Lives are being put at risk by the intransigence of the government and the courts. Jury trials must be suspended immediately.

UPDATE: At 8am on Monday 23 March 2020, the Lord Chief Justice announced a suspension of new jury trials. The details are vague, and hint at a resumption “where specific safety arrangements have been put in place”, but for now, at least, it seems as if a level of sense has prevailed. Regrettably the announcement came far too late to reach many jurors, who will have already embarked upon needlessly risky travel by public transport, but joined up thinking has never been part of the justice system’s core values.

 

Today, thousands of citizens of England and Wales will attend their local Crown Court in answer to a summons compelling them, under threat of imprisonment, to do their civic duty and serve on a jury.

They will queue with dozens of other strangers to be herded into a packed jury waiting room. Once selected for a jury panel, they will pile into a dirty, windowless courtroom and sit next to each other for five hours a day. At lunch they will mingle with the hundred or so other jurors in the building. At the conclusion of the trial, they will shuffle into a tiny unventilated retiring room, where they will make a decision which could ultimately determine whether somebody spends years of their life in prison.

This is because, even though the government has closed schools, restaurants, pubs, cafes and leisure centres, one area of public life in which, to quote a government minister, we are “operating normally”, is in the criminal courts.

So while Scotland and Northern Ireland have temporarily suspended jury trials, in England and Wales the Lord Chancellor Robert Buckland and the Lord Chief Justice have decreed that jury trials lasting up to three days – estimated to be 75 per cent of trials – must take place.

They will do so in filthy conditions where lack of hot water, soap and paper towels is widespread; where broken hand dryers and leaking toilets and burst pipes and crumbling roofs and walls are par for the course; conditions which in the good times we in the courts accept as a permanent feature of a chronically underfunded justice system, but which in the current climate present a far more alarming proposition.

Criminal courts are, basic sanitation aside, a petri dish. Scores of defendants are piled into waiting areas. Most travel by public transport; some travel in “sweatbox” security vans from our infested, overcrowded, virus-rivenprisons. Defendants and their families mix with their barristers, who mix with court staff, who mix with witnesses, judges and jurors, who mix with other witnesses, judges and jurors. Courtrooms vary in size and style; in some of our more antique Victorian courts, jurors are squeezed onto hard wooden benches without an inch between them, let alone the government-recommended two metres. In a fairly typical court I was in last week, the defendants, barristers, clerk, usher, witness box and jury box were all within a two-metre radius of each other.

And by insisting that the shortest trials go ahead, the government is ensuring the highest possible churn of cases; the highest possible turnover of strangers coming into contact with each other.

Over the past few days I have been flooded with messages from terrified jurors, witnesses and court staff aghast that, at a time when the government is frantically urging social distancing on the ground that “infections spread easily in closed spaces where people gather together”, they are being required by law to expose themselves to such conditions. In a closing speech last week, one of my colleagues thanked the jury for their dedication at a time when they were no doubt worried about themselves and their families. One of the jurors burst into tears.

This situation is appallingly unfair to all concerned. How on earth can jurors be expected to concentrate on their task? How can any defendant or victim of crime have faith that the twelve people trying their case are paying full attention to the nuances of the evidence, when those twelve are burdened with the knowledge that, as a direct result of their jury service, they, or someone they love, could die?

And contrary to MoJ dicta, we are not operating normally. Judges are self-isolating; defendants, jurors and witnesses are staying at home as they break out with symptoms; and trials are collapsing all over the country. The Witness Service, the organisation responsible for looking after witnesses at court, has withdrawn its volunteers. Many Crown Court judges are making no secret of their disdain for what the MoJ would wish to term a “strategy”, but which more closely resembles a tribute act to Monty Python’s Black Knight chirpily dismissing each collapsed trial as a mere flesh wound.

The official government line is that “justice is not optional”. A sweet homily, betrayed only by the evidence of the past decade, in which victims, defendants and witnesses have found their cases mishandled or delayed for years due to enormous cuts to the budgets of the police, CPS, courts and legal aid. Justice has been optional whenever financially or politically convenient.

The three-day trial rule has no public health basis behind it, other than a chipper optimism that a trial of such a length might have an outside chance of completing before too many of its core participants drop down. The three-day trials will in general concern the less serious and more straightforward criminal allegations which could realistically wait another few months without too much harm being done.

The primary reason for the intransigence appears to be Mr Buckland’s fear of being the Lord Chancellor Who Closed The Courts, a disfiguring blemish on the CV of any aspiring careerist in this Tough On Crime government. There is also a secondary, practical concern: because of cuts, we have a backlog of over 30,000 Crown Court trials and are currently trying cases for offences said to have occurred two or more years ago. The government knows that a standard two-year delay could quickly become three.

The government should adjourn all jury trials listed in the next twelve weeks. In the Autumn, when it may be safer to do so, we can resume with the adjourned cases, only with the financial firehouse turned on. Instead of running at half-capacity, every Crown Court should run at maximum; the Treasury’s largesse must be extended to the justice system so that we don’t endure the farce of perfectly usable courtrooms sitting locked and empty due to “lack of sitting days” while judges get paid to sit at home. The backlog, both Covid-caused and historic, can be blasted away.

In the meantime, of course, justice and the courts cannot halt completely. Technology may – subject to the disastrous history of IT procurement in the courts – be capable of keeping shorter hearings on the road over the coming weeks and months. Video-links and telephone hearings have a poor record in practice, but offer a theoretical throughroad. Penal policy will have to change; early release of low-risk prisoners, hugely reduced sentences for guilty pleas and a statutory presumption against imprisonment may not be popular, but have to be given serious consideration. By minimising the number of participants required to attend hearings, reducing prison overcrowding and ensuring the court estate is fit for human habitation, urgent court business can tick along until we are through the worst.

Justice need not – indeed cannot – stop. Urgent court business must carry on. But jury trials as we know them cannot continue. It is telling that, when it first published its “priorities” in “managing our response to coronavirus”, the Ministry of Justice included no reference at all to the welfare of those actually using the courts. On the day that the “three-day rule” was announced, Robert Buckland tweeted that he was cancelling his constituency surgery because of “the government’s social distancing advice”.

The Lord Chancellor, and Lord Chief Justice, need to afford jurors, witnesses and court professionals the same consideration, and recognise the human cost of their stance before any more lives are unnecessarily put at risk.

Guest post: Open Letter to Leaders of the Criminal Justice System – Call for a National Protocol

I am delighted to host this guest post by Beheshteh Engineer, a third-six pupil. The views expressed are personal and do not necessarily reflect the views of her chambers.

Why is a functional Criminal Justice System important during a national crisis?

During a short-term national crisis, the CJS must provide two key functions:

  • To deal with urgent matters e.g. bail apps, warrants, CTLs
  • To protect the vulnerable from immediate harm.

We call for a national protocol to address how courts must work during this crisis.

We suggest the following principles for the operation of courts:

  1. The protocol must minimise the risk to the health of court staff and users, following government guidance.
  2. The protocol must allow the CJS to continue to provide its two key functions.
  3. The protocol must default to adjourning cases where the above two principles cannot be met.

Globally, many courts have begun to impose restrictions on cases (CJEU, New Zealand, Canada, some American states, have all closed courts except for the most urgent cases)

What are the current problems?

The current system presents 3 distinct problems:

  • That we are all required to self-distance, but court attendance requires the opposite, and
  • That the government has only adjourned trials with a TE of 3 days or more, and
  • That we do not currently have a set up that allows us to do most hearings remotely, thus requiring people to continue to attend court in person.

Social distancing

We are all being told to practice social distancing and as of 20 March, the government ordered bars and other shops, to close. Doctors all over social and traditional media are imploring people to stay at home. The message is clear: people should not be going out unless they are essential.

In the past week, we have seen the following: people coming to court displaying the symptoms, prisons bringing sick defendants to court, jurors/advocates/witnesses going into self-isolation, and a total lack of cleanliness, or hand gel, or soap, or masks, or hand sanitizer, or protective screens available in courts. Juniors with health issues are still attending court; those who are second and third six pupils feel they have no choice.

Government’s response

The government has adopted a halfway house approach by only adjourning trials three days or longer. Those in charge of the CJS continue to advocate ‘business as normal’ while all other branches of government sound the alarm.

The Bar leadership has said that anyone in an at-risk category or anyone who feels that working conditions are unsafe, can return cases with no ethical problems. This is welcome leadership on this issue. More is needed; those not in the at-risk category can still carry the virus, potentially infecting their own families and anyone else they come into contact with at court. Court advocates, particularly those most junior, are frightened, both for their health and their incomes

Additionally, the government has not yet put in place the resources to protect the self-employed from finding themselves without work and thus, without income. Many have children and mortgages to pay for, others have rent and basic expenses. Many of us at the criminal Bar are struggling and right now, going to court may be the only option, even if that will put ourselves and those we live with, at risk of getting the virus

Lack of investment in technology for the criminal courts

Papers in Crown Court cases are now all on DCS and the courts occasionally use video links where a defendant is in custody. Video links often fail to work, and there are insufficient video links to run the court system at even close to full capacity. Consequently, we have continued to conduct most hearings in person. There are good reasons for this; often material is not uploaded until the day of the hearing, a client has to enter a plea and instructions need to be taken. Nevertheless, the reality remains that there has not been proper investment in technology use in the CJS. As a result, it will require leadership and investment to switch to a system where many hearings are virtual.

Leadership to date on this issue has been poor. The CEO of HMCTS’s letter to the Chair of the BC on 19 March 2020 says that the senior judiciary has given guidance on encouraging the wider judiciary to use telephone and video hearings. There is also a link to this site, guidance which reads, “The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.” This means that all courts can operate according to their own rules. We are already hearing of plenty of cases where a client’s attendance has not been excused despite a reasonable request, as well as hearings in the CC being refused to be conducted by video when there is no good reason for physical attendance.

At a time of national crisis, this is a woeful response from HMCTS and senior leaders. It is also a deeply inefficient way to run any kind of system, never mind one of such importance.

The civil Bar, family Bar as well as some Tribunals are already ahead of us on this; they either already regularly use digital technology or have implemented a new protocol. Cases have been conducted (and won!) from advocates’ living rooms. If other Bars and Courts can manage remote hearings, we can too.

How can we solve some or all of these issues?

We should be limiting the number of people going to court. We should be protecting those who have to attend court. There should be no room for courts to do things on a court-by-court basis.

We must not continue in a way that puts our health, the health of our families and the general public, at risk. Continuing as we are will only help spread the virus further.

This letter suggests that we create a national protocol – similar to a practice direction – to address how every single court should manage their work during this time of crisis. Decisions need to be centralised and as new problems emerge, decisions must be taken and publicised online. We need to use technology as much as we can.

We also have to communicate updates as clearly as possible. Recent example today: jurors being told they had to attend court tomorrow (Monday) while being in an at-risk group. The message came back that they are excused. The question has to be asked, why are we doing this on twitter? We need a clear method of communication that is accessible to all.

We know that all the various legal bodies are meeting with the Ministry of Justice to lobby them for a proper plan. We add our voices to that. These are complex problems that require a great deal of thought, creativity, and effort to resolve.

How might such a national protocol work?

Suggestions for the protocol must both address issues of law and detail the ways in which we are going to take action. It is no good having vague suggestions and leaving each court to figure out how to implement it, because that way nothing will get done. We need to address the practical issues. This letter has attempted to do so, and in doing so you may find that some ideas are simply not workable at this time. Irrespective, we have a duty to not only think hard about these matters but to publish and debate these ideas so that we can keep people safe.

We propose the following immediate rules:

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020.
  2. All other hearings to be by video link OR telephone.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily adjusted.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly.
  6. We need a new arrangement for magistrates’ court hearings.
  7. We need a new protocol for those in custody.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations

How might these things work in practice?

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020 Rationale:
    1. It is important to set a fixed date for when trials might resume, even if these are later abandoned. Dates to work to focus the mind.
    2. Stage dates to be put back so that work continues.
    3. Re-arranging listing on such a scale as we are seeing even if it remains just those with TE 3 days or more, is going to take time and proper thought. We should not do this on the fly otherwise there will be chaos.
    4. Such re-listing then needs to be properly communicated to all parties and should take into account advocates’ diaries, so that they do not lose out.
    5. If all hearings are virtual and all clients excused as standard this saves 100s of hours of manpower – all that then needs to be done is for clients to be told that they don’t need to attend court.
    6. If this is the default position, then hearings can continue in a way that avoids an advocate having to announce that they are in at at-risk group or are scared of attending court or who have some other legitimate reason.
    7. This also helps to preserve income, an important point. Many of us working in the CJS are self-employed; we need to attend hearings so we can get paid. We are not currently being afforded much support from the government.

    How might this work in practical terms?

    1. Listing are obviously the point people to arrange virtual hearings and will need to find a sensible way to schedule hearing times. This is done in the crown court and it can be done in the magistrates. Cases should also be re-fixed to accommodate advocates’ diaries so those booked to have trials do not lose out.
    2. Each court has to work out what technology they will use: skype, Teams, something else? Many barristers and HHJs are working together to try and figure out what works but we need a proper system. Also, I’m not PC users are having difficulty with skype for business. We are going to waste hours in court, at risk to our health, if we’re all trying to figure this out on the day.
    3. Once each court has figured out what tech they can use, this has to be communicated clearly on a single website acting as one point of reference.
    4. Chambers and Solicitors firms already have a list of emails and contact numbers for listing offices. These should be shared with advocates so that they can send individual email sand track hearings themselves [without the middle man] to ensure that matters are arranged sensibly and to take into consideration whether or not an advocate can do a telephone or video hearing or if other provisions need to be made.
    5. We should also share email addresses of those advocates at the CPS down to do a particular hearing so that CPS and defence can communicate in advance and so that the Crown can/attempt to upload relevant papers onto DCS in good time.
  2. All other hearings to be by video link OR telephone
    1. Hearings that can be done by delegated powers e.g. adjournment or CMH
    2. If parties email the listing office with the issues to address, this can be passed to the requisite court on the day of the hearing, and will save time.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily amended:
    1. If pleas need to be taken, the parties should work together to narrow down the issues ahead of time. This requires the Crown to upload material earlier than the day of the hearing. It requires effort and forward thinking to work.
    2. Where a G plea cannot reasonably be put in, everyone is to put in a NG plea and credit must be preserved until such time as 1) CPS serve all material and 2) counsel have been able to take instructions. We need detailed guidance on this. Defendants must not lose out. Same rule to be applied in the magistrates’ court.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly:
    1. Extending a CTL should not be routine
    2. Matters should be on a case-by-case basis: e.g. *some* defendants in an at-risk group should be strongly considered for release on stringent bail conditions.
    3. For other cases (maybe DVs) where there’s no bail conditions, Crown might want to apply for some? Ensure protection of potential victims?
    4. New cases should be bailed with conditions where appropriate.
  6. For magistrates’ courts:
    1. Papers for first appearances usually only arrive on the morning of the hearing. This will be difficult to change as it is the CPS that produces these papers. If the CPS can produce these bundles the night before the hearing, that would assist.
    2. Advocates can set up video conferences or telephone hearings with clients remotely to attend on the day of the hearing. As soon as they have the papers, the conferences can be held.
    3. The only remaining issue is how to list matters in a magistrates’ court: traditionally it is whomever is ready goes on first. If hearings are being done remotely, there will have to be a system or rule in place to decide who can call in.
    4. It may well be that the legal advisor or clerk in court will have access to a system whereby they can determine who is going to be heard next.
    5. First appearances and business in the magistrates’ courts, for it to continue working ‘as normal’ will require significant thought. It may be that some of these problems cannot be overcome anytime soon. They also require effort and someone to care enough to design a system so that these can be done remotely. There is a workable solution, but it requires all parties to work together and for those in authority to have the significant desire to make it work.
  7. For those in custody (predominately but not solely in the magistrates’):
    1. Conferences should take place by video-link wherever possible. However, we acknowledge that whether a defendant is on video from prison or in custody in the cells, a video-link may not always be possible. This is both a technical and legal hurdle that may take time to address.
    2. In the interim, no one should be required to hold a conference with someone in the cells where the court does not have a glass divider. In such cases, conferences should be held in a court room or other room available so that representatives are not put at risk.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations
    1. police station representatives are reporting disparity of process when it comes to being asked to rep someone suspected of having the virus. There should be a protocol in place.

Other points

Following feedback from practitioners, a few other points are worth noting:

  • Some hearings have been “saved” by use of FaceTime. Some others are suggesting Zoom. There is a range of technology available but not all of it will be secure, or available to everyone. This may well be a problem.
  • Special provisions need to be put in in place for vulnerable people: complainants, witnesses and defendants. For example, a defendant with a MH issue or lack of good internet may not have the ability to participate in a virtual hearing. The issue of what to do when an interpreter is needed, should also be considered.
  • Every step taken into a police station is fraught with areas where someone can come into contact with the virus. The custody sergeant is responsible for the safety of police station representatives yet often a representative is taken immediately to a consultation room so there’s no option to speak to the custody sergeant unless it is insisted upon. We’re also being told that areas in the police station (the consultation room, amongst others) are not being regularly cleaned.
  • Prisoners should be considered for release, where appropriate.
  • If the plan is to keep courts open for as long as possible, there needs to be a nation-wide rollout of soap, hand sanitizer, wipes and a proper cleaning regime in place.

Conclusion

It is the case that with many of these things, what will suffer is the principle of open justice. That is a dilemma that needs to be thoughtfully considered.

The ideas in this letter are just one way to address matters. There may be problems with the ideas suggested – they are not perfect. But they are a start and hopefully a platform to encourage discussion.

We must work together to limit the spread of this disease while maintaining the criminal justice system.

Author: Beheshteh Engineer, junior criminal barrister (3rd six)

Views are those of the author alone, and not representative of those of her chambers.

 

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

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

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

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

What is the headline policy?

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

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

But is it?

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

 

What is murder?

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

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

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

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

 

What is the sentence for murder?

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

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

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

 

Whole life orders

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

30 year starting point

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

25 year starting point

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

15 year starting point

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

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

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

 

What does the Conservative Party want to do?

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

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

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

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

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

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

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

 

How many cases will actually be affected?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Don’t fall for his con trick.

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

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

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

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

 

  1. And for the English speakers among us?

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

 

  1. Why is a summons so important?

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

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

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

 

  1. What is “misconduct in public office”?

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

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

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

i. A public officer acting as such

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

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

i.v without reasonable excuse or justification

 

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

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

 

  1. Why did the High Court disagree?

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

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

So, taking the contested elements in turn:

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

Let’s see if we can reacquaint them.

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

 

 

 

 

 

 

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

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

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

In summary:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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