Category Archives: Lawsplaining

Televising sentencing remarks is a gimmick that has not been thought through

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As somebody who spends more time than is healthy banging the drum for better public understanding of the justice system, today’s announcement from the Ministry of Justice that sentence hearings in the Crown Court will be televised should be right up my wheelhouse.

The proposal sidesteps any worries about a rush to an Americanised celebrification of court participants by providing that only the sentencing remarks made by the judge will be filmed and broadcast; victims, witnesses, Probation, caseworkers, court staff, lawyers and the attending public will not appear in shot. This follows the broadcasting in recent years of proceedings in the Court of Appeal and Supreme Court, and is on its face a show of ministerial faith in the principle of transparency and open justice. Which is very much A Good Thing.

So why am I concerned?

There is the obvious observation that striking broadcasting deals is an odd priority for a Ministry overseeing a justice system in a state of collapse. The courtrooms that haven’t been flogged off (half of all magistrates’ courts have been sold since 2010) are in the main decrepit, crumbling hovels with broken heating, perennially out-of-order lifts, peeling walls, sporadic running water, holes in the ceilings and clogged toilets, wholly unfit to service the people who work there, let alone the public compelled to attend for what is already one of the most stressful days of their lives. Legal aid has been slashed so deep that there are hardly any new entrants into criminal law, with the Innocence Tax – the indignity inflicted on those people wrongly accused of a crime, refused legal aid and, when acquitted, forced to foot the bill for their legal costs – now a permanent fixture. Crown Court sitting days have been cut, leading to delays of years between an offence occurring and criminal proceedings concluding, prolonging the agony of all involved and increasing the likelihood of miscarriages of justice as memories fade and witnesses lose faith. The police and the Crown Prosecution Service still don’t have anywhere near the resources required to discharge their basic functions. In short, there is plenty that you might imagine a government which was serious about criminal justice would want to achieve as its first order of business.

But even if this initiative is simply something shiny to cynically wave at journalists in the hope of distracting from the real problems, it doesn’t follow that it’s necessarily a bad idea. If it has the effect of increasing public awareness of the sentencing process, that is an evident good.

The problem is that I don’t think it will do that.

The difficulty is in the compromise that has had to be reached to avoid deterring victims and witnesses from attending court and engaging with the criminal process. Victims often attend sentence hearings, and have the right to read their Victim Personal Statements aloud in court. It is plainly right that they not be dissuaded from doing so by a fear of having their most intimate trauma broadcast or retweeted to the nation. So it is that the decision has been taken not to broadcast the prosecution advocate opening the facts at the sentence hearing (during which the Victim Personal Statement will be read), nor the defence advocate advancing mitigation, but solely the judge’s sentencing remarks.

However sentencing remarks, while essential for anybody wishing to report or pass comment on a criminal case, are not by themselves sufficient to give a comprehensive understanding of what has happened in a case. A sentence hearing is a dynamic process. The advocates will advance often-conflicting submissions as to how particular case law or Sentencing Guidelines apply – whether a certain aggravating or mitigating feature is present, for instance, whether an offence is a “Category 1” or “Category 2” offence, whether a victim is “particularly vulnerable” or just plain “vulnerable”, whether a defendant is “dangerous” and so liable for a particular kind of sentence. The judge will usually interrogate these submissions, challenging the advocates to justify their position.

There will be mitigation advanced, which will usually include reference to detailed Pre-Sentence, psychiatric or psychological reports, as well as character references, letters from the family and so forth. Again, the relevance and significance of this will vary from case to case, but it all forms part of the picture.

And the thing about sentencing remarks is that they don’t – can’t – rehearse everything that has been said in a sentence hearing. They only set out the headlines. They should, plainly, explain why a particular sentence has been passed, but they don’t include all the evidence that was heard at trial, all the arguments that were advanced by the prosecution and defence during sentence, or a full examination of the law.

And sentencing remarks are set to become even less detailed thanks to a decision of the Court of Appeal last year, which appears to have completely bypassed our justice ministers. In the case of R v Chin-Charles [2019] EWCA Crim 1140, the Court of Appeal went out of its way to criticise judges who produce what in the eyes of the Court of Appeal are overly detailed sentencing remarks:

  • There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. The Court of Appeal always has the Crown’s opening and any note for the sentencing hearing, and a record of mitigation advanced. In many cases both sides have produced notes for sentencing. The Court of Appeal will have the pre-sentence report. None should be exhaustively rehearsed in sentencing remarks and, if mentioned, only briefly. 
  • The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. 
  • On occasion authority is cited by parties. Save in exceptional circumstances sentencing remarks need not refer to it. 
  • The sentence must be located in the guidelines. In general, the court need only identify the category in which a count sits by reference to harm and culpability, the consequent starting point and range, the fact that adjustments have been made to reflect aggravating and mitigating factors, where appropriate credit for plea (and amount of credit) and the conclusion. It may be necessary briefly to set out what prompts the court to settle on culpability and harm, but only where the conclusion is not obvious or was in issue, and also to explain why the court moved from the starting point.
  • Findings of fact should be announced without, in most cases, supporting narrative.
  • If in play, a finding of dangerousness contrary to statute must be recorded. Supporting facts should be set out only when essential to an understanding of the finding, not as a matter of course. 
  • Victim personal statements might merit brief reference (Criminal Practice Direction VII Sentencing F3d). Limited brief reference to the contents of reports will be apt only if essential to an understanding of the court’s decision.

For my part, sentencing remarks which cite the law, contain detailed discussion of the guidelines, recitation of the arguments and a comprehensive explanation as to how legal and factual issues in the case have been resolved are absolutely what are required to help the public understand why a judge has passed a particular sentence. This decision appears to have been made with an eye on reducing the workload of the Court of Appeal by trimming the number of pages they have to read on sentence appeals, and is in my view wholly at odds with the notion of sentencing as a public function. Sentencing remarks should be written like a judgment, for that is what they are: a judgment determining a person’s liberty.

Of course the Court of Appeal hearing an appeal has a transcript of the prosecution’s opening and the record of mitigation, as well as the reports, but the public watching a Crown Court judge pass sentence does not. And if – as is proposed – they are not to be shown any of that – no prosecution opening, no mitigation, no reports – and the judge is told that there should usually be no supporting narrative, that supporting facts should be set out “not as a matter of course” and that case law should only be referred to in “exceptional circumstances” – how on earth is the public going to be fully informed? How will the complexity of criminal sentencing – the delicate balancing exercise of competing aims and interests – be fully explained to a non-legal audience?

And so we have a perfect storm. Judges are now mandated by the Court of Appeal to include as little detail as possible in their sentencing remarks, while the government proposes to broadcast those remarks – and nothing more – in an alleged effort to enlighten the public.

We already see with regularity fully-explained sentencing remarks divorced from their context, misquoted or distorted by lazy reporters and special interest groups, and judges unfairly monstered as a consequence. The ability of anyone so inclined – from bad-faith editor to Twitter troll – to clip decontextualised video footage and circulate it virally to make a dishonest point about ‘soft sentencing’ or ‘loony judges’ is a modern reality. To increase the risk of misunderstanding by showing the public only a fraction of the process is a move at odds with full transparency.

A cynic might point to this government’s overt anti-judiciary agenda and suggest that, far from enhancing public faith in justice, this is a ploy designed to expose judges to the wrath of the partially-informed mob. But even if the Prime Minister’s judge-bashing is just unhappy coincidence, it is clear that at the very least there are obvious flaws in this plan which, in the true spirit of the Ministry of Justice, have not been thought through.

10 things you should know about the London Bridge attacker and “early release”

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No time can be afforded in 2019 to respect the dead. Not when there’s an election at stake, and the tantalising prospect of scoring cheap political points winks coyly at you from a special advisor’s email. So it is that, within 24 hours after the killings by Usman Khan at London Bridge, politicians have lined up in descending order of deplorability to exploit the tragedy for their own ends. The Prime Minister obviously went first, leaping in front of Sky cameras last night to claim:

” I have long argued that it is a mistake to let serious and violent criminals out of prison early and it is very important that we get out of that habit and that we enforce the appropriate sentences for dangerous criminals, especially for terrorists that the public want to see.”

This, one presumes, is a nod to his well-publicised manifesto pledges to “toughen up sentences”, although (as we shall see) it is well worth reminding Mr Johnson, as he seems to have forgotten, that absolutely nothing in his manifesto would have made the slightest difference to the sentence or release in a case like that of Usman Khan. There followed a dash to ascribe culpability for the fact that Mr Khan had been released from prison after serving 8 years of a 16 year custodial term for a terrorism offence; it was the Parole Board, then the judges who had passed sentence on Khan, then, somehow, the EU, then, in perhaps Twitter’s lowest moment today, Khan’s blameless lawyers. This afternoon, Labour and Conservative figures took turns to cast blame, each frantically trying to plunge the hands of the other into the victims’ blood before it dried, notwithstanding the pleas of victims’ families not to make political capital out of lost lives.

Amid all the shouting and, in the case of the government, outright lying, the truth about how and why Khan was sentenced as he was has barely had a look in. So it is worth taking a quick look at ten things we actually know.

 

1. What was Usman Khan convicted and sentenced for?

Usman Khan, then aged 20, pleaded guilty on 31st January 2012 to an offence of engaging in conduct in preparation for acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. This is an offence carrying a maximum sentence of life imprisonment. Although widely reported as relating to a plan to bomb the London Stock Exchange, the full facts (reported here) are worth reading, as the reality is more complicated. Khan, then aged 19, was part of a group based in Stoke who in November and December 2010 were engaged in a well-developed plan to raise funds to build a madrassa in Kashmir to train terrorists. While they had contemplated that some of those trained might return to the UK and involve themselves in terrorism, the basis on which they were convicted was that although they had discussed perpetrating a terror act in Stoke, they did not intend to participate in an act of terrorism in the UK in the immediate future. What they did do, however, was liaise with other groups in London and Cardiff, who were actively planning to leave an explosive device in the Stock Exchange. The groups, including Khan, had meetings and discussed common interests, such as how to make a pipe bomb, but by the time of conviction, the prosecution and defence had agreed that the Stoke group were not in fact involved in the Stock Exchange plot, and the guilty pleas that were entered by the various defendants reflected this, as they were pleas to different counts on the indictment.

Nervtheless, Khan was an obviously dangerous individual. He demonstrated “a serious long term attitude to establishing, funding and recruiting British Muslims to attend the madrassa and to then be available to commit terrorism abroad and at home.” And for that reason, on 9th February 2012, he was sentenced as a dangerous offender to detention for public protection (“DPP”) with a minimum custodial term of 8 years (minus time served on remand).

2. What is “detention for public protection”?

Detention for Public Protection (DPP) is a relative of the slightly more famous Imprisonment for Public Protection (IPP). Someone aged between 18 and 21 is sentenced to detention, rather than imprisonment, but the sentences are substantially the same. They were introduced in 2005, and where a defendant convicted of certain serious offences was assessed by a court as dangerous – meaning they posed a significant risk of serious harm to the public – but the seriousness of the offence they had committed did not justify a life sentence, IPP (or DPP) could be imposed instead. The effect was similar to a life sentence. The Crown Court would set a minimum term (tariff) which a defendant would have to spend in prison. After serving the minimum term, he would have to satisfy the Parole Board that his imprisonment was no longer necessary for the protection of the public. If he did so, he would be released on licence for at least 10 years. If he couldn’t, he would stay in prison until he could, potentially forever.

The minimum term was half of the equivalent sentence that a defendant would have received if he’d been sentenced to a standard determinate sentence. Why half? Because (as we’ll see below), since 2005 defendants serving determinate sentences have been automatically released at the halfway point. So in theory, if a dangerous offender fully rehabilitated himself in prison, he could be out at the same time as if he hadn’t been assessed dangerous in the first place.

So in Khan’s case, the sentencing judge found that, taking into account Khan’s young age and his guilty plea, the appropriate determinate sentence would have been 16 years, meaning the minimum term was 8 years.

3. So why was Khan’s sentence reduced by the Court of Appeal?

As ever, the best explanation is in the full judgment, which I’d urge you to read. Boiling the appeal down to its barest bones, the argument made on behalf of Khan was this. The London defendants – the ones who had planned to bomb the Stock Exchange – were deemed by the sentencing judge to be less dangerous than the Stoke defendants. This was because, although their criminality was, to quote the prosecution, “equally serious”, the Stoke defendants, including Khan, demonstrated a level of sophistication that made them more dangerous. The Court of Appeal, having heard arguments from the prosecution and the appellants, reached the conclusion that the judge was wrong to distinguish between the groups in this way. “If the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal [the Stoke lot] than those who were far closer to doing so [the London Stock Exchange lot],” in the word of Lord Justice Leveson.

Accordingly, the Court of Appeal gave Khan and his Stoke associates the same type of sentence as the London group received – an extended sentence. They disagreed with Khan’s argument that the custodial term of 16 years should be reduced.

4. What is an “Extended Sentence”?

This is where things get messy. Because we have had a lot of versions of Extended Sentences over the past 15 years, as governments have battled to secure headlines by tweaking and amending the various regimes on numerous occasions. The best summary is in this document by the Prison Reform Trust. In simple terms, if a defendant was found to be dangerous (as defined above), and a determinate sentence could not manage his risk, the court had to consider whether an Extended Sentence would do; if not, it would be IPP or life imprisonment. An Extended Sentence involved a custodial term (the same as would have been imposed for the offence for a “normal” defendant), with an extended period of licence of up to 5 years (for a violent offence) or 8 years (for a sexual offence).

So when the Court of Appeal passed an Extended Sentence on Khan, his custodial term was 16 years (as the sentencing judge thought it should be) and his period of extended licence was 5 years (the maximum).

5. When is somebody released from an Extended Sentence?

This is why it’s complicated. Successive governments changed the law governing release on multiple occasions. The full history is in the Prison Reform Trust document above, but suffice to say that in 2012, when Khan was sentenced, prisoners serving Extended Sentences were released automatically at the halfway stage of their custodial term, just like determinate prisoners. It therefore looks as if Khan was automatically released having served 8 years of the 16 year custodial term, and would have been on licence for the remaining 8 years, plus the extension of 5 years.

6. A dangerous offender being released automatically? That doesn’t sound very safe

No. It wasn’t, really. “EPPs” as they were called (Extended Sentences for Public Protection) were introduced alongside IPPs in 2005. Up until 2008, an EPP prisoner would be referred to the Parole Board at the halfway point of their custodial term. If they satisfied the Parole Board that their imprisonment was no longer necessary, they would be released on licence. If not, they would serve the full custodial term. In 2008, the law changed so that at the halfway point offenders were automatically released – no Parole Board input. This was in large part because the way in which the existing legislation required courts to treat dangerous offenders meant that the prison population had spiralled to uncontrollable levels. People were being given IPPs for relatively minor offences and finding themselves stuck in prison years after their minimum terms had expired. The prisons were unable to provide the courses that dangerous offenders needed to satisfy the Parole Board that their risk had reduced, and so many EPP prisoners were serving their full terms. The Criminal Justice and Immigration Act 2008 tweaked the law to give judges greater discretion as to when to pass an IPP, and also sought to introduce a release valve by automatically releasing EPP prisoners.

As for why we have automatic release at all, it’s worth addressing this briefly, as there remains an understandable public bugbear when it comes to the concept of automatic release at the halfway stage of a prison sentence. I’ve written about this in my book. The public hear or read “10 years”, and feel justifiably deceived when they discover that 10 means 5 (minus any time already served on remand awaiting trial or sentence). There are various reasons as to why we grant automatic release halfway through a sentence. One reason is that this mechanism saves the government money, gifting them the tabloid headlines of long prison sentences without the Treasury having to actually pay for them. Less cynically, it is also argued that it helps reintegrate prisoners into society and aids rehabilitation. If they reoffend on licence, or breach the conditions of their licence, they can be recalled to serve the remainder of their sentence. Automatic early release has varied throughout the years. The Conservatives in 1991 introduced the framework for the modern system, but it was in 2005 that the Labour government introduced automatic halfway release for all determinate sentences (as well as the IPP and EPP sentences) – more detail here. Worth remembering whenever one party accuses the other of being to “blame” for automatic release that all parties have at one time or another thought it a jolly good idea.

7. So at the time Khan was sentenced to an EPP, he would have been eligible for automatic release with no Parole Board oversight?

This now becomes even messier, because Khan’s appeal was heard after EPPs had been replaced by EDS, albeit he was originally sentenced when EPPs were in force. The Parole Board has emphasised that it had no part to play, but there has been much confusion over this, due in part to the BBC’s decision in its 2013 news report of the appeal to quote a part of the judgment completely out of context. The BBC reported this:

“Lord Justice Leveson said: “There is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous.

“There is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the Parole Board for consideration proximate in time to the date when release becomes possible.””

This sounds very much as if Leveson LJ is imposing a sentence that involves the Parole Board, right? Well put in its proper context, my interpretation is that, to the contrary, he was simply weighing up the competing arguments before concluding that an EPP, even though it meant automatic release, was appropriate:

Dealing first with the question of dangerousness, at the time that these appellants were sentenced, in our judgment there is no doubt that anyone convicted of this type of offence could legitimately be considered dangerous within the meaning of the legislation: that includes Hussain and Latif to whom we refer below. Furthermore, given that it is difficult to identify the extent to which those who have been radicalised (perhaps as a result of immaturity or otherwise) will have modified their views having served a substantial term of imprisonment and there is an argument for concluding that anyone convicted of such an offence should be incentivised to demonstrate that he can safely be released; such a decision is then better left to the parole board for consideration proximate in time to the date when release becomes possible.

On the other hand, the extent to which the evidence demonstrated that the threat of a terrorist attack had progressed beyond talk (however apparently determined) is relevant to the risk posed by the offender and the need to protect the public. The judge certainly concluded that the London planning had not progressed so far as to demonstrate such a risk that imprisonment for public protection was necessary and although we recognise that training terrorists in the use of firearms could only lead to potential loss of life, whereas the intention of the London defendants did not encompass death or serious injury (while recognising the serious risk that such would result), on any showing, the fulfilment of that goal was further removed and there were other obstacles (not least as a consequence of the fact that their activities had come to the attention of the security services in Pakistan). Furthermore, there is no suggestion that any of the Stoke defendants had, in fact, been trained, let alone that they would be in a position to activate, operate or participate within a training facility not then built, however keen they might have been to do so and however much they might have talked up their prospects between themselves or to others whom they sought to influence.

Notwithstanding the considerable respect that the conclusion reached by Wilkie J merits, we have come to the conclusion that if, as he concluded, the plans of the two groups were “equally serious”, the risk posed to the public could not be greater from those who were very much further away from realising their apparent goal than those who were far closer to doing so.

So it appears as if the Court of Appeal understood that it was imposing an old-style EPP, which makes sense given that the Court of Appeal’s powers on allowing an appeal against sentence are to “pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence. This would have meant that the Court of Appeal imposed the same type of old-style Extended Sentence as was passed on the London co-defendants, and that therefore, as it has confirmed, the Parole Board had no role to play in Khan’s release.

8. Are dangerous offenders still automatically released at the halfway stage of their sentence?

A lot has changed since 2008. IPPs have now gone. The failure of the prison system to make available to prisoners the rehabilitative programmes they needed to take to secure their release, due to the horrendous overcrowding, was a genuine Kafkaesque nightmare, which the European Court of Human Rights in 2012 declared was unlawful.  The coalition government responded by abolishing IPPs in 2012 (although not for prisoners still serving those sentences), and introducing new Extended Determinate Sentences. It is worth emphasising, to rebut nonsense published by Breitbart contributors today, that the ECtHR ruling on IPPs had nothing whatsoever to do with the Court of Appeal decision in Khan’s case. The Court of Appeal could have lawfully upheld the IPP if it wanted. It was not forced, either by government or by the ECtHR, to change the sentence.

These new Extended Determinate Sentences (EDS) worked like old EPPs, except that you would be automatically released at the two thirds stage of your sentence if your custodial term was under 10 years, and would go before the Parole Board at the two thirds stage if your custodial term was 10 years or more or you were convicted of certain specified offences.

9. So the coalition government were still automatically releasing dangerous offenders?

Yes. They were being kept in for slightly longer, but there was still no Parole Board oversight, except for the most dangerous of dangerous offenders. This changed in 2015, when all EDS prisoners were required to secure Parole Board approval for release at the two thirds stage. That remains the position today.

10. What is the government proposing to do?

To listen to the Prime Minister’s rhetoric, plenty. To read his manifesto, nothing. The changes that are proposed to release provisions relate specifically to offenders who do not receive EDS – the government wants to make it so that a tiny handful of defendants who are possibly a bit-sort-of-dangerous-but-maybe-not will serve two thirds of their sentence before automatic release. So they are not proposing to introduce any further Parole Board oversight of these prisoners – simply to keep them in a bit longer so that Johnson can boast about increasing sentences.

Much of what has been said today by government ministers is completely false. Priti Patel claimed:

This is a lie. The courts had several options to deal with “dangerous terrorists” that would have avoided automatic release. The reason for Khan’s sentence was that the Court of Appeal ruled (to be proved tragically wrong) that Khan’s risk did not require the input of the Parole Board that an IPP would have guaranteed.

Brandon Lewis said, in response to Yvette Cooper getting bogged down in confusion over Leveson’s comment about the Parole Board:

This is a lie. Nowhere has the government proposed in its manifesto to “ensure that people serve their full term”. Likewise Ms Cooper spread misinformation when she suggested that the government’s 2012 reforms had a bearing on the sentence. This, as we’ve seen, is simply untrue.

And, of course, the Prime Minister:

Repeating Lewis’ claim, if this is something Johnson has “long said”, one might ask why ensuring defendants serve the full term of their sentence is not mentioned in the manifesto. If this is such an obvious failing, why not promise to remedy it? Heaven forfend this is ad-hoc, evidence-free electioneering.

11. So where does the blame lie?

Blame is rarely helpful, as with almost all of these cases, the tragedy is multi-causal. Labour introduced automatic release for EPP prisoners in response to its own prisons crisis (caused by its own “tough on crime” rhetoric), but the Coalition government was responsible for the statutory regime at the time of Khan’s case. It’s nonsense to suggest that Labour’s changes in 2005 prevented judges from passing adequate sentences on dangerous offenders; for one, the government had plenty of time until 2012 to amend the sentencing regime it inherited from Labour if it considered it to be so inadequate. The Court of Appeal finds itself in the unusual position of being criticised for being too lenient; almost every criminal law practitioner would tell you that the Court of Appeal is (in)famous for its reluctance to interfere with convictions and sentences, finding sometimes ingenious/disingenuous ways of upholding Crown Court decisions. The judgment appears well-reasoned given the known facts, but hindsight casts it in obvious doubt. For what it’s worth, the Sentencing Guidelines that now exist for terror offences would, on my interpretation of the facts, be likely to lead to a life sentence for Khan were he being sentenced today. And something that has been missed is that since 2015 nobody imprisoned for a terrorism offence is automatically released; in the unlikely event that he is not sentenced to EDS or life imprisonment, the court is required to order him “an offender of particular concern”, meaning that at the halfway point of his sentence he has to apply to the Parole Board for release.

Perhaps the focus, rather than on “tougher sentences”, ought be trained a little closer to the less tabloid-friendly dimension of criminal justice: Prisons and probation have been ravaged by huge cuts and disastrous reforms, meaning that Khan would have likely received little meaningful rehabilitation while in custody. If I were directing an inquest, I’d start there.

***

UPDATE: Overnight, the Prime Minister’s posturing has crystallised into hastily scrawled new policies, announced in op-eds in the Sunday tabloids repeating various untruths dealt with above, including falsely suggesting that we still have the same system as in 2008 and claiming that he has been talking about “abolishing automatic early release” for “four months”, despite not devoting a single word to this is his manifesto, nor making any effort to include this change in the recently enacted Counter Terrorism and Border Security Act 2019, a flagship piece of anti-terror legislation which focussed specifically on sentencing for terrorism offences. He also claimed, with characteristic fidelity to accuracy, that Khan was “sentenced 11 years ago”. Anyway, the overnight brainwave will apparently now herald a minimum 14 year sentence for defendants convicted of (unspecified) terrorism offences, with a suggestion that they will be required to “serve every day of their sentence, with no exceptions.”

As this is likely to run and run today, forgive me if I repeat this: In 2019, no terrorist sentenced to a term of imprisonment is subject to automatic early release. The Prime Minister’s attempts to suggest that we have the same system as applied at the time of Usman Khan’s sentence, and that he is the man to fix it, are dishonest, cynical and exploitative.

“Life means life for child killers” – the truth behind the headlines

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There used to be a time, once Chris Grayling had hung up his butcher’s apron at the Ministry of Justice and Theresa May ushered in a quieter, more respectful justice strategy of wanton neglect, that I wrote about something other than Boris Johnson. Unfortunately, the Prime Minister keeps booting the justice football around the pitch with the swagger and fervour he usually reserves for tackling small children, so I feel that the decision is being taken largely out of my hands.

Today, in advance of tonight’s first leadership debate, a raft of Tuff On Crime initiatives have been peppered across the bulletins. We woke up to whole life sentences for child killers, and are ushering in twilight with a guarantee of immediate arrest, charge and court appearance for those carrying knives. Short, snappy policy snackettes that have the advantage of electoral delectability and tabloid acclaim, and only the minor drawback of being entirely pointless and/or unworkable.

As with so many recent announcements on criminal justice, there is a risk that fact-checking the substance only serves to amplify unreliable headlines, but it is worth looking closer at exactly what this “life really will mean life” for “child killers” policy means.

What is the headline policy?

The appeal is obvious. Monsters who murder children should be put away for a very long time indeed. As Justice Secretary Robert Buckland says today, writing in The Sun:

“Any adult who commits the crime of killing a child should spend the rest of his or her life behind bars. It is as simple as that.”

But is it?

Before considering what the Conservatives are actually proposing, let’s look firstly at how the law currently works.

 

What is murder?

The first point to note is that despite the false claim by the Conservative spin machine that the proposed policy targets “child killers”, it doesn’t. It targets child murderers. There are, unpleasant as it undoubtedly is to dwell on, many ways in which people can be unlawfully killed. Unlawful act manslaughter, gross negligence manslaughter, corporate manslaughter, causing death by dangerous or careless driving, infanticide, causing or allowing a child or vulnerable adult to die, and murder. These are all discrete legal concepts.

Murder is the most serious. Murder, in law, is where a person unlawfully (i.e. not in self-defence or for any other lawful purpose) kills another person, intending either to kill them or to cause grievous bodily harm (really serious harm, is how it’s explained to juries). That may surprise you. You can be convicted of murder even if you didn’t intend to kill someone.

It follows, in case the point needs making, that, while all murders are serious, some are more serious than others. A distraught mother struggling with severe depression who shakes her child intending to cause really serious harm and unintentionally causes death is in a different category to a predatory paedophile who abducts, tortures and intentionally kills a toddler. Likewise a man who acts in genuine self-defence when attacked but goes overboard and, using unreasonable force, unintentionally kills a burglar is to be distinguished from a gangster who guns down a rival drug dealer. Forgive me labouring the point, but when politicians demand blanket “whole life” sentences for all people convicted of certain broad categories of murder, it is necessary to highlight the obvious injustice that would follow.

And this truism is reflected in how murder is currently sentenced.

 

What is the sentence for murder?

While all offences of murder carry a mandatory life sentence, what a life sentence means can vary. This is because a court has to firstly identify a “minimum term”, which is the minimum period that the defendant will spend in prison before becoming eligible for parole. If a person is deemed safe for release by the Parole Board (the test being whether the Board is satisfied that imprisonment is no longer necessary for the protection of the public), they will be released on “life licence”, with conditions. If at any time it is considered that they are a risk to the public, they can be recalled to prison.

How is the minimum term calculated? Judges must have regard to principles set out in Schedule 21 of the Criminal Justice Act 2003. This provides starting points, and the judge can then move up or down from the starting point to reflect further aggravating or mitigating features.

It’s worth a brief look at the different categories.

 

Whole life orders

We can see that if the court considers that the seriousness of the offence is exceptionally high,and the offender was aged 21 or over, the appropriate starting point is a whole life order – in other words, no prospect of release. There is then a non-exhaustive list of examples of cases that would normally fall within this category, including, multiple sadistic or sexually motivated murders, terrorism, murder of a serving police or prison officer, and, significantly for our purposes, the murder of a child if involving abduction or sexual or sadistic motivation.

30 year starting point

If a defendant is aged 18 or over and the seriousness is not exceptionally high, it may fall into the next bracket down, which provides for a 30 year starting point:

25 year starting point

This category covers cases where the offender took a knife or other weapon (not a firearm – this goes into the 30-year bracket) to the scene of the murder and used it.

15 year starting point

For all murders that do not fall within the other categories, the starting point is 15 years. Unless the defendant is under 18, in which case the starting point is 12 years.

The court then considers the aggravating or mitigating factors which may result in the starting point moving up or down. Critically, the legislation allows for a “minimum term of any length (whatever the starting point), or in the making of a whole life order”  – in other words, even if a murder is not specifically included as an example of a whole life order, the judge still has a discretion if she thinks the seriousness is exceptionally high.

So that, put crudely, is the existing framework. What does the Conservative Party want to do?

 

What does the Conservative Party want to do?

Notwithstanding Robert Buckland’s boast to The Sun above, or his widely reported assertion that:

“any murderer who denies a young, innocent child the right to life surrenders their own right to liberty. They do so permanently, and they do so without exception.”

the truth is that there are a number of exceptions to this new policy, as admitted in the press release. For one, as we have already seen, it applies only to crimes of murder, not to all “child killers”. Many homicide offences which capture public attention do not in fact involve murder, and will not be affected. Secondly, whole life orders will still only be available for offenders aged 21 and over. Thirdly, although Schedule 21 defines a child as a person under 18, this new policy would be more restrictive, applying only to children under 16. Fourthly, only murders which are “premeditated” are caught by the policy. Fifthly, the press release concludes by stating that “the sentencing decision will continue to rest with the judge”. At its height, this policy appears to introduce a presumption that qualifying cases will be met by a whole life order, but this is by no means the automatic, life-means-life that has been sold to the tabloids.

On this final point, it appears that the government has majestically failed to understand how the current system works, as the press release claims, falsely, that:

“The current rules require the murder to be of multiple children, or to be sexually or sadistically motivated, to attract a Whole Life Order, which is too restrictive.”

As we have seen, this is not what Schedule 21 says at all. It in fact expressly states the opposite – just because a type of murder is not listed in the examples of appropriate “whole life” cases does not stop a judge imposing a whole life order if she thinks the seriousness is exceptionally high. So the worst cases of the murder of children, say where an adult defendant commits a premeditated murder of a very young child, are already eligible for whole life orders.

In summary therefore, the Conservative Party either doesn’t understand (or is lying about) the law, and is pushing a policy to give judges a discretion to impose a sentence they can already impose.

 

How many cases will actually be affected?

Perhaps the most important question that has still not been answered by the government is how many cases this policy will actually affect.

The Office of National Statistics has been quoted in news reports as calculating a figure of 67 relevant cases involving the killing of children in 2018, but closer inspection suggests the true figure is much, much smaller. This figure of 67 includes offences of manslaughter and infanticide, not just murder. It includes the terrorist attack in Manchester. It also appears to includes child-on-child killings, which are regrettably common in inner-city inter-gang warfare. There is no apparent way of ascertaining how many of these 67 were murders, how many involved defendants over 21, and how many were premeditated. Nor can the government tell us how many of the cases which did involve the premeditated murder of children by adults in fact resulted in a whole life order anyway, and how many resulted in a minimum term which was unacceptably low.

The actual answer may well be in single figures, if not zero.

Don’t fall for Boris Johnson’s criminal justice con tricks

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Yesterday morning, newly-appointed Justice Secretary Robert Buckland told Radio 4’s Today programme of his pleasure that the Prime Minister is taking an interest in the criminal justice system. And certainly, after three years of wilful abandonment under Theresa May, I would in principle gladly welcome some Downing Street-level political attention on the ruinous state of our criminal courts.

When this attention is coupled with more money for the criminal justice system, this sounds very much like the sort of thing those of us working within have been crying out for. So surely we should all join hands with Mr Buckland and celebrate that in Boris Johnson we finally have a leader taking criminal justice seriously?

Don’t believe a word of it. The entire project is a con.

Starting with the “new money”. Mr Johnson has announced that 20,000 new police officers will be recruited over the next three years. This is vital, certainly, but falls far short of what is required, given that that figure barely replaces the number of officers cut since 2010. Meanwhile, not only is crime increasing, but investigations are becoming ever-more complex, with digital evidence sucking resources and quadrupling the effort that would have been required a decade ago.

There’s £85m for the Crown Prosecution Service, which sounds like a healthy sum, until you realise that it’s a fixed payment over two years, and that the CPS budget for 2018/19 was a quarter of a billion pounds less in real terms than in 2009/10. The CPS has lost a quarter of its staff and a third of its lawyers since 2010. Two tranches of £42.5m will not begin to fix the problems that plague prosecutions up and down the country.

There’s a promise of 10,000 new prison places, when the previous promise of 10,000 places in 2015 fell short by 6,000, and another 9,000 places alone are required simply to address the present, longstanding overcrowding. There is £100m for technology to aid prison security, but no mention at all of the extra prison staff needed to safely manage the new offenders, given that even after a recruitment drive in 2017, numbers are 15 per cent down since 2010. There has been a huge drain of experience since 2010, as the most experienced officers were among the first to go when the government decided to slash prison staff by over a quarter, at a time when the prison population has climbed.

But the problem extends far beyond inadequate promises to redress chronic underfunding. The propaganda accompanying these announcements betrays not only the Prime Minister’s trademark opportunism and dearth of intellectual rigour but the sticky, putrid tar clogging the heart of the Johnson Crime Agenda.

Announcing his plans in a series of weekend puffs in tame newspapers, Boris Johnson declared, “Left wingers will howl. But it’s time to make criminals afraid – not the public.” Declaring his mission to ensure that criminals “get the sentence they deserve,” Johnson continued a theme begun in his Telegraph columns on the campaign trail, when he railed against “early release” from prison and inadequate prison sentences being passed. The solution to our criminal woes, the subtext screams, is to lock up more people for longer.

And let’s make no mistake, punishment is a legitimate and important part of criminal sentencing. It is one of the five purposes of sentencing listed in statute, alongside the reduction of crime (including by deterrence), reform and rehabilitation, protection of the public and making reparations to victims. Few if anybody involved in criminal justice would disagree with the notion that people who commit crime should be punished in a way that reflects their culpability and the harm they have caused, and that for some people, notably the most serious violent offenders, lengthy prison sentences are inevitable.

However, the notion that longer prison sentences by themselves make any of us any safer is a fantasy. The notion in particular that knife crime will be solved if we simply lock up young men for years on end is a hoax. The public may well be protected from that particular individual for the duration of their incarceration, but the idea underpinning this rotten philosophy – that longer sentences have a deterrent effect on crime – has been shown to be bogus. What does act as a deterrent is not severity of sentence, but certainty. The likelihood of being caught and dealt with swiftly, in other words.

But crime reduction and prevention is not achieved solely by deterrence. Rehabilitation is a vital part of protecting the public. This is why, when dealing with complex, multi-causal offending intractably rooted in social and cultural problems, the courts may take the view that more can be done to protect the public by keeping a young man on the cusp of custody out of the prison warehouse estate, and offering focussed intervention in the community. Sending someone to prison usually means ripping them away from all and any stabilising factors they may have. They lose their job, their social housing and their relationship, and exit prison with no support network other than the new friends they’ve made inside. This is why the evidence suggests that reoffending rates are lower when offenders are kept in the community.

But the evidence is of no concern to the Prime Minister. This is why he is forced into infantile ad hominems as a pre-emptive rebuttal against the people who have read and studied the evidence, and might be minded to offer some as a counter to his claims that our system is soft.

We already have the highest incarceration rate in Western Europe. Prison sentences have on average got longer year-on-year. We have more prisoners detained on indefinite and life sentences than all the other countries in the Council of Europe.

The notion that our courts routinely hand out “soft sentences” is simply not true. When we do see “soft justice” stories in the headlines, they will either be an aberration, usually corrected on appeal, or they will be the product of inaccurate or dishonest reporting, removing context or omitting facts.

Which brings us to Johnson’s public statements. Because at the centre of his musings on criminal justice is a rich stuffing of bullshit. He has lied and lied and lied. He lied when he claimed that “a convicted rapist out on early release” had raped again (the man in question was neither a convicted rapist nor out on early release). He lied when he suggested that the notion of allowing some prisoners to be released on temporary licence was “criminally stupid” (the government’s own evidence shows that reintegrating prisoners into the community in this way cuts reoffending). When he told the Mail this weekend that there are “thousands of “super prolifics” – criminals with more than 50 convictions to their name – who are being spared jail altogether”, he did not tell you that one of the reasons they were spared jail might be that they were being sentenced for non-imprisonable offences. He is lying to you when he tells you that the solution to crime is More Police, More Prisons.

He is lying so that he can turn the volume up to 11 on his remix of “Prison Works” to ensure the oldies at the back of the conference hall can hear in the run-up to the inevitable autumn general election.

And while Mr Johnson is lying to you, the rest of the criminal justice system rots.

Courts are being closed down and sold off all over the country. Half of all magistrates’ courts have been closed, meaning that defendants, victims and witnesses are forced to travel for hours on ineffective public transport to their “local” court.

Of those courts remaining standing, many are unfit for purpose. Decaying, crumbling buildings with no working lifts, holes in the roofs, sewage leaking into public areas, no air conditioning in summer and no heating in winter. In some, the public cannot even get a glass of water.

Of the courts that remain unsold, all are now run at artificially low capacity due to Ministry of Justice restrictions on “court sitting days”. We have, in many large city Crown Courts, the farce of full-time, salaried judges being forced to sit at home taking “reading days” – their perfectly serviceable courtrooms sitting locked and empty – while trials are fixed for Summer 2020 due to an alleged “lack of court time”.

We still have the abominable system of “floating trials” and “warned lists” – where defendants, witnesses and lawyers are expected to give up days or weeks of their lives just sitting around at court on the off-chance that a courtroom suddenly becomes free to take their trial. When, inevitably, no courtroom becomes free (because the MoJ won’t pay for the sitting day, ibid), their case is adjourned for months, and the cycle begins again.

The one thing that does act as a deterrent to criminals – certainty – is being eroded by ensuring that justice is doled out literally years after the event, because the government will not pay for the courts to process cases clogging the pipeline.

Meanwhile legal aid is being stripped away from citizens, forcing them to self-represent in cases in which their liberty is on the line.

This is why I am angry. Not because I’m a “lefty” inherently resistant to Boris Johnson’s white hot public service reforms. I’m angry because as a prosecutor I am still having to sit down with crying witnesses week after week and explain that their torment is being prolonged for another six months because the government refuses to pay to keep courtrooms open. I’m angry because the Innocence Tax – the policy that forces the wrongly accused to pay privately for their legal representation and then denies them their costs, bankrupting them, when they are acquitted – is not even in the political peripheral vision. I’m angry because our Prime Minister is a man who looks at the record rates of death, violence, suicide, overcrowding and self-harm in our prisons and whose first question is, “How do we get more people in there?”. I’m angry because the notion that you “crack down on crime” by chucking a few more police officers onto the streets and shoving more and more people into our death-riven prisons is a con. It is a con to victims of crime, and it is a con to you, the public. I’m angry because we have the indignity of a dishonest, cowardly and exploitative Prime Minister fiddling with his Party’s g-spot while the criminal justice system burns.

Don’t fall for his con trick.

Boris Johnson and misconduct in public office: 8 things you should probably know

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On 7 June 2019, the High Court brought to a halt the attempted private prosecution of Boris Johnson for misconduct in public office. Today, the full judgment has been published. There has been a lot of commentary surrounding this case, not all of it based on a firm (or even rudimentary) grasp of the facts. So breaking it down, what exactly has gone on here? Eight (likely-to-be) FAQs spring to mind.

  1. What the dickens is going on, legally speaking?

 On 29 May 2019, District Judge Coleman sitting at Westminster Magistrates’ Court granted an application by Marcus Ball and Brexit Justice Limited for a summons against Alexander Boris de Pfeffel Johnson, the proposed defendant, in respect of a contemplated private prosecution seeking to charge the aforementioned Mr Johnson with three counts of misconduct in public office, contrary to common law. On 7 June 2019, the Administrative Division of the High Court granted permission in respect of a claim by Mr Johnson for judicial review of the District Judge’s decision and quashed the granting of the summons, having found that the District Judge erred in law in her findings.

 

  1. And for the English speakers among us?

 In 2016, Marcus Ball set up a crowdfunding website inviting donations to fund a private prosecution of Boris Johnson for misconduct in public office, arising out of statements made by Mr Johnson during the 2016 referendum campaign, at a time when he was Mayor of London and a Member of Parliament. The offending statements relate to the well-known “We send the EU £350 million a week, let’s fund our NHS instead” claim. The first step in a criminal prosecution is to apply for a summons, which compels an individual to appear before a magistrates’ court. The District Judge (DJ) sitting at Westminster Magistrates, having heard legal argument from lawyers for Mr Ball and Mr Johnson, granted a summons. Mr Johnson “appealed” by seeking a judicial review of the decision to grant a summons, arguing that the decision was wrong in law. The High Court agreed, and quashed the decision to grant the summons.

 

  1. Why is a summons so important?

Quite simply, in this context no summons means no prosecution. Summonses are routinely issued against defendants in criminal prosecutions, usually with absolutely no challenge. But this being a private prosecution, opposing the granting of the summons was a way of trying to derail the prosecution at the very earliest stage (and very successfully, as it turned out).

An application for a summons will be granted by a magistrate (or a District Judge) if the magistrate is satisfied that the allegation is an offence known to law, and if the essential ingredients of the offence are prima facie (on its face) present. The court is not deciding whether a person is in fact guilty of an offence; simply whether there is, on the face of the case, evidence of its core ingredients. The court must also consider whether there are compelling reasons not to issue a summons, including – importantly for our purposes – whether the application is vexatious (which may involve the presence of an improper ulterior purpose).

In most public prosecutions, these things are not even an issue: the case will have been investigated by the police, referred to the Crown Prosecution Service and reviewed by a lawyer to check that it meets the evidential and public interest tests for charging, and the threshold for issuing a summons will obviously be met. But the issue is less clear cut in cases where the law is being used for a novel purpose. And using the law of misconduct in public office to prosecute a politician for false or misleading statements made during a political campaign is certainly novel. Hence things got a little sticky.

 

  1. What is “misconduct in public office”?

Misconduct in public office is a centuries-old common law offence (so developed by the courts rather than set out in legislation), which has been used to prosecute such varied allegations as MEPs claiming irregular expenses, police officers selling stories to journalists, healthcare professionals engaging in relationships with prisoners, the false statement given by a police officer in the “Plebgate” affair, and the Bishop of Gloucester entering into relationships with trainee priests.

If you think this sounds somewhat wide-ranging, you’d be right. And this – the vague and ill-defined scope of the offence – is one of the reasons that misconduct in public office is currently the subject of a consultation by the Law Commission, which is considering recommendations for how it might be reformed. Nevertheless, there has been a steady rise in the number of prosecutions for the offence, from 2 in 2005 up to 135 in 2014.

The test, as set out in a 2005 judgment of the Court of Appeal, has four key elements. Misconduct in public office arises where:

i. A public officer acting as such

ii. wilfully neglects to perform his duty and/or wilfully misconducts himself

iii. to such a degree as to amount to an abuse of the public’s trust in the office holder

i.v without reasonable excuse or justification

 

  1. How was it said that misconduct in public office applies in this case?

The argument of Mr Ball was quite simple: at the time of knowingly making plainly misleading statements, Boris Johnson was a holder of public office. There was little argument that the statements were misleading. Lying to or misleading the public amounts to an abuse of public trust in that office, hence there is, on its face, evidence to meet the ingredients of the offence. The District Judge broadly agreed.

 

  1. Why did the High Court disagree?

Firstly, a word about judicial review. An application to the High Court for judicial review is not simply a rerun of the case before a different court; it is a claim that there has been an error of law in the way the judge in the court below approached the case. If the High Court feels that it would have reached a different decision to the magistrates, but is not satisfied that the magistrates were wrong in law, it will not interfere.

In this case, Boris Johnson’s arguments were twofold: firstly, the District Judge made an error of law in finding that (i) and (ii) of the ingredients were prima facie made out. That error of law meant that the judge had no power to grant a summons. Secondly, the District Judge’s finding that Mr Ball’s application was not vexatious (which if found would afford a ground for not granting a summons) was “Wednesbury unreasonable”. “Wednesbury unreasonableness” is a legal concept wearily familiar to law undergrads, but for the lay person is perhaps best summarised as “batshit cray cray”. If the High Court finds that a decision of a court was “so unreasonable that no judge properly directing itself could reasonably have reached that decision”, it can quash it.

So, taking the contested elements in turn:

While Boris Johnson undoubtedly held public office (times two), the key three words are “acting as such”. It is not enough that someone be a public official; they must be acting as such in committing the alleged misconduct. As the High Court made clear:

“It was not sufficient to say that he made the statements when in office as a MP and/or Mayor of London, and that “the public office held by Mr Johnson provides status but with that status comes influence and authority”. That does no more than conclude that he occupied an office which carried influence. This ingredient requires a finding that as he discharged the duties of the office he made the claims impugned. If, as here, he simply held the office and whilst holding it expressed a view contentious and widely challenged, the ingredient of “acting as such” is not made out.”

 As for whether he had “wilfully neglected to perform his public duty or wilfully misconducted himself”, the High Court was scathing of the way in which the District Judge had approached this question. The notion of false political statements falling within the ambit of “wilful misconduct” has no precedent. The High Court observed that certain types of false statement made during election campaigns are offences, having been specified as “illegal practices” by Parliament (for instance publishing a false statement about a candidate). Parliament had not chosen to specify generally false claims about, say, statistics, as illegal practices; for the courts to extend the ambit of “misconduct in public office” to encompass such things would be a significant and far-reaching decision. The law requires that people know clearly what conduct is and isn’t criminal; common law offences like this therefore should not be enlarged by the courts “with one large leap”. None of this, the High Court found, had been given proper consideration by the District Judge.

Therefore, while the threshold for granting a summons is low compared to, say, the threshold for convicting a Defendant (where the evidence has to make the magistrates or jury sure of guilt), a magistrate is still required to conduct a rigorous analysis of the legal framework and whether there is on the face of the evidence enough to satisfy the ingredients of the offence. The District Judge had not conducted such an analysis, and her conclusions were, in the High Court’s view, wrong in law.

 

  1. What did the High Court say about the political motivations of the private prosecution?

 Boris Johnson’s lawyers argued that Mr Ball’s application was politically motivated and vexatious, and that this provided another reason as to why it was wrong in law for the District Judge to issue a summons. The District Judge’s findings on this argument left something to be desired:

“I accept the defence submission that when the applicant commenced his consideration of whether to bring a private prosecution against the proposed defendant three years ago, there may have been a political purpose to these proceedings. However the information for the summons was laid on the 28th February 2019 and that argument, in my view, is no longer pertinent.”

The apparent suggestion that a political motive conceived in 2016 arising out of the EU Referendum has dissipated now in 2019 is, with respect to the judge, a curious reading of the current political temperature. When one considers the catalogue of public statements made by Marcus Ball about the proposed prosecution between 2016 and 2019, it is troubling that the District Judge’s certainty in dismissing the presence of political motivation isn’t supported by any meaningful reasoning. The High Court described the DJ’s finding as “flawed” because of the absence of reasoning, and said that it would have quashed the decision to issue a summons on this ground alone. (Because of this, the High Court said it was unnecessary for them to go on to consider whether, as well as being flawed for lack of reasoning, the finding was also “Wednesbury unreasonable”).

 

  1. So this is a moral victory for the future Prime Minister, surely? He has been found to have acted entirely properly.

No, no, no, no and no. No. Just no. And no again. No. The judgment can absolutely not be interpreted as any sort of vindication of Boris Johnson’s character. Indeed, the High Court judgment reads very much as if the judges were proceeding on the assumption that he certainly had lied, or misled, and the challenges to the District Judge’s decision by Boris Johnson’s own lawyers were not concerned with a defence of his character or conduct. Rather his case succeeded on the basis that he may well be a liar or a rotter or a charlatan, but such conduct does not of itself meet the legal criteria for misconduct in public office. So a victory, certainly. But hardly the glowing character reference his supporters might suggest.

Ignorant, dishonest or both? Boris Johnson’s ramblings about prisoners and spa breaks are divorced from reality.

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As today’s resignation announcement by the Prime Minister prefigures, in bookmakers’ eyes at least, the dawn of a Boris Johnson premiership, I thought it worth typing up a thread I posted earlier this week in response to Mr Johnson’s latest column for the Daily Telegraph.

On Monday, the former Foreign Secretary proudly promoted his article on Twitter:

https://platform.twitter.com/widgets.js

Taking a swipe at “our cock-eyed crook-coddling criminal justice system”, Mr Johnson alighted upon a story, reported by outlets including the Telegraph, concerning a convicted drug dealer called Luke Jewitt. Mr Jewitt was sentenced to imprisonment in 2014 for his involvement in a multi-million-pound conspiracy to import or supply cocaine, only to be released to enjoy a “luxury spa break” with his mother before his sentence had been served. According to the Telegraph,

“He is believed to have spent the day at the Santai Spa in Birmingham for Mother’s Day, at the end of March.

The spa boasts an outdoor jacuzzi with lake views, salt cave and mosaic hot-stone loungers. Packages at the luxury venue cost up to £140 per day.”

There is no suggestion that this was paid for by anyone other than Mr Jewitt; rather outrage is invited at the notion of a prisoner being released early, which, the writer assures us, “is becoming more and more regular”. As the headline has it, “Letting drug dealers out of prison to go on spa breaks is criminally stupid”. Unfortunately, in making this argument Mr Johnson’s characteristic fidelity to facts and detail abandons him.

Let’s see if we can reacquaint them.

Luke Jewitt was sentenced in 2014. The precise sentence he received is unclear. If you believe The Telegraph (left), it was 10 years’ imprisonment. If you believe Boris Johnson writing in The Telegraph (right), it was nine years.

 

 

 

 

 

 

But either way, at something approaching the halfway point of his sentence, he was released on temporary licence (or “let out on day release”, in the tabloid argot), during which time he attended the aforementioned spa. Mr Johnson’s apoplexy is untrammelled:

Not merely a jacuzzi, dear readers, but a visit to the National Sea Life Centre. Is nothing sacred?

From this starting point, Mr Johnson lines up a medley of propositions. Some highlights are below.

In summary:

  • Drug dealing causes untold misery (undoubtedly true);
  • Prisons are at once too ghastly and too cushy (the record rates of violence, death, suicide and self-harm cast a degree of doubt on the latter);
  • We need to be “tough” on those who carry knives (standard political fare, with the standard blank space when it comes to offering a practical working definition of what being “tough” should entail).

We are then offered the writer’s considered views on the thorny issue of stop and search. Fortunately, contrary to research suggesting that stop and search is deployed in a racially discriminatory manner, Mr Johnson reassures us that it, in fact, isn’t. He is not able to offer any evidence for this claim, but his word is surely his bond.

As for his primary concern, the early release of offenders, Mr Johnson has identified the culprits: it is the “politically correct” Parole Board, responsible for endangering public safety by licensing rapists to reoffend and drug kingpins to purify and replenish with naturally detoxifying algae leaving the skin looking refined, toned and beautifully radiant. The release of Luke Jewitt, Johnson posits in a puddle of consciousness, is an example of the “need to root out the Leftist culture of so much of the criminal justice establishment.”

There are a few problems with this thesis. Firstly, the case “earlier this month” to which Mr Johnson refers involving “the convicted rapist out on early release”, who “allegedly commit several more rapes immediately”. Assuming that this is the case which has made headlines (and about which we must be cautious due to criminal proceedings now being live), the man involved was not a convicted rapist, but a burglar. And this was not a case in which the Parole Board had directed his release; rather it was reported that due to an administrative error, he was released by the prison having erroneously bypassed the Parole Board. To lay this at the Parole Board’s door is, to quote Mary Whitehouse (probably), pretty fucking dishonest.

But beyond this mangled non-example, the foundation of Johnson’s argument betrays a woeful ignorance of the entire subject matter. He seems to be under the impression that a prisoner’s release is always governed by the Parole Board. It’s not. For the vast majority of prisoners serving a standard determinate sentence, release on licence is automatic once you’ve served half of your prison sentence. I’ve blogged before on this, as it’s frequently misunderstood.

Parole Boards tend to focus their attentions on dangerous prisoners, including those sentenced to life imprisonment or to other types of sentence for which release is not automatic, such as now-abolished imprisonment for public protection (IPP), or “extended sentences” imposed on a dangerous offenders. In order to be released from such sentences, a prisoner has to persuade the Parole Board that his incarceration is longer necessary for the protection of the public. Now Parole Boards are far from perfect; the case last year of John Worboys gave a troubling insight into the errors that plagued the Parole Board’s decision to direct his release, and it would be naive to conclude that this is an isolated case. No doubt errors occur, and quite possibly more frequently than we perhaps wish to imagine. However, Johnson’s claim that “It is becoming more and more regular for prisoners to be let out early – even when they have been convicted of the most serious and violent crimes” is accompanied by absolutely no evidence whatsoever. Indeed, if we were trading in boring facts, we might observe that England & Wales has more prisoners serving indeterminate and life sentences than any other country in Europe, suggesting that neither courts nor Parole Boards are overly eager on the frivolous release of dangerous prisoners. But the assertion that there is a recent acceleration in the release of dangerous offenders is simply that. There is not even a whiff of evidence tendered in support.

But back to drug lords, and other prisoners whose release is not dependent on the approval of the Parole Board. They are all entitled to automatic release at the halfway point of their sentence, and as they approach that point can be entitled to release on temporary licence (ROTL), subject to a risk assessment. Full details are available here, but a summary of the types of ROTL is below.

It is this scheme which Johnson describes as “criminally stupid”. Letting prisoners out for the odd day here and there – what possible good can it do? Well, quite a lot, the evidence suggests. A recent government report – a government of which Mr Johnson was, until toys exeunted the pram, a member – concluded that the analysis was is “consistent with the conclusion that ROTL reduces reoffending”. So even if the notion of somebody serving a few days’ less on their sentence fills you with righteous indignation, the evidence that it makes us all a little safer is a fairly important fact to omit from an honest discussion.

That all said, there remains an understandable public bugbear when it comes to the concept of automatic release at the halfway stage of a prison sentence. I’ve written about this in my book. The public hear or read “10 years”, and feel justifiably deceived when they discover that 10 means 5 (minus any time already served on remand awaiting trial or sentence). Now there are reasons as to why we grant automatic release halfway through a sentence. One reason is that this mechanism saves the government money, gifting them the tabloid headlines of long prison sentences without the Treasury having to actually pay for them. Less cynically, it is also argued that it helps reintegrate prisoners into society and aids rehabilitation. If they reoffend on licence, they can be recalled to serve the remainder of their sentence.

But let’s park that debate to one side. Instead, let’s ask why we have automatic halfway release at all? Which MPs were in Parliament when such a thing was introduced?

Well, automatic release at the halfway stage of all determinate sentences has been a fixture since the enactment of section 244 of the Criminal Justice Act 2003. Present in Parliament as an MP when this legislation passed was one Boris Johnson. Can you guess how many impassioned speeches he gave in the Commons against the “criminally stupid” idea of automatically releasing prisoners early? In fact, how many times has he ever spoken in Parliament about early release, or the Parole Board, or release on temporary licence?

From wherever springs this yearning to draw public attention to the horrors of early release on licence, it has lain dormant for a good sixteen years. Heaven forfend that this newly-discovered zeal for making the lives of prisoners more miserable and antagonistic baiting of “politically correct” and “left wing” criminal justice is merely the latest exploit of a populist charlatan tossing bucketfulls of cheap fatty red meat to the Party Faithful just as a certain job opening emerges.

Shamima Begum may not deserve your sympathy, but she is entitled to legal aid

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Another weekend, another flurry of anti-legal aid stories finding their way into the tabloids. On the criminal legal aid front, The Mirror splashed outrage at the notion of Andrew Hill, the pilot acquitted of manslaughter following the Shoreham Airshow tragedy, “getting” legal aid to mount his successful defence at his criminal trial last year.

It’s one thing when The Mirror – a market leader in legal aid trash news – whips its readers into uninformed apoplexy over criminal legal aid being granted to those who are, after a fair trial only possible because of legal aid, convicted. But it breaks bold new ground even for this organ to resent legal aid being granted to a man whom a jury has found to be not guilty.

Then this morning, the Daily Mail, in a headline which may stand out as the apotheosis of journalistic legal ignorance, announced:

“Shamima Begum is on legal aid despite being stripped of UK citizenship”.

In much the same way that the people I prosecute and defend are granted legal aid despite being accused of criminal offences. Or diabetes patients are treated on the NHS despite having diabetes.

Shamima Begum is, of course, the tabloid ghoul du jour. A 15-year-old Bethnal Green schoolgirl fleeing her home country to join a terror cult abroad, and, four years later, intending to swan back in as if nothing had happened, is the stuff of a red top news editor’s wettest dreams. In February, Home Secretary Sajid Javid, in apparent defiance of his own Home Office advice and with a Fleabag smirk to the cameras, took the decision to revoke Ms Begum’s British citizenship. She is now appealing the Home Secretary’s decision to the Special Immigration Appeals Commission  and is likely to be eligible for legal aid.

Today’s Mail “scoop” follows allegations in The Telegraph that Ms Begum, while an “ISIS bride” in Syria, served as an enforcer in the “morality police” and sewed suicide vests onto her fellow jihadis, playing a far more active role in the group’s activities than she had previously suggested. The veracity of these reports is unclear, but let’s take as face value that they are correct, and that she was not merely a stay-at-home ISIS bride, but an enthusiastic accessory to the most appalling crimes against humanity.

Would this make her despicable? Yes. Meritorious of opprobrium, disgust, contempt and fury? Yup. A criminal? Among the very worst. Deserving of legal aid? Without a shadow of a doubt.

We’ve trodden these boards a thousand times before, but as the basics are yet to be learned by those with the biggest megaphones, they need repeating.

Everybody – no matter what they have done or are alleged to have done – is entitled to equal treatment before the law. That is the building block not only of the rule of law, but of our entire democracy. You don’t earn equal treatment, or qualify for it through good behaviour. It applies universally. The day we start making exceptions for the people who offend us the most is the day our civilisation crumbles.

Everybody is also entitled to a fair hearing where a legal decision has been taken which affects them. The removal of a person’s citizenship – a government telling a British-born citizen You have no right to exist within our borders – is one of the most far-reaching decisions the state can make. We do not want to live in a country where politicians can act with unchecked power; the rule of law requires that those affected have a route to challenge a decision and have an independent court review the evidence and decide whether that decision was taken in accordance with the law.

In this case, while there will be a lot of material to which the public will never have access upon which the government will rely, there are obvious concerns on the face of what we do know. International law prohibits domestic governments from rendering citizens stateless. Ms Begum is a British national born and bred; the Home Secretary is relying on her supposed eligibility for Bangladeshi citizenship (through her parents) to comply with international law. Bangladesh is a country which Ms Begum has never visited and which, for what it is worth, has publicly rejected the notion that she would be granted Bangladeshi citizenship.

It is far from certain that the Home Secretary has acted lawfully. It is obviously vital to establish that he has. This can only properly be done at a fair independent hearing at which the legal and factual arguments for and against are fully and competently presented. The Home Office will not spare any expense in instructing counsel to fight its corner (Theresa May was a fan of instructing multiple QCs for single cases to try to give herself an advantage). Equality of arms, another basic principle of the rule of law, requires that the citizen, Shamima Begum, be competently represented. As she is currently unable to pay for her own lawyers, lying destitute in a Syrian refugee camp, she will need to rely upon legal aid. Without legal aid, the case will not be properly argued; indeed, as she is currently banned from entering the country, without representation it will not be argued at all.

The benefits of the case being argued and a judgment being given flow not only to Shamima Begum, but to all of us. This is not merely a private matter of concern to her; all of us live under the law, and all of us need to know that our government is acting lawfully. Moreover, there will be many more cases of this type over the coming years. This decision could ultimately set a precedent, making clear the circumstances in which the government can revoke British citizenship from British-born citizens. Such a precedent is of value to all of us. Because while today, it’s Sajid Javid making a decision affecting Shamima Begum, tomorrow it could be a different Home Secretary making a decision affecting you, or someone you love. And while you may not care what happens to Shamima Begum, you will sure as heck want the law to be fairly applied to you. And this is the point about the law: it doesn’t exist in a vacuum. A decision affecting one of us affects us all. We all have a shared interest in ensuring that the law works as it should. As Lord Reed said in a famous Supreme Court decision:

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

Shamima Begum herself, of course, will not receive a penny of taxypayers’ money. Legal aid is claimed from the Legal Aid Agency directly by her lawyers. A grant of legal aid is also not a bottomless pit, despite what the tabloids falsely claim. It is paid at fixed rates set by government, far below market value – and usually far below what the state pays its own lawyers. And it is designed, like the NHS, to ensure that all of us have our basic rights and dignity respected, whatever we have done. We do not withhold publicly-funded medical treatment for criminals, terrorists or other social undesirables; we recognise that to do so would be barbaric, the mark of a country that has badly lost its way.

So when the Mail invites its readers to fulminate and howl and ask Why should the public pay for this awful woman’s legal aid?, the answer that should be given – by our Lord Chancellor, preferably, as the person with the statutory obligation to uphold the rule of law – is because that is the price of living under the rule of law. If you’d rather exist in a society where the rules are not applied equally, where your entitlement to a fair trial is dependent on the whims of government officials or the roar of the effigy-burning mob or the deepness of your pockets, there are plenty of countries out there willing to oblige.

 

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UPDATE: A common response to this story today has been from people who, understandably, feel aggrieved that more attractive (or “deserving”) causes than Shamima Begum were denied legal aid. Inquests are a particular area where legal aid has been refused for bereaved families, but the non-availability of legal aid stretches across the justice system, from the family courts to employment law to housing to welfare to personal injury to crime to immigration and so on. Many, many people have been denied justice due to refusal of legal aid. But to attack the granting of legal aid to Shamima Begum is, with respect, to miss the point. The scandal is not that Shamima Begum is eligible for legal aid in complex legal proceedings carrying life-changing consequences, but that so many other people have had legal aid refused and removed as part of the appalling attacks on legal aid that successive governments have wrought. It is not party political – all three main parties in government have fed the lies about legal aid to the press and public that have purchased political cover for them to obliterate legal aid and prevent ordinary people from accessing justice. In the 1980s, 79 per cent of the population was eligible for legal aid. By 2015, this had plummeted to 25 per cent. Public anger should be directed at the politicians who have convinced us that cutting legal aid is a good thing, not the few people who are still able to access justice.

Peter Hitchens’ comments about Jo Cox’s killer betray a fundamental ignorance of the basic facts

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A familiar sound for readers of the Mail on Sunday is the deafening cymbal-clash of Peter Hitchens colliding with reality. This last Sunday offered a particular highlight, which, although there is undoubted wisdom in leaving him alone to figuratively wander the 21stcentury in his dressing gown shouting at clouds, cannot pass without comment.

Summarised by this tweet:

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he shared his considered view that Thomas Mair, who was convicted by a jury of the murder of Jo Cox MP and sentenced to imprisonment for life, has wrongly been tarred a terrorist.

Undeterred by the fact that there was a wealth of evidence before the court which he, as somebody who was not in court for the duration of the trial, has neither seen nor heard, Mr Hitchens, armed with a fistful of second-hand newspaper reports of snippets of the case, assured readers that he, the clear-sighted rationalist, can see the case for what it is: “a tragedy twisted into a bogus ‘terror plot’”.

The premise of his thesis, as he expanded in a further blogpost on Monday, appears to be twofold. Firstly, it is “absurd” for anyone to claim that Mair was a “rational, coherent political actor”, as his actions “predictably achieved more or less the exact opposite of what he supposedly intended – and he would have grasped this in a second had he been in a normal state of mind”.

Allied to this is the second proposition: in Mair’s trial, there was evidence of mental ill health, which was suspiciously omitted from the legal proceedings. “Mair’s lawyer said he would not bring his medical history into the case. But why not?” “Why does the authority ignore such vital facts?” he demands, fingers twitching towards the tin foil with millinery intent. “Does the government want to believe, and to spread the idea, that there is some organised Right-wing terror plot?”

We can deal with the first argument swiftly: irrationality and mental ill health are two discrete concepts. The former may be a symptom of a latter, but they are not necessarily linked. Most of the people who cross the threshold of the criminal courts are irrational.  I’ve prosecuted more burglars than I can count who, despite their extensive experience, have still failed to process that climbing through a broken window is likely to result in your blood being left at the scene. The number of young men who, disqualified from driving and flagged down by the police, decide not to cut their losses and take their dues but instead to lead the police on a merry 90mph pursuit through residential areas and red lights before, inevitably, being caught, adding dangerous driving to the charge sheet – irrational? Tick. Incoherent? Tick. Achieving the exact opposite of what they supposedly intended? Tick. Colloquially they might be said to, in Hitchens’ words, be “roaming along the outer frontiers of sanity”, but mentally ill? That’s something different.

But amateur diagnostics aside, let’s consider Hitchens’ overarching theory: the suspicious omission of medical evidence of mental ill health from Mair’s trial. Referring to comments in news reports, he finds various examples of people claiming to know Mair – none apparently medically qualified – and offering anecdotes and opinions on Mair’s mental health. There is also a suggestion that Mair was in receipt of psychotropic medication. From this, Hitchens decries the “puzzling decision to ignore the plentiful evidence of Mair’s mental abnormality, reported at so many different times by so many independent people, but not discussed before the jury.”

Well this is only suspicious and puzzling if you don’t understand the first thing about how a defendant’s mental health is relevant in criminal proceedings. And it is regrettable that, given how frequently Mr Hitchens finds novel ways to be wrong about the criminal law, he did not think to ask anybody involved in criminal justice for their insight. Had he done so, he may have been told something along the following lines.

Evidence is carefully filtered in every criminal case. The court is only allowed to receive evidence that is relevant. Many defendants in criminal proceedings have lengthy histories of mental health problems. But it is only in a handful of trials that their condition is relevant to the issues that the jury have to determine.

How might mental ill health be relevant?

If a defence solicitor or barrister believes that a client may be suffering from mental ill health, they will as a matter of course obtain the client’s medical records and commission a psychiatric report. That report may be asked to comment on one or more of a variety of matters.

A psychiatrist may be asked to assess whether a defendant is “fit to plead” – legalese for being fit to participate in the trial process. This involves an assessment of whether a defendant can: understand the charges; decide whether to plead guilty or not guilty; exercise his right to challenge jurors (if, say, he knows one of them); instruct his legal representatives; follow the course of proceedings; and give evidence in his defence. If he can’t do one or more of those things, and if a judge hearing the evidence of two psychiatrists finds that the defendant can’t, he will be unfit to plead. This means that instead of a criminal trial there is a modified process (known as a “trial of the facts”), where a jury decides not on guilt but whether the defendant “did the act”. If so found, the court’s powers are limited to strictly rehabilitative options.

A psychiatrist may alternatively or as well be asked to opine on whether a defendant has a defence of insanity, defined as:

at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong

In murder trials, there is also a partial defence of diminished responsibility:

Furthermore, if a defendant were not capable of forming the specific intent to kill or cause grievous bodily harm (the mens rea for murder), whether because of a psychiatric condition or because of intoxication, that would also provide a defence to murder.

Finally, a psychiatric report may help with sentence. It may afford mitigation, if the offence was committed against the background of a mental health condition that reduced his culpability. It may make recommendations for particular disposals, such as hospital orders. And it may comment on issues that the court have to consider such as future risk.

Now the headline with all of these is that any such reported obtained by the defence attracts legal privilege. This means that the defence do not have to show anybody else – the court or the prosecution – the contents of the report if they do not wish to. So if a psychiatric report does not help the defence case, there will usually be no point in serving it. Many, many psychiatric reports are prepared for court cases every day and ultimately not relied upon. Often, the conclusion will be, “The Defendant suffers from psychiatric or psychological disorders, namely X, Y and Z, but not to the extent that any of the legal defences apply”. Sometimes, worse still, the report will be positively harmful to the defence. “The Defendant expressed no remorse and in my view presents a significant risk of serious harm to the public” is the last thing you want the court to read if you are trying to do the best for your client in mitigation. But, and I will repeat this, the fact that mental health issues were not “discussed before the jury” does not mean that all relevant mental health issues were not considered and dealt with appropriately.

Now we do not know why Mair’s lawyer did not rely on medical evidence. But we do know, because the defence barrister told the court at a pre-trial hearing, that Mair had been subject to an assessment.

So that leaves us with two possibilities:

  1. The defence lawyers considered that the contents of the psychiatric evidence, although perhaps showing that the defendant had mental health problems, did not assist the defence case;
  2. The defence lawyers ignored the psychiatric evidence, or negligently failed to appreciate that it was legally relevant and of assistance, and Peter Hitchens, who has never seen the evidence and is not legally trained, has correctly guessed this by piecing together things reportedly said by friends and neighbours.

Mistakes happen, of course. Negligence happens. Lawyers and judges are far from infallible. We see awful cases on appeal where the courts and/or defence representatives failed to appreciate the significance of a defendant’s mental health. But there is absolutely nothing to suggest that this is what happened in Mair’s case; to the contrary, his highly experienced lawyers indicated to the court that mental health had been considered and was not, for reasons that they do not have to state openly, going to be relevant to the issues the jury had to decide. Nor, from the sentencing remarks, was there any mental health issue relevant to mitigation. You’ll note that Hitchens does not suggest in respect of which legal issue – fitness to plead, a defence (and which one) or mitigation – the evidence of mental ill health ought to have been adduced. He just vaguely asserts that it should have been “discussed before the jury”, without deigning to tell us to what end.

Hitchens’ hang-up appears to stem from the false presumption that because an issue wasn’t raised before the jury, it wasn’t considered. That is wrong. No such deduction can safely be made. If Hitchens has spoken to those involved in the case, or has somehow seen Mair’s medical records or psychiatric reports, he may be onto something. Without any of those, it is nothing more than a conspiracy theory, and, given the imputation that Mair’s lawyers have been professionally negligent in service of a government agenda, a potentially libellous one at that.

Despite this all being pointed out to him, by numerous people, Hitchens remains characteristically recalcitrant. He insists that he is not seeking to excuse or defend Mair’s conduct, but he remains strangely keen to leverage minimal evidence of mental ill health to distance Mair from the “terrorist” label. The evidence of political motivation behind Mair’s actions was abundant, as the sentencing remarks made plain, but Hitchens goes to tortuous lengths to try to rebut this, climaxing with: “To me, his very insistence to police that “I am a political activist” shows that he was nothing of the sort.” Or as Brian’s followers would have it, “Only the true Messiah denies his divinity.”

Quite why Hitchens is so wedded to a thick black line that does not exist – attempting to separate mental ill health and terrorism into mutually exclusive camps – is also a mystery. Why he cannot accept the proposition that a person can be mentally unwell whilst still capable of committing deliberate and knowing acts of political carnage is as baffling as his determination to cast Mair as a victim of a state fit-up. The whole argument, as with so much of what Hitchens writes, is achingly bizarre. By the time you’ve finished deconstructing it, you almost forget why you started. Like the time he mistook the origins of the term “county lines” and got himself in a week-long tantrum, his thinking on this issue betrays a millefeuille of irrationality, incoherence and counterproductive reasoning. Hitchens has a term for that, but I expect he would not take kindly to it being applied to him.