court advisor”), leaving the writing and direction reliant on what I can only presume was either reruns of Judge Judy or uncredited legal consultancy from Vincent Gambini. From the very beginning to the very end, the most basic elements of the judicial process were misconstrued and misunderstood, leaving an unrecognisable portrayal of any criminal trial that has ever taken place in England and Wales.

The obvious question, again fairly raised by several non-lawyers (and repeatedly by my non-lawyer other half, head in hands, as we watched) is Does This Matter? Is this not simply what anybody has to endure when watching a fictionalised representation of their specialism? Is it any different to medics watching Holby City, or IT consultants watching anything with technology, or – to draw on perhaps the most unforgivable aspect (if true) of the Ingram saga, namely his claim not to recognise David Hasselhoff – lifeguards watching Baywatch?

The only difference, surely, is that lawyers are prima donnas sufficiently precious to compose laborious Twitter threads and blogposts on how and why the errors offend them?

These questions are, I’ll say it again, fair. And there is no doubt that I am being an arse. Let’s please make that clear. Pedantry is our stock-in-trade, and we can and do deploy it indiscriminately and, inevitably, sometimes needlessly. But I do think there’s a distinction, and a point, here. I think there is validity among the snark.

Before turning to why, it may help to list the errors, helpfully gathered by, among others, Fiona Robertson, Ishan Kolhatkar and Tom Sherrington:

  1. Tecwen Whittock introducing himself for the first time to the Ingrams on the day of trial. Unless this was designed to be a deliberate misdirection by Mr Whittock for the benefit of those in the public gallery, this is nonsensical. There would have been numerous court hearings prior to trial at which the defendants would have been present.
  2. The prosecution barrister strolling around the courtroom during his opening speech to the jury. Unlike in America, advocates in English and Welsh courts stand still when they are speaking. If you walked around like this clown, you would be immediately told to stop.
  3. The prosecution barrister telling the jury that “You have a 50/50! Guilty or not guilty.” The burden and standard of proof, the foundation of the modern criminal justice system, is that the prosecution have to prove the case so that the jury is sure (or “beyond reasonable doubt” as it used to be known – “sure” is now the standard, although supposedly means the same thing). Cases in the civil courts are decided on the balance of probabilities – or ‘which scenario is more likely’. This “fifty fifty” bon mot from the prosecution barrister would have confused the jury, and, however tempting, would not have been used in this way.
  4. The Ingrams being interviewed together by the police. For what might strike you as obvious reasons, the police do not interview suspects side by side. Alleged co-conspirators have to be interviewed separately, so that they each independently have an opportunity to give their account and answer questions (and so that the police can see if any defences advanced match up). There was also no solicitor present. We all have a right to free and independent legal advice when arrested and interviewed by the police.
  5. The defence barrister being visited by the Ingrams alone at her chambers. Unless specially registered to conduct what is nowadays called “public access” work, barristers are only allowed to take cases that are referred to us by solicitors. The solicitor is the one responsible for all the litigation, and will attend any conferences (meetings) between barrister and client.
  6. “We never thought a high-profile barrister would touch our case with a bargepole”. Apart from the laughable notion of any barrister not wanting a case because it has had too much publicity, this perpetuates a misunderstanding of the role of criminal barristers. We don’t choose our cases based on the clients we like, or believe, or think have a “good case”. The “cab rank rule” means that, put simply, we take the next case that comes along. This is central to the running of our criminal justice system. It means that everybody gets represented, whatever they are accused of having done.
  7. Helen McCrory representing all three defendants. While in rare cases it may be possible for one lawyer to act for multiple defendants, in a conspiracy such as this, where there is ample scope for conflict of interest between defendants, it is inconceivable that only one barrister would be instructed. Even one as mellifluous as Helen McCrory. (And indeed, at the real-life trial, each defendant was represented by their own Queen’s Counsel.)
  8. The judge eating sweets in court. No judge would be seen eating sweets on the bench. (Emphasis on “be seen”)
  9. Witnesses merrily giving their own theories on guilt. Rules of evidence are strict. Witnesses are there to answer questions about what they saw, heard and know. They are not there to speculate, offer theories of guilt, or answer “why would X have done such a thing?” This is vital to a fair trial, as it is not the partially-informed opinion of the witness that matters, but the opinion of the jury, who has heard all the evidence. Any barrister asking such questions would be judicially smacked across the head. Any lay witness offering their own views on guilt would be immediately stopped.
  10. Barristers telling the jury that the charge, if proven, will result in a prison sentence. It is strictly verboten to address the jury on what sentence is likely to follow upon conviction. The jury should be focusing on whether the evidence proves the prosecution allegations, not on, for instance, whether they think the defendant “deserves” to go to prison.
  11. Barristers stopping halfway through questioning a witness to give an impromptu speech to the jury. Barristers are present to ask questions and make comment. The two are strictly delineated. You ask questions of witnesses, designed to elicit facts. And you then comment on those answers, and the other evidence, at the end of the case in your speech. You are not allowed to pepper your examination of a witness with off-the-cuff speeches. It simply doesn’t happen. And here it’s even worse, because we have…
  12. Barristers giving evidence. Barristers are not allowed to give evidence. We can, in speeches, comment on the evidence that others have given, but we are not witnesses, and cannot offer our own evidence on, say, the workings of human memory. The reason is simple: we are not witnesses, and cannot be questioned. So if the defence barrister offers cod science evidence about memory, for instance, there is no opportunity for the prosecution to cross-examine her, as they would do if that evidence came from an actual witness. Giving evidence is a cardinal sin.
  13. Mark Bonnar’s witness summons arriving mid-trial. There is no way (save for enormous cock-up) that a key prosecution witness would only find out after the trial has started that he is required to give evidence. He would have given a witness statement to the police at the outset of the investigation, and would have been warned to attend trial months in advance. He would only be summonsed if he had indicated an unwillingness to attend voluntarily. And as for the summons itself – what madness is this? EVtxOeEXQAEPS0a It is a mock-up of a summons from a civil case. There is no “claimant” in a criminal case. The party are “The Queen” and “[the defendants]”. There is no “claim number”. Somebody has gone to the effort of creating this bespoke document, which is as wrong as it is possible to be. And on a similar note…
  14. “The plaintiff”. The defence QC has apparently forgotten that this is a criminal trial, pitting the Crown against the Defendants, and is using the pre-1999 term for a claimant in civil proceedings.
  15. Witnesses sitting in the public gallery watching the evidence. Having answered to his unlawful summons, Mark Bonnar sits in the public gallery to watch the trial before giving evidence. This is strictly forbidden. And it’s important: witnesses should not know what evidence has gone before them. You want to minimise the opportunity for their evidence to be consciously or unconsciously influenced by what other people have said. Again, it’s essential to a fair trial.
  16. “Hello Kevin!” Questioning a witness is rarely as seen on TV. For one, examination in chief and cross-examination are seldom distinguished. (Examination in chief is questioning of a witness by the side calling the witness. These questions should be open and non-leading. Cross-examination is questioning by the other side, and is designed to be leading.) Secondly, the questioning of a witness can take a long time in real life. There is often a lot of groundwork-laying, a gaggle of pedestrian build-up questions, stuff that doesn’t make for good TV. And for dramatic purposes, this exercise has to be truncated, I accept. I’m not going to criticise that, as grating as it is to see conflation of cross-examination and evidence-in-chief, or the barristers not put key questions to the witnesses, or QCs sit down having asked just one ineffective question of the other side’s star witness. Creative licence can have this one. But “Hello Kevin”?! Any barrister greeting a witness in that way would have something heavy thrown at them. Not a gavel, however, because…
  17. GAVELS HAVE NEVER BEEN USED IN AN ENGLISH AND WELSH CRIMINAL COURT. During the trial, there is the sound of a gavel being frantically rapped as the judge shouts “order!” and threatens to “suspend the session!” Neither of these are phrases ever heard in our courts. Likewise..
  18. “Objection!” “Withdrawn” Again, just, no. These things do not happen. These are Americanisms, never seen in our courts. See also: “strike that from the record”, “sustained” and anything else that might conceivably be said by somebody whacking a gavel.
  19. “Okie dokie!” As a candidate for “the very worst way to respond to a judicial reprimand”, this takes some beating.

These infractions vary in their seriousness. But I do think it matters. It matters because the law affects us all, yet we understand so little about it. And while we may not all understand everything about other areas of public life, the point about justice – and criminal justice in particular – is that it is not merely an important public service, like health or education, but serves a key democratic function. Any of us can find ourselves dragged into a criminal courtroom – whether as a defendant, victim, witness or juror – and the role we play will be instrumental to the outcome. The discussions we hold publicly about the functioning of justice influence policy, which become laws, which have a direct bearing on our day-to-day lives. And if we don’t understand how justice works, and what our roles in it are, we can’t be expected to meaningfully contribute or participate to shaping it, or to performing whatever part we may one day be expected to. To give a colour example, it doesn’t matter whether or not you understand what your heart surgeon is doing, as long as it is done correctly. But it matters very much, to all of us, whether or not you understand what the rules are if you are a witness in a criminal case. It matters because if you do it wrong, there are significant consequences for you and for the person on trial. It matters because you deserve to know what the reality is likely to be. What actually happens in court. How you are going to be treated, and how you are expected to behave.

It matters to jurors. Expectations are moulded by what we see on television. It’s why there is despair at the semi-fictional presentation of forensic science – there is a despondency among prosecutors that many juries expect it to hold all the answers, and often it does not and cannot. If jurors don’t understand the role of the parties, including the advocates, they may draw unfair or irrational conclusions. Well that barrister didn’t cross-examine that witness by shouting at them and then pivoting to give us a mid-question speech about the fallibility of memory – maybe their case isn’t much cop.

It matters to defendants and victims. If you are arrested, it matters that you know your basic rights – e.g. the right to legal advice. Whether prosecuting or defending, I have lost count of the times that a client or complainant has observed, usually unhappily, that what happened in court wasn’t like they saw on TV. “Why didn’t you say X?” “Why didn’t you shout objection when the other barrister asked me that?” “Why didn’t you argue with the witness when they said Y?” Again, we can firefight those questions with relative ease, but the problem is that the further expectations and reality diverge, the less faith people have in their justice system, and the less cooperation we can expect from them. American criminal justice bears no resemblance to our version. Much of the pantomime, and the horror, that we read about concerning the conduct of lawyers and the system’s treatment of defendants and complainants in the US system is fortunately rare over here. But repeating the fiction that our models are the same compounds the confusion and the fear. We risk losing even more people before they set foot in the court building.

And I don’t lay all these responsibilities at the door of TV writers, by any means. Public legal education is something we as a society – and in particular we in the legal profession – have done abysmally for years. We have not communicated anything to the public about how the justice system works; we have jealously guarded its secrets for our own purposes. This is one reason why I am happy to spend hours each week answering (often the same) questions about law and justice over email and social media, and why many colleagues do likewise. The government has until very recently been content with this state of affairs, as it allows politicians to do what they like to the justice system under a blanket of public ignorance. And I don’t expect people paid to create entertaining drama to make public legal education one of their aims.

But I find it frustrating that, when there is a platform, an opportunity, to show millions of us how the criminal courts operate, to add a dash of education to the entertainment, it is wholly disregarded for absolutely no good reason save for, I’m afraid to say, basic laziness. Where it takes place in the context of a drama advertised as the telling of a real-life story, whose climactic episode revolves around a trial that actually took place, to get so much wrong is frankly unforgivable. Given that this has been adopted as a platform for the Ingrams to launch an application to appeal out of time against their convictions, and that there is now apparently some fairly widespread public sympathy for their plight, there is surely a responsibility to avoid completely misleading the public. I’ve had a number of people asking me if I agree that the drama “proves” that the Ingrams got a raw deal. If that is how the trial was conducted, I would completely agree that it does. But it wasn’t. And this wasn’t simply edited highlights, drawing from the real transcripts; it was a child’s re-imagining of the court process.

And it is possible to get these things right. Asking a practising criminal lawyer to look over your script is commonplace. In the context of the budget for this show, paying a few hundred quid to somebody to cast their eye over the courtroom scenes – or even taking a day or two to visit a criminal court yourself, as the person writing a courtroom drama – does not seem a stretch. I think it’s the nihilism of low expectations to shrug away accuracy as anathema to entertainment, or unworthy of striving for. Great drama nourishes the viewer as well as sating them. I have faith in our best writers not only to aspire to this goal but to achieve it.

Of course some of the errors matter more than others. Individually, some can be filed under “legal arsewittery”. But collectively, inaccuracies in the way we depict our justice system damage our understanding of something that matters to us all, more than I think we realise.

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UPDATE: I was remiss in omitting this from the list of errors, spotted by the eagle-eyed Max Hardy:

 

Televising sentencing remarks is a gimmick that has not been thought through

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As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.

The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.

So why am I concerned?

There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.

But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.

The problem is that I don’t think it will do that.

The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.

However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.

There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.

And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.

And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles [2019] EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:

  • There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly. 
  • The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. 
  • On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it. 
  • The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
  • Findings of fact should be announced without, in most cases, supporting narrative.
  • If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course. 
  • Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.

For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.

Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?

And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.

We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.

A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.

Guest post by Mukul Chawla QC: Reflections from my years at the independent Bar

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I am delighted and honoured to publish this guest post by Mukul Chawla QC. Many readers will know that, after 35 years at the independent Bar blazing trails that leave us mortal practitioners feeling very humbled indeed, Mukul is stepping down as Head of Chambers at Foundry Chambers (formerly 9-12 Bell Yard) for a new beginning in employed practice. Here, he offers some reflections on his time at the independent Bar and on the fate of the criminal justice system.

 

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What follows is a self-indulgent and personal reflection of my years at the independent Bar and my thoughts (which echo those more eloquently set out by others not least the owner of this blog page) of the present and future state of the Criminal Justice system. If that introduction is not enough to put you off, may I thank you in advance for taking the time to read this.

Three weeks ago, I concluded my final speech in a murder at the Central Criminal Court and was allowed to tell the jury at the end of it that, because of a longstanding previous engagement, I would not be able to return to the case.

The longstanding previous engagement was my leaving the independent Bar to join a firm of International lawyers in the City of London as a partner in its White Collar Crime team.  I have now been working in that role for three weeks and it has given me an opportunity to reflect on what I have left behind. At a time when my good friend Max Hill QC is about to take up the reins as Director of Public Prosecutions, I thought it was an appropriate moment to put down some of my thoughts on what the past thirty five years have meant to me and my fears for the future of the Criminal Justice system.

I was called to the Bar by Grays Inn in July 1983, a moderately fresh faced 22 year old who had played too much rugby and done too little academic work to achieve anything approaching decent grades. Like many of my contemporaries my academic achievements would not even get me an interview at any moderate set of Chambers today. In those days my university and Bar School tuition fees were paid for in full by the local authority. I did not have to pay for the privilege of undertaking pupillage but neither was there any pupillage award. Its equivalent, so far as my pupil master was concerned, was his complete insistence that while I worked with him, I did not pay for lunch or the near daily outings to wine bars around Fleet Street. My pupillage consisted of following my pupil master around various Crown Courts in London with occasional trips to the High Court and working on a variety of criminal and civil papers for him when we were not in court.

As it turned out I was incredibly lucky. When I got to my feet, I was invariably in court every day and often conducting several hearings each day. Most of my first five months on my feet were spent in the Magistrates Court but there were also plenty of appearances in County Courts and in Employment Tribunals.

Three weeks before my tenancy application was due to be considered, my clerks managed to miss a fixture for a senior tenant at Inner London Crown Court – a multi-handed heroin supply case. When I returned to chambers at 11am from a quick hearing at Bow Street Magistrates Court, my senior clerk handed me the papers tied with pink tape, gave me my taxi fare (you can tell how guilty he felt!) and sent me on my way to Inner London. The Judge was, I understand, incandescent before I arrived but took pity on me when I stammered my apologies for my late arrival. However, he was not sufficiently sympathetic to agree to adjourn the case to the following day so that the counsel who had been instructed could undertake the trial. He did, however, grudgingly allow me twenty minutes so that I could speak to my client. My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.

My first Crown Court trial had not started in the auspicious way that I had dreamt of. Our relationship never really improved. The next two weeks were spent in a haze of panic, sleeplessness and endless writing and crossing out questions to ask and points to make. I had one point in my favour. The police officer who interviewed my client had neglected to write down that he had cautioned him in accordance with the Judges Rules (this was pre PACE). The more he insisted that he had cautioned my client the sillier he looked. Wise words from one of my co-defending counsel prevailed upon me in that, while I had wanted to make this cross examination last hours so that I would be seen as the new Rumpole of the Bailey (or, at least of Inner London), I only needed to ask half a dozen questions before resuming my seat. In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me.  Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.

A week later, the Chambers Tenancy meeting took place and thanks in large part to what was reported by those who had been in court, I was offered a tenancy. I was taken for a drink by a senior member who was to become a good friend, Ian Goldsworthy. His advice (only half in jest): “If I were you, my boy, I would give it up now while you still have a 100% success rate.” Two days later and following a trial for shoplifting, my success rate had plummeted to 50%.

The next few years were incredibly busy. I would often spend weeks in the same court with a jury being sent out in one case and immediately starting the next one. One or two judges, I suspect, became heartily fed up with me. My speediest full trial was at Croydon defending a man charged with handling stolen goods. The jury were sworn at 10.35am and returned their verdict at 11.10am (thankfully one of Not Guilty). I was always accompanied by a solicitor’s representative. In many ways, the solicitor’s rep was the glue that held trials together, who could smooth difficulties between counsel and the defendant, who would make notes, be a sounding board and support the advice being given. Those who undertook this task were often people with very substantial experience in attending court with counsel. The vast majority of counsel today have never had that assistance and the system has suffered immeasurably in consequence.

My luck continued. For a long time, from the late 1980’s, I acted for the Police Federation representing Police Officers in discipline hearings and in criminal cases. All of those cases were challenging and some immensely so. But in the process, I represented police officers charged with criminal misconduct, perverting the course of justice, corruption and manslaughter. Some of those represented the highest profile cases of their kind and included the defence of the Guildford 4 and Birmingham 6 police officers and the officers charged with the unlawful killing of Joy Gardner. I represented a retired senior officer in the Macpherson Enquiry following the brutal racist killing of Stephen Lawrence and the grossly inept police investigation that followed. I represented police officers from Regional Crime Squads and the Flying Squad charged with the most serious allegations of corruption.

I was on the Customs List which meant that I split my time prosecuting and defending. I would defend policemen and prosecute suspected drug smugglers and VAT evaders. It was exciting and exhilarating work. It was always rewarding both professionally and financially. Unlike criminal practitioners today, I do not remember worrying about fees or about paying my mortgage or payments to my pension or healthcare or critical illness cover. I was able to save and invest some money. Please do not misunderstand me. I was not wealthy but neither was I struggling to make a decent living.

In 1996, I was asked to become Standing Counsel to the Customs and Excise and having decided to accept that appointment, I resigned from the then nascent monitoring scheme for Treasury Counsel at the Central Criminal Court.

From 1996 to 2001, I was a busy and, I think, successful senior junior undertaking specialised criminal work both defending and prosecuting substantial cases. Those cases were not without moments of substantial humour and embarrassment. On one occasion, I was being led in a trial at Leeds in front of Mr Justice Ognall. My leader was making a submission about which he had not spoken to me and which took me completely by surprise. My usual poker face was clearly absent as Ognall J, (like me, clearly struggling to understand the submission) said at one stage: “Oh Mr X, if only you could see the expression on your junior’s face!”

By now a substantial part of my work was in fraud cases and I would be instructed in cases by and against the Serious Fraud Office.

I took Silk in 2001, two months shy of my 4oth birthday. Again I was lucky. I still defended and prosecuted in the same sort of cases as I had as a Junior but now I was right at the sharp end. And I loved it.

I was one of a number of counsel who were part of a new record for trial length. Between 2003 and 2005 I defended in the longest ever trial in front of a Jury (June 2003 to March 2005) – the Jubilee Line fraud and corruption case. The prosecution had estimated that the trial could take 6 months. Those of us defending thought it could take 12 months. The Judge warned the Jury it could take 18 months. We lost one juror who became pregnant, another who was charged with some allegation of fraud and the trial eventually collapsed when, after 21 months, a further juror simply (and understandably) said he had had enough when the end was nowhere in sight.

I have enjoyed prosecuting and defending in fraud and corruption cases, prosecuting export control cases and defending insider dealing and health and safety cases. More recently I have prosecuted a handful of murder cases. I have had a rich and plentiful diet of appearing in court and advising companies and individuals facing a variety of criminal and regulatory issues.

But my time at the Bar is not defined by the cases that I have undertaken. It is defined by the sense of camaraderie that exists in every case with your co-defending and opposing counsel, the jokes that you make and that are made at your expense and the fact that, however hard you fight in court, you will always enjoy the company of those with whom you have been in fierce dispute when sharing a drink in the pub.

More than anything, my time at the Bar is defined by the friendships I have made. There are simply too many to list here and so I will confine myself to mentioning three people who have been special and inspirational to me and whom I count myself as truly fortunate to be able to describe as close and lasting friends.

Edmund Lawson QC was my mentor and dearest friend at the Bar from my days of pupillage until he died, much too early, at the age of 60 in 2009. He was prodigiously clever and hard working. He had fantastic judgment – almost his first advice to me was: “If you are thinking of doing something but it would make you blush then or if you had to tell someone you respected about it, don’t do it.” But he was much more than those things. Among other things he was modest, fun, generous always great company and someone who made everyone with whom he came into contact feel special. The most difficult speech I have ever had to make was when I delivered the eulogy at his funeral.

I first met Julian Bevan QC when he prosecuted my clients in the Guildford 4 police officers case. He was one of those people who always took his cases seriously but regarded his  own very considerable abilities with much disdain. He was the consummate jury advocate exuding calm and utter restraint. You would never guess that he had, moments before going into court, been a nervous wreck. One of my tasks as his junior was to be able to roll a cigarette for him when his hands were too shaky to put the tobacco in the paper. In one case, I remember vividly how he was able to completely turn a hostile jury by the sheer power of his advocacy, putting difficult propositions into simple words while generating complete trust in what he was saying. He was unbelievably generous to me, constantly recommending me to solicitors for difficult cases. He was and remains a constant source of delight. Now that he is enjoying retirement, I treasure the lunches and dinners when we meet and are able to gossip like adolescent schoolboys.

Ra Healy QC was one of my first pupils in 1992. In many ways, we have grown up at the Bar together albeit that she is rather younger than me. She became my pupil just at the time when my practice was blossoming. I knew I was going to like her when she told me early in her pupillage and with justified confidence that my analysis of some legal issue was completely wrong! In reality she is a proper lawyer and a great advocate. By rights, she should be arguing esoteric points of law in the Chancery Division or the Commercial Court. But she loves being a Jury advocate and she is terrifically good at it. Her sense of irreverence has not deserted her. A few years ago I was leading her in an insider dealing case. When cross-examining an expert on derivates trading, I mis-calculated a percentage difference. When the Judge looked quizzically at me and suggested that my maths was faulty, Ra piped up to say to Judge and Jury “Pah! Just as well he doesn’t style himself as a fancy fraud specialist!”  Over the years she has become a real friend and a confidant. She was the only one at the Bar whom I told when I was thinking of leaving the Bar. With Ra, I know that my leaving Chambers will not change our relationship.

So, the question that I have constantly been asked is: Why leave the independent Bar? The short answer is that I was given the extraordinary opportunity to work in an area in which I am comfortable but with completely new challenges and opportunities. It was, in reality, an opportunity that I could not sensibly refuse.

But it is more than that. Life at the Criminal Bar has become a grind and for many, an intolerable one. The cases that we do are becoming more and more complex. They are uniquely challenging and important for defendants, victims and the public at large. The vast majority of barristers and solicitors doing this work see no future in terms of personal development and financial security to make this a profession that can be enjoyed and sufficiently remunerative to be sustainable.

In the last few years I have seen talented junior members leave the profession to work for the CPS, SFO and FCA as well as joining firms of solicitors. In the main, that is not something that they have wanted to do but something that has been forced upon them.  Those who are doing well (and there are fewer of those than many would think) have seen such extraordinary structural changes in what we do that is done under the most difficult circumstances. Thus and by way of example only, even in high profile murder cases, it is extremely rare to see a solicitor’s representative in court supporting the advocate. It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated in the drive to achieve economies.

It is positively debilitating as a Head of Chambers when you hear of stories of juniors who cannot afford a train fare to get to court because the CPS or the LAA has failed to make payments long overdue. These are not apocryphal or anecdotal stories. These are things I have seen first-hand.

You may argue that the profession has become too big and that it should be leaner. But I am not here speaking of the dearth of work but the simple fact that the work required to be done, the payments that are made for that work and the way that those payments are made, and often not made, cannot sustain this profession either in its present numbers or in reduced numbers.

However, this is only one part of the problem. The entirety of the Criminal Justice System is in crisis. Successive governments have cut funding to all parts of it, whether in terms of the Legal Aid budget, funds available to prosecutors, police, probation services and prisons. From detection, investigation, trial and all the way through to prison, community penalties and eventual rehabilitation efforts, no government in recent memory has shown any inclination of caring about any of it. And so, at every stage, despite the best efforts of all those involved in every stage of the process, mistakes will occur; short cuts will become common place if that has not already happened.

I have come to the view that unless there is a really substantial injection of funding in all areas of the system, the Criminal Justice system will simply collapse. It will be unrecognisable and will, in reality, be anything but Justice. And by that I do not mean for the direct participants in it but for Society at large. Members of the Bar, Solicitors  and their professional organisations have tried to warn governments of the consequences of under-funding for almost as long as I can remember. Our words have consistently fallen on deaf ears. Even the occasional promises to improve aspects of it have proved illusory. I have no confidence that the position will change.

And so, I am sorry to be leaving the profession but only to an extent. While I am excited by the challenges that I will face in the years to come, I am leaving this profession which has given so much to me with real foreboding. I hope (perhaps in vain) that, in this respect at least, I will be proved wrong.

The meaning of justice

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This will be (for now) my last word on the Tommy Robinson appeal. My legal analysis based on the facts as we now know them deals exhaustively and exhaustingly with the law; my reflections at the conclusion of that piece on whether I was too hasty to assume the correctness of the procedure, I stand by. Being quick to form views in the absence of the full facts is a bear trap I haughtily deplore when others fall in; it is only right to acknowledge if and when I teeter on the brink myself.

But I want to say something, for what little it is worth, about our understanding of justice. And my leaping-off point for this is something that a number of people have drawn my attention to today – this leader in The Sun.

The tweets to me accompanying this photo have been almost uniform: Who’d Have Thunk it, The Sun sticking it to Robinson and Co, Good On ‘Em.

And parts of this leader are indeed brilliant. Whacking to pieces the myth of this oppressed citizen journalist is vital, and needs doing as often as the piñata is reassembled by far-right agitators. Pointing out that the reporting restrictions that Robinson breached have nothing to do with political correctness and everything to do with ensuring a fair trial – the genius is in the simplicity of its expression. Spelling out in equally simple and clear terms the danger that such actions pose to victims of crime receiving justice – [INSERT MERYL STREEP APPLAUSE GIF].

But there’s a line buried within which troubles me, and echoes a sentiment that has been tweeted at me a lot in the erroneous assumption that I share it:

“His many convictions stretch from violence to fraud. We have no sympathy.”

This ugly and unnecessary throwaway reveals one of the biggest problems we have with our understanding of justice; the same problems that many of us are quick to highlight in our opponents. And that is that Robinson’s character, conduct and previous convictions, as reprehensible as they may be, are utterly irrelevant to the issue determined at the appeal, namely whether he received a fair hearing. If he did not – and he did not – he is as entitled as any of us to redress, or at the very least to an acknowledgment of being wronged. The attitude of “Who cares? He’s a criminal” mirrors the exact sentiment that has left the criminal justice system – from legal aid through to prisons – in its present desperate state.

It is immaterial whether Robinson has committed horrible crimes. Many people who appear before the courts have, especially in my line of work. And rights, if they mean anything, have to apply to everyone. It’s an obvious point, but this fundament of the rule of law is too often forgotten when we are confronted by society’s most unlovely.

If we neglect our first principles of justice, we fall into the trap carefully lain by the far-right. Their entire, dishonest thesis – from Trump through to Robinson – is that they are deprived of natural justice by its unequal, unprincipled application at the hands of liberal enemies of the people. By denigrating and distorting the rule of law they aim to undermine and ultimately destroy it. Implying that Robinson’s previous criminal record renders him less deserving of justice than the rest of us hands the far-right the prize they crave.

Don’t be fooled by the strained triumphalism of the far-right over yesterday’s outcome. This result is a disaster for them. It categorically disproves to a global audience every conspiratorial tenet of their religion. The liberal judges are not locking up political dissidents. There is no state cover-up. Mistakes, when made in the legal system, can and often will publicly be righted.

They may be proclaiming that they fought the law and won, but for the truth just ask The Clash. The winner, if we must talk in such terms, is justice.

Which moves me back to The Sun, and the risk of an equivalent false triumphalism on the other side. For just as the far-right mendaciously spin this righting of a procedural wrong as a “victory for free speech” – by which they mean the right to hound Asians accused of criminal offences – so we risk self-denigration by dismissing, or worse revelling in, the punitive effect of the court’s error. The joy that some are taking in the notion of Robinson’s imprisonment borders on the macabre.

I’m afraid if you’re supportively tweeting me amidst the blizzard of the racist bots to share a gloat that Robinson has maybe spent more time in prison than he should have, or to gleefully cross fingers that he gets longer next time, I’m not your ally in this cause.

It may be, when the contempt matter is dealt with anew by the Old Bailey, that a sentence is passed which matches or even exceeds what Robinson has already served. But at present, he served a sentence that followed an unlawful procedure. That shouldn’t happen. To anybody.

And if he does receive a lesser sentence – if the court, after a full and leisurely hearing at which all mitigation is made available finds that the appropriate sentence is much lower than he received first time round – and if it means he has therefore served longer than he should have, all the arguments I’ve made in my book about miscarriages of justice apply. It’s wrong. He should be entitled to an apology, and recompense, and all the other make-goods I demand on behalf of others. His perceived or actual shittiness is not material. If he has been imprisoned when he should not have been due to state error, it’s as much a problem as if it happened to “one of the good guys”.

So those are my closing musings. I have no issue at all – and nor should any of us – with Robinson seeking to and succeeding to challenge the lawfulness of his treatment at the hands of the courts. We are all entitled to due process, and should all expect, however abominable others may consider us to be, that the law will be applied fairly and correctly. My concern, contrary to what the Breitbarters would like to pretend, has always been the mob lining up behind Robinson to spread lies and quite literal fake news as to what took place, what the factual and legal issues are and how the law operates. Those peddlers of hate and deceit – the UKIPs, the Breitbarts, the Rebel Media, the Infowars, the unmentionable Twitter favourites – I will continue to resist as long as I keep up this vainglorious mission to bring law to the people who own it.

But as for what happens to Robinson now, all that should matter is that he gets justice. If, in his righteous pursuit, he encourages his supporters to continue their threats to the rule of law, their riots, their organised campaigns of racialised misinformation, I will be there waving my tiny paper sword on the front line.

But taking any sort of pleasure in anybody being failed by the justice system? We’re better than that. Let’s show it.