UPDATE: At 8am on Monday 23 March 2020, the Lord Chief Justice announced a suspension of new jury trials. The details are vague, and hint at a resumption “where specific safety arrangements have been put in place”, but for now, at least, it seems as if a level of sense has prevailed. Regrettably the announcement came far too late to reach many jurors, who will have already embarked upon needlessly risky travel by public transport, but joined up thinking has never been part of the justice system’s core values.
Today, thousands of citizens of England and Wales will attend their local Crown Court in answer to a summons compelling them, under threat of imprisonment, to do their civic duty and serve on a jury.
They will queue with dozens of other strangers to be herded into a packed jury waiting room. Once selected for a jury panel, they will pile into a dirty, windowless courtroom and sit next to each other for five hours a day. At lunch they will mingle with the hundred or so other jurors in the building. At the conclusion of the trial, they will shuffle into a tiny unventilated retiring room, where they will make a decision which could ultimately determine whether somebody spends years of their life in prison.
This is because, even though the government has closed schools, restaurants, pubs, cafes and leisure centres, one area of public life in which, to quote a government minister, we are “operating normally”, is in the criminal courts.
So while Scotland and Northern Ireland have temporarily suspended jury trials, in England and Wales the Lord Chancellor Robert Buckland and the Lord Chief Justice have decreed that jury trials lasting up to three days – estimated to be 75 per cent of trials – must take place.
They will do so in filthy conditions where lack of hot water, soap and paper towels is widespread; where broken hand dryers and leaking toilets and burst pipes and crumbling roofs and walls are par for the course; conditions which in the good times we in the courts accept as a permanent feature of a chronically underfunded justice system, but which in the current climate present a far more alarming proposition.
Criminal courts are, basic sanitation aside, a petri dish. Scores of defendants are piled into waiting areas. Most travel by public transport; some travel in “sweatbox” security vans from our infested, overcrowded, virus-rivenprisons. Defendants and their families mix with their barristers, who mix with court staff, who mix with witnesses, judges and jurors, who mix with other witnesses, judges and jurors. Courtrooms vary in size and style; in some of our more antique Victorian courts, jurors are squeezed onto hard wooden benches without an inch between them, let alone the government-recommended two metres. In a fairly typical court I was in last week, the defendants, barristers, clerk, usher, witness box and jury box were all within a two-metre radius of each other.
And by insisting that the shortest trials go ahead, the government is ensuring the highest possible churn of cases; the highest possible turnover of strangers coming into contact with each other.
Over the past few days I have been flooded with messages from terrified jurors, witnesses and court staff aghast that, at a time when the government is frantically urging social distancing on the ground that “infections spread easily in closed spaces where people gather together”, they are being required by law to expose themselves to such conditions. In a closing speech last week, one of my colleagues thanked the jury for their dedication at a time when they were no doubt worried about themselves and their families. One of the jurors burst into tears.
This situation is appallingly unfair to all concerned. How on earth can jurors be expected to concentrate on their task? How can any defendant or victim of crime have faith that the twelve people trying their case are paying full attention to the nuances of the evidence, when those twelve are burdened with the knowledge that, as a direct result of their jury service, they, or someone they love, could die?
And contrary to MoJ dicta, we are not operating normally. Judges are self-isolating; defendants, jurors and witnesses are staying at home as they break out with symptoms; and trials are collapsing all over the country. The Witness Service, the organisation responsible for looking after witnesses at court, has withdrawn its volunteers. Many Crown Court judges are making no secret of their disdain for what the MoJ would wish to term a “strategy”, but which more closely resembles a tribute act to Monty Python’s Black Knight chirpily dismissing each collapsed trial as a mere flesh wound.
The official government line is that “justice is not optional”. A sweet homily, betrayed only by the evidence of the past decade, in which victims, defendants and witnesses have found their cases mishandled or delayed for years due to enormous cuts to the budgets of the police, CPS, courts and legal aid. Justice has been optional whenever financially or politically convenient.
The three-day trial rule has no public health basis behind it, other than a chipper optimism that a trial of such a length might have an outside chance of completing before too many of its core participants drop down. The three-day trials will in general concern the less serious and more straightforward criminal allegations which could realistically wait another few months without too much harm being done.
The primary reason for the intransigence appears to be Mr Buckland’s fear of being the Lord Chancellor Who Closed The Courts, a disfiguring blemish on the CV of any aspiring careerist in this Tough On Crime government. There is also a secondary, practical concern: because of cuts, we have a backlog of over 30,000 Crown Court trials and are currently trying cases for offences said to have occurred two or more years ago. The government knows that a standard two-year delay could quickly become three.
The government should adjourn all jury trials listed in the next twelve weeks. In the Autumn, when it may be safer to do so, we can resume with the adjourned cases, only with the financial firehouse turned on. Instead of running at half-capacity, every Crown Court should run at maximum; the Treasury’s largesse must be extended to the justice system so that we don’t endure the farce of perfectly usable courtrooms sitting locked and empty due to “lack of sitting days” while judges get paid to sit at home. The backlog, both Covid-caused and historic, can be blasted away.
In the meantime, of course, justice and the courts cannot halt completely. Technology may – subject to the disastrous history of IT procurement in the courts – be capable of keeping shorter hearings on the road over the coming weeks and months. Video-links and telephone hearings have a poor record in practice, but offer a theoretical throughroad. Penal policy will have to change; early release of low-risk prisoners, hugely reduced sentences for guilty pleas and a statutory presumption against imprisonment may not be popular, but have to be given serious consideration. By minimising the number of participants required to attend hearings, reducing prison overcrowding and ensuring the court estate is fit for human habitation, urgent court business can tick along until we are through the worst.
Justice need not – indeed cannot – stop. Urgent court business must carry on. But jury trials as we know them cannot continue. It is telling that, when it first published its “priorities” in “managing our response to coronavirus”, the Ministry of Justice included no reference at all to the welfare of those actually using the courts. On the day that the “three-day rule” was announced, Robert Buckland tweeted that he was cancelling his constituency surgery because of “the government’s social distancing advice”.
The Lord Chancellor, and Lord Chief Justice, need to afford jurors, witnesses and court professionals the same consideration, and recognise the human cost of their stance before any more lives are unnecessarily put at risk.
As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.
The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.
So why am I concerned?
There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.
But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.
The problem is that I don’t think it will do that.
The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.
However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.
There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.
And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.
And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles  EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:
There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly.
The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that.
On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it.
The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
Findings of fact should be announced without, in most cases, supporting narrative.
If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course.
Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.
For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.
Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?
And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.
We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.
A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.
No time can be afforded in 2019 to respect the dead. Not when there’s an election at stake, and the tantalising prospect of scoring cheap political points winks coyly at you from a special advisor’s email. So it is that, within 24 hours after the killings by Usman Khan at London Bridge, politicians have lined up in descending order of deplorability to exploit the tragedy for their own ends. The Prime Minister obviously went first, leaping in front of Sky cameras last night to claim:
” I have long argued that it is a mistake to let serious and violent criminals out of prison early and it is very important that we get out of that habit and that we enforce the appropriate sentences for dangerous criminals, especially for terrorists that the public want to see.”
This, one presumes, is a nod to his well-publicised manifesto pledges to “toughen up sentences”, although (as we shall see) it is well worth reminding Mr Johnson, as he seems to have forgotten, that absolutely nothing in his manifesto would have made the slightest difference to the sentence or release in a case like that of Usman Khan. There followed a dash to ascribe culpability for the fact that Mr Khan had been released from prison after serving 8 years of a 16 year custodial term for a terrorism offence; it was the Parole Board, then the judges who had passed sentence on Khan, then, somehow, the EU, then, in perhaps Twitter’s lowest moment today, Khan’s blameless lawyers. This afternoon, Labour and Conservative figures took turns to cast blame, each frantically trying to plunge the hands of the other into the victims’ blood before it dried, notwithstanding the pleas of victims’ families not to make political capital out of lost lives.
Amid all the shouting and, in the case of the government, outright lying, the truth about how and why Khan was sentenced as he was has barely had a look in. So it is worth taking a quick look at ten things we actually know.
1. What was Usman Khan convicted and sentenced for?
Usman Khan, then aged 20, pleaded guilty on 31st January 2012 to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. This is an offence carrying a maximum sentence of life imprisonment. Although widely reported as relating to a plan to bomb the London Stock Exchange, the full facts (reported here) are worth reading, as the reality is more complicated. Khan, then aged 19, was part of a group based in Stoke who in November and December 2010 were engaged in a well-developed plan to raise funds to build a madrassa in Kashmir to train terrorists. While they had contemplated that some of those trained might return to the UK and involve themselves in terrorism, the basis on which they were convicted was that although they had discussed perpetrating a terror act in Stoke, they did not intend to participate in an act of terrorism in the UK in the immediate future. What they did do, however, was liaise with other groups in London and Cardiff, who were actively planning to leave an explosive device in the Stock Exchange. The groups, including Khan, had meetings and discussed common interests, such as how to make a pipe bomb, but by the time of conviction, the prosecution and defence had agreed that the Stoke group were not in fact involved in the Stock Exchange plot, and the guilty pleas that were entered by the various defendants reflected this, as they were pleas to different counts on the indictment.
Nervtheless, Khan was an obviously dangerous individual. He demonstrated “a serious long term attitude to establishing, funding and recruiting British Muslims to attend the madrassa and to then be available to commit terrorism abroad and at home.” And for that reason, on 9th February 2012, he was sentenced as a dangerous offender to detention for public protection (“DPP”) with a minimum custodial term of 8 years (minus time served on remand).
2. What is “detention for public protection”?
Detention for Public Protection (DPP) is a relative of the slightly more famous Imprisonment for Public Protection (IPP). Someone aged between 18 and 21 is sentenced to detention, rather than imprisonment, but the sentences are substantially the same. They were introduced in 2005, and where a defendant convicted of certain serious offences was assessed by a court as dangerous – meaning they posed a significant risk of serious harm to the public – but the seriousness of the offence they had committed did not justify a life sentence, IPP (or DPP) could be imposed instead. The effect was similar to a life sentence. The Crown Court would set a minimum term (tariff) which a defendant would have to spend in prison. After serving the minimum term, he would have to satisfy the Parole Board that his imprisonment was no longer necessary for the protection of the public. If he did so, he would be released on licence for at least 10 years. If he couldn’t, he would stay in prison until he could, potentially forever.
The minimum term was half of the equivalent sentence that a defendant would have received if he’d been sentenced to a standard determinate sentence. Why half? Because (as we’ll see below), since 2005 defendants serving determinate sentences have been automatically released at the halfway point. So in theory, if a dangerous offender fully rehabilitated himself in prison, he could be out at the same time as if he hadn’t been assessed dangerous in the first place.
So in Khan’s case, the sentencing judge found that, taking into account Khan’s young age and his guilty plea, the appropriate determinate sentence would have been 16 years, meaning the minimum term was 8 years.
3. So why was Khan’s sentence reduced by the Court of Appeal?
As ever, the best explanation is in the full judgment, which I’d urge you to read. Boiling the appeal down to its barest bones, the argument made on behalf of Khan was this. The London defendants – the ones who had planned to bomb the Stock Exchange – were deemed by the sentencing judge to be less dangerous than the Stoke defendants. This was because, although their criminality was, to quote the prosecution, “equally serious”, the Stoke defendants, including Khan, demonstrated a level of sophistication that made them more dangerous. The Court of Appeal, having heard arguments from the prosecution and the appellants, reached the conclusion that the judge was wrong to distinguish between the groups in this way. “If the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal [the Stoke lot] than those who were far closer to doing so [the London Stock Exchange lot],” in the word of Lord Justice Leveson.
Accordingly, the Court of Appeal gave Khan and his Stoke associates the same type of sentence as the London group received – an extended sentence. They disagreed with Khan’s argument that the custodial term of 16 years should be reduced.
4. What is an “Extended Sentence”?
This is where things get messy. Because we have had a lot of versions of Extended Sentences over the past 15 years, as governments have battled to secure headlines by tweaking and amending the various regimes on numerous occasions. The best summary is in this document by the Prison Reform Trust. In simple terms, if a defendant was found to be dangerous (as defined above), and a determinate sentence could not manage his risk, the court had to consider whether an Extended Sentence would do; if not, it would be IPP or life imprisonment. An Extended Sentence involved a custodial term (the same as would have been imposed for the offence for a “normal” defendant), with an extended period of licence of up to 5 years (for a violent offence) or 8 years (for a sexual offence).
So when the Court of Appeal passed an Extended Sentence on Khan, his custodial term was 16 years (as the sentencing judge thought it should be) and his period of extended licence was 5 years (the maximum).
5. When is somebody released from an Extended Sentence?
This is why it’s complicated. Successive governments changed the law governing release on multiple occasions. The full history is in the Prison Reform Trust document above, but suffice to say that in 2012, when Khan was sentenced, prisoners serving Extended Sentences were released automatically at the halfway stage of their custodial term, just like determinate prisoners. It therefore looks as if Khan was automatically released having served 8 years of the 16 year custodial term, and would have been on licence for the remaining 8 years, plus the extension of 5 years.
6. A dangerous offender being released automatically? That doesn’t sound very safe
No. It wasn’t, really. “EPPs” as they were called (Extended Sentences for Public Protection) were introduced alongside IPPs in 2005. Up until 2008, an EPP prisoner would be referred to the Parole Board at the halfway point of their custodial term. If they satisfied the Parole Board that their imprisonment was no longer necessary, they would be released on licence. If not, they would serve the full custodial term. In 2008, the law changed so that at the halfway point offenders were automatically released – no Parole Board input. This was in large part because the way in which the existing legislation required courts to treat dangerous offenders meant that the prison population had spiralled to uncontrollable levels. People were being given IPPs for relatively minor offences and finding themselves stuck in prison years after their minimum terms had expired. The prisons were unable to provide the courses that dangerous offenders needed to satisfy the Parole Board that their risk had reduced, and so many EPP prisoners were serving their full terms. The Criminal Justice and Immigration Act 2008 tweaked the law to give judges greater discretion as to when to pass an IPP, and also sought to introduce a release valve by automatically releasing EPP prisoners.
As for why we have automatic release at all, it’s worth addressing this briefly, as there remains an understandable public bugbear when it comes to the concept of automatic release at the halfway stage of a prison sentence. I’ve written about this in my book. The public hear or read “10 years”, and feel justifiably deceived when they discover that 10 means 5 (minus any time already served on remand awaiting trial or sentence). There are various reasons as to why we grant automatic release halfway through a sentence. One reason is that this mechanism saves the government money, gifting them the tabloid headlines of long prison sentences without the Treasury having to actually pay for them. Less cynically, it is also argued that it helps reintegrate prisoners into society and aids rehabilitation. If they reoffend on licence, or breach the conditions of their licence, they can be recalled to serve the remainder of their sentence. Automatic early release has varied throughout the years. The Conservatives in 1991 introduced the framework for the modern system, but it was in 2005 that the Labour government introduced automatic halfway release for all determinate sentences (as well as the IPP and EPP sentences) – more detail here. Worth remembering whenever one party accuses the other of being to “blame” for automatic release that all parties have at one time or another thought it a jolly good idea.
7. So at the time Khan was sentenced to an EPP, he would have been eligible for automatic release with no Parole Board oversight?
This now becomes even messier, because Khan’s appeal was heard after EPPs had been replaced by EDS, albeit he was originally sentenced when EPPs were in force. The Parole Board has emphasised that it had no part to play, but there has been much confusion over this, due in part to the BBC’s decision in its 2013 news report of the appeal to quote a part of the judgment completely out of context. The BBC reported this:
“Lord Justice Leveson said: “There is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous.
“There is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the Parole Board for consideration proximate in time to the date when release becomes possible.””
This sounds very much as if Leveson LJ is imposing a sentence that involves the Parole Board, right? Well put in its proper context, my interpretation is that, to the contrary, he was simply weighing up the competing arguments before concluding that an EPP, even though it meant automatic release, was appropriate:
Dealing first with the question of dangerousness, at the time that these appellants were sentenced, in our judgment there is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous within the meaning of the legislation: that includes Hussain and Latif to whom we refer below. Furthermore, given that it is difficult to identify the extent to which those who have been radicalised (perhaps as a result of immaturity or otherwise) will have modified their views having served a substantial term of imprisonment and there is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the parole board for consideration proximate in time to the date when release becomes possible.
On the other hand, the extent to which the evidence demonstrated that the threat of a terrorist attack had progressed beyond talk (however apparently determined) is relevant to the risk posed by the offender and the need to protect the public. The judge certainly concluded that the London planning had not progressed so far as to demonstrate such a risk that imprisonment for public protection was necessary and although we recognise that training terrorists in the use of firearms could only lead to potential loss of life, whereas the intention of the London defendants did not encompass death or serious injury (while recognising the serious risk that such would result), on any showing, the fulfilment of that goal was further removed and there were other obstacles (not least as a consequence of the fact that their activities had come to the attention of the security services in Pakistan). Furthermore, there is no suggestion that any of the Stoke defendants had, in fact, been trained, let alone that they would be in a position to activate, operate or participate within a training facility not then built, however keen they might have been to do so and however much they might have talked up their prospects between themselves or to others whom they sought to influence.
Notwithstanding the considerable respect that the conclusion reached by Wilkie J merits, we have come to the conclusion that if, as he concluded, the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal than those who were far closer to doing so.
So it appears as if the Court of Appeal understood that it was imposing an old-style EPP, which makes sense given that the Court of Appeal’s powers on allowing an appeal against sentence are to “pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence. This would have meant that the Court of Appeal imposed the same type of old-style Extended Sentence as was passed on the London co-defendants, and that therefore, as it has confirmed, the Parole Board had no role to play in Khan’s release.
8. Are dangerous offenders still automatically released at the halfway stage of their sentence?
A lot has changed since 2008. IPPs have now gone. The failure of the prison system to make available to prisoners the rehabilitative programmes they needed to take to secure their release, due to the horrendous overcrowding, was a genuine Kafkaesque nightmare, which the European Court of Human Rights in 2012 declared was unlawful. The coalition government responded by abolishing IPPs in 2012 (although not for prisoners still serving those sentences), and introducing new Extended Determinate Sentences. It is worth emphasising, to rebut nonsense published by Breitbart contributors today, that the ECtHR ruling on IPPs had nothing whatsoever to do with the Court of Appeal decision in Khan’s case. The Court of Appeal could have lawfully upheld the IPP if it wanted. It was not forced, either by government or by the ECtHR, to change the sentence.
These new Extended Determinate Sentences (EDS) worked like old EPPs, except that you would be automatically released at the two thirds stage of your sentence if your custodial term was under 10 years, and would go before the Parole Board at the two thirds stage if your custodial term was 10 years or more or you were convicted of certain specified offences.
9. So the coalition government were still automatically releasing dangerous offenders?
Yes. They were being kept in for slightly longer, but there was still no Parole Board oversight, except for the most dangerous of dangerous offenders. This changed in 2015, when all EDS prisoners were required to secure Parole Board approval for release at the two thirds stage. That remains the position today.
10. What is the government proposing to do?
To listen to the Prime Minister’s rhetoric, plenty. To read his manifesto, nothing. The changes that are proposed to release provisions relate specifically to offenders who do not receive EDS – the government wants to make it so that a tiny handful of defendants who are possibly a bit-sort-of-dangerous-but-maybe-not will serve two thirds of their sentence before automatic release. So they are not proposing to introduce any further Parole Board oversight of these prisoners – simply to keep them in a bit longer so that Johnson can boast about increasing sentences.
Much of what has been said today by government ministers is completely false. Priti Patel claimed:
Because legislation brought in by your government in 2008 meant that dangerous terrorists had to automatically be released after half of their jail term. Conservatives changed the law in 2012 to end your automatic release policy but Khan was convicted before this. https://t.co/8fCm880MSK
This is a lie. The courts had several options to deal with “dangerous terrorists” that would have avoided automatic release. The reason for Khan’s sentence was that the Court of Appeal ruled (to be proved tragically wrong) that Khan’s risk did not require the input of the Parole Board that an IPP would have guaranteed.
Brandon Lewis said, in response to Yvette Cooper getting bogged down in confusion over Leveson’s comment about the Parole Board:
Because legislation brought in by your government meant that dangerous terrorists had to automatically be released after half of their jail term. We are going to fix this and ensure that people serve their full term.'
This is a lie. Nowhere has the government proposed in its manifesto to “ensure that people serve their full term”. Likewise Ms Cooper spread misinformation when she suggested that the government’s 2012 reforms had a bearing on the sentence. This, as we’ve seen, is simply untrue.
And, of course, the Prime Minister:
"This guy was out on automatic early release and I have long said that this system simply isn't working."
PM @BorisJohnson says his "immediate takeaway" from the #LondonBridge attack is that people should 'serve the term of their sentence'.
Repeating Lewis’ claim, if this is something Johnson has “long said”, one might ask why ensuring defendants serve the full term of their sentence is not mentioned in the manifesto. If this is such an obvious failing, why not promise to remedy it? Heaven forfend this is ad-hoc, evidence-free electioneering.
11. So where does the blame lie?
Blame is rarely helpful, as with almost all of these cases, the tragedy is multi-causal. Labour introduced automatic release for EPP prisoners in response to its own prisons crisis (caused by its own “tough on crime” rhetoric), but the Coalition government was responsible for the statutory regime at the time of Khan’s case. It’s nonsense to suggest that Labour’s changes in 2005 prevented judges from passing adequate sentences on dangerous offenders; for one, the government had plenty of time until 2012 to amend the sentencing regime it inherited from Labour if it considered it to be so inadequate. The Court of Appeal finds itself in the unusual position of being criticised for being too lenient; almost every criminal law practitioner would tell you that the Court of Appeal is (in)famous for its reluctance to interfere with convictions and sentences, finding sometimes ingenious/disingenuous ways of upholding Crown Court decisions. The judgment appears well-reasoned given the known facts, but hindsight casts it in obvious doubt. For what it’s worth, the Sentencing Guidelines that now exist for terror offences would, on my interpretation of the facts, be likely to lead to a life sentence for Khan were he being sentenced today. And something that has been missed is that since 2015 nobody imprisoned for a terrorism offence is automatically released; in the unlikely event that he is not sentenced to EDS or life imprisonment, the court is required to order him “an offender of particular concern”, meaning that at the halfway point of his sentence he has to apply to the Parole Board for release.
Perhaps the focus, rather than on “tougher sentences”, ought be trained a little closer to the less tabloid-friendly dimension of criminal justice: Prisons and probation have been ravaged by huge cuts and disastrous reforms, meaning that Khan would have likely received little meaningful rehabilitation while in custody. If I were directing an inquest, I’d start there.
UPDATE: Overnight, the Prime Minister’s posturing has crystallised into hastily scrawled new policies, announced in op-eds in the Sunday tabloids repeating various untruths dealt with above, including falsely suggesting that we still have the same system as in 2008 and claiming that he has been talking about “abolishing automatic early release” for “four months”, despite not devoting a single word to this is his manifesto, nor making any effort to include this change in the recently enacted Counter Terrorism and Border Security Act 2019, a flagship piece of anti-terror legislation which focussed specifically on sentencing for terrorism offences. He also claimed, with characteristic fidelity to accuracy, that Khan was “sentenced 11 years ago”. Anyway, the overnight brainwave will apparently now herald a minimum 14 year sentence for defendants convicted of (unspecified) terrorism offences, with a suggestion that they will be required to “serve every day of their sentence, with no exceptions.”
As this is likely to run and run today, forgive me if I repeat this: In 2019, no terrorist sentenced to a term of imprisonment is subject to automatic early release. The Prime Minister’s attempts to suggest that we have the same system as applied at the time of Usman Khan’s sentence, and that he is the man to fix it, are dishonest, cynical and exploitative.
This will be (for now) my last word on the Tommy Robinson appeal. My legal analysis based on the facts as we now know them deals exhaustively and exhaustingly with the law; my reflections at the conclusion of that piece on whether I was too hasty to assume the correctness of the procedure, I stand by. Being quick to form views in the absence of the full facts is a bear trap I haughtily deplore when others fall in; it is only right to acknowledge if and when I teeter on the brink myself.
But I want to say something, for what little it is worth, about our understanding of justice. And my leaping-off point for this is something that a number of people have drawn my attention to today – this leader in The Sun.
The tweets to me accompanying this photo have been almost uniform: Who’d Have Thunk it, The Sun sticking it to Robinson and Co, Good On ‘Em.
And parts of this leader are indeed brilliant. Whacking to pieces the myth of this oppressed citizen journalist is vital, and needs doing as often as the piñata is reassembled by far-right agitators. Pointing out that the reporting restrictions that Robinson breached have nothing to do with political correctness and everything to do with ensuring a fair trial – the genius is in the simplicity of its expression. Spelling out in equally simple and clear terms the danger that such actions pose to victims of crime receiving justice – [INSERT MERYL STREEP APPLAUSE GIF].
But there’s a line buried within which troubles me, and echoes a sentiment that has been tweeted at me a lot in the erroneous assumption that I share it:
“His many convictions stretch from violence to fraud. We have no sympathy.”
This ugly and unnecessary throwaway reveals one of the biggest problems we have with our understanding of justice; the same problems that many of us are quick to highlight in our opponents. And that is that Robinson’s character, conduct and previous convictions, as reprehensible as they may be, are utterly irrelevant to the issue determined at the appeal, namely whether he received a fair hearing. If he did not – and he did not – he is as entitled as any of us to redress, or at the very least to an acknowledgment of being wronged. The attitude of “Who cares? He’s a criminal” mirrors the exact sentiment that has left the criminal justice system – from legal aid through to prisons – in its present desperate state.
It is immaterial whether Robinson has committed horrible crimes. Many people who appear before the courts have, especially in my line of work. And rights, if they mean anything, have to apply to everyone. It’s an obvious point, but this fundament of the rule of law is too often forgotten when we are confronted by society’s most unlovely.
If we neglect our first principles of justice, we fall into the trap carefully lain by the far-right. Their entire, dishonest thesis – from Trump through to Robinson – is that they are deprived of natural justice by its unequal, unprincipled application at the hands of liberal enemies of the people. By denigrating and distorting the rule of law they aim to undermine and ultimately destroy it. Implying that Robinson’s previous criminal record renders him less deserving of justice than the rest of us hands the far-right the prize they crave.
Don’t be fooled by the strained triumphalism of the far-right over yesterday’s outcome. This result is a disaster for them. It categorically disproves to a global audience every conspiratorial tenet of their religion. The liberal judges are not locking up political dissidents. There is no state cover-up. Mistakes, when made in the legal system, can and often will publicly be righted.
They may be proclaiming that they fought the law and won, but for the truth just ask The Clash. The winner, if we must talk in such terms, is justice.
Which moves me back to The Sun, and the risk of an equivalent false triumphalism on the other side. For just as the far-right mendaciously spin this righting of a procedural wrong as a “victory for free speech” – by which they mean the right to hound Asians accused of criminal offences – so we risk self-denigration by dismissing, or worse revelling in, the punitive effect of the court’s error. The joy that some are taking in the notion of Robinson’s imprisonment borders on the macabre.
I’m afraid if you’re supportively tweeting me amidst the blizzard of the racist bots to share a gloat that Robinson has maybe spent more time in prison than he should have, or to gleefully cross fingers that he gets longer next time, I’m not your ally in this cause.
It may be, when the contempt matter is dealt with anew by the Old Bailey, that a sentence is passed which matches or even exceeds what Robinson has already served. But at present, he served a sentence that followed an unlawful procedure. That shouldn’t happen. To anybody.
And if he does receive a lesser sentence – if the court, after a full and leisurely hearing at which all mitigation is made available finds that the appropriate sentence is much lower than he received first time round – and if it means he has therefore served longer than he should have, all the arguments I’ve made in my book about miscarriages of justice apply. It’s wrong. He should be entitled to an apology, and recompense, and all the other make-goods I demand on behalf of others. His perceived or actual shittiness is not material. If he has been imprisoned when he should not have been due to state error, it’s as much a problem as if it happened to “one of the good guys”.
So those are my closing musings. I have no issue at all – and nor should any of us – with Robinson seeking to and succeeding to challenge the lawfulness of his treatment at the hands of the courts. We are all entitled to due process, and should all expect, however abominable others may consider us to be, that the law will be applied fairly and correctly. My concern, contrary to what the Breitbarters would like to pretend, has always been the mob lining up behind Robinson to spread lies and quite literal fake news as to what took place, what the factual and legal issues are and how the law operates. Those peddlers of hate and deceit – the UKIPs, the Breitbarts, the Rebel Media, the Infowars, the unmentionable Twitter favourites – I will continue to resist as long as I keep up this vainglorious mission to bring law to the people who own it.
But as for what happens to Robinson now, all that should matter is that he gets justice. If, in his righteous pursuit, he encourages his supporters to continue their threats to the rule of law, their riots, their organised campaigns of racialised misinformation, I will be there waving my tiny paper sword on the front line.
But taking any sort of pleasure in anybody being failed by the justice system? We’re better than that. Let’s show it.
Today the Court of Appeal (Criminal Division) handed down judgment in the appeal of Stephen Yaxley-Lennon (AKA Tommy Robinson), partially allowing the appeal and directing a rehearing at the Crown Court.
What does this mean? Has Tommy been proven innocent? Is this a victory for freedom of speech?
Let’s break it down.
How did this all start?
Yaxley-Lennon was committed to prison for 13 months on 25 May 2018, after attending a trial at Leeds Crown Court and streaming a live-feed on Facebook in which he broadcasted details of the trial and of the defendants. That particular trial was subject to reporting restrictions imposed by the judge, prohibiting reporting of the details until the conclusion of the trial, and of other linked proceedings. By broadcasting in the way that he did, Yaxley-Lennon was in breach of the reporting restriction, an act which amounts to contempt of court. A year earlier, he had committed a separate contempt of court at Canterbury Crown Court by broadcasting prejudicial material about the case. On that occasion he had been made subject to a suspended sentence of 3 months. On 25 May 2018, when he was found to have committed contempt of court again, he was given 10 months for the new contempt, and the 3 months from Canterbury was “activated” and ordered to run consecutively, making a total period of imprisonment of 13 months.
What is contempt of court?
Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication.
The reason is straightforward. The priority in every criminal case is ensuring a fair trial. This of course matters not just to the defendant, whose liberty is on the line, but to the witnesses, complainants, victims and public. Prejudicial material – such as televised speculation over whether a defendant “did it”, or orchestrated campaigns by special interest groups seeking to secure one type of verdict for political reasons – could potentially influence a jury. We don’t sequester juries in England and Wales (barricade them in hotels cut off from the world for the duration of trials). They are instead allowed to continue their normal lives, but are given firm directions by judges not to conduct their own research into the case they are trying,
The reason, juries are told, is twofold. Firstly, a jury’s own independent research runs the risk of being unreliable, even more so in the era of fake news. Deciding the case on flawed information risks catastrophic miscarriages of justice. Secondly, it is not fair to the parties. The advocates in court address the jury and make arguments on the evidence. If juries have taken into account their own private research about which the advocates are unaware, the parties are unable to assess or test its reliability, or to address the jury on what their client (either defendant or prosecution) says about it.
Thirdly, strict rules of evidence operate in criminal trials to filter the evidence that juries hear in a case, to ensure it is (a) relevant, (b) reliable and (c) not overly prejudicial to the defendant. It rather defeats the point if as soon as a juror turns on the TV they are confronted by a perma-tanned bozo offering half-baked opinions on the very matters that a judge has ruled a jury shouldn’t be told about.
So nobody can report on criminal trials, is that what you’re saying?
No, far from it. Anything can be reported which is not prejudicial (and which is not subject to reporting restrictions – see below). And if something prejudicial is reported in the course of fair and accurate reporting of an ongoing case, there is a specific statutory defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Similarly, publications contributing in good faith to discussions of public affairs or matters of public interest if the risk of prejudice created is merely incidental to the discussion. So, to give a topical example, the media is allowed to discuss and debate the way in which we should deal with the rising incidence of acid attacks, even though there are many such trials ongoing across the country and there is arguably a risk of prejudice in ingraining hostile attitudes among potential jurors. No media outlet has been accused of contempt, and nor is anyone likely to be, for taking part in this general discussion.
So we can see that the law gives considerable latitude to the press and ensures that the media do not shy away from accurate, factual reporting of criminal proceedings, or of discussing matters of public interest. The idea is to balance the importance of open justice with the centrality of ensuring a fair trial.
So is that the only way that contempt of court can be committed? Do you have to be prejudicing proceedings?
Not always. Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).
Then there are contempts which strike at the authority of the court, where there is no requirement that the fairness of proceedings be prejudiced. There are what are referred to as “civil contempts”, where, for example, an order made by a court ordering one party to do something is breached, and the other party complains to the court.
There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order. Such as, for instance, a reporting restriction.
Contempt – however committed – carries a maximum penalty of committal to prison for up to two years. Note that slightly tortured phrasing – “committal to prison”, rather than “sentenced to imprisonment”. It’s a distinction which becomes relevant at the appeal.
What is a reporting restriction? I thought you said people are allowed to report fairly and accurately on live criminal cases?
The starting point of our criminal justice system is that justice must be seen to be done. However, the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.
One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is:
Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings?
Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective?
On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice?
Back to Tommy Robinson – how was he in contempt of court?
He was dealt with for two contempts of court. It helps to take them in turn.
On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925,), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.
It was held that this behaviour was capable of prejudicing the ongoing trial. The finding of the judge, from the judgment, was that in acting in this way, Yaxley-Lennon had committed a “criminal contempt” – what is otherwise known as a contempt “in the face of the court”. He was also in contempt by virtue of filming in breach of section 41. He was committed to prison for 3 months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows:
“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.
In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”
Fast-forward to this year. On 25 May 2018, Yaxley-Lennon attended Leeds Crown Court to “report” on an ongoing trial. [The subject of this trial is still subject to reporting restrictions and so is not mentioned here. I will update when the restriction is lifted.] He live-streamed a Facebook video in which he made various comments about the defendants, including reading out their names and referring to their religion, ethnicity and questioning the need for reporting restrictions. He encouraged people to share the video, which many did. This was at a time when, as Robinson knew, a “postponement order” under s.4(2) of the Contempt of Court Act 1981was in place, which prohibited any reporting on the details of the trial until the conclusion of a “linked trial” – as explained above.
If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive.
And this is where Yaxley-Lennon found himself. Arrested by police (initially for a breach of the peace, but then dealt with in court for contempt – this is entirely unremarkable, despite the attention given to it by Yaxley-Lennon’s supporters) and brought before the judge facing an allegation of contempt. Contempt having been admitted, Yaxley-Lennon’s barrister advanced mitigation, and HHJ Marson committed YL to prison for a total of 13 months. 10 months was for the new offence, with the three-month suspended sentence activated and ordered to run consecutively. The process was quick – 5 hours from arrest to imprisonment.
What were the grounds of appeal?
The appeal focussed on three principal arguments:
The findings of contempt at both Canterbury and Leeds did not comply with the Criminal Procedure Rules;
Neither the matter at Canterbury nor Leeds should have proceeded summarily; they should have been adjourned and referred to the Attorney General rather than dealt with swiftly by the trial judge;
The judge in Leeds punished the appellant for matters falling outside the scope of contempt and failed to properly identify the conduct he was treating as contempt of court.
A contemnor (as is the official term) has an automatic right to appeal to the Court of Appeal (unlike ordinary convictions or sentences where the Court of Appeal must give permission to a would-be appellant). However this has to be exercised within 28 days of the finding appealed against. While the appeal against the length of the committal (the “sentence”, if you like) was lodged in time, it was not until some time later that Robinson decided that he wanted to appeal against the findings of contempt. He therefore required the court to grant an extension of time for him to appeal.
Given the misinformation that has been spread, it is worth emphasising two things at this stage. Firstly, it was widely reported (including by me) before the appeal hearing that Robinson was not appealing against the findings of contempt. We did so because this is what Robinson’s official spokesperson, and the media organisation supporting him, publicly announced. He deliberately chose not to publicise the fact that he was appealing against the findings of contempt, and the first that this was known was on the day of the appeal. Secondly, the arguments against the findings of contempt was entirely procedural. In other words, his barrister explicitly accepted that what Robinson had done amounted to contempt of court. The argument was simply that the court hadn’t dealt with it as the law requires.
Let’s take each part of the appeal in turn. What was that about the Criminal Procedure Rues?
The Criminal Procedure Rules were introduced in 2005 to impose some sort of order on the routine chaos of criminal proceedings. They are lengthy and comprehensive, and prescribe the procedures that the criminal courts must follow.
Contempt proceedings can be started either by the court (i.e. the judge), or following a reference to the Attorney General, who as the “guardian of the integrity of the administration of justice” often takes charge.
When the court is dealing with an alleged contempt of court, the relevant procedure is set out at Criminal Procedure Rule 48. The law permits the court to deal with contempts summarily – i.e. straight away – or to adjourn to another date, as long as the procedure is fair. What is appropriate will depend on the circumstances. Where someone is interrupting a trial, for instance, it will usually be right for the court to deal with the contempt immediately to avoid further disruption. However the Court of Appeal, referring to case law, emphasised that this procedure should be used sparingly. Where there can safely be an adjournment, there should be.
Another important feature is that the court should “particularise” the contempt – spell it out so that the alleged contemnor knows what they are supposed to have done. An extract of the procedure is here:
If, having completed the initial procedure (which includes offering the contemnor a chance to apologise), the judge decides that further action is to be taken, the court must embark upon an “enquiry” (the name for the hearing of a criminal contempt). A court can postpone an enquiry for further investigation.
So where did Canterbury Crown Court go wrong?
It didn’t. Robinson argued that the judge had failed to provide the written statement of particulars of the contempt required by Rule 48.7. However, the Court of Appeal, following the appeal hearing last month, came into receipt of “late disclosure”, which showed that “a deliberate tactical decision was made by [Robinson’s] legal advisers at Canterbury to be complicit in the court’s failure to comply with Rule 48.” The appellant waived legal privilege (a common request made by the Court of Appeal in appeals where criticism is made of how Crown Court proceedings were conducted) which allowed the Court of Appeal to read the legal advice he received. And it emerged that a conscious decision was taken by his legal team not to invite the judge to follow the correct procedure, as they thought they would secure a tactical advantage by making the judge “uneasy” about the proceedings.
The Court of Appeal was not impressed, telling Robinson:
“It lies ill in the mouth of an appellant to complain of the failure of the court below to follow the appropriate procedural steps when that failure was fully appreciated at the time and remained deliberately uncorrected for tactical reasons and collateral advantage.”
The Court added that the new barristers instructed for the appeal were unaware of this until after the appeal hearing, and disclosed it promptly when it came to their attention.
In any case, the Court of Appeal said that nothing procedurally was flawed in Canterbury. The judge had adjourned the contempt hearing for 12 days to allow time for him to take legal advice. Any failure to follow the CrimPR was immaterial.
The appeal against the Canterbury contempt was therefore dismissed.
10. What about Leeds Crown Court?
This was very different. The time between arrest and imprisonment was five hours. The Court of Appeal was highly critical:
“Such haste gave rise to a real risk that procedural safeguards would be overlooked, the nature of the contempt alleged would remain inadequately scrutinised and that points of significant mitigation would be missed. Those risks materialised.”
The Court of Appeal said that the judge was right to order that Robinson immediately take down the video, but that he should then have “taken stock”. He should have either adjourned for a later hearing, or referred the matter to the Attorney General to consider. The Court of Appeal displayed some sympathy towards the judge’s position, but made clear it disapproved of his chosen course:
“We recognise that the judge was placed in an invidious position because he was concerned about the integrity of the trial which was almost at its end. The three trials, of which this was the second, were exceptionally difficult and sensitive. Having decided to suspend the deliberations of the jury, it is understandable that he may have felt under some pressure to resolve the issue of the appellant’s contempt expeditiously. However, once it had become apparent that the appellant was co-operating in removing the material from the internet, there was no reason why the jury could not have been permitted to resume their deliberations. If there was any doubt about the intentions of the appellant, the judge could have sought an undertaking from or ordered, the appellant not to comment further on the trial or approach the court until the trial (or trials) had concluded.”
There was also confusion, due to the lack of particulars of the contempt, as to what conduct the judge was dealing with Robinson for. He was in breach of the reporting restriction, but the judge also appeared to suggest that other comments in the video – relating to the defendants’ ethnicity and religion – would amount to a separate criminal contempt. But it was all rather fuzzy, and deeply unsatisfactory:
“In our judgment the failure to follow the requirements of Part 48 of the Rules was much more than a technical failure. In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name. In this case there was no clarity at all about what the appellant was admitting and for what parts of his broadcast he was considered by the judge to be guilty of contempt of court for breach of the section 4(2) order.”
As far as the length of sentence was concerned, the Court of Appeal criticised the decision not to adjourn for a Pre-Sentence Report (or “Pre-Commital Report”), and accepted that the speed of the hearing meant that the level of detail of mitigation put before the court was “very limited indeed”.
So the Court of Appeal quashed the Leeds contempt?
It did, and all consequential orders (i.e. the sentence) fell away. However that is not the end of it. The Court remitted (sent back) the contempt for a fresh hearing at the Crown Court before a different judge. When the contempt is established (as it surely will be given that Robinson has admitted through his barrister at the Court of Appeal that he breached the reporting restrictions), he will be sentenced afresh.
What’s the point? As Tommy’s barrister said, he’s served the equivalent of a four-month sentence. If the Court of Appeal accepted that there was important mitigation not heard, surely he’s going to receive a much shorter sentence?
Not necessarily. There was a sting in the tail of the judgment. The Court of Appeal observed that “the alleged contempt was serious and the sentence might be longer than that already served.” It also set out, for the benefit of any future sentencing court, the criteria that should be considered when passing sentence:
(a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them;
(b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;
(c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;
(d) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;
(e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;
(f) the scale of sentences in similar cases, albeit each case must turn on its own facts;
(g) the antecedents, personal circumstances and characteristics of the contemnor;
(h) whether or not a special deterrent was needed in the particular circumstances of the case.
Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences:
(a) Trials may have to be abandoned irretrievably;
(b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense;
(c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time;
(d) The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense.
So Tommy is free. This is a victory for free speech, right?
No. It is a victory for the procedural rules, and a sharp reminder to the courts of the need to follow them. But certain key takeaways remain:
Robinson admitted that he was in contempt of court at Canterbury, through racially charged and aggressive hounding of defendants which risked derailing a serious sex trial and denying justice to victims of sexual offending;
Robinson admitted through his barrister that he was in breach of the reporting restrictions at Leeds Crown Court. It was never suggested, by his barrister or anyone else, that the reporting restrictions were inappropriate. It was agreed by all that they were necessary to ensure the fairness of serious trials.
“Free speech” has nothing to do with this decision. This was not a case of Robinson “exposing” something the state was trying to cover up. At both Canterbury and Leeds, he was interfering in a live criminal trial in defiance of laws designed to ensure the trial was fair. The cases would have been reported in full by journalists once the postponement order was over. The only thing added to the sum of human experience by Robinson’s “citizen journalism” was the very real risk of serious criminal cases collapsing.
14. This shows that you know NOTHING, fake barrister. You were wrong, weren’t you?
Yes. My initial impression, based on the limited information available, was that the summary procedure was appropriate in the Leeds case. As the Court of Appeal explained, it was not. There were alternatives open to the judge which should have been explored. There were also obvious failings to abide by the procedural rules, although I would plead in mitigation that none of that information was available at the time that the story was first reported. As a result, the hearing was not fair. Whether the sentence was appropriate was not decided by the Court of Appeal and may perhaps be best assessed by what the freshly-constituted Crown Court decides to do, (although my position on that was neutral – I observed simply that the sentence was not out of the ordinary for serious contempts of court.)
So I hold my hands up – imperfect information makes for imperfect predictions. But is there a wider issue here, among me and other legal commentators? Were we too quick to dismiss the case with a “nothing to see here” wave of the hand, blinded by the unappealing nature of Robinson’s supporters and the organised maelstrom of fake news stirred up here and abroad? Maybe we were. Maybe we could have – should have – cleared our ears and browsers of the white (pride) noise and paid greater heed to the arguments of due process. Maybe a little more humility is required in these difficult cases. I am normally conscious in all legal blogging to couch in terms of conditionals – if this report is accurate, then the explanation might be X. Was I too quick to assume, wrongly, that the judge had acted correctly?
I think I may have been. But looking back over the litany of plainly false statements circulated between May and now – that Robinson’s “reporting” was nothing more than the BBC had done; that he was targeted by the deep state; that Robinson’s original barrister was an “unqualified duty solicitor”; that TR was never in contempt of court as the trial was over; that the courts were “covering up” serious crimes by certain racial groups; the dishonest framing of the debate as one of “free speech” rather than interfering with justice; and the other hundreds of fantastical theories clogging my Twitter notifications today – I’d suggest, self-servingly, that an inaccurate but well-meaning prediction – such as we all make in the courts every day – is lesser a social evil than the deliberate, racially-tinged misinformation campaign that we do our best to counter.
Yesterday at Uxbridge magistrates’ court, Stanislaw Skupian (38) was sentenced by magistrates having pleaded guilty at an earlier hearing on 18 May to fraud, after he picked up a race card number dropped by runner Jake Halliday at the 23-mile mark and illicitly joined the race himself. He crossed the finish line and celebrated with the medal intended for Mr Halliday, who found himself removed from the race 300 metres from the Finish line when marshals spotted that he was not wearing a race number.
The Chair of the bench passing sentence told Skupian, a homeless father-of-one who had recently suffered a temporary breakdown in his mental health, “The offences are so serious [that] only a prison sentence will suffice”. 13 weeks’ imprisonment was passed, with three weeks’ imprisonment imposed consecutively for unrelated matters of theft.
The Chief Executive of the London Marathon, Nick Bitel, reportedly said that “justice has been done”. His apparent pleasure with the sentence was not matched by many people on social media, who expressed consternation at a mentally-unwell homeless man being squeezed into our bursting prisons for a non-violent offence.
So what the Dickens has gone on?
Stanislaw Skupian was charged with fraud by false representation, contrary to sections 1 and 2 of the Fraud Act 2006. The “false representation” being, presumably, the implied representation that he was the rightful owner of Mr Halliday’s race number and was entitled to complete the race and claim the finishers’ medal. This offence carries a maximum sentence of 10 years’ imprisonment in the Crown Court, or six months’ imprisonment in the magistrates’ court. He was sentenced to 13 weeks’ imprisonment.
He was also charged with three unrelated offences of theft. He was arrested at the multi-faith prayer room at Heathrow Airport, where he was found with items including a primary school worker’s identity card and a pink diary holding overtime hours worked by airline staff. It was said that Skupian viewed the airport as a temporary home and had picked up items discarded. This would amount to theft (referred to in court as “theft by finding”) under s.1 of the Theft Act 1968. He received three weeks’ imprisonment for these offences, to run consecutively to the 13 weeks imposed on the fraud (it is unclear whether this was one week consecutive for each of the three theft charges, or three weeks on each directed to run concurrently to each other, or some other mad configuration dreamed up by the magistrates).
He was further made subject to a Criminal Behaviour Order, which is the new replacement for the old-fashioned ASBO. These can be imposed where the court is satisfied that a defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and where a Criminal Behaviour Order will help in preventing the defendant from acting in that way. In this case, the court deemed that banning the defendant from Heathrow Airport for three years, unless he has a pre-booked flight, was an appropriate use of that power.
On the Guideline for straightforward fraud, the first step is to assess culpability by reference to the below factors:
There are plainly no elements of “High culpability” in this case. It would appear, in the absence of any evidence to the contrary, that this was an opportunistic, one-off offence with very little planning, which points towards Lesser culpability.
Now we turn to the assessment of harm:
For fraud, you take as your starting point the financial loss to the victim. Here, it is very low indeed. The cost of entering the London Marathon ballot, at £39, is probably the closest financial value you can attach to this unusual offence (the value of the medal not being easily assessed due to it not being something purchasable on the open market). This puts us in the lowest category, Category 5.
But then we have to look at the impact upon the victim, to see whether it warrants the sentence being moved upwards. This is a slightly unusual case, because although (I expect) the charge would have been drafted with London Marathon as the nominal victim, the person most directly affected is arguably Jake Halliday. He was stopped 300 metres from the finishing line and told that he was not allowed to cross due to his number having fallen off. He had raised £49,000 for a charity, Bloodwise, and was prevented from completing the race, having run the best part of 26 miles, in the cruellest of circumstances. What was (one might expect) a lifetime ambition was snatched away. That no doubt had a considerable detrimental effect on him.
However. Can it really be suggested that Skupian was responsible for depriving Mr Halliday of his moment of glory? It was said in court (and seemingly not disputed) that he spied the discarded race identifier on the floor and saw an opportunity. He did not steal or otherwise remove the number from Mr Halliday. It does not appear that he watched it fall and swooped in. If, as the court apparently accepted, he had simply seen it on the ground, was the damage not already done? Perhaps he could have handed the card to an official, but it is unclear how it could have been reunited with Mr Halliday in order for him to have been able to complete the race. The London Marathon Final Instructions to runners emphasises the importance of taking care of the running number – “Duplicate numbers cannot be issued under any circumstances”. It is also stated that anybody taking part without a number will be removed from the race by marshals “before you cross the Finish line”. Once that number had fallen, it would appear (and I’ll be happily corrected if I’m mistaken) that the game was over for Jake Halliday.
Against this backdrop, it might realistically be argued that while Skupian exploited Mr Halliday’s misfortune, his criminal behaviour did not cause it. The anger and humiliation felt by Mr Halliday when he learned that somebody had claimed his number and completed the race in his stead may well be significant, but is it so great as to move the harm out of “Lesser impact”? I suppose it might. Just.
My assessment is that for these reasons, this case probably falls somewhere between, categories 4C and 5C:
We can see that the latter provides a starting point of a ‘Band B fine’, which equates to around 100% of somebody’s weekly income. The category range is a discharge – a slap on the wrist – up to a medium level community order. If the harm caused is deemed serious enough to lift it up to the next category, the starting point is a medium level community order. Still the category range does not extend to custody. In order to arrive at a category where a custodial term is available, the court would have to have assessed culpability as “B”. I find it tricky to see how this was done.
We then look at aggravating and mitigating factors:
The defendant had a previous conviction for attempted theft. That was the only matter mentioned in court. So while it is a similar type of offence, this is hardly the kind of record which would seriously aggravate a defendant’s position to make the difference between custody and not-custody. No other aggravating features listed are relevant.
In mitigation, the court heard that the defendant has lived in the UK for 11 years. He suffered a neck injury in a serious car crash last year, forcing him to take sick leave from his catering job. His marriage broke down and he lost his home. Shortly before the race, he had suffered a “short, temporary breakdown in his mental state”. It was also submitted that he had committed the offence out of excitement, without fully appreciating that what he was doing was wrong.
Putting all this together, I’d say there’s more to mitigate his position than to aggravate it. This would mean moving below the starting point on the Guidelines.
We then have the issue of credit for guilty plea. He admitted the offence at the very first hearing, and so is entitled to one third off his sentence. This means that the magistrates must have taken a starting point of 20 weeks in order to arrive at a final sentence of 13 weeks for this offence.
[The thefts we shall put to one side as we do not know their value. What we can infer, however, is that they were considered significantly less serious than the fraud.]
Based on what we know, this appears to be a very harsh sentence. While this is not the type of fraud envisaged by those who drafted the Guidelines, it is difficult to see how a straightforward assessment of culpability and harm could lead a court to a starting point of 20 weeks for this single offence. The defendant has an automatic right to appeal his sentence to the Crown Court. I would not be surprised if he exercised it.
There are unknowns, of course. There would have been a Pre-Sentence Report prepared by the Probation Service, whose views would have informed the court’s. It may be that they were unable to offer any alternative to custody, although experience would dictate that a homeless man with a limited criminal record and mental health problems is the kind of person the Probation Service try to persuade the courts to let them help. It would be a sad day indeed if all that our justice system could offer to improve this man were two pointless months of incarceration.
I have written about magistrates before, including in my book, and one of my criticisms is that sometimes a sense of perspective is lacking when these non-legally qualified volunteers are sentencing offenders. Just because a power of imprisonment exists does not mean that it has to be used. This sentence, based on what we know, appears to be one such example. That it can be said that the offence was so serious that only a prison sentence can suffice is, with respect to the sentencing court, perverse. Courts often find ways to avoid immediate custody in cases which are far more serious, involving offenders with significantly worse records.
And I’ll seize on those words – “based on what we know” – to pirouette into a final flourish on my soapbox, if I may:
This case had received national media attention when Mr Skupian made his first appearance at court and pleaded guilty. It was plain to the court administration and to the magistrates that the outcome of this case would be widely reported. Yet still the magistrates did not see fit to publish written sentencing remarks explaining their decision.
This is a drum I have unapologetically beaten for some considerable time. Because while good court reporters should accurately reflect the full reasons given for a sentence passed, inevitably there will be occasions where something is missed in the hustle of a chaotic magistrates’ court list. Submissions and decisions as to where the case falls in the Sentencing Guidelines, for example, hold little interest to the average reader and may understandably not make it into the final copy, but to lawyers analysing and explaining the decision these can be critical.
Magistrates, judges and lawyers cannot complain that their remarks or decisions have been unfairly portrayed if they don’t bother to do the basics. It would have taken an extra ten minutes, one supposes, for the remarks to have been committed to paper, copied and distributed before being read out, and then everybody would be able to see how and why the decision was reached.
As it is, we are once again left groping in the dark, or at best the dusk, in trying to understand how our criminal justice system is – or in this case is apparently not – working.
My latest piece for iNews, on the Supreme Court decision concerning the victims of John Worboys and their fight for compensation for police failings in the investigation into Worboys’ crimes, is available to read here, should this sort of thing be of interest:
Just a quick one. A number of people online were yesterday disturbed by this tweet from court reporting Twitter account @CourtNewsUK, relating to Michael Adebolajo, one of the two murderers of Drummer Lee Rigby:
Senior judge says it will be a ‘great pity’ if Lee Rigby’s killer isn’t given taxpayers’ cash to help him sue the government.
The story has been picked up by The Mirror, which gasped with similar horror that a “top judge” has “insisted [Adebolajo] should be given taxpayer cash to pay for his court fight against the Ministry of Justice.”
The anger has burned through the night and looks set to smoulder for the rest of the day, Radio 4’s Today programme finding space for a mention among its bulletins. And I understand why. On its face, this appears an instinctively unjust state of affairs. A High Court Judge loftily calling for yet more taxpayers’ hard-earned money to be poured into the pockets of a man guilty of unspeakable savagery.
But scratch beneath the surface, and you quickly see that there’s more to this story than the tweet suggests. For a start, no decision has been made to grant Adebolajo legal aid for his personal injury claim against the Ministry of Justice, which arises out of injuries he sustained while being restrained by prison officers. Indeed, personal injury practitioners will correct me if I’m wrong, but I understand that legal aid for claims of this type is vanishingly rare. And proceedings are still at an early stage; today’s hearing at which the judge’s comments were made was a preliminary hearing. Details are scant. It is not clear whether the claim has any merit at all; whether it will run to trial, or whether it will be struck out as entirely frivolous.
But let’s suppose that the claim is heading for a trial. And let’s suppose the judge’s comments above were fairly and accurately reported in their full context [SPOILER – they were not, and we’ll come to that]. Here, resuscitating a thread I posted yesterday, are my thoughts on why legal representation should be made available to Michael Adebolajo, at taxpayer cost if need be:
Any trial will take far longer if he is not legally represented. The conclusive experience of the courts is that legal proceedings involving unrepresented parties take far, far longer than when lawyers are instructed. The reason is simple – law and court procedure is hideously complicated. It cannot be – despite what some DIY law websites will tell you – be mastered through Google. Unrepresented litigants, even those who are impressive experts in their own professional fields, will make errors and cause delays. Lawyers are trained to hone in on the issues of law and fact that best support their case. Litigants-in-person may not appreciate their best points, or how to concisely argue them, or how to apply the law. Judges loyal to their judicial oaths are required to assist litigants as best they can to ensure fairness, but this all takes time. The experience of the family courts, in which 34% of cases now involve unrepresented litigants on both sides since legal aid cuts in 2012, bears witness to this.
Any trial will be far more expensive if he’s not represented. This follows logically from 1. The more court time that is taken up dealing with a case, the greater the cost to the court, and ultimately, if the money can’t be recouped from the losing party, the taxpayer. Providing legal aid will usually save money in the long run, as lawyers will (a) advise the client robustly if the claim is devoid of merit, potentially avoiding the need for any further hearings; and (b) ensure that any trial is conducted much quicker, and therefore much cheaper, than if the individual was self-representing.
The experience for the witnesses will be much more unpleasant if he’s not represented. Have you ever watched a sadistic criminal cross-examine a witness in court? Put another way, would you like to be cross-examined by a wild-eyed terrorist blundering his way through a series of irrelevant and potentially abusive questioning over several hours, punctuated by interruptions from the judge shepherding the questioner back on track? Or would you rather be cross-examined for 20 minutes, politely (and slightly ineffectually) by me, with my natty court dress and solemn demeanour? The prison officers who are the subject of the allegations by Adebolajo will have to give evidence and be cross-examined by someone. For their own comfort and dignity, I’d be prepared to chip in for this to be done professionally. Which brings us to the next point.
The allegations are serious. Adebolajo claims that the prison officers held him by the head and arms in such a manner that he lost two teeth. If he is right, the truth is far more likely to emerge if his case is presented, and the questions are asked, by a trained professional.
Convicted murderers have rights. Our darker selves might secretly welcome the news that a convicted murderer has had a good roughing up. No more than he deserves, right? But the mark of our civilisation is that we hold ourselves up as better than the people who harm us. We do not descend to vengeance, much less vigilantism. For what he has done, Adebolajo will be imprisoned for the rest of his life. That is his punishment. It does not follow that public servants have carte blanche to use unlawful violence against him. As despicable as we may find him, we cannot let his actions degrade our basic standards of justice. If we do, he has won. Therefore if his rights are breached, he is entitled to a remedy. It may not taste nice. But the rule of law does not require that justice be dispensed only to people we like.
There is a wider issue of public safety if he is being truthful. Aside from Adebolajo’s rights, there are also the rights of other prisoners to consider. If he is truthful, and prison officers have used unlawful force against him, this needs addressing. Because prison officers are not just in charge of the Adebolajos of this world, but many other prisoners who, by nature or circumstance, are inherently vulnerable to abuses of power. And some of these prisoners will be remand prisoners awaiting criminal trial. They have not yet been convicted of an offence, and some will never be. There are innocent people in the charge of the state in our prisons. They deserve an environment where they are not subject to gratuitous state-sanctioned violence.
Adebolajo will not be “given taxpayer cash” whatever happens. The beloved tabloid trope envisages giant, Wheel of Fortune-style novelty cheques being proudly handed over, or oodles of cash being ladled into wheelbarrows and delivered to Adebolajo in prison, for him to fritter as he sees fit. This is a nonsense. Any legal aid granted would be paid – at modest rates – directly to regulated solicitors and barristers. There is no financial benefit to Adebolajo at all. If we start from the premise that he has no money, and so will not be able to pay for legal representation come what way, the options are stark: either he doesn’t pay and is unrepresented, with the consequences above; or he doesn’t pay and is represented in some form, whether under a conditional fee agreement (“no win, no fee”), by lawyers acting for free (pro bono) or through legal aid. We don’t know the details, but the judge who does appears to think that only the latter is a viable option at this time.
The law is for the benefit of us all. As the Supreme Court was at pains to point out to the oblivious Ministry of Justice when recently ruling employment tribunal fees to be unlawful, court cases do not only matter to the parties involved. I’ll leave the articulation of this point to Lord Reed:
The outrage isn’t that Adebolajo might be granted legal aid, but that so many others are denied the legal aid and help they need. This is borrowed in its pithy entirety from a tweet by barrister Douglas Lloyd (@DouglasLloydUK). There is certaintly an argument of disparity and unfairness here; but not the one upon which most are alighting. The devastation of legal aid and soaring increase in court and tribunal fees over the past decade have served to exclude vast swathes of mostly poor and desperate people from the justice system. This case raises questions – but distracted by our own uncritical rage, we are asking the wrong ones.
Putting the above together, I think there’s a compelling case for saying that justice – to all involved – is best served by having this man legally represented. Legal aid may or may not be granted; I do not know enough about this field to opine. But if it is, it will not be a taxpayer-funded privilege lavished on an ungrateful terrorist; it will be a sensible and restrained direction of public funds towards ensuring that justice is served to all involved – government, claimant, prison staff, prisoners and taxpayers. Which, when one looks at the judge’s comments in context, is exactly what he was saying:
I’ll be honest, out of all the ‘robust debates’ I’ve had online about criminal justice and sentencing of offenders, I would not have expected the most frustrating, fiery and ill-informed to be with someone advocating for less use of prison. It takes a special talent, I would suggest, to present an argument in such a way that you manage to alienate those who agree with your conclusion. Arise for your special badge, Lord Andrew Adonis, former Head of Policy at Number 10 Downing Street and erstwhile Transport Secretary.
The past few days have seen Lord Adonis stagger around Twitter swinging aimlessly at lawyers and judges like a punch-drunk case study on a late night police reality TV show. Every effort to gently usher him into the back of the van for some calm, reasonable, evidence-based discourse is met with another wild lunge towards camera – he has now blocked nearly every lawyer on Twitter – compounding the schadenfreude of rubbernecking passers-by. Unfortunately for Andrew, his identity is not pixellated to spare his embarrassment; rather emblazoned across each and every one of his (increasingly peculiar) assaults on the “cobwebbed judicial system”.
Extracts cannot really do justice to the tirade of tweets that Adonis launched towards the judiciary on this theme, and I’d recommend reading his Twitter timeline (with a glass of something stiff) to get the full flavour, but this is the nub:
Nothing world class about our judiciary, which jails more people for longer than any judges in Europe & wash their hands of prison crisis
Now some of us hacks did indeed offer a defence of judges (who, by constitutional convention, are not permitted to speak out publicly to defend themselves). And we did so not because, as Adonis suggests, we have a desire to become a judge (I think I have successfully set fire to that particular lifeboat for myself through this blog and my forthcoming book), or because we think all judges are wonderful (SPOILER: They’re not – most are excellent, but some are significantly less so), but because we see criminals being sentenced every single day, and have a certain experience in this field. And I struggle to think of many cases I’ve been in, either prosecuting or defending, where I have suspected that a sentence has been inflated because of an eye on reporters in the public gallery.
As for Adonis’ experience, I did ask how many judges he had seen passing excessive sentences out of fear of tabloid retribution, but received the following, less-than-full response:
The thing is, while to a layperson Adonis’ criticism would seem to make sense – judges are the ones passing these sentences, after all – a little knowledge of the law teaches that, to a large extent, judges’ hands are often tied, or at least lightly bound with handkerchiefs. That is because sentencing is not, as many might imagine from pop culture, an exercise in plucking a figure out of the air, whacking a (non-existent) gavel and intoning, “Take him down”. Crown Court judges are instead required to apply a horrendously complex morass of sentencing law and guidelines, which severely limit their room for manoeuvre. While they have discretion to pass a sentence that meets the justice of an individual case, it is a fallacy to presume that this discretion is at large.
Firstly, there are Sentencing Guidelines for most criminal offences, which judges are required by law to follow. We’ve looked at these guidelines in previous posts dealing with specific cases, but in short, they provide judges with a mixture of flow-charts and grids, setting out sentence “starting points” and “ranges” depending on which factors are present in a particular case. There is ultimately discretion built in as to where on the guidelines a judge pitches a case, but you can see for yourself that there is often not a great deal of wiggle room. Guidelines are set by the Sentencing Council, whose members are drawn from the judiciary, magistracy, legal practitioners, academics, police and the Director of Public Prosecutions. Guidelines are subject to public consultation, and the Council is accountable to the Ministry of Justice and has a statutory duty to consult with Parliament. The Sentencing Council is not, lest you be confused by Adonis’ complaints, a gaggle of judges operating under a cloak of secrecy.
Now I make clear – I do not agree with all of the guidelines. I think, for example, the way in which drugs are sentenced is largely ludicrous. A starting point of 4.5 years’ imprisonment for someone selling a few wraps of crack cocaine to fund their own habit is, with respect, the hallmark of a society that doesn’t have a clue what it is doing with drug policy, although the malaise for that lies with political culture at large, not the Sentencing Council. But even if you accepted Adonis’ view that the Council was a bunch of industry insiders fixing oppressively long sentences out of a desire to placate the red tops, it does not explain how, as Adonis postulates, it is fair to level cowardice charges at the several hundred other judges who are required day-to-day to follow the guidelines.
And, more importantly, judges must follow the law. Sentencing legislation is made by Parliament, which includes among its members Lord Adonis, as a member of the House of Lords. And judges have to follow the law set by Parliament. There is no discretion here. That is the essence of the rule of law and our basic constitutional settlement. I say this, because Adonis has suggested that judges should have “argued against” the government’s “policy” – by which he can only mean that they should have revolted and refused to follow the law that the government enjoined Parliament to make. So let’s get that sixth-form concept straight: judges have to follow the law set by Parliament.
9/ didn’t argue against this unjust policy & implemented it (including really shameful indeterminate sentences for ‘public protection’)
But for now, I want to look briefly at one area to which Lord Adonis refers in the above tweet – indeterminate sentences.
In 2003, when Adonis was ensconced in the bosom of Downing Street as Head of the Policy Unit, New Labour brought forth the Criminal Justice Act 2003, a huge, unwieldy piece of legislation which did many things, including introducing the notion of Imprisonment for Public Protection (IPPs). You may have heard of these – they have been in the news recently, as people given short “minimum terms” of as little as 10 months ended up serving over a decade under such sentences. The way that IPPs worked in theory was as follows: The judge would set a “minimum term”, after which the defendant would be eligible for release on licence, as long as he could satisfy the parole board that he was no longer dangerous. If he could’t satisfy the parole board, he would be detained until he could, potentially forever. As it happened, the government decided that they couldn’t afford to provide the rehabilitation courses that prisoners were required to pass in order to satisfy the parole board, meaning IPP prisoners were trapped in a Kafka-esque nightmare. For this reason, the Court of Appeal found that then-Justice Secretary Jack Straw had acted unlawfully in failing to provide the rehabilitation programmes, and in 2012 IPPs were repealed (although those passed before that date remained).
Now when IPPs were first introduced, if a defendant convicted of certain violent or sexual offences was found to be “dangerous” – the legal test for which was that he posed a significant risk of serious harm to the public – an IPP had to be passed. The judge had no discretion – the law was clear. If the offender met the risk threshold, the judge was not allowed to deal with him in any other way. This, unsurprisingly, led to an explosion in prison numbers – around 3,700 prisoners were serving IPPs by 2007.
This was the law until 2008. Parliament, realising its error, then amended the legislation to give judges discretion as to whether to impose IPPs where certain criteria were met. The word “must” was changed to “may”, and the threshold for imposing IPPs was heightened, to remove the scenario of tiny minimum terms (one as low as 28 days) resulting in years being spent behind bars. And, given discretion, judges stopped imprisoning as many people under IPPs.
Why do I focus on IPPs? It’s because they are the prime factor responsible for the increased use of prison. As the Parliamentary statistics that Adonis himself cites shows (thanks to @ProfChalmers), the length of sentence for all offenders has remained relatively stable across the 11 year period (2005 – 2016) except for a notable increase in indeterminate sentences.
That is not to say that all IPPs imposed were rightly so. Judges after 2008 did have discretion, and no doubt there will have been instances where it can be argued that an IPP was imposed where it need not have been (and many such cases will have been argued successfully before the Court of Appeal).
But what this incontrovertibly shows is that far from judges imposing increasingly lengthy sentences “out of fear of tabloids”, it was in fact politicians – Lord Adonis and his colleagues – forcing judges to impose certain types and lengths of sentence that was the greatest contributing factor to the increased use of prison. As for why politicians felt compelled to act in this way, you would have to ask them. But it may be there that “tabloid fear” finds its rightful resting place.
As for other factors of note that we can identify, we can see from the chart above an increase in determinate sentences of over 4 years. We can also see over the past 16 years a surge in prisoners convicted of violent and sexual offences:
Partly, this will be because of the increase in violent crime. Partly this will be attributable to the fact that the CPS are prosecuting more sex offences than ever, particularly allegations of historic (or “non-recent”) sexual abuse. Neither of these factors have anything to do with the judges. And, faced with serious sexual or violent offending, the guidelines and the legislation make clear what judges are required to do.
Ultimately, this is a silly argument, given the broad area of agreement between Lord Adonis and most lawyers. But I waste my Sunday afternoon to unpick Adonis’ complaints, even though I think we are on the same side, because there is no point embarking upon a remedy if you have mis-diagnosed the illness. And what is increasingly clear from Adonis’ tweets is that he lacks some fairly rudimentary understanding of the legal system.
For example, he suggests that Lady Hale, as the new President of the Supreme Court should “call out the trend to ever longer sentences”, apparently oblivious to how the Supreme Court operates.
11/ on the issue of sentencing & the prison crisis. She shd call out the trend to ever longer sentences, refuse to implement it within the
Sentencing policy has nothing to do with the Supreme Court. The Supreme Court’s only role in criminal sentencing is to rule on the infinitesimal number of criminal sentence appeals that make it to the Supreme Court from the Court of Appeal. Why are so few criminal sentence cases heard at the Supreme Court? It’s because in order to appeal upwards from the Court of Appeal to the Supreme Court, either the Court of Appeal or the Supreme Court has to certify that “a point of law of general public importance is involved in the decision”. This is a high threshold, and excludes the vast majority of sentence appeals (which tend to turn on their individual facts, rather than wider points of public importance). If you think that this threshold is too high, and that more criminal sentence cases should be capable of being litigated before the Supreme Court, you know who you can blame? Either the Parliament which enacted s.33 of the Criminal Appeal Act 1968. Or the Parliament which created the Supreme Court and defined its jurisdiction under the Constitutional Reform Act 2005. Head of Policy Unit at Number 10 Downing Street when the Supreme Court was created in 2005? Andrew Adonis.
Nor, regrettably, can the Lord Chief Justice, who is head of the judiciary and president of the Court of Appeal (Criminal Division), which hears sentence appeals from the Crown Court, decide of his own motion to “cut most sentences”. What on earth does this mean? That every sentence appeal he sits on must be allowed, irrespective of merits, in order to achieve an overall reduction? That the current legal test that the Court of Appeal applies, allowing appeals against sentence where sentences are “wrong in law or principle” or “manifestly excessive” be lowered to something less? If so, that is not within the gift of the Lord Chief Justice alone.
Not codification that’s needed – wh will prob bid sentences up still further – but for new LCJ & Pres of Supreme Court to CUT MOST SENTENCES https://t.co/gmakCyEyjY
I fear that Adonis has a rather childlike conception of the interaction between our various courts. If the Big Judge at the top says something, then all the other little judges will do it, seems to be the gist. It is alas not that simple. Sentences will not become shorter across the board simply because Lady Hale decrees, a propos of nothing, that it should be so. It is the same simplistic view of the world that claims, with a straight face, that the judges should, somehow, have stopped Adonis’ government from doing the reckless and damaging things it did:
9/ didn’t argue against this unjust policy & implemented it (including really shameful indeterminate sentences for ‘public protection’)
The solution, unfortunately for Lord Adonis, lies closer to home. Politicians, who are paid to make the arguments, need to change the tone of public debate on criminal sentencing. The corrosive tabloid culture that Adonis rightly decries is not going away. Parliamentarians need to be brave, and confront the toxic narrative of longer sentences and prison holiday camps that has informed Ministry of Justice policy for the past decade. Constituents should be told about the realities of prison and its proven limitations in reducing crime. The Dutch model that Adonis has held up as an example should be advocated by mainstream politicians on prime time interviews, not relegated to social media spats between ex-policy wonks and lawyers. The statutory manacles forcing judges to impose long sentences for certain offences should be re-examined and, where appropriate, released. The Justice Secretary could consider using s.128 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which would allow him to change the test for releasing the 4,000-odd remaining IPP prisoners who have served beyond their minimum terms. The plan to double the powers of magistrates – non-legally trained volunteers – to imprison people, allowing them to lock defendants up for a year for a single offence, could be snuffed out. If short prison sentences don’t work, why not consider a presumption against their use, as proposed by the Lib Dems at the last election? The increasingly popular trend for the Attorney General to “refer” (appeal) sentences as “unduly lenient” to the Court of Appeal – and to feed the prison works narrative by boasting about its successes – could be challenged. There has been a 108 per cent increase in AG References since 2010, no doubt attributable in part to media campaigns whipping up anger at perceived “soft sentences”, opinions often formed in wholesale ignorance of the facts.
There is a lot that could be considered as part of a remodelling of criminal sentencing. And no doubt judicial inclinations will form part of it. I don’t deny that some judges use prison too readily; of course they do. They are subject to the same human frailties and cognitive biases as the rest of us. But it is Adonis’ eagerness to pin the bulk of the blame on the judiciary, and the unsubstantiated assertion that they habitually falter out of genuflection to the tabloids, that I consider to be unfair. Because as we can see, that is not where the real problem lies.
In case anyone saw, listed amongst his various grievances with the legal system, the following tweet by Lord Adonis, I should like to make two brief points.
The Law Commission a talking shop which makes lawyers think they are effecting change when nothing changes https://t.co/fTSne2f6le
The Law Commission is a statutory independent body that conducts detailed research and consultations and makes recommendations, usually accompanied by weighty published reports, for changes in the law “to ensure the law is as fair, modern, simple and as cost-effective as possible.” The decision on whether to implement a recommendation by the Law Commission is for Parliament alone. Parliament. Which includes Lord Adonis. If “nothing changes”, the fault is entirely with the politicians.
But it’s not right to say that “nothing changes”. Two thirds of the Law Commission’s recommendations have been implemented. For a look at exactly what recommendations have been accepted, implemented and are pending, there is a handy list here, with which Lord Adonis may wish to familiarise himself. A subsequent apology to the Law Commission for his ill-informed and intemperate tweet as a senior Parliamentarian would, he might feel, be the very least he can do.