Goodbye Liz Truss, Hello David Lidington – a brief look at the new Lord Chancellor

Liz Truss, we hardly knew ye. Three days short of eleven months since her appointment as Secretary of State for Justice and Lord Chancellor in Theresa May’s debut cabinet, Ms Truss bows out to a slow handclap. Her achievements can be shortly listed, for they are none. Liz Truss never asked for the job, and, as became clearer each day of her eleven months-less-three-days overstay in the Ministry of Justice, was woefully ill-equipped for each aspect of it. She did not understand the policy she was promulgating wearing her Justice Secretary’s hat – having to be embarrassingly corrected by the Lord Chief Justice when she misunderstood and announced a policy about live link evidence in criminal trials –  and lacked the resolve to carry out her constitutional functions in her Lord Chancellor’s robes.

HelloGoodbyeUS

At the time of her appointment, many people expressed concerns at Truss’ selection. They were accused by Truss’ supporters of rank sexism; in dispensing with Truss’ services after less than a year, Mrs May vindicates these critics. The painful truth is that, as suspected, Truss was never cut out for the role. Her appointment betrayed the Prime Minister’s shameful lack of understanding of the constitutional function of Lord Chancellor; indeed, it was painfully clear that May was blissfully unaware that, unlike any other cabinet position, there is a specific statutory requirement that a Lord Chancellor be “suitably qualified by experience”. This is because the Lord Chancellor has a specific constitutional role: they swear an oath which provides:

I do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.

A potted history of the role of Lord Chancellor is set out here, but in short, the position exists to ensure that someone in government is explicitly charged with acting as a watchdog for the rule of law and the justice system. The Lord Chancellor should be someone of sufficient gravitas and political clout to stand up to their colleagues and say: What you are proposing offends the rule of law/independence of the judiciary/efficient support of the courts, and is wrong. It is for this reason that the ideal job specification calls for someone of significant legal and political experience, usually in the twilight of their career, who is prepared to give a merry two fingers to the Prime Minister and Cabinet in the overriding interests of our constitution.

The apparent lack of experience and fortitude, and the whiff of a Graylingesque desire to treat the Ministry of Justice as a stepping stone to better things, founded the main objections to Truss. While many of us were disappointed that she was the third non-lawyer to be appointed in a row, Michael Gove’s relative success during his short spell tempered some of our self-regard. On the day of Truss’ appointment, I wrote:

“Yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes, one fears, on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.

But if Mr Gove has taught us anything, it is that it is only right and fair to  pause and see what Ms Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.

Because if that’s the kind of Lord Chancellor Ms Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.”

But it quickly became clear that Truss was not that kind of Lord Chancellor. She had indeed been appointed precisely because May knew that she would not startle the horses. When May’s cheerleaders in the tabloid press and tub thumping Brexiteers, inexplicably livid at the notion of British judges doing their jobs and ruling on cases lawfully put before them in British courts, turned on the judiciary with a viciousness as dangerous as it was unprecedented, the Bat Signal for the Lord Chancellor went up. Judges were Enemies of the People. They needed sacking, or at least bringing to heel. Their sexuality was fair game, those gay ex-Olympic fencers. Their motivations and integrity were impugned. They were forced to seek advice from the police on securing their personal protection. Nigel Farage whipped up hysteria with calls for a march on the Supreme Court.

And Truss said nothing. Not a peep. When she was eventually shoved out onto stage, she muttered a brief platitude about the rule of law existing, and went on to repeatedly refuse to condemn the press or her Parliamentary colleagues for blatant attempts to intimidate the judiciary. This, it can be safely inferred, would have been on direct instruction from the Prime Minister, who responded to requests for comment with the same cowardly line.

Truss should have resigned then. She didn’t. She stayed on. By the end of her tenure, she had lost the confidence of the entire legal profession and the judiciary; some achievement in 10 months. Her epitaph was written for her by the Lord Chief Justice, Lord Thomas, who in a stunning break from convention told the House of Lords Constitution Committee that Truss was “constitutionally absolutely wrong”.

But let’s look ahead to her replacement: David Lidington, a long-serving MP and former Leader of the House of Commons whose name nevertheless had many of us reaching for Wikipedia. The first thing to note is that he is a not a lawyer. Which, given the historically legal quality of the role, is not ideal. But, as I explained at the time of Truss’ appointment, the legal profession and the judiciary have over the past 5 years become accustomed to non-lawyers donning the Lord Chancellor’s robes. The question is no longer simply, Are they a lawyer? Rather, it’s a much broader, Are they up to the job?

Presently, lawyers and commentators will be scrabbling over the new Lord Chancellor’s voting record and poring through Hansard (and Wikipedia) for clues to his disposition. What we know about Mr Lidington is this. He is a historian. This is a good start, although Chris Grayling’s degree in the same discipline did not encumber him in his wanton destruction of the justice system. According to Wikipedia, Mr Lidington has a PhD in “The enforcement of the penal statutes at the court of the Exchequer c.1558-c.1576”. He has won University Challenge twice, once as a student and once in a reunion show. These are all, to varying degrees, positives.

He has held various briefs since his election as MP for Aylesbury in 1992, although has not been called to serve in the Ministry of Justice (however, he did enjoy two spells as a junior minster in the Home Office in the 1990s). He was the longest ever serving Minister for Europe from 2010 to 2016, when he was appointed Leader of the House of Commons and Lord President of the Council.

While at the Foreign Office, he spoke about the importance of international human rights and of access to justice. He was a Remain supporter, who was in the press when it emerged that he had informed Parliament, entirely correctly, that the EU referendum was, as a matter of law, only advisory. He has shown that he is prepared to stand up to his own party on matters of constitutional importance, as in last December when he slapped down a fellow MP’s call for the appointment of judges to be brought under Parliamentary control following the “Brexit ruling”, replying:

“I hope that we don’t go down the route in this country where political considerations play a part in the appointment of judges.

“And of course our current system does depend on a balance, embodied in numerous conventions over the years rather than written into law, that Parliament, Government, respect each other’s place in our constitutional settlement and I hope very much that that will always continue to be the case.”

Already, we see a politician with an appreciation of the separation of powers, judicial independence and rule of law, and a willingness to stand up to those seeking to undermine those values, both of which were notably absent from Truss’ tenure. These are encouraging signs. His Parliamentary experience – 25 years to Truss’ six (at appointment) – accords with what might be expected for the role. That his record does not betray an appearance of ruthless career advancement and manic department-hopping suggests that he may have genuine intent to stay the course. Bob Neill MP, most recently Chair of the Justice Select Committee and a stern critic of his party colleague Truss, reacted to Lidington’s appointment thus:

 There are however less pleasing aspects to Mr Lidington’s record. He has consistently voted with his party to restrict the scope of legal aid and to limit success fees in no-win no-fee cases. This does not sit easily with a professed commitment to access to justice. His record on gay rights, up to his eventual conversion in favour of equal marriage, has historically lined up squarely with the pro-section 28 wing of his party. He has voted to repeal the Human Rights Act. None of these, indeed I would venture nothing in his Parliamentary record, screams of a man prepared to torch the party whip on the altar of justice. That said, a conversion from poaching to gamekeeping is not unknown when collective responsibility is lifted. Bob Neill has been rehabilitated from Chris Grayling’s right-hand MoJ hatchet man to staunchly independent chair of the Justice Committee, dishing out the just and righteous scrutiny that the system requires. People can change.

I would suggest that there is cause for cautious optimism. This is a left-field appointment by Theresa May (and of course one which, depending on the fading vital signs of her premiership, may be brief), but there is evidence that Mr Lidington, if he will forgive being damned with faint praise, is an immediate improvement on his predecessor. How far this improvement extends, remains to be seen. For my part, I would respectfully urge  the new Lord Chancellor to start with a few visits to his local magistrates’ and Crown Courts, to see the legacy of his forebears in grim action. Once he has done so, I would urge him, as I did in futility to Liz Truss, to:

stick on his ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something he is going to physically fight for at every cabinet meeting, even if the consequences are that he is politically blacklisted from the Party, and higher office, for the rest of his career.

Because that is the kind of Lord Chancellor our justice system needs. And it’s the kind that millions of disenfranchised and vulnerable people deserve.

In forgetting our fundamental principles of justice, The Trial’s fascinating run fell down at the last

*SPOILER ALERT: If you have not seen the end of The Trial: A Murder In The Family, don’t read on. Unless you’ve no intention of watching it, in which case do as you please.*

Last night, Channel 4’s The Trial: A Murder In The Family drew to a close. At the end of a five-day run showing edited highlights of the augmented reality trial of Simon Davis for the murder of his estranged wife Carla, the finale dragged us inside the emotional furnace of the jury room as the twelve jurors deliberated with a ferocity belying the academic nature of their task.

2835

The Trial: A Murder in the Family, Photograph by Channel 4

Despite the judge giving a majority direction – where instead of a unanimous verdict, a court can accept a verdict agreed by 10 of the 12 jurors – the factfinders remained aggressively deadlocked. Eight were unpersuaded of the prosecution case, influenced by the evidence pointing to the possibility that the culprit was in fact the deceased’s scorned boyfriend, Lewis Skinner, and dutifully voted Not Guilty; four were sufficiently sure to cast a ballot for Guilty. The jury were hung, in the legal lingo, and so were discharged. At some future date in that parallel universe, Mr Davis will be retried at Berkshire Crown Court, but for now he remains a free man.

And a lucky one, we learned. For, in a curious creative decision, the producers decided to “reveal” through dramatisation what had really happened: Just as prosecuting counsel Max Hill Q.C. had told the jury in his opening and closing speeches, the defendant had indeed attended the former matrimonial home and, upon learning of Carla’s decision to end the fledgling rekindling of their relationship and up sticks to Scotland, had strangled her with his bare hands. The big reveal, it was none-too-subtly implied, was that The Jury Got It Wrong. Lest we be in any doubt as to the editorial perspective, the episode closed with close-up shots of the burdened jurors, their individual verdicts stamped across the screen, before the following captions rose:

“On average, two women are killed by a partner or ex partner every week in England and Wales.”

and

“In this case eight jurors voted not guilty, four voted guilty.

All four guilty votes were cast by women.”

and finally

“Next year more than half a million of us will be called to decide the fate of a fellow citizen.”

The official Twitter account for the programme has since run polls, including asking viewers:

I’m still struggling to make sense of this all.

Taking the above together, the only possible interpretation of the editorial line is: “This jury should have convicted. They didn’t, ergo they failed. What does this tell us about juries? (Clue: Maybe it’s sexism.)”

Which would be fine, had that been the premise of the programme. But it wasn’t. At least, not as far as we’d been led to believe. It was billed – accurately – as a groundbreaking docu-drama in which we would be given a unique insight into the way that juries operate. The opacity of the jury room means that, notwithstanding academic studies attempting to recreate its conditions, we know little about how juries approach their task. We have a fervent cultural faith in the inherent supremacy of trial by jury; let’s, Channel 4 suggested, cut open this sacred cow and have a rummage around inside.

The concept as advertised was not to present a jury with an obviously guilty man, and see whether a jury rationally assessed the evidence to come to the “right answer”, or whether they were waylaid by bias.  That may well have made for a fascinating programme – but it wasn’t the stated purpose of this exercise. Rather, this aimed to present a typically complex and borderline case, and to offer a fly on the wall insight of a jury striving to reach its verdict.

And so much was right about The Trial. Authenticity was plainly its guiding principle. We had some of the country’s very best barristers, with a retired Crown Court judge, and police and expert witnesses played by real police officers and experts. The case and evidence were expertly crafted and balanced on a knife edge by David Etherington Q.C. and Max Hardy. The 12 jurors came laden with a typical breadth of life experiences, replete with the assumptions, cognitive biases and individual prejudices that afflict us all, and which their fellow jurors were quick to identify and challenge. The conditions enabled what in televisual terms comes pretty close to a scientific experiment.

But the ending took that claim to objective inquiry and violently throttled it. Because in the final episode, we suddenly were not interested in how the jury works, but whether they arrived at the right answer. And by “right answer”, the producers meant “truth”. Thus, not only was the bulk of the final episode frustratingly concentrated away from the jury deliberations and onto the reveal of the WhoDunnit, but it risked leaving the non-lawyer viewer with a wholly distorted view of the function of juries.

Because the dirty little secret that The Trial left out is this: Jury trial is not about finding the truth. It can’t be. The truth, in most cases, is indiscoverable. It does not arrive in the courtroom, packaged with a neatly tied bow, at the end of the case, for jurors to benchmark their performance. Even after a verdict, the legal imprimatur of Guilty or Not Guilty, we are still no closer to knowing whether the verdict is factually “true” than we were when the jury retired to deliberate. While we obviously want legal verdicts to correlate with the truth – the factually guilty always convicted and the factually innocent always acquitted – our system recognises that this is unachievable. There are in most criminal cases, as with most human interactions, simply too many complexities and information gaps for us to say with certainty whether someone definitely did or definitely did not do what the state alleges they did. If we were to require juries to find the truth of every case, we would inevitably require them to indulge in speculation and guesswork, with the appalling consequence that factually innocent people would be convicted on that basis.

So we don’t ask juries to guess at the truth. Instead, we present them with as much relevant evidence as we can, and ask them one question: Are you sure that this person is guilty? If yes, the state will take coercive action. If the jury is anything less than sure, they must acquit. Not guilty does not mean innocent. It means that the jury cannot be sure to the very high standard required that, on the available evidence, the defendant is guilty. This inevitably means that factually guilty people are acquitted. But it is the sacrifice our system makes to minimise the risk of the greater peril: a factually innocent person being convicted and punished.

This cornerstone of our justice system – the burden and standard of proof – was The Trial’s glaring omission. While the judge’s summing up and legal directions were understandably edited to the bare minimum, holding (even judges would concede) little televisual interest, would it have been too much to leave in a brief few seconds of the judge reminding the jury, and the viewers, of the essential basis of how to approach their task?

In the event, a number of the jurors disregarded the burden of proof, casting themselves as detectives trying to crack the case – trying to prove the culprit was more likely to have been Lewis – rather than confining themselves to the sole question: was the case against Simon Davis proved on the evidence?

The tragedy is that this case was the perfect vehicle for a considered treatment of the burden and standard of proof. Here we had a murder where the offender could only feasibly have been one of two men – Simon Davis or Lewis Skinner – but where the evidence was arguably insufficient to prove the case beyond doubt against either. The producers could have preserved the integrity of the concept by declining to give us the “answer”, instead explaining – perhaps through the to-camera interviews with the barristers and judge – how it is that our system allows a situation in which we know that the offender was one of two violent men but cannot convict either, and how such an outcome is not an indictment of a jury “failing” in its task, but reflective of the correct course where, regrettably, the evidence is simply not enough to safely convict anyone. This is the build of our system, the programme could have said. Here’s why we do it this way, and here’s what the professionals think. What do you think about it? 

But that line of contemplation was abandoned, the producers instead deciding to grasp for an unconvincing gotcha moment and invite us to lay blame at the jury’s door. As I’ve said, if the producers were looking all along to make a point about juries failing to convict in the face of overwhelming evidence, they could have done. They could have asked the barristers writing the case to devise a deliberately strong case, littered with tripwires and victim myths designed to test the jury’s integrity. But this factual matrix was intentionally blurry. After the reveal, the prosecutor Max Hill Q.C. tweeted:

For what it’s worth, I agree. The evidence of the witness Mullen who (wrongly, we infer) placed the violent Lewis Skinner near the murder scene gave the jury reasonable cause to doubt the prosecution case. To take a knife-edge case and conclude, from the fact that the jury were on a knife edge, that something is wrong is simply bizarre.

Finally, the decision to highlight the gender of the jurors who voted to convict, without saying more, leaves me very uncomfortable. What was the message? That if you, as a juror, are sitting on a case involving an allegation of domestic violence you should be more inclined to convict? I genuinely have no idea what other interpretation we are supposed to draw. If I were defending a man accused of domestic violence today, I would be very nervous about any of the jurors having seen last night’s finale.

In fact, if it were prejudices that The Trial was hoping to root out, fuller pickings were arguably to be found among those who chose to convict. One speculated over the interpretation of DNA evidence, despite being directed not to do so. The famous Cherry, the self-professed “witch” so proud of her unfailing “gut”, appeared determined to convict from Day 1. And of the four convictors, three had direct or indirect experience of domestic violence, which they were quick to overlay on the evidence of the instant case. The final interviews with these four jurors also left us in doubt as to how sure-footedly they stood by their verdicts. There was a distinct impression that some had deviated from “beyond reasonable doubt” to the civil standard of “probably did it”. In fact, it was those who returned not guilty verdicts, despite thinking that Simon Davis probably killed his wife, who were the ones being true to their oath and to their (fictional) public duty.

This denouement is is a shame because in so many ways this programme has been a revelation in legal programming. Matthew Scott’s review of the first episode stands true – it has been in numerous ways a force for good; a powerful and gripping show educating the public on the workings of a criminal court with far greater accuracy and aplomb than is achieved by most dramas. Those involved should rightly be proud.

But by appearing to abandon its stated premise in the final episode, I feel The Trial missed a glistening opportunity to probe at some of those deeper questions about the way we do justice. Is our faith in juries misconceived? Should we entrust our liberty to the Cherrys of this world? How loyal are juries to their oath to reach verdicts on the evidence? Are they able to faithfully follow the judge’s directions on the law? Do they need greater scrutiny, or even screening? Should we demand that juries supply reasons for their decisions, instead of a binary one or two word verdict? Is our commitment to individual liberty a roadblock to catching the guilty, or an immutable principle of which we ought to be louder and prouder?

While there was enough over the five nights to allow us to entertain such thoughts incidentally, it is a shame that at the last the producers swerved off-road, rather than facing the difficult, perhaps more interesting, questions head-on.

A note on blogging – why I write

The Oxford Bread Knife story pootles on, given fresh wind each day by some hot take or other in the op-eds. There has been a lot of reaction on social media, and many people have taken the time to contact me to explain, in varying degrees of politeness, why they do or do not agree with what I’ve said. One article in particular is of interest – this blogpost here by Richard Moorhead. It is a thoughtful piece, with which I largely agree; although it leads me to worry that my position, not only on this story but on legal reporting in general, might have been misunderstood. I took it to be suggesting that, in explaining the legal framework of the Bread Knife story, I might be offering “a minimalistic defence” of the decision. Richard, rightly, said that, “Patting an irritated public on the head and saying, you don’t understand the law sweetypops doesn’t get you very far”, and, equally validly, suggested that “seeking to neutralise arguments on the basis that the law has been followed is not much help”. I don’t know if these last two were general points or aimed at my post in particular; but in any event, I appreciate that there is a risk that I have not explained myself sufficiently clearly, such that misapprehensions have been allowed to gather. So I wished to briefly clarify, as a standing disclaimer to which I can return as a shorthand in future debate, some of the ground rules underpinning my writing.

quill and parchment

My starting point is that the law, and understanding of the law, should be a shared asset. We are all bound by it, and all rely on its proper and just functioning to underpin the fundaments of our daily lives. Criminal law is of particular importance, and holds particular public intrigue, as it regulates the Golden Rules of civilised society, breaches of which are met not merely with financial penalties – as with civil law – but with the state swooping in to interfere with the subject’s liberty. To commit a crime is to break a social rule so important to our shared values that its enforcement cannot be left to private individuals. A crime against one person is a wrong against us all.

It follows that we all have an interest in ensuring that criminal law meets our expectations of “justice”. We may differ on exactly what that entails, but we can probably reach a democratic consensus on its core elements: We should all receive equal treatment before the law. We should all have a say on what the law is, through our democratically elected representatives in Parliament. We are each of us, when we are accused, entitled to a fair trial before a independent public tribunal. We are entitled to know the case against us and to receive independent professional advice on how the law applies. We should be permitted legal representation to robustly test the law and evidence against us, irrespective of our means. If we are a victim of or witness to a crime, we deserve to be treated humanely and with dignity, and our discomfort should be minimised, permitted only where necessary to ensure a fair trial for the accused. Where guilt is proved, the state response must be proportionate, striking the delicate balance between the overlapping and competing aims of punishment, rehabilitation, reduction of crime, public protection and restitution. And we should have a fair and functioning corrective; an appellate system to step in when things go wrong.

My fear, and one which propelled me when I started this blog, is that criminal justice in practice often fails our lofty ideals. Sometimes the problem is with the law itself; sometimes with its execution; sometimes the problem is that the system is financially starved or otherwise perverted by political interference. And most of the time, the public have little idea what is going on. There is, in criminal justice possibly more than any other sphere of public life, a devastating lack of public education, exacerbated by inaccurate, ill-informed media reports and political pronouncements that betray an ignorance of the legal system that stretches up to the very top of government. This lack of understanding means that politicians escape scrutiny when terrible things are wreaked upon criminal justice – such as the policy that you can be wrongly accused of an offence, denied legal aid and then denied the cost of your private legal fees even when acquitted – and that, when we see a legal story reported in the press – such as the latest “look at how much legal aid this murderer received from YOUR TAXES” – we often lack the tools to critically evaluate it.

Part of the problem, as well, is the legal profession. We do a stunningly poor job of explaining to people what the law is, and why it matters. Too many of us are content to busy ourselves in our own work, safe in the knowledge that what we do is important, but without feeling the need to deconstruct for the man on the street why two wigged figures incanting Latin before an old man wearing a giant purple robe, and the obscured codes and rules governing this mediaeval ritual, has any relevance to their everyday life. We then wonder why there is an obvious disconnect between the legal system and the people it exists to serve and protect.

This is where I hope to help. By writing about popular legal stories in the news, I aim to shine a few shaft of light on what is happening beneath the headlines. I want to give the context that you may not be getting from news reports, to explain the legal structures that inform legal outcomes, and to point out where information gaps lie. Often this will involve challenging media narratives – such as “The Ched Evans case sets a precedent for a rapist’s charter” – other times I will simply point out that the gaps in our knowledge about a particular case render it difficult to draw any conclusions as to whether a problem exists, or what its cause might be. Often I will find myself – a far cry from the day job – standing up for judges, explaining why an unpopular decision might not be their fault. Other days I might robustly disagree with a legal decision or policy, but for reasons adjacent to what has been reported.

When I do this, I am not seeking to neutralise argument or shout down opposing views with a patronising, “You wouldn’t understand, sweetypops – it’s the law”. If I ever appear to do so, or if I ever seem to be suggesting that “It’s the law” is the end to an enquiry about whether an outcome is just, I am at fault, because, to the contrary, I want to incite and inform debate. I want people to be excited, livid, passionate and furious about criminal justice. But I want that debate, so long defined by misrepresentations and outright lies by tabloid newspapers and mendacious politicians, to be informed and accurate. When we are livid at a sentencing decision that offends our instinctive conception of justice, I want us to be able to distinguish between a decision that has been foisted upon a judge by case law or Sentencing Guidelines, and a free exercise of judicial discretion, so that we can properly target the root of the “problem”. When someone isn’t charged or convicted, or prison isn’t imposed where we might expect it to be, I want to explore from professional experience what other factors might explain an apparently odd decision. If we are told that victims are being failed and the law is in urgent need of reform, I want us to understand the competing arguments about defendant’s rights, and present the law and facts that might inconvenience campaigners. If commentators wheel out the Legal Aid Fat Cats trope in support of government efforts to restrict your access to legal representation when you are wrongly accused, I want to debunk it.

None of this is intended, necessarily, as taking a position on or mounting a “defence” of the substantive decision or the law itself.  Often I won’t be able to defend a decision, for the simple reason that we don’t know enough about a given case to form a fair view, and I will give a tepid call for calm. This should not be mistaken for complacency or a denial that there is any merit in public concerns; unless I state otherwise, it will be intended as a (perhaps unsatisfactory): We Simply Don’t Know Enough About This To Draw Conclusions, But Here’s What the Law Says. If your response to that is, “Well I want to know more, and I want some conclusions” – then we are on the same page. Sometimes, where I feel I can, I will offer a view on the merits of a debate – as with the Bashir case, in which I opined that the sentence appeared lenient given the facts, or in the Ched Evans case, where I explained why the argument presented by certain politicians was factually and legally inaccurate. In other cases, I will hold up my hands and say that I am not sure which side of the line I fall – as with the Marine A case, in which I explained why both extremes of the argument were wrong.

But I repeat, because it is vital: my stridency or irritation with the presentation of the law should never be read as seeking to protect it from scrutiny, or to casually dismiss issues of concern. It is obviously proper – no, vital – that people raise questions about the law, even where there is little information. I would never blame anyone for asking, “How is it that a person can stab their partner and avoid prison?” I would not take issue with anyone using these stories as a jumping off point to call for more information into an area of criminal law, such as whether we are all really treated equally under the law.  But I do take issue with, and will challenge, people reaching settled conclusions – the judge was an idiot, or biased, or the law needs comprehensive reform – based on partial media reports of a single case. It is this rush to swallow sensationalist soundbites without pausing to gather facts, that I hope to stymie, whether with expositions of the law, data (where available) or anecdote from professional experience.

So that is why I write. I come not to bury criticism of the law, but to praise it. There is a lot wrong with the law – procedurally, substantively and culturally. Just because something is lawful doesn’t make it just. If a few years at the coalface of criminal justice teaches you anything, it is that. I will sometimes say simply: “This is the law”, and leave the deeper question of substantive justice unanswered, for others to mull over. If I ever appear to be relying on, “This is the law” as a full explanation for the justice of a decision, pull me up on it. Because they do differ. And it is occasionally too easy for those like me, stuck in the system, to fall back on that.

Finally, I don’t expect – nor do I want – universal agreement to my meandering streams of legal consciousness or precious political posturing. I want all of us to constantly re-evaluate and question the assumptions underpinning justice, assumptions which I no doubt, despite my efforts, fall prey to. I want us to argue about what the law should be, how it should work in practice and what it says about our society. I want us to care about its failings and campaign tirelessly for its improvement. My aim is simply that when you and I, or you and those Twitter armies, or you and your workmate, cross swords over a legal story, we all stride onto the battlefield equally armed with the law, facts and acknowledged gaps in our understanding.

Because ultimately this affects us all.

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

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

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

Oliver_Cromwell_by_Samuel_Cooper-e1478589160860

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

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

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

Will Quince MP: An addendum

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

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

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

img_0905

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

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

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

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

Thank You

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

Thank you X

SB

gwyneth-paltrow-oscars-crying-620x410

Why we need legal aid for the worst people in society

Recently, I’ve noticed an increase in the number of people getting cross about legal aid. I don’t know whether this can be causally linked to the backing tracks expertly laid down by our new Lord Chancellor, adopting the smooth jazzy beats of her pre-predecessor Chris Grayling to create a steady percussive “legal-aid-bad, legal-aid-bad” filtering through her more recent public pronouncements. Or whether it is linked to the influx of legal aid scare stories pumped out of the Ministry of Justice’s favourite tabloid antagonists. Or whether, like the tide, anger over legal aid is perennial, dipping out of eyeline only temporarily before its inevitable resurgence in deference to the gravitational pull of the moon. Or, for those of the Douglas Carswell Academy of Astronomy, the sun.

But whatever the cause, it’s always dispiriting to see the Legal Aid Monster rear its mythical head, not simply because the call for its restriction threatens my narrow self-interest (DECLARATION: I have fed and clothed myself thanks to legal aid), but because it again reinforces how poor a job we in the system are doing in explaining to people why legal aid matters.

The Legal Aid Monster. Or Honey Monster. I forget which.

The Legal Aid Monster. Or Honey Monster. I forget which.

This morning I have enjoyed a spirited exchange of views with a Twitter user who I understand to be involved with or linked to the police, whose views on criminal justice I always enjoy hearing (particularly the anonymised Tweeters with the liberty to speak freely about the chaos in which they are forced to operate, such as @InspGadgetBlogs and @ConstableChaos). Quite often, we echo each other’s despair at the non-workings of the system; sometimes, police officers offer an insight into problems that barristers don’t see first-hand, but which inform the issues that we deal with in court. Today, by contrast, my partner and I came at the issue of criminal legal aid from the polar extremes. I think there’s not enough of it, and that people are often left without adequate (or any) representation; he thinks that there is far too much, and that it should be removed entirely from repeat offenders.

His view, I speculate, is one that might prove popular with people fortunate enough to have avoided the criminal courts. He is certainly not the first person to have expressed it to me. But it’s a view which, with respect, is based on a fundamental misunderstanding of the purpose and function of criminal legal aid.

 

//platform.twitter.com/widgets.js

Let’s start with the proposition that legal aid should be “for the needy”. A lot turns on that definition, but it is employed above in contradistinction to “career criminals with multiple convictions”. So I infer that by “needy”, the writer means “not guilty”. Or at least, “not guilty very often”. Which is problematic. For me, legal aid should be available to anyone whom the state accuses of a criminal offence. Like healthcare or education, it should be a universal civil right. You don’t choose to get ill or be born, so healthcare and education are provided by the state. You don’t choose to be accused of a criminal offence, so you should have the right to properly funded legal advice and representation when the state engages you in criminal litigation. Of course, some people invite criminal proceedings by committing the offence, but we only know that once proceedings have started and guilt has been admitted or established. I have no problem in principle with recovering the cost of legal aid and/or criminal proceedings from convicted defendants who have the means, but the flaw in the “legal aid for the innocent” argument is that you need the former before you can determine the latter.

Why do I say that? Surely, channelling the mantra of the magistrates’ court, a defendant knows whether he’s done it? Well, he may know that he’s done something. But knowing whether he’s committed the specific criminal act alleged by the state is something else entirely. He may know, for example, that he pushed past the shop assistant, nipped behind the counter, tried to grab money from the till but in fact grabbed a tenner that (unbeknownst to him) a customer had just put on the counter to pay for some cigs, and then grabbed the cigs and threw them to his mate (unwittingly striking him in the  eye and blinding him) before running off and accidentally knocking over a wonky display of uber-breakable glasses on his way out. But, as law undergraduates would be asked in this funhouse of an exam question, who is guilty of what? Is the first defendant guilty of theft? Burglary? Robbery? An attempt at one of those? If so, who is the victim? What level of assault is he guilty of, if any? Is he guilty of criminal damage if he didn’t mean to knock over the display? What of his mate? Is he guilty as a joint principal or an accessory? Or is he guilty simply of handling stolen goods? Or receiving criminal property? And what difference would the various permutations of charges make to his sentence?

My adversary suggested that a career criminal would know just as well as a lawyer which offence he has committed. My response was that his having attending a dentist once a year for 50 years does not qualify him to conduct root canal surgery. If I’d had more than 140 characters, I’d have posted the paragraph above. Criminal law is complex. It’s not something that can be absorbed by proximity. And it matters that it’s done right.

It matters because, whether you’re a nice or a nasty person, you should not be convicted of an offence that you have not committed. Not only because it offends fundamental notions of fairness and justice, but because once we accept wrongful convictions as an acceptable bargain in a cost/benefit trade-off, we endanger not just the individual but wider society.

If, as the commentator suggests, we remove legal aid from repeat offenders, we put them at the mercy of the prosecution agencies. It will not simply be a case of a defendant mistakenly pleading guilty to robbery (maximum sentence life imprisonment) when he is in law only guilty of theft (maximum sentence 7 years), but of defendants, unqualified and unable to present their own defence, being convicted of offences of which they are wholly innocent. Because the police do arrest entirely innocent people. And the CPS charge them with the wrong offences. And the only obstacle to a lengthy, undeserved prison sentence is a defence solicitor or barrister, challenging the prosecution case, testing the factual and legal correctness of the allegations and fighting their client’s corner. Without a lawyer, a defendant is often a sitting duck.

And if there were a system where the police, under pressure (as they are) to improve clean-up rates and buff their statistics, knew that charging repeat offender Big Dave with a burglary would see him being denied legal aid, whereas charging first-time offender Small Steve for the same offence would result in a defence lawyer fighting his case, there is a mighty incentive in place to pin the crime on the man with two arms tied behind his back, irrespective of the evidence. While most police would not, some would bend to the  temptation. Some already do.

We would thus roll into a system that encouraged prosecutorial malpractice. The wrong people being convicted, and the even wronger people – the real burglars, thugs, rapists – getting away with it.

Legal aid for career criminals isn’t a treat or privilege to personally enrich them. It is a safeguard that ensures, as best we can, that when the cell door slams shut, society has satisfied itself that the person inside is the person who is guilty of the offence. Removing legal aid in such cases may satisfy some primal urge to vengeance, or natural hostility towards those who repeatedly breach our social and criminal codes, but it makes us no safer, saves us no money, and, in the long run, would make our streets a far more dangerous place.