In forgetting our fundamental principles of justice, The Trial’s fascinating run fell down at the last

*SPOILER ALERT: If you have not seen the end of The Trial: A Murder In The Family, don’t read on. Unless you’ve no intention of watching it, in which case do as you please.*

Last night, Channel 4’s The Trial: A Murder In The Family drew to a close. At the end of a five-day run showing edited highlights of the augmented reality trial of Simon Davis for the murder of his estranged wife Carla, the finale dragged us inside the emotional furnace of the jury room as the twelve jurors deliberated with a ferocity belying the academic nature of their task.

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The Trial: A Murder in the Family, Photograph by Channel 4

Despite the judge giving a majority direction – where instead of a unanimous verdict, a court can accept a verdict agreed by 10 of the 12 jurors – the factfinders remained aggressively deadlocked. Eight were unpersuaded of the prosecution case, influenced by the evidence pointing to the possibility that the culprit was in fact the deceased’s scorned boyfriend, Lewis Skinner, and dutifully voted Not Guilty; four were sufficiently sure to cast a ballot for Guilty. The jury were hung, in the legal lingo, and so were discharged. At some future date in that parallel universe, Mr Davis will be retried at Berkshire Crown Court, but for now he remains a free man.

And a lucky one, we learned. For, in a curious creative decision, the producers decided to “reveal” through dramatisation what had really happened: Just as prosecuting counsel Max Hill Q.C. had told the jury in his opening and closing speeches, the defendant had indeed attended the former matrimonial home and, upon learning of Carla’s decision to end the fledgling rekindling of their relationship and up sticks to Scotland, had strangled her with his bare hands. The big reveal, it was none-too-subtly implied, was that The Jury Got It Wrong. Lest we be in any doubt as to the editorial perspective, the episode closed with close-up shots of the burdened jurors, their individual verdicts stamped across the screen, before the following captions rose:

“On average, two women are killed by a partner or ex partner every week in England and Wales.”

and

“In this case eight jurors voted not guilty, four voted guilty.

All four guilty votes were cast by women.”

and finally

“Next year more than half a million of us will be called to decide the fate of a fellow citizen.”

The official Twitter account for the programme has since run polls, including asking viewers:

I’m still struggling to make sense of this all.

Taking the above together, the only possible interpretation of the editorial line is: “This jury should have convicted. They didn’t, ergo they failed. What does this tell us about juries? (Clue: Maybe it’s sexism.)”

Which would be fine, had that been the premise of the programme. But it wasn’t. At least, not as far as we’d been led to believe. It was billed – accurately – as a groundbreaking docu-drama in which we would be given a unique insight into the way that juries operate. The opacity of the jury room means that, notwithstanding academic studies attempting to recreate its conditions, we know little about how juries approach their task. We have a fervent cultural faith in the inherent supremacy of trial by jury; let’s, Channel 4 suggested, cut open this sacred cow and have a rummage around inside.

The concept as advertised was not to present a jury with an obviously guilty man, and see whether a jury rationally assessed the evidence to come to the “right answer”, or whether they were waylaid by bias.  That may well have made for a fascinating programme – but it wasn’t the stated purpose of this exercise. Rather, this aimed to present a typically complex and borderline case, and to offer a fly on the wall insight of a jury striving to reach its verdict.

And so much was right about The Trial. Authenticity was plainly its guiding principle. We had some of the country’s very best barristers, with a retired Crown Court judge, and police and expert witnesses played by real police officers and experts. The case and evidence were expertly crafted and balanced on a knife edge by David Etherington Q.C. and Max Hardy. The 12 jurors came laden with a typical breadth of life experiences, replete with the assumptions, cognitive biases and individual prejudices that afflict us all, and which their fellow jurors were quick to identify and challenge. The conditions enabled what in televisual terms comes pretty close to a scientific experiment.

But the ending took that claim to objective inquiry and violently throttled it. Because in the final episode, we suddenly were not interested in how the jury works, but whether they arrived at the right answer. And by “right answer”, the producers meant “truth”. Thus, not only was the bulk of the final episode frustratingly concentrated away from the jury deliberations and onto the reveal of the WhoDunnit, but it risked leaving the non-lawyer viewer with a wholly distorted view of the function of juries.

Because the dirty little secret that The Trial left out is this: Jury trial is not about finding the truth. It can’t be. The truth, in most cases, is indiscoverable. It does not arrive in the courtroom, packaged with a neatly tied bow, at the end of the case, for jurors to benchmark their performance. Even after a verdict, the legal imprimatur of Guilty or Not Guilty, we are still no closer to knowing whether the verdict is factually “true” than we were when the jury retired to deliberate. While we obviously want legal verdicts to correlate with the truth – the factually guilty always convicted and the factually innocent always acquitted – our system recognises that this is unachievable. There are in most criminal cases, as with most human interactions, simply too many complexities and information gaps for us to say with certainty whether someone definitely did or definitely did not do what the state alleges they did. If we were to require juries to find the truth of every case, we would inevitably require them to indulge in speculation and guesswork, with the appalling consequence that factually innocent people would be convicted on that basis.

So we don’t ask juries to guess at the truth. Instead, we present them with as much relevant evidence as we can, and ask them one question: Are you sure that this person is guilty? If yes, the state will take coercive action. If the jury is anything less than sure, they must acquit. Not guilty does not mean innocent. It means that the jury cannot be sure to the very high standard required that, on the available evidence, the defendant is guilty. This inevitably means that factually guilty people are acquitted. But it is the sacrifice our system makes to minimise the risk of the greater peril: a factually innocent person being convicted and punished.

This cornerstone of our justice system – the burden and standard of proof – was The Trial’s glaring omission. While the judge’s summing up and legal directions were understandably edited to the bare minimum, holding (even judges would concede) little televisual interest, would it have been too much to leave in a brief few seconds of the judge reminding the jury, and the viewers, of the essential basis of how to approach their task?

In the event, a number of the jurors disregarded the burden of proof, casting themselves as detectives trying to crack the case – trying to prove the culprit was more likely to have been Lewis – rather than confining themselves to the sole question: was the case against Simon Davis proved on the evidence?

The tragedy is that this case was the perfect vehicle for a considered treatment of the burden and standard of proof. Here we had a murder where the offender could only feasibly have been one of two men – Simon Davis or Lewis Skinner – but where the evidence was arguably insufficient to prove the case beyond doubt against either. The producers could have preserved the integrity of the concept by declining to give us the “answer”, instead explaining – perhaps through the to-camera interviews with the barristers and judge – how it is that our system allows a situation in which we know that the offender was one of two violent men but cannot convict either, and how such an outcome is not an indictment of a jury “failing” in its task, but reflective of the correct course where, regrettably, the evidence is simply not enough to safely convict anyone. This is the build of our system, the programme could have said. Here’s why we do it this way, and here’s what the professionals think. What do you think about it? 

But that line of contemplation was abandoned, the producers instead deciding to grasp for an unconvincing gotcha moment and invite us to lay blame at the jury’s door. As I’ve said, if the producers were looking all along to make a point about juries failing to convict in the face of overwhelming evidence, they could have done. They could have asked the barristers writing the case to devise a deliberately strong case, littered with tripwires and victim myths designed to test the jury’s integrity. But this factual matrix was intentionally blurry. After the reveal, the prosecutor Max Hill Q.C. tweeted:

For what it’s worth, I agree. The evidence of the witness Mullen who (wrongly, we infer) placed the violent Lewis Skinner near the murder scene gave the jury reasonable cause to doubt the prosecution case. To take a knife-edge case and conclude, from the fact that the jury were on a knife edge, that something is wrong is simply bizarre.

Finally, the decision to highlight the gender of the jurors who voted to convict, without saying more, leaves me very uncomfortable. What was the message? That if you, as a juror, are sitting on a case involving an allegation of domestic violence you should be more inclined to convict? I genuinely have no idea what other interpretation we are supposed to draw. If I were defending a man accused of domestic violence today, I would be very nervous about any of the jurors having seen last night’s finale.

In fact, if it were prejudices that The Trial was hoping to root out, fuller pickings were arguably to be found among those who chose to convict. One speculated over the interpretation of DNA evidence, despite being directed not to do so. The famous Cherry, the self-professed “witch” so proud of her unfailing “gut”, appeared determined to convict from Day 1. And of the four convictors, three had direct or indirect experience of domestic violence, which they were quick to overlay on the evidence of the instant case. The final interviews with these four jurors also left us in doubt as to how sure-footedly they stood by their verdicts. There was a distinct impression that some had deviated from “beyond reasonable doubt” to the civil standard of “probably did it”. In fact, it was those who returned not guilty verdicts, despite thinking that Simon Davis probably killed his wife, who were the ones being true to their oath and to their (fictional) public duty.

This denouement is is a shame because in so many ways this programme has been a revelation in legal programming. Matthew Scott’s review of the first episode stands true – it has been in numerous ways a force for good; a powerful and gripping show educating the public on the workings of a criminal court with far greater accuracy and aplomb than is achieved by most dramas. Those involved should rightly be proud.

But by appearing to abandon its stated premise in the final episode, I feel The Trial missed a glistening opportunity to probe at some of those deeper questions about the way we do justice. Is our faith in juries misconceived? Should we entrust our liberty to the Cherrys of this world? How loyal are juries to their oath to reach verdicts on the evidence? Are they able to faithfully follow the judge’s directions on the law? Do they need greater scrutiny, or even screening? Should we demand that juries supply reasons for their decisions, instead of a binary one or two word verdict? Is our commitment to individual liberty a roadblock to catching the guilty, or an immutable principle of which we ought to be louder and prouder?

While there was enough over the five nights to allow us to entertain such thoughts incidentally, it is a shame that at the last the producers swerved off-road, rather than facing the difficult, perhaps more interesting, questions head-on.

A note on blogging – why I write

The Oxford Bread Knife story pootles on, given fresh wind each day by some hot take or other in the op-eds. There has been a lot of reaction on social media, and many people have taken the time to contact me to explain, in varying degrees of politeness, why they do or do not agree with what I’ve said. One article in particular is of interest – this blogpost here by Richard Moorhead. It is a thoughtful piece, with which I largely agree; although it leads me to worry that my position, not only on this story but on legal reporting in general, might have been misunderstood. I took it to be suggesting that, in explaining the legal framework of the Bread Knife story, I might be offering “a minimalistic defence” of the decision. Richard, rightly, said that, “Patting an irritated public on the head and saying, you don’t understand the law sweetypops doesn’t get you very far”, and, equally validly, suggested that “seeking to neutralise arguments on the basis that the law has been followed is not much help”. I don’t know if these last two were general points or aimed at my post in particular; but in any event, I appreciate that there is a risk that I have not explained myself sufficiently clearly, such that misapprehensions have been allowed to gather. So I wished to briefly clarify, as a standing disclaimer to which I can return as a shorthand in future debate, some of the ground rules underpinning my writing.

quill and parchment

My starting point is that the law, and understanding of the law, should be a shared asset. We are all bound by it, and all rely on its proper and just functioning to underpin the fundaments of our daily lives. Criminal law is of particular importance, and holds particular public intrigue, as it regulates the Golden Rules of civilised society, breaches of which are met not merely with financial penalties – as with civil law – but with the state swooping in to interfere with the subject’s liberty. To commit a crime is to break a social rule so important to our shared values that its enforcement cannot be left to private individuals. A crime against one person is a wrong against us all.

It follows that we all have an interest in ensuring that criminal law meets our expectations of “justice”. We may differ on exactly what that entails, but we can probably reach a democratic consensus on its core elements: We should all receive equal treatment before the law. We should all have a say on what the law is, through our democratically elected representatives in Parliament. We are each of us, when we are accused, entitled to a fair trial before a independent public tribunal. We are entitled to know the case against us and to receive independent professional advice on how the law applies. We should be permitted legal representation to robustly test the law and evidence against us, irrespective of our means. If we are a victim of or witness to a crime, we deserve to be treated humanely and with dignity, and our discomfort should be minimised, permitted only where necessary to ensure a fair trial for the accused. Where guilt is proved, the state response must be proportionate, striking the delicate balance between the overlapping and competing aims of punishment, rehabilitation, reduction of crime, public protection and restitution. And we should have a fair and functioning corrective; an appellate system to step in when things go wrong.

My fear, and one which propelled me when I started this blog, is that criminal justice in practice often fails our lofty ideals. Sometimes the problem is with the law itself; sometimes with its execution; sometimes the problem is that the system is financially starved or otherwise perverted by political interference. And most of the time, the public have little idea what is going on. There is, in criminal justice possibly more than any other sphere of public life, a devastating lack of public education, exacerbated by inaccurate, ill-informed media reports and political pronouncements that betray an ignorance of the legal system that stretches up to the very top of government. This lack of understanding means that politicians escape scrutiny when terrible things are wreaked upon criminal justice – such as the policy that you can be wrongly accused of an offence, denied legal aid and then denied the cost of your private legal fees even when acquitted – and that, when we see a legal story reported in the press – such as the latest “look at how much legal aid this murderer received from YOUR TAXES” – we often lack the tools to critically evaluate it.

Part of the problem, as well, is the legal profession. We do a stunningly poor job of explaining to people what the law is, and why it matters. Too many of us are content to busy ourselves in our own work, safe in the knowledge that what we do is important, but without feeling the need to deconstruct for the man on the street why two wigged figures incanting Latin before an old man wearing a giant purple robe, and the obscured codes and rules governing this mediaeval ritual, has any relevance to their everyday life. We then wonder why there is an obvious disconnect between the legal system and the people it exists to serve and protect.

This is where I hope to help. By writing about popular legal stories in the news, I aim to shine a few shaft of light on what is happening beneath the headlines. I want to give the context that you may not be getting from news reports, to explain the legal structures that inform legal outcomes, and to point out where information gaps lie. Often this will involve challenging media narratives – such as “The Ched Evans case sets a precedent for a rapist’s charter” – other times I will simply point out that the gaps in our knowledge about a particular case render it difficult to draw any conclusions as to whether a problem exists, or what its cause might be. Often I will find myself – a far cry from the day job – standing up for judges, explaining why an unpopular decision might not be their fault. Other days I might robustly disagree with a legal decision or policy, but for reasons adjacent to what has been reported.

When I do this, I am not seeking to neutralise argument or shout down opposing views with a patronising, “You wouldn’t understand, sweetypops – it’s the law”. If I ever appear to do so, or if I ever seem to be suggesting that “It’s the law” is the end to an enquiry about whether an outcome is just, I am at fault, because, to the contrary, I want to incite and inform debate. I want people to be excited, livid, passionate and furious about criminal justice. But I want that debate, so long defined by misrepresentations and outright lies by tabloid newspapers and mendacious politicians, to be informed and accurate. When we are livid at a sentencing decision that offends our instinctive conception of justice, I want us to be able to distinguish between a decision that has been foisted upon a judge by case law or Sentencing Guidelines, and a free exercise of judicial discretion, so that we can properly target the root of the “problem”. When someone isn’t charged or convicted, or prison isn’t imposed where we might expect it to be, I want to explore from professional experience what other factors might explain an apparently odd decision. If we are told that victims are being failed and the law is in urgent need of reform, I want us to understand the competing arguments about defendant’s rights, and present the law and facts that might inconvenience campaigners. If commentators wheel out the Legal Aid Fat Cats trope in support of government efforts to restrict your access to legal representation when you are wrongly accused, I want to debunk it.

None of this is intended, necessarily, as taking a position on or mounting a “defence” of the substantive decision or the law itself.  Often I won’t be able to defend a decision, for the simple reason that we don’t know enough about a given case to form a fair view, and I will give a tepid call for calm. This should not be mistaken for complacency or a denial that there is any merit in public concerns; unless I state otherwise, it will be intended as a (perhaps unsatisfactory): We Simply Don’t Know Enough About This To Draw Conclusions, But Here’s What the Law Says. If your response to that is, “Well I want to know more, and I want some conclusions” – then we are on the same page. Sometimes, where I feel I can, I will offer a view on the merits of a debate – as with the Bashir case, in which I opined that the sentence appeared lenient given the facts, or in the Ched Evans case, where I explained why the argument presented by certain politicians was factually and legally inaccurate. In other cases, I will hold up my hands and say that I am not sure which side of the line I fall – as with the Marine A case, in which I explained why both extremes of the argument were wrong.

But I repeat, because it is vital: my stridency or irritation with the presentation of the law should never be read as seeking to protect it from scrutiny, or to casually dismiss issues of concern. It is obviously proper – no, vital – that people raise questions about the law, even where there is little information. I would never blame anyone for asking, “How is it that a person can stab their partner and avoid prison?” I would not take issue with anyone using these stories as a jumping off point to call for more information into an area of criminal law, such as whether we are all really treated equally under the law.  But I do take issue with, and will challenge, people reaching settled conclusions – the judge was an idiot, or biased, or the law needs comprehensive reform – based on partial media reports of a single case. It is this rush to swallow sensationalist soundbites without pausing to gather facts, that I hope to stymie, whether with expositions of the law, data (where available) or anecdote from professional experience.

So that is why I write. I come not to bury criticism of the law, but to praise it. There is a lot wrong with the law – procedurally, substantively and culturally. Just because something is lawful doesn’t make it just. If a few years at the coalface of criminal justice teaches you anything, it is that. I will sometimes say simply: “This is the law”, and leave the deeper question of substantive justice unanswered, for others to mull over. If I ever appear to be relying on, “This is the law” as a full explanation for the justice of a decision, pull me up on it. Because they do differ. And it is occasionally too easy for those like me, stuck in the system, to fall back on that.

Finally, I don’t expect – nor do I want – universal agreement to my meandering streams of legal consciousness or precious political posturing. I want all of us to constantly re-evaluate and question the assumptions underpinning justice, assumptions which I no doubt, despite my efforts, fall prey to. I want us to argue about what the law should be, how it should work in practice and what it says about our society. I want us to care about its failings and campaign tirelessly for its improvement. My aim is simply that when you and I, or you and those Twitter armies, or you and your workmate, cross swords over a legal story, we all stride onto the battlefield equally armed with the law, facts and acknowledged gaps in our understanding.

Because ultimately this affects us all.

 

An Oxford medical student stabbed her boyfriend with a bread knife. So why is she not going to prison?

Remember all the fun we had earlier this year with the Cricket Bat Case? You know the one – where the defendant, Mustafa Bashir, assaulted his wife with a cricket bat, forced her to drink bleach and was given a suspended sentence, partially because the judge took account of the defendant having been offered a professional cricketing contract? And everyone got terrifically angry about it, even though they clearly hadn’t taken the time to obtain the facts? And Diane Abbott and Harriet Harman traversed the airwaves and the plains of social media in furrowed unison to whip up the cries for the judge to be “sacked” for what he’d said, even though he hadn’t said it? And, even when, at the “slip rule” hearing where the defendant was sent to prison after it emerged that the cricketing contract was a fiction, the judge took the time to carefully explain his earlier, misreported remarks, no-one listened and wrapped themselves up in a cocoon of impervious self-righteousness? Remember all that? Yeah? What larks.

Well luckily for us, we may be about to go through it all again. Because once more, Mercury scoots in with a message of justice gone wrong, in the form of a case of domestic violence where the defendant stabbed the complainant with a bread knife, only to be assured by the judge that, when the time comes for sentence, she will most likely not be going to prison. The reason? Her “extraordinary” medical talent.

This post comes dangerously close to breaching one of my cardinal rules, vis not commenting on cases until they are concluded and the full facts (or as close to them as we can get) are known. But given that there has already been a steady buzz of interest in the case online, I thought it worth heading off some of the likely queries at the pass, not least as comparisons with the Bashir case are already circulating.

Facts

The published facts are limited. The Guardian offers us this:

“Aspiring heart surgeon Lavinia Woodward, 24, punched and stabbed her boyfriend during an alcohol-and-drug-fuelled row at Christ Church College. She admitted unlawfully wounding the Cambridge University student, who she met on the dating app Tinder. […] Woodward, who lives in Milan, Italy, with her mother, stabbed her then-boyfriend in the leg after punching him in the face. She then hurled a laptop, glass and jam jar at him during the attack on 30 September last year.”

According to Mail Online, the guilty plea was entered before Oxford Crown Court at an earlier hearing. At a hearing yesterday, sentence was deferred to 25 September 2017. In deferring, HHJ Pringle Q.C. noted that this was an “exceptional” course and indicated that come autumn she may avoid an immediate custodial sentence due to the impact such a sentence would have upon her future career:

 “It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to would be a sentence which would be too severe,” he said.

“What you did will never, I know, leave you, but it was pretty awful, and normally it would attract a custodial sentence, whether it is immediate or suspended,” he said.

It is further reported that Ms Woodward has had articles published in medical journals including the Annals of Thoracic Surgery, Hypertension, and The Journal of Physiology. The Telegraph quotes a source as saying that she finished top of her year in her third year pre-clinical tests at Oxford.

Finally, we are told are that her barrister informed the court that Ms Woodward had a “very troubled life”, struggled with drug addiction and had been abused by a former partner.

So what is going on here?

Deferred sentence

Deferring sentence is nowadays an unusual step to take. It is not to be mistaken for adjourning a sentence hearing, which happens all the time for various reasons – to obtain probation or psychological reports, for example. Rather a deferment is a specific statutory power (section 1 of the Powers of Criminal Courts (Sentencing) Act 2000, as you ask) which a court can use where it wants to observe the defendant’s conduct post-conviction before arriving at a final sentence. If a court is satisfied that it would be in the interests of justice, “having regard to the nature of the offence and the character and circumstances of the offender”, sentence will be deferred to a fixed later date.  Typically, we tend to see it in cases where a judge wants to see if a defendant can make a sustained effort at rehabilitation – say by holding down a job or undergoing voluntary drug or alcohol treatment. If a defendant agrees to a deferment, the court will impose “requirements” as it considers appropriate – in this case, it has been reported that the judge required that the defendant remain drug free and not re-offend.

When she comes back to court on 25 September, the judge will determine whether the defendant has substantially conformed or attempted to conform with the expectations of the court – i.e. by staying clean and keeping out of trouble – and, if she has, she can legitimately expect that she will not go immediately to prison.

Sentencing Guidelines

It appears from reports that the defendant pleaded guilty to unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. While a serious offence, it is of note that it in fact carries the same maximum sentence – 5 years’ imprisonment – as assault occasioning actual bodily harm, which was the offence in the Bashir case. It is also of note that section 20 covers two different offences – inflicting grievous bodily harm, and unlawful wounding. It is one of the many (unjustified) quirks of the law that these two offences are treated equally even though the injury caused in a wounding can be relatively minor (it merely requires a break of the skin), whereas GBH by definition entails really serious harm. Here, we know nothing about the level of injury.

As with all sentence hearings, a court is required by law to follow relevant Sentencing Guidelines published by the Sentencing Council. In this case, we look to the Assault Definitive Guideline. By plugging the facts of the offence into the grid, we theoretically arrive at a category of offence, which gives a starting point for sentence, and a range which the court can move between depending on the aggravating and mitigating factors at play. The Guideline is here:

Now, we have little idea, absent further facts, what category the judge will put this case into. We know nothing about the level of injury, the ongoing effect on the victim, and the circumstances leading up to the assault. But even if the judge were to conclude that the offence was so serious as to fall within the highest category – Category 1 – (which on the given facts I think is unlikely) this would provide a starting point of 3 years, the relevance of which is that once you take off the 1/3 credit that is awarded for a timely guilty plea (assuming that it was), you arrive at something around the 2 year mark. And the relevance of the magic 2 years is that any sentence of 2 years or under can be suspended.

This is a long-winded way of saying, simply, that on the Guidelines, the judge will not have to struggle to arrive at a sentence capable of being suspended, if, as I suspect, this is what he envisages proposing at the next hearing.

Whether he should suspend it is, of course, another matter. And it is here that we find ourselves back in Bashir territory. The parallels are striking: A defendant with no previous convictions; a serious offence of domestic violence using a weapon; and personal mitigation including a promising career. Ms Woodward’s offence is more serious in the statutory hierarchy of violent offences; however she has what appears to be powerful mitigation relating to her reported issues with substance misuse and history as a victim of domestic violence.

While there is no strict test for suspending a sentence of imprisonment, the Guideline offers the following pointers:

IMG_1428

We do not know enough to say whether any of the left hand column is made out; but it could be argued that at least two of the factors on the right apply. The court must have regard to the statutory five purposes of sentencing – punishment, reduction of crime (including by deterrence), reform and rehabilitation of offenders; protection of the public; and making reparations – and will need to assess the appropriate emphasis in any given case. While stabbing with a bread knife is plainly serious, if the injury is not particularly grave, and if the court is of the view that more can constructively be achieved by avoiding sending a promising young defendant to prison and shattering their future life prospects, instead offering in the first instance a sentence focussing on rehabilitation to address deep-rooted problems laying behind the offending, then it is arguably in service of those five principles that a suspended sentence of imprisonment, with punitive and rehabilitative requirements attached, might be imposed.

And, lest anyone be seduced by the reflexive narrative that such merciful sentences are only afforded to white, middle class defendants, let me assure you: this course (as I said in the Bashir posts) is not unusual. Where a defendant who has never been in trouble is facing a custodial sentence of  2 years or under, and where they have the prospect of employment, education or caring responsibilities, judges will often strive to avoid passing a sentence of immediate imprisonment. That is not to deny that unconscious social or racial bias plays a part in judicial decisions; basic neuroscience teaches us that it does, to some degree at least. But the suggestion that this exceptional course is only ever reserved for the Prom Queens (or whatever our British equivalent is) is tired and lazy. The reason you don’t hear about the suspended sentences handed down for less photogenic defendants – for the 19 year-old lad starting his apprenticeship, or the 48 year-old mobile hairdresser – is mainly because the media tends not to report on them.

Conclusion

It is too early to draw any conclusions. That is really the beginning and end of it. But if we must go a little further, I would observe that, although understandably surprising to the non-lawyer, there is nothing on the reported facts of this case to suggest yet that anything is amiss. We will wait and see what September brings (and hope that, given the pre-emptive press rumblings, the judge takes the step of formally publishing his sentencing remarks in full), and reassess then. But it is entirely plausible that this is a sad and difficult case where a talented young woman bearing pains that few of us can imagine acted out in an uncharacteristically raw and violent fashion, in a manner that demands condemnation, but the punishment for which the court will temper with mercy, avoiding the compounded tragedy of extinguishing a bright life in the squalid pits of our rotting prisons.

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POSTSCRIPT: In the event that the judge imposes a suspended sentence on 25 September, there will be calls, as with the Bashir case, for the Attorney General to apply to refer the sentence to the Court of Appeal as unduly lenient, in the hope that the Court of Appeal will increase the sentence. Offences of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861 are not included in the lists of offences that can be the subject of such an application. So if you know of, or are, a politician champing at the bit to call for the sentence to be increased, screenshot this paragraph and have it in your back pocket for September: It can’t be done.

 

Myth-busting the “Tory election fraud” – A 10-point guide

The offending Battle Bus

1. So what’s all this about a Tory election fraud?

The Crown Prosecution Service today announced that, following a police investigation into allegations relating to Conservative Party candidates’ expenditure during the 2015 General Election campaign, no charges will be brought. Fourteen police forces submitted files of evidence for the CPS to consider, said to show that candidates and their agents had submitted inaccurate expenditure returns and, in the case of all but one (a decision on which is pending), the CPS have concluded that no criminal charges should be authorised.

2. What was inaccurate about the expenditure returns?

In short, there are complex rules governing expenditure during election campaigns. One of the more simple is a legal requirement that all candidates – or in practice, their agents – submit to the returning officer within 35 days of the election a “true return” declaring their expenditure, stating all payments made relevant to the campaign together with invoices and receipts. This allows, among other things, for people to check that a candidate has not breached the spending limits (calculated according to a convoluted formula set out in section 76(2) of the Representation of the People Act 1983) to secure an unfair advantage. There are similar rules prescribed for registered political parties in relation to national campaign spending. In the 2015 General Election, the Conservative Party deployed “Battlebus2015”, a campaign in which party activists were bussed into target marginal seats. Problems arose when it emerged, as part of a Channel 4 investigation, that the travel, accommodation and subsistence costs of those activists had been classified as national party expenditure – part of the nationwide Conservative Party campaign – rather than local expenditure, and was therefore not declared on the records of the candidates whose campaigns the activists appeared to be helping. It was suggested by political opponents that this represented a deliberate attempt to circumvent the spending limits.

3. This sounds familiar. Hasn’t there already been a prosecution?

You’re thinking of the Electoral Commission investigation, which reported in March of this year. One of the many inexplicable quirks of electoral law is that it is enforced separately at national and local level. The Electoral Commission is the statutory regulator with investigatory and enforcement powers over registered political parties, and is responsible for securing compliance with requirements relating to, inter alia, political party campaign spending. The Commission has the power to investigate alleged breaches of the law and, if it finds a breach proved, to impose financial penalties, as set out in the Political Parties, Elections and Referendums Act 2000 (PPERA). But as I say, this is only at the national party level. The law governing individual candidates is the criminal law set out in the Representation of the People Act 1983 (RPA), enforced in the criminal courts by the police and Crown Prosecution Service. So where, as here, there are allegations that local expenditure has been misrecorded as national, it straddles the two parallel regimes. The Electoral Commission therefore investigated what offences, if any, were committed by the party, with the police and CPS looking at individual candidates and their agents.

4. What allegations did the Electoral Commission consider?

The Commission investigated a series of alleged discrepancies arising out of three by-elections in 2014 (Clacton, Newark and Rochester & Strood), European Parliament elections in 2014 and the General Election in 2015. This was wider than the CPS investigation that followed, as criminal proceedings in respect of any offences committed in 2014 were time-barred by statute, meaning the CPS were only concerned with the 2015 allegations. The full report is here, but in short, the Electoral Commission considered a series of allegations that the Conservative Party had failed to declare a complete statement of its spending, both by wrongly declaring local expenditure as national and by omitting certain expenditure – including £63,487 on the Battlebus – altogether; had failed to provide adequate accounting records; and had failed to keep invoices and receipts. Responsibility for this was said to ultimately fall on the Treasurer, Simon Day (who is presently under police investigation and so about whom nothing more will be said).

5. What did the Electoral Commission conclude?

It found that there had been three failures to keep accounting records sufficient to adequately show their transactions (in contravention of section 41 of PPERA), all of which related to the 2014 by-elections. And it found proved two offences proved under section 82(4)(b) relating to the 2015 General Election: firstly failing to submit a complete spending return (by wrongly including £118,124 of local candidate spending and omitting at least £104,765 of national spending); and secondly failing to provide receipts and invoices to the value of £52,924. The Commission fined the Conservative Party a record £70,000.

6. That sounds pretty damning. So why are the CPS are now refusing to prosecute?

It has to be borne in mind that the Electoral Commission and CPS were considering separate issues and applying separate tests, albeit with a common factual nexus. As far as the local candidates were concerned, there were two available criminal offences:  “knowingly making a false declaration” contrary to s.82(6) of the RPA, amounting to a “corrupt practice” punishable upon conviction by up to two years’ imprisonment; and a lesser offence of failing to deliver a true return, amounting to an “illegal practice” contrary to sections 81 and 84, punishable by a fine. The distinction between “corrupt” and “illegal” in this context is that to prove the more serious “corruption” offence, the prosecution must prove that the individual acted dishonestly – i.e. that s/he knowingly acting dishonestly according to the ordinary standards of reasonable and honest people. When considering whether to prosecute, the CPS applies the “Full Code Test”. This has two parts – the evidential test and the public interest test. The evidential test is simply: is there a realistic prospect of conviction – i.e. of persuading a court of guilt beyond reasonable doubt – based on the available evidence? If this is satisfied, you go on to consider whether a prosecution is in the public interest. The CPS formed the view that, as the candidates and their agents had been assured by Conservative Party HQ that the Battlebus expenditure was legitimately part of the national campaign, it would be very difficult to prove that the candidates or agents acted dishonestly, as opposed to having acted mistakenly in good faith. In relation to the lesser offence of failing to deliver a true return, the CPS concluded, perhaps charitably, that for for the same reason it was not in the public interest to charge any of the agents or candidates with that offence.

7. So the Conservatives did nothing wrong?

You would be forgiven for thinking so, given the undignified grandstanding indulged in by Conservative Party members today – including utterly ludicrous calls from Karl McCartney MP, one of those investigated, to “abolish the Electoral Commission”, as if the CPS’ decision in any way undermines the Commission’s findings. It is a far leap from “insufficient evidence to prosecute in this instance” to “proven innocent of any wrongdoing ever”. The CPS appeared satisfied, as was the Electoral Commission, that the returns were inaccurate. You do not get fined £70,000 for playing by the rules. Furthermore, it must not be forgotten that during the Electoral Commission’s investigation, the Conservative Party was wilfully obstructive and refused to cooperate fully with the inquiry. This was one of the reasons cited in the Commission’s report for the unprecedented level of fine:

“The unreasonable uncooperative conduct by the Party, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation. This in turn increased the public funds incurred by the Commission during the investigation.”

8. But the Prime Minister said earlier

“The CPS has decided – they are an independent body – they have decided that no charges will be brought against any candidate in relation to this matter. Candidates did nothing wrong. It’s very important and I repeat that – I have said it many times – candidates did nothing wrong.”

and

“[The CPS] confirmed what we believed all along” – that “local spending was properly reported”.

Is she lying?

Yes. Brazenly. The CPS in fact said the opposite, concluding, as we’ve seen, that there was evidence to support a prosecution of failing to submit true expenditure reports, but declined to prosecute as an act of clemency on public interest grounds.

In fact, lest anyone else be tempted to swallow the claim that the Party and its candidates have nothing to be ashamed of, the Commission’s reasons for imposing the £70k fine are worth reproducing in full:

  1. In determining this penalty the Commission took into account the following factors:
  • The magnitude of the contraventions and the harm caused to confidence in the PPERA regime were, in the Commission’s view, significant.
  • The correct apportionment of spending between parties and candidates has a significant impact on the effectiveness of, and public confidence in, the PPERA regime.
  • The advantage obtained by the Party from its actions with each invoice provided to each of the three candidates and agents which inaccurately understated the amount spent by the Party on behalf of the three candidates. This is irrespective of whether, in the end, the Party’s candidates were successful in the by-election.
  • The significant uncertainty for voters as to whether the Party complied with its duties significantly, which increased the weighting to be attached to the magnitude of the breach and the impact on public confidence.
  • The lack of cooperation by the Party during the investigation.
  • The fact that the Party does not accept the requirement to keep records of this type, which leads the Commission to consider the risk that the Party may follow a similar course of action in future if the Commission does not take robust action to make its position clear.
  • An acceptance that, while the second and third contraventions were no less serious than the first, the three separate failures resulted from the same misconceived course of action.
  1. In respect of the offence under section 82(4)(b) of PPERA related to the failure to deliver the Party’s 2015 UKPGE spending return with a statement of all campaign spending payments, the Commission has imposed the maximum financial penalty of £20,000.
  2. In determining this penalty the Commission took into account the following factors;
  • The omission of over £100,000 of spending from the Party’s return alone, which was a significant loss of transparency and a failure of significant magnitude. The actual value of the under- and overstated spending was likely to be far greater.
  • The advantage obtained by Party by its actions; the inclusion in the Party return of what in the Commission’s view should have been reported as candidate spending meant that there was a realistic prospect that this enabled its candidates to gain a financial advantage over opponents. In this respect the Commission noted that the Battlebus2015 campaign visited target constituencies and that South Thanet was also a key priority for the Party.
  • The unreasonable uncooperative conduct by the Party, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation. This in turn increased the public funds incurred by the Commission during the investigation.
  1. In respect of the offence under section 82(4)(b) of PPERA related to the failure to deliver all the required invoices or receipts with the Party’s 2015 UKPGE spending return, the Commission has imposed a financial penalty of £5,000.
  2. In determining this penalty the Commission took into account the following factors:
  • The harm caused to confidence in the party finance regime represented an aggravating factor, in light of the value of the payments and the campaign to which they related. The omission of supporting information undermines the ability of the Commission and the public to review and verify the spending figures within the return. There was a consequent impact on transparency and most likely, as a direct result, on public confidence.
  • The unreasonable uncooperative conduct by the Party during the investigation, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation.
  • The Party has now provided the missing invoices and receipts. However, these were only provided as a result of the Commission’s enquiries.

9. This sounds like a giant cover-up. Jeremy Corbyn is right to publicly announce that he is “surprised” by the CPS’ decision.

No. No no no. No. Just no. There is no evidence at all to reasonably support the claim that the CPS have reached the wrong decision; in fact it was predicted by much wiser commentators months ago. It was always likely to be tricky to prove that local candidates completing their expense returns in reliance on the advice of party HQ were individually dishonest, as opposed to careless. Furthermore, the golden rule in all such cases is that anyone not privy to the evidence, and who is limited to the information in the public domain, should tread carefully before reaching a view on the correctness of the CPS’ determination. To criticise a prima facie explicable decision without having seen the evidence on which it is based, or to imply conspiracy or undue influence, is to snap Occam’s Razor in a political tantrum.

10. So everything’s fine?

No. I wouldn’t say that either. Reform of the law in this area merits serious consideration. It is confusing and unjustifiable to have parallel systems for registered parties and individual candidates. There is something artificial about distinguishing between “national” and “local” expenditure where, as here, the national party focusses its resources on helping candidates in marginal local seats. As David Allen Green sensibly points out, the current set-up invites problems such as those that arose in this case. The statute of limitations of 12 months, which excluded consideration of the 2014 by-election, appears ripe for reconsideration. And the powers of the Electoral Commission are puny. A maximum fine of £20,000 for a single offence committed by a national Party does not even approach a deterrent. Commission chairman Sir John Holmes observed:

“There is a risk that some political parties might come to view the payment of these fines as a cost of doing business; the Commission therefore needs to be able to impose sanctions that are proportionate to the levels of spending now routinely handled by parties and campaigners.”

It’s not just the Conservatives at fault, either. It must be pointed out that the Electoral Commission has recently fined both Labour and the Lib Dems £7,000 and £20,000 respectively for similar failures to declare spending. There is much wrong in this case, and plenty that we can learn. Unfortunately for the more excitable on the internet, neither a failure by the CPS to pin down a clear Tory electoral fraud, nor vituperative incompetence on the part of a bumbling Electoral Commission persecuting innocents, is the lesson to take home.

UKIP’s “Integration Agenda” is a masterclass in legal ignorance and shameless racism

Some political proposals are so self-evidently preposterous that to analyse them is to risk conferring dignity on the undignifiable. However, UKIP’s “Integration Agenda”, a rat’s nest of racialised assumptions masquerading as putative legal reform, trespasses egregiously onto the criminal law. Which, as any fule should know, is this blog’s turf. And on this turf, no idiocy is too stupid to be rebuffed.

The Integration Agenda is in many ways an admirable feat, in that it  diminishes by comparison the barminess of Gisela Allen, the UKIP local election candidate who this weekend called for a buffet of reform that included bringing back the guillotine and cat-o-nine-tails, euthanising people to stop them “getting too old” and banning women from public life. It reads as follows (H/T @jessicaelgot):

 

Dimensions of time and space prohibit an examination of the full manifesto, so let’s consider a choice selection, hold our noses and inspect the intellectual machinery at work:

“Pass a law against the wearing of face coverings in public places. Face coverings are a deliberate barrier to integration and, in many contexts, a security risk too. The time has come to outlaw them. People should show their face in a public place”

By “face covering”, UKIP plainly intends to target the “niqab” (or, as Kippers inaccurately often refer to it, the burkha), in an emulation of the ban enacted in France in 2010. The problem with such laws, as France has discovered, is that in order to maintain the façade that this is not an attack on a particular group of people, rather a general principle, you have to ban all face coverings. Which means prima facie outlawing balaclavas, motorcycle helmets, Halloween masks, gimp suits, zentais (those all-in-one spandex body suits beloved of stag parties abroad) and football mascots, and then working backwards to create exemptions to avoid the law being utterly unworkable. UKIP has today spent significant effort responding to questions as to whether large, face-obscuring hats as worn on Ladies Day will be criminalised, and whether the ban would include beekeepers. Whatever your position on the liberal principles at play, the practical flaws with such laws are obvious.

“Implement school-based medical checks on girls from groups at high risk of suffering FGM. These should take place annually and whenever they return from trips overseas.”

Female Genital Mutilation (FGM) is a vexed topic with an unhappy history of state inertia at its heart. Needless to say, any pragmatic legislative changes that might save the ritual devastation of thousands of young girls each year should be given serious thought.

Serious thought, however, is the magical missing ingredient from UKIP’s proposal. It appears to take its inspiration from the controversial approach in France, where the law provides for widespread medical examinations of children, which it is said has assisted in the prosecution of cases of FGM (albeit under French law there is no specific such offence).  But there are key differences. Firstly, the French system is not mandatory, although receipt of social security is dependent on participation. Secondly, it covers all children up to the age of six. For older children, girls identified as being at particular risk of FGM are required to attend for annual check-ups, and to submit to examination when returning from abroad.

When the French model was considered by the Home Affairs Committee in 2014, they heard evidence that the model had had the effect of increasing the age at which girls were forced to undergo the procedure so as to avoid the “mandatory” tests. Furthermore, the Royal College of General Practitioners told the Committee that routine screening could alienate hard-to-reach individuals and communities, which may prove self-defeating.

But whether the French model is desirable or not, a key difference is that, unlike UKIP, it is not premised on targeting unspecified social “groups”. Up until six, all children are examined. Beyond that, the focus is on girls identified as being at risk. There is an element of non-arbitrariness and proportionality, which is important when you are talking about invasive medical examinations of children. Similarly over here, compulsory medical assessments of children generally require the authority of a court (as with Child Assessment Orders) which will consider whether, on the facts, such invasive action is necessary. I will be corrected by anyone with greater expertise in the area, but I struggle to see how blanket compulsory invasive examinations of children of an undefined particular “group” can possibly be proportionate and not amount to undue interference with the child’s right to privacy and personal autonomy (as guaranteed by the UN Convention on the Rights of the Child).

By focussing on chosen “groups” and not individual assessments of risk, UKIP opens itself to charges of malign motivations, particularly in light of the rest of the Agenda (see below). And what of those unidentified “groups”? Does this include the child’s race? The child’s ethnicity? The child’s nationality? The child’s religion? Or does the heritage test run deeper? The parents’ race/ethnicity/nationality/religion? What if a child is adopted? Or mixed race? What if the child was born in Somalia to Muslim parents, but came to the UK and was raised by white Christian relatives? What happens to a 15 year-old convert to Islam? Does it matter if she is of African heritage? What if she is white? What  will be the statistical threshold of “high risk”? Unless UKIP has answers to these, it will take significant effort not to hear a screeching dog whistle behind this policy, and infer that by “groups” they mean, loosely, “Muslim”, “brown” and “black”.

A final salute must be given to the intellectual endeavour behind the broadness of the final criterion, “whenever they return from trips overseas”, ensuring that the unfortunate child taken to Disneyland Paris for a weekend will enjoy a return journey contemplating her Monday morning at school spent with a stranger inspecting her labia.

“Make failure to report an instance of FGM by someone who has knowledge that it has taken place a criminal offence itself.”

Positive: The germ of a good idea.

Negative: This is basically already law. Section 3A of the Female Genital Mutilation Act 2003, as amended by section 72 of the Serious Crime Act 2015, makes it a criminal offence, punishable by up to 7 years’ imprisonment, for a parent or other responsible carer of a girl under 16 to fail to protect her from an act of FGM. Section 5B of the 2003 Act places a positive obligation upon healthcare professionals, teachers and social workers to report discoveries of FGM to the police.

“The CPS to operate under a presumption of prosecution of any parent whose daughter has undergone FGM [Female Genital Mutilation]”.

Putting aside the casual reversal of the presumption of innocence lying at the heart of our justice system, a “presumption of prosecution” means one of two things: either it surpasses the current test for prosecuting, about which below, or it doesn’t, in which case it is meaningless.

If it is intended to have meaning, it must supplant the existing Code for Crown Prosecutors, the guidance governing decisions to prosecute, which is issued by the Director of Public Prosecutions (DPP) under section 10 of the Prosecution of Offences Act 1985. Criminal prosecutions must only start or be continued where the Full Code Test is met. This comprises two parts: (i) the evidential test; and (ii) the public interest test.

The evidential test is simply expressed: On the evidence available, is there a realistic prospect of conviction? The public interest test comprises consideration of various factors, including the seriousness of the offence, culpability of the suspect, harm caused to the victim, age of the suspect, community impact, proportionality of prosecuting and national security.

It is unclear which of these two tests the “presumption of prosecution” is expected to override. If the former, it will mean that cases where it has been judged that there is no realistic prospect of conviction (such as where one parent is estranged from the child and does not appear to have the requisite “frequent contact” with her) will be prosecuted at significant public expense, with young, brutalised girls deliberately dragged through the mire of criminal litigation to no avail. If the presumption in favour of prosecution is to kick in at the public interest stage, then UKIP would be advised to read the existing Code, which, in the chapter dealing with the pubic interest test, states (at 4.8):

 “Once the evidential stage is met […] a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.”

Or what one might call a presumption in favour of prosecution.

“In cases where the victims of grooming gangs are of a different racial or religious group than the offenders, the CPS should cite this as an aggravating feature of the offence when prosecuting, opening the way to a longer sentence.”

 The meat of the racist pie. What this is not-so-subtly aimed at is those stories that excite the tabloids where gangs of Asian (often Muslim) men groom white girls. For UKIP, if there is one thing that aggravates the rape of a child, it’s a mixing of the races.

Currently, courts are required by law (section 145 of the Criminal Justice Act 2003) to treat racial or religious aggravation in the commission of an offence as an aggravating factor in sentencing (save for in relation to specific offences which are by definition racially/religiously aggravated, such as racially aggravated common assault).

What amounts to “racial aggravation” under s.145? The definition, set out at section 28(1) of the Crime and Disorder Act 1998, is where:

at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

This, it can be seen, is a definition that focuses on the defendant’s specific conduct. It doesn’t matter what race the defendant or victim is – it is the particular intent that matters. The offender and victim might be of different races, or the same – it’s irrelevant. UKIP’s reform would turn this on its head, focussing not on what the defendant did or said, but entirely on the colour of his skin. All that would be required, in certain (unspecified) offences related to child grooming, is that the victim belong to a different racial or religious group than the offender. The actual existence of racial or religious aggravation would be irrelevant. The message, whether intended or not, is, “It is worse to rape a child of a different race to your own.” It is difficult to discern a motivation behind this policy other than naked racism.

 “CPS and police to be instructed to treat a so-called “honour” dimension of any act of violence as an aggravating feature, leading to it being accorded a higher –priority for investigation and prosecution and not a lower one.”

The premise of this pledge is that “honour” acts of violence are presently a “lower” priority for the police and CPS.  And I agree. What have the police and CPS ever done about “honour” violence for us? Apart from the ACPO (Association of Chief Police Officers) Honour-based Violence Strategy, of course. And the National Police Chiefs Council’s Honour-based abuse Policing Strategy. Also the CPS Protocol on handling “so called” Honour Based Violence/Abuse and Forced Marriage Offences. I suppose there’s also the long-running Violence Against Women and Girls Strategy, as detailed in the Cross Government VAWG Action Plan, overseen by the VAWG Inter-Ministerial Group. But apart from that, what have the police and CPS ever done about it? And when have they ever considered this to be a priority for investigation and prosecution? Aside from the action plan developed last year to address ways to improve prosecutions. Etc. Etc.

No-one wants to suggest that UKIP are a bunch of hog-brained, village ninnies who haven’t even consulted Google before firing off a range of mind-spasmingly senseless policies designed to prey on the very worst racial prejudices of their core voters. But an Integration Agenda that proposes intimately examining the genitals of children from minority groups, dragging such children through courts as witnesses where there is no prospect of conviction and locking up people for longer on the basis of their race, does not assist their cause.

 

*********************************

UPDATE: A number of commenters with first-hand experience of the French system have been in touch and advised that the position as understood by the Home Affairs Committee regarding compulsory medical checks in France is incorrect. I am informed that, in fact, the medical checks that take place up to age 6 do not include invasive genital examination. The evidence reported by the Committee in 2014 and 2016, upon which I have relied, can be found here and here.

Convicting the dead shows that we misunderstand the purpose of our criminal courts

Monday’s column for the i newspaper, for those interested, can be found here:

“Convicting the dead shows that we misunderstand the purpose of our criminal courts” https://inews.co.uk/opinion/convicting-dead-shows-misunderstand-purpose-criminal-courts/

Oliver_Cromwell_by_Samuel_Cooper-e1478589160860

And while we’re at it, a couple of other recent pieces for iNews that I forgot to link to:

“Both sides are wrong in the Marine A controversy” https://inews.co.uk/opinion/sides-wrong-marine-controversy/ 

“At £131,000, Katie Hopkins should realise trolling on Twitter is an expensive hobby” https://inews.co.uk/opinion/comment/131000-katie-hopkins-realise-trolling-twitter-expensive-hobby/ 

Post-script: Mustafa Bashir, a non-existent cricket career and victim vulnerability

As predicted in my last post, Mustafa Bashir, the wife-beating amateur cricketer who received a suspended sentence of 18 months’ imprisonment after hitting his wife with a cricket bat and forcing her to drink bleach, was today recalled to court and re-sentenced under the “slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000). HHJ Mansell Q.C. exercised this power after it emerged that, contrary to claims made on Bashir’s behalf in his barrister’s plea in mitigation, he was not in fact on the verge of signing a professional cricketing contract with Leicestershire County Cricket Club. Re-sentencing on the true factual basis as has now emerged, the judge passed a sentence of 18 months’ imprisonment straight.

beautiful-fantasy-cricket-bat-and-ball-hd-free-wallpapers

The sentencing remarks are reproduced in full below, and I urge all of the people – in particular politicians like Diane Abbott who ran to the radio stations to bleat in clear and wilful ignorance of the subject matter – to read them, and to circulate them with the same vigour as they did their original criticism. Key points, briefly, are as follows:

  • Despite wildly misleading headlines from the BBC (and no doubt others to follow), the sentence has not been reviewed because of “public outcry”. It is solely because important information put before the court on the last occasion has transpired to be untrue. If you take away nothing else from this post, please at least remember that.
  • Bashir was afforded the opportunity to gather evidence to support the claims made at his sentence hearing. He managed a few emails suggesting he had attended a couple of “net sessions”, but nothing to suggest he was anywhere close to the professional contract that was claimed was awaiting him. The Judge said that there “was not a shred of evidence that you had received an offer of a full-time contract from Leicestershire CCC”.
  • Bashir, instructing a new barrister, admitted that there was no professional contract, but claimed that there had been a misunderstanding, in which both his previous barrister and the probation officer had been confused by what he was trying to tell them, and had mistakenly overstated the true position. He said that he didn’t correct his barrister when the untrue assertions were made on his behalf in open court as he was too emotional to pay attention to what was being said. The judge rejected this entirely, pointing out that Bashir had submitted a letter, purportedly from an agent, in which false claims to have played cricket for Pakistan Under-19s were repeated.
  • The Judge concluded that this was a “false claim” and “deliberately made”.
  • On the last occasion, the Judge explained that the decision not to send him to prison immediately was finely balanced, and that the offer of employment was a material factor in tipping the scales in Bashir’s favour. Today, the Judge said that now that the true situation was known, the grounds for suspending the sentence no longer existed. You may of course feel that the offer of a job should not of itself have amounted to a reason to suspend the sentence in the first place; this is an entirely legitimate view, although as I explain in my last post, it is not uncommon for judges to attach significant weight to the impact of a sentence upon a defendant’s employment.
  • HHJ Mansell Q.C. explained that in passing a sentence of immediate imprisonment, he was not punishing Bashir for lying to the court. This is important on two fronts: Firstly, it refutes the social media meme that “domestic violence doesn’t get you jail, but lying to a judge does”. The defendant has not been punished for lying to the judge. He has been sentenced as if the lie had never been told. Which brings us to the second point: as Bashir has not been punished for the lie by the judge, I’d venture that it makes it more likely that the Crown Prosecution Service will consider a prosecution for attempting to pervert the course of justice to be in the public interest. Given the publicity that has followed, the CPS might wish to fire a warning shot across the bows of any defendant tempted to advance false mitigation by making an example of Bashir.
  • The Judge went on to expand upon the assessment of “particular vulnerability” that he conducted on the last occasion. At the risk of sounding immodest, it is pretty much as I tried to explain in my last post; namely, the Judge was simply assessing the criteria required of him by the Sentencing Guidelines. Anger at the judge for his approach in this regard ought properly to be directed at the Guidelines that he was required by law to follow. And to the media outlets who selectively reported his comments (including omitting the key word “particularly”).
  • That all said, none of this detracts from my original assessment in the last post, vis the length of the sentence. On the reported facts, 18 months’ imprisonment still appears a generous result for the defendant.

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Sentencing Remarks of HHJ Mansell Q.C., Manchester Crown Court

Mustafa Bashir, on 21st March, I sentenced you to concurrent terms of imprisonment of 18 months on two counts of Assault ABH.

I suspended those sentences of imprisonment for a period of 2 years on condition that you undergo a supervision requirement and a programme requirement.

I have listed your case today for a review of that sentence pursuant to s155 of the Powers of Criminal Courts (Sentencing) Act 2000, following reports in the media suggesting that you may have misled the court as to your future career prospects.

I directed that you should produce evidence to support the claims you made that you had previously been offered a contract to play cricket for Leicestershire and that such offer remained open to you if you kept your liberty.

You have failed to produce any evidence to support those claims.

All that you have produced today is a handful of emails showing that you may have attended an indoor net session at Grace Road in December 2014, and an outdoor net session in April 2015.

There is a further email from you in December 2015 in which you enquire about the outcome of a trial you had attended at the club.

There is no evidence as to what team you were trying out for or what the outcome of such trial was.

The coach at Leicestershire with whom you were in email communication has made a statement to the effect that he does not recall you, which you would think he would, in light of the fact that you were considerably older than the majority of cricketers he was seeking to recruit for the club at that time.

Your name does not feature in the list of attendees at the trials held in 2015.

Therefore, in summary, there is not a shred of evidence that you were ever chosen to play for Leicestershire CCC, let alone that you had received an offer of a full-time professional contract.

It has been suggested by your counsel Mr Sastry, who has appeared today and acts on your instructions, that this is all an unfortunate series of misunderstandings, and that your past career achievements and future career prospects were accidentally over-stated.

I reject this submission.

You were interviewed by a probation officer, Michael Whalley, in advance of the hearing and told him you had played cricket for Pakistan Under 19’s.

You now submit that he misunderstood this and you only played for Islamabad in a national competition.

You also say he misunderstood you when he reported you had played “semi-professional cricket for Leicestershire

Finally, you explain that when he reported that you were “due to sign a contract with a team shortly before your arrest” this was not with Leicestershire but with Methley CC in a Yorkshire-based league.

In his plea in mitigation, Mr McKee, acting no doubt on your instructions, submitted that if you were permitted to keep your liberty, you would be “employed by Leicestershire as a professional”. 

He referred to the pre-sentence report and added that you had been “about to sign a contract when you were arrested”.

He is an experienced counsel and would not have made such a bold submission had you not instructed him that this was the case.

You claim that he has misunderstood the position but if that was the case, it begs the question why you did not speak up at the time and correct his mistake.

Your response is that you were emotional and not listening carefully to what was said in court and so did not hear what he said.

The evidence that gives the lie to your explanation advanced by you today is a letter that was submitted to the court on your behalf by your solicitors from a man named Abid Riaz, said to be a sports agent with the Pro Elite Sports Agency in Bolton.

He wrote that he had been your agent for several years and that you had played cricket for Pakistan at Under 19’s. Unlike the Probation Officer, it is hard to see how an experienced Pakistani cricket agent could have made such an error.

He also claimed he had arranged your trial at Leicestershire, of which there is no evidence.

He concluded his letter by saying that you had a “very bright future ahead of you as you had been selected to play for Leicestershire County Cricket Club”. 

There was no misunderstanding here on the part of the probation officer, or Mr Riaz, or your counsel.

You were clearly making a claim to the court that you had a career in professional cricket ahead of you which was false.

You made that claim quite deliberately in the hope that you would avoid a prison sentence.

As I made clear when sentencing you, the appropriate sentence for these offences was 18 months’ imprisonment.

I then said the following –

“The only issue for me to grapple with today is whether your good character; the delay since these offences; and your current situation – namely in a settled relationship with a partner who complains of no violence and who is supportive of you; your employment, which you have been in since April last year; as well as your prospective employment, which is offered in cricket for Leicestershire County Cricket Club; whether all those factors taken together can save you from serving that sentence today. I have to tell you that it is a very finely balanced decision, because the court simply will not tolerate violence in a relationship of this nature.”

It was only because of the combination of all those mitigating factors I referred to – but particularly your new relationship and your future career prospects – that I took the exceptional course I did.

Therefore, now that it has come to light that a fundamental aspect of your plea in mitigation was false, I have no hesitation in varying the sentence and imposing immediate sentences of imprisonment, which I would have passed had I known the true position.

I stress that I am not altering my sentence to punish you for lying to the court. You may well face investigation into whether you have committed quite separate offences of perverting the course of justice.

I am altering my sentence because I was fundamentally misled by you as to your personal circumstances.

The sentence on each count on the indictment is therefore an immediate term of imprisonment of 18 months concurrent on each count.

You will serve half the 18 months in prison, then will be released on licence.

You are liable to be recalled at any time if you breach the terms of your licence or reoffend.

All other aspects of the sentence stand, including the restraining order which will apply indefinitely, as well as the order for costs.

VULNERABILITY 

I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim.

I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.

Having set out in some detail the facts of the case, all of which I accepted as truthful and accurate from the victim’s witness statements, I turned to sentence and said the following –

“These were two very serious offences of violence against your former partner. I am not convinced on the guidelines that she was particularly vulnerable due to her personal circumstances”

The words “particularly vulnerable due to her personal circumstances” are taken from the Sentencing Guidelines Council definitive guideline for offences of Assault, which I was bound to and did follow.

This is one of three factors that the court is required to consider in determining the harm caused by the offence.

Particularly vulnerable means especially vulnerable, exceptionally vulnerable or unusually vulnerable

There is a second guideline for sentencing in cases of domestic violence to assist judges with what this means in practice.

Victims who are very young or old, who are physically or mentally disabled, and female victims who are pregnant, are all to be treated as particularly vulnerable.

The guideline also contains the following paragraph:

For cultural, religious, language, financial or other reasons, some victims of domestic violence may be more vulnerable than others, not least because these issues may make it almost impossible for the victim to leave a violent relationship”

It was to this passage that I was referring when I gave the example of a woman who comes to the UK from a foreign country to live with her husband or partner, leaves her friends and family behind, makes few if any friends here and struggles with the language, with the result that she becomes effectively trapped in a violent relationship.

In referring to the fact that Miss Karim was an intelligent woman, who had worked as a receptionist and studied at university, and who had a network of friends, I was simply highlighting the fact that she had a degree of independence and support that some victims, whose circumstances are different, do not.

I was doing no more and no less than making a finding, in accordance with the sentencing guidelines, that she was not particularly vulnerable as compared with other victims whose personal circumstances are different.

She was, however, plainly vulnerable, as my sentencing remarks made perfectly clear.

She was vulnerable before the assaults started, because of the controlling behaviour of the defendant, which had distanced her from her family and friends, and which had undermined her confidence.

She was vulnerable after the assaults due to the ongoing psychological effects on her of the defendant’s violence.

I stated clearly that this was an aggravating factor and increased the starting point for sentence.

I referred in detail to her Victim Personal Statement, in which she described how she had been confident, active, humorous and positive about the future before the assaults.

I observed how, following the assaults, her confidence went down, she started to hide away from friends and family and her studies were affected.

I also noted that the most significant effect on her was that she now had issues with trusting people, and particularly men, and that she believed she would find it very difficult to trust another man in future.

I am concerned that the misreporting and misunderstanding of my remarks may have given Miss Karim the impression that I did not believe her account as to the effect these offences have had on her, or that I did not consider her to be vulnerable.

I trust that she will be given a copy of the transcript of my sentencing remarks on the last occasion and a copy of the remarks I have made today, copies of which are also available for the Press.

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