An idiot’s guide to navigating pupillage interviews

The Times has today published a fine piece on applying for pupillage, reflecting the advice and experience of some survivors of the process, both applicants and interviewers. Having had the privilege of seeing life from both sides of the interview table, I thought I’d offer my own, largely worthless musings on the things I have learned.

A stock photo entitled “three women in suit sitting” which could also feasibly depict an interview.

  1. Have a good answer to the inevitable.

You will be asked why you want to be a barrister. You will be giving a variant of an answer the panel has heard a thousand times before. That is unavoidable. So don’t strain yourself stretching for originality; aim for simple honest sincerity. At my first ever interview, I span a fluffy cat story about how I was inspired by the story of somebody I met on a mini-pupillage, and how I aspired to tread in their footsteps. The disdain from the panel was palpable. For several interviews thereafter, I cleared my throat and proudly declared my thirst for justice, passion for advocacy and burning need to help the helpless, voice the voiceless and improve the unimprovable. Looking back, I was fortunate not to have a chair thrown at me. Forget cliché and invention and speak plainly. If I were transported back and asked once again why I want to be a barrister, my answer would be simple: because I want to do something exciting with my life. And at the criminal Bar, whatever brickbats we throw at the system and the punitive lifestyle the Bar engenders, life is never, ever dull.

 

  1. Why did you apply to this chambers in particular?

For the most part, the truthful answer will be: “Because you are a chambers, any chambers, and I would literally accept a pupillage in a chambers run by bees at this moment in time.” Again, it’s a nasty question that interviewers know is near-impossible to answer. If you’ve done a mini-pupillage at that chambers, that will help formulate a complimentary response. If not, scour the chambers website for self-congratulatory guff about “ethos” and “values” and try to pass those off as your own. Failing that, tickling the ego of your interviewers with a non-grovelly acknowledgment that the chambers is a “leading set” (all sets like to consider themselves leading) in the particular area of practice is a reasonably safe line.

This outstanding design is the talent of @teaforpterosaur

  1. Have something memorable or quirky on your CV or application

The blunt fact is that everybody being interviewed will have a good 2:1 or 1st class degree. Many will have Master’s degrees. All will have (or will shortly have) at least a Very Competent mark on the BPTC. All will have done debating, mooting and other forms of public speaking. Presidents of University Law Societies are ten-a-penny. The well-advised will also have squeezed some pro bono legal advisory work into their non-existent free time. These are all necessary but insufficient. None, I’m afraid, will stand you out in the memory of the panel. However, the fact that you are a decorated Morris dancer, or were thrashed by Daphne and co on Eggheads, or once interviewed Mike Tyson for your student newspaper with the opener (and closer), “For our readers who may not have heard of you, what do you do?” – these will remain with the panel afterwards. They show that you are human, intriguing and the kind of person that the interviewer actively wants to find out more about. And that is the very best impression you can leave.

 

  1. Have a non-legal topic in mind that you can talk about freestyle

Linked to the foregoing, make sure you have prepared to talk about something – anything – that is not law. There will be a lot of law chat. But there will almost always be a tangential diversion into matters of non-law, often preceded by a vicious, “Tell us more about yourself”. One interview I attended was even more brutal; we were given five minutes to think up a 2-minute presentation on a topic of your choice. Line up a few of these during your interview prep. Think of something non-legal (to demonstrate your glorious diversity) on which you have personal experience or strongly-held views, and have it wrapped up and ready to fire in the event it is called upon.

 

  1. Immerse yourself in current affairs

 Again, an interview staple. Read the newspapers. Gobble up Times Law, Legal Cheek, Legal Twitter, and blogs by proper lawyers and academics for hot takes on vexed issues of law and politics. A common interview trick is to ask you to argue one side of a debate, before immediately inviting you to argue the opposite. Draw up a list of likely topics and think about your arguments in advance. Also be aware of industry-specific issues that are of no interest to anybody outside the Bar, but of enormous importance inside our bubble. If you’re interviewing for a criminal pupillage, be prepared to answer, “What are the biggest challenges facing the criminal Bar?” Be opinionated without being obnoxious; political without being partisan. Stand your ground under pressure from smug interviewers, but be prepared to make concessions if your argument is expertly blown apart.

 

  1. Don’t be intimidated by chambers profiles.

Looking at the profiles of other junior tenants on the chambers website can be a sobering experience. You will read how your contemporaries spent a year as an intern on an international human rights case, or have written starry and brilliant articles, theses or even books on esoteric and impressively complex aspects of your chosen legal field. Many will have impressive previous careers, either in law or outside, and as a twenty-something BPTC graduate, it is easy to be gripped by inferiority. Don’t be. Your CV counts for absolutely nothing when you’re sitting in a cell opposite a screaming heroin addict who has stabbed his cellmate in the eye and is threatening to exact upon you his frustration that his solicitor hasn’t been to visit him. Nor does it matter a jot when you’re in front of a judge or jury pleading the unwinnable case (or worse, the eminently winnable). Your judgment and powers of advocacy are the skills that can’t be reflected on pornographic CVs, and are the ones that matter most. Practise on demonstrating those in interview.

 

  1. Don’t gabble

It sounds obvious, but nerves in interview upend the most poised performers in your advocacy classes. Your interview is a chance for you to demonstrate advocacy under pressure. Deep breaths, slow and considered responses and substituting a brief pause for “umm” or “err” or, heaven forfend, “like”, are mandatory habits. Even if the topic is your Mastermind subject, you win no points for speed.

 

  1. Prepare for the unexpected

Some chambers do things the old-fashioned way. China tea-pot, warm smiles, civil conversation. Some take a sadistic pleasure in setting you Total Wipeout style obstacle courses at a second’s notice. Impromptu presentations on random subjects; a Dragon’s Den pitch on something I had two minutes to invent; idiotic Oxbridge-interview questions (“If you were a banana, what car would you drive?” etc); deliberately confusing written exercises and needlessly aggressive interview styles were, and probably still are, all common features. In reality, “prepare for the unexpected” is fairly useless advice; the best antidote for this kind of stuff is experience. But try not to be fazed.

 

  1. Do have a question at the end

You will hear competing theories over whether you do in fact need to have a prepared response to the final, dreaded, “Do you have anything you’d like to ask us?” My advice is to have at least three questions in your back pocket (just in case the panel unhelpfully answer one or two of them in the course of the interview). Even if it’s something as simple as, “Roughly how long does it take for your junior tenants to start appearing regularly in the Crown Court?” If you really can’t think of a good question, don’t ask a bad one. But it shouldn’t be beyond your wit to come up with a couple, just to keep the conversation flowing. Oh, and under no circumstances ask, “Did I get the job?! LOLZ!” You will deserve everything you get.

 

  1. It all comes down to dumb luck

This, I’m afraid, is the reality. The pupillage statistics speak for themselves. Your odds are slim, and unless you are particularly brilliant (and most of us aren’t), you are competing against hundreds of people of comparable ability, intellect and experience. What separates you from the herd in the eyes of the interviewers is often wholly arbitrary and unexpected. I was lucky enough that a flippant topic I’d picked up on was of enormous interest to a wonderfully fun and quirky member of chambers on the panel, who quickly turned the conversation round to 1980s power ballads. That, I was later told, was the clincher. Others will have friends or family in chambers, or relatives in the judiciary. Nepotism and inherited privilege shouldn’t have their place at the modern Bar, but they linger. There are a million variables that may influence your chances in any given interview. Ask for feedback from unsuccessful interviews, and use anything constructive, but don’t let a run of rejections cause you to lose heart. All it takes to break a losing streak is just one lucky win.

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A comprehensive list of intimidatory acts that are illegal offline but legal online

Today on Radio 4, Home Secretary Amber Rudd was the latest government minister calling for an overhaul of the criminal law in the name of tackling “intimidation and aggression” on the internet. Her premise is that “what is illegal offline should also be illegal online”. This was repeated by Theresa May in a speech today in Manchester. The thrust of the complaint did not appear to be that existing laws are being poorly interpreted and enforced by police and prosecutors; nor that certain social media companies are famously reticent in providing information to prosecuting authorities; nor that the existing law is piecemeal and mishmash and could do with a jolly good refreshing and consolidating (all of which are undoubtedly true). Rather it was that there is a special quality to the law that means that certain threats or abuse made over the internet simply do not amount to a criminal offence, and that new laws are required pursuant to the Something Must Be Done Act.

Photo by Samuel Zeller

To help, I’ve cobbled together a comprehensive list of intimidatory acts that are illegal offline, but not illegal when committed over the internet:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[ENDS]


Footnote: The Law Commission has been asked to conduct a review into the existing law that will cover, among other things, this very issue. I am fully prepared to bow to the Commission’s wisdom if I’m wrong and made to look like a bit of a wally.

Why did a Britain First supporter who wanted to “kill a Muslim” and drove his van at a pedestrian only receive 33 weeks’ imprisonment?

This is a little later than planned, but recently I’ve been responding to a number of queries about legal issues on Twitter through threads, and it struck me that it might be of some use (possibly) to put them up here, for anyone interested who doesn’t catch them live.

Here, from a fortnight ago, I look at why a Britain First supporter who drove his van at the owner of an Indian restaurant, having earlier expressed a desire to “kill a Muslim”, received 33 weeks’ imprisonment upon his conviction.

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Marek Zakrocki

 

 

 

 

 

 

 

 

 

 
 

 

 

Why is a man who raped “hundreds of women” being released from prison after only 9 years?

Storm clouds are gathering over the news that former taxi driver John Worboys, the convicted rapist who police believe may have drugged and attacked hundreds of female passengers, is to be released from prison after reportedly serving nine years of an indeterminate sentence of imprisonment.

How, it is being asked, can one of Britain’s most prolific rapists be back on the streets less than a decade after his conviction for multiple sexual offences against vulnerable women? Is this another example of soft sentencing by out-of-touch liberal judges (©Andrew Pierce)? Or might it just possibly be a little more complicated than that?

My piece is available for iNews here.

John-Worboys-003

Was 16 weeks’ imprisonment for Raheem Sterling’s racist attacker a soft sentence?

Yesterday, 29 year-old Karl Anderson pleaded guilty to a racially-aggravated common assault on Manchester City and England footballer Raheem Sterling, and was jailed at Manchester City Magistrates’ Court for 16 weeks. He was also ordered to pay £100 compensation and a mandatory Victim Surcharge of £115.

The reported facts are that, shortly before Manchester City’s match with Tottenham Hotspur last Saturday, Anderson approached Mr Sterling outside City’s training ground, kicked him four times to the legs and called him a “black scouse cunt” and “nigger”. A nasty assault, albeit one which fortunately did not cause any serious injury. And some commentators have questioned whether 16 weeks’ custody is a sufficiently robust sentence for a racially-motivated assault by a man with a history of football-related violence.

karl-anderson

Karl Anderson

So let’s break it down. We should start with some essentials.

What is “racially aggravated common assault”?

Common assault is the least serious form of assault on the criminal violence hierarchy, involving the infliction of minimal injury. (Technically, a “common assault” does not in fact require the use of any physical force at all; merely causing in another the apprehension of immediate unlawful force, say by squaring up to someone. “Assault by beating” involves the application of unlawful force – i.e. physical touching – but in practice the terms “common assault” and “assault by beating” are often (incorrectly) used interchangeably. It has little practical significance, as the two offences are created by the same statutory provision – section 39 of the Criminal Justice Act 1988 – and carry the same maximum sentence. But it’s a neat example of how no-one, including those of us who practise it, really understands the complexity and caprice of the criminal law.)

Anyway, common assault (or assault by beating) is a summary offence, meaning it can by itself only be tried in a magistrates’ court, and carries a maximum sentence of 6 months’ imprisonment. The racially aggravated version of this offence (which was created by section 29 of the Crime and Disorder Act 1998) is “triable-either-way”, meaning it can be tried either in a magistrates’ court or a Crown Court, and carries a maximum sentence of 2 years’ imprisonment. An offence is racially aggravated when one of two criteria is satisfied:

  1. At the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or
  2. The offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

So far, no problems in seeing how the offence was made out.

How should a court approach sentence for this offence?

The magistrates’ court was required to follow the relevant Sentencing Guidelines published by the Sentencing Council, in this case the Assault Definitive Guideline. Courts will also consider any relevant decisions by the Court of Appeal in similar cases.

The approach prescribed by the Guidelines (and by the Court of Appeal) is that courts should determine the appropriate sentence without the racial element, and then determine the appropriate “uplift” to reflect the racial aggravation. The level of the uplift will depend on the aggravating features which include the level of planning; the offence being part of a pattern of racist offending; membership of a group promoting racist activity; deliberately setting up the victim for humiliating him; the location of the offence; vulnerability of the victim; whether victim was providing a service to the public; whether timing or location of the offence maximised the distress caused; and whether the expressions of racial hostility were repeated or prolonged (R v Saunders [2000] 2 Cr App R (S) 71; R v Kelly and Donnelly [2001] EWCA Crim 170)

So let’s work this through. As ever, we have limited facts available to us, because the magistrates, notwithstanding that they were dealing with a case involving a high profile international footballer which was bound to attract national attention, did not see fit to publish their sentencing remarks online through the official judiciary.gov website. One wonders exactly how many storms there have to be over misreported sentencing decisions before the judiciary gets the message, but that’s a soapbox for another day.

But doing what we can with what we have, the Guardian reports:

“Magistrates were told Anderson pulled his white van alongside Sterling’s car as the forward waited to enter the training ground. CCTV showed both men get out of their vehicles and Anderson walking towards Sterling.

Miles said Anderson, who had been in the vehicle with his partner, started shouting racial abuse at Sterling and called him “you black scouse cunt”. He said Anderson also told the footballer: “I hope your mother and child wake up dead in the morning, you nigger.”

Miles added: “He approaches Mr Sterling and can be seen to be bouncing on the balls of his feet. He sets out kicking Mr Sterling to the legs on four occasions.” The court was told Sterling’s left hamstring was sore after the attack but he did not sustain serious injury. Miles said: “He is a professional footballer. His legs are important for his job.””

The Manchester Evening News adds that Sterling suffered bruising to his legs.

The Guideline requires that the court identify a category of offence by reference to the presence of features of harm and culpability. The category then provides a starting point, and a range through which the court can move as it considers the aggravating and mitigating features. You can have a go yourself:

IMG_2383IMG_2384IMG_2385

The assault, to my eye, falls clearly within Category 1, before we even consider the racial element. This involved repeated blows and the presence of bruising renders this a serious injury in the context of a common assault/assault by beating, so greater harm would appear to be established. Higher culpability is present by use of kicking (a shod foot is counted as a weapon equivalent in offences of violence). And the other aggravating features – this was an unprovoked attack on a man at his place of work, targeting the tools of his trade, his legs – would push this upwards in the range.

And then we come to Anderson’s previous convictions. The Guardian reports that Anderson had 25 previous convictions for 37 offences, including throwing a flare at a police officer during a football match. The MEN gives further colour:

Among his offences, Anderson was jailed for 18 months in July 2016 for violent disorder; convicted of common assault in April 2016; failed to comply with an international football banning order in January 2016 and November 2015; and a racially aggravated public order offence July 2014.

He was among a group of eleven Manchester United fans who were handed three and five year bans in January this year.

There is little reported by way of mitigation. There was, it seems from the Manchester Evening News’ live-feed of the hearing, no Pre-Sentence Report before the court. The expectation is that a court will seek a report, prepared by the Probation Service, if it is considering imposing custody, unless a report is considered not necessary. Its absence suggests that there were no matters of particular mitigation – such as mental or physical health – that would have been relevant to sentence. The defendant expressed remorse through his solicitor, and his early guilty plea is by far the strongest point in his favour.

Against this backdrop, I would have expected a standard assault by beating to be sentenced towards the top of the sentencing range, close to 6 months’ imprisonment (before reduction for guilty plea). Reducing by one third to reflect the guilty plea (all guilty pleas entered at the first hearing are rewarded with 1/3 off the sentence) would give us just over 17 weeks, which is close to the 16 weeks received.

But we haven’t yet moved to the uplift for racial aggravation, which can be substantial, and, as the Guidelines state, can move the sentence beyond the range for an ordinary common assault. Although the court is required to explicitly state publicly what uplift is being applied to reflect racial aggravation, there is no report of the magistrates having done so in this case. Quantifying the uplift is difficult; the Court of Appeal once suggested that up to 2 years would be a reasonable uplift for racially aggravated offences, but given that 2 years is the maximum sentence for this offence, some proportion is required. Cases are always fact-specific, so drawing assistance from earlier cases is always tricky. Nevertheless, to offer a little context:

  • In R v Fitzgerald [2003] EWCA Crim 2875, the Court of Appeal imposed 10 months’ imprisonment for racially aggravated harassment, alarm or distress with intent (which carries the same statutory maximum as racially aggravated common assault). The Defendant had shouted racist abuse at people in the street, and had unleashed a torrent of racial abuse and threats towards a police officer as he was arrested and taken to custody.
  • In R v Rayon [2010] EWCA Crim 78, the Court of Appeal imposed 10 months’ imprisonment (including a 5 month uplift) for racially aggravated common assault where the Defendant punched the victim to the face, threw him to the floor and kicked him. He used racist abuse, although the judge found that racism was not the primary motivation for the attack (it was against the background of an ongoing court case).
  • In R v Bell [2001] Cr App R (S) 81, the Court of Appeal imposed 12 months’ imprisonment, including a 6 month uplift, for racially aggravated common assault where the defendant attacked a 65 year-old black man in the street, calling him a “black fucker”, knocking him to the floor and telling him he should be “in a concentration camp and shot”.
  • In R v Higgins [2009] EWCA 788, the Court of Appeal approved 18 months’ detention, including a 12 month uplift, for racially aggravated common assault where the defendant was part of a group that pursued the victim through a park, making racist comments and threats, and punched him in the face and attempted to choke him.

An important point is that all of these were decided before the introduction of the Assault Sentencing Guidelines, and so are further limited in their utility. Nevertheless, allowing that sentencing is an art, not a science, and that no doubt other lawyers would reach a different conclusion, my view is that, in Anderson’s case, a starting point of 5 months with an uplift of 4 months would not have been unreasonable in the circumstances. That would result in a sentence of 9 months, reduced to 6 months (or 26 weeks) to reflect his guilty plea.

Where does that leave us?

It means that, in the context of racially aggravated offences, Anderson was in my view sentenced leniently, although the sentence is perhaps not as surprising as it first appears when one considers the example sentences above. What might certainly be said, however, is that the sentences for this type of pernicious, low-level racialised violence are probably lower than most lay people would expect. And, momentarily mounting my high horse, the man on the street would be entitled to demand exactly what a 16-week sentence (of which the defendant will serve a maximum of 8 weeks) is intended to achieve in the case of this repeat racist offender. Precisely zilch rehabilitation will be achieved during that period. It punishes to a degree, although Anderson has served significantly longer periods in custody, and may feel able to do 8 weeks with relative ease. It can hardly be said to be a deterrent sentence. And, adding those together, it’s difficult to see how the public are any safer for this sentence. None of the statutory purposes of sentencing appear to be satisfied.

It is, in many ways, what I would call a typical “magistrates’ sentence”: A short period of custody likely to achieve diddly squat, at enormous public expense. I don’t put the blame solely on the shoulders of the sentencing court; they operate in a culture where this type of sentence for this type of offence is considered appropriate. But, frankly, if we have racist hooligans repeatedly inflicting racially-aggravated violence on members of the public, my preference would be that we either aggressively rehabilitate them under a lengthy and intensive community order, or, if we have exhausted all options and punishment has to be king, lock them up for a period of time that appears commensurate with the seriousness of the offence.

It is of course possible that my criticism is misguided, and that there were beautifully set-out sentencing remarks, including a full explanation for the length of sentence and an exposition of the uplift, which render my take unfair. If so, I would welcome corrections and a copy of the sentencing remarks.

Could Donald Trump be arrested for inciting hatred when he visits the UK?

The nominal President of the United States has had quite a week. My personal highlight was his absent-mindedly tweeting a confession to obstruction of justice, and then wildly thrashing around looking for someone else to blame for penning a tweet which was written both under his own name and in his own, inimitable, grammar-hazing style. His personal lawyer, John Dowd, was designated as the fall-guy, and dutifully announced to the press as he stepped in front of the bus that he, a practising lawyer with no prior reported involvement with any of Trump’s Twitter activity, had decided to commandeer Trump’s account and tweet something both staggeringly incriminating and legally illiterate (“pled” receiving as many raised eyebrows the other side of the pond as over here), seemingly apropos of nothing. As acts of self-sacrifice go, it was very Dark Knight. John Dowd is very much the hero Trump desperately needs right now, albeit not one he deserves.

dark_knight_hed

John Dowd

But that debacle has taken a back seat on these shores to the diplomatic cake-smash caused by Trump retweeting a racist British far-right group’s anti-Muslim videos and doubling down when lightly ticked off by the Prime Minister. The response has been vigorous. Calls for Trump’s State Visit invitation to be rescinded have reverberated throughout newspapers and in the Houses of Parliament. And some Members of Parliament have gone as far as to call for Trump to be arrested in the event he sets foot on British soil.

Which is where I come in. Because, while the image of Trump being wrestled to the ground CNN/WWE-Gif-Style and handcuffed on the Mall has an undeniable, gorgeous aesthetic, legally it doesn’t appear as plausible as some politicians assume it to be.

Is Trump guilty of inciting racial or religious hatred?

Possibly. For the uninitiated, Trump retweeted to his 44 million followers three videos posted on Twitter by Jayda Fransen, the deputy leader of “Britain First”, bearing the titles: “Islamist mob pushes teenage boy off roof and beats him to death!”; a “Muslim Destroys a Statue of Virgin Mary!” and “Muslim migrant beats up Dutch boy on crutches!” [They are not embedded here for obvious reasons.]

Parts III and IIIA of the Public Order Act 1986 provide for various offences of racial and religious hatred. Although popularly referred to as “racist”, Trump’s various denouncements of Muslims would not, under English law, amount to an act of racial hatred, the definition under the Act providing for:

hatred against a group of persons […] defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins

Muslims are not presently recognised as a racial group (unlike Sikhs and Jews); however they would qualify as a religious group (section 29A), namely:

a group of persons defined by reference to religious belief or lack of religious belief

and so would be protected by the corresponding provisions of the Public Order Act prohibiting acts of religious hatred.

Right, so what such “acts” are covered?

Firstly, there’s an offence contrary to section 29C of the Act of publishing or distributing written material intending thereby to stir up religious hatred. It is well-established that posting content online amounts for these purposes to publishing and/or distributing. Secondly, and perhaps more fittingly, we can see an alternative in section 29E – distributing, showing or playing a recording intending thereby to stir up religious hatred. Each of these offences carries a maximum sentence of 7 years’ imprisonment.

The next issue for resolution is whether in retweeting the videos Trump intended to stir up hatred towards a group of persons defined by reference to religious belief or lack of religious belief. “Hatred” is a term of fact, not law, and has its ordinary meaning. It usually requires an element of hostility. There is also an inbuilt statutory protection for legitimate free speech as follows:

Nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

So is Trump intending to stir up hatred?

The first observation is that the videos were posted by a woman with a conviction for religiously aggravated harassment, in her capacity as deputy leader of a group committed to resisting the supposed “Islamification of the UK“. Her purpose in posting them is plain. Trump has said and done nothing to suggest that he disavows or disapproves of that purpose.

Furthermore, were I prosecuting this imaginary trial, I would be making a lengthy “bad character application” to adduce Trump’s proud and extensive record of anti-Muslim comments and policy initiatives. The Muslim ban; his equation of Muslim refugees with ISIS fighters; his baseless claims about watching “thousands and thousands” of Muslims celebrate in New York as the Twin Towers fell; his proposals to shut down mosques; obsessive and spiteful attacks on London Mayor and Muslim Sadiq Khan in the aftermath of London terror attacks; his refusal to distinguish between Islamists and Muslims; the fact that he has, a week on, not deleted the re-tweets despite being informed, by the Prime Minister of Great Britain and Northern Ireland, no less, that Britain First is a far-right, Muslim-hating flock of lobotomites, and, particularly pertinently, that the videos do not even show what is alleged. Against this background, what possible other intention could Trump have, members of the jury, in disseminating these videos? It can only be to stir up hatred, in what one presumes is the satisfaction of the urges of his base of deplorables. If I were defending someone with Trump’s public record, I would be advising him in the strongest terms that this is an argument he is not going to win.

So the offence is made out, right?

Not quite. “Hatred”, if proved, is not the end of the matter. There is a final requirement with religiously aggravated offences, as opposed to racially aggravated offences, that the material in question be threatening, not merely abusive or insulting. Again, “threatening” carries an ordinary meaning. Were Trump’s tweets threatening? I’m struggling with this. They may have been designed to incite hatred, they no doubt play to the gallery of people who would seize upon the videos as justification for threats (or worse), but without more, I think that this threshold is difficult to meet.

What about the fact the alleged offence was committed abroad?

Cases involving internet communications, particularly where a party lives or a website is hosted outside of England and Wales, can be tricky. Put simply, the test for whether our courts have jurisdiction over an alleged criminal offence is whether a substantial measure of the alleged activity involved took place within the jurisdiction. The leading case is R v Sheppard and Whittle [2010] EWCA Crim 65, in which a defendant based in the UK used a remote Californian server to host a website publishing antisemitic material. “Almost everything in the instant case related to the UK, which was where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only foreign element was that the website was hosted by a server in California, but the use of the server was merely a stage in the transmission of the material”, held the Court of Appeal in finding that the “substantial measure” test was easily satisfied.

Trump’s position is slightly more complicated. Looking at the core of his tweets, there is certainly an argument in favour of a substantial measure of the activity having taken place here:

  • The video was initially shared and distributed by Jayda Fransen, a British citizen;
  • Fransen was, presumably, based in the UK at the time that she sent the tweet;
  • It was originally intended for a British audience, being tweeted in her capacity as Britain First member;
  • Trump’s subsequent tweet to Theresa May, refusing to apologise and impliedly standing by the videos, could perhaps suggest that this particular theme was aimed at a British, and not just an American, audience. (I’m not convinced on this point)

However:

  • Twitter’s servers for the USA are based in the US;
  • Trump is based in the US and appears to have been in the US when the tweets were sent;
  • He would no doubt contend that his retweets were intended for a domestic audience.

This would be a hurdle that I am not confident the prosecution would clear.

But apart from that, there are no other obstacles, right?

There’s the small matter of section 29L(1) of the 1986 Act: No prosecution for religious hatred may be initiated without the consent of the Attorney General. This is a concession won during the Act’s controversial passage through Parliament in 2005, designed to ensure that the legislation is not abused to stymie criticism of religion. What this means in practice is that even if the Crown Prosecution Service formed the view that there was sufficient evidence to prosecute and that a prosecution was in the public interest (the two-part test applied to all prospective prosecutions), political considerations could override that assessment. The Attorney General is a member of the cabinet, and thus unavoidably vulnerable to political persuasion. The Prime Minister’s views on the desirability of attempting to prosecute the head of a friendly state moments after rolling out the red carpet for a State Visit I can only guess at. But I would surmise that consent may not be rapidly forthcoming.

But if the Attorney General says yes, we’ve got him right?

Absolutely. Apart from the fact that, as a Head of State, Trump has immunity from criminal prosecution in England and Wales pursuant to section 20 of the State Immunity Act 1978.

This provision confers upon Heads of State, members of their families in their household and their private servants the same diplomatic immunity as is extended to embassy staff under the Diplomatic Privileges Act 1964, which itself incorporates the Vienna Convention on Diplomatic Relations. This is what allows diplomats to park illegally anywhere, run up thousands in parking tickets and hop on a plane with no risk of ever being pursued.

As Head of State, Trump enjoys immunity from criminal prosecution for acts committed both as part of his official function and in private. The only exceptions would be if Trump had committed something akin to torture or a war crime, in which case technical arguments arise as to whether immunity is overridden by international law, as the House of Lords considered in the late 1990s when General Pinochet attempted to avoid extradition for authorising torture in his homeland. In 2003, the Attorney General told the House of Lords that no action could be taken against Saddam Hussain in UK criminal courts as long as he was Head of State of Iraq. And the principle of state immunity was further confirmed during an unsuccessful attempt to arrest Robert Mugabe for torture in 2004.

So why, if we couldn’t arrest Mugabe on charges of torture, do some MPs think we can arrest Trump for sending some tweets?

That is a good question. It’s possibly something those MPs may have wished to ask themselves before their tubthumping hollers in the House of Commons for Trump to be arrested and prosecuted. Sort of a basic, one might think. But, sighing heavily as the credits roll and I smile wearily to camera, who has time these days for something as minor as checking the facts before speaking?

Bad law reporting and a public dangerously disconnected from criminal justice

The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

Broken-Justice-System

And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

This article first appeared on Legal Cheek, and is available here.