Why is the dangerous Anjem Choudary being released onto our streets?

Posted on September 12, 2018 by thesecretbarrister

Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.

The Ben Stokes trial: what went wrong?

Posted on August 16, 2018 by thesecretbarrister

This is one of those posts carrying a title which I genuinely had no intention nor desire to write. It is also, I make plain at the outset, rampant clickbait, as I, like 7 billion other people who were not present for the duration of the court proceedings, am in no position at all to say what (if anything) “went wrong” in the Ben Stokes trial. However, given the ongoing social and tabloid media commentary and speculation, it seems that some general pointers on the law in this area would assist. I’ve done my best to piece together the facts from various outlets, but the standard caveat applies throughout: this analysis is based on the inevitably limited picture available.

What is the case about?

England cricketer Ben Stokes was on Tuesday 14 August 2018 acquitted by a jury of affray following a week-long trial at Bristol Crown Court. A co-accused, Ryan Ali, was also acquitted of affray. A third defendant, Ryan Hale, was acquitted of affray last week at the end of the prosecution case when the judge ruled that there was “no case to answer” against him.

The facts, put simply, are that in the early hours of 25 September 2017, violence broke out outside a nightclub in Bristol. Video footage captures part of what took place, and shows a male said to be Ben Stokes throwing punches at two other males. In the course of the incident, Ryan Ali was knocked unconscious and suffered a fractured eye socket, fractured tooth, cut eyebrow and bruising. Ryan Hale was also rendered unconscious and suffered concussion.

The prosecution case was that Ben Stokes was the aggressor and was “enraged” after a doorman refused to allow Mr Stokes and his teammate Alex Hales into a club. Ben Stokes was said to have homophobically mocked two men, Kai Barry and William O’Connor, immediately before the violence broke out.

Ben Stokes’ case was that he was in fact standing up for Mr Barry and Mr O’Connor after they were verbally abused by others. He said that Ryan Ali had then threatened him with a bottle, and that his actions thereafter amounted to lawful self-defence.

The prosecution conceded that Ben Stokes may have been acting defensively initially when threatened by Ryan Ali, but asserted that he “quickly became aggressor”.

Ben Stokes’ teammate, Alex Hales, was also present, and it was said by Stokes’ barrister that Hales could be seen on the CCTV kicking and stamping on Ryan Ali during the melee. Alex Hales was not charged with any offence.

The prosecution relied upon the evidence of a doorman and an off-duty police community support officer (PCSO), as well as video footage.

Mr Barry and Mr O’Connor were not called to give evidence by either side at trial.

What is affray?

Affray is a public order offence, contrary to section 3 of the Public Order Act 1986:

3 Affray.

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

Affray is an “either-way” offence, meaning it can be tried either in the magistrates’ court or the Crown Court before a jury. In the Crown Court, the maximum sentence upon conviction is 3 years’ imprisonment.

As we can see, an offence of affray involves the use or threat of unlawful violence, but is concerned not so much with the impact of the violence upon the individual concerned, but with the impact upon the passing public. The gravamen is the fear that this type of violence causes to bystanders. It is therefore quite different to an assault.

The Crown Prosecution Service guidance on affray provides a handy summary of the relevant law. There are quite a few interesting features. For example, the requirement that a notional “person of reasonable firmness” be put in fear for their personal safety means that not all violence will qualify as an affray. It’s possible for someone to assault another person in such a way as would not cause a bystander to fear for his own personal safety. Affray tends to apply in cases, such as this, where there is a brawl or outbreak of (often drunken) violence that members of the public might reasonably fear could spiral.

What is self-defence?

Self-defence is a complete defence to affray. I’ve written about self-defence in some detail before, here. For now, I’m going to copy and paste the relevant bit:

In 2008, the common law defence of self-defence was put on a statutory footing in section 76 of the Criminal Justice and Immigration Act 2008. What it means in practice is as follows:

A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself from an attack or imminent attack on himself or others or to protect property or prevent crime?
The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.

Let’s break down what this means.

“A genuine belief that force is necessary”

The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).

“Reasonable force”

Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but section 76 reflects the famous words of Lord Morris in the case of Palmer v R 1971 AC 814, which are distilled in some form to juries when they are given their directions of law by the trial judge:

“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

Further pointers in section 76 include the provision that if force is “disproportionate”, it cannot by its nature be “reasonable”. Which sounds self-evident, one might think, but we’ll come to this more in a second. It is also made explicit that, while the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit.

So in a nutshell, the law of self-defence means that the prosecution must make a jury sure that either a defendant didn’t really believe he needed to use force, or that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face – bearing in mind the broad scope of appreciation allowed in these cases.

How was Ben Stokes acquitted? The CCTV shows he was clearly being violent

That may well be so. But the question for the jury wasn’t “Does the CCTV show that he was throwing punches?” The question was whether the offence in law was proved.

To this end, the court has published the “route to verdict” provided to the jury. These are now produced by judges in most Crown Court trials, and are exceptionally useful. Frankly, I have no idea how juries of bygone years were supposed to decide complex cases without them. They usually take the form of flow charts or numbered questions, and are tailored to the issues in the particular case. Judges usually show them to the advocates before the document is given to the jury, so that the parties can offer observations.

Here is the route to verdict:

As can be seen, there were many theoretical routes by which a jury might have acquitted. We have no way of knowing why the jury in this case did.

Why wasn’t Ben Stokes charged with assault?

Many, including this honkingly poor Daily Mail piece, have been asking this question. It emerged that, on the first day of trial, prosecuting counsel Nicholas Corsellis applied to amend the indictment against Ben Stokes to add two counts of assault occasioning actual bodily harm (contrary to section 47 of the Offences Against the Person Act 1861), in relation to the injuries suffered by Ryan Ali and Ryan Hale. The judge refused, commenting on the “very late” nature of the application and the fact that Treasury Counsel (the most senior barristers instructed by the Attorney General) had been specifically asked to advise on the appropriate charge at the beginning of proceedings and had alighted upon a single count of affray against Ben Stokes as sufficient. The judge did say that, had the prosecution applied to add the counts to the indictment at an earlier stage, there would have been little problem; however, leaving it to the day of trial was not right. The judge also said that in his view such an amendment was “not necessary”.

Should Ben Stokes have been charged with assault occasioning actual bodily harm? Certainly Mr Corsellis thought so, even if Treasury Counsel (named by the Mail as Alison Morgan) initially instructed to advise on charges at the outset of the case thought otherwise.

The Crown Prosecution Service charging standards would appear to support Mr Corsellis. These specifically address the issue of when a public order offence and an offence against the person should be charged:

Charges Relating to Violence Against the Person

Charges of Assault that are appropriate to link to those of Public Order are set out below.

[…]

If there is sufficient evidence to justify a charge under sections 2 or 3 of the Public Order Act and an assault contrary to:

section 18 OAPA; or

section 20 OAPA; or

section 47 OAPA

It will usually be appropriate to charge both. It will not normally be appropriate to charge common assault (section 39 of the CJA 1988) together with an offence contrary to sections 2 or 3 of the Act.

Sometimes, prosecutors will charge tactically. It may be easier to prove affray, or the view may be taken that a conviction for assault is unlikely to add materially to the sentence for an affray, and the Crown may reasonably consider that adding a charge of assault would unnecessarily complicate the trial.

Without knowing the advice offered to the CPS, we cannot say why the decision not to charge s.47 assault was taken. But the expectation in such cases is that it usually should be charged. The CPS has released a brief statement saying:

“The CPS keeps cases under continual review. We selected the charge of affray at the outset in accordance with the code for crown prosecutors. Upon further review we considered that additional assault charges would also be appropriate. The judge decided not to permit us to add these further charges. The original charge of affray adequately reflected the criminality of the case and we proceeded on that.”

It may be – we don’t know – that the evidential position shifted in some way that meant that a charge of assault occasioning actual bodily harm was suddenly viable in a way it was previously not. By way of example, if the CPS suddenly come into possession of medical evidence proving injury, they might properly say that they are only at a late stage in a position to support a charge of ABH. But the reports of the judge’s ruling suggest that it was simply that the new prosecution barrister formed a different view to his predecessor. This is in itself not an an uncommon occurrence – because of the unpredictability of criminal court listings, trials overrunning etc, cases are often “returned” to a new barrister the night before trial, who may then advise the CPS in completely different terms.

Would a charge of assault have resulted in a conviction?

We don’t know. The newspapers have largely assumed this as a given, but if the tenor of the defence to the affray was self-defence, then my educated guess would be that a similar defence would have been run in relation to any assault charge. And while we don’t know how and why the jury acquitted, there’s a reasonable inference that if they couldn’t be sure that the prosecution had disproved self-defence on the affray, there would be no difference to the verdict on an assault charge.

It’s also worth noting that despite excitable commentary from the Telegraph that charging two counts of s.47 assault would have left Mr Stokes facing thirteen years in prison, this would require the judge upon conviction passing the maximum sentence for each charge (5 years for each ABH and 3 years for the affray) and directing them to run consecutively to each other, something which has never happened in the history of English and Welsh criminal law. Convictions for assaults on top of affray would have added a little by way of sentence, but not lots. The maximum sentence for ABH may be 5 years, but the range set by the Sentencing Guidelines (which judges are required by law to follow) is up to 3 years, and judges do not simply pile sentences on top of each other. They apply what is referred to as “totality”, and ask themselves “what is the overall sentence that justly reflects the total offending in this case?” In this case, the all-round sentence would, in my experience, be unlikely to be much more for the presence of two assault charges.

What about the missing witnesses? Why didn’t the prosecution call them?

Barry Kai and William O’Connor were speaking to the media in support of Ben Stokes immediately after the acquittal, raising the reasonable question of why they weren’t witnesses in the trial. The CPS has said:

“The evidence of Mr O’Connor and Mr Barry was disclosed to the defence but it was not deemed necessary to call them as witnesses in the case.”

Reading between the lines, it appears that whatever these two witnesses told the police, it did not help the prosecution case. This is why their “evidence” (by which the prosecution presumably means their witness statements or other informal accounts given to the police at the scene) was disclosed to the defence, rather than relied upon as prosecution evidence. This is far from unusual in affray cases, especially where most witnesses and participants have been drinking. Prosecuting an affray trial can be fiendish, as you have to pick out the bones from a pack of incoherent and inconsistent witness statements and decide how the prosecution puts its case. Usually you will rely upon the account of the most sober and independent witnesses, and disclose the remainder to the defence as “unused”. We know that the prosecution had two such ostensibly reliable and sober witnesses – the doorman and the PCSO – and if their evidence contradicted Messers O’Connor and Barry, the latter two may well have been considered unreliable.

It is notable that, despite their warm words for Mr Stokes, the defence did not choose to call them as defence witnesses. Plainly whatever they had to say was not considered sufficiently reliable or helpful to Ben Stokes’ case for them to say it on oath before the jury.

Why wasn’t Alex Hales prosecuted?

Based on what has been reported, this is a reasonable question. The defence told the court – and the police officer in charge of the case agreed in evidence – that the video footage showed Alex Hales kicking and stamping on Ryan Hale and Ryan Ali. Mr Hales was interviewed under caution by police but ultimately not charged. He apparently told attending police officers that he had only arrived at the scene after the police had, which does not sit easily with the footage. There is no explanation for the decision not to charge him beyond a bare statement from the police that “Early investigative advice was sought from the Crown Prosecution Service in relation to Alex Hales’ involvement in the incident and a decision was subsequently made at a senior level to take no further action against him.”

Was the Ben Stokes verdict right?

I don’t know. I didn’t hear all the evidence. And, unless you are a juror, reporter or member of the public who attended every day of trial and absorbed all the evidence, you don’t know either. You have an incomplete picture and should not be commenting.

So the verdict means that Ben Stokes is innocent, right?

He is presumed innocent, yes. Proven innocent, no. A “not guilty” verdict means only that the jury was not sure of guilt. This is what juries are told up and down the land ever day – if you are not sure of guilt, you must acquit. Look back at that route to verdict for the many ways in which a jury could have reached a not-guilty verdict. They may well have all agreed that Mr Stokes’ actions were most definitely reasonable self-defence. Or they may have found themselves almost sure – but not quite – that he was the aggressor and/or had gone way over the top. That is the spectrum of an acquittal – sure of innocence right through to very nearly sure of guilt. That is why we say that an acquittal should never, by itself, be heralded as “proof” of innocence. The presumption of innocence remains intact – no criminal legal consequences now flow – but anyone relying on an acquittal as proof of innocence is reaching for a meaning that the verdict does not carry.

This case is a shambles, right? Heads should roll

Some of the criticism has been completely unfounded and misdirected. It was not, for example, a “blunder” for the Crown not to call Mr Barry and Mr O’Connor; unless it can be shown that their evidence was reliable and would have supported the prosecution case, it would be entirely right and proper for the Crown not to rely upon them.

However, there are understandable questions over Alex Hales’ role, and why he was not charged. Some detail from the CPS beyond the usual rote “The evidence did not support a charge” would help in cases such as this.

It is also arguable that charges of assault should have been preferred at an early stage as well as a charge of affray; although there is no evidence that this would have made a difference to the verdict.

Furthermore, and significantly, a not guilty verdict, we must remember, is not a conclusion that a case should never have been brought.

The test for prosecuting is: Is there a realistic prospect of conviction? If there had been no case to answer against Ben Stokes, the judge would have made the same ruling at the close of the prosecution case as he did in respect of Ryan Hale: he would have directed the jury to immediately acquit.

Guest post by Ryan Dowding: A Little Help From My Friends – Why Sajid Javid’s letter may have broken the law

Posted on August 6, 2018 by thesecretbarrister

I’m delighted to host this guest blogpost by Ryan Dowding. Ryan holds a postgraduate degree in International Human Rights Law and kicks off his pupillage this October. He also teaches human rights in schools and colleges through the Your Rights Matter initiative and runs the law and politics blog Arguably. He tweets at @DowdingRyan.

The United Kingdom has for decades set its face firmly against capital punishment. However, this historic opposition was cast into doubt last month when a secret letter, from our Home Secretary to the Attorney General of the United States, was leaked to The Telegraph. Its effect would have been to render the UK complicit in the trial and possible execution of Alexanda Kotey and El Shafee Elsheikh – two members of ISIS captured, in February 2018, by US-backed Kurdish fighters in Syria. In what follows I set out some background information, before turning my attention to the legality of Sajid Javid’s controversial correspondence.

Background

Kotey and Elsheikh were part of an ISIS cell called ‘the Beatles’ by their captives because of their distinctive British accents. Despite growing up in London, they were stripped of their citizenship after their alleged involvement in the execution of a number of individuals, including journalist James Foley. These crimes were barbaric and warrant no sympathy. It is therefore clearly right that the two stand trial and, if found guilty, face harsh punishment. It is also right that those with probative information about their role cooperate with the US authorities in bringing them to justice. It was to that end that Sajid Javid dispatched his notorious letter on 22 July 2018.

The Home Secretary acceded to a request for Mutual Legal Assistance (‘MLA’) – i.e., the provision of material and assistance for use in the prosecution of the two men by the US. His letter referenced the need to deliver justice for the victims’ relatives who had voiced “demands that both detainees face the rest of their lives in prison”. This was a clear allusion to a poignant Op-Ed in the New York Times by Diane and John Foley, Marsha and Carl Mueller, Shirley and Arthur Sotloff and Paula and Ed Kassig – the parents of four victims of the so-called Beatles:

[W]e agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court […]

Instead, they should be tried in our fair and open legal system, or in a court of international justice, and then spend the rest of their lives in prison. That is what our children would have wanted.

It appears from the final paragraphs of his letter, however, that the Home Secretary was merely paying lip service to their wishes as he concluded that there were “strong reasons” not to seek assurances from the US that the two would not be executed if convicted. When the letter was leaked, the Home Office faced immediate backlash from human rights organisations, followed by threats of legal action. As a result, it temporarily suspended cooperation with the US. However, a spokesperson said that the government “had acted in full accordance of the law and … the government’s longstanding MLA policy”.

But what policy was the Home Office referring to? And was it in fact acting within the law?

The UK and Capital Punishment – A Potted History

Since at least the early 19^th century, Parliament had incrementally hacked away at the death penalty, precluding its use in relation to an increasing number of specific offences. During the 20^th and 21^st centuries, however, a number of crucial steps were taken which eventually resulted in total abolition. The introduction of the Murder (Abolition of Death Penalty) Act 1965 did away with the punishment in respect of those found guilty of murder. Further piecemeal reforms followed, including the outlawing of the penalty, in 1971, for the obscure offence of arson at a naval dockyard and in respect of treason with the Crime and Disorder Act 1998. The final nails in the coffin came when the UK introduced the Human Rights Act 1998 and signed and ratified Protocols 6 and 13 to the European Convention on Human Rights (‘ECHR’) in 1999 and 2004. Cumulatively, they required the UK to abolish the death penalty in all circumstances. Our government has since produced a strategy document codifying the “longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle”.

It is perhaps unsurprising against this backdrop that leading human rights barrister, Ben Emmerson QC, wrote in The Guardian that the UK’s “opposition to the death penalty has … hardened into a constitutional principle”.

Home Office Guidance

I now return to the policy purportedly relied on by the Home Secretary. There are two which warrant consideration:

Requests for MLA in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom (12^th edition) (‘MLA Guidelines’); and
Overseas Security and Justice Assistance: Human Rights Guidance (‘OSJA Guidance’).

The MLA Guidelines can be dealt with briefly. The document simply, at page 15, informs the rest of the world that the UK may refuse to provide assistance where there is a “risk that the death penalty will be imposed for the crime under investigation”. The more crucial document for our purposes is the OSJA Guidance which offers guidance to UK officials providing security and justice assistance overseas. Pursuant to that aim, a number of human rights risks are identified, including the possible use of the death penalty. The Guidance then sets out how to mitigate those risks. When the Home Secretary suggested there were ‘strong reasons’ not to seek assurances for Kotey and Elsheikh, his language mirrored the wording set out at page 22 of the OSJA Guidance. That section explains that although assurances should be sought where there is a risk of the death penalty being imposed, where they are not forthcoming, or there are ‘strong reasons’ not to seek them, the Foreign and Commonwealth Office (‘FCO’) may be consulted to determine whether assistance should nonetheless be provided.

There is no suggestion made in the letter that assurances would not be forthcoming. Indeed, it is clear that the US has offered assurances capable of satisfying the European Court of Human Rights (‘ECtHR’) in respect of high-profile terror suspects in the past. However, it was made clear by Sajid Javid that no such undertakings were sought:

[T]here are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.

The letter unfortunately omits any elaboration as to what reasons were relied upon. This may be because it is difficult – particularly in light of the UK’s human rights obligations – to imagine what lawful reasons could possibly justify the decision. Indeed, any reasons would have to be exceptionally strong in a case such as this, involving a positive decision not to seek any undertaking from the US.

Assuming, nevertheless, that the Home Office does have legitimately ‘strong reasons’, would its actions then be rendered legal?

In short – probably not.

Falling at the First Hurdle

To begin with, the Home Secretary may have fallen foul of the OSJA Guidance. While purporting to provide an exception to the need to seek assurances, the document adds a caveat where the method of the death penalty could amount to torture or inhuman or degrading treatment, for example, an excessive period on death row.

The intersection between the death penalty and torture will be returned to below. For present purposes, I draw attention to the 1989 case of Soering v United Kingdom in which the ECtHR made clear that the extradition of an individual to the US to face the death penalty violated his right not to be subject to inhuman or degrading treatment. This conclusion was not based on the administration of the penalty itself, but on the ‘death row phenomenon’ – in other words the harsh prison conditions on death row alongside the “mental anguish” and psychological damage which accompanies sitting around for years and waiting to be led to the electric chair. While other factors – including the age and health of the appellant – were at play in that case, a decade later the UK’s own Judicial Committee of the Privy Council ruled, in Pratt and Morgan v The Attorney General for Jamaica, that there would be “strong grounds” for believing that any delay before execution of over 5 years would constitute inhuman or degrading treatment.

As Lord Griffiths explained:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity.

These cases are important because as of 2010 death row inmates in the US wait an average of 15 years before their execution. It is not unreasonable to expect that Kotey and Elsheikh will be forced to wait for a significant amount of time given the complex legal issues which are likely to arise as they exhaust their various rights of appeal. The Home Secretary should therefore have considered the section of the OSJA Guidance relating to torture, which provides no exceptions to the need to seek assurances akin to those present in relation to the death penalty.

Why the Guidance Itself may also be Unlawful Under the ECHR

The OSJA Guidance is just that – guidance. It is neither primary nor secondary legislation and its drafters were required by the Human Rights Act to ensure its compliance with the ECHR. However, it appears they have not kept pace with developments at the European Court.

The ECtHR has, over time, broadened the scope of what it considers to be a violation of the right to life (article 2) and the prohibition on torture and inhuman or degrading treatment (article 3). These moves came to a head in the landmark case of Al-Saadoon v United Kingdom. In that case, UK soldiers operating in Iraq transferred the applicant, a captive in their custody, to the Iraqi authorities. He argued in turn that this was a violation of his rights under articles 2, 3 and Protocol 13 (right not to be subjected to the death penalty). In a powerful judgment which cited the almost complete abolition of the death penalty across Europe, the ECtHR agreed, finding for the first time that the death penalty as such is a violation of the rights listed above.

The Court noted in particular that:

[I]t is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention.

The ECtHR has also imposed a positive obligation on states to seek assurances that the death penalty will not be carried out. In 2014, having found Poland liable for ‘rendering’ – a euphemism for forcible deportation – the applicant to Guantanamo Bay, the Court took the unusual step of spelling out that Poland was required “as soon as possible” to rectify its violation by seeking assurances from the US that he would not be subject to the death penalty.

These cases suggest that the UK not only entered an unlawful agreement with the US, but may now be obliged to seek assurances that Kotey and Elsheikh will not be executed if convicted.

The developments also bear significance because of the UK’s stance on torture and inhuman and degrading treatment. To quote from a ruling by the late Lord Bingham, the common law set its face against the practice because of a “belief that it degrade[s] all those who len[d] themselves to it”. I would argue that there could hardly be a clearer case of a state lending itself to an unlawful practice than the UK’s offer to do the US’s dirty work and assist the prosecution of those likely to be condemned to death. The move also, shamefully, ignores the pleas of the victims’ relatives that these people be tried and imprisoned; pleas by US citizens which might indeed have provided strong reasons for the US to accede to any request for assurance in this case.

While I have been unable – despite the ample space provided to me by The Secret Barrister – to leave no stones unturned, as the Howard League for Penal Reform gears up to take the Home Secretary to task, I hope I have provided a taste of the arguments likely to surface in due course.

Post-Script – A Brief Note on Jurisdiction

A potentially tricky point in terms of the UK’s responsibilities under the ECHR is whether or not it can be said to have exercised jurisdiction – i.e., authority or control – over the two men. Much smarter people than I have dedicated chapters of books to this byzantine principle (exhibit A; exhibit B etc…). I am unable to do the matter any real justice here. However, I would say that the suggestion that the UK bears no responsibility for the rights of those who it offers to help convict and potentially put to death, is arguably untenable given the ever-expanding notion of jurisdiction. This is particularly so in the face of judgments such as Stephens v Malta and, more recently, Vasilicius v Moldova. In those cases, the ECtHR held Malta and Moldova liable for the unlawful detention of the applicants in Spain and Greece respectively. Notably, in the former, the applicant was a UK national who had never set foot in Malta. The Court came to its decision on the basis that by issuing the arrest warrants Malta and Moldova exercised jurisdiction over the applicants and were therefore responsible for the end-result – namely, their unlawful detention.

It is difficult to see why the provision by a country of legal assistance which is likely to increase the prospect that an individual will be subjected to capital punishment should be treated differently. This is especially so given the “absolute and fundamental nature of the right not to be subjected to the death penalty” (Al Saadoon, above).

Ryan Dowding

The Tommy Robinson judgment – what does it all mean?

Posted on August 1, 2018 by thesecretbarrister

Today the Court of Appeal (Criminal Division) handed down judgment in the appeal of Stephen Yaxley-Lennon (AKA Tommy Robinson), partially allowing the appeal and directing a rehearing at the Crown Court.

What does this mean? Has Tommy been proven innocent? Is this a victory for freedom of speech?

Let’s break it down.

images

How did this all start?

Yaxley-Lennon was committed to prison for 13 months on 25 May 2018, after attending a trial at Leeds Crown Court and streaming a live-feed on Facebook in which he broadcasted details of the trial and of the defendants. That particular trial was subject to reporting restrictions imposed by the judge, prohibiting reporting of the details until the conclusion of the trial, and of other linked proceedings. By broadcasting in the way that he did, Yaxley-Lennon was in breach of the reporting restriction, an act which amounts to contempt of court. A year earlier, he had committed a separate contempt of court at Canterbury Crown Court by broadcasting prejudicial material about the case. On that occasion he had been made subject to a suspended sentence of 3 months. On 25 May 2018, when he was found to have committed contempt of court again, he was given 10 months for the new contempt, and the 3 months from Canterbury was “activated” and ordered to run consecutively, making a total period of imprisonment of 13 months.

What is contempt of court?

Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication.

The reason is straightforward. The priority in every criminal case is ensuring a fair trial. This of course matters not just to the defendant, whose liberty is on the line, but to the witnesses, complainants, victims and public. Prejudicial material – such as televised speculation over whether a defendant “did it”, or orchestrated campaigns by special interest groups seeking to secure one type of verdict for political reasons – could potentially influence a jury. We don’t sequester juries in England and Wales (barricade them in hotels cut off from the world for the duration of trials). They are instead allowed to continue their normal lives, but are given firm directions by judges not to conduct their own research into the case they are trying,

The reason, juries are told, is twofold. Firstly, a jury’s own independent research runs the risk of being unreliable, even more so in the era of fake news. Deciding the case on flawed information risks catastrophic miscarriages of justice. Secondly, it is not fair to the parties. The advocates in court address the jury and make arguments on the evidence. If juries have taken into account their own private research about which the advocates are unaware, the parties are unable to assess or test its reliability, or to address the jury on what their client (either defendant or prosecution) says about it.

Thirdly, strict rules of evidence operate in criminal trials to filter the evidence that juries hear in a case, to ensure it is (a) relevant, (b) reliable and (c) not overly prejudicial to the defendant. It rather defeats the point if as soon as a juror turns on the TV they are confronted by a perma-tanned bozo offering half-baked opinions on the very matters that a judge has ruled a jury shouldn’t be told about.

So nobody can report on criminal trials, is that what you’re saying?

No, far from it. Anything can be reported which is not prejudicial (and which is not subject to reporting restrictions – see below). And if something prejudicial is reported in the course of fair and accurate reporting of an ongoing case, there is a specific statutory defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Similarly, publications contributing in good faith to discussions of public affairs or matters of public interest if the risk of prejudice created is merely incidental to the discussion. So, to give a topical example, the media is allowed to discuss and debate the way in which we should deal with the rising incidence of acid attacks, even though there are many such trials ongoing across the country and there is arguably a risk of prejudice in ingraining hostile attitudes among potential jurors. No media outlet has been accused of contempt, and nor is anyone likely to be, for taking part in this general discussion.

So we can see that the law gives considerable latitude to the press and ensures that the media do not shy away from accurate, factual reporting of criminal proceedings, or of discussing matters of public interest. The idea is to balance the importance of open justice with the centrality of ensuring a fair trial.

So is that the only way that contempt of court can be committed? Do you have to be prejudicing proceedings?

Not always. Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).

Then there are contempts which strike at the authority of the court, where there is no requirement that the fairness of proceedings be prejudiced. There are what are referred to as “civil contempts”, where, for example, an order made by a court ordering one party to do something is breached, and the other party complains to the court.

There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order. Such as, for instance, a reporting restriction.

Contempt – however committed – carries a maximum penalty of committal to prison for up to two years. Note that slightly tortured phrasing – “committal to prison”, rather than “sentenced to imprisonment”. It’s a distinction which becomes relevant at the appeal.

What is a reporting restriction? I thought you said people are allowed to report fairly and accurately on live criminal cases?

The starting point of our criminal justice system is that justice must be seen to be done. However, the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.

One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is:

Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings?
Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective?
On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice?

Back to Tommy Robinson – how was he in contempt of court?

He was dealt with for two contempts of court. It helps to take them in turn.

Canterbury

On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925,), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.

It was held that this behaviour was capable of prejudicing the ongoing trial. The finding of the judge, from the judgment, was that in acting in this way, Yaxley-Lennon had committed a “criminal contempt” – what is otherwise known as a contempt “in the face of the court”. He was also in contempt by virtue of filming in breach of section 41. He was committed to prison for 3 months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

Leeds

If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive.

And this is where Yaxley-Lennon found himself. Arrested by police (initially for a breach of the peace, but then dealt with in court for contempt – this is entirely unremarkable, despite the attention given to it by Yaxley-Lennon’s supporters) and brought before the judge facing an allegation of contempt. Contempt having been admitted, Yaxley-Lennon’s barrister advanced mitigation, and HHJ Marson committed YL to prison for a total of 13 months. 10 months was for the new offence, with the three-month suspended sentence activated and ordered to run consecutively. The process was quick – 5 hours from arrest to imprisonment.

What were the grounds of appeal?

The appeal focussed on three principal arguments:

The findings of contempt at both Canterbury and Leeds did not comply with the Criminal Procedure Rules;
Neither the matter at Canterbury nor Leeds should have proceeded summarily; they should have been adjourned and referred to the Attorney General rather than dealt with swiftly by the trial judge;
The judge in Leeds punished the appellant for matters falling outside the scope of contempt and failed to properly identify the conduct he was treating as contempt of court.

A contemnor (as is the official term) has an automatic right to appeal to the Court of Appeal (unlike ordinary convictions or sentences where the Court of Appeal must give permission to a would-be appellant). However this has to be exercised within 28 days of the finding appealed against. While the appeal against the length of the committal (the “sentence”, if you like) was lodged in time, it was not until some time later that Robinson decided that he wanted to appeal against the findings of contempt. He therefore required the court to grant an extension of time for him to appeal.

Given the misinformation that has been spread, it is worth emphasising two things at this stage. Firstly, it was widely reported (including by me) before the appeal hearing that Robinson was not appealing against the findings of contempt. We did so because this is what Robinson’s official spokesperson, and the media organisation supporting him, publicly announced. He deliberately chose not to publicise the fact that he was appealing against the findings of contempt, and the first that this was known was on the day of the appeal. Secondly, the arguments against the findings of contempt was entirely procedural. In other words, his barrister explicitly accepted that what Robinson had done amounted to contempt of court. The argument was simply that the court hadn’t dealt with it as the law requires.

Let’s take each part of the appeal in turn. What was that about the Criminal Procedure Rues?

The Criminal Procedure Rules were introduced in 2005 to impose some sort of order on the routine chaos of criminal proceedings. They are lengthy and comprehensive, and prescribe the procedures that the criminal courts must follow.

Contempt proceedings can be started either by the court (i.e. the judge), or following a reference to the Attorney General, who as the “guardian of the integrity of the administration of justice” often takes charge.

When the court is dealing with an alleged contempt of court, the relevant procedure is set out at Criminal Procedure Rule 48. The law permits the court to deal with contempts summarily – i.e. straight away – or to adjourn to another date, as long as the procedure is fair. What is appropriate will depend on the circumstances. Where someone is interrupting a trial, for instance, it will usually be right for the court to deal with the contempt immediately to avoid further disruption. However the Court of Appeal, referring to case law, emphasised that this procedure should be used sparingly. Where there can safely be an adjournment, there should be.

Another important feature is that the court should “particularise” the contempt – spell it out so that the alleged contemnor knows what they are supposed to have done. An extract of the procedure is here:

So where did Canterbury Crown Court go wrong?

It didn’t. Robinson argued that the judge had failed to provide the written statement of particulars of the contempt required by Rule 48.7. However, the Court of Appeal, following the appeal hearing last month, came into receipt of “late disclosure”, which showed that “a deliberate tactical decision was made by [Robinson’s] legal advisers at Canterbury to be complicit in the court’s failure to comply with Rule 48.” The appellant waived legal privilege (a common request made by the Court of Appeal in appeals where criticism is made of how Crown Court proceedings were conducted) which allowed the Court of Appeal to read the legal advice he received. And it emerged that a conscious decision was taken by his legal team not to invite the judge to follow the correct procedure, as they thought they would secure a tactical advantage by making the judge “uneasy” about the proceedings.

The Court of Appeal was not impressed, telling Robinson:

“It lies ill in the mouth of an appellant to complain of the failure of the court below to follow the appropriate procedural steps when that failure was fully appreciated at the time and remained deliberately uncorrected for tactical reasons and collateral advantage.”

The Court added that the new barristers instructed for the appeal were unaware of this until after the appeal hearing, and disclosed it promptly when it came to their attention.

In any case, the Court of Appeal said that nothing procedurally was flawed in Canterbury. The judge had adjourned the contempt hearing for 12 days to allow time for him to take legal advice. Any failure to follow the CrimPR was immaterial.

The appeal against the Canterbury contempt was therefore dismissed.

10. What about Leeds Crown Court?

This was very different. The time between arrest and imprisonment was five hours. The Court of Appeal was highly critical:

“Such haste gave rise to a real risk that procedural safeguards would be overlooked, the nature of the contempt alleged would remain inadequately scrutinised and that points of significant mitigation would be missed. Those risks materialised.”

The Court of Appeal said that the judge was right to order that Robinson immediately take down the video, but that he should then have “taken stock”. He should have either adjourned for a later hearing, or referred the matter to the Attorney General to consider. The Court of Appeal displayed some sympathy towards the judge’s position, but made clear it disapproved of his chosen course:

“We recognise that the judge was placed in an invidious position because he was concerned about the integrity of the trial which was almost at its end. The three trials, of which this was the second, were exceptionally difficult and sensitive. Having decided to suspend the deliberations of the jury, it is understandable that he may have felt under some pressure to resolve the issue of the appellant’s contempt expeditiously. However, once it had become apparent that the appellant was co-operating in removing the material from the internet, there was no reason why the jury could not have been permitted to resume their deliberations. If there was any doubt about the intentions of the appellant, the judge could have sought an undertaking from or ordered, the appellant not to comment further on the trial or approach the court until the trial (or trials) had concluded.”

There was also confusion, due to the lack of particulars of the contempt, as to what conduct the judge was dealing with Robinson for. He was in breach of the reporting restriction, but the judge also appeared to suggest that other comments in the video – relating to the defendants’ ethnicity and religion – would amount to a separate criminal contempt. But it was all rather fuzzy, and deeply unsatisfactory:

“In our judgment the failure to follow the requirements of Part 48 of the Rules was much more than a technical failure. In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name. In this case there was no clarity at all about what the appellant was admitting and for what parts of his broadcast he was considered by the judge to be guilty of contempt of court for breach of the section 4(2) order.”

As far as the length of sentence was concerned, the Court of Appeal criticised the decision not to adjourn for a Pre-Sentence Report (or “Pre-Commital Report”), and accepted that the speed of the hearing meant that the level of detail of mitigation put before the court was “very limited indeed”.

So the Court of Appeal quashed the Leeds contempt?

It did, and all consequential orders (i.e. the sentence) fell away. However that is not the end of it. The Court remitted (sent back) the contempt for a fresh hearing at the Crown Court before a different judge. When the contempt is established (as it surely will be given that Robinson has admitted through his barrister at the Court of Appeal that he breached the reporting restrictions), he will be sentenced afresh.

What’s the point? As Tommy’s barrister said, he’s served the equivalent of a four-month sentence. If the Court of Appeal accepted that there was important mitigation not heard, surely he’s going to receive a much shorter sentence?

Not necessarily. There was a sting in the tail of the judgment. The Court of Appeal observed that “the alleged contempt was serious and the sentence might be longer than that already served.” It also set out, for the benefit of any future sentencing court, the criteria that should be considered when passing sentence:

(a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them;

(b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;

(c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;

(d) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;

(e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;

(f) the scale of sentences in similar cases, albeit each case must turn on its own facts;

(g) the antecedents, personal circumstances and characteristics of the contemnor;

(h) whether or not a special deterrent was needed in the particular circumstances of the case.

Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences:

(a) Trials may have to be abandoned irretrievably;

(b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense;

(c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time;

(d) The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense.

So Tommy is free. This is a victory for free speech, right?

No. It is a victory for the procedural rules, and a sharp reminder to the courts of the need to follow them. But certain key takeaways remain:

Robinson admitted that he was in contempt of court at Canterbury, through racially charged and aggressive hounding of defendants which risked derailing a serious sex trial and denying justice to victims of sexual offending;
Robinson admitted through his barrister that he was in breach of the reporting restrictions at Leeds Crown Court. It was never suggested, by his barrister or anyone else, that the reporting restrictions were inappropriate. It was agreed by all that they were necessary to ensure the fairness of serious trials.
“Free speech” has nothing to do with this decision. This was not a case of Robinson “exposing” something the state was trying to cover up. At both Canterbury and Leeds, he was interfering in a live criminal trial in defiance of laws designed to ensure the trial was fair. The cases would have been reported in full by journalists once the postponement order was over. The only thing added to the sum of human experience by Robinson’s “citizen journalism” was the very real risk of serious criminal cases collapsing.

14. This shows that you know NOTHING, fake barrister. You were wrong, weren’t you?

Yes. My initial impression, based on the limited information available, was that the summary procedure was appropriate in the Leeds case. As the Court of Appeal explained, it was not. There were alternatives open to the judge which should have been explored. There were also obvious failings to abide by the procedural rules, although I would plead in mitigation that none of that information was available at the time that the story was first reported. As a result, the hearing was not fair. Whether the sentence was appropriate was not decided by the Court of Appeal and may perhaps be best assessed by what the freshly-constituted Crown Court decides to do, (although my position on that was neutral – I observed simply that the sentence was not out of the ordinary for serious contempts of court.)

So I hold my hands up – imperfect information makes for imperfect predictions. But is there a wider issue here, among me and other legal commentators? Were we too quick to dismiss the case with a “nothing to see here” wave of the hand, blinded by the unappealing nature of Robinson’s supporters and the organised maelstrom of fake news stirred up here and abroad? Maybe we were. Maybe we could have – should have – cleared our ears and browsers of the white (pride) noise and paid greater heed to the arguments of due process. Maybe a little more humility is required in these difficult cases. I am normally conscious in all legal blogging to couch in terms of conditionals – if this report is accurate, then the explanation might be X. Was I too quick to assume, wrongly, that the judge had acted correctly?

I think I may have been. But looking back over the litany of plainly false statements circulated between May and now – that Robinson’s “reporting” was nothing more than the BBC had done; that he was targeted by the deep state; that Robinson’s original barrister was an “unqualified duty solicitor”; that TR was never in contempt of court as the trial was over; that the courts were “covering up” serious crimes by certain racial groups; the dishonest framing of the debate as one of “free speech” rather than interfering with justice; and the other hundreds of fantastical theories clogging my Twitter notifications today – I’d suggest, self-servingly, that an inaccurate but well-meaning prediction – such as we all make in the courts every day – is lesser a social evil than the deliberate, racially-tinged misinformation campaign that we do our best to counter.

Tommy Robinson’s appeal: what happened?

Posted on July 18, 2018 by thesecretbarrister

Today the Court of Appeal (Criminal Division) heard the appeal of Stephen Yaxley-Lennon (AKA Tommy Robinson).

Judgment was reserved, meaning the Court’s decision will not be known for another couple of weeks. However it is worth, given the events of today, having a quick look at what happened. In doing so, I am grateful to the excellent Lizzie Dearden of the Independent who provided a comprehensive live-blog of the hearing from the Royal Courts of Justice, as well as the indispensable Matthew Scott who live-tweeted the hearing, and whose blogpost on the subject tells you everything you could ever need to know.

Background

Some of the background was set out in my first blog after Yaxley-Lennon was committed to prison for contempt at Leeds Crown Court on 25 May 2018. The full facts were, and to an extent are still, unknown. The judgment will, when it is handed down, hopefully fill the gaps, but in a nutshell it was reported that Yaxley-Lennon had committed contempt of court twice over.

The first contempt of court occurred at Canterbury Crown Court last year, when, in the course of a trial, Yaxley-Lennon engaged in the following behaviour.

So that is the first contempt. Yaxley-Lennon was committed to prison for 3 months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

Fast-forward to this year. On 25 May 2018, Yaxley-Lennon attended Leeds Crown Court to “report” on an ongoing trial. [The subject of this trial is still subject to reporting restrictions and so is not mentioned here. I will update when the restriction is lifted.] He live-streamed a Facebook video in which he made various comments about the defendants, including reading out their names. This was at a time when reporting restrictions were in place – a type of restriction called a “postponement order” under s.4(2) of the Contempt of Court Act 1981 – which prohibited any reporting on the details of the trial until a later date. That later date would have been the conclusion of a “linked trial” – it is normal in Engand and Wales that, where there are multiple defendants to be tried in a big criminal case, and there are too many defendants for all to be tried at the same trial, there is instead a series of individual, linked trials. In order to ensure that anything said or done in the first trial does not risk prejudicing a potential jury for a later trial, the court will often impose a “postponement order”. The full details of everything can then be reported freely at the conclusion of all of the proceedings.

If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive.

He appealed, and here we are.

The grounds of appeal

A number of issues were raised by Yaxley-Lennon’s barrister, Jeremy Dein QC.

The first – and most surprising to those of us who had relied on Yaxley-Lennon’s spokesperson’s claim that he was only appealing the length of the terms of imprisonment – was the announcement at the outset of the hearing that the appellant was seeking to appeal against the finding of contempt, not only at Leeds Crown Court, but also the finding of contempt at Canterbury Crown Court last year.

Appeals have to be lodged within 28 days of the finding of contempt, so the first hurdle to clear is an application for an extension of time. Jeremy Dein QC submitted that there had been a delay in Yaxley-Lennon receiving legal advice due to difficulties experienced by his legal representatives in visiting him in prison. In relation to the Canterbury case, Mr Dein submitted that Y-L had not been aware of any legal flaw in procedure until he had received this most recent legal advice. The appeal against the contempt itself, as opposed to just the “sentence”, was therefore lodged late in the day. (There was an earlier report that the initial date for the appeal had been vacated. It may well be that the late lodging of these grounds, and the significant change in the way in which the appeal was framed, was the reason).

The arguments against both contempts centred around alleged “procedural deficiencies”. That is to say, there was not any argument that Y-L had not acted in a way that would amount to contempt; rather it was said that the way in which the courts had dealt with it meant that the contempts should not stand as a matter of law.

Leeds Crown Court

It was argued that HHJ Marson was wrong to proceed to deal with the contempt “summarily” – i.e. by hearing it himself on the day that the contempt was committed. It was said that Y-L was prejudiced by the speed with which the case was dealt with.

The Criminal Procedure Rules allow for a judge to deal with contempt summarily. There is an initial procedure that the court should follow (CrimPR 48.5(2)), which requires the court to do the following:

If, having completed the initial procedure (which includes offering the contemnor a chance to apologise), the judge decides that further action is to be taken, the court must embark upon an “enquiry” (the name for the hearing of a criminal contempt). A court can postpone an enquiry for further investigation. It is commonplace for contempt to be dealt with swiftly and summarily, but it was argued that in this case it resulted in prejudice to the appellant.

The reason for this, it was said, is that although Y-L’s barrister at the hearing accepted the contempt on Y-L’s behalf and apologised for it, Y-L was not directly asked whether he admitted the conduct, and was not given the opportunity to apologise (required by CrimPR 48.5(2)(b)). This, it was said, amounted to a serious procedural defect. The court should have made clearer how it defined the contempt, and should have ascertained exactly what Y-L did and did not accept. It was accepted that the procedural error made no difference to whether Y-L was in contempt, but was said that it was so serious that the contempt should be quashed.

Canterbury Crown Court

It was submitted that it was unclear under which law – i.e. which species of contempt – Y-L was found to be in contempt and sentenced at Canterbury. As set out in my previous blog, Y-L appeared to be in contempt in two ways – a breach of the statutory prohibition on filming inside court buildings under s.41 of the Contempt of Court Act 1925, and a contempt “in the face of the court”.

There was also a suggestion that the fact that HHJ Norton in Canterbury had expressed Y-L’s sentence as “3 months’ imprisonment”, rather than “a committal of 3 months”, was an error of law. [This is correct; however it is far from unusual. Often judges will conflate terms such as “imprisonment” and “detention” (the latter applies to offenders under 21), but it makes no practical difference, and is corrected by the Court of Appeal as a technicality.]

Length of committal

As for the length of the committal, the following submissions were advanced:

Y-L was not acting with “impertinent defiance”, and had in fact asked a police officer outside Leeds Crown Court if his actions were in contempt of court;
Because certain matters had been reported earlier in the press (before the imposition of reporting restrictions), Y-L believed that they were already in the public domain;
He did not intend to breach the reporting restriction, albeit he was aware of it;
Due to the limited time that Y-L spent with his barrister on 25 May, important matters of mitigation were not before the court, such as the fact that Y-L said he had undertaken media training;
The court was also not made aware of the impact of prison upon Y-L when he was sentenced in 2013, which had left him unable to sleep, nauseas and anxious;
That in passing sentence the judge attached improper weight to things said by Y-L said on the Facebook livestream which were not of themselves contemptuous.

It was submitted that, everything considered, 10 months was too high a starting point for the Leeds contempt, and furthermore that it was “unfair” that the 3-month suspended sentence was activated.

The amicus

The Attorney General appointed counsel, Louis Mably QC, to act as “amicus” (“friend to the court”). Contempts are generally not a matter for the prosecution (being “offences” committed against and enforced by the court), but where there are questions of law with which the Court of Appeal may wish for assistance. Given the technical argument over the effect of the alleged breach of the Criminal Procedure Rules, the appointment of an amicus appears sensible.

Mr Mably argued that a breach of the Criminal Procedure Rules does not of itself invalidate a finding of contempt, particularly where it is accepted that it had no bearing on the outcome of the case. He said that, regarding the Leeds matter, an adjournment would not have made a practical difference to the outcome – while doing so might have allowed the court to more properly articulate the nature of the contempt, Y-L would still (as he accepted through Mr Dein) have been in contempt of court. However, importantly, Mr Mably did accept that not adjourning could have affected the sentence imposed.

Conclusion

Jeremy Dein QC played a canny game by emphasising the Criminal Procedure Rules, compliance with which, as he reminded the Court, is considered of utmost importance by Sir Brian Leveson, the President of the Queen’s Bench Division. The Court must decide to what extent a failure to follow the Rules (if indeed such a failure is made out) impacts the validity of a finding of contempt. In general, the Court of Appeal nowadays does not have much time for technical arguments, and as both prosecution and defence appeared to accept that there would not have been a difference to the findings, this ground of appeal may not hold much sway.

Hostage-to-fortune time, what would my best prediction be? Emphasising that we still do not know the full facts – transcripts of what happened at Leeds Crown Court, for example, were before the Court of Appeal and will be vital in establishing the key issues (e.g. whether the contempt was put to Y-L; what procedure was followed; what was said in mitigation), and the parties referred to written submissions that have not yet been made public – my guess is that the Court will not agree that the contempts are invalid, but may well find that relevant matters of mitigation were not taken into account, and so reduce the sentence by a few months.

How would ‘The Staircase’ murder trial be different in England and Wales?

Posted on July 6, 2018 by thesecretbarrister

I wrote a piece for Esquire on the Netflix true-crime drama The Staircase, looking at how the trial might have been different had the case taken place in our fair nation. You can read it here.

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Netflix

Why was a homeless man jailed for pretending to run the London Marathon?

Posted on June 22, 2018 by thesecretbarrister

A homeless man who picked up a lost race number and “completed” the London Marathon has been jailed for 16 weeks.

Yesterday at Uxbridge magistrates’ court, Stanislaw Skupian (38) was sentenced by magistrates having pleaded guilty at an earlier hearing on 18 May to fraud, after he picked up a race card number dropped by runner Jake Halliday at the 23-mile mark and illicitly joined the race himself. He crossed the finish line and celebrated with the medal intended for Mr Halliday, who found himself removed from the race 300 metres from the Finish line when marshals spotted that he was not wearing a race number.

The Chair of the bench passing sentence told Skupian, a homeless father-of-one who had recently suffered a temporary breakdown in his mental health, “The offences are so serious [that] only a prison sentence will suffice”. 13 weeks’ imprisonment was passed, with three weeks’ imprisonment imposed consecutively for unrelated matters of theft.

The Chief Executive of the London Marathon, Nick Bitel, reportedly said that “justice has been done”. His apparent pleasure with the sentence was not matched by many people on social media, who expressed consternation at a mentally-unwell homeless man being squeezed into our bursting prisons for a non-violent offence.

So what the Dickens has gone on?

The offences

Stanislaw Skupian was charged with fraud by false representation, contrary to sections 1 and 2 of the Fraud Act 2006. The “false representation” being, presumably, the implied representation that he was the rightful owner of Mr Halliday’s race number and was entitled to complete the race and claim the finishers’ medal. This offence carries a maximum sentence of 10 years’ imprisonment in the Crown Court, or six months’ imprisonment in the magistrates’ court. He was sentenced to 13 weeks’ imprisonment.

He was also charged with three unrelated offences of theft. He was arrested at the multi-faith prayer room at Heathrow Airport, where he was found with items including a primary school worker’s identity card and a pink diary holding overtime hours worked by airline staff. It was said that Skupian viewed the airport as a temporary home and had picked up items discarded. This would amount to theft (referred to in court as “theft by finding”) under s.1 of the Theft Act 1968. He received three weeks’ imprisonment for these offences, to run consecutively to the 13 weeks imposed on the fraud (it is unclear whether this was one week consecutive for each of the three theft charges, or three weeks on each directed to run concurrently to each other, or some other mad configuration dreamed up by the magistrates).

He was further made subject to a Criminal Behaviour Order, which is the new replacement for the old-fashioned ASBO. These can be imposed where the court is satisfied that a defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and where a Criminal Behaviour Order will help in preventing the defendant from acting in that way. In this case, the court deemed that banning the defendant from Heathrow Airport for three years, unless he has a pre-booked flight, was an appropriate use of that power.

The Sentencing Guidelines

To look at what sentence we might expect, we have to look at the Sentencing Guidelines, which are published by the Sentencing Council and which courts are required by law to follow. So let’s look at the Definitive Guideline for Fraud, Bribery and Money Laundering Offences. The seriousness of an offence is judged by considering the “culpability” of the offender and the “harm” caused by the offence.

On the Guideline for straightforward fraud, the first step is to assess culpability by reference to the below factors:

There are plainly no elements of “High culpability” in this case. It would appear, in the absence of any evidence to the contrary, that this was an opportunistic, one-off offence with very little planning, which points towards Lesser culpability.

Now we turn to the assessment of harm:

For fraud, you take as your starting point the financial loss to the victim. Here, it is very low indeed. The cost of entering the London Marathon ballot, at £39, is probably the closest financial value you can attach to this unusual offence (the value of the medal not being easily assessed due to it not being something purchasable on the open market). This puts us in the lowest category, Category 5.

But then we have to look at the impact upon the victim, to see whether it warrants the sentence being moved upwards. This is a slightly unusual case, because although (I expect) the charge would have been drafted with London Marathon as the nominal victim, the person most directly affected is arguably Jake Halliday. He was stopped 300 metres from the finishing line and told that he was not allowed to cross due to his number having fallen off. He had raised £49,000 for a charity, Bloodwise, and was prevented from completing the race, having run the best part of 26 miles, in the cruellest of circumstances. What was (one might expect) a lifetime ambition was snatched away. That no doubt had a considerable detrimental effect on him.

However. Can it really be suggested that Skupian was responsible for depriving Mr Halliday of his moment of glory? It was said in court (and seemingly not disputed) that he spied the discarded race identifier on the floor and saw an opportunity. He did not steal or otherwise remove the number from Mr Halliday. It does not appear that he watched it fall and swooped in. If, as the court apparently accepted, he had simply seen it on the ground, was the damage not already done? Perhaps he could have handed the card to an official, but it is unclear how it could have been reunited with Mr Halliday in order for him to have been able to complete the race. The London Marathon Final Instructions to runners emphasises the importance of taking care of the running number – “Duplicate numbers cannot be issued under any circumstances”. It is also stated that anybody taking part without a number will be removed from the race by marshals “before you cross the Finish line”. Once that number had fallen, it would appear (and I’ll be happily corrected if I’m mistaken) that the game was over for Jake Halliday.

Against this backdrop, it might realistically be argued that while Skupian exploited Mr Halliday’s misfortune, his criminal behaviour did not cause it. The anger and humiliation felt by Mr Halliday when he learned that somebody had claimed his number and completed the race in his stead may well be significant, but is it so great as to move the harm out of “Lesser impact”? I suppose it might. Just.

My assessment is that for these reasons, this case probably falls somewhere between, categories 4C and 5C:

We can see that the latter provides a starting point of a ‘Band B fine’, which equates to around 100% of somebody’s weekly income. The category range is a discharge – a slap on the wrist – up to a medium level community order. If the harm caused is deemed serious enough to lift it up to the next category, the starting point is a medium level community order. Still the category range does not extend to custody. In order to arrive at a category where a custodial term is available, the court would have to have assessed culpability as “B”. I find it tricky to see how this was done.

We then look at aggravating and mitigating factors:

The defendant had a previous conviction for attempted theft. That was the only matter mentioned in court. So while it is a similar type of offence, this is hardly the kind of record which would seriously aggravate a defendant’s position to make the difference between custody and not-custody. No other aggravating features listed are relevant.

In mitigation, the court heard that the defendant has lived in the UK for 11 years. He suffered a neck injury in a serious car crash last year, forcing him to take sick leave from his catering job. His marriage broke down and he lost his home. Shortly before the race, he had suffered a “short, temporary breakdown in his mental state”. It was also submitted that he had committed the offence out of excitement, without fully appreciating that what he was doing was wrong.

Putting all this together, I’d say there’s more to mitigate his position than to aggravate it. This would mean moving below the starting point on the Guidelines.

We then have the issue of credit for guilty plea. He admitted the offence at the very first hearing, and so is entitled to one third off his sentence. This means that the magistrates must have taken a starting point of 20 weeks in order to arrive at a final sentence of 13 weeks for this offence.

[The thefts we shall put to one side as we do not know their value. What we can infer, however, is that they were considered significantly less serious than the fraud.]

Conclusion

Based on what we know, this appears to be a very harsh sentence. While this is not the type of fraud envisaged by those who drafted the Guidelines, it is difficult to see how a straightforward assessment of culpability and harm could lead a court to a starting point of 20 weeks for this single offence. The defendant has an automatic right to appeal his sentence to the Crown Court. I would not be surprised if he exercised it.

There are unknowns, of course. There would have been a Pre-Sentence Report prepared by the Probation Service, whose views would have informed the court’s. It may be that they were unable to offer any alternative to custody, although experience would dictate that a homeless man with a limited criminal record and mental health problems is the kind of person the Probation Service try to persuade the courts to let them help. It would be a sad day indeed if all that our justice system could offer to improve this man were two pointless months of incarceration.

I have written about magistrates before, including in my book, and one of my criticisms is that sometimes a sense of perspective is lacking when these non-legally qualified volunteers are sentencing offenders. Just because a power of imprisonment exists does not mean that it has to be used. This sentence, based on what we know, appears to be one such example. That it can be said that the offence was so serious that only a prison sentence can suffice is, with respect to the sentencing court, perverse. Courts often find ways to avoid immediate custody in cases which are far more serious, involving offenders with significantly worse records.

And I’ll seize on those words – “based on what we know” – to pirouette into a final flourish on my soapbox, if I may:

This case had received national media attention when Mr Skupian made his first appearance at court and pleaded guilty. It was plain to the court administration and to the magistrates that the outcome of this case would be widely reported. Yet still the magistrates did not see fit to publish written sentencing remarks explaining their decision.

This is a drum I have unapologetically beaten for some considerable time. Because while good court reporters should accurately reflect the full reasons given for a sentence passed, inevitably there will be occasions where something is missed in the hustle of a chaotic magistrates’ court list. Submissions and decisions as to where the case falls in the Sentencing Guidelines, for example, hold little interest to the average reader and may understandably not make it into the final copy, but to lawyers analysing and explaining the decision these can be critical.

Magistrates, judges and lawyers cannot complain that their remarks or decisions have been unfairly portrayed if they don’t bother to do the basics. It would have taken an extra ten minutes, one supposes, for the remarks to have been committed to paper, copied and distributed before being read out, and then everybody would be able to see how and why the decision was reached.

As it is, we are once again left groping in the dark, or at best the dusk, in trying to understand how our criminal justice system is – or in this case is apparently not – working.

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The Secret Barrister

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