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
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.
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:
Not to be. But I have a very high regard for David Liddington – moderate, consensual and listens
— Bob Neill (@neill_bob) June 11, 2017
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.
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:
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.
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.
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:
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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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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:
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.
Sgt Alexander Blackman
1. So, what’s this “Marine A” malarkey all about then?
Marine A, or Sgt Alexander Blackman, today succeeded in his appeal against his conviction for murdering a wounded Taliban insurgent whilst on a tour of Afghanistan in 2011. The Court Martial Appeal Court (CMAC) quashed his conviction for murder and substituted a conviction for manslaughter on the grounds of diminished responsibility.
2. This sounds familiar. Hasn’t he already appealed?
He has indeed. Following his conviction for murder before a Court Martial on 8 November 2013, when he was sentenced to life imprisonment with a minimum term of 10 years, he appealed against his conviction and sentence to the CMAC in 2014. On 10 April 2014, the CMAC refused his appeal against conviction, but reduced the minimum term (the minimum period before a life prisoner is eligible for release) from 10 to 8 years.
3. If his appeal against conviction has already been refused, how come he gets another?
Following the refusal of his appeal, Blackman applied to the Criminal Cases Review Commission, the independent statutory body set up in 1995 to investigate potential miscarriages of justice, following a series of notorious errors including the Birmingham Six, Guildford Four and others. If the Criminal Cases Review Commission considers that new evidence or a new legal argument has emerged, which leads them to conclude that there is a “real possibility” that the Court of Appeal (or CMAC) will quash a conviction, they can refer the case back to the Court of Appeal/CMAC. This only happens in a fraction of applications to the CCRC. On 15 December 2016, Blackman became one of the fortunate ones.
4. What was the “new evidence or argument”?
At his first appeal, it was unsuccessfully argued that the Court Martial system – a peculiar, sui generis legal tribunal not entirely misrepresented by the depiction of the trial of Blackadder for the slaughter of Speckled Jim the pigeon – was not compatible with the European Convention on Human Rights. Subsequently, psychiatric evidence has emerged which it is said would, had it been available at trial, have afforded him a partial defence to murder.
5. A defence! So he didn’t do it – is that what the Court said?
It depends what you mean by “it”. If you mean murder, then that is correct. The CMAC concluded that, for the reasons below, the conviction for murder was unsafe. However, it was confirmed by the Court – and agreed by Blackman – that he had deliberately shot and killed a wounded, defenceless Afghan insurgent at point blank range. The details of the killing, which were captured on video and later emerged to form the primary evidence against him, are set out in paras 17 to 22 of the judgment and are worth reading in full. They are not pleasant. In summary, on 15 September 2011, Blackman was leading a foot patrol of around eight marines in Helmand Province. After an Apache helicopter opened fire on two armed Taliban insurgents, Blackman was ordered to undertake a battle damage assessment. His patrol found one of the insurgents badly injured in the middle of the field. The marines took away his weapons and moved him to a position where he was out of sight of the operational headquarters. The video then records a discussion between the marines as they contemplated whether to patch the insurgent’s wounds or to kill him. The appellant checked that the helicopter had moved out of sight, and then drew his pistol. He fired a shot into the insurgent’s chest, watched his body writhe back and forth for 15 seconds and said, “There you are, shuffle off this mortal coil, you cunt.” As the insurgent died, Blackman continued: “It’s nothing you wouldn’t do to us. Obviously this doesn’t go anywhere, fellas. I’ve just broken the Geneva Convention.” None of those facts are disputed. The partial defence that the Court found was established, “diminished responsibility”, has the effect of reducing what would otherwise be murder – unlawfully killing someone with intent to kill or cause really serious harm – to manslaughter.
6. He shot a man in cold blood – how is that not murder?
The defence of diminished responsibility is set out in section 2 of the Homicide Act 1957. It applies only to murder, and provides, in short, that a person who would otherwise be guilty of murder should not be convicted of murder if they were suffering “from an abnormality of mental functioning which (a) arose from a recognised medical condition, (b) substantially impaired [the defendant’s] ability to do one or more of the things mentioned in subsection 1A; and (c) provides an explanation for the defendant’s acts in doing or being party to the killing.” The relevant “abilities”, one of which has to be substantially impaired, are set out in ss1A as the ability (a) to understand the nature of the defendant’s conduct; (b) to form a rational judgment; or (c) to exercise self control. In short, the defence is designed to ensure that a defendant whose culpability is reduced because of substantial impairment caused by an “abnormality of mental functioning” is not punished as severely as a defendant who commits murder knowing and understanding exactly what they are doing. The law does not completely exculpate them – a conviction for manslaughter and a hefty sentence follows, but the consequences are not as serious as a conviction for murder, with the mandatory life sentence that attaches.
7. So how was diminished responsibility argued in this case?
After his conviction but before his sentence, a psychiatric report was obtained, which opined that Blackman might be suffering from an undetected combat stress disorder. This was new – there had been no suggestion at the original trial that Blackman was mentally unwell; his (rather implausible) defence had been that he thought the insurgent was dead when he shot him. However the psychiatric report set bells ringing, and a number of further reports were obtained in the course of the CCRC investigation. Three psychiatrists all agreed that at the time of the killing, Blackman was suffering from adjustment disorder, a recognised medical condition with symptoms that include depressed mood, anxiety, inability to cope with a situation and a degree of disability in performance of daily routine. Out of the 20 to 25% of all soldiers who suffer mental health problems, the most common diagnosis is adjustment disorder. The symptoms are often masked and not apparent, either to the person suffering or to onlookers. A sufferer might appear to others to plan and act with apparent rationality. In Blackman’s case, each expert, who had carefully examined him, agreed that this abnormality of mental functioning substantially impaired his ability to form a rational judgment and exercise self-control. In other words, that the defence of diminished responsibility was made out.
8. What did the prosecution say about this?
The prosecution did not dispute the content of the psychiatric evidence, nor did they object to it being adduced at the appeal (there is a high bar for “fresh evidence” being admitted by the Court on an appeal). The prosecution accepted that the appellant suffered from adjustment disorder; however, they said that it did not have the claimed bearing on his actions. It was clear from the video that he knew what he was doing and intended to do it. It could not be proved that the adjustment disorder was operative at the time of the killing, and in any event Blackman’s judgment was not substantially impaired. The conviction for murder, they said, should stand.
9. And the Court agreed with the appellant?
It did indeed. It held that had the psychiatric evidence been before the Court Martial in 2013, the Board would have had to consider the issue of diminished responsibility, and that this could have affected their decision to convict of murder. The verdict was therefore unsafe. In arriving at this conclusion, the Court looked at the evidence of Blackman’s condition prior to his deployment to Afghanistan – how he was an exemplary, mild-tempered soldier up until the death of his father, and became “a husk of his former self” – and the conditions in which he was operating. He had insufficient training in Trauma Risk Management, lost the support of close mentors who were killed in action, and was working in a particularly dangerous, isolated environment. There were numerous stressors, the Court found, including very recent attempts on Blackman’s life, one of which was a grenade attack a month before the killing in which he escaped with his life by a whisker. The Court accepted that Blackman perceived a lack of support from his commanding officers, and that his cognitive function at the time of the killing would have been affected by radio chatter suggesting that another attack was imminent. Taken together, these amounted to “exceptional circumstances” the combination of which, applied to his adjustment disorder, substantially impaired his ability to form a rational judgment and his ability to exercise self-control. His actions, terrible as they were, had to be put in the overarching context of his disorder.
The Court then had to decide whether to remit the case for a retrial for murder, where a Court Martial could consider the evidence and the defence of diminished responsibility afresh, or to substitute a conviction for manslaughter today and be done with it. Given the Court’s findings above, they exercised their power under s.14 of the Court Martial Appeals Act 1968 to substitute a conviction for an alternative offence.
10. So what happens next?
He will be sentenced for manslaughter on a date to be fixed. There are no Sentencing Guidelines for manslaughter, but given the evident sympathy of the Court exhibited in the judgment, it would not be a surprise if they passed a sentence which resulted in Blackman being “time served” and immediately released. At the very least, it will be significantly below the 16-year equivalent sentence passed for murder (to arrive at the “minimum term” for murder, you take the appropriate determinate sentence that would be passed and chop it in half, to reflect the fact that automatic release applies to determinate sentences at the halfway stage).
Meanwhile, we can look forward to lots of angry people getting angrier and angrier, without bothering to read the judgment or acquaint themselves with the facts. For some, Blackman is a national hero who should never have been prosecuted at all for dispatching a murderous terrorist in the fog of war. For others, the prosecution of our own who, in their own, boastful admissions, breach international law and kill harmless, injured enemy combatants, is a mark of civility that stands us apart from the enemy.
For my part, I would urge everyone, whether of either view or none, to read the judgment in full. There is plenty to be learned, whether it’s a grim parable of the casual barbarity into which good people can descend, or an invaluable insight into battlefield conditions that most of us are fortunate enough never to have to endure.
********************
FOOTNOTE: The barometer of good judgment otherwise known as Matthew Scott (@barristerblog) makes a vital point buried in the judgment. Neither the result nor the judgment in any way amount to a criticism of Blackman’s original legal representatives at trial, nor the original Court Martial. His condition was invisible and he refused to allow his team to pursue a psychiatric defence out of fear of stigma. Those on social media attacking Blackman’s legal team do so from a position of guaranteed ignorance.
On Friday 10 March 2017, HHJ Lindsey Kushner Q.C. drew a 43-year legal career to a close by detaining a rapist for six years. After 14 years on the bench, her final trial at Manchester Crown Court involved a set of facts grimly familiar to criminal practitioners, in which the defendant, Ricardo Rodrigues-Fortes-Gomes (19), led the 18-year old victim, who had been drinking lager and vodka and inhaling amyl nitrate, from a city centre Burger King to a canal bank, where she was raped. Her cries were heard by a witness in a nearby flat, who called the police.
The details are scantly reported, but it appears that there was a co-defendant, and it was said that they took turns to have intercourse with the victim on the canal bank. They each claimed that the sex was consensual. The co-defendant was acquitted while Rodrigues was convicted. (For those immediately curious as to how this might be, it should be emphasised that the burden of proof means that such a verdict is not a finding that the co-defendant was innocent and that the intercourse with him was consensual; all we can divine from the verdict is that the jury could not be sure that there was not consent (or reasonable belief in consent).)
HHJ Kushner Q.C.
Having passed a sentence of six years’ detention in a Young Offender Institution, HHJ Kushner Q.C. took her last ever sentencing remarks as an opportunity to share some wider observations. This is not uncommon; recent years have seen retiring judges use their last hurrah to shoehorn in some long-suppressed views about, for example, the crumbling Crown Prosecution Service. Given the trial over which she had just presided, HHJ Kushner Q.C. chose the topic of sexual offences on which to offer her insight. The remarks bear repetition in full, given the interpretation that has since been attached to them:
“We judges who see one sexual offence trial after another, have often been criticised for suggesting and putting more emphasis on what girls should and shouldn’t do than on the act and the blame to be apportioned to rapists…There is absolutely no excuse and a woman can do with her body what she wants and a man will have to adjust his behaviour accordingly. But as a woman judge I think it would be remiss of me if I didn’t mention one or two things. I don’t think it’s wrong for a judge to beg women to take actions to protect themselves. That must not put responsibility on them rather than the perpetrator. How I see it is burglars are out there and nobody says burglars are OK, but we do say ‘please don’t leave your back door open at night, take steps to protect yourselves’…Girls are perfectly entitled to drink themselves into the ground but should be aware people who are potential defendants to rape, gravitate towards girls who have been drinking.”
The judge also went on to remark that “potential defendants to rape” target girls who have been drinking because they are “more likely to agree as they are more disinhibited, even if they don’t agree they are less likely to fight a man with evil intentions off”. She said a woman would be less likely to report a rape “because she was drunk or cannot remember what happened or feels ashamed to deal with it”.
“Or, if push comes to shove, a girl who has been drunk is less likely to be believed than one who is sober at the time…It should not be like that but it does happen and we see it time and time again. They are entitled to do what they like but please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others. That’s my final line, in my final criminal trial, and my final sentence.”
It did not take long for a flare to be sent up. This, it was swiftly asserted, amounted to classic Victim Blaming. Dame Vera Baird, former solicitor general and Northumbria Police and Crime Commissioner, told BBC Radio 4’s Today programme:
“When somebody is raped they feel guilt and shame and they find it very hard to report it. If a judge has just said to them ‘Well, if you drank you are more likely to get raped, we are not likely to believe you and you have been disinhibited so you’ve rather brought it on yourself’ then that guilt is just going to get worse.”
“Ms Baird said the judge should have given advice to help women stay safe instead of implying “it’s your fault for having attracted him in the first place”.”
“This looks like victim-blaming and they (organisations such as Rape Crisis) are worried that, yet again, it is going to become harder to get women to make reports. That’s a terrible shame.”
Similar sentiments were echoed by numerous charities and pressure groups. They were ad idem in their condemnation – the judge was blaming victims for the horrors that they suffered at the hands of their attackers. She was “telling women that they wouldn’t be believed” and “deterring victims from coming forward”.
This is the message that has since dominated the reporting of this story. And, with respect, it is wholly and dangerously wrong.
Victim blaming – ascribing moral fault to victims for crimes committed against them – is insidious and wicked for all the reasons correctly identified by Baird and campaigners. It wrongly seeks to diminish the moral culpability of the criminal by apportioning fault to the victim, in a manner unthinkable outside the arena of sexual offences; it increases the suffering of the victim; it deters present and future victims from reporting offences; and its logical conclusion holds that the solution to preventing these offences lies solely with the women who “invite” them, rather than the men who perpetrate them.
But it is not the same thing as seeking objectively to identify factors that increase one’s risk of vulnerability to crime, and urging awareness of those factors.
The sensitivity to perceived victim blaming in the criminal courts is understandable. The law – courts, judges and lawyers – has for centuries indulged in stark and blatant victim blaming. From the historical lack of respect and credibility afforded to “unchaste women”, to 1980s judges suggesting that a victim’s clothing or demeanour meant she was “asking for it”, to the fact that as recently as 1991 a wife could not in law be raped by her husband, the law has rightly been forced to update attitudes rooted in what is at best patriarchy and at worst institutional misogyny. And, while much has improved, it would be naive to assert that such attitudes can be comfortably boxed up as historical remnants.
The Fawcett Society earlier this year published a report suggesting that 38% of men and 34% of women surveyed said that a woman was “totally or partly to blame” if she went out late at night wearing a short skirt, got drunk and was the victim of a sexual assault. A High Court judge last year made comments, similar to those expressed by HHJ Kuschner Q.C., but with the added, ill-advised suggestion that the victim had been “foolish” to have exposed herself to risk. I criticised this on Twitter at the time as deeply unhelpful, representing, while not “victim blaming” as such, nevertheless a moral judgment of victims that we should strive to avoid.
It plainly still needs to be said, and should be said, loudly, clearly and repeatedly: It does not matter what a woman is wearing. Or how much she has drunk. Her body is her own. If you violate her autonomy, the responsibility is entirely yours. No-one else’s. She is not to blame for exercising her freedom. You will not, as happened in one notorious case in 1982 at Ipswich Crown Court, find yourself handed a shorter sentence on the basis that the victim is culpable of “contributory negligence” for putting herself in a position of vulnerability. Your crime is wholly your own.
But, to repeat the point – this should not be conflated with attempts to point out ways in which people can minimise the risk to themselves. The “locking your windows to keep out burglars” analogy often reached for in this debate, and indeed floated by the judge, carries an admitted crassness, comparing as it does a crime against property with an invasive sexual offence; but that does not diminish its inherent truth. Saying that there are common factors which are exploited by criminals is expressing empirical fact. It is not a value judgment on character or behaviour. It no more increases the moral culpability of the victim or decreases the agency of the offender than pointing out that going out without shoes increases your chances of cutting your feet on broken glass. You are not in any way morally to blame for someone else leaving broken glass on the floor, nor for expressing your right to dress as you please; the message is simply: here’s what experience teaches us you can do to minimise this risk.
In the instant case, it is obvious that this was all that the judge was doing. She was talking about a very specific type of offence which, although thankfully rare, crosses the criminal courts far more often than humanity can bear; namely, cases where a highly intoxicated lone young women is targeted by a predatory rapist due to her vulnerability. This is not a myth created by misogynist judges to frighten women into never leaving the house – it is an appalling reality. And what is more, as the judge carefully explained, the specific vulnerability of being blind drunk can be exploited not only in the commission of the offence, but a second time over by the defendant seeking to deny his guilt at trial. In the case that HHJ Kushner Q.C. had just heard, the guilty defendant had alleged consent. I can guarantee you that the defence barrister will have spent significant time in cross-examination tugging away at the minor details of that fateful evening to demonstrate how the alcohol had inhibited the victim’s memory in an effort to undermine the reliability of her evidence.
None of this, as the judge was at pains to say, is to in any way blame the victim for what happened to her. But it would be a nonsense to suggest that, in cases such as these, one’s vulnerability is not heightened by drinking to excess.
It is in many ways bizarre that at a time when there is a belated emerging social consensus that tackling “general” crime requires a multi-faceted approach, looking not only at the individual culpability of the offender but the broader environmental and causative factors that create the conditions for crime to occur, the tune of self-professed progressives is often one-note when it comes to sex offences. In political terms, emphasising that an effective criminal justice policy has to recognise the social and environmental factors that facilitate crime, and that so doing does not excuse the moral culpability of the individual, has been a gruelling campaign of the centre-left. It is usually the gravel-throated wails of the reactionary right that drown out attempts at nuanced assessments of crime that move beyond locating cause (as opposed to moral culpability) solely in the offender. But this is the adopted philosophy of those who shout down HHJ Kushner’s advice with the mantra of, “Rape is only caused by rapists”.
The choices of the offender are the largest part of the problem, of course. But it is blinkered to suggest that the solution to making the public safer lies simply in condemning louder and punishing harsher. Unpleasant as it is to accept, we will never eradicate violent and sexual crime. Never. There will always be people – usually men – who irrespective of the law, will rape. As long as we recognise that truth, it is incumbent upon us to help keep each other safe. This we do by focussing on the offender, and potential offenders, through social, criminal and penal policies combining education, deterrence, rehabilitation and punishment; but also by limiting opportunity for those who are determined to offend. A solution that focusses solely on the offender, asserting that there is nothing that can be done by the public to protect themselves, is no real solution at all. It’s cyclopic, prioritising the purity of The Cause ahead of pragmatic realities.
That, I fear, is what we are witnessing with this latest outburst against the judge.
And, again, in making these observations, I do not question the sincerity of the cause. And I understand why, whatever label one puts on the judge’s comments, it might still be suggested that they were not helpful. There is a justifiable worry that emphasising personal victim safety might deflect attention from the offender’s culpability in a way that is superficially extremely unattractive. One could argue that the prevalence of such remarks reinforce misnomers about sexual offending, and disguise more complex realities, such as the fact that the “stranger rapist in the bushes” is statistically rare, the offender and victim most likely to be known to each other. One might contend that the discussion about what steps it is objectively “reasonable” for a woman to take can easily fissure into normative value judgments about how women should act, or dress, or otherwise restrict their own liberties.
I would argue that none of those arise in this case – the judge’s remarks appear plain, sensitive and carefully targeted – but I can see why those who dedicate their lives to supporting victims may tire of what they perceive as an imbalance in public discourse, and wish that emphasis were placed elsewhere.
Nevertheless, whatever may fairly be tossed into the debate, and whatever deeper, noble motivations may pertain, the claims of “victim blaming” here are entirely unjustified. The ubiquity with which the term “victim blaming” is now thrown around, like “fake news” by a deranged faux-Presidential clown in a wig, risks degrading its meaning to “something we’d rather not hear”. Worse than that, it results in vital, non-judgemental messages about personal safety being lost in the din.
Judges and police trying to press home the message of personal safety find themselves like doctors telling a patient that there are certain environmental factors that increase their risk of vulnerability to a disease, and having their offer of advice angrily rejected as “victim blaming”.
In fact, it is worse than that. To stretch the analogy, Vera Baird’s words are akin to telling people: “If you go to see a doctor, you will suffer victim blaming.” Dame Vera, although I don’t doubt motivated by a genuine desire to improve the lot of victims of sexual offences, is becoming a repeat offender in this area, the first to heighten alarm rather than assuage concerns. The quote to the BBC, in which Ms Baird suggested that the judge had said “you’ve rather brought it on yourself” is, I’m afraid, simply untrue. Either Ms Baird did not read the remarks before commenting, or, worse, she did and has dishonestly misrepresented them to support her point.
It is a genuine shame that the publicity generated by the judge’s comments were not seized upon as a platform for a united message of support for victims, instead of being exploited as an opportunity for division and recrimination. Imagine if, instead of rushing to condemn this judge – who, with respect, will have a far deeper, broader and more objective understanding of the topic than many single issue campaigners – Vera Baird had said something like this:
“As this highly experienced judge rightly recognised, crimes of this type are always the fault of the offender. Furthermore, this type of rape is rare; but there are simple steps that we would urge people to take on nights out to increase their personal safety. Predators often seek out women who are drunk and alone and exploit their vulnerabilities. Of course go out, drink and have fun – but just take care. And, should the worst happen, please do not be deterred by media scare stories from reporting what has happened.”
It has been suggested that such advice is otiose, or patronising. As the Guardian was told by End Violence to Women:
“The group pointed out that women already take steps as a matter of routine. “They leave early, get taxis instead of buses, don’t wear ‘that’ top or ‘that’ skirt and they still get raped.””
And of course, the judge’s advice is not a panacea. It cannot and was not intended to be. But tragically the daily experience of the criminal courts shows that the message about personal safety still bears repetition. It won’t erase the problem, but it may help, in a narrow subset of cases, to save a few potential victims from having to pick up the fragments of their shattered lives off the courtroom floor. And if it does, it is a message which should be cheered by us all, with its judicial messengers celebrated rather than beaten into submission by misplaced accusations of “victim blaming”.
This serves as an addendum to the previous post, but I thought it was worthy of attention in its own right.
To those who missed it, a brief recap: Will Quince, MP for Colchester, publicised a letter he had sent to the Lord Chancellor, in which he expressed his view that a sentence passed in a local Crown Court on two burglars was unduly lenient, and invited the LC to agree. I took umbrage at the fact that this settled criticism had been formulated without knowledge of the full facts of the case, nor any acknowledgment of Sentencing Guidelines that judges are required to follow, and wrote a fairly impolite and intemperate rejoinder.
Mr Quince and I corresponded on Twitter, and having reflected I updated the post and apologised to Mr Quince for its original tone. Since that time, we have exchanged emails and discussed matters further. Mr Quince has then yesterday sent this letter to the Lord Chancellor, Attorney General and Bob Neill MP, Chair of the Justice Select Committee:
The letter speaks for itself. And, if he will forgive me saying so, it also says much positive about Mr Quince.
Although (for the reasons expressed in the last post) it appears to me that the Sentencing Guidelines were properly applied in this case – and that a comment from the Lord Chancellor on a specific case is unlikely – I obviously cannot and do not take issue with him posing the question and seeking further information. It is similarly entirely proper for him to reflect the concerns of his constituents and to ask whether the Sentencing Guidelines, as presently drafted, command public support. He is not alone in his concern that Sentencing Guidelines sometimes betray inconsistencies and appear out of kilter with public expectations; many in the professions would agree. For completeness, I would add that the links to the public consultation exercise that informed the Burglary Guidelines can be found here (with an explanation of the role and functions of the Sentencing Council here).
It is rare for a public figure, when challenged or corrected on the way they have represented the law, to admit an error or a rush to judgment. It is even rarer for them to take steps to publicly adjust their position.
It is to Mr Quince’s enormous credit that he has done so with such speed and candour, not least given that I did not initially engage him in particularly cordial terms. For that, I again apologise. It is too easy to assume that all MPs who opine misleadingly on the law do so with the chronic, wilful ignorance and boastful obstinance of Philip Davies, rather than to countenance the possibility that this is a human being making a mistake in good faith. I am grateful to Mr Quince for, through his conduct over the last few days, reminding me of this.
It would be nice to usher in 2017 with an exciting fresh take on a vibrant, buzzing legal issue of the day. As it is, the first post of the New Year is to be spent – and I fear this will be a recurring theme – reminding an elected Member of Parliament how the law works. That this has to be done in any case is depressing enough, but today’s is particularly disquieting given that the MP in question, Will Quince (Con, Colchester), is a qualified solicitor.
His LinkedIn profile states that he spent just under two years post-qualification working in the Business Services department of a firm of solicitors in Colchester before being elected to Parliament in May 2015. It is unclear whether he has ever practised in crime. Nevertheless, he has this weekend made it his business to write, on Parliamentary letterhead, to the Lord Chancellor Liz Truss about “far too lenient” sentences that were passed last week on two local burglars, inviting her to join him in his condemnation.
Mr Quince was not actually at Ipswich Crown Court for the sentence of Raymond Tauchert (55) and Carlton Ho-Ten-Pow (36) following their guilty pleas to a single count of burglary. But he read a report in his local newspaper about how the two men broke the window of the Colchester branch of Ernest Jones jewellers with a hammer in the early hours of October 20th last year and grabbed £8,200 worth of jewels, and how a two-year suspended sentence was imposed in each defendant’s case, and he is jolly cross about it. And Mr Quince wants the Lord Chancellor, the press and his Facebook fans and Twitter followers (to whom he has retweeted the press coverage of his campaign) to know.
It is a shame, I would respectfully observe, that he didn’t acquaint himself with the facts before doing so.
Because had he done so, he would have learned several things. Firstly, he would know that there is no such offence as “armed burglary”. Secondly, that there is in any event an important distinction between being armed for the purpose of threatening violence, and having a tool with you to break a window. Thirdly, and more pertinently, he would have been alerted to the existence of Sentencing Guidelines. These are the guidelines, produced by the Sentencing Council, which courts are legally required (section 125 of the Coroners and Justice Act 2009) to follow when passing sentence on a defendant. Specific guidelines exist for burglary. And at page 12 we see how a court is required to approach offences of non-dwelling burglary, step by step.
As the tenor of Mr Quince’s complaint – soft judges passing soft sentences – is a familiar refrain among politicians, it might assist to play through the sentencing exercise that courts are required, by legislation passed by those same politicians, to follow.
Step 1 is reproduced below. The court must first identify which category the burglary falls into, to arrive at a sentencing range. This is done by looking at a list of factors indicating “greater harm” and a separate list indicating “greater culpability”, and seeing which apply to the facts of the case.
Immediately, you may spot a problem – how do we know the exact facts of the case? Well, we don’t. We know about as much as Mr Quince. Which is what a journalist has chosen to selectively report from what the prosecuting and defending advocates have said over the course of a twenty to thirty minute hearing. We haven’t seen a transcript of the prosecution opening of facts, nor of the mitigation advanced, nor the judge’s sentencing remarks. We haven’t read the detailed Pre-Sentence Reports prepared by the Probation Service. And we haven’t seen the prosecution papers containing all the evidence. So we are going to have to follow Mr Quince’s lead in arriving at conclusions based on partially-glimpsed fragments of the full picture.
But let’s have a go.
Goods to a value in excess of £8,000 were stolen, and even to a large jewellery company, that would still amount to a “significant loss”, and for that reason this is a case of “greater harm”. None of the other factors indicating greater harm appear to be present. There was no suggestion that anyone was at work – this was after all the middle of the night – nor that there was any ransacking or vandalism beyond the damage caused to the window. Nor are there any factors indicating lower harm. Higher culpability is also present – this was a group (it is suggested that three men were involved, the third remaining at large) and they had a hammer to effect the break-in. So this is comfortably a Category 1 offence.
What does that mean? We turn the page:
It means a starting point of 2 years’ imprisonment. With a range of 1 to 5 years’ custody. We then see a range of factors that increase and decrease seriousness, which the judge applies to move the sentence up and down that range. It’s worth interposing here the (perhaps rather obvious) point that each defendant is treated separately. You don’t, as Mr Quince’s letter seems to imply, add up the combined convictions of both defendants and punish each for the other’s previous misdeeds.
What we are told about Tauchert is:
His convictions are plainly an aggravating feature, as is the fact that he committed this offence while on licence. We also know the offence was committed at night, although not, it seems, when anyone was likely to be present at the store. In his favour, a 3-year period of non-offending is notable for someone of his criminal history, and he appears to have taken steps to address a longstanding addiction. Importantly, there was, the court appeared to accept, a genuine trigger for his recent tumble back into old ways. It does not excuse his criminality, but it mitigates it. And will give a court cause to pause to consider whether a return to prison is likely to do more harm than good to his long-term rehabilitation.
Of Ho-Ten-Pow, we know only that:
Similar considerations apply, albeit his sob story may not pack the same punch. It’s worth noting that we know nothing about his existing community order. The court will have had all that information as its fingertips. The Probation Service will have reported on his progress on this order and whether, in its professional view, this is a defendant worth persevering with.
We also know that both defendants pleaded guilty and were entitled to one third credit for an early guilty plea. This is standard across all courts. Guilty pleas save everyone – court and witnesses – time, expense and worry, and so defendants are given a discount on their sentence if they admit their guilt early on.
Additionally, and importantly, both defendants had been remanded in custody since their arrests in October. So they had already served around 3 months in prison (the equivalent of a 6 month sentence), which would by law count towards any sentence of imprisonment.
Putting that all together, the Gazette reports that the judge adjusted the sentence up from 2 years to 3 1/2 years to reflect the aggravating features. Given what we know, this appears entirely sound. This is not the most serious Category 1 offence – as far as “diamond heists” go, this was hardly Hatton Garden territory, and, crucially, there was no confrontation with any individual, which is the usual trigger for a sharp tilt towards the top of the range. 3 1/2 years is around what I would advise a client to expect after a trial for this offence.
There then appears to have been a downward adjustment to 3 years – perhaps for the personal mitigation – before the judge (or Recorder, as he was) applied the one third credit to arrive at 2 years’ imprisonment.
Any sentence of 2 years or under can be suspended. We do not know for sure why the judge suspended it in this case, but the history of drug use, rehabilitation and relapse may well have led the judge to conclude that it was worth taking a chance on these defendants and giving them a suspended sentence with drug treatment and rehabilitation requirements. If they foul up, they’ll go straight to prison. If not – if they get clean and stop committing crimes – everybody, in particular the good and law abiding folk of Colchester, wins. Pre-Sentence Reports are often persuasive in these cases.
So considering what little we know about the offences, there does not, to my professional eye, appear to be anything outrageous about these sentences. The men were fortunate, perhaps. Some judges may not have taken the chance, and may have sent them straight down for two years. Possibly a little more. But nothing about this case suggests that the judge has done anything that he was not fully entitled to do on the guidelines.
And this would have all been plain to Mr Quince had he taken the time to to research the law and the facts, or to ask a criminal lawyer for help, or to seek a source of information beyond a 640-word news article, before firing off his letter to Liz Truss.
Most disappointingly of all, the letter is entirely misdirected. The Lord Chancellor is not in the business of joining excitable MPs in breaching the separation of powers and criticising judges for “soft sentencing” on the basis of inchoate media reports. The Lord Chancellor’s statutory duty is to uphold the independence of the judiciary. Liz Truss does not do this very well, but even she in her resplendent incompetence is not going to endorse Mr Quince tutting how “gobsmacked” he is at the judge’s conduct, nor whatever point this sentence is supposed to express:
“It flies in the face of members of the public who went to collect evidence, to the police officers who investigated and who made the arrests and to costs of the court.”
A more appropriate addressee for Mr Quince’s letter would have been the Attorney General, who superintends the Crown Prosecution Service and has the power to refer unduly lenient sentences to the Court of Appeal; but even then, it would have been to nil effect, burglary not being one of the offences that can be referred. If, having soberly reflected, Mr Quince genuinely believed that there had been a serious judicial error requiring disciplinary intervention, his recourse would lie with the Judicial Conduct and Investigations Office, assuming they stopped laughing long enough to formally process and reject his complaint.
The conclusion that one is regrettably driven to is that Mr Quince does not really know what he is saying or what he is doing. Which is a pity, because as a Parliamentarian and a lawyer, he is one of the people his constituents might reasonably expect to accurately and sensibly guide them on this type of issue, rather than firing up the torches and leading the villagers blindly towards the courthouse. When Liz Truss responds to Mr Quince, I hope that she reminds him of this in terms. And that he publicly circulates her reply with the same vigour as he has his original letter.
UPDATE: The advantage of blogging is that if, upon reflection, you realise that an argument you had made, or the way in which you have expressed a point, is wrong, you have the power to correct it. In the original text of this post, I think that I made such a mistake. Mr Quince politely responded on Twitter and engaged in a very civil exchange in which he indicated that, in light of the observations I had made, he would send a follow up letter to the Lord Chancellor. He also opined that he found my blogpost to be “unnecessarily rude”, referring in particular to the original title of the blog, in which I (rather weakly, in search of a rhetorical device) suggested he was “soft in the head”. Regular readers will know that deference to public figures who deliberately or recklessly mislead the public on the law is not the style of this blog. And certain people (I think in particular of Philip Davies MP, Katie Hopkins and other repeat offenders), who have been given countless opportunities to reform their ways and plough on in their pig-headed ignorance, deserve a dose of unapologetic and colourful impoliteness. I make no apology to them and their kind. But with Mr Quince I think I may have prematurely, and unfairly, crossed the faint line between stridency and rudeness in the way I sought to make my point. A number of people whom I respect took issue with the tone and style, which distracted from the thrust of what I maintain is a solid argument. And that – having a good point lost because of the manner of its expression – is bad advocacy. As well as poor form in general.
With that in mind, I have moderated the text of the original post, I hope to no less effect, and possibly to greater. There is a balance to be struck between being punchy and strident, and being snarky and rude. I certainly did not intend the latter over the former, but if that was the effect of my words and style, I apologise to Mr Quince. For his part, I still urge him to consider the broader danger posed by MPs attacking court decisions without knowing the law. He may well, as a representative of the people, have strong views of his own and of his constituents concerning matters of local criminal justice. And it is of course proper for him to address such concerns through the appropriate channels. But in doing so, little is achieved (and much damage is done) if careful and sober reflection give way to knee-jerk reaction and a clamour to politically capitalise in the media without learning the full facts. Mr Quince has indicated that, notwithstanding the analysis above (which he accepts), he still considers the sentences to be unduly lenient, and I have offered him a right of reply on this blog for him to set out his position. I shall post any response below.
There is a risk, I am acutely aware, of this blog appearing to transmogrify into The Secret Judicial Cheerleader. Which it is not. By way of pre-emptive self-defence, I should point out that much of my professional life is spent politely pointing out to judges why, in my respectful submission, the course they are thinking of taking, which just happens to be adverse to my client, is wrong.
And sometimes, I dare say I’m even right about that. Because judges are fallible. From magistrates – especially magistrates – through to Supreme Court Justices, errors in reasoning and application of the law occur. And people far brighter than me forge glittering careers appearing in the higher courts, and publishing brain-stretchingly clever academic criticism, telling judges just how wrong their brethren – or they – are.
But what those types of argument have in common is that those making the case against judicial decisions do so in full possession of the relevant facts and law. Which is a precursor, you might think, to entering any debate, whether in court, print media or online. Know what you’re talking about. If you’re not sure why something happened, pause and find out, before leaping to the settled conclusion that, because that something instinctively offends you, it must be wrong. Or unjustifiable. Or evidence of systemic corruption. Or proof of some other cosy conspiracy theory.
It’s rather sad that I feel I have to open with such obvious points, but increasingly it becomes clear that they escape many who wish to inflict their opinions on their large, and often inexplicable, followings.
And so to Marine A, or Sgt Alexander Blackman. I touched on his case a few days ago, when his application for bail pending his appeal against his conviction for murder was adjourned. Yesterday the Court Martial Appeal Court (CMAC) heard the bail application, and refused it. The appeal will be expedited and listed as soon as possible next year, but the appellant will not be coming home for Christmas.
On cue, a band of merry speaking heads sprang up, Whack-A-Mole style, to denounce this decision. That so many did without being in court and before the Court published its judgment perhaps tells you something about the factual soundness of their premise. A choice few include:
Our judges are often incompetent & it is time to change how they are appointed #JusticeForMarineA Send him home for Christmas https://t.co/5FuHtvrUxa
— Duncan Bannatyne (@DuncanBannatyne) December 21, 2016
So trained Jihadi traitors can come back and live in Uk but #marineA is refused bail? What a fucked up Country and judiciary we have
— Jon gaunt (@jongaunt) December 21, 2016
The refusal of bail for Sgt Alexander Blackman smacks of malice. He’s not a flight risk. #JusticeForMarineA
— Sarah O’Grady (@ExpressOGrady) December 21, 2016
We allow migrant rapists human rights. We fail our own good men https://t.co/Zo64p4mJLx @justiceforBigAl Forwards, to success at appeal xxx
— Katie Hopkins (@KTHopkins) December 21, 2016
First they try to block Brexit, now these disgraceful judges prevented a war hero seeing his family at Christmas. Do they hate this country? pic.twitter.com/Lml3STVOy3
— LEAVE.EU (@LeaveEUOfficial) December 22, 2016
So what happened? As a brief recap of the case, Sgt Blackman was convicted of murder in 2013 by a Court Martial, having shot an Afghan detainee at point blank range in 2011 while on tour in Afghanistan. The case pricked emotions all round. For many, this was an act of cold-blooded murder which degrades the reputation of our military and endangers fellow servicemen, and Blackman was rightly prosecuted and convicted. For others, this was a mistake by a respected hero risking his life for our safety, and the morality and legality of such things done in the fog of war cannot be second-guessed by civilian commentators or media.
The details of the appeal are subject to reporting restrictions, but what we know is that the Criminal Cases Review Commisison has presented fresh psychiatric evidence which it is said relates to the appellant’s state of mind at the time of the shooting, and which renders the conviction for murder unsafe. It will be submitted that the correct verdict should have been manslaughter, on the grounds of diminished responsibility. There are also further grounds relating to, amongst others, alleged incompetence of the trial representatives. (The full issues for appeal, some referred by the CCRC, some raised for the first time by the appellant, are listed at para 9 of the judgment.)
Yesterday was the first effective hearing at the CMAC. Bail was sought and refused. Why? Was it, as Bannatyne says, because judges are incompetent? Was it because they are, in the poetic words of Jon Gaunt, “fucked up”? (A side note on Mr Gaunt – he is the radio presenter who, after being sacked by Talksport for calling a guest a “Nazi”, took his case against Ofcom as far as the High Court, where it was held that “the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification”. Which will no doubt be his epitaph.) Was Blackman failed by judges maliciously applying lesser standards to a war hero than they would a migrant rapist, out of loathing for their country?
Actually, the reasons are set out in the judgment, which, if one takes the time to read it, makes for a far less scandalous tale. As para 18 patiently explains, bail pending appeal is rarely granted. This accords with most practitioners’ experience of appellate proceedings. Bail will only be granted in “exceptional” circumstances. Before conviction, there is in most cases a presumption in favour of bail, and the court will need to be satisfied that there are substantial grounds for withholding bail (e.g. the defendant is a flight risk, or there is a risk of further offending). But where someone is convicted and is seeking to appeal, entirely different considerations apply. Exceptional circumstances must be made out in order for bail to be granted. What amounts to “exceptional”? The test is set out in case law. Normally, “exceptional” requires that the merits of the appeal are overwhelming, or that the appellant will have served his sentence by the time of the appeal, rendering it practically nugatory.
Here, neither of those was satisfied. The Crown, although neutral on the issue of bail, do not accept the premise of the appeal. They do not agree that the new psychiatric evidence establishes a potential defence of diminished responsibility, and will argue that the conviction for murder is safe (para 13). With this in mind, and the Court having seen the fresh evidence, it considered that the case cannot be seen as “overwhelming”. (And anyone who feels able to positively disagree with this assessment without seeing the evidence is frankly beyond reason.)
Turning to the second limb, even if a conviction for manslaughter were successfully substituted for murder, it does not follow that by the time of the appeal, he will have served all of his sentence. Exceptional circumstances, the Court held, are not made out on the test that the Court has to apply. The test is not, as some would wish, whether one has sympathy with Sgt Blackman, or whether the judges know the true meaning of Christmas. It’s the same test that is applied to all murder convicts. Reaching for the trite point, if you were the family of the deceased, you would want the Court to follow the law when entertaining a bail application from your beloved’s killer, rather than to base their decision on the whims of the public mood. This is the rule of law, folks. It’s there to protect us all.
The timing of the appeal is also important. In recognition of the urgency of the appeal, the Court has agreed to sever the various issues raised in the grounds of appeal and to expedite the seemingly most pressing – that of the psychiatric evidence. The appeal on this ground is likely to be heard at the end of January 2017 or start of February. To those abusing the judges for their lack of compassion, for the Court of Appeal to list a substantive murder appeal hearing involving fresh psychiatric evidence within a month of the CCRC reference being received, is rare. This case, whether rightly or wrongly, is getting afforded attention and speed of treatment that many equally, if not more, meritorious appellants can only dream of.
Again, I’ll close with repetition: this is not, as some like to suggest, blanket support of the decisions that judges take. It’s not even saying that this particular decision is unimpeachable. It’s certainly not saying that people shouldn’t feel strongly about cases like this. But there’s a difference between criticism factually-grounded and forcefully expressed, and ignorant, gratuitous abuse such as that spat out by Bannatyne and his ilk.
The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:
Which perhaps, at this stage, is all that properly can be said.