I had the pleasure of a spot of lunch with Barney Thompson, legal correspondent at the Financial Times, for the “Lunch with the FT” feature in this weekend’s edition. Given the profile of interviewee normally invited (recent guests include Woody Harrelson, Anthony Scaramucci and Jacinda Ardern), this is an honour I most certainly don’t deserve, but the prospect of a free lunch trumped any sense of guilt or propriety.
Partly, the fault is internal: the ridiculous costume; the alienating hybrid of legalese and obsequious formality that renders court hearings nonsensical to anyone in the public gallery; the impenetrability and inaccessibility of updated statute and case law; the historic failure of those of us in the system to lawsplain to those outside how justice works and why our founding principles are so important.
But part of the problem is broader: the refusal of successive governments to provide any meaningful legal education in schools; irresponsible and inaccurate news reporting; and legal illiteracy indulged and expounded by politicians using the law as a cheap crop to beat their hobby horse of choice.
The result has been inevitable. Centuries of compounded negligence have culminated in a disconnect between the criminal justice system and those it purports to serve. And most days it feels as if it’s getting worse. No longer are rabble-rousing mis-reports of legal stories confined to a day’s news cycle before being scrunched around tomorrow’s cod-and-chips; the rags are now frequently doused in the kerosene of social media and sizzle with white hot rage for days, weeks and even months on end.
While I don’t pretend that this is a problem confined to criminal law, it is often the tales of “soft sentences” and “putting criminals’ rights ahead of the victim” that burn the brightest. The formula is predictable: there will be a headline attack on an “out of touch” judge (pictured, for enhanced ludicrousness, in their ceremonial wig), with a decontextualised snippet of the judicial remarks and a gaping absence of informed fact or sober analysis.
And over the past twelve months, we’ve suffered 365 Groundhog Days of these. The case of Ched Evans kicked things off, with outlets eager to report the outright untruths of politicians suggesting that this case set a dangerous precedent allowing complainants in sex cases to be gratuitously humiliated in court over their sexual history. A campaign to not just reform section 41 of the Youth Justice and Criminal Evidence Act 1999, but to issue a blanket ban on any questions about sexual behaviour, is still being propelled by several MPs. It matters not that to do so would result, inevitably, in vital defence questions being prohibited and innocent people being convicted. A straw man effigy of section 41 has been hoisted onto the bonfire along with the presumption of innocence, with Harriet Harman proudly holding aloft the matchbox.
A run of sentencing “outrages” has followed.
The man who beat his wife with a cricket bat and was spared jail, because the judge deemed that the victim was “not vulnerable” (except the judge didn’t say those words, and it wasn’t the reason for the custodial sentence being (initially) suspended). The paedophile released only five years into a 22-year prison sentence (except it wasn’t a 22-year prison sentence, and he served longer than five years). Lavinia Woodward, the Oxford undergrad whose gratuitous bikini shots accompanied the squeals of horror that this rich white girl had been spared prison for stabbing her boyfriend, just because the rich white judge thought she was “too intelligent” to be locked up. Was that the reason she was spared jail? Did the judge ever say those words? Are any more rhetorical questions needed?
Rarely, if ever, is the reader informed of the Sentencing Guidelines and case law that constrain judges as to their approach in these cases, and which explain certain terms deployed in the sentencing remarks. Rarely are those remarks published in full — a flaw in the channels of official judicial communications for sure, but also the responsibility of those trained in shorthand in the press gallery. And rarely is there any voice of expertise explaining the apparently inexplicable, or offering a counterpoint to the incitement to fulminate.
Sometimes, of course, decisions will be made in court which do horrify, and for which there is no sensible justification. But most often, a straightforward, prosaic explanation exists. It’s just not reported. Neither editor nor politician will deal in full facts, whether through ignorance or malice.
The greatest tragedy is that if, instead of scything the low-hanging, rotten fruit the reporters reached a little higher, they would find that there is so much in criminal justice for their readership and Twitter followers to get angry about.
There’s the obliteration of legal aid, cutting the middle-classes out of publicly-funded legal assistance if they are wrongly accused of a criminal offence. There’s the ‘innocence tax’, which means that if, having been refused legal aid, you pay privately for your defence, you are not allowed to reclaim your full fees even if acquitted. Everyone in the system can speak for hours about the stack-em-high, sell-em-cheap model of warehouse justice in the magistrates’ courts, which is being rolled out in the crown courts under the euphemism of glorious efficiency. Disclosure — the means by which most innocent people secure the key to their escape — is found by report after report to be an abomination due to a hybrid of poor training and insufficient resources at the cut-to-the-bone police and Crown Prosecution Service.
But these problems evade meaningful public scrutiny, perhaps through ignorance, or perhaps because it’s simply far easier to report, and get angry about, a pervert getting help in the community rather than rotting in our violent, suicide-ridden prisons.
Public legal education is needed now more than ever. The Solicitor General, to his credit, appears to recognise this. His new Public Legal Education Panel is a start. Something needs to change if the public are going to have a hope of recognising where the real problems in justice lie; and who, in reality, poses the greatest threat to their rights. The thing about criminal justice is that, for all too many people, the realisation of how far basic protections have been eroded only dawns when it’s too late.
This article first appeared on Legal Cheek, and is available here.
If there is one positive to be derived from the Criminal Courts Charge (about which see here), it is that the creeping media attention is starting to shine a low-wattage torch on the grubby underside of the criminal justice system – the magistrates’ courts.
Enormous credit must be extended to Frances Crook and colleagues at the Howard League for Penal Reform for their just and righteous campaign against the Criminal Courts Charge, Chris Grayling’s final stinking dump on the criminal justice system before Mr Cameron mercifully took him out of service and put him out to what one hopes is his final political pasture before a deserved finale at the glue factory.
By retweeting local media reportage of cases where this new mandatory financial penalty has been imposed upon the very poorest in society to cruel and perverse effect, the Howard League has piqued social media interest, and one reported case, and one injudicious judicial comment in particular, has found its way into the Twitter crosshairs.
On Thursday August 6th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.
Delicious £328.75-y goodness
What caught the eye, however, was this reported remark attributed to the chairman of the bench, who said: “We do not readily accept you go into a shop to steal just for being hungry.”
Read that again. And once more, please.
Now let’s get a few things clear. The Halesowen News does not report the full context of those sentencing remarks. It may be that the Defendant had resiled from that feature of her mitigation, allowing the magistrates to readily dismiss it. It may be that, in accordance with the Court of Appeal authority of R v Newton Cr.App.R. 13, having doubts as to the veracity of the defendant’s account the magistrates invited her to give evidence on oath, and, she having either done so unimpressively or having refused, the bench felt able to safely reject her explanation.
But, if they are of the same disposition and temperament as some of the magistrates in front of whom I have appeared, I cannot rule out the possibility that they instantly rejected a prima facie plausible strand of mitigation because the colour didn’t fit into the limited spectrum cast by the dispersive prism of privilege through which they view the world.
There is no doubt that there are some good magistrates. But those who volunteer with open minds and honourable intentions are, in my experience, stymied by colleagues whose collective common faults can be reeled off rote by any solicitor or barrister who has spent an afternoon holding back tears of frustration before a lay bench.
I could go on. In future posts I will. Because to those outside the system, the dictum of the Mars Bar magistrates probably strikes as an anomaly. Whereas those inside the system know that such sentiments are expressed, distilled and formulated into sentences of up to a year in prison every single day, in every magistrates’ court in the land. 95% of criminal cases are dealt with by the magistrates’ court, by volunteers with no legal qualification and an invariably skewed perspective on social matters. And I can say without hesitation that the gravest instances of injustice I have witnessed in my career have all occurred at the hands of lay benches.
The problem, in my humble view, is not the magistrates in this case. The problem is a system that allows people to self-select as arbiters of justice, when justice would be far better served by increasing the number of professional District Judges sitting in the magistrates’ courts. None of the above would have happened with a District Judge. And I would bet £328.75 that a DJ would have dealt with Louisa Sewell with at least a smidgen of humanity.
The naysayers have been saying nay since long before I came to the criminal Bar. This is a dying industry, the wide-eyed prospective criminal practitioner is told. You’ll be squeaking into a criminal justice system that would be fraying at the seams, had the seams not been privatised and sold at bargain-basement prices to G4S and Capita. There’s no money for the police, for the Crown Prosecution Service, for defence solicitors or for the courts, and even less for barristers. What little money exists is spunked on a vicious circle of failed I.T. procurement and on locking up pathetic unfortunates for whom prison offers nil rehabilitative or deterrent benefit. The court infrastructure is stuck in the 1970s, you can make more money from betting that any given case will find itself adjourned due to the CPS having not served evidence than you can from actually practising law, and you can guarantee that most participants (or “stakeholders”, as we now must call them) leave the criminal justice system feeling that anything other than justice has been served.
To which I would say to my future pupil – it’s not that bad.
The criminal justice system barely hangs together. Most days, it is a thread away from disintegrating completely. If the criminal justice system were the NHS, it would never be off the front pages. Political parties would be clamouring to drape themselves in Magna Carta-embossed flags and declare themselves as the One True Protector of the Faith, castigating the constitutional vandalism of those on the opposite benches.
Serious criminal cases collapse on a daily basis because of eminently avoidable failings by the prosecuting authorities. Provably guilty people walk free. Simple, obvious, easily-obtainable evidence is simply not gathered – or where it is gathered, is not served, gathering dust on the hot-desk of a CPS caseworker juggling a three-figure caseload. More complex, costly evidence is not obtained due to expense. Sensible offers by defendants to resolve cases are rejected by Crown Prosecutors obsequious to their precious “statistics”. And victims of crime see their oppressors walk free.
On the other side of the divide, the accused find themselves waiting years for a trial, told their cases are “adjourned for lack of court time” for a third, fourth or fifth time, notwithstanding the brand new courtroom, built at significant public expense, sitting empty down the corridor due to slashed court budgets. Or they wait until the day of trial, or perhaps for eternity, for the indolent prosecution to disclose material information that fatally undermines the prosecution case. They find themselves represented by solicitors who can only devote a fraction of the required time to their case, due to the need to stack cheap cases high to remain financially solvent. Or, increasingly common, defendants are excluded from publicly-funded representation altogether, forced to scrape together savings or loans to meet legal aid “contributions” or private legal fees, failing which they represent themselves in DIY proceedings in which the endgame is a prison sentence. And people who are not guilty find themselves in prison.
It shouldn’t be like this.
Our system is on occasion brilliant. It can be devastating, fascinating, grotesque and glorious. It is served by some of the most magnificent, intelligent and compassionate devotees to justice and public service, and simultaneously infested by the most malign of self-interested parasites. The daily realities witnessed by the criminal barrister betray these eternal dichotomies. A justice system that could be – should be – so treasured by the public is lain to waste by governments seeking an easy cut, ignored by those fortunate enough to evade its reach, and suffered by the few – defendants, victims, witnesses – for whom the vagaries of fate lead to the courtroom door.
This blog aims, in its own insignificant, inconsequential way, through anecdote and polemic, to shine a little light on what goes on behind that door.