Guest Post by Simon Myerson Q.C.: An alternative proposal concerning sexual offences and consent

In March 2017, Harriet Harman proposed a legislative amendment to section 41 of the Youth Justice and Criminal Evidence Act 1999, which would have the effect of prohibiting at criminal trials any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence. This week, Ms Harman reportedly confirmed that she was pursuing this amendment, and I provided my thoughts on why this is a dangerous and ill-thought out idea here

Back in March, criminal silk Simon Myerson Q.C. took the time to correspond with his MP, Anna Turley, over the planned amendment. He has very kindly permitted me to republish his note, in which he addresses the flaws in Harman’s Law, and offers his own proposal on how perceived shortcomings in the prosecution of sexual offences involving the issue of consent might be addressed. I understand that Anna Turley MP has yet to respond.

Simon Myerson Q.C.

Rape and Section 41 YJCEA 1999

Current Position

S41 Youth Justice and Criminal Evidence Act 1999:

  • Re consent, no cross-examination about Complainant’s (C’s) sexual behaviour without court’s permission.
  • Permission only if:
    • A conviction would otherwise be unsafe; and
    • Relates to behaviour at same time or is so similar that it cannot be explained as a coincidence; and
    • Must relate to a specific incident or incidents.

 

Suggested Amendment

To ban such evidence in all circumstances.

 

The Result of the Amendment

Necessarily, to ban evidence which might prevent an unsafe conviction. There is no way around this conclusion.

To remove from the judiciary the freedom to determine what makes a trial safe and to replace that freedom with a direction from the legislature that unsafe convictions are acceptable in rape cases.

 

The Problem

This should be self-evident. But it would create the additional problem that, in cases in which cross-examination would currently be allowed, were this amendment passed, the Judge would still be entitled to stop the case on the basis that the accused cannot have a fair trial. The Court has an inherent jurisdiction to do so, but is also constrained by Art 6 ECHR, which provides the right to a fair trial. The refusal to admit evidence that may mean the prosecution cannot prove its case is patently unfair.

 

The Reality

There are essentially 4 types of rape for these purposes:

  • Genuine ‘stranger rape’ where a woman is violently assaulted. Very rare and almost always result in conviction because consent rarely the issue.
  • Semi-stranger/friend rape. Typical scenario – meet on night out. Woman gives good evidence of not consenting. Again, relatively few problems in obtaining conviction.
  • As above but everyone drunk. See below.
  • Marital/relationship rape. Has difficulties but not really the focus because lack of consent proved by other factors – fighting, separation, confiding in family etc.

The real issue is the drunken night out. Can we leave aside political considerations here please? I have 4 daughters and I most assuredly tell them that rapists cause rape. I also tell them that the best way to avoid rape entirely is to take personal responsibility for themselves by staying relatively sober, texting regularly (family or friends), not leaving without telling someone and saying who with and not having sex unless they know the person.

What typically happens is that a group go out together. They all get drunk – so drunk that the next day they cannot remember what happened with any clarity. Frequently, one girl gets detached from the group. They do not know where she is and often do not look. She goes off with a man, consensually. That can be seen on CCTV. They go somewhere together and he has sex with her. The next day she is appalled. She may very well not have consented. She says she didn’t. She also says he tricked her into coming with him/has no idea who he was/didn’t want to be anywhere near him. The CCTV shows that at least some of that is wrong. She is cross-examined on the basis that a) she wants to get him into trouble to excuse her own shame and) she can’t remember anything, including giving consent. He says that she consented.

Another scenario: the group leave together with a group of lads, or some new lads they’ve met that evening. They go back to someone’s flat. Some kissing happens. Then a lad takes a girl into a bedroom. Same thing as above. The friends all remember the kissing. No one knows the rest of it, or they are so wasted they can’t remember.

That is the depressing reality. Of course, drunken consent is not consent. But the prosecution must make the jury sure that the man did not reasonably believe in the consent. He says he asked and she was all for it. If he is disbelieved, he is convicted. But it is terribly difficult for a jury to disbelieve him when the woman herself does not remember what happened. Q: “Is it possible that after a good evening, you may have said to him that you wanted sex, even though in the morning you would not have said yes?” If the answer is yes, it’s an acquittal. If the answer is no but the jury don’t believe it, it’s an acquittal.

 

Notable Point

S41 is nothing to do with this at all. S41 arises in a very small number of cases and is granted in even fewer. There is what purports to be as study carried out by a group appointed by Vera Baird. I’ve read those cases. There are 15 – a tiny fraction of rape cases and far too small to be anything more than an anecdotal collection. Of those 15 only 3 involved S41 applications. I would only have granted 1. S41 is not the problem.

S41 is important because it guards an accused – who we remind ourselves is an innocent man until convicted (I always find it helps to think of him as my father) – who describes behaviour that is so exceptional that the evidence of C that she did not consent, should properly be assessed against the evidence that she indulged in the same behaviour on an occasion when she did consent. The argument is that if she consented on that occasion, isn’t that evidence that she consented on this occasion. It is an argument, no more. The jury can reject it. But the evidence is admitted if the Judge decides they could accept it and that, in those circumstances, if they did not know about it, they may not be making a fair decision.

In the Evans case, the evidence was admissible because a) it was an account from 2 people on separate occasions each other and the accused that C was capable of having sex when very drunk; and b) that she was an active participant using the v precise words and positions described by the accused. That went both to the issue of whether this was non-consensual at all (C had never said so – merely that she did not remember), and whether the accused might reasonably have believed in consent if so.

Without that evidence Evans was convicted. With it, he was acquitted. What Harriet Harman seeks to do is to preserve the position where someone is convicted, even though the evidence might lead to acquittal. She wishes to do that by preventing the jury even hearing that evidence, because she has decided it is wrong to let them do so. That is neither her job, nor remotely appropriate.

 

The Bad Arguments

Why should the current position be changed? There is no evidence that it results in unfairness on the current law as it stands. Research shows that juries do understand the evidence they hear and the directions the judge provides.

Thus the arguments should focus on the law. Is the offence of rape sufficient to include occasions where a lack of consent cannot be proved, but the way in which the man has behaved plainly takes advantage of the woman’s position at the time?

However, Harriet Harman’s argument does not focus on the law. It focuses on manipulating the current procedure so as to alter the result. Once we permit politicians to prevent the admission of evidence because the evidence produces the ‘wrong’ result, we will not be able to resist it happening again. Ask yourself, what would Farage do with such a provision and alleged Islamic terrorism? Should we refuse to permit juries to hear evidence that bankers had seen senior figures doing the same things as had led them to be charged with dishonesty, and had thus concluded it was not dishonest? Evidence such as this is not a defence unless the jury accepts it. If it is rejected the conviction is fair. But a conviction that does not allow a jury to hear that evidence is unfair.

Moreover, the basis of the argument rests on the belief that jury verdicts are regularly ‘wrong’ and the procedure should thus be tampered with, to achieve the ‘right’ result. That is neither healthy nor proved. We assume that once delivered, jury verdicts are correct, unless the summing up is wrong. The jury’s deliberations are sacrosanct. How on earth is it possible to assume they are wrong?

And, if they are wrong, then the logical answer is to have trial without jury. Fiddling with the procedure, if juries do not get it right, is hardly a courageous answer. Rather, it is a fudge, which imperils rape victims because it still leaves them open to injustice, and everyone else – either for the same reason or because it encourages executive action to restrict the evidence a jury can hear.

 

A Possible Solution

In reality, juries probably get these decisions right. The difficulty is that we have a crime in relation to which the prosecution must prove the negative – that the accused did not reasonably believe C consented.  

A further difficulty may be that sentences for rape are very high. Many lawyers believe (admittedly on no very good evidence) that this makes juries even more reluctant to convict. Or, perhaps, it means they take being ‘sure’ very seriously.

An answer is an offence that takes consent away.

Taking sexual advantage is a possible offence in this way:

A man (M) commits an offence if he penetrates another person (using the existing language of the Sexual Offences Act 2003) in circumstances in which, whether that other person has indicated consent or not, a reasonable observer would conclude that M could not be sure that consent was either voluntary or informed, and that M took no reasonable steps to ascertain the real position.  

I do not pretend this is necessarily flameproof as it stands, and it certainly needs further thought. But it represents a real attempt to transfer the risk of drunken stupidity to the penetrator not the penetratee. It would be mitigation that the man had believed the woman had appeared to consent but it would not be a defence unless M was sure that there was consent having taken reasonable steps to check. If the woman can’t say yes, or says yes because of drink, or isn’t sure what happened, that would all be sufficient to convict. The sentence would, necessarily, be less. The conviction rate would, I believe, soar.

 

Simon Myerson Q.C. practises from St Paul’s Chambers, Leeds and Byrom Street, Manchester, and specialises in Civil and Criminal Law. He is currently representing 40,000 Kenyans in their claim against the Foreign Office relating to events during the Mau Mau Emergency in the 1950s. Simon tweets at @SCynic1.

Harriet Harman’s proposal to keep sexual histories out of court will put innocent people in prison

I have today written a piece for iNews on Harriet Harman’s resurrected plans to ban all evidence of sexual history from the courtroom, and why this is quite simply one of the most dangerous and stupid ideas of recent times.

Full piece is here:

https://inews.co.uk/opinion/harriet-harmans-proposal-keep-sexual-histories-court-will-put-innocent-people-prison/

Angela Eagle Challenges Jeremy Corbyn For The Labour Leadership

Goodbye Liz Truss, Hello David Lidington – a brief look at the new Lord Chancellor

Liz Truss, we hardly knew ye. Three days short of eleven months since her appointment as Secretary of State for Justice and Lord Chancellor in Theresa May’s debut cabinet, Ms Truss bows out to a slow handclap. Her achievements can be shortly listed, for they are none. Liz Truss never asked for the job, and, as became clearer each day of her eleven months-less-three-days overstay in the Ministry of Justice, was woefully ill-equipped for each aspect of it. She did not understand the policy she was promulgating wearing her Justice Secretary’s hat – having to be embarrassingly corrected by the Lord Chief Justice when she misunderstood and announced a policy about live link evidence in criminal trials –  and lacked the resolve to carry out her constitutional functions in her Lord Chancellor’s robes.

HelloGoodbyeUS

At the time of her appointment, many people expressed concerns at Truss’ selection. They were accused by Truss’ supporters of rank sexism; in dispensing with Truss’ services after less than a year, Mrs May vindicates these critics. The painful truth is that, as suspected, Truss was never cut out for the role. Her appointment betrayed the Prime Minister’s shameful lack of understanding of the constitutional function of Lord Chancellor; indeed, it was painfully clear that May was blissfully unaware that, unlike any other cabinet position, there is a specific statutory requirement that a Lord Chancellor be “suitably qualified by experience”. This is because the Lord Chancellor has a specific constitutional role: they swear an oath which provides:

I do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.

A potted history of the role of Lord Chancellor is set out here, but in short, the position exists to ensure that someone in government is explicitly charged with acting as a watchdog for the rule of law and the justice system. The Lord Chancellor should be someone of sufficient gravitas and political clout to stand up to their colleagues and say: What you are proposing offends the rule of law/independence of the judiciary/efficient support of the courts, and is wrong. It is for this reason that the ideal job specification calls for someone of significant legal and political experience, usually in the twilight of their career, who is prepared to give a merry two fingers to the Prime Minister and Cabinet in the overriding interests of our constitution.

The apparent lack of experience and fortitude, and the whiff of a Graylingesque desire to treat the Ministry of Justice as a stepping stone to better things, founded the main objections to Truss. While many of us were disappointed that she was the third non-lawyer to be appointed in a row, Michael Gove’s relative success during his short spell tempered some of our self-regard. On the day of Truss’ appointment, I wrote:

“Yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes, one fears, on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.

But if Mr Gove has taught us anything, it is that it is only right and fair to  pause and see what Ms Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.

Because if that’s the kind of Lord Chancellor Ms Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.”

But it quickly became clear that Truss was not that kind of Lord Chancellor. She had indeed been appointed precisely because May knew that she would not startle the horses. When May’s cheerleaders in the tabloid press and tub thumping Brexiteers, inexplicably livid at the notion of British judges doing their jobs and ruling on cases lawfully put before them in British courts, turned on the judiciary with a viciousness as dangerous as it was unprecedented, the Bat Signal for the Lord Chancellor went up. Judges were Enemies of the People. They needed sacking, or at least bringing to heel. Their sexuality was fair game, those gay ex-Olympic fencers. Their motivations and integrity were impugned. They were forced to seek advice from the police on securing their personal protection. Nigel Farage whipped up hysteria with calls for a march on the Supreme Court.

And Truss said nothing. Not a peep. When she was eventually shoved out onto stage, she muttered a brief platitude about the rule of law existing, and went on to repeatedly refuse to condemn the press or her Parliamentary colleagues for blatant attempts to intimidate the judiciary. This, it can be safely inferred, would have been on direct instruction from the Prime Minister, who responded to requests for comment with the same cowardly line.

Truss should have resigned then. She didn’t. She stayed on. By the end of her tenure, she had lost the confidence of the entire legal profession and the judiciary; some achievement in 10 months. Her epitaph was written for her by the Lord Chief Justice, Lord Thomas, who in a stunning break from convention told the House of Lords Constitution Committee that Truss was “constitutionally absolutely wrong”.

But let’s look ahead to her replacement: David Lidington, a long-serving MP and former Leader of the House of Commons whose name nevertheless had many of us reaching for Wikipedia. The first thing to note is that he is a not a lawyer. Which, given the historically legal quality of the role, is not ideal. But, as I explained at the time of Truss’ appointment, the legal profession and the judiciary have over the past 5 years become accustomed to non-lawyers donning the Lord Chancellor’s robes. The question is no longer simply, Are they a lawyer? Rather, it’s a much broader, Are they up to the job?

Presently, lawyers and commentators will be scrabbling over the new Lord Chancellor’s voting record and poring through Hansard (and Wikipedia) for clues to his disposition. What we know about Mr Lidington is this. He is a historian. This is a good start, although Chris Grayling’s degree in the same discipline did not encumber him in his wanton destruction of the justice system. According to Wikipedia, Mr Lidington has a PhD in “The enforcement of the penal statutes at the court of the Exchequer c.1558-c.1576”. He has won University Challenge twice, once as a student and once in a reunion show. These are all, to varying degrees, positives.

He has held various briefs since his election as MP for Aylesbury in 1992, although has not been called to serve in the Ministry of Justice (however, he did enjoy two spells as a junior minster in the Home Office in the 1990s). He was the longest ever serving Minister for Europe from 2010 to 2016, when he was appointed Leader of the House of Commons and Lord President of the Council.

While at the Foreign Office, he spoke about the importance of international human rights and of access to justice. He was a Remain supporter, who was in the press when it emerged that he had informed Parliament, entirely correctly, that the EU referendum was, as a matter of law, only advisory. He has shown that he is prepared to stand up to his own party on matters of constitutional importance, as in last December when he slapped down a fellow MP’s call for the appointment of judges to be brought under Parliamentary control following the “Brexit ruling”, replying:

“I hope that we don’t go down the route in this country where political considerations play a part in the appointment of judges.

“And of course our current system does depend on a balance, embodied in numerous conventions over the years rather than written into law, that Parliament, Government, respect each other’s place in our constitutional settlement and I hope very much that that will always continue to be the case.”

Already, we see a politician with an appreciation of the separation of powers, judicial independence and rule of law, and a willingness to stand up to those seeking to undermine those values, both of which were notably absent from Truss’ tenure. These are encouraging signs. His Parliamentary experience – 25 years to Truss’ six (at appointment) – accords with what might be expected for the role. That his record does not betray an appearance of ruthless career advancement and manic department-hopping suggests that he may have genuine intent to stay the course. Bob Neill MP, most recently Chair of the Justice Select Committee and a stern critic of his party colleague Truss, reacted to Lidington’s appointment thus:

 There are however less pleasing aspects to Mr Lidington’s record. He has consistently voted with his party to restrict the scope of legal aid and to limit success fees in no-win no-fee cases. This does not sit easily with a professed commitment to access to justice. His record on gay rights, up to his eventual conversion in favour of equal marriage, has historically lined up squarely with the pro-section 28 wing of his party. He has voted to repeal the Human Rights Act. None of these, indeed I would venture nothing in his Parliamentary record, screams of a man prepared to torch the party whip on the altar of justice. That said, a conversion from poaching to gamekeeping is not unknown when collective responsibility is lifted. Bob Neill has been rehabilitated from Chris Grayling’s right-hand MoJ hatchet man to staunchly independent chair of the Justice Committee, dishing out the just and righteous scrutiny that the system requires. People can change.

I would suggest that there is cause for cautious optimism. This is a left-field appointment by Theresa May (and of course one which, depending on the fading vital signs of her premiership, may be brief), but there is evidence that Mr Lidington, if he will forgive being damned with faint praise, is an immediate improvement on his predecessor. How far this improvement extends, remains to be seen. For my part, I would respectfully urge  the new Lord Chancellor to start with a few visits to his local magistrates’ and Crown Courts, to see the legacy of his forebears in grim action. Once he has done so, I would urge him, as I did in futility to Liz Truss, to:

stick on his ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something he is going to physically fight for at every cabinet meeting, even if the consequences are that he is politically blacklisted from the Party, and higher office, for the rest of his career.

Because that is the kind of Lord Chancellor our justice system needs. And it’s the kind that millions of disenfranchised and vulnerable people deserve.

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

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

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

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

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

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

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

and

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

All four guilty votes were cast by women.”

and finally

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A note on blogging – why I write

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

quill and parchment

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

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

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

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

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

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

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

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

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

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

Because ultimately this affects us all.

 

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

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

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

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

Facts

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

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

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

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

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

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

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

So what is going on here?

Deferred sentence

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

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

Sentencing Guidelines

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

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

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

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

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

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

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

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

Conclusion

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

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