9 reasons why this vile murderer should be given taxpayers’ cash to sue the government

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:

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.

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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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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:ED5B7877-8DF4-4B9E-AF62-6788697419CBEF549A28-9FDD-401E-B9AE-B90811A0C157C045B493-201C-4163-8BDC-266582F788FAD8CEEB25-B763-4E8A-889C-407412406379
  9. 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:

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A reply to Lord Adonis on sentencing, prisons and judges

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”.

Let’s start with the common ground: Adonis believes that we have too many people in prison. I agree. As do, I would expect, most people who work in criminal justice. The statistics are trite, but no less shocking for that: England and Wales currently has around 85,500 people in prison. We imprison more people per capita than any other country in Western Europe (146 prisoners per 100,000 citizens). We have more prisoners serving indeterminate sentences – sentences for which there is no guaranteed release date – than the other 46 countries in the Council of Europe combined. Sixty-nine per cent of our prisons are overcrowded. Violence has soared by 68 per cent since 2006, with a 32% increase alone between 2015 and 2016 (a total of 25,000 assault incidents). Assaults on prison staff have risen by 40% in a decade. Deaths in custody have risen by 38% in between 2015 and 2016. The horror correlates with the £1bn cut to prison budgets by the last government and the 30% reduction in prison staff. And whatever else prison is supposedly achieving, stopping reoffending is not it: 44% of adults are reconvicted within one year of release. For those serving sentences of less than 12 months this increases to 59%.

And numbers have increased steeply over the past two decades. The prison population rose by 90 per cent from 1990 to 2016. This is a recent, and peculiarly English-and-Welsh, problem.

For Adonis, the prescription is simple. The problem is the judges, whacking their gavels and sending people to prison for longer:

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Why are judges doing this? “Fear of tabloids”, Adonis posits:

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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:

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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:

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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.

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Now, as for what the law says, we can see that over the past two decades, politicians have scrambled to salute Michael Howard’s prison works squawk and increase the ways in which they can force judges to pass longer sentences. This included “mandatory minimum” sentences for repeat offenders – such as the 3-year minimum sentence for repeat burglars and the 7-year minimum for repeat drug traffickers – brought in by the New Labour government of which Adonis was a part. This same legislation – the Powers of Criminal Courts (Sentencing) Act 2000 – also introduced mandatory life sentences for offenders committing a second serious offence (a provision later abolished, re-imagined and re-enacted).  And there are many, many others.

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.

Conclusion

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.

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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.

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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:

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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.

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POSTSCRIPT

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.

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  1. 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.
  2. 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.

The Grenfell Inquiry needs facts, not fearmongering

Yesterday I wrote something for the New Statesman on the Grenfell Inquiry and the political fearmongering over the appointment of Sir Martin Moore-Bick.

The piece can be found here:  http://www.newstatesman.com/politics/uk/2017/07/grenfell-inquiry-critics-martin-moore-bick-are-dabbling-fearmongeringp

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An Oxford medical student stabbed her boyfriend with a bread knife. So why is she not going to prison?

Remember all the fun we had earlier this year with the Cricket Bat Case? You know the one – where the defendant, Mustafa Bashir, assaulted his wife with a cricket bat, forced her to drink bleach and was given a suspended sentence, partially because the judge took account of the defendant having been offered a professional cricketing contract? And everyone got terrifically angry about it, even though they clearly hadn’t taken the time to obtain the facts? And Diane Abbott and Harriet Harman traversed the airwaves and the plains of social media in furrowed unison to whip up the cries for the judge to be “sacked” for what he’d said, even though he hadn’t said it? And, even when, at the “slip rule” hearing where the defendant was sent to prison after it emerged that the cricketing contract was a fiction, the judge took the time to carefully explain his earlier, misreported remarks, no-one listened and wrapped themselves up in a cocoon of impervious self-righteousness? Remember all that? Yeah? What larks.

Well luckily for us, we may be about to go through it all again. Because once more, Mercury scoots in with a message of justice gone wrong, in the form of a case of domestic violence where the defendant stabbed the complainant with a bread knife, only to be assured by the judge that, when the time comes for sentence, she will most likely not be going to prison. The reason? Her “extraordinary” medical talent.

This post comes dangerously close to breaching one of my cardinal rules, vis not commenting on cases until they are concluded and the full facts (or as close to them as we can get) are known. But given that there has already been a steady buzz of interest in the case online, I thought it worth heading off some of the likely queries at the pass, not least as comparisons with the Bashir case are already circulating.

Facts

The published facts are limited. The Guardian offers us this:

“Aspiring heart surgeon Lavinia Woodward, 24, punched and stabbed her boyfriend during an alcohol-and-drug-fuelled row at Christ Church College. She admitted unlawfully wounding the Cambridge University student, who she met on the dating app Tinder. […] Woodward, who lives in Milan, Italy, with her mother, stabbed her then-boyfriend in the leg after punching him in the face. She then hurled a laptop, glass and jam jar at him during the attack on 30 September last year.”

According to Mail Online, the guilty plea was entered before Oxford Crown Court at an earlier hearing. At a hearing yesterday, sentence was deferred to 25 September 2017. In deferring, HHJ Pringle Q.C. noted that this was an “exceptional” course and indicated that come autumn she may avoid an immediate custodial sentence due to the impact such a sentence would have upon her future career:

 “It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to would be a sentence which would be too severe,” he said.

“What you did will never, I know, leave you, but it was pretty awful, and normally it would attract a custodial sentence, whether it is immediate or suspended,” he said.

It is further reported that Ms Woodward has had articles published in medical journals including the Annals of Thoracic Surgery, Hypertension, and The Journal of Physiology. The Telegraph quotes a source as saying that she finished top of her year in her third year pre-clinical tests at Oxford.

Finally, we are told are that her barrister informed the court that Ms Woodward had a “very troubled life”, struggled with drug addiction and had been abused by a former partner.

So what is going on here?

Deferred sentence

Deferring sentence is nowadays an unusual step to take. It is not to be mistaken for adjourning a sentence hearing, which happens all the time for various reasons – to obtain probation or psychological reports, for example. Rather a deferment is a specific statutory power (section 1 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask) which a court can use where it wants to observe the defendant’s conduct post-conviction before arriving at a final sentence. If a court is satisfied that it would be in the interests of justice, “having regard to the nature of the offence and the character and circumstances of the offender”, sentence will be deferred to a fixed later date.  Typically, we tend to see it in cases where a judge wants to see if a defendant can make a sustained effort at rehabilitation – say by holding down a job or undergoing voluntary drug or alcohol treatment. If a defendant agrees to a deferment, the court will impose “requirements” as it considers appropriate – in this case, it has been reported that the judge required that the defendant remain drug free and not re-offend.

When she comes back to court on 25 September, the judge will determine whether the defendant has substantially conformed or attempted to conform with the expectations of the court – i.e. by staying clean and keeping out of trouble – and, if she has, she can legitimately expect that she will not go immediately to prison.

Sentencing Guidelines

It appears from reports that the defendant pleaded guilty to unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. While a serious offence, it is of note that it in fact carries the same maximum sentence – 5 years’ imprisonment – as assault occasioning actual bodily harm, which was the offence in the Bashir case. It is also of note that section 20 covers two different offences – inflicting grievous bodily harm, and unlawful wounding. It is one of the many (unjustified) quirks of the law that these two offences are treated equally even though the injury caused in a wounding can be relatively minor (it merely requires a break of the skin), whereas GBH by definition entails really serious harm. Here, we know nothing about the level of injury.

As with all sentence hearings, a court is required by law to follow relevant Sentencing Guidelines published by the Sentencing Council. In this case, we look to the Assault Definitive Guideline. By plugging the facts of the offence into the grid, we theoretically arrive at a category of offence, which gives a starting point for sentence, and a range which the court can move between depending on the aggravating and mitigating factors at play. The Guideline is here:

Now, we have little idea, absent further facts, what category the judge will put this case into. We know nothing about the level of injury, the ongoing effect on the victim, and the circumstances leading up to the assault. But even if the judge were to conclude that the offence was so serious as to fall within the highest category – Category 1 – (which on the given facts I think is unlikely) this would provide a starting point of 3 years, the relevance of which is that once you take off the 1/3 credit that is awarded for a timely guilty plea (assuming that it was), you arrive at something around the 2 year mark. And the relevance of the magic 2 years is that any sentence of 2 years or under can be suspended.

This is a long-winded way of saying, simply, that on the Guidelines, the judge will not have to struggle to arrive at a sentence capable of being suspended, if, as I suspect, this is what he envisages proposing at the next hearing.

Whether he should suspend it is, of course, another matter. And it is here that we find ourselves back in Bashir territory. The parallels are striking: A defendant with no previous convictions; a serious offence of domestic violence using a weapon; and personal mitigation including a promising career. Ms Woodward’s offence is more serious in the statutory hierarchy of violent offences; however she has what appears to be powerful mitigation relating to her reported issues with substance misuse and history as a victim of domestic violence.

While there is no strict test for suspending a sentence of imprisonment, the Guideline offers the following pointers:

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We do not know enough to say whether any of the left hand column is made out; but it could be argued that at least two of the factors on the right apply. The court must have regard to the statutory five purposes of sentencing – punishment, reduction of crime (including by deterrence), reform and rehabilitation of offenders; protection of the public; and making reparations – and will need to assess the appropriate emphasis in any given case. While stabbing with a bread knife is plainly serious, if the injury is not particularly grave, and if the court is of the view that more can constructively be achieved by avoiding sending a promising young defendant to prison and shattering their future life prospects, instead offering in the first instance a sentence focussing on rehabilitation to address deep-rooted problems laying behind the offending, then it is arguably in service of those five principles that a suspended sentence of imprisonment, with punitive and rehabilitative requirements attached, might be imposed.

And, lest anyone be seduced by the reflexive narrative that such merciful sentences are only afforded to white, middle class defendants, let me assure you: this course (as I said in the Bashir posts) is not unusual. Where a defendant who has never been in trouble is facing a custodial sentence of  2 years or under, and where they have the prospect of employment, education or caring responsibilities, judges will often strive to avoid passing a sentence of immediate imprisonment. That is not to deny that unconscious social or racial bias plays a part in judicial decisions; basic neuroscience teaches us that it does, to some degree at least. But the suggestion that this exceptional course is only ever reserved for the Prom Queens (or whatever our British equivalent is) is tired and lazy. The reason you don’t hear about the suspended sentences handed down for less photogenic defendants – for the 19 year-old lad starting his apprenticeship, or the 48 year-old mobile hairdresser – is mainly because the media tends not to report on them.

Conclusion

It is too early to draw any conclusions. That is really the beginning and end of it. But if we must go a little further, I would observe that, although understandably surprising to the non-lawyer, there is nothing on the reported facts of this case to suggest yet that anything is amiss. We will wait and see what September brings (and hope that, given the pre-emptive press rumblings, the judge takes the step of formally publishing his sentencing remarks in full), and reassess then. But it is entirely plausible that this is a sad and difficult case where a talented young woman bearing pains that few of us can imagine acted out in an uncharacteristically raw and violent fashion, in a manner that demands condemnation, but the punishment for which the court will temper with mercy, avoiding the compounded tragedy of extinguishing a bright life in the squalid pits of our rotting prisons.

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POSTSCRIPT: In the event that the judge imposes a suspended sentence on 25 September, there will be calls, as with the Bashir case, for the Attorney General to apply to refer the sentence to the Court of Appeal as unduly lenient, in the hope that the Court of Appeal will increase the sentence. Offences of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 are not included in the lists of offences that can be the subject of such an application. So if you know of, or are, a politician champing at the bit to call for the sentence to be increased, screenshot this paragraph and have it in your back pocket for September: It can’t be done.

 

Post-script: Mustafa Bashir, a non-existent cricket career and victim vulnerability

As predicted in my last post, Mustafa Bashir, the wife-beating amateur cricketer who received a suspended sentence of 18 months’ imprisonment after hitting his wife with a cricket bat and forcing her to drink bleach, was today recalled to court and re-sentenced under the “slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000). HHJ Mansell Q.C. exercised this power after it emerged that, contrary to claims made on Bashir’s behalf in his barrister’s plea in mitigation, he was not in fact on the verge of signing a professional cricketing contract with Leicestershire County Cricket Club. Re-sentencing on the true factual basis as has now emerged, the judge passed a sentence of 18 months’ imprisonment straight.

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The sentencing remarks are reproduced in full below, and I urge all of the people – in particular politicians like Diane Abbott who ran to the radio stations to bleat in clear and wilful ignorance of the subject matter – to read them, and to circulate them with the same vigour as they did their original criticism. Key points, briefly, are as follows:

  • Despite wildly misleading headlines from the BBC (and no doubt others to follow), the sentence has not been reviewed because of “public outcry”. It is solely because important information put before the court on the last occasion has transpired to be untrue. If you take away nothing else from this post, please at least remember that.
  • Bashir was afforded the opportunity to gather evidence to support the claims made at his sentence hearing. He managed a few emails suggesting he had attended a couple of “net sessions”, but nothing to suggest he was anywhere close to the professional contract that was claimed was awaiting him. The Judge said that there “was not a shred of evidence that you had received an offer of a full-time contract from Leicestershire CCC”.
  • Bashir, instructing a new barrister, admitted that there was no professional contract, but claimed that there had been a misunderstanding, in which both his previous barrister and the probation officer had been confused by what he was trying to tell them, and had mistakenly overstated the true position. He said that he didn’t correct his barrister when the untrue assertions were made on his behalf in open court as he was too emotional to pay attention to what was being said. The judge rejected this entirely, pointing out that Bashir had submitted a letter, purportedly from an agent, in which false claims to have played cricket for Pakistan Under-19s were repeated.
  • The Judge concluded that this was a “false claim” and “deliberately made”.
  • On the last occasion, the Judge explained that the decision not to send him to prison immediately was finely balanced, and that the offer of employment was a material factor in tipping the scales in Bashir’s favour. Today, the Judge said that now that the true situation was known, the grounds for suspending the sentence no longer existed. You may of course feel that the offer of a job should not of itself have amounted to a reason to suspend the sentence in the first place; this is an entirely legitimate view, although as I explain in my last post, it is not uncommon for judges to attach significant weight to the impact of a sentence upon a defendant’s employment.
  • HHJ Mansell Q.C. explained that in passing a sentence of immediate imprisonment, he was not punishing Bashir for lying to the court. This is important on two fronts: Firstly, it refutes the social media meme that “domestic violence doesn’t get you jail, but lying to a judge does”. The defendant has not been punished for lying to the judge. He has been sentenced as if the lie had never been told. Which brings us to the second point: as Bashir has not been punished for the lie by the judge, I’d venture that it makes it more likely that the Crown Prosecution Service will consider a prosecution for attempting to pervert the course of justice to be in the public interest. Given the publicity that has followed, the CPS might wish to fire a warning shot across the bows of any defendant tempted to advance false mitigation by making an example of Bashir.
  • The Judge went on to expand upon the assessment of “particular vulnerability” that he conducted on the last occasion. At the risk of sounding immodest, it is pretty much as I tried to explain in my last post; namely, the Judge was simply assessing the criteria required of him by the Sentencing Guidelines. Anger at the judge for his approach in this regard ought properly to be directed at the Guidelines that he was required by law to follow. And to the media outlets who selectively reported his comments (including omitting the key word “particularly”).
  • That all said, none of this detracts from my original assessment in the last post, vis the length of the sentence. On the reported facts, 18 months’ imprisonment still appears a generous result for the defendant.

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Sentencing Remarks of HHJ Mansell Q.C., Manchester Crown Court

Mustafa Bashir, on 21st March, I sentenced you to concurrent terms of imprisonment of 18 months on two counts of Assault ABH.

I suspended those sentences of imprisonment for a period of 2 years on condition that you undergo a supervision requirement and a programme requirement.

I have listed your case today for a review of that sentence pursuant to s155 of the Powers of Criminal Courts (Sentencing) Act 2000, following reports in the media suggesting that you may have misled the court as to your future career prospects.

I directed that you should produce evidence to support the claims you made that you had previously been offered a contract to play cricket for Leicestershire and that such offer remained open to you if you kept your liberty.

You have failed to produce any evidence to support those claims.

All that you have produced today is a handful of emails showing that you may have attended an indoor net session at Grace Road in December 2014, and an outdoor net session in April 2015.

There is a further email from you in December 2015 in which you enquire about the outcome of a trial you had attended at the club.

There is no evidence as to what team you were trying out for or what the outcome of such trial was.

The coach at Leicestershire with whom you were in email communication has made a statement to the effect that he does not recall you, which you would think he would, in light of the fact that you were considerably older than the majority of cricketers he was seeking to recruit for the club at that time.

Your name does not feature in the list of attendees at the trials held in 2015.

Therefore, in summary, there is not a shred of evidence that you were ever chosen to play for Leicestershire CCC, let alone that you had received an offer of a full-time professional contract.

It has been suggested by your counsel Mr Sastry, who has appeared today and acts on your instructions, that this is all an unfortunate series of misunderstandings, and that your past career achievements and future career prospects were accidentally over-stated.

I reject this submission.

You were interviewed by a probation officer, Michael Whalley, in advance of the hearing and told him you had played cricket for Pakistan Under 19’s.

You now submit that he misunderstood this and you only played for Islamabad in a national competition.

You also say he misunderstood you when he reported you had played “semi-professional cricket for Leicestershire

Finally, you explain that when he reported that you were “due to sign a contract with a team shortly before your arrest” this was not with Leicestershire but with Methley CC in a Yorkshire-based league.

In his plea in mitigation, Mr McKee, acting no doubt on your instructions, submitted that if you were permitted to keep your liberty, you would be “employed by Leicestershire as a professional”. 

He referred to the pre-sentence report and added that you had been “about to sign a contract when you were arrested”.

He is an experienced counsel and would not have made such a bold submission had you not instructed him that this was the case.

You claim that he has misunderstood the position but if that was the case, it begs the question why you did not speak up at the time and correct his mistake.

Your response is that you were emotional and not listening carefully to what was said in court and so did not hear what he said.

The evidence that gives the lie to your explanation advanced by you today is a letter that was submitted to the court on your behalf by your solicitors from a man named Abid Riaz, said to be a sports agent with the Pro Elite Sports Agency in Bolton.

He wrote that he had been your agent for several years and that you had played cricket for Pakistan at Under 19’s. Unlike the Probation Officer, it is hard to see how an experienced Pakistani cricket agent could have made such an error.

He also claimed he had arranged your trial at Leicestershire, of which there is no evidence.

He concluded his letter by saying that you had a “very bright future ahead of you as you had been selected to play for Leicestershire County Cricket Club”. 

There was no misunderstanding here on the part of the probation officer, or Mr Riaz, or your counsel.

You were clearly making a claim to the court that you had a career in professional cricket ahead of you which was false.

You made that claim quite deliberately in the hope that you would avoid a prison sentence.

As I made clear when sentencing you, the appropriate sentence for these offences was 18 months’ imprisonment.

I then said the following –

“The only issue for me to grapple with today is whether your good character; the delay since these offences; and your current situation – namely in a settled relationship with a partner who complains of no violence and who is supportive of you; your employment, which you have been in since April last year; as well as your prospective employment, which is offered in cricket for Leicestershire County Cricket Club; whether all those factors taken together can save you from serving that sentence today. I have to tell you that it is a very finely balanced decision, because the court simply will not tolerate violence in a relationship of this nature.”

It was only because of the combination of all those mitigating factors I referred to – but particularly your new relationship and your future career prospects – that I took the exceptional course I did.

Therefore, now that it has come to light that a fundamental aspect of your plea in mitigation was false, I have no hesitation in varying the sentence and imposing immediate sentences of imprisonment, which I would have passed had I known the true position.

I stress that I am not altering my sentence to punish you for lying to the court. You may well face investigation into whether you have committed quite separate offences of perverting the course of justice.

I am altering my sentence because I was fundamentally misled by you as to your personal circumstances.

The sentence on each count on the indictment is therefore an immediate term of imprisonment of 18 months concurrent on each count.

You will serve half the 18 months in prison, then will be released on licence.

You are liable to be recalled at any time if you breach the terms of your licence or reoffend.

All other aspects of the sentence stand, including the restraining order which will apply indefinitely, as well as the order for costs.

VULNERABILITY 

I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim.

I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.

Having set out in some detail the facts of the case, all of which I accepted as truthful and accurate from the victim’s witness statements, I turned to sentence and said the following –

“These were two very serious offences of violence against your former partner. I am not convinced on the guidelines that she was particularly vulnerable due to her personal circumstances”

The words “particularly vulnerable due to her personal circumstances” are taken from the Sentencing Guidelines Council definitive guideline for offences of Assault, which I was bound to and did follow.

This is one of three factors that the court is required to consider in determining the harm caused by the offence.

Particularly vulnerable means especially vulnerable, exceptionally vulnerable or unusually vulnerable

There is a second guideline for sentencing in cases of domestic violence to assist judges with what this means in practice.

Victims who are very young or old, who are physically or mentally disabled, and female victims who are pregnant, are all to be treated as particularly vulnerable.

The guideline also contains the following paragraph:

For cultural, religious, language, financial or other reasons, some victims of domestic violence may be more vulnerable than others, not least because these issues may make it almost impossible for the victim to leave a violent relationship”

It was to this passage that I was referring when I gave the example of a woman who comes to the UK from a foreign country to live with her husband or partner, leaves her friends and family behind, makes few if any friends here and struggles with the language, with the result that she becomes effectively trapped in a violent relationship.

In referring to the fact that Miss Karim was an intelligent woman, who had worked as a receptionist and studied at university, and who had a network of friends, I was simply highlighting the fact that she had a degree of independence and support that some victims, whose circumstances are different, do not.

I was doing no more and no less than making a finding, in accordance with the sentencing guidelines, that she was not particularly vulnerable as compared with other victims whose personal circumstances are different.

She was, however, plainly vulnerable, as my sentencing remarks made perfectly clear.

She was vulnerable before the assaults started, because of the controlling behaviour of the defendant, which had distanced her from her family and friends, and which had undermined her confidence.

She was vulnerable after the assaults due to the ongoing psychological effects on her of the defendant’s violence.

I stated clearly that this was an aggravating factor and increased the starting point for sentence.

I referred in detail to her Victim Personal Statement, in which she described how she had been confident, active, humorous and positive about the future before the assaults.

I observed how, following the assaults, her confidence went down, she started to hide away from friends and family and her studies were affected.

I also noted that the most significant effect on her was that she now had issues with trusting people, and particularly men, and that she believed she would find it very difficult to trust another man in future.

I am concerned that the misreporting and misunderstanding of my remarks may have given Miss Karim the impression that I did not believe her account as to the effect these offences have had on her, or that I did not consider her to be vulnerable.

I trust that she will be given a copy of the transcript of my sentencing remarks on the last occasion and a copy of the remarks I have made today, copies of which are also available for the Press.

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Was the cricketer who forced his wife to drink bleach spared prison because his wife was “too intelligent”?

A quick one for tonight. Several tweeters have today wondered, queried and thundered about a news report hot out of Manchester Crown Court, which tells of an amateur local cricketer who assaulted his wife with a cricket bat and forced her to drink bleach, and who, in the typical tabloid argot, Walked Free From Court.

How, people have understandably wondered, can this be?

The case takes on an even more inscrutable pallor when one reads in national reports that the sentencing judge, HHJ Mansell Q.C., announced that the factor influencing his decision against gaoling the defendant was that the victim was university-educated, and was therefore not considered to be “vulnerable”.

What the heck is going on?

The offences

Reported facts in Crown Court sentence hearings are invariably incomplete, selective and, occasionally, simply plain wrong. I once read in a local newspaper, to my surprise, that I had invited a court to lock up my client for a non-imprisonable offence. Court reporting, with due acknowledgement to the many excellent journalists still plying this noble, dying trade, is not always entirely reliable. Nevertheless, taking as our best secondary source the local newspaper website, Manchester Evening News, we can identify the following facts.

Mustafa Bashir, aged 34, who played cricket in a local league in Oldham, pleaded guilty to assault occasioning actual bodily harm. The victim was his 33-year old wife. The offending reportedly arises out of two incidents, one in April 2014 and one on New Year’s Eve 2014, which occurred against the backdrop of a controlling and dominating relationship characterised by Bashir’s diktats as to how his wife dressed and spent her own money. The first incident in April 2014 was described as follows:

Manchester Crown Court was told the pair met in their native Pakistan and married in 2013. But Bashir was said to be a ‘controlling and dominating’ husband who told his wife what she could spend her money on and what she should wear, who she could see.

The couple had been on a day out to Rochdale Lake in April 2014 when an argument broke out about Bashir travelling to the Netherlands and he grabbed Ms Karim by her neck and was squeezing, until a member of the public threatened to go to the police.

Prosecutor Roger Brown said: “The parties went back home where the argument continued. He grabbed her neck again, so much that she said it was hurting a lot and at one point he picked up a knife and said that he would kill himself and she begged him not to.

“He took her into the bathroom where he grabbed a bottle of bleach and he made her drink the bleach so she would kill herself. She spat that out as she was unable to swallow it. Then he gave her tablets from the house and told her to take them. She did but again she was unable to swallow them.

“He said to her “I want you to kill yourself.” She left the bathroom and went into the living room where the defendant called her family to tell them they had an argument and that she was not obeying him. Her family urged her to obey him and told him that she would obey.

‘’She did take photos of her injuries to her neck and to her upper arm. When making her statement she said that he grabbed her neck very hard and she thought she was going to die. She was pulling at him trying to get him to stop but he was stronger and she couldn’t stop him. After that incident he left the house and she didn’t see him for some two days.’’

As for the incident at New Year, the MEN reports:

The marriage continued but on New Years Eve 2014 the couple were at home when a row broke out about Miss Karim speaking on the phone in their living room.

Mr Brown added: “She describes the defendant as becoming angry after she had been on the phone for just over half an hour, and after the conversation finished he took the phone off her and said she couldn’t have it back and he wanted to search it and look at the messages.

“She said her friends weren’t saying anything bad but he began insulting her father called him a ‘dog’ and she replied with “you don’t have a dad that’s why you don’t know how to respect mine”.

“He became more angry and slapped her, and grabbed her hands and started bending her fingers back trying to break them. He slapped her so hard again that she fell on the floor and lost consciousness. The next thing she remembers is waking up on her bed, she went to get her phone but he was there. She said to him: ‘it’s over please leave me alone’ but he called her a slag, and strangled her until she was struggling to breathe.

“He grabbed a cricket bat that was in the bedroom and hit her over the back with it. She recalls feeling a sharp pain.

‘’He said to her ‘If I hit you with this bat with my full power then you would be dead’. He went into the hall and she took the opportunity to call 999.’’

The charges

Bashir was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. The news reports do not make clear whether he was charged separately for the assaults (as I might expect given the break in time between them), or whether a single “rolled-up” count representing “the totality of the offending” (as lawyers would call it) was preferred, although it appears to have been the latter. In any case, assault occasioning actual bodily harm carries a maximum sentence of 5 years’ imprisonment. On the facts as reported, it strikes me as a somewhat generous charging decision by the CPS not to pursue a charge of attempting to inflict grievous bodily harm, which carries a maximum life sentence, in respect of the bleach incident at least. There is no suggestion that he pleaded guilty “on a basis”, where a defendant accepts certain factual elements of the prosecution case but not others, so we can infer that there is no dispute over what he did. It may be that this was a case where a more serious offence was initially charged, but where the prosecution agreed to accept a guilty plea to a lesser offence. This sometimes happens where the CPS is concerned over the strength of the evidence, or where a complainant expresses strong reservations about proceeding to trial. A lot of criminal cases end up “cracking” on the basis of convenient compromise.

He was sentenced to 18 months’ imprisonment suspended for two years. A requirement of his suspended sentence order was that he attend a Building Better Relationships course, administered by the Probation Service. He was ordered to pay £1,000 costs and barred from contacting the victim by the imposition of an indefinite restraining order.

Sentencing Guidelines

Courts are legally required to follow relevant Sentencing Guidelines, published by the Sentencing Council, when dealing with an offender, unless it is contrary to the interests of justice to do so. The relevant Guideline for our purposes is the Assault Definitive Guideline. The guideline for assault occasioning actual bodily harms specifies an “offence range” of a fine to three years’ custody. In other words, a sentence for this offence should be within that range unless it is contrary to the interests of justice not to do so. If you’re wondering why the range does not go up to the maximum of five years, that’s a darn fine question, and one which has long troubled me about Sentencing Guidelines, but is a debate for another day.

Within the range, the Guideline specifies three categories reflecting varying degrees of seriousness, which each category containing its own “starting point” and “category range”. The idea is that by identifying certain factors of the offence, the court can place it in a category and  move it up and down the range to reflect aggravating and mitigating features.

To identify the category, the court considers whether any “factors indicating greater harm” and “factors indicating higher culpability” are present. Included among the former is the situation where the “Victim is particularly vulnerable because of personal circumstances“. It appears that it is this criterion to which the judge was referring when he commented on the victim’s vulnerability. He is reported as having said:

“I am not convinced she was a vulnerable person. Sometimes women who moved her from their country become trapped in a relationship where they lose their support network of family and friends and cannot speak the language. This is not the case her. She is plainly an intelligent woman with a network of friends and did go on to graduate university with a 2:1 and a masters – although this has had an ongoing affect on her. She had difficult trusting people now, especially men.’”

This is the comment that has sparked outrage. One outlet reported, under the deck “Mustafar Bashir subjected his wife to devastating physical attacks, yet has been handed a suspended sentence because the victim was too “intelligent””, that:

“[D]espite his actions, Manchester Crown Court today has ruled that Bashir will not face jail because the judge has deemed the victim not to be “a vulnerable person”.”

Sandra Horley CBE, chief executive of the domestic abuse charity Refuge, has said:

“Judge Mansell’s comments – that he was not convinced of the victim’s ‘vulnerability’ – show a shocking ignorance around the impact of domestic violence on women. What a woman does for a job, her level of education or the number of friends she has makes no difference; for any woman, domestic violence is a devastating crime that has severe and long-lasting impacts.”

With respect, I think the criticisms miss the point. The Guidelines call for a specific assessment of whether a victim is “particularly vulnerable”; that is, above the inherent vulnerability of a victim of violence. It’s an odd exercise to ask a court to engage in, perhaps, but that’s what the Sentencing Council in its wisdom instructs judges to do: arrive at a hierarchy of vulnerability and pin the victim somewhere within. And, without for a moment seeking to minimise either the seriousness of the violence or the impact upon the victim, I’m afraid it is probably correct that, relative to the profile of domestic violence victim that recurringly appears before the criminal courts, Ms Karim is not among the most vulnerable, for the reasons noted by the judge. This criterion is usually met where the victim is elderly, or very young, or disabled, or socially excluded. There are in fact specific separate Domestic Violence Guidelines which inform the court’s assessment of “particular vulnerability” as follows:

IMG_1217

But in any event, it’s actually largely an academic point, because this is only one of three factors indicating greater harm, any one of which allows the court to tick that particular box. And the others – sustained or repeated assault upon the same victim, and serious injury in the context of the offence – are both present, and must have been accepted by the judge as substantiating “greater harm”, as the sentence of 18 months’ imprisonment falls within Category 1, the most serious category for this offence. This provides a starting point of 18 months’ imprisonment, and a range of 1 to 3 years. Assuming that credit was given to the defendant for his guilty plea (we are not told at which stage he pleaded guilty so cannot say how much credit, or discount, he was given off his sentence), the judge has apparently identified further aggravating features set out in the Guidelines, and adjusted the sentence upwards within that range before discounting for the guilty plea to arrive at a final figure of 18 months.

Suspended sentence – a walkout?

First things first: a suspended sentence is not a walkout. It is a sentence of imprisonment. That has to be made clear, much as it pleases the Daily Mail to pretend otherwise. If you commit a further offence during the currency of a suspended sentence, the expectation is that you will go to prison for the specified period. Ditto if you breach the community requirements attached to the order.

Any sentence of up to two years’ imprisonment can be suspended. A shiny new Guideline, barely a month old, was released to elucidate the principles relevant to determining whether immediate custody, a suspended sentence or a community order should be imposed, but in short there is significant judicial discretion in this area. Something of which judges are acutely aware is how little practically can be achieved with offenders serving short prison sentences, as is suggested by the appalling recidivism rates for short-term prisoners. The short sharp shock may send a message and satiate our desire for punishment, but is unlikely to achieve much else. Sometimes, this is unavoidable. Some offences require punishment to overtake rehabilitation in the pecking order. Some people may justifiably feel that this kind of domestic violence is one such example. On the given facts, I would probably have been advising my client to expect an immediate prison sentence. However, we do not know what else was before the judge. There would have been a Pre-Sentence Report prepared by a Probation Officer, whose recommendation will have been taken seriously by the judge. There may have been psychiatric or psychological reports opining on the unsuitability of custody, or the potential benefits to the defendant’s new partner of an intensive rehabilitative course to divert him from inflicting similar misery upon her. The media reports say little about his previous convictions, but good character (if indeed he was) often sways a judge against immediate custody. Ultimately, without having been in the hearing, and without having sight of the judge’s full sentencing remarks, we simply can’t say for sure exactly how the decision to suspend the sentence was arrived at.

What I will say with confidence, however, is that it will have had nothing whatsoever to do with the assessment of vulnerability. That is a complete red herring.

So what next?

For what little it’s worth, my cautious view is that, on the reported facts, Mr Bashir appears to have escaped with a lenient sentence. While justifiable on the Guidelines, few people will read the facts and feel that the punishment matches the crime. However, assault occasioning ABH is not an offence the sentence for which can be referred to the Court of Appeal by the Attorney General as “unduly lenient” (despite rather embarrassing suggestions to the contrary by qualified lawyer and former Solicitor General Harriet Harman MP) so in the ordinary course of events that would be the end of the story.

But – an intriguing footnote has emerged. Bashir’s barrister relied in mitigation on his client’s budding cricket career, submitting:

“He has continued to play professionally in a local cricket league but of some importance certainly to him is if he is allowed to keep his liberty he will be employed by Leicestershire as a professional. He was about to sign the contract when he was arrested.”

When passing sentence, the judge was plainly influenced by this submission, remarking [my emphasis]:

“With regard to the mitigating factors I am not convinced of your remorse for her, but you are sorry for the position you find yourself in over the last two years. Your current partner is supporting you in court and she complains of no violence. You have employment prospects of being employed in cricket for Leicestershire Cricket Club. This court will not tolerate violence in a relationship of this nature. It is a very fine line between imprisonment and a suspended sentence.”

As the story whizzed across the internet, Leicestershire Cricket Club were quick to distance themselves from the defendant, publishing a press release stating:

“Leicestershire County Cricket Club are aware of stories that have been published this morning regarding Mustafa Bashir.

‘The club are bemused by these stories. Any references to Mustafa Bashir signing or being approached to sign for Leicestershire County Cricket Club are completely false. The club have never spoken to Mustafa Bashir or an agent, nor offered a contract to the player.”

If I were Mr Bashir, I would be worried. The judge has 56 days, starting with the date of sentence, in which to recall the case and alter the sentence under what is known as “the slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask). The Court of Appeal has made plain, as recently as last year, that it is proper for this to be exercised where subsequent to the sentence hearing something arises which casts doubt over the veracity of the basis on which the judge sentenced. In the widely reported case of the Sledden brothers, two drug dealers who received suspended sentences were hauled back into court after celebrating their near miss by inviting the judge on Facebook to, inter alia, “suck my cock”. The judge said that, had she known of the defendants’ true lack of remorse for their offending, she would have sent them straight to prison. Which is what, under the slip rule, she did. The Court of Appeal duly upheld her decision.

HHJ Mansell Q.C., no slouch from what I’m told by Manchester practitioners, will be keenly aware of this. Do not be surprised if, when this is brought to his attention, Mr Bashir finds himself facing a further day in court, with a far less fortuitous outcome.

********UPDATE*********

I ought to have added for completeness that the consequences of Bashir giving false instructions to his barrister in mitigation, if indeed he did, could extend beyond an alteration to this sentence. He could well find himself charged with a fresh offence of doing an act tending and intended to pervert the course of justice. This story probably has a little way to run.