The truth about the government’s claims to have “ended the rough sex defence”

Following a lot of media coverage of this issue, I wrote a Twitter thread looking at the law behind it. I’ve reproduced it here in case it’s of interest.

Postscript: Unforgivably, I suggested in the thread that R v Brown was a Court of Appeal decision when, as every first-year law student knows, it was a House of Lords judgment (the predecessor to today’s Supreme Court). The link, should you wish to read the gory case in full, is here.

Guest post by Mira Hammad: Covid-19 and the right to protest: an alternative view

I am pleased to host this guest blogpost by Mira Hammad, a pupil barrister at Garden Court North Chambers. It is written in response to the guest blogpost by Rebecca Penfold and Aparna Rao, published last week.  

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In their blogpost Rebecca Penfold and Aparna Rao look at the amended Coronavirus Regulation 7 and whether it infringes the right to protest. Regulation 7 prohibits outdoor gatherings of more than 6 people. The authors conclude (as have many lawyers commenting on this issue) that protests are unlawful under that provision. If this is so, it clearly interferes with our right to protest under the Human Rights Act.

The post goes on to consider whether this is a permissible limitation on the right to freedom of assembly and association. In the authors’ view “in order to argue otherwise, one would need to be able to show that, far from the limitation on gatherings being an unavoidable side-effect, the COVID-19 regulations are being used, or misused, as a means of silencing free expression.”

But that isn’t the test that the courts apply when it comes to the lawfulness of an interference with our human rights. In the defining protest case, DPP v Ziegler and Ors [2019] EWHC 71 (Admin), the court set itself a much more exacting set of questions.

Where a defendant is legitimately acting in exercise of her right to protest and there is an interference by a public authority, even if that interference is prescribed by law, the court still needs to ask:

  1. Whether the interference is in pursuit of a legitimate aim, and
  2. Whether the interference is necessary in a democratic society to achieve that legitimate aim.

Clearly the answer to the first question is yes. The answer to the second question is much more interesting. To answer it, the court would need to ask itself a series of sub-questions including:

  1. Is there a rational connection between the means chosen and the aim in view?
  2. Are there less restrictive alternative means available to achieve that aim?
  3. Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?

These questions are fact specific – in other words they cannot be answered in the abstract in relation to everyprotest and every interference by the police.

For example, we can imagine a protest where all of the participants are 2 metres away from each other and wearing masks. The police then turn up, herd protestors into a smaller space and (not wearing masks) themselves get close to people to arrest them. Would there be a rational connection between the police doing that and preventing the spread of the virus? Is that the least restrictive way of preventing the spread of the virus while allowing people to protest? Where in that balance are the rights of the individuals?

We can see these are not cut and dry questions.

Nor is it a simple answer to point out, as the authors do, that protestors could express their views in other ways, on Twitter for example. As the Court of Appeal has emphasised (Hall v Mayor of London [2010] EWCA Civ 817) the right to express views publicly (particularly on important issues) “extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views.”

The authors also point out that there is a 28-day review on the infringement, and that the regulations are clearly being amended to relax the restrictions over time. This isn’t necessarily a definitive answer either.

The fact that we are now in a phase where restrictions have been relaxed to allow gatherings for the purposes of training elite athletes (7.2(c)) is likely to make it more difficult, not less, to show that a blanket ban on protests is necessary.

Protests are also time-sensitive, people around the world are protesting as a result of the despicable killing of George Floyd and they are protesting now. To say that protestors can wait for 28 days and see what the government has to say in its review simply doesn’t answer the question of whether the interference with their right to protest is lawful today.

Where does all of that leave us? In my view, nowhere very clear cut. The courts would have to make a decision with regard to each defendant. They would have to consider the questions above in the context of that particular protest and decide whether the interference prescribed under the Regulations is lawful under the Human Rights Act or not.

And if it is not, what does the court do then? Well, in the first instance, courts have to interpret legislation as far as possible so that it is compatible with human rights. The courts would have some options before them in this regard. Could an exception be read into the definition of ‘gathering’ or ‘activity’? Could some protests be deemed to fall into exception 7.2(f) where a gathering is lawful where it is reasonably necessary for the purposes of education (…and one could certainly argue that public education is needed on the issue of racism…)? If the courts feel that there is no possible way of interpreting the regulations so that they are compatible with human rights, then a declaration of incompatibility would have to follow.

Blanket provisions and clear-cut answers don’t usually sit well in the arena of human rights law, where the reigning principles are proportionality, balance and necessity. The extraordinary times in which we find ourselves don’t change that.

Guest post by Hannah Edwards: The clock is ticking – bail breaches and Covid-19

I am pleased to host this guest post by Hannah Edwards, who is a second-six pupil practising at Drystone Chambers.

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In the chaos that Covid-19 has brought to our criminal justice system it is now, more than ever, important for practitioners to remember the fundamental principles when considering breaches of bail in the magistrates’ court.

A defendant who has been remanded on bail may be arrested without warrant if a constable has reasonable grounds for believing that they are likely to break or have broken any of their bail conditions (section 7(3) Bail Act 1976). Breach of bail, whilst arrestable, is not a standalone criminal offence.

The 24-hour time-limit

Upon arrest for an alleged breach of bail, a defendant must be brought before a magistrates’ court ‘as soon as practicable’ and in any event within 24 hours of arrest (section 7(4) Bail Act 1976). The hearing need only be before a single justice. Sundays, Christmas Day, and Good Friday do not count for the purposes of this time limit (section 7(7) Bail Act 1976). All other public holidays do count. In practice this means that if a defendant is arrested at 11am on a Saturday, the time limit expires at 11am on the Monday. If a defendant is arrested at 11am on a Sunday, the clock does not start ticking until the Monday (12:01am) and expires at midnight on Monday.

What must happen before the clock stops ticking? Is it sufficient for the defendant to be brought to the court cells within 24 hours? Or, for the case to be called on but the breach not yet determined by the magistrates?

The caselaw

In Governor of Glen Parva Young Offender Institution, ex parte G [1998] QB 877, the defendant was arrested for a suspected breach of bail and taken to the cells of a magistrates’ court within 24 hours. Despite being at court, the defendant’s case was not brought before a magistrate until two hours after the expiry of the 24-hour time-limit. The Divisional Court held that the requirements of section 7(4) were not satisfied simply by bringing the defendant within the precincts of a magistrates’ court: the defendant must be brought before a magistrate. Failure to meet the 24-hour time-limit must result in the defendant’s immediate release from custody; any continued detention is unlawful (per Simon Brown LJ at p. 298).

In R (Hussein) v Derby Magistrates’ Court [2001] 1 WLR 254, the Divisional Court examined whether a District Judge had power to entertain breach proceedings where the matter had been put back in the list by a justice already seized of the matter. The defence argued that the police power to detain the defendant under subsection 7(4) is limited to bringing the defendant to court as soon as practicable and, upon doing so, there was no power to detain the defendant thereafter. The District Judge therefore had no power to entertain the breach proceedings because there was no power to adjourn or to remand the defendant in custody. Whilst in principle this makes sense, the Divisional Court preferred a more pragmatic approach. The Divisional Court recognised that breach of bail was a unique situation in which speed of determination is of the essence; section 7(5) should not be interpreted as requiring the procedural rigidities that are appropriate for a formal hearing but often conducive to delay (para 30). Consequently, the District Judge did have jurisdiction to entertain the breach proceedings (para 31). The Divisional Court did not need to examine the 24-hour time-limit because the final breach proceedings had concluded within 24 hours of arrest.

The principal authority on the 24-hour time-limit is R (Culley) v Crown Court sitting at Dorchester [2007] EWHC 109 (Admin). In Culley, the Divisional Court examined a situation in which a hearing to determine a defendant’s alleged breach of bail had commenced within the 24-hour time-limit (unlike Glen Parva) but was not completed before the expiry.  After reviewing various authorities, including Glen Parva, the Divisional Court held that a justice is required to complete the required investigation and make a decision within the 24-hour period. Even if the hearing has commenced but not yet concluded, the continued detention of the defendant becomes unlawful from the moment the 24-hour period has expired. Any decision to remand the accused in custody after that time, is ultra vires and unlawful (per Forbes J at paras 19-20).

Most recently, in McElkerney v Highbury Corner Magistrates’ Court [2009] EWHC 2621 (Admin), the magistrates’ court had called on the case within 24 hours of the defendant’s arrest but the justice had not yet reached a decision before the expiry of the time limit. The justice continued the hearing despite the expiry of the 24-hour period and remanded the defendant in custody. An application for habeas corpus was made to the Divisional Court. Prior to the application being heard, bail was reconsidered by the magistrates’ court and a fresh decision to remand the defendant in custody was made. The Divisional Court was critical of the decision in Culley and noted that ‘it is not on the face of it a requirement that the justice’s decision be reached within that 24-hour period’ (at para 10). Importantly, this comment is obiter; the Divisional Court clarified that ‘no decision is required on the point in the present proceedings’ (para 11). No decision was required, because of the re-consideration of bail at the subsequent hearing.

Conclusion

The decision in McElkerney is often incorrectly cited as authority for the proposition that, provided the magistrates’ court have started to deal with the breach of bail, it need not be resolved within the 24-hour period. This is incorrect. It is not sufficient for a magistrates’ court to call on the matter at 10am, ostensibly starting the hearing in the belief that it has satisfied section 7(4) and adjourning it until later in the afternoon once the 24-hour period has expired. Culley remains binding and the entire decision-making process under subsection 5 must be concluded within the 24-hour period.  If not, then the defendant must be immediately released and any continued detention is unlawful.

This time-limit is even more important during Covid-19 when technology causes delays in the virtual hearings and matters are often put back in the virtual list. Note to practitioners – keep an eye on the clock!

Hannah Edwards, Drystone Chambers, June 2020.

Guest post by Joanna Hardy: I’m an online lawyer now. Can you hear me?

I haven’t met the defendant, Your Honour,” I tell a screen in my kitchen. Silence. “Can… can you hear me?” My words echo through the judge’s laptop in a courtroom three miles away. I hear them again in prosecution counsel’s dining room. My client, who has never set eyes on me before, sits in a prison just a few streets from my house. He stares at new faces on digital screens and blinks. His prison link is separate to ours. Someone has perched his screen in front of a second laptop in the hope his voice will carry across two devices and into my kitchen. When he speaks, he sounds a million miles away. He might as well be.

Long-predicted changes have arrived in our courts by necessity and at speed. Court staff have worked miracles with limited resources, judges have been patient, everyone has tried their best. Lockdown has spurred us into action and will revolutionise the system as we know it. We ought to be open-minded and recognise that the Luddite days of resistance are behind us. Some civil proceedings may be transformed entirely. Unnecessary assembly at court should be confined to history. We will save time, save money and be better for it. Once the technology improves, and it is about to, there will be questions to answer. Is this still a sticking plaster? Or is this the new normal? The answers will depend not on what the technology is capable of – but where we choose to draw the line.

As I look at my client – a mile, a prison wall, and a microphone away – I try to pinpoint why it feels like there is a barrier to communication. Is it just the improvised technology? That will improve. I remind myself that GPs hold sensitive appointments by telephone and on the internet. Court videolinks are not new. So why then, in certain circumstances, does online feel like second best?

Our job as courtroom advocates, bewigged and gowned, often takes centre stage. This is the front-of-house business of criminal lawyering. But it is backstage, early in the morning and late in the afternoon, where the most challenging advocacy takes place. In windowless conference rooms and dank cell areas across the country, difficult decisions are made and delicate conversations are held.

These are the moments when voices need to be heard.

Meeting a vulnerable complainant and finding the right words with the right tone. Speaking to a bereaved family at a sentencing hearing with professionalism and care. Being in the same room to negotiate compromises that deliver justice for a victim and a community. Looking a defendant in the eyes and delivering unwelcome advice that cannot be ignored by pressing a button. Watching for voice patterns, breathing rates and unspoken signs of agitation. Noticing the nail crescent imprints on a nervous clenched hand. It is managing the head-in-hands frustration, the raised voices and the unspeakable sadness of those we sometimes encounter. Sometimes, it is just hearing the heartache in the silence. It is spotting when someone may need an interpreter, an intermediary or their asthma inhaler. It is being able to navigate the fine lines between fear, confusion and bravado. It is the ability to speak to a 13-year-old obsessed with TikTok in the morning and an anxious pensioner in the afternoon. It is everyone in between. It is taking our strange, archaic language and distilling it into manageable chunks of reality. It is drawing the jury with a crayon and colouring them in to explain a majority verdict to a child. It is a judge reassuring the parties that they have as long as they need – as long as the building is open – to resolve a case. It is answering the difficult questions in a decent way: “What should I pack for my son if he is sent to prison?”

Those are not legal skills, they are human. It follows that they are not legal objections to mass online litigation – it is more delicate, more nuanced than that. These are the occasions when the way we communicate matters – not just the fact that we are communicating at all.

Recent events have required compromise and pragmatism. Once we safely emerge from the lockdown, we will need to identify the circumstances where online hearings can help and when they hinder. Which of our old habits were good and which were bad? Do certain tasks need to be perfect or do they just need to get the job done? Technology will help the criminal courts to streamline and to simplify. It is long overdue. We should be open-minded to improvements in technology, to new ways of working and to giving it a fair try. But lockdown has made me realise that it is not just whatwe do that is important – it is also how we do it. An anonymous Circuit Judge wrote recently about their digital experience in the family jurisdiction. They remarked that when we deliver justice “how we go about it as well as the bare fact of it being delivered, really really matters”.

Stripped bare of human interaction, I have found the job unrecognisable. The tasks I usually perform are changing. Some of them are online now. Some of them will be online in the future. But some of them, I hope, will always stay “in the room”. We will need to draw the lines of our new landscape with care.

My client gazes at a screen of strangers as his case is adjourned. We choose a date in the future when we hope that something, anything will have changed. Our microphones are unmuted, our volume is up – but can the people who matter most really hear us?

Joanna Hardy is a criminal barrister. She tweets @joanna__hardy

Guest post by Aparna Rao: Why the decision to quash the conviction of Cardinal Pell might strike lawyers as troubling

I am pleased to host this guest post by Aparna Rao, of 5 Paper Buildings, published in response to yesterday’s guest post by Edward Henry QC, which argued that the approach taken by the High Court of Australia in allowing the appeal of Cardinal Pell was one that the England and Wales Court of Appeal (Criminal Division) should emulate. The author qualified in law in Australia before moving to practise in England and Wales, and is a former judicial assistant at the High Court of Australia.

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Earlier this month, the High Court of Australia made international headlines when the full bench agreed unanimously to acquit George Pell.

A sufficiently momentous event had already occurred on 11th December 2018, when Pell, a Cardinal of the Catholic Church, was unanimously convicted by a jury of five offences involving sexual abuse of a child (under the age of 16) in St Patrick’s Cathedral, Melbourne, in the State of Victoria.[1]

 

Background

Australia inherited its common law system from England and Wales. The High Court of Australia (“HCA”) is the final court of appeal. Its decisions are binding and set legal precedent.

The format of a criminal trial in Australia is based on the same principles as in England and Wales. A judge presides, determines questions of law, and a jury of 12, following those directions, determines questions of fact. Barristers for the prosecution and defence test the evidence in an adversarial system. The burden and standard of proof are the same: the prosecution has to prove its case beyond reasonable doubt. In England and Wales this test is now referred to as “being sure”, but both tests have the same source and effect.

The five charges related to incidents alleged to have taken place in 1996-1997 against two choirboys, A and B. The trial heard evidence from A only, as B was deceased. The HCA judgment sets out the evidence and the defence objections to it in some detail and I will not rehearse it here. In summary, Pell’s defence was that the actions complained of never happened and could not have taken place. Much of the evidence concerned whether Pell would have had the opportunity to commit the offences as alleged. The prosecution accepted that there were inconsistencies in the evidence but argued that the jury could nonetheless be satisfied beyond reasonable doubt that the offences had been committed.

 

Appeal

Pell appealed the guilty verdicts, first unsuccessfully to a three-Judge bench of the Court of Appeal of the Supreme Court of Victoria (“VSCA”),[2] and then to the HCA.

The HCA applied a common law test for overturning a jury’s verdict of guilty: whether there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.[3] The HCA made secondary reference to the statutory test which formed ground 1 in the VSCA, namely where the jury’s verdict is unreasonable or cannot be supported having regard to the evidence.[4]

In England and Wales, the test when appealing a conviction to the Court of Appeal (Criminal Division) is whether the members of the Court “think that the conviction is unsafe”.[5]  Criminal practitioners will be entirely familiar with the CACD’s way of dealing with this test.

The most common refrain is that, ‘despite our finding that a serious error was made by the trial judge, we consider that the evidence against this appellant is so strong that the conviction cannot be unsafe.’

More apt here, perhaps, is the only slightly less frequent conclusion: ‘Although there were flaws in the evidence, the jury was properly directed in law, had the benefit of defence submissions on those flaws, and nonetheless was sure of the defendant’s guilt.’ The pre-1996 concept of “lurking doubt”[6] rarely finds favour with the CACD these days.[7]

The sanctity of the jury process casts the Pell judgment in a remarkable light for practitioners in England & Wales.

The HCA held that the evidence was so flawed that the jury could not have convicted Pell on these five counts. The fact that all of these flaws were pointed out to the jury by skilled defence Queen’s and junior counsel, and that the jury’s verdict meant these points had been rejected, was not enough for the HCA.[8]  In the CACD it is very likely that this would have been fatal to the defence argument on appeal.

Instead, the HCA appears to have treated the jury’s decision as one that should, in effect, be subject to judicial review for some species of irrationality or Wednesbury unreasonableness. Thus: no reasonable, rational jury, with full knowledge of the flaws in the evidence, could have found the defendant guilty. This jury, in convicting, was acting unreasonably and irrationally, and so the convictions must be set aside.[9]

 

Remedy

However, the HCA did not then remit the case for a retrial pursuant to the statutory options on a successful appeal.[10] It would seem that not only was there a “significant possibility that an innocent person [was] convicted”, but that there was no possibility that he could have been convicted at all.

Having, in the manner of a judicial review, found that the decision-maker had made an unlawful decision, the HCA did not remit it to be remade lawfully. It took upon itself the decision on the merits and entered acquittals, substituting the correct decision for the jury’s unreasonable one.

Some courts, having quashed the convictions, might have considered that the evidence should then be re-examined, challenged or otherwise supplemented before a new jury. But Pell’s was a case where the HCA decided that there was no possibility of conviction. The decision implies that any prosecution of these allegations was bound to fail and should never have been brought.

 

Analysis

The Pell decision might strike criminal lawyers as troubling.  Whatever one’s individual views of the facts of this case, and this note expresses no opinion about the facts, there are well-established, powerful reasons why appellate courts should be reluctant to interfere with a jury’s verdict. Key among these are the finality of verdicts, the jury’s advantage in hearing the evidence first-hand, and public confidence in the integrity and independence of the trial process, which necessitates a separation between the judiciary and the jury. Simply put, if a country’s criminal justice system relies on trial by jury, then it is juries that should decide whether an accused is guilty or not guilty.

The adversarial trial process is designed around the existence of the jury. It gives the parties the opportunity to test the evidence, so that the jury has the benefit of making its decision in full knowledge of the reliability of and flaws in that evidence. There is no indication that this did not happen in Pell’s trial.[11]

If it is considered that the case ought not to be left to the jury at all, there are mechanisms available during trial to have the case stayed or withdrawn if the evidence is flawed. Indeed, the prosecution was obliged to abandon separate proceedings against Pell (in relation to an unrelated incident) after adverse rulings casting doubt on the strength of the evidence.[12]

In England and Wales, in the face of unchallenged evidence that is inconsistent with the complainant’s allegation, the defence might have been well-advised to seek a dismissal, stay, or ruling of no case to answer. These would also then form strong grounds of appeal. But the jury’s verdict, reached in full knowledge of the inconsistencies, would be likely to stand absent some new argument or evidence that could not have been advanced below.

The HCA judgment reveals no complaints about the judge’s conduct of this trial, rulings of law or directions to the jury. Nor is there any suggestion that the HCA was privy to fresh evidence that was not before the jury. It would appear that the only error made in this case was a factual one: this jury reached a verdict that the HCA could not agree with.[13] This is the kind of substitution that the CACD deprecates.[14]

 

Conclusion

What the Australian appellate process reveals, via this case, is an unrivalled opportunity to have the facts of one’s case re-heard by three different tribunals: the jury, the state appellate court, and the HCA. Of course, not all convicted defendants will have the means to pursue all these options. And the same avenue is not open to the Crown should a jury irrationally acquit a guilty defendant.[15]

It is noteworthy that all seven Justices of the HCA agreed to allow the appeal. There was no dissenting voice, as there so often is. The Justices did not even publish separate judgments with variations on the reasons for their agreement, which is quite common. A joint judgment of this nature is fairly rare. It will usually have been written by one Justice and joined by the others.  It also suggests that the Court was keen to avoid any misinterpretations or arguments about the reasons for what would undoubtedly be a controversial decision. Yet this consideration has not prevented members of previous compositions of the HCA from issuing dissenting judgments in controversial cases.

Traditionally, decisions of this respected court of final appeal carry significant weight in fellow Commonwealth jurisdictions. Pell v The Queen will undoubtedly feature in numerous appeals for many years to come. In Australia, it is yet to be seen whether the case will end up being confined to its facts, or whether there will now be substantially increased scrutiny of jury verdicts. The latter would be a radical shift indeed. It may not find much favour in the courts of England and Wales.

Endnotes

[1] For the trial judge’s sentencing remarks see [2019] VCC 260, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/260.html. This was a retrial, as the first trial in August 2018 resulted in a hung jury.

[2] Pell v The Queen [2019] VSCA 186, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/186.html?context=1;query=[2019]%20VSCA%20186;mask_path=. The court dismissed the appeal by a 2:1 majority.

[3] Pell v The Queen [2020] HCA 12 para 9 and footnotes.

[4] Pell v The Queen [2020] HCA 12 para 39.

[5] Criminal Appeal Act 1968, s.2 (England & Wales), in force from 1st January 1996.

[6] R v Cooper [1969] 1 Q.B. 267.

[7] It was described as “outmoded” in R v S [2017] EWCA Crim 204, and its use deprecated in R v Fanning [2016] EWCA Crim 550. Its only application is very restricted indeed: see R v Pope [2013] 1 Cr. App. R. 14 para 14. “As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.”

[8] In light of the increasing reliance on remote video hearings today, it is useful to note that the jury viewed much of the oral evidence in a pre-recorded video format: see [2019] VSCA 186 para 1031. The trial was fully recorded, and the VSCA was asked to view parts of it in making its decision. While the HCA was willing, in principle, to accord deference to the jury’s verdict, it was not minded to give any weight to the VSCA’s view of the same evidence.

[9] At para 119 in relation to counts 1-4: “Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue … was whether the compounding improbabilities caused by the unchallenged evidence [contradicting A’s account] nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”

At para 127 in relation to count five: “The unchallenged evidence … [was] inconsistent with acceptance of A’s evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury’s advantage, there is a significant possibility that an innocent person has been convicted.”

[10] Criminal Procedure Act 2009 (Victoria) s.277: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s277.html.

[11] A distinction can be drawn with R. v. B. [2003] 2 Cr. App. R. 13 where the defendant was fatally disadvantaged by being put in an impossible position to defend himself. That case has been criticised (R v E [2004] 2 Cr. App. R. 36) and would perhaps be viewed differently today, given the manner in which many allegations of sexual abuse now surface.

[12] Evidential ruling: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/149.html?context=1;query=pell;mask_path=au/cases/vic/VCC. The case was later discontinued: https://www.smh.com.au/national/pell-won-t-face-trial-on-allegations-from-the-70s-of-pool-impropriety-20190226-p510b7.html.

[13] As the majority in the VSCA put it, [2019] VSCA 186 para 13: “It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law — for example, by admitting certain evidence or in giving (or failing to give) the jury a particular direction of law — no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it was reasonably open to the jury to convict the accused.”

[14] R v Fanning [2016] EWCA Crim 550 para 58: “We deprecate the use of the phrase “lurking doubt” as it represents an invitation to this court to substitute its view for that of the jury.”

[15] Similar to England and Wales, the Crown does have the ability to appeal judicial rulings that result in a not guilty verdict, and to prosecute some offences again if fresh and compelling evidence is available (modified double-jeopardy rules).

 

Guest post by Edward Henry QC: Reflections on the case of Cardinal Pell

I am pleased to host this guest post by Edward Henry QC, of QEB Hollis Whiteman, reflecting on the case of Pell v The Queen [2020] HCA 12, and what the Court of Appeal (Criminal Division) in England and Wales can learn from the High Court of Australia.

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On 7th April Cardinal Pell was cleared by the High Court of Australia of wrongful allegations of historic sexual assault on a chorister. In its judgment, the HCA found that for all five charges, there were many improbabilities that had not been fully considered by the jury, amounting to “a significant possibility,” the judges wrote, “that an innocent person has been convicted.” Edward Henry QC considers that cases involving historic allegations of sexual abuse can present a real danger of injustice, which the CACD too often seems to ignore. The approach of the HCA is one the CACD should adopt in making an assessment of whether a conviction is ‘unsafe.’

The case of R. v SJR & MM [2020] 1 Cr. App. R. 7 (in which I appeared for the appellants) represented a personal nadir in my professional life. A sense of injustice still haunts me. A weak case, as was submitted to the Court, replete with inconsistencies and serious anomalies, including the admission of patently inadmissible evidence, was rationalised by the Court of Appeal [Criminal Division] with the same old-saw: “the critical issue was whether or not the jury were sure that [the complainants] were telling them the truth.” Appeals dismissed, and in so doing both Appellants (to whom another constitution of the Court had granted leave to appeal less than six weeks before) were left condemned to rot inside, one in such poor health that it is unlikely he will ever be released.

How different is the approach of the High Court of Australia [“HCA”] the equivalent, since 1986, of the UKSC. Not for them the “Sacred Cow” that a jury is always right, or that the complainant’s credibility is necessarily determinative. That may be the ruthlessly expedient default option for other appellate courts, but it was not the route the HCA took: a road less travelled for many Court of Appeal judges. But it would be wrong to assume that the HCA decided the case simply by finding that Pell’s accuser was a liar.

Pell v The Queen [2020] HCA 12 is striking because the HCA proceeded on the basis that the complainant was credible. The foundation stone upon which the HCA constructed its unanimous judgment was set down with startling candour as to its own unflinching duty:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

 In the course of its judgment, the HCA passed reflection on the majority judgment of the Supreme Court of Victoria, which upheld the convictions, on the basis of its “subjective assessment, that [the complainant] was a compellingly truthful witness.” This was in spite of the magisterial dissenting judgment of Weinberg JA. The HCA, tellingly, made this observation, which provides the key to how they evaluated the testimony of Pell’s accuser in the context of all of the evidence:

Weinberg JA did not assess A to be such a compelling, credible and reliable witness as to necessarily accept his account beyond reasonable doubt. The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour-based judgments. [Emphasis added]

It is refreshing to note this frank recognition that demeanour-based judgments are highly subjective, and thus credibility, alone, can be an unreliable yardstick for determining guilt. Mr Justice Weinberg’s analysis prevailed before the HCA in the light of his profound sifting of the evidence, citing a number of ‘compounding improbabilities’, which combined to render the alleged episodes distinctly unlikely. Australian jurisprudence has been steeped in such probabilistic reasoning, owing perhaps to the influence of the late Sir Richard Eggleston QC, the widely respected law professor, appellate judge, and author of “Evidence, Proof, and Probability.” Eggleston was esteemed by no less than Lord Bingham[1], who distilled his method of appraising a witness’s account under five headings:

  • Analysing the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence to have occurred;
  • The internal consistency of the witness’s evidence;
  • Consistency with what the witness has said or deposed on other occasions;
  • The credit of the witness in relation to matters not germane to the litigation; and finally, and last and least of all,
  • The demeanour of the witness.

The HCA, in quashing the convictions, concentrated exclusively on the first issue: there was no opportunity for the offences to have occurred (consistent with the burden and criminal standard of proof) based upon an exacting review of the ‘solid obstacles to conviction,’ all derived from credible prosecution witnesses, noting the impact such evidence had upon the prosecution case. This was a highly nuanced and fact-centric approach, assaying the case in detail, as opposed to the ‘broad brush’ psychologically primitive slant of, on occasions, the Court of Appeal. The HCA’s inquiry into the whole facts, in the circumstances of this case, fully justified the convictions being overturned, as scrutiny of the seven judge unanimous decision reveals.[2]

In contrast, in this jurisdiction  appellate courts are notoriously reluctant to disturb first-instance findings of fact which turn on questions of credibility, or reliability. Should our senior judiciary absolve themselves by chanting the mantra ‘we must not usurp the jury?’ The demise of the Cooper “lurking doubt” ground of appeal is consistent with this attitude. That ground is now rare and successful appeals, pursuant to it still rarer. I would contend that Widgery’s LJ thesis in Cooper should be reframed, not as a general feeling of unease, dependent on the Court’s “feel” for the case, but upon a rigorous assessment of the entire matrix of evidence, whether it might contradict or undermine the complainant, i.e. is itreasonably possible that the complainant’s account was not correct, such that there is a reasonable doubt as to the applicant’s guilt?

There needs to be honest acceptance that accounts of historic abuse, however convincing, and apparently credible, can be unreliable. Especially, as was found in Pell, where such allegations cannot be reconciled with, or are flatly contradicted by, other credible evidence.

The HCA’s approach, echoes something we all know, and which Shakespeare expressed succinctly, thus:

“There’s no art / to find the mind’s construction in the face.”

In spite of this collective wisdom, from Literature, common experience, and psychology, the Court of Appeal (in its Criminal Constitution) has shut its eyes to this troubling and self-evident truth – that demeanour is a profoundly unreliable way to resolve cases. This has been known to the Civil & Family Divisions for many years. In his Neill lecture to the Oxford Law Faculty on 10th February, 2017, Lord Neuberger stated that he was:

“very sceptical about judges relying on their impression of a witness, or even on how the witness deals with questions. Honest people, especially in the unfamiliar and artificial setting of a trial, will often be uncomfortable, evasive, inaccurate, combative, or, maybe even worse, compliant. And our assessments of people are inevitably based on our particular experiences and subconscious biases. Sometimes it might appear that factual disputes are being resolved by reference to who calls the best-performing witness, not who calls the more honest witnesses.”

In saying this, he was following in the footsteps of Lord Devlin, and more recently, Lord Bingham. For Lord Devlin, judicial confidence in reading the witness, thereby discerning truth or falsehood, was overstated:

“The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated. It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of the particular witness.”

Leggatt LJ, who joined the UKSC on 21st April, 2020, made the following declaration in a commercial case, which he tried as a puisne Judge in 2013,that memory is not to be trusted, an opinion that surely accords with the objective experience of most criminal practitioners:

“While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony.”

This quotation from Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) potently describes the ‘elephant in the room,’ which has been worse than ignored in criminal trials. Whilst generic directions on ‘stereotypes’ are deployed in the Crown Court, often to the defendant’s disadvantage, the accused is not afforded even the most rudimentary précis of that ‘century of psychological research’ which calls the reliability of memory into question.

Gestmin has been widely approved and cited elsewhere, as one might expect, since Leggatt’s J analysis was a cogent exposition as to why the nature of historic oral evidence is an evolving creation, as opposed to a ‘flashbulb’ image. Having sign-posted a number of issues as to why memory is fallible and subject to certain biases created by the trial process (which could arguably apply to pre-trial criminal procedure) he came to this conclusion:

“Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

This takes on more ominous importance where a witness may have convinced themselves of something entirely fallacious in a criminal court. Given that Lord Leggatt’s tenure at the UKSC has just begun, it is to be hoped that before it ends an appropriate challenge can be brought before the UKSC in an historic case predominantly based on the credibility of a complainant, as Pell did in the HCA. Until then, innocent defendants will remain at the mercy of their accuser’s memory, which Oliver Goldsmith once described as “thou fond deceiver, still importunate and vain!”

Endnotes

[1] Chapter 1, The Business of Judging, The Judge as Juror

[2] http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/12

Guest post: Open Letter to Leaders of the Criminal Justice System – Call for a National Protocol

I am delighted to host this guest post by Beheshteh Engineer, a third-six pupil. The views expressed are personal and do not necessarily reflect the views of her chambers.

Why is a functional Criminal Justice System important during a national crisis?

During a short-term national crisis, the CJS must provide two key functions:

  • To deal with urgent matters e.g. bail apps, warrants, CTLs
  • To protect the vulnerable from immediate harm.

We call for a national protocol to address how courts must work during this crisis.

We suggest the following principles for the operation of courts:

  1. The protocol must minimise the risk to the health of court staff and users, following government guidance.
  2. The protocol must allow the CJS to continue to provide its two key functions.
  3. The protocol must default to adjourning cases where the above two principles cannot be met.

Globally, many courts have begun to impose restrictions on cases (CJEU, New Zealand, Canada, some American states, have all closed courts except for the most urgent cases)

What are the current problems?

The current system presents 3 distinct problems:

  • That we are all required to self-distance, but court attendance requires the opposite, and
  • That the government has only adjourned trials with a TE of 3 days or more, and
  • That we do not currently have a set up that allows us to do most hearings remotely, thus requiring people to continue to attend court in person.

Social distancing

We are all being told to practice social distancing and as of 20 March, the government ordered bars and other shops, to close. Doctors all over social and traditional media are imploring people to stay at home. The message is clear: people should not be going out unless they are essential.

In the past week, we have seen the following: people coming to court displaying the symptoms, prisons bringing sick defendants to court, jurors/advocates/witnesses going into self-isolation, and a total lack of cleanliness, or hand gel, or soap, or masks, or hand sanitizer, or protective screens available in courts. Juniors with health issues are still attending court; those who are second and third six pupils feel they have no choice.

Government’s response

The government has adopted a halfway house approach by only adjourning trials three days or longer. Those in charge of the CJS continue to advocate ‘business as normal’ while all other branches of government sound the alarm.

The Bar leadership has said that anyone in an at-risk category or anyone who feels that working conditions are unsafe, can return cases with no ethical problems. This is welcome leadership on this issue. More is needed; those not in the at-risk category can still carry the virus, potentially infecting their own families and anyone else they come into contact with at court. Court advocates, particularly those most junior, are frightened, both for their health and their incomes

Additionally, the government has not yet put in place the resources to protect the self-employed from finding themselves without work and thus, without income. Many have children and mortgages to pay for, others have rent and basic expenses. Many of us at the criminal Bar are struggling and right now, going to court may be the only option, even if that will put ourselves and those we live with, at risk of getting the virus

Lack of investment in technology for the criminal courts

Papers in Crown Court cases are now all on DCS and the courts occasionally use video links where a defendant is in custody. Video links often fail to work, and there are insufficient video links to run the court system at even close to full capacity. Consequently, we have continued to conduct most hearings in person. There are good reasons for this; often material is not uploaded until the day of the hearing, a client has to enter a plea and instructions need to be taken. Nevertheless, the reality remains that there has not been proper investment in technology use in the CJS. As a result, it will require leadership and investment to switch to a system where many hearings are virtual.

Leadership to date on this issue has been poor. The CEO of HMCTS’s letter to the Chair of the BC on 19 March 2020 says that the senior judiciary has given guidance on encouraging the wider judiciary to use telephone and video hearings. There is also a link to this site, guidance which reads, “The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.” This means that all courts can operate according to their own rules. We are already hearing of plenty of cases where a client’s attendance has not been excused despite a reasonable request, as well as hearings in the CC being refused to be conducted by video when there is no good reason for physical attendance.

At a time of national crisis, this is a woeful response from HMCTS and senior leaders. It is also a deeply inefficient way to run any kind of system, never mind one of such importance.

The civil Bar, family Bar as well as some Tribunals are already ahead of us on this; they either already regularly use digital technology or have implemented a new protocol. Cases have been conducted (and won!) from advocates’ living rooms. If other Bars and Courts can manage remote hearings, we can too.

How can we solve some or all of these issues?

We should be limiting the number of people going to court. We should be protecting those who have to attend court. There should be no room for courts to do things on a court-by-court basis.

We must not continue in a way that puts our health, the health of our families and the general public, at risk. Continuing as we are will only help spread the virus further.

This letter suggests that we create a national protocol – similar to a practice direction – to address how every single court should manage their work during this time of crisis. Decisions need to be centralised and as new problems emerge, decisions must be taken and publicised online. We need to use technology as much as we can.

We also have to communicate updates as clearly as possible. Recent example today: jurors being told they had to attend court tomorrow (Monday) while being in an at-risk group. The message came back that they are excused. The question has to be asked, why are we doing this on twitter? We need a clear method of communication that is accessible to all.

We know that all the various legal bodies are meeting with the Ministry of Justice to lobby them for a proper plan. We add our voices to that. These are complex problems that require a great deal of thought, creativity, and effort to resolve.

How might such a national protocol work?

Suggestions for the protocol must both address issues of law and detail the ways in which we are going to take action. It is no good having vague suggestions and leaving each court to figure out how to implement it, because that way nothing will get done. We need to address the practical issues. This letter has attempted to do so, and in doing so you may find that some ideas are simply not workable at this time. Irrespective, we have a duty to not only think hard about these matters but to publish and debate these ideas so that we can keep people safe.

We propose the following immediate rules:

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020.
  2. All other hearings to be by video link OR telephone.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily adjusted.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly.
  6. We need a new arrangement for magistrates’ court hearings.
  7. We need a new protocol for those in custody.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations

How might these things work in practice?

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020 Rationale:
    1. It is important to set a fixed date for when trials might resume, even if these are later abandoned. Dates to work to focus the mind.
    2. Stage dates to be put back so that work continues.
    3. Re-arranging listing on such a scale as we are seeing even if it remains just those with TE 3 days or more, is going to take time and proper thought. We should not do this on the fly otherwise there will be chaos.
    4. Such re-listing then needs to be properly communicated to all parties and should take into account advocates’ diaries, so that they do not lose out.
    5. If all hearings are virtual and all clients excused as standard this saves 100s of hours of manpower – all that then needs to be done is for clients to be told that they don’t need to attend court.
    6. If this is the default position, then hearings can continue in a way that avoids an advocate having to announce that they are in at at-risk group or are scared of attending court or who have some other legitimate reason.
    7. This also helps to preserve income, an important point. Many of us working in the CJS are self-employed; we need to attend hearings so we can get paid. We are not currently being afforded much support from the government.

    How might this work in practical terms?

    1. Listing are obviously the point people to arrange virtual hearings and will need to find a sensible way to schedule hearing times. This is done in the crown court and it can be done in the magistrates. Cases should also be re-fixed to accommodate advocates’ diaries so those booked to have trials do not lose out.
    2. Each court has to work out what technology they will use: skype, Teams, something else? Many barristers and HHJs are working together to try and figure out what works but we need a proper system. Also, I’m not PC users are having difficulty with skype for business. We are going to waste hours in court, at risk to our health, if we’re all trying to figure this out on the day.
    3. Once each court has figured out what tech they can use, this has to be communicated clearly on a single website acting as one point of reference.
    4. Chambers and Solicitors firms already have a list of emails and contact numbers for listing offices. These should be shared with advocates so that they can send individual email sand track hearings themselves [without the middle man] to ensure that matters are arranged sensibly and to take into consideration whether or not an advocate can do a telephone or video hearing or if other provisions need to be made.
    5. We should also share email addresses of those advocates at the CPS down to do a particular hearing so that CPS and defence can communicate in advance and so that the Crown can/attempt to upload relevant papers onto DCS in good time.
  2. All other hearings to be by video link OR telephone
    1. Hearings that can be done by delegated powers e.g. adjournment or CMH
    2. If parties email the listing office with the issues to address, this can be passed to the requisite court on the day of the hearing, and will save time.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily amended:
    1. If pleas need to be taken, the parties should work together to narrow down the issues ahead of time. This requires the Crown to upload material earlier than the day of the hearing. It requires effort and forward thinking to work.
    2. Where a G plea cannot reasonably be put in, everyone is to put in a NG plea and credit must be preserved until such time as 1) CPS serve all material and 2) counsel have been able to take instructions. We need detailed guidance on this. Defendants must not lose out. Same rule to be applied in the magistrates’ court.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly:
    1. Extending a CTL should not be routine
    2. Matters should be on a case-by-case basis: e.g. *some* defendants in an at-risk group should be strongly considered for release on stringent bail conditions.
    3. For other cases (maybe DVs) where there’s no bail conditions, Crown might want to apply for some? Ensure protection of potential victims?
    4. New cases should be bailed with conditions where appropriate.
  6. For magistrates’ courts:
    1. Papers for first appearances usually only arrive on the morning of the hearing. This will be difficult to change as it is the CPS that produces these papers. If the CPS can produce these bundles the night before the hearing, that would assist.
    2. Advocates can set up video conferences or telephone hearings with clients remotely to attend on the day of the hearing. As soon as they have the papers, the conferences can be held.
    3. The only remaining issue is how to list matters in a magistrates’ court: traditionally it is whomever is ready goes on first. If hearings are being done remotely, there will have to be a system or rule in place to decide who can call in.
    4. It may well be that the legal advisor or clerk in court will have access to a system whereby they can determine who is going to be heard next.
    5. First appearances and business in the magistrates’ courts, for it to continue working ‘as normal’ will require significant thought. It may be that some of these problems cannot be overcome anytime soon. They also require effort and someone to care enough to design a system so that these can be done remotely. There is a workable solution, but it requires all parties to work together and for those in authority to have the significant desire to make it work.
  7. For those in custody (predominately but not solely in the magistrates’):
    1. Conferences should take place by video-link wherever possible. However, we acknowledge that whether a defendant is on video from prison or in custody in the cells, a video-link may not always be possible. This is both a technical and legal hurdle that may take time to address.
    2. In the interim, no one should be required to hold a conference with someone in the cells where the court does not have a glass divider. In such cases, conferences should be held in a court room or other room available so that representatives are not put at risk.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations
    1. police station representatives are reporting disparity of process when it comes to being asked to rep someone suspected of having the virus. There should be a protocol in place.

Other points

Following feedback from practitioners, a few other points are worth noting:

  • Some hearings have been “saved” by use of FaceTime. Some others are suggesting Zoom. There is a range of technology available but not all of it will be secure, or available to everyone. This may well be a problem.
  • Special provisions need to be put in in place for vulnerable people: complainants, witnesses and defendants. For example, a defendant with a MH issue or lack of good internet may not have the ability to participate in a virtual hearing. The issue of what to do when an interpreter is needed, should also be considered.
  • Every step taken into a police station is fraught with areas where someone can come into contact with the virus. The custody sergeant is responsible for the safety of police station representatives yet often a representative is taken immediately to a consultation room so there’s no option to speak to the custody sergeant unless it is insisted upon. We’re also being told that areas in the police station (the consultation room, amongst others) are not being regularly cleaned.
  • Prisoners should be considered for release, where appropriate.
  • If the plan is to keep courts open for as long as possible, there needs to be a nation-wide rollout of soap, hand sanitizer, wipes and a proper cleaning regime in place.

Conclusion

It is the case that with many of these things, what will suffer is the principle of open justice. That is a dilemma that needs to be thoughtfully considered.

The ideas in this letter are just one way to address matters. There may be problems with the ideas suggested – they are not perfect. But they are a start and hopefully a platform to encourage discussion.

We must work together to limit the spread of this disease while maintaining the criminal justice system.

Author: Beheshteh Engineer, junior criminal barrister (3rd six)

Views are those of the author alone, and not representative of those of her chambers.

 

“Life means life for child killers” – the truth behind the headlines

There used to be a time, once Chris Grayling had hung up his butcher’s apron at the Ministry of Justice and Theresa May ushered in a quieter, more respectful justice strategy of wanton neglect, that I wrote about something other than Boris Johnson. Unfortunately, the Prime Minister keeps booting the justice football around the pitch with the swagger and fervour he usually reserves for tackling small children, so I feel that the decision is being taken largely out of my hands.

Today, in advance of tonight’s first leadership debate, a raft of Tuff On Crime initiatives have been peppered across the bulletins. We woke up to whole life sentences for child killers, and are ushering in twilight with a guarantee of immediate arrest, charge and court appearance for those carrying knives. Short, snappy policy snackettes that have the advantage of electoral delectability and tabloid acclaim, and only the minor drawback of being entirely pointless and/or unworkable.

As with so many recent announcements on criminal justice, there is a risk that fact-checking the substance only serves to amplify unreliable headlines, but it is worth looking closer at exactly what this “life really will mean life” for “child killers” policy means.

What is the headline policy?

The appeal is obvious. Monsters who murder children should be put away for a very long time indeed. As Justice Secretary Robert Buckland says today, writing in The Sun:

“Any adult who commits the crime of killing a child should spend the rest of his or her life behind bars. It is as simple as that.”

But is it?

Before considering what the Conservatives are actually proposing, let’s look firstly at how the law currently works.

 

What is murder?

The first point to note is that despite the false claim by the Conservative spin machine that the proposed policy targets “child killers”, it doesn’t. It targets child murderers. There are, unpleasant as it undoubtedly is to dwell on, many ways in which people can be unlawfully killed. Unlawful act manslaughter, gross negligence manslaughter, corporate manslaughter, causing death by dangerous or careless driving, infanticide, causing or allowing a child or vulnerable adult to die, and murder. These are all discrete legal concepts.

Murder is the most serious. Murder, in law, is where a person unlawfully (i.e. not in self-defence or for any other lawful purpose) kills another person, intending either to kill them or to cause grievous bodily harm (really serious harm, is how it’s explained to juries). That may surprise you. You can be convicted of murder even if you didn’t intend to kill someone.

It follows, in case the point needs making, that, while all murders are serious, some are more serious than others. A distraught mother struggling with severe depression who shakes her child intending to cause really serious harm and unintentionally causes death is in a different category to a predatory paedophile who abducts, tortures and intentionally kills a toddler. Likewise a man who acts in genuine self-defence when attacked but goes overboard and, using unreasonable force, unintentionally kills a burglar is to be distinguished from a gangster who guns down a rival drug dealer. Forgive me labouring the point, but when politicians demand blanket “whole life” sentences for all people convicted of certain broad categories of murder, it is necessary to highlight the obvious injustice that would follow.

And this truism is reflected in how murder is currently sentenced.

 

What is the sentence for murder?

While all offences of murder carry a mandatory life sentence, what a life sentence means can vary. This is because a court has to firstly identify a “minimum term”, which is the minimum period that the defendant will spend in prison before becoming eligible for parole. If a person is deemed safe for release by the Parole Board (the test being whether the Board is satisfied that imprisonment is no longer necessary for the protection of the public), they will be released on “life licence”, with conditions. If at any time it is considered that they are a risk to the public, they can be recalled to prison.

How is the minimum term calculated? Judges must have regard to principles set out in Schedule 21 of the Criminal Justice Act 2003. This provides starting points, and the judge can then move up or down from the starting point to reflect further aggravating or mitigating features.

It’s worth a brief look at the different categories.

 

Whole life orders

We can see that if the court considers that the seriousness of the offence is exceptionally high,and the offender was aged 21 or over, the appropriate starting point is a whole life order – in other words, no prospect of release. There is then a non-exhaustive list of examples of cases that would normally fall within this category, including, multiple sadistic or sexually motivated murders, terrorism, murder of a serving police or prison officer, and, significantly for our purposes, the murder of a child if involving abduction or sexual or sadistic motivation.

30 year starting point

If a defendant is aged 18 or over and the seriousness is not exceptionally high, it may fall into the next bracket down, which provides for a 30 year starting point:

25 year starting point

This category covers cases where the offender took a knife or other weapon (not a firearm – this goes into the 30-year bracket) to the scene of the murder and used it.

15 year starting point

For all murders that do not fall within the other categories, the starting point is 15 years. Unless the defendant is under 18, in which case the starting point is 12 years.

The court then considers the aggravating or mitigating factors which may result in the starting point moving up or down. Critically, the legislation allows for a “minimum term of any length (whatever the starting point), or in the making of a whole life order”  – in other words, even if a murder is not specifically included as an example of a whole life order, the judge still has a discretion if she thinks the seriousness is exceptionally high.

So that, put crudely, is the existing framework. What does the Conservative Party want to do?

 

What does the Conservative Party want to do?

Notwithstanding Robert Buckland’s boast to The Sun above, or his widely reported assertion that:

“any murderer who denies a young, innocent child the right to life surrenders their own right to liberty. They do so permanently, and they do so without exception.”

the truth is that there are a number of exceptions to this new policy, as admitted in the press release. For one, as we have already seen, it applies only to crimes of murder, not to all “child killers”. Many homicide offences which capture public attention do not in fact involve murder, and will not be affected. Secondly, whole life orders will still only be available for offenders aged 21 and over. Thirdly, although Schedule 21 defines a child as a person under 18, this new policy would be more restrictive, applying only to children under 16. Fourthly, only murders which are “premeditated” are caught by the policy. Fifthly, the press release concludes by stating that “the sentencing decision will continue to rest with the judge”. At its height, this policy appears to introduce a presumption that qualifying cases will be met by a whole life order, but this is by no means the automatic, life-means-life that has been sold to the tabloids.

On this final point, it appears that the government has majestically failed to understand how the current system works, as the press release claims, falsely, that:

“The current rules require the murder to be of multiple children, or to be sexually or sadistically motivated, to attract a Whole Life Order, which is too restrictive.”

As we have seen, this is not what Schedule 21 says at all. It in fact expressly states the opposite – just because a type of murder is not listed in the examples of appropriate “whole life” cases does not stop a judge imposing a whole life order if she thinks the seriousness is exceptionally high. So the worst cases of the murder of children, say where an adult defendant commits a premeditated murder of a very young child, are already eligible for whole life orders.

In summary therefore, the Conservative Party either doesn’t understand (or is lying about) the law, and is pushing a policy to give judges a discretion to impose a sentence they can already impose.

 

How many cases will actually be affected?

Perhaps the most important question that has still not been answered by the government is how many cases this policy will actually affect.

The Office of National Statistics has been quoted in news reports as calculating a figure of 67 relevant cases involving the killing of children in 2018, but closer inspection suggests the true figure is much, much smaller. This figure of 67 includes offences of manslaughter and infanticide, not just murder. It includes the terrorist attack in Manchester. It also appears to includes child-on-child killings, which are regrettably common in inner-city inter-gang warfare. There is no apparent way of ascertaining how many of these 67 were murders, how many involved defendants over 21, and how many were premeditated. Nor can the government tell us how many of the cases which did involve the premeditated murder of children by adults in fact resulted in a whole life order anyway, and how many resulted in a minimum term which was unacceptably low.

The actual answer may well be in single figures, if not zero.

Don’t fall for Boris Johnson’s criminal justice con tricks

Yesterday morning, newly-appointed Justice Secretary Robert Buckland told Radio 4’s Today programme of his pleasure that the Prime Minister is taking an interest in the criminal justice system. And certainly, after three years of wilful abandonment under Theresa May, I would in principle gladly welcome some Downing Street-level political attention on the ruinous state of our criminal courts.

When this attention is coupled with more money for the criminal justice system, this sounds very much like the sort of thing those of us working within have been crying out for. So surely we should all join hands with Mr Buckland and celebrate that in Boris Johnson we finally have a leader taking criminal justice seriously?

Don’t believe a word of it. The entire project is a con.

Starting with the “new money”. Mr Johnson has announced that 20,000 new police officers will be recruited over the next three years. This is vital, certainly, but falls far short of what is required, given that that figure barely replaces the number of officers cut since 2010. Meanwhile, not only is crime increasing, but investigations are becoming ever-more complex, with digital evidence sucking resources and quadrupling the effort that would have been required a decade ago.

There’s £85m for the Crown Prosecution Service, which sounds like a healthy sum, until you realise that it’s a fixed payment over two years, and that the CPS budget for 2018/19 was a quarter of a billion pounds less in real terms than in 2009/10. The CPS has lost a quarter of its staff and a third of its lawyers since 2010. Two tranches of £42.5m will not begin to fix the problems that plague prosecutions up and down the country.

There’s a promise of 10,000 new prison places, when the previous promise of 10,000 places in 2015 fell short by 6,000, and another 9,000 places alone are required simply to address the present, longstanding overcrowding. There is £100m for technology to aid prison security, but no mention at all of the extra prison staff needed to safely manage the new offenders, given that even after a recruitment drive in 2017, numbers are 15 per cent down since 2010. There has been a huge drain of experience since 2010, as the most experienced officers were among the first to go when the government decided to slash prison staff by over a quarter, at a time when the prison population has climbed.

But the problem extends far beyond inadequate promises to redress chronic underfunding. The propaganda accompanying these announcements betrays not only the Prime Minister’s trademark opportunism and dearth of intellectual rigour but the sticky, putrid tar clogging the heart of the Johnson Crime Agenda.

Announcing his plans in a series of weekend puffs in tame newspapers, Boris Johnson declared, “Left wingers will howl. But it’s time to make criminals afraid – not the public.” Declaring his mission to ensure that criminals “get the sentence they deserve,” Johnson continued a theme begun in his Telegraph columns on the campaign trail, when he railed against “early release” from prison and inadequate prison sentences being passed. The solution to our criminal woes, the subtext screams, is to lock up more people for longer.

And let’s make no mistake, punishment is a legitimate and important part of criminal sentencing. It is one of the five purposes of sentencing listed in statute, alongside the reduction of crime (including by deterrence), reform and rehabilitation, protection of the public and making reparations to victims. Few if anybody involved in criminal justice would disagree with the notion that people who commit crime should be punished in a way that reflects their culpability and the harm they have caused, and that for some people, notably the most serious violent offenders, lengthy prison sentences are inevitable.

However, the notion that longer prison sentences by themselves make any of us any safer is a fantasy. The notion in particular that knife crime will be solved if we simply lock up young men for years on end is a hoax. The public may well be protected from that particular individual for the duration of their incarceration, but the idea underpinning this rotten philosophy – that longer sentences have a deterrent effect on crime – has been shown to be bogus. What does act as a deterrent is not severity of sentence, but certainty. The likelihood of being caught and dealt with swiftly, in other words.

But crime reduction and prevention is not achieved solely by deterrence. Rehabilitation is a vital part of protecting the public. This is why, when dealing with complex, multi-causal offending intractably rooted in social and cultural problems, the courts may take the view that more can be done to protect the public by keeping a young man on the cusp of custody out of the prison warehouse estate, and offering focussed intervention in the community. Sending someone to prison usually means ripping them away from all and any stabilising factors they may have. They lose their job, their social housing and their relationship, and exit prison with no support network other than the new friends they’ve made inside. This is why the evidence suggests that reoffending rates are lower when offenders are kept in the community.

But the evidence is of no concern to the Prime Minister. This is why he is forced into infantile ad hominems as a pre-emptive rebuttal against the people who have read and studied the evidence, and might be minded to offer some as a counter to his claims that our system is soft.

We already have the highest incarceration rate in Western Europe. Prison sentences have on average got longer year-on-year. We have more prisoners detained on indefinite and life sentences than all the other countries in the Council of Europe.

The notion that our courts routinely hand out “soft sentences” is simply not true. When we do see “soft justice” stories in the headlines, they will either be an aberration, usually corrected on appeal, or they will be the product of inaccurate or dishonest reporting, removing context or omitting facts.

Which brings us to Johnson’s public statements. Because at the centre of his musings on criminal justice is a rich stuffing of bullshit. He has lied and lied and lied. He lied when he claimed that “a convicted rapist out on early release” had raped again (the man in question was neither a convicted rapist nor out on early release). He lied when he suggested that the notion of allowing some prisoners to be released on temporary licence was “criminally stupid” (the government’s own evidence shows that reintegrating prisoners into the community in this way cuts reoffending). When he told the Mail this weekend that there are “thousands of “super prolifics” – criminals with more than 50 convictions to their name – who are being spared jail altogether”, he did not tell you that one of the reasons they were spared jail might be that they were being sentenced for non-imprisonable offences. He is lying to you when he tells you that the solution to crime is More Police, More Prisons.

He is lying so that he can turn the volume up to 11 on his remix of “Prison Works” to ensure the oldies at the back of the conference hall can hear in the run-up to the inevitable autumn general election.

And while Mr Johnson is lying to you, the rest of the criminal justice system rots.

Courts are being closed down and sold off all over the country. Half of all magistrates’ courts have been closed, meaning that defendants, victims and witnesses are forced to travel for hours on ineffective public transport to their “local” court.

Of those courts remaining standing, many are unfit for purpose. Decaying, crumbling buildings with no working lifts, holes in the roofs, sewage leaking into public areas, no air conditioning in summer and no heating in winter. In some, the public cannot even get a glass of water.

Of the courts that remain unsold, all are now run at artificially low capacity due to Ministry of Justice restrictions on “court sitting days”. We have, in many large city Crown Courts, the farce of full-time, salaried judges being forced to sit at home taking “reading days” – their perfectly serviceable courtrooms sitting locked and empty – while trials are fixed for Summer 2020 due to an alleged “lack of court time”.

We still have the abominable system of “floating trials” and “warned lists” – where defendants, witnesses and lawyers are expected to give up days or weeks of their lives just sitting around at court on the off-chance that a courtroom suddenly becomes free to take their trial. When, inevitably, no courtroom becomes free (because the MoJ won’t pay for the sitting day, ibid), their case is adjourned for months, and the cycle begins again.

The one thing that does act as a deterrent to criminals – certainty – is being eroded by ensuring that justice is doled out literally years after the event, because the government will not pay for the courts to process cases clogging the pipeline.

Meanwhile legal aid is being stripped away from citizens, forcing them to self-represent in cases in which their liberty is on the line.

This is why I am angry. Not because I’m a “lefty” inherently resistant to Boris Johnson’s white hot public service reforms. I’m angry because as a prosecutor I am still having to sit down with crying witnesses week after week and explain that their torment is being prolonged for another six months because the government refuses to pay to keep courtrooms open. I’m angry because the Innocence Tax – the policy that forces the wrongly accused to pay privately for their legal representation and then denies them their costs, bankrupting them, when they are acquitted – is not even in the political peripheral vision. I’m angry because our Prime Minister is a man who looks at the record rates of death, violence, suicide, overcrowding and self-harm in our prisons and whose first question is, “How do we get more people in there?”. I’m angry because the notion that you “crack down on crime” by chucking a few more police officers onto the streets and shoving more and more people into our death-riven prisons is a con. It is a con to victims of crime, and it is a con to you, the public. I’m angry because we have the indignity of a dishonest, cowardly and exploitative Prime Minister fiddling with his Party’s g-spot while the criminal justice system burns.

Don’t fall for his con trick.