Will Quince MP: An addendum

This serves as an addendum to the previous post, but I thought it was worthy of attention in its own right.

To those who missed it, a brief recap: Will Quince, MP for Colchester, publicised a letter he had sent to the Lord Chancellor, in which he expressed his view that a sentence passed in a local Crown Court on two burglars was unduly lenient, and invited the LC to agree. I took umbrage at the fact that this settled criticism had been formulated without knowledge of the full facts of the case, nor any acknowledgment of Sentencing Guidelines that judges are required to follow, and wrote a fairly impolite and intemperate rejoinder.

Mr Quince and I corresponded on Twitter, and having reflected I updated the post and apologised to Mr Quince for its original tone. Since that time, we have exchanged emails and discussed matters further. Mr Quince has then yesterday sent this letter to the Lord Chancellor, Attorney General and Bob Neill MP, Chair of the Justice Select Committee:

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The letter speaks for itself. And, if he will forgive me saying so, it also says much positive about Mr Quince.

Although (for the reasons expressed in the last post) it appears to me that the Sentencing Guidelines were properly applied in this case – and that a comment from the Lord Chancellor on a specific case is unlikely – I obviously cannot and do not take issue with him posing the question and seeking further information. It is similarly entirely proper for him to reflect the concerns of his constituents and to ask whether the Sentencing Guidelines, as presently drafted, command public support. He is not alone in his concern that Sentencing Guidelines sometimes betray inconsistencies and appear out of kilter with public expectations; many in the professions would agree. For completeness, I would add that the links to the public consultation exercise that informed the Burglary Guidelines can be found here (with an explanation of the role and functions of the Sentencing Council here).

It is rare for a public figure, when challenged or corrected on the way they have represented the law, to admit an error or a rush to judgment. It is even rarer for them to take steps to publicly adjust their position.

It is to Mr Quince’s enormous credit that he has done so with such speed and candour, not least given that I did not initially engage him in particularly cordial terms. For that, I again apologise. It is too easy to assume that all MPs who opine misleadingly on the law do so with the chronic, wilful ignorance and boastful obstinance of Philip Davies, rather than to countenance the possibility that this is a human being making a mistake in good faith. I am grateful to Mr Quince for, through his conduct over the last few days, reminding me of this.

Were the judges “incompetent f****-ups” to refuse Marine A bail?

There is a risk, I am acutely aware, of this blog appearing to transmogrify into The Secret Judicial Cheerleader. Which it is not. By way of pre-emptive self-defence, I should point out that much of my professional life is spent politely pointing out to judges why, in my respectful submission, the course they are thinking of taking, which just happens to be adverse to my client, is wrong.

And sometimes, I dare say I’m even right about that. Because judges are fallible. From magistrates – especially magistrates – through to Supreme Court Justices, errors in reasoning and application of the law occur. And people far brighter than me forge glittering careers appearing in the higher courts, and publishing brain-stretchingly clever academic criticism, telling judges just how wrong their brethren – or they – are.

But what those types of argument have in common is that those making the case against judicial decisions do so in full possession of the relevant facts and law. Which is a precursor, you might think, to entering any debate, whether in court, print media or online. Know what you’re talking about. If you’re not sure why something happened, pause and find out, before leaping to the settled conclusion that, because that something instinctively offends you, it must be wrong. Or unjustifiable. Or evidence of systemic corruption. Or proof of some other cosy conspiracy theory.

It’s rather sad that I feel I have to open with such obvious points, but increasingly it becomes clear that they escape many who wish to inflict their opinions on their large, and often inexplicable, followings.

And so to Marine A, or Sgt Alexander Blackman. I touched on his case a few days ago, when his application for bail pending his appeal against his conviction for murder was adjourned. Yesterday the Court Martial Appeal Court (CMAC) heard the bail application, and refused it. The appeal will be expedited and listed as soon as possible next year, but the appellant will not be coming home for Christmas.

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On cue, a band of merry speaking heads sprang up, Whack-A-Mole style, to denounce this decision. That so many did without being in court and before the Court published its judgment perhaps tells you something about the factual soundness of their premise. A choice few include:

So what happened? As a brief recap of the case, Sgt Blackman was convicted of murder in 2013 by a Court Martial, having shot an Afghan detainee at point blank range in 2011 while on tour in Afghanistan.  The case pricked emotions all round. For many, this was an act of cold-blooded murder which degrades the reputation of our military and endangers fellow servicemen, and Blackman was rightly prosecuted and convicted. For others, this was a mistake by a respected hero risking his life for our safety, and the morality and legality of such things done in the fog of war cannot be second-guessed by civilian commentators or media.

The details of the appeal are subject to reporting restrictions, but what we know is that the Criminal Cases Review Commisison has presented fresh psychiatric evidence which it is said relates to the appellant’s state of mind at the time of the shooting, and which renders the conviction for murder unsafe. It will be submitted that the correct verdict should have been manslaughter, on the grounds of diminished responsibility. There are also further grounds relating to, amongst others, alleged incompetence of the trial representatives. (The full issues for appeal, some referred by the CCRC, some raised for the first time by the appellant, are listed at para 9 of the judgment.)

Yesterday was the first effective hearing at the CMAC. Bail was sought and refused. Why? Was it, as Bannatyne says, because judges are incompetent? Was it because they are, in the poetic words of Jon Gaunt, “fucked up”? (A side note on Mr Gaunt – he is the radio presenter who, after being sacked by Talksport for calling a guest a “Nazi”, took his case against Ofcom as far as the High Court, where it was held that “the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification”. Which will no doubt be his epitaph.) Was Blackman failed by judges maliciously applying lesser standards to a war hero than they would a migrant rapist, out of loathing for their country?

Actually, the reasons are set out in the judgment, which, if one takes the time to read it, makes for a far less scandalous tale. As para 18 patiently explains, bail pending appeal is rarely granted. This accords with most practitioners’ experience of appellate proceedings. Bail will only be granted in “exceptional” circumstances. Before conviction, there is in most cases a presumption in favour of bail, and the court will need to be satisfied that there are substantial grounds for withholding bail (e.g. the defendant is a flight risk, or there is a risk of further offending). But where someone is convicted and is seeking to appeal, entirely different considerations apply. Exceptional circumstances must be made out in order for bail to be granted. What amounts to “exceptional”? The test is set out in case law. Normally, “exceptional” requires that the merits of the appeal are overwhelming, or that the appellant will have served his sentence by the time of the appeal, rendering it practically nugatory.

Here, neither of those was satisfied. The Crown, although neutral on the issue of bail, do not accept the premise of the appeal. They do not agree that the new psychiatric evidence establishes a potential defence of diminished responsibility, and will argue that the conviction for murder is safe (para 13). With this in mind, and the Court having seen the fresh evidence, it considered that the case cannot be seen as “overwhelming”. (And anyone who feels able to positively  disagree with this assessment without seeing the evidence is frankly beyond reason.)

Turning to the second limb, even if a conviction for manslaughter were successfully substituted for murder, it does not follow that by the time of the appeal, he will have served all of his sentence. Exceptional circumstances, the Court held, are not made out on the test that the Court has to apply. The test is not, as some would wish, whether one has sympathy with Sgt Blackman, or whether the judges know the true meaning of Christmas. It’s the same test that is applied to all murder convicts. Reaching for the trite point, if you were the family of the deceased, you would want the Court to follow the law when entertaining a bail application from your beloved’s killer, rather than to base their decision on the whims of the public mood. This is the rule of law, folks. It’s there to protect us all.

The timing of the appeal is also important. In recognition of the urgency of the appeal, the Court has agreed to sever the various issues raised in the grounds of appeal and to expedite the seemingly most pressing – that of the psychiatric evidence. The appeal on this ground is likely to be heard at the end of January 2017 or start of February. To those abusing the judges for their lack of compassion, for the Court of Appeal to list a substantive murder appeal hearing involving fresh psychiatric evidence within a month of the CCRC reference being received, is rare. This case, whether rightly or wrongly, is getting afforded attention and speed of treatment that many equally, if not more, meritorious appellants can only dream of.

Again, I’ll close with repetition: this is not, as some like to suggest, blanket support of the decisions that judges take. It’s not even saying that this particular decision is unimpeachable. It’s certainly not saying that people shouldn’t feel strongly about cases like this. But there’s a difference between criticism factually-grounded and forcefully expressed, and ignorant, gratuitous abuse such as that spat out by Bannatyne and his ilk.

The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:

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Which perhaps, at this stage, is all that properly can be said.

Katie Hopkins and the judiciary: another pointless lie

On the day that Katie Hopkins’ wilful disregard for the truth landed her, and the Daily Mail, in £150,000 worth of piping hot water, it is reassuring to see that she has not been deterred from jumping straight back on her unicorn.

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After Hopkins viciously libelled a family of Muslims as Al-Qaeda supporters in her MailOnline column, a grovelling apology was pushed out on her behalf by the Mail, and was meekly (and, we can safely assume, by obligation of the terms of the settlement) tweeted by Hopkins herself at 2am this morning, in the following sincere terms:

 Happily, for anyone who might have missed this display of fulsome contrition, Twitter was on hand to ensure that it reaches an audience commensurate with that which consumed the false story in the first place. Hopkins though has moved on to bigger and better things, including retweeting her latest column. Which is on the law.

And so, with a heavy sigh, I rise to make the following brief observations, accuracy being I am sure uppermost in Hopkins’ mind at the present time.

Hopkins is exercised about the case of Sgt Alexander Blackman, whom you may otherwise know as “Marine A”. Sgt Blackman was convicted in November 2013 by a Court Martial of the murder of an injured Afghan prisoner after shooting him at point blank range, while on tour in Afghanistan in 2011. He was sentenced to life imprisonment with a minimum term of 10 years, reduced to 8 years on appeal. His original appeal against conviction was dismissed, but he now has a further bite of the cherry after the Criminal Cases Review Commission considered that further information relating to Blackman’s mental state at the time of shooting gives rise to new grounds of appeal.

Which is where Hopkins enters. Because her latest column sees her accompany the supporters of Sgt Blackman to the Royal Courts of Justice last Friday, 16 December 2016, where the case was listed before the Court Martial Appeal Court for an application for bail pending the full appeal hearing. And from her vantage point she is able to offer some brief, sage observations on the criminal justice system.

She begins with the following opener:

“Big Al is not even here. He’s keeping clear of the courts in case he jinxes the outcome, preferring to stay and wait quietly, hoping, holding his breath.”

I don’t pretend to be intimately acquainted with the case, but I would observe that section 27 of the Court-Martial (Appeals) Act 1968 provides that an appellant has no right to be present at any proceedings preliminary to an appeal (unless the Court grants him leave), so it’s a curious narrative spin. But who knows – maybe he did apply for leave to be present, have it granted and then turn it down out of superstition. Maybe Hopkins knows something I don’t.

But where I take stronger issue is with the concluding paragraphs, as Hopkins describes how the proceedings are adjourned:

“Then bad news came. This will not be sorted yet. An adjournment. Another week of waiting whilst the prosecution make more submissions.

This wasn’t how I imagined it to be. This was not the happy Christmas the street lights were promising. This was not what we came for. This was awful.

‘The judge is a wanker’ shouted an angry man in the crowd, cross, disappointed.

I am not certain this is true.

But I am sure the law is an ass. A law which goes after our own soldiers, when migrant rapists have human rights to a family life here. A law which tells our Chelsea pensioners they are being investigated for their efforts in Northern Ireland forty years ago when ex IRA sympathisers, Gerry Adams and Martin McGuinness can assume power, blame free.

I walk away despondent. And wonder, if those judges had to spend another seven days behind bars at Christmas, or their wives endure more time horribly alone, whether they would adjourn a hearing quite so casually ever again.”

The penultimate paragraph is a Hopkins special – a proper old-fashioned brew of non-sequitur and urban legend – but it’s the final line that needs challenge, seeing as this is the dum-dum-dum Eastenders dramatic finish, the rhetorical swirl of her sign-off.

Judge-bashing is of course terribly modish, but in between the schoolgirl giggles at “wanker” judges and condemnation of their “casually” adjourning the hearing, there is space for some cold, hard fact. Fact which Hopkins could have easily discerned by listening to what the Court in fact said. And by reading what it published when explaining why the hearing had been adjourned. Which was as follows:

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So, as we can all see, this wasn’t the Court lazily knocking off for an early Friday finish. Or casually adjourning the case for a week because it doesn’t care about the liberty of the subject. But because the CCRC had not served its full reference – the document setting out the details of its investigation and the evidence behind its conclusions – on the prosecution. And the prosecution was therefore unable to indicate its stance on the appeal, or the issue of bail.

I go to these lengths to pick up on these tiny points, because each time an idiot with an audience or their paymasters tell 2 million people that our judges are corrupt, or are wankers, or don’t care about decent normal folk, or are enemies of the people, this all bit by bit chips away at public faith in the rule of law. There is a lot to get upset about when it comes to the administration of law in this country. And often much to legitimately criticise in various judicial decisions. But when sensible, level criticism gives way to name-calling and baseless accusations of bias or negligence, it cheapens debate and demeans public life.

If we had a functioning Lord Chancellor, she might say something like that to warn off the Hopkins of this world. As we don’t, I shall have to rely on a complaint to IPSO. Unless of course, Hopkins wishes, in the spirit of her recent discovery of penitence, to withdraw her unpleasant and untrue attack on the judges and publish a full apology and clarification.

She might even consider tweeting it during working hours.

Examining Iain Duncan Smith’s understanding of Brexit

Today, in response to an op-ed in the Daily Mail in which Iain “Bit of a thicky” Duncan Smith pushed Hanlon’s Razor to its limit with his “interpretation” of the Supreme Court proceedings, I published a series of tweets. They have proved, contrary to expectation, common sense and decency, to be quite popular, and I have had several requests to collate them in a blogpost. So for those who so wish, here I do. For those who aren’t fussed or have already seen, sorry for the diversion and have a nice day.

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Louise Mensch’s claims that Thomas Mair had an unfair trial are unsupported and wildly dangerous

There’s something particularly undignified about a spiralling Twitter spat. The cumulative ‘quote tweeting’ and punctuated “replies” designed to alert innocent passers by to your often solipsistic, and usually entirely pointless, tit for tat exchanges with someone you’ve never met and have no desire to know.  I am guilty of indulging in such indignity this afternoon, after taking umbrage at something said by erstwhile MP and author Louise Mensch, and ending up in the digital equivalent of one of those awful blazing rows you see pissed up couples having outside kebab shops to the evident embarrassment of passers by.

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On this, I also owe an apology to the doyen of criminal legal bloggers, Matthew Scott, whose name has been unwittingly dragged into the debate. If I conducted myself online with his restraint and temperament, I, and the timelines of my followers, would no doubt be much better served. But I do wish to say one final thing, just by way of consolidation, as Ms Mensch has unwittingly performed a public service by highlighting a particular strand of obnoxious and dangerous ignorance prevalent in commentary on criminal law, particularly pertaining to the conclusions that can safely be drawn from what is reported about criminal proceedings.

Mensch today published an article about the trial of convicted murderer Thomas Mair, in which she drew heavily on sage observations made by Matthew Scott on his blog relating to features of the proceedings. Matthew noted, for example, the unusual step of the court receiving into evidence an agreed witness statement from Stephen Kinnock MP, which appeared (if reported accurately) to amount to no more than “good character” evidence of the victim Jo Cox. If this was the purpose for its admission in evidence, it would be highly unusual. Matthew also observed, in his comments made pre-sentence, that based on what had been reported in the media, we might expect the issue of Mair’s mental health, although not led in evidence as relevant to his guilt (for example by way of a defence of insanity or diminished responsibility), to feature in the judge’s contemplation when considering sentence.

Louise Mensch seized on these observations and concluded definitively that Mair had had a “prejudiced” and “unfair” trial. The Judge had “played to the gallery” in allowing Kinnock’s evidence to be read. When challenged about this on Twitter, she doubled down and insisted that the Judge “acted wrongfully and immorally“.  Despite Matthew politely writing in the comments under her blog to caution against leaping from his observations to the conclusion that trial was unfair, Mensch has continued to repeat this from the rooftops over the last few hours.

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And this needs shutting down. Because it’s rot.

Mensch is not a lawyer. She was not involved in Mair’s trial. She was not present in court, nor it seems has she spoken directly to those who were. So her “conclusion” is in fact mere speculation. None of us who were not present know the legal grounds under which Kinnock’s statement was read. It might have been in some way helpful to the defence. It might be that it was favourable to the prosecution and on its face inadmissible. It might be that the Judge was wrong in letting it go before the jury. If so, Mair’s extremely experienced defence Q.C. will no doubt have objected and, if the Judge erroneously ruled against them, this could possibly form the subject of an appeal. But this, like Mensch’s musings, is completely speculative. We don’t know. And if we don’t know the full facts behind and reason for a decision, we cannot, and should not, claim to be able to draw a safe conclusion as to whether it was correct. Or, more pertinently, the motives of the decision maker, in this case the Judge.

The same applies to the issue of mental health. Mensch may have read a lot in the papers that gives her cause for concern (the same papers, it should be noted, that she rails against for printing other inaccuracies about Mair), but she is not a doctor. She is not a lawyer. She was not in the trial. She has no idea what material was before the courts, what material was available, and what the judge took into account when sentencing. She appears to speculate baselessly that Mair might have had an available defence on mental health grounds, implying that his defence, or the judge, were in error in not eliciting this. She goes on to claim that similar errors were made in the sentencing exercise. Certainly the sentencing remarks make no mention of mental health, but to assert, as does Mensch, that the Judge was wrong not to take Mair’s mental health into account relies on a number of astonishing assumptions. First, that Mair has relevant mental health issues. Second,  that his experienced Counsel, experienced solicitors and the experienced High Court Judge hearing the trial failed to identify the potential relevance of mental health issues and cracked on without giving it due regard. Or third, in the alternative, that there was relevant material which the Judge ignored when sentencing. Again, I am not saying for sure that none of those are right – they might be. But we don’t know. Mensch does not know. And if she does not know, she cannot guess.

She makes salient points about adverse publicity pre-trial, of which there was much following Mair’s arrest, particularly on social media. But again, not being in court and not having done her basic research, she has no idea of the repeated, careful warnings that are given to juries in such cases. Or if she does, she doesn’t acknowledge this. She leaps straight to the conclusion that this too renders the trial unsafe, her expertise far outweighing, it seems, that of Mair’s legal team who did not see fit to argue (as they could have done) that his case was so prejudiced by unfavourable media coverage that it ought to be stayed as an abuse of process. Mensch doesn’t pause to consider this. She doesn’t bother to learn the law. She guesses.

And she shouldn’t guess. Because in this toxic, febrile climate, claims that Neo-Nazis are not given fair trials can have serious consequences. These claims feed into the narrative that democratic institutions are broken, and foster the paranoia of those susceptible to taking the, to them, only rational action that one can take when democracy breaks down – violence. It is the same danger that lay behind Trump’s claims that the election was rigged, and UKIP’s baseless allegations that the High Court judges in the ‘Brexit’ case were biased. This is not to say that democratic institutions shouldn’t be scrutinised or criticised, or that concerns should not be raised; plainly they should be. But on solid and intellectually honest bases, by people in command of the facts and the arguments, reaching available conclusions sensibly and responsibly.

Not by professional antagonists seeking their latest hour in the sun, ignorant of the facts and oblivious or, worse, maliciously indifferent, to the succour they give to extremist tropes which, taken to their logical conclusions, could result in violence on the streets.

The “Walter Mitty” law is misconceived and dangerous in equal measure

Every now and then, as Bonnie Tyler so nearly put it, I fall apart sobbing in giddy astonishment at the folly of our elected representatives. And I need you now, dear reader, and I need you more than ever as the willing sounding board in my echo chamber of lawsplaining.

Today’s culprit is Conservative MP Gareth Johnson, who has captured the imagination of news outlets desperate for something to distract from the relentless nihilism of our politics. His Private Members’ Bill, the Awards for Valour (Protection) Bill has won the support of the House of Commons Defence Committee, and thereby takes a military step towards its Second Reading on Friday.

A deeply uncunning plan

A deeply uncunning plan

The Bill aims to prohibit the wearing or public display, by a person not entitled to do so, of medals or insignia awarded for valour, with the intent to deceive. To borrow the media-speak, it targets the “Walter Mittys” who adorn themselves with unearned medallions and insist that everyone call them “Colonel”, causing enormous offence to genuine service personnel and their loved ones.

And it is wholly misconceived.

The text of the Bill is short and can be reproduced here:

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The drafting is at least to the point. Pretend to have been awarded a medal for valour and face up to 3 months in prison (although the Committee in fact agreed with Mr Johnson’s suggestion that the maximum should be 6 months, so we can expect an amendment). If there is merit in its brevity, however, the plaudits end there. It is in every other way an appalling Bill.

There are two kinds of people who dishonestly wear military medals that they haven’t earned. Those who do so in order to obtain some sort of advantage, usually financial. And those who do so simply because they like the undeserved attention that the artifice confers.

The first category is plainly conduct requiring a criminal sanction. If you deceive in order to gain for yourself or to cause a loss to another, the law should intervene to protect the victim. And it does. We have the Fraud Act 2006 for just such an eventuality. So if you are duplicitously pinning on unearned medals to persuade people to donate to your fictional charitable cause, that is an offence under section 1 and 2 of the Fraud Act 2006, carrying a maximum sentence of 10 years.

The second category comprises, in the words of the Committee, “contemptible fantasists” – those tragic, often lonely men, whose deceit and/or delusion may well be deserving of public contempt, opprobrium and mockery, but who cause “harm” only to the extent that one equates “harm” with “moral offence”. Which I do not. First year undergraduates will be able to knock out essay after essay on the “mala in se” and “mala probihita” debate far more fluently than I, but I start from the philosophical position that criminalising conduct not because it causes harm but because it offends broader public sensibilities is a regressive misuse of the state’s coercive powers.

The Defence Committee in its report, regrettably, disagrees. It identifies that harm in such behaviour arises due to the “insulting” nature of the conduct, and the damage to the integrity of the system that it assumes flows therefrom. From this, the Committee gallops swiftly to its conclusion that a law is needed to protect the sensibilities of those offended.

The Defence Committee’s report is crammed full of other evidential gaps and leaps of logic. It confidently asserts, for example, that “We have received evidence that points to a continuing problem with military imposters”, before conceding that it is unable to identify with any accuracy the scale of this problem due to lack of recorded statistics. It acknowledges the Royal British Legion’s evidence that such conduct is “rare” and “not widespread”, but decides to favour the anecdotal evidence of the Bill’s sponsor and other witnesses. Quite how the Committee could hear conflicting anecdotal evidence and conclude that it was sure  that the integrity of the system was imperilled is a mystery.

The Committee draws analogies with the offence of impersonating a police officer, which does not require proof of gain, without recognising the very different, specific and real harm that is caused by the public being misled into believing that an individual is invested with the coercive powers of the police.

It does not even take heed from history. For we had a law like this until a decade ago. A corresponding offence appeared in section 197 of the Army Act 1955, until it was abolished in the Armed Forces Act 2006. Justifying this decision at the time, the MoD said:

“the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform” and that the general offences under the Fraud Act 2006, which potentially attract much more serious penalties, would cover those eventualities. There was also a concern that “an offence based on an intent to deceive which did not involve fraud (for example, where there was no attempt to make a financial or property gain, or cause someone loss) was likely in practice to cause difficult questions of proof”.

The Report acknowledges this, before swiftly moving on without addressing the argument. Because it cannot be addressed. This new offence will be at once difficult to prove and entirely unmeritorious.

The report sensibly proposes that the MoD publish an online database of those awarded medals, to allow for swift public verification of claims to honours. This is a fine idea. It is a shame that this was not the sole remedy alighted upon, and that the Committee considered that instead stretched police, CPS and court resources should be expended on more prosecutions.

I do not for a moment doubt the offence caused to military personnel and their families. And I agree that there is a particular degree of unpleasantness and aggravation of offence, given the particular sacrifices that are by those who earn such honours. But it is worth remembering that the Walter Mittys of this world do not restrict themselves to the misappropriation of military honours. They pretend to be doctors, inventors, Nobel prize winners, retired detectives, lawyers, decorated firefighters and much more besides. And once we start saying that the law should criminalise deceitful conduct based not on harm but on offence, we will find other groups seeking similar protection. Why, it may reasonably be asked, should the same criminal sanction not be imposed on those who falsely claim to have saved lives in war zones as a member of Médecins Sans Frontières?

The Report also pays scant regard to the personal circumstances of those who will likely fall foul of this law. Many will be elderly. Many will have mental health problems. All, by virtue of the fact that they have not been charged with fraud, will be entirely harmless.

To suggest, on the day that the Lord Chief Justice correctly points out that our prisons are bursting at the seams with prisoners who we do not need to lock up, that what we urgently require is more tragic, deluded, harmless old men locked up for up to 6 months, represents exactly the kind of muddled thinking and crass appeal to populism that our MPs should know better than to indulge.

10 myths busted about the Ched Evans case

Footballer Ched Evans was today acquitted after a retrial of one count of rape. The jury at Cardiff Crown Court returned a unanimous verdict of not guilty, Mr Evans’ solicitor read out a statement on his client’s behalf to the gawping media on the court steps in the time-honoured fashion and, within seconds, social media duly exploded with more speculation, myths, distortions and unjustified fury than one might suppose 140 characters could contain.

Ched Evans was a star player at Sheffield United.

The facts, as reported, can be briefly summarised: Ched Evans was originally tried with a co-defendant, and fellow footballer, Clayton McDonald, in April 2012. On 29 May 2011, Evans and McDonald had sex with the complainant, X, in a hotel room. McDonald had met X on a night out, taken her back to the hotel room, and had alerted Evans that he had “got a girl”. Evans duly arrived, made his way to the room and, seeing McDonald and X having intercourse, joined in. X woke up the following morning, professing to have no memory at what had taken place. Both men admitted that they had had sex with X, and were charged with rape, on the basis that X was too drunk to consent, and that neither man reasonably believed that she was consenting. Both men asserted that they reasonably believed that the complainant was an enthusiastic and consenting party. At the first trial, McDonald was acquitted. Evans was convicted and sentenced to 5 years’ imprisonment, of which he served the standard half before being released on licence.

That much, most people know. The further details, very few have bothered to acquire before forming judgment, firing off angry electronic missives and, in the cases of certain activists who should know better, offering vacuous quotes to the media.

So, in an effort to extinguish at least some of the stupid, herewith 10 myths we can squash at the outset:

1. So Ched Evans has been proved innocent, right?

Wrong. You’d be forgiven for thinking this, given that it was in the prepared statement read out by his solicitor, but Ched Evans has not “demonstrated his innocence”. That is not how our criminal justice system operates. It is not a means by which the truth of a situation or event is conclusively and fully determined. Rather the jury are asked one simple question – are you sure that the prosecution has proved its case beyond reasonable doubt (or, as juries are commonly instructed, so that you are sure)? “Not guilty” means just that. The jury were not sure that he was guilty. They may have decided that he was totally, utterly innocent, but we don’t know. All we know is that they considered the evidence, and were less than sure of his guilt. As I tell juries in every closing speech – if you think the defendant probably did it, he’s still not guilty. 

2. Well at the very least, the verdict means that the complainant has lied, surely?

No. Absolutely not. A not guilty verdict in most cases is insufficient to safely infer that the jury have concluded that a complainant lied (as opposed to the jury not being sure one way or the other), but in this case the facts suggest the opposite. As the Court of Appeal made clear in its judgment allowing the appeal, X has never asserted that she was raped. She has always simply maintained that she had no memory of what happened. It was the prosecution case – the case theory of the Crown Prosecution Service – that she was raped. The defence case was based not on the “usual” he said/ she said dispute over consent, but rather he said/ she can’t remember. There is absolutely no safe basis for suggesting she has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans’ acquittal.

3. Regardless, she has trashed his reputation and must be named and shamed.

That is extremely silly. And illegal. As a complainant in a sex case, she has anonymity for life. If you publicly identify her – including on Twitter – you will be prosecuted. It has happened before to friends of Mr Evans. It will happen to you.

4. How come she gets anonymity when he doesn’t?

Because that is the law. If you want to read my views on it, for what it’s worth, they are here. You may not like the law, but you should obey it. There’s some free advice.

5.This is a victory for rape apologists. She was blind drunk, he admitted not speaking to her before, during or after, and this shows that consent does not mean consent. 

No it doesn’t. It shows simply that the jury were not sure of both of the following limbs to the prosecution case, that need to be established to prove rape:

(i) That X was not consenting (because she was incapable through intoxication);

(ii) That Evans did not reasonably believe X was consenting.

Now based on the evidence, including the fresh evidence (see below), it might be that the jury thought X was consenting. And if they did, having heard all of the evidence, they are in a far better position to make that assessment than anyone not in the courtroom. Drunk consent, as juries are reminded by judges, is still consent. But it is equally plausible that they were sure that X could not consent, but were not sure, given her described behaviour, that Evans did not reasonably believe that she was not. Even if the jury thought that X was not capable of consenting, and that Evans probably didn’t reasonably believe that she was, he would still be not guilty – not because of a flaw in the law, or inherent misogyny, but because of Question 1 above, the burden and standard of proof. 

6. X was grilled on her sexual history, in contravention of the law. We’re back in the dark ages.

This was the analysis offered immediately post-verdict to the Guardian by Women Against Rape, a charity which should really know better, and Sandra Laville, the Guardian’s crime reporter. It has since been adopted and virally transmitted throughout the media. Questions about a complainant’s previous sexual history are not allowed in sex trials, unless a very strict set of criteria (set out in section 41 of the Youth Justice and Criminal Evidence Act 1999) are met. As the Court of Appeal explained (at [44]), these provisions are designed to counter the myths that “unchaste women are more likely to consent and less worthy of belief”. Yet X was cross-examined by the defence barrister over other sexual incidents – so what happened?

Well, in short, the law was followed. This point hinges mainly on “fresh evidence” that was not available at the first trial. Leave to appeal against Evans’ conviction was refused by the Court of Appeal in 2012, and Evans thereafter approached the Criminal Cases Review Commission with “fresh evidence” which had since emerged and which he claimed undermined the safety of his conviction. We now know that the principal nature of this fresh evidence was as follows:

  1. A man, O, gave evidence that, two weeks after 29 May 2011, he had been out drinking with X, and had engaged in consensual sexual intercourse, during which she instructed him to penetrate her vaginally from behind, shouting, “Fuck me harder”. 
  2. A second man, S, gave evidence that, on 28 May 2011, X had engaged him in a night of drunken sexual activity, in which she adopted the same sexual position and used words, “Go harder”.

Evans’ case at trial was that X had acted in the same way on the 29 May 2011, encouraging him to penetrate her “doggy style” and using the words “fuck me harder”. This, it was argued, demonstrated that she was consenting, and also supported the reasonableness of his belief that she was consenting. 

One of the exceptions under section 41(3) allows for evidence of sexual history to be adduced, and questions asked of the complainant about it, where the evidence relates to the issue of consent, and is of sexual behaviour of the complainant which is “so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused…that the similarity cannot reasonably be described as a coincidence”. In short, it is beyond coincidence, the defence argued in the Court of Appeal, that X would consensually engage in this specific type of sex act using these specific words on occasions around the time of 29 May, but that she was not consenting in the same circumstances on that date. This tends to show that, drunk though she was, she was sufficiently in control of her senses to give consent, and, furthermore, to give Evans the impression that she was consenting. This, the defence argued, is relevant to the jury’s assessment of whether she was consenting, and whether Evans reasonably believed that she was. 

The Court of Appeal, having considered other case law, agreed that in these unusual circumstances the fresh evidence ought to be admitted, and that X should be questioned on what the new witnesses had to say. Now it may be (I haven’t had the time to properly apply my mind to it) that a forensic analysis of the Court of Appeal’s reasoning will reveal a flaw, or an inappropriate leap, or even a misinterpretation of previous binding authority. It may be that the Court’s application of the strict criteria for agreeing to admit fresh evidence was arguably not met. Such things are not unknown. The Court of Appeal sometimes fluffs up. But unless you’ve read the judgment, and have carried out the legal analysis and the research, you’re not able to say, are you? So, I urge you, stop spreading speculation which is not only misleading and removed from fact, but likely to deter victims from coming forward. 

UPDATE: A special mention goes to the raft of claims in the press that this case sets a new, special precedent allowing the sexual history of complainants to be admitted in evidence in any future case, solely for the purpose of shaming the complainant in a dark return to the 1970s.  Allow me to help: The precedent that has been set is none. The Court of Appeal decision sets down no new application of law or principle, and section 41 continues to operate exactly as it did before, excluding the vast, vast majority of questions about previous sexual behaviour. The newspapers, activists and charities propagating this false message are needlessly terrifying present and future victims, and will only risk deterring them from coming forward.


BONUS 11 and 12:

11. The evidence of previous sexual history was used to attack X’s credibility.

Dangerously untrue. The purpose for which the evidence was admitted was expressly limited, as per 6 above. Section 41 explicitly forbids previous sexual history being used for the purpose of attacking a complainant’s credibility. It was not admitted so that the defence could say, “She consented to sex with other men, therefore she must have consented to sex with this man”. It was admitted because of the specific similarities identified by the court which, it was held, were relevant to the issues of whether X consented and whether Evans reasonably believed that she was consenting.

 

12. The acquittal of Clayton McDonald at the first trial shows that Evans’ conviction was not safe in the first place.

I have heard this view expressed several times over the weekend, including by broadcasters. The argument runs as follows: “If the jury thought that X was consenting, and capable of consenting, to intercourse with Clayton McDonald, how can it be that within a matter of minutes she was incapable of consenting to sex with Evans?” The premise and conclusion here are both flawed.

Firstly, we do not know why the jury acquitted McDonald. Nor why they convicted Evans. So speculating about verdicts and questioning the jury’s reasoning is rarely helpful. But we do know, as per 5 above, that they were considering two separate issues for each defendant: (i) Was X consenting (and capable of consenting)?; and (ii) Did the defendant reasonably believe that X was consenting? And, from this, several permutations of findings of fact arise. One of these, which may have been the jury’s reasoning, was that X was too drunk to consent with either man. However the circumstances in which the two men met X are vastly different. McDonald met X, engaged her in conversation and took her to the hotel. Evans simply arrived once McDonald and X were having sex and, putting it starkly, joined in without saying a word. Thus the jury could have concluded that, while X was too drunk to consent, she may have given McDonald a reasonable belief that she was consenting, whereas Evans, not having the benefit of having spoken to X, had not established “reasonable belief” in consent before engaging in intercourse.

This point, largely academic now but being advanced by some as holding greater significance, was in fact considered by the Court of Appeal at Evans’ first application for leave to appeal in 2012. I leave the final word to the Lord Chief Justice who heard that application [my emphasis in bold]:

 

“The jury [at the first trial] was directed as follows: “When you come back …. you will be asked to return separate verdicts in respect of each of the two defendants. Accordingly, when you retire you must consider the case, that is to say the evidence for and against each of the two defendants separately. Whilst there is a considerable overlap in that evidence, the evidence is not identical, and whilst your verdicts may very well be the same in the case, they might be different. The important thing for you to remember is your approach to the case for and against the defendants must be considered separately.”

Given that direction, it was open to the jury to convict both defendants, to acquit both defendants, or to convict one and not the other defendant. That was the point of a joint trial in which separate verdicts were to be returned. It was open to the jury to consider that even if the complainant did not, in fact, consent to sexual intercourse with either of the two men, that in the light of his part in what happened — the meeting in the street and so on — McDonald may reasonably have believed that the complainant had consented to sexual activity with him, and at the same time concluded that the applicant knew perfectly well that she had not consented to sexual activity with him (the applicant). The circumstances in which each of the two men came to be involved in the sexual activity was quite different; so indeed were the circumstances in which they left her. Those were matters entirely open to the jury; there was no inconsistency.”

 

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