Guest post by Ryan Dowding: A Little Help From My Friends – Why Sajid Javid’s letter may have broken the law

I’m delighted to host this guest blogpost by Ryan Dowding. Ryan holds a postgraduate degree in International Human Rights Law and kicks off his pupillage this October. He also teaches human rights in schools and colleges through the Your Rights Matter initiative and runs the law and politics blog Arguably. He tweets at @DowdingRyan.

The United Kingdom has for decades set its face firmly against capital punishment. However, this historic opposition was cast into doubt last month when a secret letter, from our Home Secretary to the Attorney General of the United States, was leaked to The Telegraph. Its effect would have been to render the UK complicit in the trial and possible execution of Alexanda Kotey and El Shafee Elsheikh – two members of ISIS captured, in February 2018, by US-backed Kurdish fighters in Syria. In what follows I set out some background information, before turning my attention to the legality of Sajid Javid’s controversial correspondence.

Background

Kotey and Elsheikh were part of an ISIS cell called ‘the Beatles’ by their captives because of their distinctive British accents. Despite growing up in London, they were stripped of their citizenship after their alleged involvement in the execution of a number of individuals, including journalist James Foley. These crimes were barbaric and warrant no sympathy. It is therefore clearly right that the two stand trial and, if found guilty, face harsh punishment. It is also right that those with probative information about their role cooperate with the US authorities in bringing them to justice. It was to that end that Sajid Javid dispatched his notorious letter on 22 July 2018.

The Home Secretary acceded to a request for Mutual Legal Assistance (‘MLA’) – i.e., the provision of material and assistance for use in the prosecution of the two men by the US. His letter referenced the need to deliver justice for the victims’ relatives who had voiced “demands that both detainees face the rest of their lives in prison”. This was a clear allusion to a poignant Op-Ed in the New York Times by Diane and John Foley, Marsha and Carl Mueller, Shirley and Arthur Sotloff and Paula and Ed Kassig – the parents of four victims of the so-called Beatles:

[W]e agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court […]

Instead, they should be tried in our fair and open legal system, or in a court of international justice, and then spend the rest of their lives in prison. That is what our children would have wanted.

It appears from the final paragraphs of his letter, however, that the Home Secretary was merely paying lip service to their wishes as he concluded that there were “strong reasons” not to seek assurances from the US that the two would not be executed if convicted. When the letter was leaked, the Home Office faced immediate backlash from human rights organisations, followed by threats of legal action. As a result, it temporarily suspended cooperation with the US. However, a spokesperson said that the government “had acted in full accordance of the law and … the government’s longstanding MLA policy”.

But what policy was the Home Office referring to? And was it in fact acting within the law?

 

The UK and Capital Punishment – A Potted History

Since at least the early 19th century, Parliament had incrementally hacked away at the death penalty, precluding its use in relation to an increasing number of specific offences. During the 20th and 21st centuries, however, a number of crucial steps were taken which eventually resulted in total abolition. The introduction of the Murder (Abolition of Death Penalty) Act 1965 did away with the punishment in respect of those found guilty of murder. Further piecemeal reforms followed, including the outlawing of the penalty, in 1971, for the obscure offence of arson at a naval dockyard and in respect of treason with the Crime and Disorder Act 1998. The final nails in the coffin came when the UK introduced the Human Rights Act 1998 and signed and ratified Protocols 6 and 13 to the European Convention on Human Rights (‘ECHR’) in 1999 and 2004. Cumulatively, they required the UK to abolish the death penalty in all circumstances. Our government has since produced a strategy document codifying the “longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.

It is perhaps unsurprising against this backdrop that leading human rights barrister, Ben Emmerson QC, wrote in The Guardian that the UK’s “opposition to the death penalty has … hardened into a constitutional principle”.

Home Office Guidance

I now return to the policy purportedly relied on by the Home Secretary. There are two which warrant consideration:

  1. Requests for MLA in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom (12th edition) (‘MLA Guidelines’); and
  2. Overseas Security and Justice Assistance: Human Rights Guidance (‘OSJA Guidance’).

The MLA Guidelines can be dealt with briefly. The document simply, at page 15, informs the rest of the world that the UK may refuse to provide assistance where there is a “risk that the death penalty will be imposed for the crime under investigation”. The more crucial document for our purposes is the OSJA Guidance which offers guidance to UK officials providing security and justice assistance overseas. Pursuant to that aim, a number of human rights risks are identified, including the possible use of the death penalty. The Guidance then sets out how to mitigate those risks. When the Home Secretary suggested there were ‘strong reasons’ not to seek assurances for Kotey and Elsheikh, his language mirrored the wording set out at page 22 of the OSJA Guidance. That section explains that although assurances should be sought where there is a risk of the death penalty being imposed, where they are not forthcoming, or there are ‘strong reasons’ not to seek them, the Foreign and Commonwealth Office (‘FCO’) may be consulted to determine whether assistance should nonetheless be provided.

There is no suggestion made in the letter that assurances would not be forthcoming. Indeed, it is clear that the US has offered assurances capable of satisfying the European Court of Human Rights (‘ECtHR’) in respect of high-profile terror suspects in the past. However, it was made clear by Sajid Javid that no such undertakings were sought:

[T]here are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.

The letter unfortunately omits any elaboration as to what reasons were relied upon. This may be because it is difficult – particularly in light of the UK’s human rights obligations – to imagine what lawful reasons could possibly justify the decision. Indeed, any reasons would have to be exceptionally strong in a case such as this, involving a positive decision not to seek any undertaking from the US.

Assuming, nevertheless, that the Home Office does have legitimately ‘strong reasons’, would its actions then be rendered legal?

In short – probably not.

Falling at the First Hurdle

To begin with, the Home Secretary may have fallen foul of the OSJA Guidance. While purporting to provide an exception to the need to seek assurances, the document adds a caveat where the method of the death penalty could amount to torture or inhuman or degrading treatment, for example, an excessive period on death row.

The intersection between the death penalty and torture will be returned to below. For present purposes, I draw attention to the 1989 case of Soering v United Kingdom in which the ECtHR made clear that the extradition of an individual to the US to face the death penalty violated his right not to be subject to inhuman or degrading treatment. This conclusion was not based on the administration of the penalty itself, but on the ‘death row phenomenon’ – in other words the harsh prison conditions on death row alongside the “mental anguish” and psychological damage which accompanies sitting around for years and waiting to be led to the electric chair. While other factors – including the age and health of the appellant – were at play in that case, a decade later the UK’s own Judicial Committee of the Privy Council ruled, in Pratt and Morgan v The Attorney General for Jamaica, that there would be “strong grounds” for believing that any delay before execution of over 5 years would constitute inhuman or degrading treatment.

As Lord Griffiths explained:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity.

These cases are important because as of 2010 death row inmates in the US wait an average of 15 years before their execution. It is not unreasonable to expect that Kotey and Elsheikh will be forced to wait for a significant amount of time given the complex legal issues which are likely to arise as they exhaust their various rights of appeal. The Home Secretary should therefore have considered the section of the OSJA Guidance relating to torture, which provides no exceptions to the need to seek assurances akin to those present in relation to the death penalty.

Why the Guidance Itself may also be Unlawful Under the ECHR

The OSJA Guidance is just that – guidance. It is neither primary nor secondary legislation and its drafters were required by the Human Rights Act to ensure its compliance with the ECHR. However, it appears they have not kept pace with developments at the European Court.

The ECtHR has, over time, broadened the scope of what it considers to be a violation of the right to life (article 2) and the prohibition on torture and inhuman or degrading treatment (article 3). These moves came to a head in the landmark case of Al-Saadoon v United Kingdom. In that case, UK soldiers operating in Iraq transferred the applicant, a captive in their custody, to the Iraqi authorities. He argued in turn that this was a violation of his rights under articles 2, 3 and Protocol 13 (right not to be subjected to the death penalty). In a powerful judgment which cited the almost complete abolition of the death penalty across Europe, the ECtHR agreed, finding for the first time that the death penalty as such is a violation of the rights listed above.

The Court noted in particular that:

[I]t is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention.

The ECtHR has also imposed a positive obligation on states to seek assurances that the death penalty will not be carried out. In 2014, having found Poland liable for ‘rendering’ – a euphemism for forcible deportation – the applicant to Guantanamo Bay, the Court took the unusual step of spelling out that Poland was required “as soon as possible” to rectify its violation by seeking assurances from the US that he would not be subject to the death penalty.

These cases suggest that the UK not only entered an unlawful agreement with the US, but may now be obliged to seek assurances that Kotey and Elsheikh will not be executed if convicted.

The developments also bear significance because of the UK’s stance on torture and inhuman and degrading treatment. To quote from a ruling by the late Lord Bingham, the common law set its face against the practice because of a “belief that it degrade[s] all those who len[d] themselves to it”. I would argue that there could hardly be a clearer case of a state lending itself to an unlawful practice than the UK’s offer to do the US’s dirty work and assist the prosecution of those likely to be condemned to death.  The move also, shamefully, ignores the pleas of the victims’ relatives that these people be tried and imprisoned; pleas by US citizens which might indeed have provided strong reasons for the US to accede to any request for assurance in this case.

While I have been unable – despite the ample space provided to me by The Secret Barrister – to leave no stones unturned, as the Howard League for Penal Reform gears up to take the Home Secretary to task, I hope I have provided a taste of the arguments likely to surface in due course.

Post-Script – A Brief Note on Jurisdiction

A potentially tricky point in terms of the UK’s responsibilities under the ECHR is whether or not it can be said to have exercised jurisdiction – i.e., authority or control – over the two men. Much smarter people than I have dedicated chapters of books to this byzantine principle (exhibit A; exhibit B etc…). I am unable to do the matter any real justice here. However, I would say that the suggestion that the UK bears no responsibility for the rights of those who it offers to help convict and potentially put to death, is arguably untenable given the ever-expanding notion of jurisdiction. This is particularly so in the face of judgments such as Stephens v Malta and, more recently, Vasilicius v Moldova. In those cases, the ECtHR held Malta and Moldova liable for the unlawful detention of the applicants in Spain and Greece respectively. Notably, in the former, the applicant was a UK national who had never set foot in Malta. The Court came to its decision on the basis that by issuing the arrest warrants Malta and Moldova exercised jurisdiction over the applicants and were therefore responsible for the end-result – namely, their unlawful detention.

It is difficult to see why the provision by a country of legal assistance which is likely to increase the prospect that an individual will be subjected to capital punishment should be treated differently. This is especially so given the “absolute and fundamental nature of the right not to be subjected to the death penalty” (Al Saadoon, above).

Ryan Dowding

Advertisements

Guest post by Fern Champion: The government thinks it is doing enough to fund Rape Crisis centres. My story shows they are wrong.

I am honoured to host this guest post by Fern Champion. Fern is next week giving evidence to the All Party Parliamentary Group on Sexual Violence, speaking from her own experience about the widespread problems in accessing Rape Crisis centres. This is Fern’s story.

I can’t count the number of times I’ve tried to do this. To tell my story and have it listened to. To engage with police, insurance companies, support services, employers, and friends across the globe.

I need to talk to the police” I said to the girl working on the reception of the hostel I was staying at in Kuala Lumpur, as I walked in clutching my bra in my hands.

“I’ve been raped” I said on the phone to the British Embassy Consulate the next day, after spending the last 24 hours either with the police or in hospital.

“I’ve missed my flight because when I should have been boarding, I was being examined by a surgeon” I said to my airline and travel insurance company.

I think I had my drink spiked and had to have a pregnancy test” I said to my friend who I sent various incomprehensible messages to the night before.

So here it is, one more time. My story, which really isn’t just my story.

On the 18th/early hours of the 19th July 2016, I was raped by a man whilst I was heavily intoxicated.  He first assaulted me whilst I was unconscious on his couch, and then he carried me to his bed where he forced his penis into my mouth, vagina and anus throughout the night, all while I was passing in and out of consciousness. Everytime I protested, he told me that he could “really fucking hurt me”. It wasn’t difficult to pin me down.

My assault occurred in Kuala Lumpur. I was 3 months in to my cliche ‘gap year’ and I had a series of flights booked the day after to get me to New Zealand, where I would be living for a year.

In August 2016, I arrived in Wellington, New Zealand, and met with the Wellington Rape Crisis. I was put in contact with them through the British Consulate Office in Kuala Lumpur, and they immediately put me on their waiting list for support and treatment.

I spent the next year trying to rebuild my life on the other side of the world, having arrived in New Zealand with 26p left of my overdraft. I spent a lot of that time working, though I got to travel too. I fought against my insurance company for six solid months, though eventually I won. I can’t make out that whole year was terrible, because it wasn’t. I got to live and work in one of the most beautiful countries on earth. I furthered my career, built lasting friendships and even got to work with the WRC on publishing a ‘Survival Guide’ for travellers who are assaulted overseas, but I had to do all that whilst processing what happened to me with no support. I spent the entirety of my year in New Zealand on Wellington Rape Crisis’ waiting list.

In August 2017, I arrived back in the UK and contacted both East and South London Rape Crisis centres but was told that I could not get onto the waiting list at either. In September I moved to Tooting and was told by SLRC to try again in January 2018. That month, I also contacted my local MP, Dr Rosena Allin-Khan to discuss the lack of access to support I have been facing since my attack over a year earlier and the impact that must be having on survivors all over the country. She wrote to the Secretary of State for Health, Jeremy Hunt, and asked what steps his Department is taking to provide support to survivors of sexual assault when services are over-subscribed. He replied that “allocations for Sexual Assault Referral Centres have increased this year”. She also asked the Secretary of State for Justice, David Gauke, what he is doing to reduce general access times to rape crisis centres. He responded with “In 2017/18 the MoJ directly allocated around £7.2m as a contribution to 97 Rape Support Centres across England and Wales”

 And yet in March 2018, I was told once again that South London Rape Crisis waiting list remains closed.

This really isn’t just my story. In March 2017, the Crime Survey for England and Wales estimated that 646,000 of adults aged 16 to 59 experienced sexual assault in the previous 12 months. 2017/18 data published by Rape Crisis England and Wales shows that 78,461 individuals accessed Rape Crisis specialist services. The CSEW have not yet published their data for the same period but I think it can be safely assumed that the numbers will remain proportionately similar, meaning that nearly 88% of those sexually assaulted will not have accessed Rape Crisis specialist services. It’s going to take a lot to convince me that that 88% have been able to access support elsewhere, seeing as more and more services are having to shut down their waiting lists.

As such, 17 July 2018 is going to be a big day for me. Not only will it nearly be the two year anniversary since my attack, but I will also be addressing the All Party Parliamentary Group for Sexual Violence, who will be discussing the funding landscape for specialist sexual violence services.  Because I, and everybody else in that 88%, deserve answers.

Why should we be forced to wait months, if not years, on end for sustained support to help us process a trauma which was not our fault in the first place? Why should we endure ongoing nightmares or total emotional oblivion as we continue to sleepwalk through a world that continuously tells us it was our fault, with the knowledge that only 7% of our attackers will be convicted relentlessly pounding our skulls? I reported my attack as soon as I was safe. The police were provided with my medical report, clothes, access to CCTV footage of two different bars, witness statements which corroborated mine, GPS data of where my phone tracked me during the hours of my attack, and still my attacker was not caught. Why?

Why did they ask me what was I wearing? How much I’d had to drink? How many men I’ve previously slept with? Why I didn’t fight? Why I couldn’t remember the details of what happened when I was unconscious?

Why will they never get to ask my attacker why did you rape her?

This government, namely Jeremy Hunt and David Gauke, seem to think they have done enough to help women like me. I am here to tell them they are wrong because somehow, despite all of this, I am one of the lucky ones. In March this year, I was finally able to access support through my employer when I very rapidly crashed through rock bottom and found myself unable to go to work, or even leave the house. How many others in that 88% who have been unable to access Rape Crisis do you think can say the same? As a university educated, white female with a shiney corporate job in the city, I have been protected by a certain amount of privilege which has allowed me to get me to where I am today. What about everybody else? This government, like so many before them, is failing them all.

It has long been known that 1 in 5 women will be raped, or nearly raped in her lifetime. It is now abundantly clear that the vast majority of those women will not be able to access support services crucial to their recovery. Enough is enough. We all have a duty to fight this so I am asking you now, write/tweet/send an owl to your local MP and ask them if they will be attending the APPG on Sexual Violence on the 17 July. Ask them if they will hear my story and help me to create something positive from what has been an almighty shitshow of the last two years. Your MP will represent so many women with stories like mine, maybe even you yourself have a story like mine, so let those stories be heard.

Please don’t let me continue talking to an empty room.

Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

I am delighted to host a guest blog by James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP.

Readers may be aware of the events of recent days in relation to the campaign by Gina Martin to create a specific criminal offence to address “upskirting” (about which I wrote here). Last Friday saw the second reading in the House of Commons of the Private Member’s Bill introduced by Wera Hobhouse MP, and an objection to the Bill by Sir Christopher Chope.

The Spectator published a comment piece by Melanie McDonagh in which she wrote in support of Sir Christopher and against the merits of the proposed law. Here, two partners in Gina Martin’s campaign respond to that article. 

Upskirting is on the political agenda because of the tireless campaigning of Gina Martin, a 26 year old woman who was upskirted at the British Summer Time Festival last July. On Friday, to the shock of Parliament, Sir Christopher Chope blocked Wera Hobhouse’s Private Member’s Bill in support of Gina’s campaign.

After months of work by Gina’s campaign, Wera’s Voyeurism (Offences) Bill had earlier in the day been supported by the Government. With the Government on board it was widely expected that it would pass through the House and progress to committee stage, where details would be examined and amendments possibly made.

Sir Christopher put a spanner in the works by objecting to the Bill’s progress, a decision met with calls of “shame” from his Conservative colleagues. The disappointment and anger across the House – particularly among the Tory benches – was clear to see (and has been underlined by numerous subsequent tweets, and the Spectator’s own leak of Whatsapp messages between Tory MPs).

While the optics are poor, it is not fair to characterise Sir Christopher’s objection as being a defence of perverts. As he confirmed in conversation outside the chamber, Sir Christopher had not looked at the detail of the Bill and was not even familiar with upskirting. Sir Christopher’s objection is neither personal nor related to the Bill’s content. He objected because he feels that Private Members’ Bills should not be passed without debate.

Given the basis for this objection, a point of principle on the scrutiny of Bills in Parliament, we were perplexed to read Melanie McDonagh’s Spectator article “In defence of Christopher Chope’s ‘upskirting’ objection”.  McDonagh’s article (which is the most read on the Spectator website as at the time of writing) does Sir Christopher a disservice by associating him with a view that is utterly confused about both the current law and the proposed reform.

On the current law McDonagh states that “bad behaviour of this kind” – her euphemism for upskirting – is “dealt with under the offence of outraging public decency, as voyeurism”. This is legally illiterate. Outraging public decency and voyeurism are two entirely separate offences. To conflate the two is to miss the point.

Upskirting often takes place in populated public places. Outraging public decency, a common law offence which requires two or more people (other than the defendant) to be capable of seeing the act, is therefore available to prosecute most upskirting. But it is neither an adequate nor appropriate solution.

First, the offence does not provide full protection to women. If the prosecution cannot prove that two persons other than the defendant could have seen him take the “upskirt” photo, the offence cannot be used. So, for example, that if upskirting takes place when a woman is on a street or in another public place alone, no prosecution is possible. That is not acceptable.

Second, the offence does not reflect the wrongdoing. Upskirting is a sexual offence with a victim. The public are rightly outraged by upskirting but this outrage is secondary to the harm it causes. A charge of outraging public decency fails to acknowledge the harm to the victim, and fails also to recognise upskirters for what they are – sexual offenders.

The more appropriate offence of voyeurism is, in contrast, not generally available to prosecute upskirters. The reason: to prosecute for voyeurism the upskirting victim needs to have been observed doing a “private act”, which is not normally the case. This is why the Scottish Parliament modelled the Scottish offence of voyeurism on the English one but added extra provisions to that offence in 2010 to ensure it would cover upskirting.

As to the proposed reform as contained in the Bill, McDonagh says in her article that dealing with upskirting as voyeurism “sounds about right”. It might therefore have been expected that McDonagh would welcome the bill, that being not only the effect but the title. Not so. Instead, for reasons that are hard to fathom, McDonagh considers the bill to be a “preposterous exercise” that has been heroically “seen off” by Sir Christopher. You couldn’t make it up: McDonagh thinks (without realising it) that the bill is “about right” but characterises it as “preposterous”.

Continuing the theme in her views on sentencing, McDonagh inexplicably thinks upskirting does not “warrant” an individual being put on the sex offenders register (really?!). Consistent with her suggestion that upskirting is a minor irritation rather than the violation that it is, McDonagh also takes exception to the proposed two year maximum sentence, describing it as “excessive”. These points, she seems to suggest – with no basis – may have factored into Sir Christopher’s thinking. But we know that not to be the case (from Sir Christopher) and her points are again ill-informed: the bill makes no provision for sex offender registration (albeit that the Government had proposed to make this amendment at a later stage) and while voyeurism carries a maximum two year sentence, an offender prosecuted for outraging public decency could theoretically face a life sentence.

In defending Sir Christopher, McDonagh inexplicably seeks to ride two horses: insinuating on the one hand that upskirting is too trivial to warrant the attention of the criminal law, while on the other suggesting that prosecutors should target it with an offence allowing for life imprisonment. Which is it?

The Bill is on no view the “preoposterous waste of time” that McDonagh alleges.  It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law. Those who have engaged on the detail and know the relevant law agree: upskirting is a gap in the law and that gap needs to be filled with legislation that will allow upskirters to be prosecuted appropriately in all circumstances.

Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course, we understand his position. McDonagh, however, in seeking to defend that decision, does Sir Christopher a disservice by associating him with a series of ill-informed claims that he has never himself made.

James Chalmers is Regius Professor of Law at the University of Glasgow.

Ryan Whelan is an Associate at Gibson, Dunn & Crutcher LLP. Mr. Whelan has been advising Gina Martin on her campaign (pro bono) since August 2017.

Guest Post: The Secret BPTC Student on legal aid cuts and the criminal Bar

I am delighted that a current law student, and soon-to-be criminal pupil, has taken the time to write the following explainer on the ongoing dispute between the criminal Bar and the government over legal aid fees and the funding of the criminal justice system. A point which would be easy to lose – and which, more importantly, the Ministry of Justice hopes will be lost – in the clamour is that this is not simply about lawyers’ fees. The Ministry of Justice’s new legal aid pay rates for advocates (“Advocates’ Graduated Fee Scheme”), which amount in practice to a cut of up to 40% in complex cases, is simply the final straw. Our argument is that criminal justice across the board has been subjected to financial cuts unrivalled in other government departments, with the result that every aspect – from the police to the Crown Prosecution Service to legal aid to the crumbling fabric of our courts – is on its knees. Something has to change. This is the message that needs dutifully repeating to the public, as the below post emphasises. It also contains a very kind plug for my book, which I am obviously going to support.
 
The Criminal Bar is taking direct action as a result of new legal aid cuts. This post explains why action is being taken and why everyone should care about it. 
 
Since 3 April, 90 criminal chambers (at the time of writing) have refused to take on new government funded legal aid cases; this means that defendants will be unrepresented in the Crown Courts (where the most serious cases are tried). Such action could bring the courts system to a halt – a matter not lightly embarked upon. 
 
Action is being taken because the criminal justice system is in crisis.
 
Chronic underfunding of the criminal justice system has resulted in: 
  • cases not being heard for months if not years after an incident, 
  • victims and witnesses unsupported through the process, 
  • defendants on low incomes go unrepresented (being ineligible for legal aid),
  • police fail to disclose vital evidence until the 11th hour, 
  • prosecutors given only 15mins to prepare trials in the Magistrates’ Courts (where most cases are heard),
  • despite the backlog of cases, judges are unavailable to hear them and courts are being closed,
  • the prison estate is in meltdown, with violence and drug use soaring each year,
  • the probation service fails to appropriately manage offenders in the community, 
  • some forensic labs operate without proper certification, affecting the reliability of scientific evidence presented in court, 
  • and in one incident, part of the ceiling of a Crown Court fell in. A terrifyingly apt metaphor for the current state of our justice system. 

The most likely result of a broken criminal justice system? Miscarriages of justice.

This is not theoretical. 

On 27 March 2018, the Chief Inspector of the Crown Prosecutor Service gave evidence to MPs on the Commons Justice Committee. He approvingly quoted from a report (by the Criminal Cases Review Commission), which stated that, “…disclosure failings were the single most frequent cause in the steady stream of miscarriages of justice.” 

Miscarriages of justice have already occurred. You might be its next victim. And the situation is about to get worse…

From 1st April, legal aid rates have been cut by approximately 30%. This is on top of previous cuts to legal aid. Why should anyone care about this?

The principal consequence is that it makes it more likely that guilty people will go free and innocent people will be imprisoned. 

Barristers are independent, self-employed individuals who represent clients at court; as a result, they must prepare for cases during the evenings and at weekends, often at low rates or sometimes for free. Currently, the average yearly earnings for a junior criminal barrister starting out is around £12,000 gross, less than the minimum wage. 

As a result of these cuts, swathes of the bar will no longer be able to survive in practice, with women, those from BAME backgrounds and those at the most junior end bearing the brunt. If the bar remains a profession where only those with wealthy parents can afford to enter, it will neither become representative of the people nor will it guarantee high quality advocacy. Moreover, judges are predominantly drawn from the bar and their judgments have enormous impact upon the country. We need talented advocates who are representative of our society, at all levels of expertise, in order to ensure a fair justice system. We must retain our advocates and call for proper funding of the system as a whole.

As the late Sir Henry Brooke said, “This is not about money for lawyers. The liberties of England are at stake.”

 

Lawyers are taking action to save the criminal justice system. Please support them. 

How you can support our criminal justice system:
  1. Please share this blog post with everyone you know. 
  2. Please buy and read a copy of The Secret Barrister’s book ‘Stories of The Law and How It’s Broken’. It will both inform and entertain you about the crisis in our justice system. No legal knowledge needed. Published only two weeks ago, it has made the Sunday Times best sellers list, been quoted in Parliament, and lawyers have crowd funded to send a copy to every MP. Available on Amazon at: https://www.amazon.co.uk/Secret-Barrister-Stories-Law-Broken/dp/1509841105
  3. Write to your local MP. Let them know that their copy of the Secret Barrister’s book will be arriving; ask them to put it at the top of their reading list and ask them to take action to save the criminal justice system.

The Secret BPTC Student

Why Criminal Justice Matters: Live Event at the RSA

On Tuesday evening, the RSA (Royal Society for the encouragement of Arts, Manufactures and Commerce) hosted an event, “Why Criminal Justice Matters“, at which a panel of industry experts (plus me) discussed the plight of the criminal justice system, and what can be done to remedy its failings.

The discussion was chaired by Joshua Rozenberg QC, and the panel featured:

  • Penelope Gibbs, Founder of Transform Justice
  • Angela Rafferty QC, Chair of the Criminal Bar Association
  • Jonathan Black, Partner at BSB Solicitors
  • Nazir Afzal, Former Chief Crown Prosecutor for Northwest England at the Crown Prosecution Service
  • Me, via live Twitter feed.

It was a thoroughly enjoyable event, and I am extremely grateful to all  concerned for their participation and support. Tickets sold out quickly, I’m told, but for anybody who wasn’t present and didn’t catch the live-stream, the event can be watched for free here:

 

Guest post by Mary Aspinall-Miles: We must confront the criminal justice system’s warped attitude to time

I am delighted that the wonderful Mary Aspinall-Miles (@MAM12CP) has agreed to write a guest post for this blog. Mary practises criminal law at 12 College Place Chambers, with a particular expertise in sexual offences. She also sits on the executive committee of the Criminal Bar Association. 

NOTE: This article was written long before the recently-reported case of R v Itiary, and is not a response to or a comment on any reports in the media concerning that case.

I used to work in commerce. I was a headhunter/recruitment consultant. It was soul-destroying stuff for me, but was very well paid. Lord knows why I left, though my boss who nearly sacked me does (“I am glad you’re off to Law School. We never could work out why the likes of you worked here”).

But here’s the thing.

I had set hours I was expected to be in the office. Arrive by 9.00, leave at 17.30 and an hour for lunch. I was expected to call leads, clients and candidates out of hours, but I was incentivised to do it by commission. There was a direct correlation between hard work, success and monetary reward.

old-man-time-watch-160785

A friend was a teaching assistant at a primary school; she had contracted hours for which she was paid, but at the end of the school day/her day, she left and did not have to THINK about her job at all. My father is an eminent scientist but self-employed. His work ethic and self-discipline is astonishing and may appear punishing, but his work is his passion and his life. There are deadlines to be met which can lead to stressful periods, and financial worries caused when projects are pulled without warning or when politics intervenes. My best friend from uni was a successful banker (boo hiss!) but found it wanting and is now a “super head” for a free school for which he is paid in six figures, but he is enthused and driven to help. One of my best gigging mates is a partner at a city firm. He is kind, generous, fun and constantly raising funds for charity, BUT when it comes to the business – and it is a business – he will not do a single thing that is not financially rewarded. He is paid for expertise and expects to be paid. Of course he’ll do some things to keep the client sweet, but largely for money. Time is money for him and money is time.

They will give a first rate service to clients as they have strict work divisions based upon cost, because the client pays. He and our mate ( a lawyer in a bank ) look after me because they see me as a “social worker rather than a lawyer.” Ditto my friend “Sphinxy”, a senior and well-respected PI (personal injury) barrister and Twitter addict; an absolute sweetheart in real life, but all about the money.

I was married to a civil barrister who used to practise crime, who taught me that criminal barristers are too keen to be liked and too scared to play the elitist hand, because we are beholden to public money and thus the vagaries of public opinion and politics. We are in the middle of an identity crisis, not knowing whether we are professionals or social workers. Most of all, he would say, we have to accept we will never be liked, and to stop trying. We are a necessary evil. We have to stop hiding behind egocentric notions that we matter but that we serve the public.

 What is the point of all of the above?

Time.

The Criminal Justice System is ill-managed over its approach to time. There is simply not enough of it for any of the major “stakeholders” (vomits) in the CJS. Police officers do not have enough time to investigate properly or liaise with aggrieved parties, which is why they think they are marginalised and defendants think they are treated unfairly. The Crown Prosecution Service does not have enough time to review cases or prepare appropriately. Defence solicitors do not have enough time to go to police stations, go to court, speak to families and prepare cases. The Bar do not have enough time to draft documents and prepare cases to the level required. Judges don’t have time – never ending lists; administrative duties and increasing managerialism.

There is a constant pressure, like a blister on the heel whilst wearing vertiginous high heels. No one can stand, let alone walk properly.

And yet the powers that be load up with more targets and demands whilst they sit in their glass towers (as government towers tend to be), surrounded by resources and playing the political game with the press, whipping up them up in whatever direction suits. They appoint meaningless posts like the Victim Tsar to pay lip service to victims whilst actually failing to tackle the endemic problem of poor funding and a lack of transparency. How, for example, do most of HMCTS and CPS staff get their jobs? Especially at local level? And there is the poor training – it astonishes how many in HMCTS, the CPS and the police have never been inside a court. These are the things that fail victims, witnesses and defendants. As does the legal profession’s arrogance of “knowing best” when it comes to the business of running, well, an actual functioning organisation albeit an important and special one. We should stick to lawyering and justice but we need to have a sea change of how we achieve that – collective bargaining is a start (and post-Brexit, if EU laws are no longer to apply, why shouldn’t we have a union?), as are muscular professional bodies whose leaders cannot be bought off with professional reward by being properly paid to do it, and, as the Bach Report suggests, an independent pay body. Time to change. Time to behave like lawyers.

Guest Post by Simon Myerson Q.C.: An alternative proposal concerning sexual offences and consent

In March 2017, Harriet Harman proposed a legislative amendment to section 41 of the Youth Justice and Criminal Evidence Act 1999, which would have the effect of prohibiting at criminal trials any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence. This week, Ms Harman reportedly confirmed that she was pursuing this amendment, and I provided my thoughts on why this is a dangerous and ill-thought out idea here

Back in March, criminal silk Simon Myerson Q.C. took the time to correspond with his MP, Anna Turley, over the planned amendment. He has very kindly permitted me to republish his note, in which he addresses the flaws in Harman’s Law, and offers his own proposal on how perceived shortcomings in the prosecution of sexual offences involving the issue of consent might be addressed. I understand that Anna Turley MP has yet to respond.

Simon Myerson Q.C.

Rape and Section 41 YJCEA 1999

Current Position

S41 Youth Justice and Criminal Evidence Act 1999:

  • Re consent, no cross-examination about Complainant’s (C’s) sexual behaviour without court’s permission.
  • Permission only if:
    • A conviction would otherwise be unsafe; and
    • Relates to behaviour at same time or is so similar that it cannot be explained as a coincidence; and
    • Must relate to a specific incident or incidents.

 

Suggested Amendment

To ban such evidence in all circumstances.

 

The Result of the Amendment

Necessarily, to ban evidence which might prevent an unsafe conviction. There is no way around this conclusion.

To remove from the judiciary the freedom to determine what makes a trial safe and to replace that freedom with a direction from the legislature that unsafe convictions are acceptable in rape cases.

 

The Problem

This should be self-evident. But it would create the additional problem that, in cases in which cross-examination would currently be allowed, were this amendment passed, the Judge would still be entitled to stop the case on the basis that the accused cannot have a fair trial. The Court has an inherent jurisdiction to do so, but is also constrained by Art 6 ECHR, which provides the right to a fair trial. The refusal to admit evidence that may mean the prosecution cannot prove its case is patently unfair.

 

The Reality

There are essentially 4 types of rape for these purposes:

  • Genuine ‘stranger rape’ where a woman is violently assaulted. Very rare and almost always result in conviction because consent rarely the issue.
  • Semi-stranger/friend rape. Typical scenario – meet on night out. Woman gives good evidence of not consenting. Again, relatively few problems in obtaining conviction.
  • As above but everyone drunk. See below.
  • Marital/relationship rape. Has difficulties but not really the focus because lack of consent proved by other factors – fighting, separation, confiding in family etc.

The real issue is the drunken night out. Can we leave aside political considerations here please? I have 4 daughters and I most assuredly tell them that rapists cause rape. I also tell them that the best way to avoid rape entirely is to take personal responsibility for themselves by staying relatively sober, texting regularly (family or friends), not leaving without telling someone and saying who with and not having sex unless they know the person.

What typically happens is that a group go out together. They all get drunk – so drunk that the next day they cannot remember what happened with any clarity. Frequently, one girl gets detached from the group. They do not know where she is and often do not look. She goes off with a man, consensually. That can be seen on CCTV. They go somewhere together and he has sex with her. The next day she is appalled. She may very well not have consented. She says she didn’t. She also says he tricked her into coming with him/has no idea who he was/didn’t want to be anywhere near him. The CCTV shows that at least some of that is wrong. She is cross-examined on the basis that a) she wants to get him into trouble to excuse her own shame and) she can’t remember anything, including giving consent. He says that she consented.

Another scenario: the group leave together with a group of lads, or some new lads they’ve met that evening. They go back to someone’s flat. Some kissing happens. Then a lad takes a girl into a bedroom. Same thing as above. The friends all remember the kissing. No one knows the rest of it, or they are so wasted they can’t remember.

That is the depressing reality. Of course, drunken consent is not consent. But the prosecution must make the jury sure that the man did not reasonably believe in the consent. He says he asked and she was all for it. If he is disbelieved, he is convicted. But it is terribly difficult for a jury to disbelieve him when the woman herself does not remember what happened. Q: “Is it possible that after a good evening, you may have said to him that you wanted sex, even though in the morning you would not have said yes?” If the answer is yes, it’s an acquittal. If the answer is no but the jury don’t believe it, it’s an acquittal.

 

Notable Point

S41 is nothing to do with this at all. S41 arises in a very small number of cases and is granted in even fewer. There is what purports to be as study carried out by a group appointed by Vera Baird. I’ve read those cases. There are 15 – a tiny fraction of rape cases and far too small to be anything more than an anecdotal collection. Of those 15 only 3 involved S41 applications. I would only have granted 1. S41 is not the problem.

S41 is important because it guards an accused – who we remind ourselves is an innocent man until convicted (I always find it helps to think of him as my father) – who describes behaviour that is so exceptional that the evidence of C that she did not consent, should properly be assessed against the evidence that she indulged in the same behaviour on an occasion when she did consent. The argument is that if she consented on that occasion, isn’t that evidence that she consented on this occasion. It is an argument, no more. The jury can reject it. But the evidence is admitted if the Judge decides they could accept it and that, in those circumstances, if they did not know about it, they may not be making a fair decision.

In the Evans case, the evidence was admissible because a) it was an account from 2 people on separate occasions each other and the accused that C was capable of having sex when very drunk; and b) that she was an active participant using the v precise words and positions described by the accused. That went both to the issue of whether this was non-consensual at all (C had never said so – merely that she did not remember), and whether the accused might reasonably have believed in consent if so.

Without that evidence Evans was convicted. With it, he was acquitted. What Harriet Harman seeks to do is to preserve the position where someone is convicted, even though the evidence might lead to acquittal. She wishes to do that by preventing the jury even hearing that evidence, because she has decided it is wrong to let them do so. That is neither her job, nor remotely appropriate.

 

The Bad Arguments

Why should the current position be changed? There is no evidence that it results in unfairness on the current law as it stands. Research shows that juries do understand the evidence they hear and the directions the judge provides.

Thus the arguments should focus on the law. Is the offence of rape sufficient to include occasions where a lack of consent cannot be proved, but the way in which the man has behaved plainly takes advantage of the woman’s position at the time?

However, Harriet Harman’s argument does not focus on the law. It focuses on manipulating the current procedure so as to alter the result. Once we permit politicians to prevent the admission of evidence because the evidence produces the ‘wrong’ result, we will not be able to resist it happening again. Ask yourself, what would Farage do with such a provision and alleged Islamic terrorism? Should we refuse to permit juries to hear evidence that bankers had seen senior figures doing the same things as had led them to be charged with dishonesty, and had thus concluded it was not dishonest? Evidence such as this is not a defence unless the jury accepts it. If it is rejected the conviction is fair. But a conviction that does not allow a jury to hear that evidence is unfair.

Moreover, the basis of the argument rests on the belief that jury verdicts are regularly ‘wrong’ and the procedure should thus be tampered with, to achieve the ‘right’ result. That is neither healthy nor proved. We assume that once delivered, jury verdicts are correct, unless the summing up is wrong. The jury’s deliberations are sacrosanct. How on earth is it possible to assume they are wrong?

And, if they are wrong, then the logical answer is to have trial without jury. Fiddling with the procedure, if juries do not get it right, is hardly a courageous answer. Rather, it is a fudge, which imperils rape victims because it still leaves them open to injustice, and everyone else – either for the same reason or because it encourages executive action to restrict the evidence a jury can hear.

 

A Possible Solution

In reality, juries probably get these decisions right. The difficulty is that we have a crime in relation to which the prosecution must prove the negative – that the accused did not reasonably believe C consented.  

A further difficulty may be that sentences for rape are very high. Many lawyers believe (admittedly on no very good evidence) that this makes juries even more reluctant to convict. Or, perhaps, it means they take being ‘sure’ very seriously.

An answer is an offence that takes consent away.

Taking sexual advantage is a possible offence in this way:

A man (M) commits an offence if he penetrates another person (using the existing language of the Sexual Offences Act 2003) in circumstances in which, whether that other person has indicated consent or not, a reasonable observer would conclude that M could not be sure that consent was either voluntary or informed, and that M took no reasonable steps to ascertain the real position.  

I do not pretend this is necessarily flameproof as it stands, and it certainly needs further thought. But it represents a real attempt to transfer the risk of drunken stupidity to the penetrator not the penetratee. It would be mitigation that the man had believed the woman had appeared to consent but it would not be a defence unless M was sure that there was consent having taken reasonable steps to check. If the woman can’t say yes, or says yes because of drink, or isn’t sure what happened, that would all be sufficient to convict. The sentence would, necessarily, be less. The conviction rate would, I believe, soar.

 

Simon Myerson Q.C. practises from St Paul’s Chambers, Leeds and Byrom Street, Manchester, and specialises in Civil and Criminal Law. He is currently representing 40,000 Kenyans in their claim against the Foreign Office relating to events during the Mau Mau Emergency in the 1950s. Simon tweets at @SCynic1.