“Right.” The legal advisor looked at me, then back at the defendant. “And are any of them going to be witnesses for you today?”
“Any of who?” replied the defendant.
The legal advisor looked at me again and cleared his throat. “Any of the aliens?”
The defendant shook his head angrily. “No! My case isn’t that aliens did make me do it – it’s that at the time I believed they were making me do it. I was insane, yeah? Insane!” He brandished his antique copy of Archbold triumphantly, as I, a newbie to this prosecuting lark, took my seat and settled in for what proved to be a particularly long trial.
Notwithstanding the years that have passed since that remorseless day, defendants in person, and the attendant idiosyncrasies they bring to criminal proceedings, are far from a bygone relic.
Transform Justice, a charity campaigning for a fairer justice system, last month published a report, self-explanatorily titled, “Justice denied? The experience of unrepresented defendants in the criminal courts”. Drawing on statistical and anecdotal evidence from professionals and court users, the report concludes that magistrates’ courts are encountering DiPs in ever greater quantities.
As a prosecutor, it must be said that certain defendants in person do not inspire sympathy. Aliens Man, a frequent flier in this particular court, certainly gave a damn fine impression of someone determined to get himself convicted, with his refusal to swear an oath or affirmation and tactical decision to meet every question – regardless of context – with an increasingly angry, “I was insane, yeah?” It was impressive how creatively (and doggedly) those four words were deployed to expand the trial into the late evening.
But sympathetic or not, everyone – even a man furiously declining to give evidence in his own defence “until that prosecutor goes into the witness box first” – is entitled to justice. And what we see all too often, as reflected in the report, is that injustice – perceived and real – waddles hand-in-hand with a lack of access to legal representation. Occasionally it will be a conscious choice to eschew professional assistance, as with every criminal advocate’s favourite Magna Carta-quoting oddballs, Freemen on the Land, who with a defiant ignorance of constitutional law and a fistful of printed internet “legal” advice, try valiantly to persuade the court that is has no jurisdiction to try them without their consent, coz Magna Carta. But the recent proliferation of DiPs is largely attributable directly to conscious executive fiat.
A low means-testing threshold (a disposable household income of £22,325 in the magistrates’ court,) and punitive legal aid contributions for those who do qualify force many middle-income defendants into self-representing. Thrashing through the administrative process if you’re self-employed is a nightmare, the impenetrable ambiguity of the Legal Aid forms seemingly designed to ensure rejection at the first attempt. The Legal Aid Agency is the institutional embodiment of jobsworthiness, kicking out valid applications for the most trivial – and occasionally non-existent – of perceived slights.
Putting aside the truism, attested by any Judge, solicitor or barrister, that any costs saved in depriving litigants in person of public funding are spunked ten times over by the added court time and resources needed to deal with their cases, the danger, particularly in the magistrates’ court, is of significant miscarriages of justice.
I’ve had years of dubious pleasure watching magistrates deal with defendants in person. Many benches do their best to assist the bewildered through the process. But many don’t. I recall vividly watching agog as the bench – abetted by their legal advisor – invited a defendant in person to plead guilty to having an offensive weapon – a hammer – on the basis that he said in interview that he had it with him but intended only to frighten with it. A hammer not being offensive per se, the offence could only be committed if he’d intended to use it to cause injury. Fortunately another solicitor, exchanging raised eyebrows with me, interjected to inject some law into proceedings.
And the fear has to be, as courts are smoothly re-engineered as whirring production lines of justice through Better Case Management, putting the emphasis on speed ahead of quality, that defendants in person will get dragged between the grinding mechanism beneath, their cries unheard and their cases undiscovered.
There’s little more to cheer in the Crown Court. While the figure for defendants in person is currently steady, this won’t last. The indefensible removal in 2014 of legal aid from defendants with disposable household incomes of £37,500 will collide, I grimly predict, with the exponential increase in prosecutions of historical sexual allegations – in which many defendants will find themselves bitten by the threshold – with what can only be forecasted as appalling consequences for justice.
The brave new digital world pioneered by the Ministry of Justice is currently predicated on the assumption that all will be represented, the MoJ Jekyll seemingly blissfully ignorant of the MoJ Hyde’s bloody night-time trampling over legal aid. Quite how a defendant-in-person is expected to muster the wherewithal to extricate disclosable Social Services records from an exhausted Crown Prosecution Service, or manage the inevitable 500-page-strong Notice of Additional Evidence casually tossed onto the defence on the first day of trial, Lord alone knows.
Many of these problems could be ameliorated by the simple automatic grant of legal aid to anyone accused by the state of a criminal offence, with provision to recoup that money, where available, in the case of convictions. Utterly unobjectionable in principle. Sadly the modus of successive Justice Secretaries has been subservience to the false economy of plundering legal aid, plunging other departmental budgets into the red in satisfaction of a laughably dishonest public commitment to “fiscal responsibility” and “tough spending decisions”.
There is a risk inherent in writing about professional trolls that you serve only to ladle extra righteous indignation into their feeding troughs. It is for such reason that I set myself a strict biannual ration when blogging about Philip Davies MP.
However, the overwhelming public interest in preventing – or, if by publication the horse has bolted, remedying post-facto in law – a diabolical social outrage has compelled me to address the most recent threat by below-the-line comments queen Katie Hopkins, who, with typical charm and grace sent the following tweet in the build-up to the London Mayoral vote:
If Sadiq Khan wins London, I will run naked down Regent Street with a sausage up my bum in protest #LondonMayor2016
Given that it was tweeted at a time when it was plain from every poll that Khan was going to win by a landslide, one might be justified in treating this as less of a call to arms and more the opportunistic realisation of a lifetime ambition. Either way, it has succeeded, as Hopkins usually does, in ensuring that, for a segment of social media users who ought to know better, a significant British political landmark has quickly become about one damaged woman’s repeat self-publicity/immolation campaign. And I include myself in that segment. In the days that have followed the inevitable victory for Mr Khan, there has been no sign of retreat on Hopkins’ twitter feed; to the contrary she has classily declared that it is to be a halal sausage as “I don’t want to upset our first-Muslim-son-of-a-bus-driver Mayor.”
It is utterly counterproductive signalling distaste at this kind of thing, because it is on surfing the opprobrium of “the left-wing media”, by which she means non-racists who don’t believe in shooting refugees, that Hopkins thrives. Offences against standards of common decency are her stock in trade. But offences against the criminal law appear to be something that Hopkins has not considered. Accordingly, as a public service, for the attention of both Hopkins and any bystanding prosecutorial authorities, herewith the criminal acts that Hopkins may well be committing if she follows through on her pledge:
Outraging Public Decency. This common law offence covers all open lewdness, grossly scandalous behaviour and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order. The act must be committed in public. The act need not be “sexual”, but a jury must be satisfied that it is lewd, obscene or disgusting. As a common law offence, the maximum sentence is life imprisonment or an unlimited fine (although the maximum would be unlikely to be imposed in Hopkins’ case).
Exposure, contrary to section 66 of the Sexual Offences Act 2003. Save for a strategically-placed fig leaf, which would rather contravene the explicit terms of her pledge, Hopkins would appear to inevitably be exposing her genitals (subsection (a)), and therefore the only question would be whether she has done so intending that someone would see them and be caused alarm or distress. For reasons as per 3 below, I reckon this offence is made out. Maximum sentence is two years’ imprisonment.
The copper’s favourite, the catch-all section 5 of the Public Order Act 1986. The obscenely broadly-drafted provision criminalising “disorderly behaviour”, or “threatening or abusive words or behaviour” if within the sight or hearing of someone likely to be caused “harassment, alarm or distress”. There is always a tricky balancing act between rights of freedom of expression under Article 10 of the European Convention on Human Rights and this particular provision; however the case of the Naked Rambler is an example of how po-faced English courts can be over public nudity (his case beginning life as an offence contrary to section 5 – Gough v DPP  EWHC 3267 (Admin).) If, following Gough, public nudity can constitute an offence under section 5, which is punishable only by a fine, it follows that it can also be an offence under section 4A of the same Act – which requires committing the act with intent to cause harassment, alarm or distress (as opposed to such an effect being merely “likely”). Given that Hopkins rarely says or does anything without that intent, I’d be optimistic of getting this one home in front of the magistrates. Maximum penalty under section 4A is 6 months’ imprisonment.
Public nuisance. Another common law offence, criminalising the doing of an act not warranted by law, the effect of which is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s Subjects. Ms Hopkins parading down one of London’s premier thoroughfares in the proposed fashion would plainly affront the rights of Her Majesty’s Subjects to not be subjected to such a sight, and at the very least would affect the reasonable comfort and convenience of life for those innocent Regent Street shoppers. The House of Lords has, however, made it clear that where a specific statutory offence could be charged, public nuisance should not be prosecuted (R v Rimmington; R v Goldstein  1 A.C. 459).
That having been said, it is perhaps at 4, with a charge of public nuisance, that the most appropriate manner in law of dealing with Hopkins is to be found. In 1957, in the case of Attorney-General v P.Y.A. Quarries Ltd  2 Q.B. 169, CA, Lord Denning said the following:
“[A] public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”
A more prescient and fitting description of Hopkins, half a century before her time, one will struggle to find.
I make plain at the outset that I will forever, until the untimely end of my days and beyond, harbour a residual affection for anyone, of any political persuasion, who tells Diane Abbott to fuck off. At any time of day, in any given context, this is surely always the right thing to do.
But today, Jess Phillips MP has made a boo boo from which I sincerely hope she will distance herself.
She was apparently responding to various media outings by Metropolitan Commissioner Sir Bernard Hogan-Howe, who, dodging the shrapnel from the implosion of Operation Midland, has formally announced a volte-face in the way police officers will approach allegations of sexual abuse. No longer, it seems, will we have beaming police officers hosting press conferences where they tell the world’s media that a complainant is “credible and true”. No more will they appeal for prospective complainants to come forward with the cry: You Will Be Believed. No, it appears that the police might give a vague nod towards such old nostalgia hits as the presumption of innocence, and the importance of comprehensive investigations.
We must be clear about the principle of impartiality at the heart of criminal justice. Dame Elish Angiolini, who has reviewed our approach to rape investigations, made a proposal that should be at the core of this debate. She detailed how our policy has moved over the years. In 2002, the Met said officers should “accept allegations made by the victim in the first instance as being truthful”. A report in 2005 called for a “culture of belief, support and respect”. In 2014, Her Majesty’s Inspector of Constabulary said: “The presumption that a victim should always be believed should be institutionalised.” A complaint of sexual abuse must now be recorded immediately as a crime.
Dame Elish questioned whether it is appropriate, or possible, to instruct an officer to believe. Instead, she said: “It is more appropriate for criminal justice practitioners to remain utterly professional at all times and to demonstrate respect, impartiality, empathy and to maintain an open mind … in the first instance, officers should proceed on the basis that the allegation is truthful.”
Now I confess ignorance of the aforementioned 2014 report – I had no idea that the state had formally codified this inversion of the presumption of innocence, although few defence practitioners will be surprised. Nevertheless, this is genuinely shocking. A presumption that a complainant is telling the truth is a presumption that the accused is lying. It is a fundamental reversal of the foundation of British justice.
Nevertheless, in response to Hogan-Howe’s article, Ms Phillips, seemingly determined to prove the maxim of Mr Justice Coulsen, tweeted:
The greatest too abusers use is the line “no one will believe you” be nice if Police Chief didn’t confirm it.
It doesn’t end there. Once a suspect is charged, the police and the Crown Prosecution Service remain under a continuing duty of disclosure – which means they are required by law to provide to a defendant any material gathered during the course of the investigation which might assist the defence or undermine the prosecution. This vital function in ensuring that justice is done – that the innocent are acquitted and the guilty convicted – is not just compromised but wantonly pissed all over if the police adopt the starting point that they must accept unquestioningly everything a complainant says.
And this attitude is all the more grievous for the fact that it has been reserved, it seems, for the very cases in which the credibility of the complainant is most likely to be the issue at trial for the jury to decide. How on earth can the accused be sure that he has been provided with all the relevant information with which to defend himself – such as (as the courts often encounter in sex cases) previous false allegations by a complainant, or witnesses who may contradict the prosecution case – when the police are encouraged to build up a case to enshrine the complainant’s version of events?
It hurts that I have to make what feel like incredibly simple, facile points, but plainly I do: The starting point for all investigations – sexual and otherwise – has to be neutrality. If a complaint is made, the police must investigate it, and investigate it thoroughly. They should treat complainants with courtesy and respect, but with the same open mind and critical analysis as they should a suspect. This is not “victim blaming” or “calling all victims liars” or any other formulation to which Ms Phillips might wish to pin her badge. It is the police discharging their vital public duties properly and in accordance with the administration of justice.
If they don’t, innocent people end up in prison. Institutionalising “belief” leads to catastrophic miscarriages of justice. The kind where people spend decades, if not lifetimes, festering in a cell for something they did not do.
Netflix’s Making A Murderer stands as a pop culture exemplar of police officers forming a settled view of someone’s guilt, and moulding an investigation in the image of that One True Faith.
If she hasn’t seen it, I’ll happily pay for Jess Phillips’ subscription.
And so, as a Durham University student acquitted of rape provides easy meat for indolent editorials in the broadsheets, so renews the now-ritual exhumation of the debate on anonymity in sex cases. Round and round the usual participants go, like those rotisserie chickens at Tesco, only even more bird-brained.
In the red corner, the below-the-line lobotomees who parade every acquittal as proof positive that all women are just waiting for an opportunity to spring a false rape accusation, which is why we should probably name, shame and prosecute all complainants just in case. In the blue corner, the defenders of the status quo, vigorous in impressing that, notwithstanding that another high profile innocent’s reputation has been coated in the stickiest of mud, we resist anonymity for defendants in such cases.
The illusions of the red corner are easily disabused. Anyone who believes an acquittal equates to a factual finding that a complainant has lied only has to read the judgment in the Neil “Doctor” Fox trial to see the number of shades of grey on the sexual offences palette. These clowns can be pwned with a rudimentary refresher in the burden and standard of proof and a cursory thwack around the head with Rook and Ward.
Rather it’s the blue corner, fortified by a curious coalition of defence lawyers, prosecution agencies and political activists, where ingrained attitudes are more complex. To the point where, frankly, I struggle to understand the arguments advanced.
The case in favour of restoring the pre-1988 position, restricting publication of a defendant’s identity up until the point of conviction, is straightforward: it preserves the presumption of innocence, and the liberty of the acquitted, by protecting them from the unique stigma of a sexual allegation until it is proven. The public cannot un-learn, and, as Google demonstrates, do not forget, accusation of sexual offences. Time does not bleach the stain.
Pragmatically, rampant publicity degrades the power of the independence of multiple complainants in a case; it places media and political pressure on the prosecuting authorities to make popular, rather than sensible, decisions on charging in high-profile cases; it feeds the perception that allegations may be made spuriously to defame; and it foments lazy prosecuting when the authorities know they can advertise for complainants to bolster a weak case.
Straightforward points, I’d suggest. By contrast, the reasoning of the anti-anonymity cause betrays it as a political position in search of a justification.
Justice should be open, is invariably where it starts. To which we say yes, but this a qualified rather than absolute principle. The courts impose reporting restrictions in various situations, whether due to the age of participants or the nature of the allegation – for example with complainants in sex cases.
Well it’s a slippery slope, comes the rejoinder. Anonymity will have to be granted to all defendants in all cases. Except of course, it won’t. That’s silly. Just as we haven’t extended automatic anonymity to complainants in non-sex cases, so it will be within the wit of Parliament not to accidentally legislate to give all suspected speeders anonymity for life.
Why then should those accused of sexual offences get special treatment? Because, (in a weary voice) sex is a special case. This is accepted fact, for all the socio-cultural reasons pertaining to taboo, stigma, shame and so forth that inform the raft of procedural and legislative distinction between sex trials and any other. Automatic special measures; section 41 restricting questions on past sexual history; the prohibition on defendants cross-examining complainants in person; Sexual Harm Prevention Orders; notification requirements; and, of course, restrictions on publicly identifying complainants.
But publicising the name of an accused encourages other victims to come forward. And here we strike the true rationale. Prosecutorial expediency. Rather than address the reasons why some complainants don’t feel they can come forward without corroboration, the case is reduced to this: To increase the conviction rate, we’re happy to sound a clarion soliciting public accusations, in the hope that something sticks.
But even accepting this cynical, lazy justification, what objection can there be to conferring anonymity on defendants, but providing a judicial mechanism in cases where a defendant ought properly be named? Just as section 3 of the Sexual Offences (Amendment) Act 1992 provides for limited circumstances in which complainant anonymity can be disapplied, why not a presumption of defendant anonymity, up to conviction, which a Judge upon application can rescind if the interests of justice require?
The only honest answer is the one buried under the mound of disingenuous diversions – that, in the unpopular cases that upset us the most, we are prepared to sacrifice the presumption of innocence, and the dignity of thousands, on the altar of prosecutorial convenience.
“Just in case [Chris Grayling MP] is to be completely airbrushed from history, can we have a debate on his legacy as former Justice Secretary? It need not be a very long debate.”
When you’re standing in Parliament having your political career mocked by an ex-vicar best known for posting online pics of himself in his pants, it’s perhaps fair to suggest that your shot at high office may have passed you by. With these words from Chris Bryant MP yesterday dovetailing reports that Mr Grayling’s successor as Justice Secretary is considering abolishing the festering Criminal Courts Charge (about which more here), these have not been a good few weeks for Chris Grayling.
Frank Skinner rather than Chris Bryant. But magnificent nonetheless.
It could all have been so different, as well. Sometimes, in my quiet moments – usually waiting in vain for G4S to bring a defendant to court – I allow my imagination to pirouette around the shadows of those universes, parallel and infinite, in which the raft of life carries me down an alternative tributary culminating in my ultimate incarnation as a trout tickler, cheesemonger or worthy adversary to WWE’s The Undertaker. And I wonder whether Mr Grayling permits himself the same indulgence.
In case he is firm enough to resist, I’m prepared to have a go for him. Channelling Laura Barnett’s summer bestseller “The Versions of Us” – a charming hybrid of Sliding Doors and One Day – I’ll muse, if I may, on how Christopher Stephen Grayling’s life may have contoured had things just been ever so slightly different…
The knock on the door came shortly before noon. Chris Grayling MP, Secretary of State for Justice and Lord Chancellor, would forever remember the sound of that knock, although as time ebbed he would come to forget whether it was the door on his house in Ashtead, Surrey, or the door on his taxypayer-funded flat in Pimlico, dolled up to the nines courtesy of redecoration claimed on expenses, up to the maximum allowed as it happened.
It was the police. They had questions, Mr Grayling, just a few sir, just in relation to that decorator. You remember, sir? The decorator who you said had invoiced you for £2,250 in July 2006 for works carried out in June 2005? Well sir, although we can’t find this decorator – and so can’t substantiate suggestions that this was a ploy designed to allow you to in effect claim more than the maximum expenses for work done in 2005 (by falsely asserting that you weren’t invoiced until the following year) – our enquiry has led us to look a bit closer at the various hefty second home and expenses claims you did make, and your financial affairs in general. Is it right, sir, that your secretary – paid £40,000 of public money – is also your wife? And did you ever sell your second property and pay the profit back to the taxpayer, as you publicly promised to do? Just curious. You’re of course welcome to speak to your solicitor if you like, sir. But this is just a friendly chat…
“They jury will never convict”, chortled Sol through a cloud of smoke. “You’re in safe hands, Chris. Only the finest legal representation here, and we’ll get you a top Q.C. as well. You’ll walk that trial.” There was no evidence of false accounting, Chris was sure of that, but he kept a nervous eye on the clock as his solicitor reclined. The price for being an innocent man, he mused, was a high – and hourly – one. Not qualifying for criminal legal aid due to his annual household disposable income being in excess of £37,500 meant he had had to pay privately for his defence at his forthcoming Crown Court trial. Commercial rates of £300 per hour for his solicitor – and £2,000 per day for his Q.C. – were squeezing his pips.
“But I was acquitted!” cried Chris. “I know,” sighed Sol, “but the Costs in Criminal Cases (General) (Amendment) Regulations 2012 that you signed in to law mean you can only recover your defence costs at legal aid rates.” “But…you charge ten times legal aid rates, Sol! And I didn’t even qualify for legal aid! It’s not as if I was offered it and turned it down! This was my only option! And I’ve been found not guilty!” Sol shrugged. “I don’t know what to tell you, Chris.” As Chris looked down at the invoice – £400,000 for a nine-week trial – his mind scrabbled for a way out. I know how Nigel feels, he muttered darkly.
Bankruptcy was not what Chris had expected. Being forced to step down as MP for Epsom after admitting misleading the House of Commons over his Judicial Review reforms was inevitable in this febrile climate of public mistrust in MPs, but the divorce had knocked him for six. Penniless, and unable to obtain legal aid to help him with the family proceedings, his ex-wife’s privately-funded barrister had kicked him across the courtroom. His attempt at securing new employment had foundered – his new employer expressing an irrational hatred for “bald quisling men”, and sacking him without notice, or indeed any pay for his last month, upon a whim. Chris considered making a claim for sex discrimination at the Employment Tribunal, but then remembered the fees he had introduced. How on earth, he pondered, do I, as a recently-sacked person, find £250 just to issue the claim? Let alone £950 for a hearing? And that’s before I even consider paying for legal advice or representation, legal aid playing no part in employment cases. I could try a Legal Advice Centre, he considered, before remembering that one in three had closed down due to his own legal aid cuts. Silly me, he giggled.
Chris took to homelessness better than he anticipated. Relying, like Blanche Dubois, on the kindness of strangers, he managed to make friends on the street. One in particular, Pedro, would from time to time pass Chris a bite to eat. It was in relation to one such bite – a Mars bar, passed to Chris by Pedro outside a supermarket – that Chris was reacquainted with the boys in blue. “Shoplifting, eh Grayling?” snarled Plod, as Chris and Pedro were tossed into the back of the van. “But I…I had nothing to do with it!” wailed Chris. “Tell it to the magistrates,” laughed Plod.
In fact, Chris told it first to his duty solicitor, a newly-qualified fresh-faced ferrety type with a 2:2 from some college on the internet. (The graduates with the more prestigious backgrounds presumably, Chris thought to himself, have taken the commercial decision to head for the bright lights of city firms who will pay more than £17,000 p.a. for a fifty hour week (including being on call at night)). Mr Ferret listened nervously, advised Chris to give no comment in his police interview, and told Chris that he would see him at court the following day. Happily, thought Chris, my lack of disposable income means I qualify for legal aid! He laughed so hard at the irony that he started to cry.
The chair of the bench tapped his magisterial fingers on the bench. “If your client is not here, Mr Ferret, we’ll have to issue a warrant for his arrest”. Mr Ferret looked around hopelessly. Unaware that Chris had found it impossible to find public transport that would get him the 100 miles to court in time – Chris’ local court having been closed due to cuts – Mr Ferret could not resist the inevitable warrant being issued. When Chris was arrested and brought before the magistrates the following day, he entered his not guilty plea to theft and the trial was listed for four months’ hence (listings being forever jammed due to the number courtrooms sitting empty because of the cost of running them). As he had failed to surrender on bail the previous day, Chris was remanded in custody by the magistrates, Mr Ferret putting up a fairly weak fight, Chris felt. In the cells, Chris asked Mr Ferret about his qualifications. He was, Mr Ferret, explained, one of two newly-qualified employees at a firm financially-fisted by the 17.5% cuts to criminal legal aid. Oh well, Chris reassured himself, I’m sure it’s fine. After all, we have the most generous legal aid system in Europe. Only the highest calibre of lawyer would pour their souls into criminal litigation. “Are you trained in crime?”, Chris asked. “Not really,” admitted Mr Ferret. “But don’t worry – my lack of training allows me to be completely impartial when I’m representing you and making decisions related to criminal justice.” Chris nodded. He understood completely.
Chris’ trial didn’t go as hoped. He heard about the result from his cellmate, who was one of the prisoners who hadn’t been missed off the list by G4S and so had been taken to court. The magistrates, unimpressed by Chris’ failure to attend, and mindful of the importance of expediting justice, tried Chris in his absence, and duly convicted him. His sentence had been adjourned for six weeks, Mr Ferret mistakenly believing Chris required a psychiatric report before being sentenced. In the end, no psychiatrist would agree to work at the new legal aid rates, so it was a fool’s errand, albeit one that required a further three-week adjournment for the Probation Service to prepare a Pre-Sentence Report. When the matter came back to court, there was regrettably no report available, due to further I.T. problems caused by Chris’ privatisation of the Probation Service, so yet another three-week adjournment was needed. When the Probation Service did eventually attend on Chris at HMP Spartan, they were told, erroneously, by the prison officers that Chris had refused to come out of his cell. Gosh, Chris chuckled to himself, this is getting silly! Encore une adjournment! When Chris eventually appeared at court for an effective sentence hearing, Pre-Sentence Report at the ready, his co-defendant Pedro found himself absent an interpreter – Capita having again failed to send one. Lordy, Chris grinned. Who on earth would give such an important contract to those silly billies? Finally, 8 months after his first appearance, having served the equivalent of a 16-month prison sentence, far in excess of what he would ever get for shoplifting, Chris could be sentenced. Despite the CPS prosecutor, Mr Ferret and magistrates spectacularly misapplying the Sentencing Guidelines, the sentence passed meant that Chris would be released immediately. Just the matter of the mandatory Criminal Courts Charge, the magistrate added. “That will be £720 for a summary trial, Mr Ferret. How does your client offer to pay that?” Chris tugged at Mr Ferret’s sleeve – “Surely they know I’m homeless, penniless and have been inside for 8 months?” “We hear you, Mr Grayling”, said the magistrate sympathetically. “But the law you introduced tells us that we cannot take your means into account.” Chris nodded. It’s only right, after all, that those who use our criminal courts should pay towards the cost of running them, reducing the burden on taxpayers. “You have to pay,” the magistrate continued, “and, if we think you’re wilfully failing to pay, you know what will follow…”. Christ, thought Chris. I hope if I do find myself before the enforcement court for non-payment that there won’t have been a sudden exodus of all the good-hearted magistrates.
Prison was not, Chris reflected, what he had expected. He had become a bit peeved at certain things – for example the way that, when prison officers wrongly accused him of disciplinary offences, he was no longer entitled to legal aid for the adjudication – even though an adverse finding could see his sentence extended. The regular suicide attempts were also a downer, although, he noted, certainly not a crisis. He would also have appreciated a bit less time in his cell and a bit more time learning a trade. If he was being extra picky, he wouldn’t have minded something new to read, either. Still, Spartan is as Spartan does, he told himself. Chris’ cellmate, Bazza, was something of a prison lawyer, and, having heard how the enforcement court dealt with Chris’ failure to pay the Criminal Courts Charge, suggested that Chris consider challenging the lawfulness of the charge by way of Judicial Review. No no no, Chris shook his head. Judicial Review is simply a promotional tool for left-wing campaigners. Well alternatively, Bazza opined, it strikes me that there may be a human rights point here. It’s got to be a breach of your Article 5 right to liberty to be locked up for not paying something you can’t pay, surely? Chris sighed – Bazza was well-meaning, but deeply unworldly. “The Human Rights Act is being repealed, Bazza, and rightly so. All it’s good for is allowing illegal immigrants to look after their cats.”
“Cheers!” Chris and Pedro clinked their tins of special brew. “And look how far we’ve come!” Chris surveyed the yellowed walls of their hostel room, momentarily ruminating on the changes he’d make to the decor with an expenses account, but dismissing such thinking as ungrateful. He had his freedom, he had a (temporary) roof over his head, and all that unpleasantness with the law was far behind him. He felt fully vindicated, the Crown Court having allowed an out-of-time appeal against his conviction upon Mr Ferret examining the unused material in the case and finding CCTV footage casting doubt over whether Chris was involved with the shoplifting. It was a shame, Chris thought, that, in spite of that, I’m not able to claim a penny for being wrongfully imprisoned for a total of 12 months, but still. Could be worse. Could be in Saudi Arabia! Lord knows we could teach them a thing or two about justice. Anyway, freedom is what counts. The world, he told himself, is my oyster. As he rolled off the bottom bunk and padded towards the sink, there was a rat-a-tat-tat at the door.
“Morning, Mr Grayling”.
“Good morning, constable”.
“Would you mind coming with us, please? We’ve just had a visit from this decorator…”
Since the reported RAF drone strike on organic Islamic State export Reyaad Khan in Syria last month, there is a certain fascination in beholding the alacrity with which various media outlets have manned their respective positions on the morality of the killing, each bolstering their post with an assurance that the attack was completely lawful/monstrously illegal as respectively befits their moral assessment.
Those seeping queasiness at the notion of secret state-sanctioned slaughter are fortunate enough to have landed on an analysis that the government’s actions were not only immoral but unlawful, whilst those who think the quisling guttersnipe, to quote from the Mail, “got what he deserved”, are confident that, fortuitously, his evisceration is endorsed as pre-emptive self-defence under Article 51 of the UN Charter.
Notably, there were few tabloid editorials contemplating whether the killing might have been moral but unlawful. The Sun’s front-page splash (“Wham! Bam! Thank you Cam!”) was not accompanied by a sober leading article inviting its readers to meditate on the proportionality or necessity of lethal force.
And so, again, we are treated to a (unwitting) media re-enactment of the great jurisprudential scrap between natural law and positivism, as the doctrine of self-defence, lovingly honed in common law before being codified in section 76 of the Criminal Justice and Immigration Act 2008, is redefined for public approval as the doctrine of “the b*stard had it coming”.
Reyaad Khan is but the latest in a production line of tabloid-friendly newsbites where the doctrine of TBHIC is applied by extra-judicial tabloid overlords to bypass any thoughtful consideration of the legal position. When Jeremy Corbyn is recorded describing the failure to put Osama Bin Laden through the judicial process as a “tragedy”, the spluttering protestations are channelled through a megaphone into a one-note honk – TBHIC. John Prescott “subdues” an egg-wielding civilian by charging into a crowd to punch him and he’s clasped to the pop culture bosom as a cult hero. Why? TEgg-ThrowingBHIC.
What is depressing is that this unwillingness to distinguish between law and morality not only gnaws at the fabric of public rationality, but makes my everyday slog in court that much harder.
Rare, and adored, is the client who instructs: “I’m glad I whacked him, he fully deserved it, it felt magnificent but I accept that there is no basis in law for what I did and will plead guilty accordingly. Will I get my knuckleduster back?” Instead, when self-defence springs up in the police interview, the defence hack steels themselves for a client who maintains that jumping on the prostrate complainant’s head until he lost consciousness represented reasonable self-defence.
Because, taking their cue from popular culture, they are unable to reconcile the dissonance between the moral certainty that the complainant deserved a thrashing and the legal prescription that self-defence be subjectively necessary and objectively reasonable. Hence the disproportionate number of cases involving assaults in bars where the defence are instructed, contrary to the conclusive CCTV footage, to plead pre-emptive self-defence, where the truth is that the thrashee spilled the defendant’s Stella or looked at his missus, and the defendant is internally applying the TBHIC doctrine.
For an optimistic pleading of pre-emptive self-defence, I must take off my wig to the defendant of whom I once asked in cross-examination: “So your case is that the blind man on crutches was about to hit you first?” His response – “You don’t know what he’s been like” – closed my case for me. His counsel told me afterwards that the defendant was no different in conference. He genuinely believed, because of the history between the parties, that pummelling a blind man to the ground while his seven year-old child looked on and sobbed was justifiable as lawful self-defence.
Being grateful, as the Criminal Bar must, for any small mercies, it is at least rare that such defendants indulge in publicly glorifying the bloodshed post-facto, as per the inimitable style of The Sun. It would take a closing speech from the archives of Rumpole to rescue the defence case where the client opened his examination-in-chief by swivelling to the jury, shouting “Wham! Bam!” and delivering a 300-word diatribe on how much better the world is now that old Mrs Peterson has had her nose bashed in. The jury might be inclined to conclude, upon proper legal direction, that this falls somewhat short of lawful self-defence. Even if she did have it coming.
This article was first published in Solicitors Journal
When I was a baby barrister, one particular instructing solicitor used to send me his most unappealing, horrible clients on the basis that, in his words, “You look like a child, and judges will find it harder to slam my clients with your little babyface peeking up at them”.
At the time I accepted the backhanded compliment with good grace, grateful that a solicitor had found a reason, however damaging to my fragile pupil self-esteem, to send me work. I smiled politely, went home and, having dabbed my tears, resolved to grow the biggest moustache known to man.
I now know I was wrong.
What I should have done is tell him that his behaviour was unacceptable and ageist, and, having done so, publish his comments and my satisfied, self-righteous reply across social media for his professional colleagues, clients and family to enjoy.
For that, we learn today, is how 27 year-old barrister Charlotte Proudman dealt with a hamfisted compliment directed towards her appearance by a solicitor with whom she had connected on LinkedIn. The full story is here, but the offending dialogue reads thus:
This exchange was posted by Ms Proudman to Twitter, where, as she no doubt intended, it swiftly became viral. In a public statement released by the solicitor earlier, he said:
“Most people post pretty unprofessional pictures on LinkedIn, my comment was aimed at the professional quality of the presentation on LinkedIn which was unfortunately misinterpreted.
‘Ms Proudman is clearly highly respected and I was pleased to receive her request to linkup and very happy to instruct her on matters which [are] relevant to her expertise, that remains the position.”
The final word goes to the claimant, who, she tells the Evening Standard, seeks a public apology and has complained not only to the CEO of the solicitor’s firm but the Solicitors Regulation Authority:
“She said: “It’s very disappointing, there are serious professional misconduct issues, as a legal professional he is required to uphold the law, and that includes the Sex Discrimination Act and the Equality Act. I felt as though it was an attack really, that’s what sexism is.”
Now. It is plain that this was a pretty silly message for the solicitor to have sent. His public statement simply compounds his embarrassment, about as convincing a cover as donning glasses and fake moustache. If he was genuinely referring to the craftsmanship of the photograph, he would clearly not have prefaced it with an admission that his comments were “horrendously politically incorrect”. Professionalism – in fact normal standards of civilised behaviour – would dictate that you refrain from passing comment on a stranger’s physical appearance.
But “serious misconduct”? An “attack”? A breach of the “Sex Discrimination Act and the Equality Act”? (N.B. The Sex Discrimination Act was in fact repealed by the Equality Act 2010, as one might hope a lawyer pleading a claim would check). Was this approach, however ill-advised, a misdemeanour that requires not only the Twitter dogs of war but professional regulatory bodies to be let slip? Does it warrant – as could now follow – the extinguishing of an entire career?
The comment may well, depending on one’s personal political standpoint, qualify as sexist. It’s a comment that he may not have made to a man, and the application of double standards is a fairly decent litmus for -isms. By the same token, one wonders if, by unnecessarily invoking the solicitor’s age in her reply, Ms Proudman is herself teetering towards a counter-allegation of ageism. Presumably a sexist comment is sexist regardless of the age of its maker, and by pejoratively incorporating age into her response, Ms Proudman provokes the question of whether her disgust was motivated in part by this man’s advanced years.
But accepting that this was, and I think it cannot sensibly be put higher than this, a sexist comment made with no ill-will, Ms Proudman had other options. She could have responded by simply ignoring this clumsy attempt at flattery. Or by just replying to him firmly, without sunning herself in the glow of self-publicity that she would have known would flow from publicly humiliating a senior partner in a large firm.
Because, mounting my equal opportunities podium, this is not just about the possible ruination of a man’s career, but about a broader, important point concerning the sexism that still pervades the legal profession, not least the Bar. While the Bar is better than it was, everyday sexism oozes out of certain tiers. The Head of Chambers’ hands on the pupil’s waist at chambers Christmas parties, indiscreetly sliding down. The robing room badinage voting on “the fittest juror” in a trial. The senior clerk who pushes a juicy brief a man’s way ahead of a female contemporary because, well sir, you know how she can get, LOLZ. The female practitioner on the pupillage recruitment panel voting against a 29 year-old applicant as a “fucking baby bomb waiting to go off”. The lack of female representation among the senior judiciary. There is no better deflection from these serious, ingrained problems than the “hysterical feminist” trope. And in acting as she has, Ms Proudman has handed a propaganda scoop to those, in law and outside, who falsely proclaim the end of sexism and chide the redundancy of feminism.
This is not pointless “whataboutery”. It is acknowledging the problem, but reflecting on how best to tackle it. Do you raise hell over the inconsequential at the risk of giving your opponent an opportunity to deflect from the genuine issue? Or do you deal with such minor slights in a considered, discreet fashion that keeps your powder dry for the battles worth fighting?
The art of good advocacy is judgement. Knowing when to take a point, and how to present it to best assist your cause. Charlotte Proudman has demonstrated, to a captive national audience of potential instructing solicitors, that this, perhaps, is not her forte.
The naysayers have been saying nay since long before I came to the criminal Bar. This is a dying industry, the wide-eyed prospective criminal practitioner is told. You’ll be squeaking into a criminal justice system that would be fraying at the seams, had the seams not been privatised and sold at bargain-basement prices to G4S and Capita. There’s no money for the police, for the Crown Prosecution Service, for defence solicitors or for the courts, and even less for barristers. What little money exists is spunked on a vicious circle of failed I.T. procurement and on locking up pathetic unfortunates for whom prison offers nil rehabilitative or deterrent benefit. The court infrastructure is stuck in the 1970s, you can make more money from betting that any given case will find itself adjourned due to the CPS having not served evidence than you can from actually practising law, and you can guarantee that most participants (or “stakeholders”, as we now must call them) leave the criminal justice system feeling that anything other than justice has been served.
To which I would say to my future pupil – it’s not that bad.
The criminal justice system barely hangs together. Most days, it is a thread away from disintegrating completely. If the criminal justice system were the NHS, it would never be off the front pages. Political parties would be clamouring to drape themselves in Magna Carta-embossed flags and declare themselves as the One True Protector of the Faith, castigating the constitutional vandalism of those on the opposite benches.
Serious criminal cases collapse on a daily basis because of eminently avoidable failings by the prosecuting authorities. Provably guilty people walk free. Simple, obvious, easily-obtainable evidence is simply not gathered – or where it is gathered, is not served, gathering dust on the hot-desk of a CPS caseworker juggling a three-figure caseload. More complex, costly evidence is not obtained due to expense. Sensible offers by defendants to resolve cases are rejected by Crown Prosecutors obsequious to their precious “statistics”. And victims of crime see their oppressors walk free.
On the other side of the divide, the accused find themselves waiting years for a trial, told their cases are “adjourned for lack of court time” for a third, fourth or fifth time, notwithstanding the brand new courtroom, built at significant public expense, sitting empty down the corridor due to slashed court budgets. Or they wait until the day of trial, or perhaps for eternity, for the indolent prosecution to disclose material information that fatally undermines the prosecution case. They find themselves represented by solicitors who can only devote a fraction of the required time to their case, due to the need to stack cheap cases high to remain financially solvent. Or, increasingly common, defendants are excluded from publicly-funded representation altogether, forced to scrape together savings or loans to meet legal aid “contributions” or private legal fees, failing which they represent themselves in DIY proceedings in which the endgame is a prison sentence. And people who are not guilty find themselves in prison.
It shouldn’t be like this.
Our system is on occasion brilliant. It can be devastating, fascinating, grotesque and glorious. It is served by some of the most magnificent, intelligent and compassionate devotees to justice and public service, and simultaneously infested by the most malign of self-interested parasites. The daily realities witnessed by the criminal barrister betray these eternal dichotomies. A justice system that could be – should be – so treasured by the public is lain to waste by governments seeking an easy cut, ignored by those fortunate enough to evade its reach, and suffered by the few – defendants, victims, witnesses – for whom the vagaries of fate lead to the courtroom door.
This blog aims, in its own insignificant, inconsequential way, through anecdote and polemic, to shine a little light on what goes on behind that door.