A comprehensive list of intimidatory acts that are illegal offline but legal online

Today on Radio 4, Home Secretary Amber Rudd was the latest government minister calling for an overhaul of the criminal law in the name of tackling “intimidation and aggression” on the internet. Her premise is that “what is illegal offline should also be illegal online”. This was repeated by Theresa May in a speech today in Manchester. The thrust of the complaint did not appear to be that existing laws are being poorly interpreted and enforced by police and prosecutors; nor that certain social media companies are famously reticent in providing information to prosecuting authorities; nor that the existing law is piecemeal and mishmash and could do with a jolly good refreshing and consolidating (all of which are undoubtedly true). Rather it was that there is a special quality to the law that means that certain threats or abuse made over the internet simply do not amount to a criminal offence, and that new laws are required pursuant to the Something Must Be Done Act.

Photo by Samuel Zeller

To help, I’ve cobbled together a comprehensive list of intimidatory acts that are illegal offline, but not illegal when committed over the internet:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[ENDS]


Footnote: The Law Commission has been asked to conduct a review into the existing law that will cover, among other things, this very issue. I am fully prepared to bow to the Commission’s wisdom if I’m wrong and made to look like a bit of a wally.

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Could Donald Trump be arrested for inciting hatred when he visits the UK?

The nominal President of the United States has had quite a week. My personal highlight was his absent-mindedly tweeting a confession to obstruction of justice, and then wildly thrashing around looking for someone else to blame for penning a tweet which was written both under his own name and in his own, inimitable, grammar-hazing style. His personal lawyer, John Dowd, was designated as the fall-guy, and dutifully announced to the press as he stepped in front of the bus that he, a practising lawyer with no prior reported involvement with any of Trump’s Twitter activity, had decided to commandeer Trump’s account and tweet something both staggeringly incriminating and legally illiterate (“pled” receiving as many raised eyebrows the other side of the pond as over here), seemingly apropos of nothing. As acts of self-sacrifice go, it was very Dark Knight. John Dowd is very much the hero Trump desperately needs right now, albeit not one he deserves.

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John Dowd

But that debacle has taken a back seat on these shores to the diplomatic cake-smash caused by Trump retweeting a racist British far-right group’s anti-Muslim videos and doubling down when lightly ticked off by the Prime Minister. The response has been vigorous. Calls for Trump’s State Visit invitation to be rescinded have reverberated throughout newspapers and in the Houses of Parliament. And some Members of Parliament have gone as far as to call for Trump to be arrested in the event he sets foot on British soil.

Which is where I come in. Because, while the image of Trump being wrestled to the ground CNN/WWE-Gif-Style and handcuffed on the Mall has an undeniable, gorgeous aesthetic, legally it doesn’t appear as plausible as some politicians assume it to be.

Is Trump guilty of inciting racial or religious hatred?

Possibly. For the uninitiated, Trump retweeted to his 44 million followers three videos posted on Twitter by Jayda Fransen, the deputy leader of “Britain First”, bearing the titles: “Islamist mob pushes teenage boy off roof and beats him to death!”; a “Muslim Destroys a Statue of Virgin Mary!” and “Muslim migrant beats up Dutch boy on crutches!” [They are not embedded here for obvious reasons.]

Parts III and IIIA of the Public Order Act 1986 provide for various offences of racial and religious hatred. Although popularly referred to as “racist”, Trump’s various denouncements of Muslims would not, under English law, amount to an act of racial hatred, the definition under the Act providing for:

hatred against a group of persons […] defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins

Muslims are not presently recognised as a racial group (unlike Sikhs and Jews); however they would qualify as a religious group (section 29A), namely:

a group of persons defined by reference to religious belief or lack of religious belief

and so would be protected by the corresponding provisions of the Public Order Act prohibiting acts of religious hatred.

Right, so what such “acts” are covered?

Firstly, there’s an offence contrary to section 29C of the Act of publishing or distributing written material intending thereby to stir up religious hatred. It is well-established that posting content online amounts for these purposes to publishing and/or distributing. Secondly, and perhaps more fittingly, we can see an alternative in section 29E – distributing, showing or playing a recording intending thereby to stir up religious hatred. Each of these offences carries a maximum sentence of 7 years’ imprisonment.

The next issue for resolution is whether in retweeting the videos Trump intended to stir up hatred towards a group of persons defined by reference to religious belief or lack of religious belief. “Hatred” is a term of fact, not law, and has its ordinary meaning. It usually requires an element of hostility. There is also an inbuilt statutory protection for legitimate free speech as follows:

Nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

So is Trump intending to stir up hatred?

The first observation is that the videos were posted by a woman with a conviction for religiously aggravated harassment, in her capacity as deputy leader of a group committed to resisting the supposed “Islamification of the UK“. Her purpose in posting them is plain. Trump has said and done nothing to suggest that he disavows or disapproves of that purpose.

Furthermore, were I prosecuting this imaginary trial, I would be making a lengthy “bad character application” to adduce Trump’s proud and extensive record of anti-Muslim comments and policy initiatives. The Muslim ban; his equation of Muslim refugees with ISIS fighters; his baseless claims about watching “thousands and thousands” of Muslims celebrate in New York as the Twin Towers fell; his proposals to shut down mosques; obsessive and spiteful attacks on London Mayor and Muslim Sadiq Khan in the aftermath of London terror attacks; his refusal to distinguish between Islamists and Muslims; the fact that he has, a week on, not deleted the re-tweets despite being informed, by the Prime Minister of Great Britain and Northern Ireland, no less, that Britain First is a far-right, Muslim-hating flock of lobotomites, and, particularly pertinently, that the videos do not even show what is alleged. Against this background, what possible other intention could Trump have, members of the jury, in disseminating these videos? It can only be to stir up hatred, in what one presumes is the satisfaction of the urges of his base of deplorables. If I were defending someone with Trump’s public record, I would be advising him in the strongest terms that this is an argument he is not going to win.

So the offence is made out, right?

Not quite. “Hatred”, if proved, is not the end of the matter. There is a final requirement with religiously aggravated offences, as opposed to racially aggravated offences, that the material in question be threatening, not merely abusive or insulting. Again, “threatening” carries an ordinary meaning. Were Trump’s tweets threatening? I’m struggling with this. They may have been designed to incite hatred, they no doubt play to the gallery of people who would seize upon the videos as justification for threats (or worse), but without more, I think that this threshold is difficult to meet.

What about the fact the alleged offence was committed abroad?

Cases involving internet communications, particularly where a party lives or a website is hosted outside of England and Wales, can be tricky. Put simply, the test for whether our courts have jurisdiction over an alleged criminal offence is whether a substantial measure of the alleged activity involved took place within the jurisdiction. The leading case is R v Sheppard and Whittle [2010] EWCA Crim 65, in which a defendant based in the UK used a remote Californian server to host a website publishing antisemitic material. “Almost everything in the instant case related to the UK, which was where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only foreign element was that the website was hosted by a server in California, but the use of the server was merely a stage in the transmission of the material”, held the Court of Appeal in finding that the “substantial measure” test was easily satisfied.

Trump’s position is slightly more complicated. Looking at the core of his tweets, there is certainly an argument in favour of a substantial measure of the activity having taken place here:

  • The video was initially shared and distributed by Jayda Fransen, a British citizen;
  • Fransen was, presumably, based in the UK at the time that she sent the tweet;
  • It was originally intended for a British audience, being tweeted in her capacity as Britain First member;
  • Trump’s subsequent tweet to Theresa May, refusing to apologise and impliedly standing by the videos, could perhaps suggest that this particular theme was aimed at a British, and not just an American, audience. (I’m not convinced on this point)

However:

  • Twitter’s servers for the USA are based in the US;
  • Trump is based in the US and appears to have been in the US when the tweets were sent;
  • He would no doubt contend that his retweets were intended for a domestic audience.

This would be a hurdle that I am not confident the prosecution would clear.

But apart from that, there are no other obstacles, right?

There’s the small matter of section 29L(1) of the 1986 Act: No prosecution for religious hatred may be initiated without the consent of the Attorney General. This is a concession won during the Act’s controversial passage through Parliament in 2005, designed to ensure that the legislation is not abused to stymie criticism of religion. What this means in practice is that even if the Crown Prosecution Service formed the view that there was sufficient evidence to prosecute and that a prosecution was in the public interest (the two-part test applied to all prospective prosecutions), political considerations could override that assessment. The Attorney General is a member of the cabinet, and thus unavoidably vulnerable to political persuasion. The Prime Minister’s views on the desirability of attempting to prosecute the head of a friendly state moments after rolling out the red carpet for a State Visit I can only guess at. But I would surmise that consent may not be rapidly forthcoming.

But if the Attorney General says yes, we’ve got him right?

Absolutely. Apart from the fact that, as a Head of State, Trump has immunity from criminal prosecution in England and Wales pursuant to section 20 of the State Immunity Act 1978.

This provision confers upon Heads of State, members of their families in their household and their private servants the same diplomatic immunity as is extended to embassy staff under the Diplomatic Privileges Act 1964, which itself incorporates the Vienna Convention on Diplomatic Relations. This is what allows diplomats to park illegally anywhere, run up thousands in parking tickets and hop on a plane with no risk of ever being pursued.

As Head of State, Trump enjoys immunity from criminal prosecution for acts committed both as part of his official function and in private. The only exceptions would be if Trump had committed something akin to torture or a war crime, in which case technical arguments arise as to whether immunity is overridden by international law, as the House of Lords considered in the late 1990s when General Pinochet attempted to avoid extradition for authorising torture in his homeland. In 2003, the Attorney General told the House of Lords that no action could be taken against Saddam Hussain in UK criminal courts as long as he was Head of State of Iraq. And the principle of state immunity was further confirmed during an unsuccessful attempt to arrest Robert Mugabe for torture in 2004.

So why, if we couldn’t arrest Mugabe on charges of torture, do some MPs think we can arrest Trump for sending some tweets?

That is a good question. It’s possibly something those MPs may have wished to ask themselves before their tubthumping hollers in the House of Commons for Trump to be arrested and prosecuted. Sort of a basic, one might think. But, sighing heavily as the credits roll and I smile wearily to camera, who has time these days for something as minor as checking the facts before speaking?

Bad law reporting and a public dangerously disconnected from criminal justice

The criminal law has long had an image problem.

Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.

But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.

The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.

While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.

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And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.

A run of sentencing “outrages” has followed.

The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?

Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.

Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.

The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.

There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.

But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.

Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.

This article first appeared on Legal Cheek, and is available here.

A reply to Lord Adonis on sentencing, prisons and judges

I’ll be honest, out of all the ‘robust debates’ I’ve had online about criminal justice and sentencing of offenders, I would not have expected the most frustrating, fiery and ill-informed to be with someone advocating for less use of prison. It takes a special talent, I would suggest, to present an argument in such a way that you manage to alienate those who agree with your conclusion. Arise for your special badge, Lord Andrew Adonis, former Head of Policy at Number 10 Downing Street and erstwhile Transport Secretary.

The past few days have seen Lord Adonis stagger around Twitter swinging aimlessly at lawyers and judges like a punch-drunk case study on a late night police reality TV show. Every effort to gently usher him into the back of the van for some calm, reasonable, evidence-based discourse is met with another wild lunge towards camera – he has now blocked nearly every lawyer on Twitter – compounding the schadenfreude of rubbernecking passers-by. Unfortunately for Andrew, his identity is not pixellated to spare his embarrassment; rather emblazoned across each and every one of his (increasingly peculiar) assaults on the “cobwebbed judicial system”.

Let’s start with the common ground: Adonis believes that we have too many people in prison. I agree. As do, I would expect, most people who work in criminal justice. The statistics are trite, but no less shocking for that: England and Wales currently has around 85,500 people in prison. We imprison more people per capita than any other country in Western Europe (146 prisoners per 100,000 citizens). We have more prisoners serving indeterminate sentences – sentences for which there is no guaranteed release date – than the other 46 countries in the Council of Europe combined. Sixty-nine per cent of our prisons are overcrowded. Violence has soared by 68 per cent since 2006, with a 32% increase alone between 2015 and 2016 (a total of 25,000 assault incidents). Assaults on prison staff have risen by 40% in a decade. Deaths in custody have risen by 38% in between 2015 and 2016. The horror correlates with the £1bn cut to prison budgets by the last government and the 30% reduction in prison staff. And whatever else prison is supposedly achieving, stopping reoffending is not it: 44% of adults are reconvicted within one year of release. For those serving sentences of less than 12 months this increases to 59%.

And numbers have increased steeply over the past two decades. The prison population rose by 90 per cent from 1990 to 2016. This is a recent, and peculiarly English-and-Welsh, problem.

For Adonis, the prescription is simple. The problem is the judges, whacking their gavels and sending people to prison for longer:

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Why are judges doing this? “Fear of tabloids”, Adonis posits:

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Extracts cannot really do justice to the tirade of tweets that Adonis launched towards the judiciary on this theme, and I’d recommend reading his Twitter timeline (with a glass of something stiff) to get the full flavour, but this is the nub:

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Now some of us hacks did indeed offer a defence of judges (who, by constitutional convention, are not permitted to speak out publicly to defend themselves). And we did so not because, as Adonis suggests, we have a desire to become a judge (I think I have successfully set fire to that particular lifeboat for myself through this blog and my forthcoming book), or because we think all judges are wonderful (SPOILER: They’re not – most are excellent, but some are significantly less so), but because we see criminals being sentenced every single day, and have a certain experience in this field. And I struggle to think of many cases I’ve been in, either prosecuting or defending, where I have suspected that a sentence has been inflated because of an eye on reporters in the public gallery.

As for Adonis’ experience, I did ask how many judges he had seen passing excessive sentences out of fear of tabloid retribution, but received the following, less-than-full response:

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The thing is, while to a layperson Adonis’ criticism would seem to make sense – judges are the ones passing these sentences, after all – a little knowledge of the law teaches that, to a large extent, judges’ hands are often tied, or at least lightly bound with handkerchiefs. That is because sentencing is not, as many might imagine from pop culture, an exercise in plucking a figure out of the air, whacking a (non-existent) gavel and intoning, “Take him down”. Crown Court judges are instead required to apply a horrendously complex morass of sentencing law and guidelines, which severely limit their room for manoeuvre. While they have discretion to pass a sentence that meets the justice of an individual case, it is a fallacy to presume that this discretion is at large.

Firstly, there are Sentencing Guidelines for most criminal offences, which judges are required by law to follow. We’ve looked at these guidelines in previous posts dealing with specific cases, but in short, they provide judges with a mixture of flow-charts and grids, setting out sentence “starting points” and “ranges” depending on which factors are present in a particular case. There is ultimately discretion built in as to where on the guidelines a judge pitches a case, but you can see for yourself that there is often not a great deal of wiggle room. Guidelines are set by the Sentencing Council, whose members are drawn from the judiciary, magistracy, legal practitioners, academics, police and the Director of Public Prosecutions. Guidelines are subject to public consultation, and the Council is accountable to the Ministry of Justice and has a statutory duty to consult with Parliament. The Sentencing Council is not, lest you be confused by Adonis’ complaints, a gaggle of judges operating under a cloak of secrecy.

Now I make clear – I do not agree with all of the guidelines. I think, for example, the way in which drugs are sentenced is largely ludicrous. A starting point of 4.5 years’ imprisonment for someone selling a few wraps of crack cocaine to fund their own habit is, with respect, the hallmark of a society that doesn’t have a clue what it is doing with drug policy, although the malaise for that lies with political culture at large, not the Sentencing Council. But even if you accepted Adonis’ view that the Council was a bunch of industry insiders fixing oppressively long sentences out of a desire to placate the red tops, it does not explain how, as Adonis postulates, it is fair to level cowardice charges at the several hundred other judges who are required day-to-day to follow the guidelines.

And, more importantly, judges must follow the law. Sentencing legislation is made by Parliament, which includes among its members Lord Adonis, as a member of the House of Lords. And judges have to follow the law set by Parliament. There is no discretion here. That is the essence of the rule of law and our basic constitutional settlement. I say this, because Adonis has suggested that judges should have “argued against” the government’s “policy” – by which he can only mean that they should have revolted and refused to follow the law that the government enjoined Parliament to make. So let’s get that sixth-form concept straight: judges have to follow the law set by Parliament.

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Now, as for what the law says, we can see that over the past two decades, politicians have scrambled to salute Michael Howard’s prison works squawk and increase the ways in which they can force judges to pass longer sentences. This included “mandatory minimum” sentences for repeat offenders – such as the 3-year minimum sentence for repeat burglars and the 7-year minimum for repeat drug traffickers – brought in by the New Labour government of which Adonis was a part. This same legislation – the Powers of Criminal Courts (Sentencing) Act 2000 – also introduced mandatory life sentences for offenders committing a second serious offence (a provision later abolished, re-imagined and re-enacted).  And there are many, many others.

But for now, I want to look briefly at one area to which Lord Adonis refers in the above tweet – indeterminate sentences.

In 2003, when Adonis was ensconced in the bosom of Downing Street as Head of the Policy Unit, New Labour brought forth the Criminal Justice Act 2003, a huge, unwieldy piece of legislation which did many things, including introducing the notion of Imprisonment for Public Protection (IPPs). You may have heard of these – they have been in the news recently, as people given short “minimum terms” of as little as 10 months ended up serving over a decade under such sentences. The way that IPPs worked in theory was as follows: The judge would set a “minimum term”, after which the defendant would be eligible for release on licence, as long as he could satisfy the parole board that he was no longer dangerous. If he could’t satisfy the parole board, he would be detained until he could, potentially forever. As it happened, the government decided that they couldn’t afford to provide the rehabilitation courses that prisoners were required to pass in order to satisfy the parole board, meaning IPP prisoners were trapped in a Kafka-esque nightmare. For this reason, the Court of Appeal found that then-Justice Secretary Jack Straw had acted unlawfully in failing to provide the rehabilitation programmes, and in 2012 IPPs were repealed (although those passed before that date remained).

Now when IPPs were first introduced, if a defendant convicted of certain violent or sexual offences was found to be “dangerous” – the legal test for which was that he posed a significant risk of serious harm to the public – an IPP had to be passed. The judge had no discretion – the law was clear. If the offender met the risk threshold, the judge was not allowed to deal with him in any other way. This, unsurprisingly, led to an explosion in prison numbers – around 3,700 prisoners were serving IPPs by 2007.

This was the law until 2008. Parliament, realising its error, then amended the legislation to give judges discretion as to whether to impose IPPs where certain criteria were met. The word “must” was changed to “may”, and the threshold for imposing IPPs was heightened, to remove the scenario of tiny minimum terms (one as low as 28 days) resulting in years being spent behind bars. And, given discretion, judges stopped imprisoning as many people under IPPs.

Why do I focus on IPPs? It’s because they are the prime factor responsible for the increased use of prison. As the Parliamentary statistics that Adonis himself cites shows (thanks to @ProfChalmers), the length of sentence for all offenders has remained relatively stable across the 11 year period (2005 – 2016) except for a notable increase in indeterminate sentences.

That is not to say that all IPPs imposed were rightly so. Judges after 2008 did have discretion, and no doubt there will have been instances where it can be argued that an IPP was imposed where it need not have been (and many such cases will have been argued successfully before the Court of Appeal).

But what this incontrovertibly shows is that far from judges imposing increasingly lengthy sentences “out of fear of tabloids”, it was in fact politicians – Lord Adonis and his colleagues – forcing judges to impose certain types and lengths of sentence that was the greatest contributing factor to the increased use of prison. As for why politicians felt compelled to act in this way, you would have to ask them. But it may be there that “tabloid fear” finds its rightful resting place.

As for other factors of note that we can identify, we can see from the chart above an increase in determinate sentences of over 4 years. We can also see over the past 16 years a surge in prisoners convicted of violent and sexual offences:

Partly, this will be because of the increase in violent crime. Partly this will be attributable to the fact that the CPS are prosecuting more sex offences than ever, particularly allegations of historic (or “non-recent”) sexual abuse. Neither of these factors have anything to do with the judges. And, faced with serious sexual or violent offending, the guidelines and the legislation make clear what judges are required to do.

Conclusion

Ultimately, this is a silly argument, given the broad area of agreement between Lord Adonis and most lawyers. But I waste my Sunday afternoon to unpick Adonis’ complaints, even though I think we are on the same side, because there is no point embarking upon a remedy if you have mis-diagnosed the illness. And what is increasingly clear from Adonis’ tweets is that he lacks some fairly rudimentary understanding of the legal system.

For example, he suggests that Lady Hale, as the new President of the Supreme Court should “call out the trend to ever longer sentences”, apparently oblivious to how the Supreme Court operates.

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Sentencing policy has nothing to do with the Supreme Court. The Supreme Court’s only role in criminal sentencing is to rule on the infinitesimal number of criminal sentence appeals that make it to the Supreme Court from the Court of Appeal. Why are so few criminal sentence cases heard at the Supreme Court? It’s because in order to appeal upwards from the Court of Appeal to the Supreme Court, either the Court of Appeal or the Supreme Court has to certify that “a point of law of general public importance is involved in the decision”. This is a high threshold, and excludes the vast majority of sentence appeals (which tend to turn on their individual facts, rather than wider points of public importance). If you think that this threshold is too high, and that more criminal sentence cases should be capable of being litigated before the Supreme Court, you know who you can blame? Either the Parliament which enacted s.33 of the Criminal Appeal Act 1968. Or the Parliament which created the Supreme Court and defined its jurisdiction under the Constitutional Reform Act 2005. Head of Policy Unit at Number 10 Downing Street when the Supreme Court was created in 2005? Andrew Adonis.

Nor, regrettably, can the Lord Chief Justice, who is head of the judiciary and president of the Court of Appeal (Criminal Division), which hears sentence appeals from the Crown Court, decide of his own motion to “cut most sentences”. What on earth does this mean? That every sentence appeal he sits on must be allowed, irrespective of merits, in order to achieve an overall reduction? That the current legal test that the Court of Appeal applies, allowing appeals against sentence where sentences are “wrong in law or principle” or “manifestly excessive” be lowered to something less? If so, that is not within the gift of the Lord Chief Justice alone.

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I fear that Adonis has a rather childlike conception of the interaction between our various courts. If the Big Judge at the top says something, then all the other little judges will do it, seems to be the gist. It is alas not that simple. Sentences will not become shorter across the board simply because Lady Hale decrees, a propos of nothing, that it should be so. It is the same simplistic view of the world that claims, with a straight face, that the judges should, somehow, have stopped Adonis’ government from doing the reckless and damaging things it did:

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The solution, unfortunately for Lord Adonis, lies closer to home. Politicians, who are paid to make the arguments, need to change the tone of public debate on criminal sentencing. The corrosive tabloid culture that Adonis rightly decries is not going away. Parliamentarians need to be brave, and confront the toxic narrative of longer sentences and prison holiday camps that has informed Ministry of Justice policy for the past decade. Constituents should be told about the realities of prison and its proven limitations in reducing crime. The Dutch model that Adonis has held up as an example should be advocated by mainstream politicians on prime time interviews, not relegated to social media spats between ex-policy wonks and lawyers. The statutory manacles forcing judges to impose long sentences for certain offences should be re-examined and, where appropriate, released. The Justice Secretary could consider using s.128 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which would allow him to change the test for releasing the 4,000-odd remaining IPP prisoners who have served beyond their minimum terms. The plan to double the powers of magistrates – non-legally trained volunteers – to imprison people, allowing them to lock defendants up for a year for a single offence, could be snuffed out. If short prison sentences don’t work, why not consider a presumption against their use, as proposed by the Lib Dems at the last election? The increasingly popular trend for the Attorney General to “refer” (appeal) sentences as “unduly lenient” to the Court of Appeal – and to feed the prison works narrative by boasting about its successes – could be challenged. There has been a 108 per cent increase in AG References since 2010, no doubt attributable in part to media campaigns whipping up anger at perceived “soft sentences”, opinions often formed in wholesale ignorance of the facts.

There is a lot that could be considered as part of a remodelling of criminal sentencing. And no doubt judicial inclinations will form part of it. I don’t deny that some judges use prison too readily; of course they do. They are subject to the same human frailties and cognitive biases as the rest of us. But it is Adonis’ eagerness to pin the bulk of the blame on the judiciary, and the unsubstantiated assertion that they habitually falter out of genuflection to the tabloids, that I consider to be unfair. Because as we can see, that is not where the real problem lies.

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POSTSCRIPT

In case anyone saw, listed amongst his various grievances with the legal system, the following tweet by Lord Adonis, I should like to make two brief points.

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  1. The Law Commission is a statutory independent body that conducts detailed research and consultations and makes recommendations, usually accompanied by weighty published reports, for changes in the law “to ensure the law is as fair, modern, simple and as cost-effective as possible.” The decision on whether to implement a recommendation by the Law Commission is for Parliament alone. Parliament. Which includes Lord Adonis. If “nothing changes”, the fault is entirely with the politicians.
  2. But it’s not right to say that “nothing changes”. Two thirds of the Law Commission’s recommendations have been implemented. For a look at exactly what recommendations have been accepted, implemented and are pending, there is a handy list here, with which Lord Adonis may wish to familiarise himself. A subsequent apology to the Law Commission for his ill-informed and intemperate tweet as a senior Parliamentarian would, he might feel, be the very least he can do.

Some thoughts on Charlie Alliston and death on the roads

I have been asked by several people what my views are on the tragic case of Charlie Alliston, the 20-year old cyclist who was this week sentenced to 18 months’ detention in a Young Offender Institution for causing the death of a pedestrian, Kim Briggs.

And to be honest, I’m not sure what I think. Or at least, I think a number of things, not all necessarily consistent and not all easily reducible to a pithy, logically argued conclusion. I recognise that this is far from ideal for a blog which pretends to self-righteous polemic and strident self-assurance as its hallmarks. But difficult criminal cases often fall between the cracks in our neatly-defined worldview, pinching our assumptions and stretching out our contemplations on our understanding of criminal justice.

And plainly this is a difficult case. A brief flick through the media coverage of this case, or, if you can bear, a hashtag search for “Alliston” on Twitter, offers but a snapshot of the ferociously contested issues arising out of his trial and sentence.

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There has been much said about the perceived “gap in the law” that meant that Alliston, as a cyclist, could not be prosecuted under the legislation covering causing death by careless or dangerous driving – such statutes requiring the use of a “mechanically-propelled vehicle”, which a bicycle is plainly not – and instead faced a rarely-used charge of doing bodily harm by “wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect”. This offence is set out in s.35 of the Offences Against the Person Act 1861, a Victorian statute presented by the media as hilariously rare and antiquated, notwithstanding that every offence of violence causing injury (short of death) is still prosecuted under it. Section 35, which admittedly is seldom used, requires only that a person be in charge of a “carriage or vehicle”, broad enough to include cyclists. In practical terms, this meant that Alliston faced a much lower maximum sentence – two years’ imprisonment – than that available for a motorist convicted of causing death by dangerous driving (14 years) or careless driving (5 years).

A further apparent anomaly is that the offence of dangerous cycling (without causing death or injury) covers only the manner of the cycling, whereas the offence of dangerous driving covers both the manner of the driving and the roadworthiness of the vehicle. In other words, if you drive a vehicle that is dangerously defective, that is caught by dangerous driving. In Alliston, much focus of the prosecution case was on the fact that his bicycle had a fixed rear hub but no front-wheel brake; it was a bike designed for the racing track rather than the road. The absence of a front-wheel brake was unlawful, but would not, under the current law, have of itself amounted to “dangerous cycling”.

It is worth remembering that Alliston did however face an alternative, more serious charge of which he was acquitted by the jury – manslaughter, which carries up to life imprisonment. Without digressing into legal complexity, it can be said that manslaughter is a difficult offence to prove in relation to road traffic collisions; hence the standard practice of charging causing death by dangerous or careless driving in most cases involving a fatality arising out of bad driving, with manslaughter reserved by the Crown Prosecution Service largely for cases where a vehicle is used as a weapon. We are in some difficulty in analysing the jury verdict given the lack of clear and accurate legal reporting on this trial, and in particular how the jury were directed to approach manslaughter (which can be charged in different ways), but some help might be gleaned from the assessment of Martin Porter QC, a campaigning cyclist who did not attend the trial but has offered his own summary of the applicable law here. Mr Porter’s conclusion is that the jury’s verdicts – not guilty of manslaughter but guilty of the lesser offence of furious or wanton etc – suggest that “[Alliston’s] conduct was not so self-evidently dangerous as to amount to manslaughter but that he had been a person having charge of a vehicle whose wilful misconduct had caused death”. The average non-lawyer may find this margin so fine as to be barely discernible, but it is by such fine borders that much criminal law is delineated. [As a point of disclosure, it should be noted that Mr Porter (about whom I have written before) has campaigned for more vigorous prosecutions of motorists, for the removal of juries from motoring cases to facilitate a higher conviction rate, and has offered a sympathetic treatment of Charlie Alliston often absent from his proclamations over motorists involved in fatalities, and so his commentary, while helpful, may perhaps not be entirely disinterested.]

Putting this all together, is a new law required? Possibly. It is right to say that Alliston’s is a rare case, hence the media excitement, and the truism that hard cases make bad law is no less true for its triteness. We should be careful not to reflexively legislate in response to high profile cases. But sometimes gaps are exposed – as I argued recently in relation to upskirting – and the law requires adjusting to move with the times. I do not know the ubiquity or otherwise of the Youtube phenomenon of “alley-catting” – driving fixed-wheel bicycles through city streets, contravening red lights and weaving in and out of traffic and pedestrians – which was found by the judge to have inspired Alliston. But no bespoke offence exists to prosecute the death or serious injury caused by bad cycling, and the introduction of corresponding offences that exist for vehicles – causing death or serious injury by dangerous driving – may be appropriate to ensure that such offences are fairly labelled and prosecuted.

As for the question of whether Alliston’s sentence – 18 months’ detention (detention being the equivalent to imprisonment for defendants aged between 18 and 20) – was too long or too short (a question I dislike for reasons I’ll come to) I suppose it depends on your viewpoint. The sentencing remarks, in which HHJ Wendy Joseph QC considers the few Court of Appeal authorities dealing with similar offending, appear comprehensive and well-reasoned. As a matter of law, based on the available information there appears little “wrong” with the sentence.

The remarks are also worth reading in full as a rebuttal to misinformation that abounds online about exactly what the evidence showed that Alliston did. There is something unedifying about the way in which Alliston has been adopted as a cause celebre by certain cycling campaigners, who have presented his case as an example of prosecutorial persecution betraying a disparity in treatment between this and cases where cyclists fall victim to drivers of motor vehicles.

For the avoidance of doubt, as Alliston was told by the judge: “It was not merely the absence of a front brake but your whole manner of riding that caused this accident”. He was not a conscientious cyclist afflicted by a momentary lapse of concentration or judgment. This was, in the judge’s words, a course of cycling amounting to “callous disregard for the safety of others”.

Alliston, a cycling enthusiast who had watched a number of “alley cat” videos on Youtube, had since 2014 deliberately chosen to ride a bicycle without a front-wheel brake, which increased the stopping distance by four times. Alliston knew the dangers, as he admitted in evidence that he would fit a front-wheel brake when weather conditions made him conscious of his own safety. He chose to ride without “for the thrill”. In January 2016, he upgraded to a bike that didn’t even have the facility to fit a front-wheel brake. He had no bell to warn other road users. He was, in the judge’s words, “an accident waiting to happen”.

When he came across Mrs Briggs on 12 February 2016, she having stepped out into the road as he travelled at 18 mph, he had no means of stopping. He shouted at her twice to “get out of the fucking way” and slowed to 14mph, but kept going, of the view that she should move. Other traffic meant that she could not. He struck her, she hit the ground and she suffered catastrophic, fatal brain injury.  A husband lost his wife. Two children lost their mother. Had Alliston’s bike been legal, he would have been able to stop.

His response was to post messages on line falsely claiming that Mrs Briggs was using her mobile phone at the time. He continued to criticise her decision to cross the road in front of him.

Transposing similar circumstances onto an offence of causing death by dangerous driving – an imperfect exercise, granted – it is possible to arrive at the conclusion that Alliston was fortunate that no equivalent offence and sentencing regime exist for cycling.

The (then) Sentencing Guidelines Council (now Sentencing Council) published Guidelines in 2008 for offences of causing death by driving. The very lowest category, into which this conduct arguably falls, provides a starting point sentence of 3 years’ imprisonment.

And this no doubt lends support to the argument for reform. It is arbitrary that if you are dangerously driving or riding a vehicle which has the capacity to and does cause death, your sentence depends on the precise vehicle being driven. To reach for a clumsy analogy, if you beat someone over the head with a weapon causing injury, your maximum sentence isn’t affected depending on whether you use a metal bar or a cricket bat.

But, finally, what this case evokes, and what it is perhaps easy to forget, is how blunt a tool the criminal law is in dealing with so many cases of deaths on the road. Alliston is, in this narrow respect at least, an easy case. His culpability was high. He was a deliberately bad road user. He may not have meant to kill, but his overall conduct is blameworthy and deserving of criminal sanction.

But many road users involved in accidents are not. Even those involved in serious, life-changing, life-ending collisions. Feeding back into the complaint of cyclists, this is the most common reason for a lack of criminal charges. Causing death alone is not enough to found a prosecution. There has to be culpability – for motorists, they have to be either careless – driving below the standard of a competent and careful driver – or dangerous – driving far below the standard of a competent and careful driver.

Almost always, causing death by dangerous driving will lead to prison. But devastation caused by careless driving – which often arises during momentary lapses in concentration or judgment behind the wheel – presents the hardest cases. The harm caused can be the greatest in the criminal spectrum. But culpability can be among the very lowest; barely criminal. A sharp intake of there but for grace of God breath.

In such cases, what do we do? For many of us, the default, culturally-ingrained response is to call for prison. But if we pause and ask what we are trying to achieve by so doing, we may get back an echo rather than an answer. Often in these awful cases, the standard ‘purposes’ of criminal sentencing won’t apply. The guilty driver may not need rehabilitation; or at least certainly not that which is available behind the prison gates. Deterrence, even if prison sentences were shown to achieve this, is difficult to impose on momentary lapses in concentration. There is little meaningful restitution that can be realistically made to the victim or their family. Public safety rarely demands the individual’s immediate incarceration.

Which leaves us only with retribution. And how on earth do you quantify it in such cases, where culpability is so low, and harm is so high, and we are often dancing on the margins?

Presently the law tries to accommodate this by compromising. And the essence of a good compromise, to channel Larry David, is that both parties are left unhappy. Short prison sentences or community orders – the usual sentence for causing death by careless driving – must sometimes feel to the bereaved almost worse than no sentence at all. But there is no way of even beginning to reflect the harm caused where life is lost without disproportionately punishing the culpability.

Nevertheless, in cases where minor culpability leads to devastating harm, it can feel as if this is all the system is trying to do; bluntly punish, in the hope that in some, intangible way it will satisfy our collective need for something to mark the pain.

As I said at the outset, I can’t offer any solution. I doubt many can. Perhaps that is the unsatisfactory pseudo-conclusion for which I grasp as I close; that any claim to draw easy fixes in the wake of difficult cases should be regarded with a measure of suspicion. There are rarely easy answers in criminal justice; no more so than in tragedies where we are desperate to find someone to blame.

The Grenfell Inquiry needs facts, not fearmongering

Yesterday I wrote something for the New Statesman on the Grenfell Inquiry and the political fearmongering over the appointment of Sir Martin Moore-Bick.

The piece can be found here:  http://www.newstatesman.com/politics/uk/2017/07/grenfell-inquiry-critics-martin-moore-bick-are-dabbling-fearmongeringp

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Guest Post by Simon Myerson Q.C.: An alternative proposal concerning sexual offences and consent

In March 2017, Harriet Harman proposed a legislative amendment to section 41 of the Youth Justice and Criminal Evidence Act 1999, which would have the effect of prohibiting at criminal trials any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence. This week, Ms Harman reportedly confirmed that she was pursuing this amendment, and I provided my thoughts on why this is a dangerous and ill-thought out idea here

Back in March, criminal silk Simon Myerson Q.C. took the time to correspond with his MP, Anna Turley, over the planned amendment. He has very kindly permitted me to republish his note, in which he addresses the flaws in Harman’s Law, and offers his own proposal on how perceived shortcomings in the prosecution of sexual offences involving the issue of consent might be addressed. I understand that Anna Turley MP has yet to respond.

Simon Myerson Q.C.

Rape and Section 41 YJCEA 1999

Current Position

S41 Youth Justice and Criminal Evidence Act 1999:

  • Re consent, no cross-examination about Complainant’s (C’s) sexual behaviour without court’s permission.
  • Permission only if:
    • A conviction would otherwise be unsafe; and
    • Relates to behaviour at same time or is so similar that it cannot be explained as a coincidence; and
    • Must relate to a specific incident or incidents.

 

Suggested Amendment

To ban such evidence in all circumstances.

 

The Result of the Amendment

Necessarily, to ban evidence which might prevent an unsafe conviction. There is no way around this conclusion.

To remove from the judiciary the freedom to determine what makes a trial safe and to replace that freedom with a direction from the legislature that unsafe convictions are acceptable in rape cases.

 

The Problem

This should be self-evident. But it would create the additional problem that, in cases in which cross-examination would currently be allowed, were this amendment passed, the Judge would still be entitled to stop the case on the basis that the accused cannot have a fair trial. The Court has an inherent jurisdiction to do so, but is also constrained by Art 6 ECHR, which provides the right to a fair trial. The refusal to admit evidence that may mean the prosecution cannot prove its case is patently unfair.

 

The Reality

There are essentially 4 types of rape for these purposes:

  • Genuine ‘stranger rape’ where a woman is violently assaulted. Very rare and almost always result in conviction because consent rarely the issue.
  • Semi-stranger/friend rape. Typical scenario – meet on night out. Woman gives good evidence of not consenting. Again, relatively few problems in obtaining conviction.
  • As above but everyone drunk. See below.
  • Marital/relationship rape. Has difficulties but not really the focus because lack of consent proved by other factors – fighting, separation, confiding in family etc.

The real issue is the drunken night out. Can we leave aside political considerations here please? I have 4 daughters and I most assuredly tell them that rapists cause rape. I also tell them that the best way to avoid rape entirely is to take personal responsibility for themselves by staying relatively sober, texting regularly (family or friends), not leaving without telling someone and saying who with and not having sex unless they know the person.

What typically happens is that a group go out together. They all get drunk – so drunk that the next day they cannot remember what happened with any clarity. Frequently, one girl gets detached from the group. They do not know where she is and often do not look. She goes off with a man, consensually. That can be seen on CCTV. They go somewhere together and he has sex with her. The next day she is appalled. She may very well not have consented. She says she didn’t. She also says he tricked her into coming with him/has no idea who he was/didn’t want to be anywhere near him. The CCTV shows that at least some of that is wrong. She is cross-examined on the basis that a) she wants to get him into trouble to excuse her own shame and) she can’t remember anything, including giving consent. He says that she consented.

Another scenario: the group leave together with a group of lads, or some new lads they’ve met that evening. They go back to someone’s flat. Some kissing happens. Then a lad takes a girl into a bedroom. Same thing as above. The friends all remember the kissing. No one knows the rest of it, or they are so wasted they can’t remember.

That is the depressing reality. Of course, drunken consent is not consent. But the prosecution must make the jury sure that the man did not reasonably believe in the consent. He says he asked and she was all for it. If he is disbelieved, he is convicted. But it is terribly difficult for a jury to disbelieve him when the woman herself does not remember what happened. Q: “Is it possible that after a good evening, you may have said to him that you wanted sex, even though in the morning you would not have said yes?” If the answer is yes, it’s an acquittal. If the answer is no but the jury don’t believe it, it’s an acquittal.

 

Notable Point

S41 is nothing to do with this at all. S41 arises in a very small number of cases and is granted in even fewer. There is what purports to be as study carried out by a group appointed by Vera Baird. I’ve read those cases. There are 15 – a tiny fraction of rape cases and far too small to be anything more than an anecdotal collection. Of those 15 only 3 involved S41 applications. I would only have granted 1. S41 is not the problem.

S41 is important because it guards an accused – who we remind ourselves is an innocent man until convicted (I always find it helps to think of him as my father) – who describes behaviour that is so exceptional that the evidence of C that she did not consent, should properly be assessed against the evidence that she indulged in the same behaviour on an occasion when she did consent. The argument is that if she consented on that occasion, isn’t that evidence that she consented on this occasion. It is an argument, no more. The jury can reject it. But the evidence is admitted if the Judge decides they could accept it and that, in those circumstances, if they did not know about it, they may not be making a fair decision.

In the Evans case, the evidence was admissible because a) it was an account from 2 people on separate occasions each other and the accused that C was capable of having sex when very drunk; and b) that she was an active participant using the v precise words and positions described by the accused. That went both to the issue of whether this was non-consensual at all (C had never said so – merely that she did not remember), and whether the accused might reasonably have believed in consent if so.

Without that evidence Evans was convicted. With it, he was acquitted. What Harriet Harman seeks to do is to preserve the position where someone is convicted, even though the evidence might lead to acquittal. She wishes to do that by preventing the jury even hearing that evidence, because she has decided it is wrong to let them do so. That is neither her job, nor remotely appropriate.

 

The Bad Arguments

Why should the current position be changed? There is no evidence that it results in unfairness on the current law as it stands. Research shows that juries do understand the evidence they hear and the directions the judge provides.

Thus the arguments should focus on the law. Is the offence of rape sufficient to include occasions where a lack of consent cannot be proved, but the way in which the man has behaved plainly takes advantage of the woman’s position at the time?

However, Harriet Harman’s argument does not focus on the law. It focuses on manipulating the current procedure so as to alter the result. Once we permit politicians to prevent the admission of evidence because the evidence produces the ‘wrong’ result, we will not be able to resist it happening again. Ask yourself, what would Farage do with such a provision and alleged Islamic terrorism? Should we refuse to permit juries to hear evidence that bankers had seen senior figures doing the same things as had led them to be charged with dishonesty, and had thus concluded it was not dishonest? Evidence such as this is not a defence unless the jury accepts it. If it is rejected the conviction is fair. But a conviction that does not allow a jury to hear that evidence is unfair.

Moreover, the basis of the argument rests on the belief that jury verdicts are regularly ‘wrong’ and the procedure should thus be tampered with, to achieve the ‘right’ result. That is neither healthy nor proved. We assume that once delivered, jury verdicts are correct, unless the summing up is wrong. The jury’s deliberations are sacrosanct. How on earth is it possible to assume they are wrong?

And, if they are wrong, then the logical answer is to have trial without jury. Fiddling with the procedure, if juries do not get it right, is hardly a courageous answer. Rather, it is a fudge, which imperils rape victims because it still leaves them open to injustice, and everyone else – either for the same reason or because it encourages executive action to restrict the evidence a jury can hear.

 

A Possible Solution

In reality, juries probably get these decisions right. The difficulty is that we have a crime in relation to which the prosecution must prove the negative – that the accused did not reasonably believe C consented.  

A further difficulty may be that sentences for rape are very high. Many lawyers believe (admittedly on no very good evidence) that this makes juries even more reluctant to convict. Or, perhaps, it means they take being ‘sure’ very seriously.

An answer is an offence that takes consent away.

Taking sexual advantage is a possible offence in this way:

A man (M) commits an offence if he penetrates another person (using the existing language of the Sexual Offences Act 2003) in circumstances in which, whether that other person has indicated consent or not, a reasonable observer would conclude that M could not be sure that consent was either voluntary or informed, and that M took no reasonable steps to ascertain the real position.  

I do not pretend this is necessarily flameproof as it stands, and it certainly needs further thought. But it represents a real attempt to transfer the risk of drunken stupidity to the penetrator not the penetratee. It would be mitigation that the man had believed the woman had appeared to consent but it would not be a defence unless M was sure that there was consent having taken reasonable steps to check. If the woman can’t say yes, or says yes because of drink, or isn’t sure what happened, that would all be sufficient to convict. The sentence would, necessarily, be less. The conviction rate would, I believe, soar.

 

Simon Myerson Q.C. practises from St Paul’s Chambers, Leeds and Byrom Street, Manchester, and specialises in Civil and Criminal Law. He is currently representing 40,000 Kenyans in their claim against the Foreign Office relating to events during the Mau Mau Emergency in the 1950s. Simon tweets at @SCynic1.