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

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 19th century, Parliament had incrementally hacked away at the death penalty, precluding its use in relation to an increasing number of specific offences. During the 20th and 21st 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:

  1. Requests for MLA in Criminal Matters: Guidelines for Authorities Outside of the United Kingdom (12th edition) (‘MLA Guidelines’); and
  2. 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

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The meaning of justice

This will be (for now) my last word on the Tommy Robinson appeal. My legal analysis based on the facts as we now know them deals exhaustively and exhaustingly with the law; my reflections at the conclusion of that piece on whether I was too hasty to assume the correctness of the procedure, I stand by. Being quick to form views in the absence of the full facts is a bear trap I haughtily deplore when others fall in; it is only right to acknowledge if and when I teeter on the brink myself.

But I want to say something, for what little it is worth, about our understanding of justice. And my leaping-off point for this is something that a number of people have drawn my attention to today – this leader in The Sun.

The tweets to me accompanying this photo have been almost uniform: Who’d Have Thunk it, The Sun sticking it to Robinson and Co, Good On ‘Em.

And parts of this leader are indeed brilliant. Whacking to pieces the myth of this oppressed citizen journalist is vital, and needs doing as often as the piñata is reassembled by far-right agitators. Pointing out that the reporting restrictions that Robinson breached have nothing to do with political correctness and everything to do with ensuring a fair trial – the genius is in the simplicity of its expression. Spelling out in equally simple and clear terms the danger that such actions pose to victims of crime receiving justice – [INSERT MERYL STREEP APPLAUSE GIF].

But there’s a line buried within which troubles me, and echoes a sentiment that has been tweeted at me a lot in the erroneous assumption that I share it:

“His many convictions stretch from violence to fraud. We have no sympathy.”

This ugly and unnecessary throwaway reveals one of the biggest problems we have with our understanding of justice; the same problems that many of us are quick to highlight in our opponents. And that is that Robinson’s character, conduct and previous convictions, as reprehensible as they may be, are utterly irrelevant to the issue determined at the appeal, namely whether he received a fair hearing. If he did not – and he did not – he is as entitled as any of us to redress, or at the very least to an acknowledgment of being wronged. The attitude of “Who cares? He’s a criminal” mirrors the exact sentiment that has left the criminal justice system – from legal aid through to prisons – in its present desperate state.

It is immaterial whether Robinson has committed horrible crimes. Many people who appear before the courts have, especially in my line of work. And rights, if they mean anything, have to apply to everyone. It’s an obvious point, but this fundament of the rule of law is too often forgotten when we are confronted by society’s most unlovely.

If we neglect our first principles of justice, we fall into the trap carefully lain by the far-right. Their entire, dishonest thesis – from Trump through to Robinson – is that they are deprived of natural justice by its unequal, unprincipled application at the hands of liberal enemies of the people. By denigrating and distorting the rule of law they aim to undermine and ultimately destroy it. Implying that Robinson’s previous criminal record renders him less deserving of justice than the rest of us hands the far-right the prize they crave.

Don’t be fooled by the strained triumphalism of the far-right over yesterday’s outcome. This result is a disaster for them. It categorically disproves to a global audience every conspiratorial tenet of their religion. The liberal judges are not locking up political dissidents. There is no state cover-up. Mistakes, when made in the legal system, can and often will publicly be righted.

They may be proclaiming that they fought the law and won, but for the truth just ask The Clash. The winner, if we must talk in such terms, is justice.

Which moves me back to The Sun, and the risk of an equivalent false triumphalism on the other side. For just as the far-right mendaciously spin this righting of a procedural wrong as a “victory for free speech” – by which they mean the right to hound Asians accused of criminal offences – so we risk self-denigration by dismissing, or worse revelling in, the punitive effect of the court’s error. The joy that some are taking in the notion of Robinson’s imprisonment borders on the macabre.

I’m afraid if you’re supportively tweeting me amidst the blizzard of the racist bots to share a gloat that Robinson has maybe spent more time in prison than he should have, or to gleefully cross fingers that he gets longer next time, I’m not your ally in this cause.

It may be, when the contempt matter is dealt with anew by the Old Bailey, that a sentence is passed which matches or even exceeds what Robinson has already served. But at present, he served a sentence that followed an unlawful procedure. That shouldn’t happen. To anybody.

And if he does receive a lesser sentence – if the court, after a full and leisurely hearing at which all mitigation is made available finds that the appropriate sentence is much lower than he received first time round – and if it means he has therefore served longer than he should have, all the arguments I’ve made in my book about miscarriages of justice apply. It’s wrong. He should be entitled to an apology, and recompense, and all the other make-goods I demand on behalf of others. His perceived or actual shittiness is not material. If he has been imprisoned when he should not have been due to state error, it’s as much a problem as if it happened to “one of the good guys”.

So those are my closing musings. I have no issue at all – and nor should any of us – with Robinson seeking to and succeeding to challenge the lawfulness of his treatment at the hands of the courts. We are all entitled to due process, and should all expect, however abominable others may consider us to be, that the law will be applied fairly and correctly. My concern, contrary to what the Breitbarters would like to pretend, has always been the mob lining up behind Robinson to spread lies and quite literal fake news as to what took place, what the factual and legal issues are and how the law operates. Those peddlers of hate and deceit – the UKIPs, the Breitbarts, the Rebel Media, the Infowars, the unmentionable Twitter favourites – I will continue to resist as long as I keep up this vainglorious mission to bring law to the people who own it.

But as for what happens to Robinson now, all that should matter is that he gets justice. If, in his righteous pursuit, he encourages his supporters to continue their threats to the rule of law, their riots, their organised campaigns of racialised misinformation, I will be there waving my tiny paper sword on the front line.

But taking any sort of pleasure in anybody being failed by the justice system? We’re better than that. Let’s show it.

Tommy Robinson’s appeal: what happened?

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.

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.

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.

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.

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.

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.

Guest post by Fern Champion: The government thinks it is doing enough to fund Rape Crisis centres. My story shows they are wrong.

I am honoured to host this guest post by Fern Champion. Fern is next week giving evidence to the All Party Parliamentary Group on Sexual Violence, speaking from her own experience about the widespread problems in accessing Rape Crisis centres. This is Fern’s story.

I can’t count the number of times I’ve tried to do this. To tell my story and have it listened to. To engage with police, insurance companies, support services, employers, and friends across the globe.

I need to talk to the police” I said to the girl working on the reception of the hostel I was staying at in Kuala Lumpur, as I walked in clutching my bra in my hands.

“I’ve been raped” I said on the phone to the British Embassy Consulate the next day, after spending the last 24 hours either with the police or in hospital.

“I’ve missed my flight because when I should have been boarding, I was being examined by a surgeon” I said to my airline and travel insurance company.

I think I had my drink spiked and had to have a pregnancy test” I said to my friend who I sent various incomprehensible messages to the night before.

So here it is, one more time. My story, which really isn’t just my story.

On the 18th/early hours of the 19th July 2016, I was raped by a man whilst I was heavily intoxicated.  He first assaulted me whilst I was unconscious on his couch, and then he carried me to his bed where he forced his penis into my mouth, vagina and anus throughout the night, all while I was passing in and out of consciousness. Everytime I protested, he told me that he could “really fucking hurt me”. It wasn’t difficult to pin me down.

My assault occurred in Kuala Lumpur. I was 3 months in to my cliche ‘gap year’ and I had a series of flights booked the day after to get me to New Zealand, where I would be living for a year.

In August 2016, I arrived in Wellington, New Zealand, and met with the Wellington Rape Crisis. I was put in contact with them through the British Consulate Office in Kuala Lumpur, and they immediately put me on their waiting list for support and treatment.

I spent the next year trying to rebuild my life on the other side of the world, having arrived in New Zealand with 26p left of my overdraft. I spent a lot of that time working, though I got to travel too. I fought against my insurance company for six solid months, though eventually I won. I can’t make out that whole year was terrible, because it wasn’t. I got to live and work in one of the most beautiful countries on earth. I furthered my career, built lasting friendships and even got to work with the WRC on publishing a ‘Survival Guide’ for travellers who are assaulted overseas, but I had to do all that whilst processing what happened to me with no support. I spent the entirety of my year in New Zealand on Wellington Rape Crisis’ waiting list.

In August 2017, I arrived back in the UK and contacted both East and South London Rape Crisis centres but was told that I could not get onto the waiting list at either. In September I moved to Tooting and was told by SLRC to try again in January 2018. That month, I also contacted my local MP, Dr Rosena Allin-Khan to discuss the lack of access to support I have been facing since my attack over a year earlier and the impact that must be having on survivors all over the country. She wrote to the Secretary of State for Health, Jeremy Hunt, and asked what steps his Department is taking to provide support to survivors of sexual assault when services are over-subscribed. He replied that “allocations for Sexual Assault Referral Centres have increased this year”. She also asked the Secretary of State for Justice, David Gauke, what he is doing to reduce general access times to rape crisis centres. He responded with “In 2017/18 the MoJ directly allocated around £7.2m as a contribution to 97 Rape Support Centres across England and Wales”

 And yet in March 2018, I was told once again that South London Rape Crisis waiting list remains closed.

This really isn’t just my story. In March 2017, the Crime Survey for England and Wales estimated that 646,000 of adults aged 16 to 59 experienced sexual assault in the previous 12 months. 2017/18 data published by Rape Crisis England and Wales shows that 78,461 individuals accessed Rape Crisis specialist services. The CSEW have not yet published their data for the same period but I think it can be safely assumed that the numbers will remain proportionately similar, meaning that nearly 88% of those sexually assaulted will not have accessed Rape Crisis specialist services. It’s going to take a lot to convince me that that 88% have been able to access support elsewhere, seeing as more and more services are having to shut down their waiting lists.

As such, 17 July 2018 is going to be a big day for me. Not only will it nearly be the two year anniversary since my attack, but I will also be addressing the All Party Parliamentary Group for Sexual Violence, who will be discussing the funding landscape for specialist sexual violence services.  Because I, and everybody else in that 88%, deserve answers.

Why should we be forced to wait months, if not years, on end for sustained support to help us process a trauma which was not our fault in the first place? Why should we endure ongoing nightmares or total emotional oblivion as we continue to sleepwalk through a world that continuously tells us it was our fault, with the knowledge that only 7% of our attackers will be convicted relentlessly pounding our skulls? I reported my attack as soon as I was safe. The police were provided with my medical report, clothes, access to CCTV footage of two different bars, witness statements which corroborated mine, GPS data of where my phone tracked me during the hours of my attack, and still my attacker was not caught. Why?

Why did they ask me what was I wearing? How much I’d had to drink? How many men I’ve previously slept with? Why I didn’t fight? Why I couldn’t remember the details of what happened when I was unconscious?

Why will they never get to ask my attacker why did you rape her?

This government, namely Jeremy Hunt and David Gauke, seem to think they have done enough to help women like me. I am here to tell them they are wrong because somehow, despite all of this, I am one of the lucky ones. In March this year, I was finally able to access support through my employer when I very rapidly crashed through rock bottom and found myself unable to go to work, or even leave the house. How many others in that 88% who have been unable to access Rape Crisis do you think can say the same? As a university educated, white female with a shiney corporate job in the city, I have been protected by a certain amount of privilege which has allowed me to get me to where I am today. What about everybody else? This government, like so many before them, is failing them all.

It has long been known that 1 in 5 women will be raped, or nearly raped in her lifetime. It is now abundantly clear that the vast majority of those women will not be able to access support services crucial to their recovery. Enough is enough. We all have a duty to fight this so I am asking you now, write/tweet/send an owl to your local MP and ask them if they will be attending the APPG on Sexual Violence on the 17 July. Ask them if they will hear my story and help me to create something positive from what has been an almighty shitshow of the last two years. Your MP will represent so many women with stories like mine, maybe even you yourself have a story like mine, so let those stories be heard.

Please don’t let me continue talking to an empty room.

Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

I am delighted to host a guest blog by James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP.

Readers may be aware of the events of recent days in relation to the campaign by Gina Martin to create a specific criminal offence to address “upskirting” (about which I wrote here). Last Friday saw the second reading in the House of Commons of the Private Member’s Bill introduced by Wera Hobhouse MP, and an objection to the Bill by Sir Christopher Chope.

The Spectator published a comment piece by Melanie McDonagh in which she wrote in support of Sir Christopher and against the merits of the proposed law. Here, two partners in Gina Martin’s campaign respond to that article. 

Upskirting is on the political agenda because of the tireless campaigning of Gina Martin, a 26 year old woman who was upskirted at the British Summer Time Festival last July. On Friday, to the shock of Parliament, Sir Christopher Chope blocked Wera Hobhouse’s Private Member’s Bill in support of Gina’s campaign.

After months of work by Gina’s campaign, Wera’s Voyeurism (Offences) Bill had earlier in the day been supported by the Government. With the Government on board it was widely expected that it would pass through the House and progress to committee stage, where details would be examined and amendments possibly made.

Sir Christopher put a spanner in the works by objecting to the Bill’s progress, a decision met with calls of “shame” from his Conservative colleagues. The disappointment and anger across the House – particularly among the Tory benches – was clear to see (and has been underlined by numerous subsequent tweets, and the Spectator’s own leak of Whatsapp messages between Tory MPs).

While the optics are poor, it is not fair to characterise Sir Christopher’s objection as being a defence of perverts. As he confirmed in conversation outside the chamber, Sir Christopher had not looked at the detail of the Bill and was not even familiar with upskirting. Sir Christopher’s objection is neither personal nor related to the Bill’s content. He objected because he feels that Private Members’ Bills should not be passed without debate.

Given the basis for this objection, a point of principle on the scrutiny of Bills in Parliament, we were perplexed to read Melanie McDonagh’s Spectator article “In defence of Christopher Chope’s ‘upskirting’ objection”.  McDonagh’s article (which is the most read on the Spectator website as at the time of writing) does Sir Christopher a disservice by associating him with a view that is utterly confused about both the current law and the proposed reform.

On the current law McDonagh states that “bad behaviour of this kind” – her euphemism for upskirting – is “dealt with under the offence of outraging public decency, as voyeurism”. This is legally illiterate. Outraging public decency and voyeurism are two entirely separate offences. To conflate the two is to miss the point.

Upskirting often takes place in populated public places. Outraging public decency, a common law offence which requires two or more people (other than the defendant) to be capable of seeing the act, is therefore available to prosecute most upskirting. But it is neither an adequate nor appropriate solution.

First, the offence does not provide full protection to women. If the prosecution cannot prove that two persons other than the defendant could have seen him take the “upskirt” photo, the offence cannot be used. So, for example, that if upskirting takes place when a woman is on a street or in another public place alone, no prosecution is possible. That is not acceptable.

Second, the offence does not reflect the wrongdoing. Upskirting is a sexual offence with a victim. The public are rightly outraged by upskirting but this outrage is secondary to the harm it causes. A charge of outraging public decency fails to acknowledge the harm to the victim, and fails also to recognise upskirters for what they are – sexual offenders.

The more appropriate offence of voyeurism is, in contrast, not generally available to prosecute upskirters. The reason: to prosecute for voyeurism the upskirting victim needs to have been observed doing a “private act”, which is not normally the case. This is why the Scottish Parliament modelled the Scottish offence of voyeurism on the English one but added extra provisions to that offence in 2010 to ensure it would cover upskirting.

As to the proposed reform as contained in the Bill, McDonagh says in her article that dealing with upskirting as voyeurism “sounds about right”. It might therefore have been expected that McDonagh would welcome the bill, that being not only the effect but the title. Not so. Instead, for reasons that are hard to fathom, McDonagh considers the bill to be a “preposterous exercise” that has been heroically “seen off” by Sir Christopher. You couldn’t make it up: McDonagh thinks (without realising it) that the bill is “about right” but characterises it as “preposterous”.

Continuing the theme in her views on sentencing, McDonagh inexplicably thinks upskirting does not “warrant” an individual being put on the sex offenders register (really?!). Consistent with her suggestion that upskirting is a minor irritation rather than the violation that it is, McDonagh also takes exception to the proposed two year maximum sentence, describing it as “excessive”. These points, she seems to suggest – with no basis – may have factored into Sir Christopher’s thinking. But we know that not to be the case (from Sir Christopher) and her points are again ill-informed: the bill makes no provision for sex offender registration (albeit that the Government had proposed to make this amendment at a later stage) and while voyeurism carries a maximum two year sentence, an offender prosecuted for outraging public decency could theoretically face a life sentence.

In defending Sir Christopher, McDonagh inexplicably seeks to ride two horses: insinuating on the one hand that upskirting is too trivial to warrant the attention of the criminal law, while on the other suggesting that prosecutors should target it with an offence allowing for life imprisonment. Which is it?

The Bill is on no view the “preoposterous waste of time” that McDonagh alleges.  It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law. Those who have engaged on the detail and know the relevant law agree: upskirting is a gap in the law and that gap needs to be filled with legislation that will allow upskirters to be prosecuted appropriately in all circumstances.

Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course, we understand his position. McDonagh, however, in seeking to defend that decision, does Sir Christopher a disservice by associating him with a series of ill-informed claims that he has never himself made.

James Chalmers is Regius Professor of Law at the University of Glasgow.

Ryan Whelan is an Associate at Gibson, Dunn & Crutcher LLP. Mr. Whelan has been advising Gina Martin on her campaign (pro bono) since August 2017.

Don’t wear skirts, and nine other ways people can protect themselves from crime

Today marked a milestone in the magnificent campaign by Gina Martin to persuade Parliament to legislate against “upskirting”, the intrusive practice of taking photographs of a person under clothing (usually their skirt) without permission. A Private Member’s Bill to create a specific criminal offence of upskirting was introduced by Wera Hobhouse MP, before being blocked by Sir Christopher Chope, and aimed to eliminate an existing loophole in the law which means that some instances of this behaviour cannot be prosecuted. This, it seems, was not welcomed by the man who brands himself ‘Mr Loophole’, solicitor Nick Freeman. Mr Freeman, channelling his best Aunt Lydia, tweeted:

The response was critical, to put it mildly. And I confess to being one to initially reproach Mr Freeman for his comment. However upon reflection, it might be that he has hit on something. After all, there are ways in which women – indeed all victims of criminal offences – might better help themselves, which are well-known to us legal beagles, but perhaps not to the general public. So in the spirit of public service, herewith some tips on how, by taking responsibility, we might all keep ourselves a bit safer:

  1. If you are a shopkeeper, take responsibility for the plague of shoplifting (section 1 of the Theft Act 1968) by locking all your produce in the stock room and keeping your shelves conscientiously empty.
  2. Save yourself from an impending physical assault by punching yourself on the nose. If the court can’t tell whether your broken schnoz was caused by you or by your assailant, they cannot formally declare you a victim of assault occasioning actual bodily harm (section 47 of the Offences Against the Person Act 1861).
  3. The legal definition of burglary includes entering a “building” as a trespasser (section 9(1) of the Theft Act 1968). A tent is not a building, so avoid the scourge of burglary by razing your provocative dwelling house to the ground and setting up camp in the front garden.
  4. Landlords, if you have any self-respect you will protect yourselves from drunk and disorderly troublemakers (section 91 of the Criminal Justice Act 1967) by barring all except your regular punters. And then bar them too, just to be sure.
  5. See that fluffy kitten? He’d be immune from all acts of cruelty under the Animal Welfare Act 2006 if only he weren’t so damn kickable.
  6. Nobody is blaming you for being a victim of witness intimidation (section 51 of the Criminal Justice and Public Order Act 1994), but if you will choose to witness a criminal offence and cooperate with the authorities, you have to be accountable for your decisions.
  7. While there is no excuse for racist abuse, victims could help themselves by trying – just trying – to be a different race.
  8. Yes, online banking fraud is bad, but knowing that it exists, shouldn’t you sensibly be eschewing the concept of money and transactional capitalism altogether?
  9. Murder is indefensible; however having your vital organs clustered together under such easily-perforated skin is a lifestyle choice of which you need to take ownership.

This post was first published in the i paper, here.