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.

 

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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.

What else was Byron Burger supposed to do?

So, here’s an unpopular opinion to release into the world:

I don’t see what Byron is supposed to have done wrong.

The gourmet burger chain – previously thrust into the media spotlight as George Osborne’s late-night indulgence of choice – has enjoyed 24 hours of social media’s most vitriolic virtue signalling after 35 of its migrant workers were found to lack the right to work, having, it appears, secured employment through the use of falsified identity documents.

The circumstances in which this came to light are unclear, but in any event Byron cooperated with the Home Office, and consequently the workers were, on 4 July this year, arrested and detained. Some have subsequently apparently been deported.

Not a Byron burger

Not a Byron burger

The exact circumstances have not been confirmed, but a number of outlets have suggested that Byron hand-delivered their workers to the relevant enforcement and prosecutorial authorities by organising a “training day” at which, instead of PowerPoint slides of Double Bacon Cheeses and courgette fries, they were greeted by immigration officials. Byron has released a statement as follows:

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But as with all such modern tales, we are beyond truth. What matters, the narrative splutters, is that the big mean corporate baddie collaborated with the feds and sold out its poor, exploited workforce, some of whom had devoted years of faultless service, in what must only be characterised as an act proximate to a hate crime, and must be duly sanctioned in the court of public opinion, boycotted by all right thinking people, its CEO dragged naked through the streets of Shoreditch smeared in burger sauce and pickle juice.

Piling in with the rallying cry of the intellectually dispossessed, deputy leader of the Greens, Amelia Womack, opined that “the bosses at Byron should be utterly ashamed of themselves for turning these people’s lives upside down”.

To which I, as an inhabitant of those rather less excitable courts of law, would respectfully say this:

Your outrage is mystifying. Or, at best, utterly misdirected.

Byron, like any employer – nay, like any company or individual based in this country – is required to comply with the law. It hurts to start with such a facile point, but needs, it appears, must.

And the law says at least two rather important things in this context. Firstly, that it is a criminal offence – punishable by an unlimited fine and up to 5 years in prison – for a person or a company employing someone knowing or having reasonable cause to believe that the employee is disqualified from employment by reason of their immigration status. That’s not Byron’s company handbook talking – that’s sections 21 and 22 of the Immigration, Asylum and Nationality Act 2006, as enacted by our democratically elected Parliament. If you find out that you have accidentally employed someone without the right to work, and you continue to employ them, you are committing a crime.

Also the position, with reference I’m afraid to that same unfashionable commitment to “the rule of law”, is this: those workers, if employed on the basis of fraudulent identification documents, may have committed criminal offences contrary to section 4 of the Identity Documents Act 2010. And that’s before you throw in the Fraud Act 2006 for good measure.

Now there may be an explanation. This could be a misunderstanding. Some documents may in fact be genuine. Or it may be that these workers, like many clients I have represented, will say that they themselves were hoodwinked by chancers in their home countries who sold them what they believed to be a genuine “right to work” package. In which case every sympathy must be extended to them. But the fault for that state of affairs is not Byron’s.

There may, of course, be an alternative narrative that has plainly escaped those who say, with a straight face, that Byron should have simply tipped off their workforce and let them loose into the night, rather than dob them in to the pigs. Putting aside that those Byron managers who did so would potentially find themselves before a Crown Court for perverting the course of justice, this bold suggestion starts with an enormous, unforgivable assumption about the history of the people concerned. Many undocumented migrants arrive on our shores as a result of human trafficking and exploitation. Where they are packed, twelve, thirteen, twenty to a bedroom in a small terraced house by their unscrupulous, violent gangster sponsors, who take each week’s wages as protection money and exploit them physically, financially and sexually every single day.

None of us has a clue whether that applies to any of those workers. But – and I sound my “unpopular defence of immigration laws” warning klaxon – that is one of the mischiefs that immigration laws, and the requiring of documentation and the right to remain and work, are designed to combat. That’s not a fig leaf – that is fact. I have defended and prosecuted enough of these tragic cases to tell you with authority that there are a good many people whose lives have been saved by immigration enforcement officials. And one or more of those could have been among the Byron workers.

But, and this is really the point – we just don’t know. Any or none of the above might apply. All we know is that Byron were informed of circumstances which caused them to believe that they, and their workforce, were at risk of having committed a criminal offence. And they cooperated with the authorities. The only alternatives, of turning a blind eye, or of sending the workers out into the world with a nod and a wink, may have satisfied the appetites of the Twitter hordes unaware of and unwilling to acquaint themselves with law or reason, but the reality is that in so doing Byron would have been passing the problem on to the next employer to be defrauded and exposed to prosecution, or, even worse, releasing vulnerable, exploited human beings back into the grasping hands of those who would do them harm. As well as, of course, exposing Byron and its lawful employees to risk of prosecution and, ultimately, imprisonment.

This is not to defend the principle of immigration controls. You want to campaign for global freedom of movement under the banner that “people aren’t illegal”? Sounds good to me. But we have rules that have been enacted by Parliament. And if you don’t like those rules, your recourse is the democratic process. Not ill-thought-out hate campaigns and playground chants of “tattle tale” against people or companies who, far from “making people illegal”, are simply obeying the law.

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UPDATE: Matters have progressed since this post was first published. There have been vigilante acts of vandalism, threats and abuse directed towards Byron for their perceived complicity in enforcing inhumane immigration law, but as yet I have not heard a single sensible explanation for the rage. I would recommend the comments below (in particular Oliver’s), and summarise the position as I see it:

1. Byron employed workers who were unlawfully working. That is agreed. The Home Office’s position is that Byron were duped by false identification documents when they conducted the checks required by law when employing a person. I can tell you from professional experience that fake ID documents can nowadays be of very high quality. It is easy to get a NI number with these documents, and there is nothing unusual about tax and NI having been paid on their behalf. It happens in most cases I see. If Byron hadn’t checked properly, or if they were obviously fakes, it is to me implausible that the Home Office would not make an example of them by prosecuting.

2. All we know of the circumstances of the Home Office becoming involved is what Byron and the Home Office have said, namely that it was the HO who contacted Byron first. Legally, therefore, Byron’s options were immediately singular. From that first point, Byron was under a legal obligation to cooperate. It had to supply its workers’ documents, and, when the documents were confirmed as fake, from that point onwards a criminal investigation was in effect active. If Byron had at any point tipped off the workers as to HO suspicions, the individual doing the tipping off would be liable to prosecution for perverting the course of justice, or at best assisting an offender. Any non-cooperation with what was not only an immigration but also a criminal matter risked not only Byron’s commercial reputation, but the liberty of the managers or staff who obstructed the investigation.

3. The “above and beyond” argument. By trapping the workers in the way reported, Byron acted as an executive arm of the state. They didn’t need to. They could have told the Home Office that they were not willing to facilitate the peaceful apprehending of their workers. This is the common refrain. And yes, they could have done. But to what effect? To do so would have been to invite a  raid, unpleasant and disorderly for all staff and customers, to the same ultimate effect. It’s not as if Byron could have tipped off the workers, as per 2 above. One perspective is “above and beyond”. The other is “agreeing to the most peaceful resolution of the inevitable”.

4. The only interpretation of events that justifies anger, that I can see is this: Byron deliberately hired illegal workers and shopped them in as part of a Faustian pact with the HO to avoid prosecution. This would be outrageous. But there is simply no evidence that this is the case. I would suggest that this theory appears odd on all counts – why would Byron risk prosecution by knowingly hiring unlawful workers at market rate? Why would the HO pass up the deterrent benefits of prosecuting a well-known employer for the sake of catching 35 people? – but even if plausible, there is no evidence. By all means, people can question and investigate and report their findings. But there is no safe or rational basis for concluding, as many seemingly have, that this is what has happened.

5. Anyone calling for Byron to defy an unjust law in order to take a “principled stand” against the (very real) injustices concerning immigration laws and the treatment of detainees, is calling not just for a rich company to risk a fine, but for actual people – shift managers, waiting staff – to risk prison. That is what your call amounts to. And if you feel so strongly that immigration laws call for this sort of self-sacrifice and courage, you should go do it yourself, rather than volunteer low-waged migrant proxies to take that risk for you. And it is certainly inexplicable to throw cockroaches at people when they don’t.

The new Justice Secretary – does it matter that she’s not a lawyer?

So, as anticipated, our new Prime Minister has favoured punishing disloyalty over rewarding competence and sent Mr Gove and his ambitious, compassionate prison reforms to the naughty back benches. This morning has brought a transfer-deadline-day-style frenzy to Legal Twitter, anticipation and trepidation converging as rumours and supposition threw up name after name as possible new Secretary of State for Justice and Lord Chancellor. All it needed was Theresa May leaning out of her Range Rover window teasing Sky Sports with a, “Well, we’ve got a little bit goin’ on ‘ere and there, but who knows?”

Theresa May

Theresa May

Stretching the analogy, perhaps the biggest disappointment is that established incompetent and gold-plated tit Mr Grayling didn’t get to play the role of Peter Odemwingie, driving 300 miles all pumped up with a misplaced certainty of being hired only to be cruelly turned away at the door. But he has not been let back near the levers of justice, and for that, at least, we must all be grateful, although anyone reliant on a functioning public transport system should probably prepare for 4 years of taxi rides.

So not Grayling. Nor, to the despair of several (including me), the lawyers’ favoured choice of Dominic Grieve Q.C., a serious heavyweight silk whose defenestration as Attorney General ranks among David Cameron’s most petty, stupid decisions. Anna Soubry, who has recently practised as a criminal barrister, would also, I’ve suggested, make a fine Justice Secretary, having the advantage over her three predecessors of actually having seen the inside of a criminal court in the past decade. But again, love unrequited.

Instead, Mrs May has opted for Liz Truss, an MP of six years with a background in management accountancy and particular political interests in education and free enterprise. She has no legal training, nor has she any ministerial experience in the Ministry of Justice, having instead hopped from junior minister at Education to Secretary of State for Environment, Food and Rural Affairs. It is right to note that from March 2011 to September 2012, she was a member of the Justice Select Committee, although Philip Davies‘ continued presence confirms that membership is no proof of intelligence, reason or compassion, the three qualities  required above all in the most underestimated and undervalued cabinet role.

My instinctive reaction to Ms Truss’ appointment, therefore, was one, to put it politely, of disillusionment, as, for a third successive time, the historic office of Lord High Chancellor of Great Britain, charged with upholding the independence of the judiciary and ensuring the provision of resources for the efficient and effective support of the courts, has been entrusted to a politician who has, to my knowledge, no experience of the courts or judiciary in action. Similarly, when one considers the brief for the concurrent role of Secretary of State for Justice, there is little among Ms Truss’ contributions in the House of Commons to suggest a zeal for prison reform or court modernisation. Indeed, as Twitter has been quick to point out, her most outspoken contribution on the subject of justice appears to be when she proudly announced that the milk in UK prisons would henceforth all be British, returning to a theme the subject of which inspired a performance which some cruel trolls suggested did not augur well for her advocacy skills.

But, having had the day to reflect, is that fair? Why does it matter that Ms Truss is not a lawyer? Does it matter?

A brief history lesson, if I may. Lord Chancellor was, until the passage of the Constitutional Reform Act 2005, a multi-faceted office starting out in medieval times as secretary to the King, and gradually accumulating a weird and wonderful collection of executive, judicial, ecclesiastical and Parliamentary functions. By 2003, the Lord Chancellor’s duties included being head of the judiciary, in which capacity he attended Cabinet, being responsible for appointing judges, acting as effective Speaker in the House of Lords, and having responsibility for criminal legal aid. In the case of Lord Irvine, he also sat as a judge in the judicial House of Lords. Appointment to the role was therefore considered the pinnacle of a distinguished legal career, rather than the preserve of ambitious politicians. (see Gee, G. What are Lord Chancellors for? [2014] Public Law 11).

While there were plainly benefits to having the independence and interests of the judiciary upheld and represented in government, you have possibly spotted the rather startling contravention of the separation of powers inherent in the Lord Chancellor’s office, allowing him to sashay between sitting as a judge, attending cabinet and holding sway in the House of Lords. And so in 2003, the government abolished the Lord Chancellor’s department and installed the LC in the newly-created Department of Constitutional Affairs, with the intention of abolishing the post of LC altogether. Due to Mr Blair having uncharacteristically taken this decision without any consultation whatsoever, people got quite cross and various committees were set up to consider the various constitutional implications. The denouement was the Constitutional Reform Act 2005, whereby the LC’s responsibilities as head of the judiciary and House of Lords speaker were stripped and transferred to others, and the power to appoint judges was diluted by the establishment of a Judicial Appointments Commission. In 2007, the Ministry of Justice was created, with responsibility for prisons and other bits that the Home Office were keen to get rid of, and the role of Lord Chancellor was thereafter conjoined with Secretary of State for Justice.

Up until 2012, the role continued to be performed by senior, experienced lawyers. However the removal of the judicial function meant that, technically, legal knowledge was no longer strictly a requirement. Rather, section 2 of the Constitutional Reform Act 2005 merely requires that the Lord Chancellor be “qualified by experience”, defined as follows:

2 Lord Chancellor to be qualified by experience

(1) A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

(2) The Prime Minister may take into account any of these-

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.

(3) In this section “qualifying practitioner” means any of these-

(a) a person who has a Senior Courts qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b) an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary;

(c) a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland

So, strictly speaking, the Prime Minister “may” take into account the above, but also may not. S/he may in fact choose to appoint a block of stilton wearing a fez or, to even lesser benefit, Chris Grayling MP, the first non-lawyer in post since the 1600s. And this is where the problems began, because Mr Grayling was, and I’m sure remains, an ambitious man. He is no lawyer, no jurist and no philosopher – he is very much the epitome of a career politician, who has bounced from portfolio to portfolio, having his knuckles rapped for untruthfulness and incompetence at almost every turn, and upon entering office, saw an opportunity to assume the role of renegade outsider boldly taking on the vested interests of the legal system. He slashed legal aid like nobody’s business – aided by entirely dishonest campaigns against publicly-funded lawyers – splurged public funds on defending his unlawful policies in court, and in so doing exposed the irreconcilable tension between his self-image as an Osborne-pleasing austerity advocate and his Lord Chancellor’s oath to ensure the provision of resources for the efficient and effective support of the courts.

It was against this background that in 2014, the  House of Lords considered whether a grounding in law ought to be a prerequisite to the role. The House of Lords Constitution Committee concluded that, while it was not strictly necessary for the Lord Chancellor/Justice Secretary to be legally qualified, it would plainly be “a distinct advantage” for them to be so, and recommended that the government ensure that at least the permanent secretary at the Ministry of Justice be legally qualified. In a giant slap to the face to Grayling, whose policies were routinely held in judicial reviews to be unlawful – and whose solution to this problem was, rather than just acting lawfully, to try to stop the use of judicial reviews – the Lords further recommended that the Ministerial Code and Lord Chancellor’s oath be amended to remind all of the Lord Chancellor’s duty to uphold the rule of law. The government pretty much laughed in the face of the report, and here we are today.

And if that’s where the story ended, I’d unhesitatingly conclude that the experiment with a lay Lord Chancellor had been tested to destruction. But then enter Michael Gove. Also a non-lawyer, but one who from the outset made clear that he was not merely seeking to mend bridges where Grayling had burned them, but to learn, respect and embrace the constitutional and societal gravitas of his twin roles. He stopped picking fights with professionals. He seized upon prisons – simply concrete punishment cubes to his predecessor – and resolved that their overdue reform, and the transformation of the prospects of those within, would be his legacy. He overturned policy after regressive policy – from book bans to the Criminal Courts Charge – set down by Grayling.  He was by no means perfect – his failure to properly reform legal aid or employment tribunal fees stand as but two examples of enormous flashpoints that his early departure has allowed him to evade. But I, at least, while not agreeing always with everything he said or did, allowed myself to believe that he recognised his lack of firsthand knowledge of his new subject area, and rather than, as did Grayling, trumpeting his ignorance, listened carefully to professionals (experts, eh?) and treated his office not as a rung to better things, but as the career zenith it was for Lord Chancellors of yesteryear. As if it was – and indeed, it may transpire to be – his last, defining contribution to public life.

So 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.

One final, tangential observation – Ms Truss has already in Parliament fallen for the myth of the “most expensive criminal justice system in the world”. I would respectfully recommend that, if she wants to get off to the best possible start, educating herself as to the reality, and resolving to act upon it, would be among the best things she could do.

What would happen to Brock Turner in an English criminal court?

On 18 January 2015, Brock Allen Turner committed a series of serious sexual assaults against an unconscious woman on an American university campus. Two graduate students at Stanford University saw the 20-year old Turner lying on top of the motionless victim behind a dumpster. Her underwear and bra had been partially removed, and Turner was thrusting on top of her unresponsive body until disturbed by the grad students. When interrupted, Turner immediately ran from the scene, only to be fortuitously apprehended by the Good Samaritans. The police were called, and found the victim to be completely unresponsive and heavily intoxicated. When she awoke three hours later, she told police she had no memory of what had happened. Turner admitted “fingering” the victim’s vagina, but insisted that, although drunk, she was fully consenting.

In March of this year, Turner was unanimously convicted by a jury of  three felonies – assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object.

What followed has been internationally dispersed through news organisations and a livid social media commentariat. Because, on 2 June 2016, the now-21 year old Brock Turner was sentenced by Judge Aaron Persky for offences tantamount to attempted rape, to 6 months’ imprisonment in a county jail with probation.

Due to, Judge Perksy said, Mr Turner’s youth, his positive character references and the impact that prison would have on him, he would follow the Probation Officer’s recommendation and impose 6 months in a county jail. Of which, it is reported, Turner will (as would be the case here) serve half before being released.

3 months for the attempted rape of an unconscious human being.

Brock Turner

Brock Turner

The reaction has been audible across the Atlantic. We have seen published in full the haunting victim impact statement, searing unabridged, unapologetic primal human pain indelibly into the reader’s – and one can only hope Turner’s –  consciousness, its honesty and fluency justifying every one of its 7,000 words (and I speak as someone who has read many victim impact statements, to the point, I had thought, of becoming inured). We were then treated to the gawking lack of self-awareness, nay basic humanity, demonstrated by Mr Turner’s father – and, as released on Monday, his mother – writing pleas for clemency to the sentencing judge which hovered on the fringes of crassness, before filling the tank with a gallon of denial, hitting the accelerator and ploughing remorselessly into ugly victim-blaming. Why punish my son, Turner Senior innocently enquired, for “twenty minutes of action”? The fact, repeated ad nauseum in the character references and led in the opening stanza of every media report, that Turner was an accomplished swimmer from an apple pie family, appeared to vindicate long-held suspicions that judicial attitudes towards sentencing turn all too often on from which side of the tracks a defendant hails.

The case has been raised in the House of Representatives, where Republican Congressman Ted Poe has said:

“This judge got it wrong. There’s an archaic philosophy in some courts that sin ain’t sin as long as good folk do it. In this case, the court and the defendant’s father wanted a pass for the rapist because he was a big-shot swimmer. The judge should be removed.”

And, before long, 1.2 million people worldwide had signed a change.org petition to impeach the judge (not to recall him, as has been widely reported), and it is reported that he has since, appallingly, received death threats.

Publicly, the sentiment appears to be leaning one way. In legal circles, however, consensus crumbles. The Santa Clara County District Attorney’s office condemned the sentence, complaining, “The punishment does not fit the crime”, and bemoaning its impotence to challenge the sentence. By contrast, a representative from the Santa Clara County Public Defender’s Office published this defence online, applauding the Judge for his “holistic sentencing exercise” which prioritised rehabilitation over conforming to America’s “culture of mass incarceration”, and praising the judicial exercise of “discretion and mercy”.

Writing as an English lawyer with no formal training in California State Law, or U.S. Federal Law, my view on Judge Persky’s application of the law carries no authority. The (astonishing) lack of official data collated on California criminal sentencing prevents me from even assessing whether statistically this represents a major outlier.

But what I can offer, by way of (perhaps) interesting contrast, is a consideration of what would have happened to Brock Turner in an English court, had he been convicted of our equivalent offences. Could the same thing happen over here?

 

The offences

Turner faced sentence for three felonies (serious offences) – reported as assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object and sexually penetrating an unconscious person with a foreign object, carrying, it is said, a maximums sentence of 14 years’ imprisonment. The “foreign object” is not specified in any reports that I could find, and the police report and felony complaint (the equivalent to a Crown Court indictment setting out the charges) make no reference to penetration with an object other than the defendant’s fingers, so for these purposes I shall assume that the penetration was digital. Our law doesn’t distinguish, for charging purposes, between a conscious or unconscious complainant, and so, both penetrative acts would likely be charged as assault by penetration, contrary to section 2 of the Sexual Offences Act 2003, which carries a maximum sentence of life imprisonment. It is possible that repeated acts of digital penetration, committed initially while the complainant was conscious but incapable of consenting and continued once she had lost consciousness (as I interpret the charges to represent), would be charged here under a single count to represent the whole activity. (Either way, as below, it will make little difference to sentence).

As to “assault with intent to commit rape”, the act of removing a person’s underwear and thrusting on top of them while they are passed out would probably be charged as attempted rape (contrary to section 1(1) of the Criminal Attempts Act 1981), also carrying a maximum of life imprisonment.

Further details of the case, not widely reported, can be found in the original police report here. These have to be taken with caution, as initial police reports invariably reflect the preliminary view of the police officer author(s) rather than an objective assessment of the evidence that is before a jury at trial. But the report is nevertheless instructive.

 

The Sentencing Exercise

The court in Turner’s case was not required to follow any formal sentencing guidelines (save for the mandatory sentence that was waived, see below). By contrast, in the Crown Court judges are required, by section 125(1) of the Coroners and Justice Act 2009 to follow any “relevant sentencing guideline”. A number of such guidelines have been published by the Sentencing Council (formerly the Sentencing Guidelines Council), including the Sexual Offences Definitive Guideline. The operation of these guidelines is designed to be simple, although rarely is in practice. The principle is to assess the seriousness of the offence by reference to harm caused and the defendant’s culpability, and then to reflect the features that aggravate or mitigate the position. Thus, on the guidelines, one feeds the facts of the case into the given matrix to arrive at a category for “harm” and a category for “culpability”, which combined gives you a “category range” and a “starting point”. The Judge can then move the starting point up or down within  (or, exceptionally, outside) the range to reflect the aggravating and mitigating features of the offence as specified.

Where sentencing for multiple offences, judges are required to have regard to the principle of “totality” – i.e. to pass a proportionate sentence that reflects the whole of the offending, rather than simply aggregating individual sentences for each offence. Therefore, in a case like this, where all of the offences arose out of the same incident, the court would usually pass a higher sentence on the “lead” (most serious) offence, uplifted to reflect the other offences, and pass concurrent sentences on those other offences.

So, what’s Brock Turner looking at?

For assault by penetration, this to me looks like a Category 2 case for harm, due to the judge’s finding that the victim was particularly vulnerable due to her incapacitation. For culpability, none of the factors in Category A appear to apply, so giving Turner the benefit of the doubt he would fall within Category 2B. This provides a starting point, for a single offence, of 6 years’ imprisonment after a trial (which, incidentally, is what the prosecutor in California recommended), with a sentencing range of 4 to 9 years’ imprisonment.

For attempted rape, one considers the similar-looking rape guideline, and, again, we appear to be looking at a Category 2B offence. Rape is considered more serious than assault by penetration, and so the starting point for a 2B rape is higher – 8 years’ imprisonment after trial, with a range of 7 to 9 years. However, as this was an attempt, rather than a completed act, the court will reduce the starting point to reflect that fact. So we probably again end up with a starting point around the 6-year mark.

One then considers the presence of aggravating or mitigating features. And this is interesting, because what the judge considers to operate in Turner’s favour would be viewed very differently in a Crown Court.

 

Intoxication

Judge Persky held that, “there is less moral culpability attached to the defendant who is legally intoxicated” than a sober defendant committing the same offence. Our Sentencing Guidelines explicitly provide that, by contrast, committing an offence under the influence of alcohol or drugs is an aggravating feature, public policy militating against crediting people who willingly get tanked up and commit unlawful acts. Far from limiting his culpability, Turner’s drunkeness would aggravate his position.

 

Severe psychological or physical harm

Judge Persky found this to be present, having regard to the Victim Impact Statement, and I would be inclined to agree.

 

Specific targeting of a vulnerable victim

The police report, and comments attributed to the prosecutor, suggest that Turner made persistent efforts to kiss the plainly uninterested victim and her companions throughout the night. This, I would submit as a prosecutor, represents specific targeting of a (already established to be) vulnerable victim. Aggravating feature ticked.

 

Attempts to dispose of or conceal evidence

It is arguable (although I probably wouldn’t submit it with much vigour) that Turner’s fleeing the scene ticks this box. But many defendants run to evade capture, and it is rarely factored into a judge’s final sentence.

 

No previous convictions

This is a big one in Turner’s favour. No previous for any similar offences will usually go a long way.

 

Positive good character

The best mitigation you can hope for as a defence lawyer is good character and a guilty plea. Turner doesn’t qualify for the latter, but a judge over here would be entitled to, in most cases, afford some weight to a defendant’s positive character. BUT, the Sexual Offences Guideline is different to many others, in that it provides that “in the context of this offence, previous good character should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence“. So being a golden boy champion swimmer, while possibly contributing, to a limited extent, in projecting the image of a good chap who acted entirely out of character, is going to go much less further on these shores.

And what about the tone of those references? In particular Dad’s? Is that likely to help? Plainly Judge Persky was not affronted by Turner’s dad solemnly reporting that the stress of proceedings had put Brock off his favourite ribeye steak , but would this help or hinder Brock’s break for freedom?

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Personally, I would not in a sqwazillion years have submitted those references to an actual judge with eyes. I can’t think of any who would have subconsciously treated them as anything other than an aggravating factor. The musings of a father who, when confronted with the finding that his son penetrated an unconscious woman’s vagina and took steps towards raping her, suggests that what is really needed is for this woman to learn about “the dangerous of promiscuity”, are unlikely to inspire sympathy in any judge I have ever appeared before. Characterising an offence of near-rape as “20 minutes of action” is similarly an attitude I, as a defence lawyer, would wish to distance from my client. In practical terms, this letter would demolish all mitigation I had carefully laid before the court during my heartfelt plea for leniency. You want references to say how nice your boy is, how sorry he is for what he’s done to the victim and how you, as his parent, recognise he needs to be severely punished for a serious offence. Then you stick in your paragraph pleading to give him a light sentence.

 

Age or lack of maturity where it affects the responsibility of the offender

Another feature afforded much weight by Judge Persky was Turner’s youth. And he would receive similar latitude from a Crown Court. But not much. And the suggestion that he is merely a victim of accepted “campus culture” is unlikely to assist him.

 

Remorse

Judge Persky, in a feat of reasoning that I still don’t understand at the fifth time of reading, found that Turner was remorseful, even though he maintained his version of events rejected by the jury at trial. The judicial attitude can be summed up as, “Well, he said sorry today, even though it appears it’s a politician’s “I’m sorry for any offence caused” rather than a “I’m sorry for sexually attacking you” and, well, kids will be kids and the two of them are probably never going to agree on what happened, so, y’know, let’s say he’s sorry and I can justify the sentence I’m about to hand down.” Seriously. Read it and tell me if you come to any other interpretation. Nil points in my court, sunshine.

 

Media attention

This was listed by Judge Persky as pertinent to his decision; however it is a bold advocate over here who argues that their high-profile client warrants special dispensation by virtue of his infamy. Turner’s case can be distinguished, possibly, from most “celebs” in that he did not invite media attention prior to the trial, but committing a serious offence and having the press hound you for it would be considered, by most English judges, as par for the course. And certainly not reason for special treatment.

 

Impact of imprisonment

Not a specific consideration on our Guidelines, but this would be addressed in an English Pre-Sentence Report (say below), and particular difficulties in adjusting to prison may influence a borderline decision. But this usually applies where a defendant has extreme physical or medical requirements, or where they are a plain suicide risk, or have vulnerable dependents on the outside world. The fact that you’re used to the Good Life will not usually be prayed in your aid.

 

The Probation Report

The Probation Report by the county probation officer recommended the sentence that Turner ultimately got, and this has been cited in support of the Judge’s ruling. Over here, most defendants, particularly sex offenders, will have a Pre-Sentence Report prepared by a probation officer. And Judges will pay careful attention to, and often follow, the recommendation as to sentence (i.e. should it be immediate custody or should it be a rehabilitative community order/suspended sentence?) However. While most reports are excellent, some, whether through authorial inexperience, or being provided with scant details of the offence, or through plain misjudgment, do occasionally propose sentencing disposals for serious cases that, as a barrister pleading mitigation, you have to acknowledge at the outset are batshit cray cray, lest the judge transfer his apoplexy at the recommendation on to your client. “Your Honour, I recognise that the recommendation in the Pre-Sentence Report is unrealistic in this case…” is a phrase I’ve had to gabble more times than I can remember. The fact that there is a recommendation would not, in the Crown Court, save you if, as a barrister, you submitted that the Court should adopt a plainly unduly lenient sentence. And it of course does not absolve the Judge of his or her duty to impose an appropriate sentence. Some cases are so serious that only immediate custody will suffice. Rape and kindred offences, as per the Sentencing Guidelines, tend to fall within that bracket. I have seen, in exceptional cases, recommendations for alternatives to immediate custody in cases of this type, but they are in the tiny, tiny minority, and usually arise where there are truly incredible features to the case. Nothing that is listed in Judge Persky’s judgment would, in my experience, persuade a judge that the probation recommendation was realistic.

Exceptional Circumstances

Weighing everything into the balance, I would expect Turner to be looking at between 5 and 6 years, all in. But could a Crown Court judge take an exceptional course? Judge Persky was required to impose a minimum of 2 years’ imprisonment and prohibited, under Penal  Code section 220, from imposing probation except in unusual cases where the interests of justice would best be served (Penal Code section 1203.065). That interests of justice test is expanded upon in Court Rule 4.413(c) and applied by Persky, and he relies in particular upon Rule 4.413(c)(2)(C), which provides that the interests of justice may permit a departure from the mandatory prohibition on a light sentence followed by probation “where a defendant is youthful and has no significant record of prior criminal offences”. And it is on that feature, primarily, that Persky hangs his hat (before listing the various other features of mitigation that he feels assist Mr Turner). Would that be enough, in English courts, to get the sentence down to the 6 month mark? It’s difficult to compare, as we don’t have the concept of a short sentence in a county jail (rather than the state prison reserved for lengthier sentences) followed by lengthy probation conditions determined by the Judge; rather we impose a sentence (of whatever length) in a prison and the defendant, when released (usually at the halfway point) remains on licence until the expiry of the sentence (if over two years), or for 12 months after his release (if the sentence is less than two years). But my opinion, for what it is worth, is that a short custodial sentence would be the least likely outcome in our courts. The very best Mr Turner could pray for is a suspended sentence of two years’ imprisonment (the maximum for a suspended sentence), and that, on the facts reported, would appear wholly unlikely.

Notification

Judge Persky paid significant regard to the fact that Turner would, as a convicted sex offender, be required by Penal Code 290 to register with the authorities as such. This, he considered, represented a further punishment that was relevant to his consideration of sentence. Over here, “notification requirements” (or “being put on the sex offenders register” as the media have it, notwithstanding that no such register exists) automatically apply to these offences by virtue of section 82 of the Sexual Offences Act 2003, and, assuming a sentence of around 6 years, those requirements would also last indefinitely. It would not be considered at all relevant to sentence, although the position in California may differ due to the public availability of information about registered sex offenders (through, for example, Megan’s Law).

 

Prosecution Appeal

The District Attorney, while professing incredulity at the sentence, has declared itself unable to challenge a sentence unless wrong in law. By contrast, our Attorney General can refer sentences in such cases to the Court of Appeal if he considers that they are unduly lenient and, if the Court of Appeal agrees, the sentence can be increased. I would, as a prosecutor, be drafting my advice to the Attorney General before I’d left court had that been my case, and I’d wager that it would take something extraordinary for the Court of Appeal to find that a 6-month sentence was not unduly lenient for offences of this type.

 

Conclusion

On the information available, including Judge Persky’s sentencing remarks, the victim impact statement and the character references published, I would be astounded if a defendant in Brock Turner’s circumstances appeared before an English Crown Court and received the sentence that he did. Sexual offending, while occasionally (in my personal opinion) dealt with leniently in our  courts, is still usually recognised as comprising the most degrading violations that one person can inflict upon another. That Judge Persky appears, notwithstanding the victim impact statement, to have overlooked the public policy imperative in imposing condign sentences for acts involving the deliberate, brutal, callous and humiliating sexual exploitation of a vulnerable victim, is a failing unlikely to be repeated in the English Criminal Justice System, and, to that extent, Turner should be eternally thankful to be an American.

 

Note: This blogpost has been compiled by an English barrister with no formal training in California State or U.S. federal law. Apologies at the outset for any error in my interpretation or explanation of the relevant law; any proposed corrections are welcomed.

Defendants in person, aliens and the MoJ Jekyll and Hyde

“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.

Alien

 

 

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”.

Now that really is insane.

Is Katie Hopkins on the verge of committing a criminal offence punishable with life imprisonment?

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:

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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:

Hot-Dog-Dog-Costume1

  1. 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).
  2. 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.
  3. 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 [2013] 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.
  4. 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 [2006] 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 [1957] 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.

It’s not the police’s job to “believe victims”

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.

Writing in the Guardian, St Bernard said:

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:

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Right. A brief primer, if we may: The police’s job is not to believe.

The police are not Journey.

Stop Believin'. Seriously.

Stop Believin’. Seriously.

The police are charged as the investigative arm of the state where criminal offences are alleged to have occurred. Their various functions, duties and responsibilities are codified in bodies of statute, statutory instrument, codes of practice and case law. Those functions are many and varied, but include, critically for this purpose, as per the Code of Practice pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996, the duty to establish whether a crime has even been committed. If the investigation leads them to conclude that a crime has or may have been committed, the police have the duty to investigate all lines of enquiry, including those that point away from the suspect’s guilt.

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.