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.

A court soft on burglars, or an MP missing the facts?

It would be nice to usher in 2017 with an exciting fresh take on a vibrant, buzzing legal issue of the day. As it is, the first post of the New Year is to be spent – and I fear this will be a recurring theme – reminding an elected Member of Parliament how the law works. That this has to be done in any case is depressing enough, but today’s is particularly disquieting given that the MP in question, Will Quince (Con, Colchester), is a qualified solicitor.

His LinkedIn profile states that he spent just under two years post-qualification working  in the Business Services department of a firm of solicitors in Colchester before being elected to Parliament in May 2015. It is unclear whether he has ever practised in crime. Nevertheless, he has this weekend made it his business to write, on Parliamentary letterhead, to the Lord Chancellor Liz Truss about “far too lenient” sentences that were passed last week on two local burglars, inviting her to join him in his condemnation.

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A burglar

Mr Quince was not actually at Ipswich Crown Court for the sentence of Raymond Tauchert (55) and Carlton Ho-Ten-Pow (36) following their guilty pleas to a single count of burglary. But he read a report in his local newspaper about how the two men broke the window of the Colchester branch of Ernest Jones jewellers with a hammer in the early hours of October 20th last year and grabbed £8,200 worth of jewels, and how a two-year suspended sentence was imposed in each defendant’s case, and he is jolly cross about it. And Mr Quince wants the Lord Chancellor, the press and his Facebook fans and Twitter followers (to whom he has retweeted the press coverage of his campaign) to know.

It is a shame, I would respectfully observe, that he didn’t acquaint himself with the facts before doing so.

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Because had he done so, he would have learned several things. Firstly, he would know that there is no such offence as “armed burglary”. Secondly, that there is in any event an important distinction between being armed for the purpose of threatening violence, and having a tool with you to break a window. Thirdly, and more pertinently, he would have been alerted to the existence of Sentencing Guidelines. These are the guidelines, produced by the Sentencing Council, which courts are legally required (section 125 of the Coroners and Justice Act 2009) to follow when passing sentence on a defendant. Specific guidelines exist for burglary. And at page 12 we see how a court is required to approach offences of non-dwelling burglary, step by step.

As the tenor of Mr Quince’s complaint – soft judges passing soft sentences – is a familiar refrain among politicians, it might assist to play through the sentencing exercise that courts are required, by legislation passed by those same politicians, to follow.

Step 1 is reproduced below. The court must first identify which category the burglary falls into, to arrive at a sentencing range. This is done by looking at a list of factors indicating “greater harm” and a separate list indicating “greater culpability”, and seeing which apply to the facts of the case.

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Immediately, you may spot a problem – how do we know the exact facts of the case? Well, we don’t. We know about as much as Mr Quince. Which is what a journalist has chosen to selectively report from what the prosecuting and defending advocates have said over the course of a twenty to thirty minute hearing. We haven’t seen a transcript of the prosecution opening of facts, nor of the mitigation advanced, nor the judge’s sentencing remarks. We haven’t read the detailed Pre-Sentence Reports prepared by the Probation Service. And we haven’t seen the prosecution papers containing all the evidence. So we are going to have to follow Mr Quince’s lead in arriving at conclusions based on partially-glimpsed fragments of the full picture.

But let’s have a go.

Goods to a value in excess of £8,000 were stolen, and even to a large jewellery company, that would still amount to a “significant loss”, and for that reason this is a case of “greater harm”. None of the other factors indicating greater harm appear to be present. There was no suggestion that anyone was at work – this was after all the middle of the night – nor that there was any ransacking or vandalism beyond the damage caused to the window. Nor are there any factors indicating lower harm. Higher culpability is also present – this was a group (it is suggested that three men were involved, the third remaining at large) and they had a hammer to effect the break-in. So this is comfortably a Category 1 offence.

What does that mean? We turn the page:

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It means a starting point of 2 years’ imprisonment. With a range of 1 to 5 years’ custody. We then see a range of factors that increase and decrease seriousness, which the judge applies to move the sentence up and down that range. It’s worth interposing here the (perhaps rather obvious) point that each defendant is treated separately. You don’t, as Mr Quince’s letter seems to imply, add up the combined convictions of both defendants and punish each for the other’s previous misdeeds.

What we are told about Tauchert is:

  • He has 18 convictions for 52 offences;
  • He was on licence at the time of the burglary having been jailed for nine years in 2010 for conspiracy to supply class A drugs and handling stolen goods having been part of a gang raiding warehouses;
  • He was released in March 2013 and had not committed an offence in over three years;
  • His mother died in the summer from cancer and he returned to taking heroin. He took 100 morphine tablets and was committed to hospital.

His convictions are plainly an aggravating feature, as is the fact that he committed this offence while on licence. We also know the offence was committed at night, although not, it seems, when anyone was likely to be present at the store. In his favour, a 3-year period of non-offending is notable for someone of his criminal history, and he appears to have taken steps to address a longstanding addiction. Importantly, there was, the court appeared to accept, a genuine trigger for his recent tumble back into old ways. It does not excuse his criminality, but it mitigates it. And will give a court cause to pause to consider whether a return to prison is likely to do more harm than good to his long-term rehabilitation.

Of Ho-Ten-Pow, we know only that:

  • He has six convictions for 22 offences, including an offence for drug trafficking;
  • He was the subject of a community order at the time of the burglary;
  • He has expressed remorse;
  • He was in a bad relationship, had lost 4 1/2 stone and had fallen back into drug use.

Similar considerations apply, albeit his sob story may not pack the same punch. It’s worth noting that we know nothing about his existing community order. The court will have had all that information as its fingertips. The Probation Service will have reported on his progress on this order and whether, in its professional view, this is a defendant worth persevering with.

We also know that both defendants pleaded guilty and were entitled to one third credit for an early guilty plea. This is standard across all courts. Guilty pleas save everyone – court and witnesses – time, expense and worry, and so defendants are given a discount on their sentence if they admit their guilt early on.

Additionally, and importantly, both defendants had been remanded in custody since their arrests in October. So they had already served around 3 months in prison (the equivalent of a 6 month sentence), which would by law count towards any sentence of imprisonment.

Putting that all together, the Gazette reports that the judge adjusted the sentence up from 2 years to 3 1/2 years to reflect the aggravating features. Given what we know, this appears entirely sound. This is not the most serious Category 1 offence – as far as “diamond heists” go, this was hardly Hatton Garden territory, and, crucially, there was no confrontation with any individual, which is the usual trigger for a sharp tilt towards the top of the range. 3 1/2 years is around what I would advise a client to expect after a trial for this offence.

There then appears to have been a downward adjustment to 3 years – perhaps for the personal mitigation – before the judge (or Recorder, as he was) applied the one third credit to arrive at 2 years’ imprisonment.

Any sentence of 2 years or under can be suspended. We do not know for sure why the judge suspended it in this case, but the history of drug use, rehabilitation and relapse may well have led the judge to conclude that it was worth taking a chance on these defendants and giving them a suspended sentence with drug treatment and rehabilitation requirements. If they foul up, they’ll go straight to prison. If not – if they get clean and stop committing crimes – everybody, in particular the good and law abiding folk of Colchester, wins. Pre-Sentence Reports are often persuasive in these cases.

So considering what little we know about the offences, there does not, to my professional eye, appear to be anything outrageous about these sentences. The men were fortunate, perhaps. Some judges may not have taken the chance, and may have sent them straight down for two years. Possibly a little more. But nothing about this case suggests that the judge has done anything that he was not fully entitled to do on the guidelines.

And this would have all been plain to Mr Quince had he taken the time to to research the law and the facts, or to ask a criminal lawyer for help, or to seek a source of information beyond a 640-word news article, before firing off his letter to Liz Truss.

Most disappointingly of all, the letter is entirely misdirected. The Lord Chancellor is not in the business of joining excitable MPs in breaching the separation of powers and criticising judges for “soft sentencing” on the basis of inchoate media reports. The Lord Chancellor’s statutory duty is to uphold the independence of the judiciary. Liz Truss does not do this very well, but even she in her resplendent incompetence is not going to endorse Mr Quince tutting how “gobsmacked” he is at the judge’s conduct, nor whatever point this sentence is supposed to express:

“It flies in the face of members of the public who went to collect evidence, to the police officers who investigated and who made the arrests and to costs of the court.”

A more appropriate addressee for Mr Quince’s letter would have been the Attorney General, who superintends the Crown Prosecution Service and has the power to refer unduly lenient sentences to the Court of Appeal; but even then, it would have been to nil effect, burglary not being one of the offences that can be referred. If, having soberly reflected, Mr Quince genuinely believed that there had been a serious judicial error requiring disciplinary intervention, his recourse would lie with the Judicial Conduct and Investigations Office, assuming they stopped laughing long enough to formally process and reject his complaint.

The conclusion that one is regrettably driven to is that Mr Quince does not really know what he is saying or what he is doing. Which is a pity, because as a Parliamentarian and a lawyer, he is one of the people his constituents might reasonably expect to accurately and sensibly guide them on this type of issue, rather than firing up the torches and leading the villagers blindly towards the courthouse. When Liz Truss responds to Mr Quince, I hope that she reminds him of this in terms. And that he publicly circulates her reply with the same vigour as he has his original letter.


UPDATE: The advantage of blogging is that if, upon reflection, you realise that an argument you had made, or the way in which you have expressed a point, is wrong, you have the power to correct it. In the original text of this post, I think that I made such a mistake. Mr Quince politely responded on Twitter and engaged in a very civil exchange in which he indicated that, in light of the observations I had made, he would send a follow up letter to the Lord Chancellor. He also opined that he found my blogpost to be “unnecessarily rude”, referring in particular to the original title of the blog, in which I (rather weakly, in search of a rhetorical device) suggested he was “soft in the head”. Regular readers will know that deference to public figures who deliberately or recklessly mislead the public on the law is not the style of this blog. And certain people (I think in particular of Philip Davies MP, Katie Hopkins and other repeat offenders), who have been given countless opportunities to reform their ways and plough on in their pig-headed ignorance, deserve a dose of unapologetic and colourful impoliteness. I make no apology to them and their kind. But with Mr Quince I think I may have prematurely, and unfairly, crossed the faint line between stridency and rudeness in the way I sought to make my point. A number of people whom I respect took issue with the tone and style, which distracted from the thrust of what I maintain is a solid argument. And that  – having a good point lost because of the manner of its expression – is bad advocacy. As well as poor form in general.

With that in mind, I have moderated the text of the original post, I hope to no less effect, and possibly to greater. There is a balance to be struck between being punchy and strident, and being snarky and rude. I certainly did not intend the latter over the former, but if that was the effect of my words and style, I apologise to Mr Quince. For his part, I still urge him to consider the broader danger posed by MPs attacking court decisions without knowing the law. He may well, as a representative of the people, have strong views of his own and of his constituents concerning matters of local criminal justice. And it is of course proper for him to address such concerns through the appropriate channels. But in doing so, little is achieved (and much damage is done) if careful and sober reflection give way to knee-jerk reaction and a clamour to politically capitalise in the media without learning the full facts. Mr Quince has indicated that, notwithstanding the analysis above (which he accepts), he still considers the sentences to be unduly lenient, and I have offered him a right of reply on this blog for him to set out his position. I shall post any response below.

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.

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.

Why did the government block the SNP’s Alan Turing Bill?

This post was written last Saturday when it was achingly vogue, then lay forlornly unposted over the weekend until staleness set in, by which time it appeared destined to linger forever in my draft folder. Serendipitously, it has been offered a second wind after one of the subjects tweeted me out of the blue, allowing me, I reckon, to segue to a discussion of why, last Friday, Justice Minister Sam Gyimah powered into the media’s bad graces by apparently blocking a Private Member’s Bill which sought to automatically pardon men convicted of now-abolished sexual offences.

When SNP MP John Nicolson presented the Sexual Offences (Pardons Etc) Bill for its second reading in the House of Commons last Friday, he and many other MPs spoke eloquently and passionately about the symbolic importance of enacting legislation which would extend the pardon granted to Alan Turing in 2013 to all men, living and deceased, convicted under historic legislation that criminalised homosexual activity between consenting males over the age of 16. Sam Gyimah, a new fixture in the post-Gove Ministry of Justice, then stood up and asked Mr Nicolson to withdraw the Bill. When Mr Nicolson refused, Mr Gyimah articulated his objections at sufficient length to ensure that there was no time for a vote on whether the Bill should progress to Committee stage, effectively, as it has been reported, “filibustering” the Bill.

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Cue outrage. Gyimah was variously “a disgrace”, “shameful” and, in the words of Labour MP Wes Streeting:

So what on earth has gone on?

To understand, we need to rewind to the origins of Nicolson’s Bill, and the pardoning of Alan Turing in 2013. Following a vigorous public campaign, and a Private Member’s Bill presented by Lib Dem peer Lord Sharkey in 2012, the government exercised the Royal Prerogative to posthumously pardon World War II code-breaker Alan Turing, who was convicted in 1952 of gross indecency for a consensual same-sex relationship with a 19 year-old man. Turing was one of an estimated 50,000 men who, until the decriminalisation of homosexuality in 1967, were convicted under provisions of the Sexual Offences Act 1956 – mostly sections 12 (buggery) and 13 (gross indecency between men) – or (as in Turing’s case) its predecessor, the Criminal Law Amendment Act 1885, and whose lives were scarred, if not ruined, by being criminalised and often brutally punished for the sin of loving another.

In recognition of the injustice occasioned by this legislation, a further legacy of the Turing campaign emerged. Section 92 of the Protection of Freedoms Act 2012 provided for a procedure whereby anyone convicted under the relevant provisions of the 1956 legislation (or its predecessor) for consensual sexual activity with someone over the age of 16 could apply to have their conviction “disregarded”. The practical effect of this was that if the Home Secretary agreed that the sexual activity founding the conviction would not be an offence today, it would be wiped from the record.

Having a conviction “disregarded” under this procedure is not the same, it should be noted, as being pardoned. “Disregarding” results in the conviction being wiped from the record books. The effect is that no offence was ever committed. By contrast, a pardon “removes from the subject of the pardon all pains, penalties and punishments whatsoever that from the said conviction may ensue” (R v Foster [1985] QB 115, 130), but does not eliminate the conviction itself. Its function is therefore, as far as historical convictions are concerned, largely symbolic. Furthermore, the disregarding process is presently only available to those still alive to use it. For the thousands of other Turings and their families, the stain of a criminal conviction lingers. It was for this reason that, at the 2015 General Election, the Conservative Party manifesto included a commitment to introducing posthumous pardons for historical sexual convictions that no longer amount to an offence.

Which brings us to Friday, and John Nicolson’s Bill. The Bill, in short, sought to automatically pardon anyone convicted of a “specified offence”. This included anyone eligible for the disregarding process, as well as those convicted under section 32 of the 1956 Act (solicitation by men), which was omitted from the scope of disregarding. The Bill also extended the disregarding procedure to permit relatives of deceased men to apply on their behalf for a posthumous disregarding. Which, one may think, would be the sort of thing that the government would support, given its manifesto pledge.

So why didn’t it? Well, the day before the Bill’s second reading, Mr Gyimah announced in a blaze of publicity that the government was enacting an “Alan Turing Law”, by throwing its weight behind a proposed amendment to another Bill currently at the House of Lords Committee stage, the Policing and Crime Bill. Lord Sharkey, he of the Turing pardon Bill, had proposed an amendment which would do two things: firstly, automatically posthumously pardon anyone deceased who was convicted of a “relevant offence”; secondly, provide that anyone living who applied successfully for a conviction to be disregarded would also be pardoned.

Therefore, the MoJ announced, it would not support Nicolson’s Bill, instead preferring to plough its own furrow with the Sharkey amendment. What Friday brought was then a gritty stalemate in the House, as each side waved its flag and ordered the other to join its cause.

Those in favour of Nicolson’s Bill argued that the symbolism of an Act specifically and solely addressing the injustice to be remedied was vital. Appending such a socially significant statement as an afterthought to an unremarkably-titled Policing and Crime Bill did the magnitude of its symbolism a disservice. It warranted the status of being an Act in its own right.

More than this, though, a blanket pardon would cater for the many people who may not want to relive a deeply unpleasant period in their history by going through the formal disregard procedure, but would take comfort from a law formally absolving them of any moral fault. The disregarding procedure has not been widely used. In some historic cases, key documents may no longer be available, presenting an obstacle to demonstrating that, for example, the sexual activity was consensual. The fear of a refusal to have a conviction disregarded, and the further shame and indignity of official rejection, no doubt plays heavily on the minds of many elderly men. A blanket pardon would offer the official acknowledgment to these men that they have been wronged, with the disregarding procedure available for those who wished further to take advantage of the practical effect of having a conviction expunged from the record.

The MoJ’s truculence was twofold. First, it was argued that the amendment to a Bill currently before the Lords afforded a quicker vehicle to bring about the desired change. Second, and loudest, the MoJ objected that the Bill as first drafted was wide enough to appear to pardon people convicted for gross indecency in cases involving non-consensual sexual acts, particularly with children. Historic sexual allegations were, and still are, prosecuted under the 1956 Act, with many nonconsensual acts prosecuted as gross indecency or buggery (typically acts that would nowadays be prosecuted as oral or anal rape), and the MoJ understandably did not want such convicts swanning around with the glow of a pardon. Or worse, it was suggested, using a pardon to worm their way around safeguarding provisions and obtain employment working with children.

This was still Mr Gyimah’s position on Friday. But it appears entirely disingenuous. Before Friday’s debate, the Bill was amended to make clear that the pardon would only apply to cases involving consenting parties over the age of 16, section 2(4) broadly mirroring the disregarding provisions. Even if the technical drafting leaves something to be desired, this could be ironed out at Committee stage. So this argument, still being peddled by the MoJ, is patent nonsense. As for the suggestion that there may be a queue of elderly paedophiles at the job centre looking to brandish a (false) pardon in support of applications to work as school dinner monitors, Gyimah well knows that the pardon itself would be ornamental. Section 2(6) provides that a pardon under the Bill would not affect any conviction, nor give rise to any right, entitlement or liability. Even if a pardon was wrongly “appropriated” by someone who didn’t qualify, it would have no practical effect. The conviction would remain on the record until formally disregarded.

For my part, I see no principled or legal objection to the proposal by Crispin Blunt MP, whose observation appears unimpeachable:

“[The government’s] approach ties the pardon to the process of disregarding convictions from criminal records that already exists and would be extended by clause 3. There need not be such a link. The Government can be more generous. They can make a distinction between the powerful symbolic effect of the general pardon to men—some alive, many dead—and the mechanism by which individuals can benefit from the practical effects of a pardon through the disregard process. This, therefore, ensures that criminal offences that remain criminal offences today are not included in any practical consequences of the pardon. I know that the Minister will present a marginally different view and different concerns, but that discussion should be had at the Committee stage of this Bill. If the Government are not satisfied with the discussion in Committee then this Bill will not make progress towards becoming an Act.”

So why was Mr Gyimah so keen to ignore his Honourable Friend’s plea and obstruct the Bill’s passage? The only explanation one can infer is that of petty, partisan politics. A childish tussle over who gets their name in the history books. A decree from on high that it must be the Conservative party, not the SNP, to bask in the credit of bringing in The Alan Turing Law, regardless of whether the Sharkey amendment, well-intended though it undoubtedly is, fully addresses the injustices at stake. Given the choice, the government would rather appropriate a Lib Dem amendment and pass it off as their own than allow the SNP any credit for a Bill which may do the job better.

It is not right, as some have done, to level accusations of homophobia at Gyimah. But it is right to point out that the effect of his charge for vainglory may well be that a monumentally symbolic law is passed with the appearance of being a regrettable appendage to other, more worthy legislation. And that many thousands of men, who society accepts have done nothing wrong, are denied the pardon that might go some way to restoring their dignity.