A thread I wrote yesterday following a decision by a Crown Court judge in Woolwich. It may sound like a technical legal issue, but the practical effects for public safety could be devastating.
The original tweet that sparked the thread is here: https://twitter.com/crimelinelaw/status/1290563065684074496?s=21
My thread is here:
I am pleased to host this guest post by The Tartan Con, a leading prison reform blogger.
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The Ministry of Justice issued a press release on the 28th of June announcing the news that they were to build 4 more prisons over the next six years. (To read this wonderful piece of self-promotion click here.)
This is in addition to the two new builds underway at Wellingborough, near Northampton and Glen Parva in Leicestershire. This therefore gives England 6 new prisons within the next 6 years
Let’s cast our minds back to the hazy old days when Liz Truss, who was the then Secretary of State for Justice, announced the building of 4 new prisons. In that release (a copy can be found here) she stated the, then, government’s intention was to build 5000 new spaces which would create 2000 new jobs. More importantly, this announcement was touted as being “new for old.” Meaning that there would be closures of the more Victorian, not fit for purpose, gaols that riddle the prison estate and lovely new ones would take their place. So, new shiny prisons were announced, sites had been identified and, off we go. At least, that’s what I thought.
Local communities were up in arms at having a prison located near them. Because, well, prisoners are awful people and they were sure to scale the 20 feet walls, leap over the barbed wire and pillage the local community, weren’t they? Town Hall meetings were held, placards were made, leaflets distributed and NIMBY’s (not in my back yard’s) sucked their teeth. Eventually, planning applications were withdrawn. Therefore, as is the case with most of the government’s new initiatives, the idea of building more jails was soon to be consigned to the trash can of history.
Some two Justice Secretaries later and bids were to be invited from the private sector for the operating of a new prison to be built on the site of the old HMP Wellingborough. Later this year bids will be invited for the operating of a new prison at the old HMP Glen Parva site. Both of these prisons are being financed with taxpayer money and indeed in 2018 the government announced a ban on prisons being built using private company’s money and that all building would be publicly funded from thereon in. The operating of these two prisons, however, will be carried out by the private sector; with the operator of the first prison being announced in the very near future. Thereafter tenders will be asked from, again, the private sector for Glen Parva. The government has yet to announce whether the next onslaught of warehouses – sorry prisons- will be privately managed or publicly run. I am not going to go into the pros and cons of private versus public; save to say that the government have said that at least ONE out of the four will be publicly run. Kind of gives you an idea of what the government think of our state-run prison service, doesn’t it?
Those of you that know me, know that I am not an abolitionist, I actually see the need for prison. If someone has been found to be such a dangerous a person that they cannot live in our society then democracy says that we must remove that person from it. However, the government’s announcement seems to me to have been issued with some glee; almost as if they’re proud of the fact that the UK incarcerates more people per capita than any other country in Europe, save for Poland.
It is as if they are saying “Look what we are doing, we are building more prisons, this will keep society safe!” I paraphrase of course, the actual release states “Four new prisons are to be built across England over the next six years – boosting efforts to cut crime and kickstart the economy.”
Let’s take a look at that statement, shall we? “Cut crime.” How does building a prison cut crime? It does not. It purely houses people that have committed a crime. What it does allow for us to do; is to jail more people. The government has been rather sneaky here, and I know that must have come as a shock to you, but in the release given by Liz Truss she deliberately mentioned that she would be closing old prisons that are not fit for purpose. Yet Richard Heaton (he of the civil service) admitted on 29thJune this year whilst giving evidence at the Public Accounts Committee, that the government has no intention of closing any prisons, Rather, they plan to increase current estate. I believe he even said, when trying to justify building more prison in order to reduce over-crowding that “We don’t have overcrowding in our prisons, rather we have crowding.” Ladies and Gentlemen, I give you this year’s winner of the Humphrey Appleby award for civil service jargon.
I am comforted, however, that the latest press release from the MOJ informs us that the new prisons will have concrete walls! I kid you not! Here was me thinking that polystyrene blocks would have been more economical. Additionally, thank goodness for their ingenuity of using pipework to deliver the water! The Oxygen thief that wrote this press release needs to find another vocation in life (and perhaps a hug). The bar-less windows are a nice touch, though!
The act of building new prisons stupefies me somewhat. Let’s look at the case of HMP Berwyn; the last prison to be built by the government that opened in 2017. It was heralded to be the “prison of the future”, yet it only holds about 75% of its capacity. It’s that bad that even the workshop provider, that bastion of bailouts, Interserve PLC allegedly tried to get out of the contract and only opened one of the two workshops proposed. This therefore means that a large proportion of the residents have no purposeful activity at all. Rather they languish in their cells watching daytime television, becoming experts on how to buy and sell antiques and how to buy a house at auction and renovate it on a small budget. If this is the “future” it doesn’t bode well for the new prisons, does it?
Building 6 more prisons isn’t an accomplishment of which to be proud. It’s admitting failure on a colossal scale. Prisoners fall into many categories and lumping them into a prison for “x” months and hoping that after “y” months of inane boredom, attendance at courses that are ill-equipped to help, stuffing balloons into plastics bags for 12 hours a week as a job and being locked in a cell for @16 hours a day just isn’t going to make society any safer. These people who are jailed are going to be released one day. Who knows they might even be the NIMBY’s next-door neighbour? Think about that, won’t you? The next time you say, “lock them up and give them bread and water” remember that the serving prisoner today could be your next-door neighbour tomorrow.
Prisons need to be decent, safe, clean places where we place those who have committed such heinous crimes that are so are abhorrent to us that we cannot face them. They must offer to help the person remanded to a term of incarceration that ability to start rebuilding themselves, if they so desire. In my opinion, the only way to cut crime is to get to the root cause of why that person commits the crime in the first place. A person must not be sent to a prison as a place of safety by a magistrate or judge. Prisons must not be used for those souls who are disturbed, addicted to substances or victims of historic abuse; to name but a few real maladies. We must stop sending people to a prison, located in the middle of nowhere and miles from their families, as the first option. The sooner the judiciary realise this, the sooner we can stop building warehouses for society’s forgotten many.
I wish the government well in their expansion plan. I only wish that it would have stuck to its word and that we could have closed some of the Victorian hell holes that blight our countryside today. Those edifices of despair in which we place our fellow citizens for an inordinate amount of time and then turf them back ono the street hoping that they will not reoffend; all the time getting upset with them when they do. But if they continue to try and build themselves of the problems of society as opposed to facing them; I will be there to help pick up the pieces of the fallen few and at least I can visit them in bar-less window lined cells with a good concrete wall!
Thomas Paine once wrote that “when our jails are empty and our streets free of beggars, then can a country be proud of its constitution.” Our jails are full, and our streets filled with those just trying to survive. Not much to be proud of, is there?
I am pleased to host this guest blogpost by Dr Laura Janes and Andrew Neilson. Dr Laura Lanes is the legal director at the Howard League for Penal Reform and oversees its specialist legal service for children and young adults. Andrew Neilson is the director of campaigns at the Howard League for Penal Reform.
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It is scary to think how quickly we get used to terrible things. Just a few months ago, many of us anxiously watched as the number of people who had died from the Coronavirus approached one hundred, then a thousand. Since March we have become so acclimatised to the new horrific reality that we see less than one hundred deaths a day as comparatively good news.
For several years the Howard League has been concerned about the use of solitary confinement for limited periods of time on individual people in prison.
In 2017 we brought a judicial review on behalf of AB, a child who routinely spent 23 hours a day confined to his cell for 55 days when he was just 15 years old at Feltham prison. The Government conceded much of the claim, as it had failed to comply with its own procedures which are designed to ensure appropriate safeguards are in place given the serious and irreversible risks associated with solitary confinement. Whether what happened to AB was inhuman and degrading will be examined by the Supreme Court next year. Following our case, numerous professional and scrutiny bodies including the BMA, the Royal College of Psychiatrists, the Joint Committee on Human Rights and the Chief Inspector of Prisons expressed grave concerns about the practice of keeping children in solitary confinement in prison, noting it happens too often and for too long.
But what has concerned a relatively small number of prisoners, has now become the new normal.
Some 80,000 men women and children in prison are either in prolonged solitary confinement or in overcrowded conditions. In a single day, 24 March 2020, the prison service went into lockdown and over 80 days on, it remains in that state. Prisons are devoid of purposeful activity and opportunities for people to make amends. The children in prison have had no education, rates of self-harm in women’s prisons have increased and the entire estate has been starved of contact with the outside world. Open prisons no longer serve their function of preparing people for the community.
In a letter to the Justice Committee Dame Anne Owers, Chair of the Independent Monitoring Board highlighted a number of concerns, including reports of increases in self-harm, self-inflicted deaths and violence in some prisons. She reports particular concerns about the “cumulative impact of lockdown, particularly on prisoners who have, or are developing, mental health conditions.”
Children and young people in prison call the Howard League’s legal advice line every day. They tell us about their experiences, confined to cells the size of a car parking space, worried about their parents and grandparents. Many have lost all sense of time due to being confined to their cells for 22 hours or more a day. One young person described feeling constantly hungry due to the restrictions on the additional food that teenage boys can usually order from the canteen system and regularly rely on to supplement the meagre prison diet. He told us he sleeps all day to try and forget his hunger. A child, who until recently was leaving prison each day to attend college on a temporary licence, described the experience of prison now as “just waiting.” These experiences are typical. Both young people were also typical – young black boys. The secure estate for children is a manifestation of discrimination – half of all children in prison are from ethnic minorities, compared to their making up only around a fifth of children from 10-17 in the wider population. A third of children in prison are on remand, two thirds of whom will not go on to get a prison sentence.
We subsequently discovered that on the same day that prisons went into lockdown, ministers had received advice that as many as 3,500 prisoners might die – one in twenty of those in prison – if action was not taken to reduce the prison population by 15,000. In response to this advice, the Ministry of Justice locked down our prisons immediately and announced on 4 April 2020 that it would release some 4000 prisoners on temporary licence under electronic tag. It has recently emerged that the Ministry of Justice entered into contracts with private providers to supply these tags at a cost of £4,000,000.
This information only came to light after the Howard League, along with the Prison Reform Trust, took the unusual step of challenging the government’s failure to follow through on its promise to release the 4000 prisoners.
By 17 April just four people had been released under the Covid temporary release scheme. The two charities served a letter before action on the government setting out our concerns and threatening to serve proceedings if the government did not respond satisfactorily. The thrust of the challenge was that it was irrational and unlawful for the government to announce it would release a substantial number of prisoners to save lives in response to the threat of COVID-19 but not to have done it.
In response to this letter before action, the government provided a detailed letter explaining that the advice had changed and that while the release programme had not been abandoned (indeed, we were told a further two hundred applications had been approved), a high volume of releases was no longer required. Instead a range of strategies were being employed to protect lives of people in prison. The government disclosed more than a dozen key documents to us on 28 April to support its arguments and subsequently gave us permission to publish its response and the documents it disclosed. In light of this, it could no longer be said that the government’s failure to release thousands of prisoners was irrational and we took the decision not to issue proceedings at that point in time.
As well as the original PHE advice from March, the government produced subsequent advice dated 24 Aprilwhich found early emerging data that the ‘explosive outbreaks’ of COVID-19 in prison which were feared at the beginning of the pandemic wave are not being seen. Accordingly, PHE revised its estimate of prisoner deaths from the virus from up to a reasonable worst-case scenario of 3,500 to a best-case scenario of around 100, provided severely restricted regimes remain in place for up to a year. As the courts return to business, we will see the prison population increase. It is unclear how the methods that have been used so far to contain the virus will be manageable with an influx in people entering prison.
The release scheme has not been abandoned but it remains painfully slow – as of 29 May 2020, just 128 people had been released. This is despite the fact that a month earlier we had been told that some 200 applications had been approved.
Where does that leave us? The decision not to release a substantial number of prisoners under the temporary release scheme may no longer be so unreasonable as to be irrational but its consequences are cruel. As our latest letter to the Justice Secretary highlights, the current situation is inhumane and untenable. It is also unlawful and is likely to result in untold and potentially irreversible harm to some of the most vulnerable in our communities. Let’s hope the government takes action and we do not need to initiate another legal challenge.
The Howard League has published all its correspondence on the prisons and Covid on a dedicated page on its website.
I have written something for The Guardian about our politicians’ rush to create new criminal offences protecting statues. The piece can be found here.
I have written something for today’s Guardian. You can find it here.
Hope you’re all staying safe.
SB x
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.
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.
During a short-term national crisis, the CJS must provide two key functions:
We suggest the following principles for the operation of courts:
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)
The current system presents 3 distinct problems:
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.
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
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.
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.
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:
How might this work in practical terms?
Following feedback from practitioners, a few other points are worth noting:
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.
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.
Something I wrote for The Guardian about the tough-on-crime rhetoric at the Conservative Party Conference is available here.
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.