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Guest post by Mukul Chawla QC: Reflections from my years at the independent Bar

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I am delighted and honoured to publish this guest post by Mukul Chawla QC. Many readers will know that, after 35 years at the independent Bar blazing trails that leave us mortal practitioners feeling very humbled indeed, Mukul is stepping down as Head of Chambers at Foundry Chambers (formerly 9-12 Bell Yard) for a new beginning in employed practice. Here, he offers some reflections on his time at the independent Bar and on the fate of the criminal justice system.

 

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What follows is a self-indulgent and personal reflection of my years at the independent Bar and my thoughts (which echo those more eloquently set out by others not least the owner of this blog page) of the present and future state of the Criminal Justice system. If that introduction is not enough to put you off, may I thank you in advance for taking the time to read this.

Three weeks ago, I concluded my final speech in a murder at the Central Criminal Court and was allowed to tell the jury at the end of it that, because of a longstanding previous engagement, I would not be able to return to the case.

The longstanding previous engagement was my leaving the independent Bar to join a firm of International lawyers in the City of London as a partner in its White Collar Crime team.  I have now been working in that role for three weeks and it has given me an opportunity to reflect on what I have left behind. At a time when my good friend Max Hill QC is about to take up the reins as Director of Public Prosecutions, I thought it was an appropriate moment to put down some of my thoughts on what the past thirty five years have meant to me and my fears for the future of the Criminal Justice system.

I was called to the Bar by Grays Inn in July 1983, a moderately fresh faced 22 year old who had played too much rugby and done too little academic work to achieve anything approaching decent grades. Like many of my contemporaries my academic achievements would not even get me an interview at any moderate set of Chambers today. In those days my university and Bar School tuition fees were paid for in full by the local authority. I did not have to pay for the privilege of undertaking pupillage but neither was there any pupillage award. Its equivalent, so far as my pupil master was concerned, was his complete insistence that while I worked with him, I did not pay for lunch or the near daily outings to wine bars around Fleet Street. My pupillage consisted of following my pupil master around various Crown Courts in London with occasional trips to the High Court and working on a variety of criminal and civil papers for him when we were not in court.

As it turned out I was incredibly lucky. When I got to my feet, I was invariably in court every day and often conducting several hearings each day. Most of my first five months on my feet were spent in the Magistrates Court but there were also plenty of appearances in County Courts and in Employment Tribunals.

Three weeks before my tenancy application was due to be considered, my clerks managed to miss a fixture for a senior tenant at Inner London Crown Court – a multi-handed heroin supply case. When I returned to chambers at 11am from a quick hearing at Bow Street Magistrates Court, my senior clerk handed me the papers tied with pink tape, gave me my taxi fare (you can tell how guilty he felt!) and sent me on my way to Inner London. The Judge was, I understand, incandescent before I arrived but took pity on me when I stammered my apologies for my late arrival. However, he was not sufficiently sympathetic to agree to adjourn the case to the following day so that the counsel who had been instructed could undertake the trial. He did, however, grudgingly allow me twenty minutes so that I could speak to my client. My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.

My first Crown Court trial had not started in the auspicious way that I had dreamt of. Our relationship never really improved. The next two weeks were spent in a haze of panic, sleeplessness and endless writing and crossing out questions to ask and points to make. I had one point in my favour. The police officer who interviewed my client had neglected to write down that he had cautioned him in accordance with the Judges Rules (this was pre PACE). The more he insisted that he had cautioned my client the sillier he looked. Wise words from one of my co-defending counsel prevailed upon me in that, while I had wanted to make this cross examination last hours so that I would be seen as the new Rumpole of the Bailey (or, at least of Inner London), I only needed to ask half a dozen questions before resuming my seat. In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me.  Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.

A week later, the Chambers Tenancy meeting took place and thanks in large part to what was reported by those who had been in court, I was offered a tenancy. I was taken for a drink by a senior member who was to become a good friend, Ian Goldsworthy. His advice (only half in jest): “If I were you, my boy, I would give it up now while you still have a 100% success rate.” Two days later and following a trial for shoplifting, my success rate had plummeted to 50%.

The next few years were incredibly busy. I would often spend weeks in the same court with a jury being sent out in one case and immediately starting the next one. One or two judges, I suspect, became heartily fed up with me. My speediest full trial was at Croydon defending a man charged with handling stolen goods. The jury were sworn at 10.35am and returned their verdict at 11.10am (thankfully one of Not Guilty). I was always accompanied by a solicitor’s representative. In many ways, the solicitor’s rep was the glue that held trials together, who could smooth difficulties between counsel and the defendant, who would make notes, be a sounding board and support the advice being given. Those who undertook this task were often people with very substantial experience in attending court with counsel. The vast majority of counsel today have never had that assistance and the system has suffered immeasurably in consequence.

My luck continued. For a long time, from the late 1980’s, I acted for the Police Federation representing Police Officers in discipline hearings and in criminal cases. All of those cases were challenging and some immensely so. But in the process, I represented police officers charged with criminal misconduct, perverting the course of justice, corruption and manslaughter. Some of those represented the highest profile cases of their kind and included the defence of the Guildford 4 and Birmingham 6 police officers and the officers charged with the unlawful killing of Joy Gardner. I represented a retired senior officer in the Macpherson Enquiry following the brutal racist killing of Stephen Lawrence and the grossly inept police investigation that followed. I represented police officers from Regional Crime Squads and the Flying Squad charged with the most serious allegations of corruption.

I was on the Customs List which meant that I split my time prosecuting and defending. I would defend policemen and prosecute suspected drug smugglers and VAT evaders. It was exciting and exhilarating work. It was always rewarding both professionally and financially. Unlike criminal practitioners today, I do not remember worrying about fees or about paying my mortgage or payments to my pension or healthcare or critical illness cover. I was able to save and invest some money. Please do not misunderstand me. I was not wealthy but neither was I struggling to make a decent living.

In 1996, I was asked to become Standing Counsel to the Customs and Excise and having decided to accept that appointment, I resigned from the then nascent monitoring scheme for Treasury Counsel at the Central Criminal Court.

From 1996 to 2001, I was a busy and, I think, successful senior junior undertaking specialised criminal work both defending and prosecuting substantial cases. Those cases were not without moments of substantial humour and embarrassment. On one occasion, I was being led in a trial at Leeds in front of Mr Justice Ognall. My leader was making a submission about which he had not spoken to me and which took me completely by surprise. My usual poker face was clearly absent as Ognall J, (like me, clearly struggling to understand the submission) said at one stage: “Oh Mr X, if only you could see the expression on your junior’s face!”

By now a substantial part of my work was in fraud cases and I would be instructed in cases by and against the Serious Fraud Office.

I took Silk in 2001, two months shy of my 4oth birthday. Again I was lucky. I still defended and prosecuted in the same sort of cases as I had as a Junior but now I was right at the sharp end. And I loved it.

I was one of a number of counsel who were part of a new record for trial length. Between 2003 and 2005 I defended in the longest ever trial in front of a Jury (June 2003 to March 2005) – the Jubilee Line fraud and corruption case. The prosecution had estimated that the trial could take 6 months. Those of us defending thought it could take 12 months. The Judge warned the Jury it could take 18 months. We lost one juror who became pregnant, another who was charged with some allegation of fraud and the trial eventually collapsed when, after 21 months, a further juror simply (and understandably) said he had had enough when the end was nowhere in sight.

I have enjoyed prosecuting and defending in fraud and corruption cases, prosecuting export control cases and defending insider dealing and health and safety cases. More recently I have prosecuted a handful of murder cases. I have had a rich and plentiful diet of appearing in court and advising companies and individuals facing a variety of criminal and regulatory issues.

But my time at the Bar is not defined by the cases that I have undertaken. It is defined by the sense of camaraderie that exists in every case with your co-defending and opposing counsel, the jokes that you make and that are made at your expense and the fact that, however hard you fight in court, you will always enjoy the company of those with whom you have been in fierce dispute when sharing a drink in the pub.

More than anything, my time at the Bar is defined by the friendships I have made. There are simply too many to list here and so I will confine myself to mentioning three people who have been special and inspirational to me and whom I count myself as truly fortunate to be able to describe as close and lasting friends.

Edmund Lawson QC was my mentor and dearest friend at the Bar from my days of pupillage until he died, much too early, at the age of 60 in 2009. He was prodigiously clever and hard working. He had fantastic judgment – almost his first advice to me was: “If you are thinking of doing something but it would make you blush then or if you had to tell someone you respected about it, don’t do it.” But he was much more than those things. Among other things he was modest, fun, generous always great company and someone who made everyone with whom he came into contact feel special. The most difficult speech I have ever had to make was when I delivered the eulogy at his funeral.

I first met Julian Bevan QC when he prosecuted my clients in the Guildford 4 police officers case. He was one of those people who always took his cases seriously but regarded his  own very considerable abilities with much disdain. He was the consummate jury advocate exuding calm and utter restraint. You would never guess that he had, moments before going into court, been a nervous wreck. One of my tasks as his junior was to be able to roll a cigarette for him when his hands were too shaky to put the tobacco in the paper. In one case, I remember vividly how he was able to completely turn a hostile jury by the sheer power of his advocacy, putting difficult propositions into simple words while generating complete trust in what he was saying. He was unbelievably generous to me, constantly recommending me to solicitors for difficult cases. He was and remains a constant source of delight. Now that he is enjoying retirement, I treasure the lunches and dinners when we meet and are able to gossip like adolescent schoolboys.

Ra Healy QC was one of my first pupils in 1992. In many ways, we have grown up at the Bar together albeit that she is rather younger than me. She became my pupil just at the time when my practice was blossoming. I knew I was going to like her when she told me early in her pupillage and with justified confidence that my analysis of some legal issue was completely wrong! In reality she is a proper lawyer and a great advocate. By rights, she should be arguing esoteric points of law in the Chancery Division or the Commercial Court. But she loves being a Jury advocate and she is terrifically good at it. Her sense of irreverence has not deserted her. A few years ago I was leading her in an insider dealing case. When cross-examining an expert on derivates trading, I mis-calculated a percentage difference. When the Judge looked quizzically at me and suggested that my maths was faulty, Ra piped up to say to Judge and Jury “Pah! Just as well he doesn’t style himself as a fancy fraud specialist!”  Over the years she has become a real friend and a confidant. She was the only one at the Bar whom I told when I was thinking of leaving the Bar. With Ra, I know that my leaving Chambers will not change our relationship.

So, the question that I have constantly been asked is: Why leave the independent Bar? The short answer is that I was given the extraordinary opportunity to work in an area in which I am comfortable but with completely new challenges and opportunities. It was, in reality, an opportunity that I could not sensibly refuse.

But it is more than that. Life at the Criminal Bar has become a grind and for many, an intolerable one. The cases that we do are becoming more and more complex. They are uniquely challenging and important for defendants, victims and the public at large. The vast majority of barristers and solicitors doing this work see no future in terms of personal development and financial security to make this a profession that can be enjoyed and sufficiently remunerative to be sustainable.

In the last few years I have seen talented junior members leave the profession to work for the CPS, SFO and FCA as well as joining firms of solicitors. In the main, that is not something that they have wanted to do but something that has been forced upon them.  Those who are doing well (and there are fewer of those than many would think) have seen such extraordinary structural changes in what we do that is done under the most difficult circumstances. Thus and by way of example only, even in high profile murder cases, it is extremely rare to see a solicitor’s representative in court supporting the advocate. It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated in the drive to achieve economies.

It is positively debilitating as a Head of Chambers when you hear of stories of juniors who cannot afford a train fare to get to court because the CPS or the LAA has failed to make payments long overdue. These are not apocryphal or anecdotal stories. These are things I have seen first-hand.

You may argue that the profession has become too big and that it should be leaner. But I am not here speaking of the dearth of work but the simple fact that the work required to be done, the payments that are made for that work and the way that those payments are made, and often not made, cannot sustain this profession either in its present numbers or in reduced numbers.

However, this is only one part of the problem. The entirety of the Criminal Justice System is in crisis. Successive governments have cut funding to all parts of it, whether in terms of the Legal Aid budget, funds available to prosecutors, police, probation services and prisons. From detection, investigation, trial and all the way through to prison, community penalties and eventual rehabilitation efforts, no government in recent memory has shown any inclination of caring about any of it. And so, at every stage, despite the best efforts of all those involved in every stage of the process, mistakes will occur; short cuts will become common place if that has not already happened.

I have come to the view that unless there is a really substantial injection of funding in all areas of the system, the Criminal Justice system will simply collapse. It will be unrecognisable and will, in reality, be anything but Justice. And by that I do not mean for the direct participants in it but for Society at large. Members of the Bar, Solicitors  and their professional organisations have tried to warn governments of the consequences of under-funding for almost as long as I can remember. Our words have consistently fallen on deaf ears. Even the occasional promises to improve aspects of it have proved illusory. I have no confidence that the position will change.

And so, I am sorry to be leaving the profession but only to an extent. While I am excited by the challenges that I will face in the years to come, I am leaving this profession which has given so much to me with real foreboding. I hope (perhaps in vain) that, in this respect at least, I will be proved wrong.

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What Lord Hain didn’t consider when he rushed to name Philip Green

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A piece for iNews today following Lord Hain’s decision to invoke Parliamentary privilege to name Philip Green in defiance of a court injunction.

You can read my musings here.

Why is the dangerous Anjem Choudary being released onto our streets?

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Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.

The Tommy Robinson judgment – what does it all mean?

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Today the Court of Appeal (Criminal Division) handed down judgment in the appeal of Stephen Yaxley-Lennon (AKA Tommy Robinson), partially allowing the appeal and directing a rehearing at the Crown Court.

What does this mean? Has Tommy been proven innocent? Is this a victory for freedom of speech?

Let’s break it down.

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  1. How did this all start?

Yaxley-Lennon was committed to prison for 13 months on 25 May 2018, after attending a trial at Leeds Crown Court and streaming a live-feed on Facebook in which he broadcasted details of the trial and of the defendants. That particular trial was subject to reporting restrictions imposed by the judge, prohibiting reporting of the details until the conclusion of the trial, and of other linked proceedings. By broadcasting in the way that he did, Yaxley-Lennon was in breach of the reporting restriction, an act which amounts to contempt of court. A year earlier, he had committed a separate contempt of court at Canterbury Crown Court by broadcasting prejudicial material about the case. On that occasion he had been made subject to a suspended sentence of 3 months. On 25 May 2018, when he was found to have committed contempt of court again, he was given 10 months for the new contempt, and the 3 months from Canterbury was “activated” and ordered to run consecutively, making a total period of imprisonment of 13 months.

 

  1. What is contempt of court?

Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication.

The reason is straightforward. The priority in every criminal case is ensuring a fair trial. This of course matters not just to the defendant, whose liberty is on the line, but to the witnesses, complainants, victims and public. Prejudicial material – such as televised speculation over whether a defendant “did it”, or orchestrated campaigns by special interest groups seeking to secure one type of verdict for political reasons – could potentially influence a jury. We don’t sequester juries in England and Wales (barricade them in hotels cut off from the world for the duration of trials). They are instead allowed to continue their normal lives, but are given firm directions by judges not to conduct their own research into the case they are trying,

The reason, juries are told, is twofold. Firstly, a jury’s own independent research runs the risk of being unreliable, even more so in the era of fake news. Deciding the case on flawed information risks catastrophic miscarriages of justice. Secondly, it is not fair to the parties. The advocates in court address the jury and make arguments on the evidence. If juries have taken into account their own private research about which the advocates are unaware, the parties are unable to assess or test its reliability, or to address the jury on what their client (either defendant or prosecution) says about it.

Thirdly, strict rules of evidence operate in criminal trials to filter the evidence that juries hear in a case, to ensure it is (a) relevant, (b) reliable and (c) not overly prejudicial to the defendant. It rather defeats the point if as soon as a juror turns on the TV they are confronted by a perma-tanned bozo offering half-baked opinions on the very matters that a judge has ruled a jury shouldn’t be told about.

 

  1. So nobody can report on criminal trials, is that what you’re saying?

No, far from it. Anything can be reported which is not prejudicial (and which is not subject to reporting restrictions – see below). And if something prejudicial is reported in the course of fair and accurate reporting of an ongoing case, there is a specific statutory defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Similarly, publications contributing in good faith to discussions of public affairs or matters of public interest if the risk of prejudice created is merely incidental to the discussion. So, to give a topical example, the media is allowed to discuss and debate the way in which we should deal with the rising incidence of acid attacks, even though there are many such trials ongoing across the country and there is arguably a risk of prejudice in ingraining hostile attitudes among potential jurors. No media outlet has been accused of contempt, and nor is anyone likely to be, for taking part in this general discussion.

So we can see that the law gives considerable latitude to the press and ensures that the media do not shy away from accurate, factual reporting of criminal proceedings, or of discussing matters of public interest. The idea is to balance the importance of open justice with the centrality of ensuring a fair trial.

 

  1. So is that the only way that contempt of court can be committed? Do you have to be prejudicing proceedings?

Not always. Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).

Then there are contempts which strike at the authority of the court, where there is no requirement that the fairness of proceedings be prejudiced. There are what are referred to as “civil contempts”, where, for example, an order made by a court ordering one party to do something is breached, and the other party complains to the court.

There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order. Such as, for instance, a reporting restriction.

Contempt – however committed – carries a maximum penalty of committal to prison for up to two years. Note that slightly tortured phrasing – “committal to prison”, rather than “sentenced to imprisonment”. It’s a distinction which becomes relevant at the appeal.

 

  1. What is a reporting restriction? I thought you said people are allowed to report fairly and accurately on live criminal cases?

The starting point of our criminal justice system is that justice must be seen to be done. However, the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.

One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is:

  1. Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings?
  2. Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective?
  3. On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice?

 

  1. Back to Tommy Robinson – how was he in contempt of court?

He was dealt with for two contempts of court.  It helps to take them in turn.

Canterbury

On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925,), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.

It was held that this behaviour was capable of prejudicing the ongoing trial. The finding of the judge, from the judgment, was that in acting in this way, Yaxley-Lennon had committed a “criminal contempt” – what is otherwise known as a contempt “in the face of the court”. He was also in contempt by virtue of filming in breach of section 41. He was committed to prison for 3 months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

 

Leeds

Fast-forward to this year. On 25 May 2018, Yaxley-Lennon attended Leeds Crown Court to “report” on an ongoing trial. [The subject of this trial is still subject to reporting restrictions and so is not mentioned here. I will update when the restriction is lifted.] He live-streamed a Facebook video in which he made various comments about the defendants, including reading out their names and referring to their religion, ethnicity and questioning the need for reporting restrictions. He encouraged people to share the video, which many did. This was at a time when, as Robinson knew, a “postponement order” under s.4(2) of the Contempt of Court Act 1981was in place, which prohibited any reporting on the details of the trial until the conclusion of a “linked trial” – as explained above.

If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive.

And this is where Yaxley-Lennon found himself. Arrested by police (initially for a breach of the peace, but then dealt with in court for contempt – this is entirely unremarkable, despite the attention given to it by Yaxley-Lennon’s supporters) and brought before the judge facing an allegation of contempt. Contempt having been admitted, Yaxley-Lennon’s barrister advanced mitigation, and HHJ Marson committed YL to prison for a total of 13 months. 10 months was for the new offence, with the three-month suspended sentence activated and ordered to run consecutively. The process was quick – 5 hours from arrest to imprisonment.

 

  1. What were the grounds of appeal?

The appeal focussed on three principal arguments:

  1. The findings of contempt at both Canterbury and Leeds did not comply with the Criminal Procedure Rules;
  2. Neither the matter at Canterbury nor Leeds should have proceeded summarily; they should have been adjourned and referred to the Attorney General rather than dealt with swiftly by the trial judge;
  3. The judge in Leeds punished the appellant for matters falling outside the scope of contempt and failed to properly identify the conduct he was treating as contempt of court.

A contemnor (as is the official term) has an automatic right to appeal to the Court of Appeal (unlike ordinary convictions or sentences where the Court of Appeal must give permission to a would-be appellant). However this has to be exercised within 28 days of the finding appealed against. While the appeal against the length of the committal (the “sentence”, if you like) was lodged in time, it was not until some time later that Robinson decided that he wanted to appeal against the findings of contempt. He therefore required the court to grant an extension of time for him to appeal.

Given the misinformation that has been spread, it is worth emphasising two things at this stage. Firstly, it was widely reported (including by me) before the appeal hearing that Robinson was not appealing against the findings of contempt. We did so because this is what Robinson’s official spokesperson, and the media organisation supporting him, publicly announced. He deliberately chose not to publicise the fact that he was appealing against the findings of contempt, and the first that this was known was on the day of the appeal. Secondly, the arguments against the findings of contempt was entirely procedural. In other words, his barrister explicitly accepted that what Robinson had done amounted to contempt of court. The argument was simply that the court hadn’t dealt with it as the law requires.

 

  1. Let’s take each part of the appeal in turn. What was that about the Criminal Procedure Rues?

The Criminal Procedure Rules were introduced in 2005 to impose some sort of order on the routine chaos of criminal proceedings. They are lengthy and comprehensive, and prescribe the procedures that the criminal courts must follow.

Contempt proceedings can be started either by the court (i.e. the judge), or following a reference to the Attorney General, who as the “guardian of the integrity of the administration of justice” often takes charge.

When the court is dealing with an alleged contempt of court, the relevant procedure is set out at Criminal Procedure Rule 48. The law permits the court to deal with contempts summarily – i.e. straight away – or to adjourn to another date, as long as the procedure is fair. What is appropriate will depend on the circumstances. Where someone is interrupting a trial, for instance, it will usually be right for the court to deal with the contempt immediately to avoid further disruption. However the Court of Appeal, referring to case law, emphasised that this procedure should be used sparingly. Where there can safely be an adjournment, there should be.

Another important feature is that the court should “particularise” the contempt – spell it out so that the alleged contemnor knows what they are supposed to have done. An extract of the procedure is here:

If, having completed the initial procedure (which includes offering the contemnor a chance to apologise), the judge decides that further action is to be taken, the court must embark upon an “enquiry” (the name for the hearing of a criminal contempt). A court can postpone an enquiry for further investigation.

 

  1. So where did Canterbury Crown Court go wrong?

It didn’t. Robinson argued that the judge had failed to provide the written statement of particulars of the contempt required by Rule 48.7. However, the Court of Appeal, following the appeal hearing last month, came into receipt of “late disclosure”, which showed that “a deliberate tactical decision was made by [Robinson’s] legal advisers at Canterbury to be complicit in the court’s failure to comply with Rule 48.” The appellant waived legal privilege (a common request made by the Court of Appeal in appeals where criticism is made of how Crown Court proceedings were conducted) which allowed the Court of Appeal to read the legal advice he received. And it emerged that a conscious decision was taken by his legal team not to invite the judge to follow the correct procedure, as they thought they would secure a tactical advantage by making the judge “uneasy” about the proceedings.

The Court of Appeal was not impressed, telling Robinson:

“It lies ill in the mouth of an appellant to complain of the failure of the court below to follow the appropriate procedural steps when that failure was fully appreciated at the time and remained deliberately uncorrected for tactical reasons and collateral advantage.”

The Court added that the new barristers instructed for the appeal were unaware of this until after the appeal hearing, and disclosed it promptly when it came to their attention.

In any case, the Court of Appeal said that nothing procedurally was flawed in Canterbury. The judge had adjourned the contempt hearing for 12 days to allow time for him to take legal advice. Any failure to follow the CrimPR was immaterial.

The appeal against the Canterbury contempt was therefore dismissed.

 

10. What about Leeds Crown Court?

This was very different. The time between arrest and imprisonment was five hours. The Court of Appeal was highly critical:

“Such haste gave rise to a real risk that procedural safeguards would be overlooked, the nature of the contempt alleged would remain inadequately scrutinised and that points of significant mitigation would be missed. Those risks materialised.”

The Court of Appeal said that the judge was right to order that Robinson immediately take down the video, but that he should then have “taken stock”. He should have either adjourned for a later hearing, or referred the matter to the Attorney General to consider. The Court of Appeal displayed some sympathy towards the judge’s position, but made clear it disapproved of his chosen course:

“We recognise that the judge was placed in an invidious position because he was concerned about the integrity of the trial which was almost at its end. The three trials, of which this was the second, were exceptionally difficult and sensitive. Having decided to suspend the deliberations of the jury, it is understandable that he may have felt under some pressure to resolve the issue of the appellant’s contempt expeditiously. However, once it had become apparent that the appellant was co-operating in removing the material from the internet, there was no reason why the jury could not have been permitted to resume their deliberations. If there was any doubt about the intentions of the appellant, the judge could have sought an undertaking from or ordered, the appellant not to comment further on the trial or approach the court until the trial (or trials) had concluded.”

There was also confusion, due to the lack of particulars of the contempt, as to what conduct the judge was dealing with Robinson for. He was in breach of the reporting restriction, but the judge also appeared to suggest that other comments in the video – relating to the defendants’ ethnicity and religion – would amount to a separate criminal contempt. But it was all rather fuzzy, and deeply unsatisfactory:

“In our judgment the failure to follow the requirements of Part 48 of the Rules was much more than a technical failure. In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name. In this case there was no clarity at all about what the appellant was admitting and for what parts of his broadcast he was considered by the judge to be guilty of contempt of court for breach of the section 4(2) order.”

As far as the length of sentence was concerned, the Court of Appeal criticised the decision not to adjourn for a Pre-Sentence Report (or “Pre-Commital Report”), and accepted that the speed of the hearing meant that the level of detail of mitigation put before the court was “very limited indeed”.

 

  1. So the Court of Appeal quashed the Leeds contempt?

It did, and all consequential orders (i.e. the sentence) fell away. However that is not the end of it. The Court remitted (sent back) the contempt for a fresh hearing at the Crown Court before a different judge. When the contempt is established (as it surely will be given that Robinson has admitted through his barrister at the Court of Appeal that he breached the reporting restrictions), he will be sentenced afresh.

 

  1. What’s the point? As Tommy’s barrister said, he’s served the equivalent of a four-month sentence. If the Court of Appeal accepted that there was important mitigation not heard, surely he’s going to receive a much shorter sentence?

Not necessarily. There was a sting in the tail of the judgment. The Court of Appeal observed that “the alleged contempt was serious and the sentence might be longer than that already served.” It also set out, for the benefit of any future sentencing court, the criteria that should be considered when passing sentence:

(a)  the effect or potential consequences of the breach upon the trial or trials and upon those participating in them;

(b)  the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;

(c)  the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;

(d)  the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;

(e)  whether or not the contempt was aggravated by subsequent defiance or lack of remorse;

(f)  the scale of sentences in similar cases, albeit each case must turn on its own facts;

(g)  the antecedents, personal circumstances and characteristics of the contemnor;

(h)  whether or not a special deterrent was needed in the particular circumstances of the case.

Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences:

(a)  Trials may have to be abandoned irretrievably;

(b)  Juries may have to be discharged and retrials ordered with all the consequent delays and expense;

(c)  Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time;

(d)  The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense.

 

  1. So Tommy is free. This is a victory for free speech, right?

No. It is a victory for the procedural rules, and a sharp reminder to the courts of the need to follow them. But certain key takeaways remain:

  1. Robinson admitted that he was in contempt of court at Canterbury, through racially charged and aggressive hounding of defendants which risked derailing a serious sex trial and denying justice to victims of sexual offending;
  2. Robinson admitted through his barrister that he was in breach of the reporting restrictions at Leeds Crown Court. It was never suggested, by his barrister or anyone else, that the reporting restrictions were inappropriate. It was agreed by all that they were necessary to ensure the fairness of serious trials.
  3. “Free speech” has nothing to do with this decision. This was not a case of Robinson “exposing” something the state was trying to cover up. At both Canterbury and Leeds, he was interfering in a live criminal trial in defiance of laws designed to ensure the trial was fair. The cases would have been reported in full by journalists once the postponement order was over. The only thing added to the sum of human experience by Robinson’s “citizen journalism” was the very real risk of serious criminal cases collapsing.

 

14. This shows that you know NOTHING, fake barrister. You were wrong, weren’t you?

Yes. My initial impression, based on the limited information available, was that the summary procedure was appropriate in the Leeds case. As the Court of Appeal explained, it was not. There were alternatives open to the judge which should have been explored. There were also obvious failings to abide by the procedural rules, although I would plead in mitigation that none of that information was available at the time that the story was first reported. As a result, the hearing was not fair. Whether the sentence was appropriate was not decided by the Court of Appeal and may perhaps be best assessed by what the freshly-constituted Crown Court decides to do, (although my position on that was neutral – I observed simply that the sentence was not out of the ordinary for serious contempts of court.)

So I hold my hands up – imperfect information makes for imperfect predictions. But is there a wider issue here, among me and other legal commentators? Were we too quick to dismiss the case with a “nothing to see here” wave of the hand, blinded by the unappealing nature of Robinson’s supporters and the organised maelstrom of fake news stirred up here and abroad? Maybe we were. Maybe we could have – should have – cleared our ears and browsers of the white (pride) noise and paid greater heed to the arguments of due process. Maybe a little more humility is required in these difficult cases. I am normally conscious in all legal blogging to couch in terms of conditionals – if this report is accurate, then the explanation might be X. Was I too quick to assume, wrongly, that the judge had acted correctly?

I think I may have been. But looking back over the litany of plainly false statements circulated between May and now – that Robinson’s “reporting” was nothing more than the BBC had done; that he was targeted by the deep state; that Robinson’s original barrister was an “unqualified duty solicitor”; that TR was never in contempt of court as the trial was over; that the courts were “covering up” serious crimes by certain racial groups; the dishonest framing of the debate as one of “free speech” rather than interfering with justice; and the other hundreds of fantastical theories clogging my Twitter notifications today – I’d suggest, self-servingly, that an inaccurate but well-meaning prediction – such as we all make in the courts every day – is lesser a social evil than the deliberate, racially-tinged misinformation campaign that we do our best to counter.

Guest post by Fern Champion: The government thinks it is doing enough to fund Rape Crisis centres. My story shows they are wrong.

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I am honoured to host this guest post by Fern Champion. Fern is next week giving evidence to the All Party Parliamentary Group on Sexual Violence, speaking from her own experience about the widespread problems in accessing Rape Crisis centres. This is Fern’s story.

I can’t count the number of times I’ve tried to do this. To tell my story and have it listened to. To engage with police, insurance companies, support services, employers, and friends across the globe.

“I need to talk to the police” I said to the girl working on the reception of the hostel I was staying at in Kuala Lumpur, as I walked in clutching my bra in my hands.

“I’ve been raped” I said on the phone to the British Embassy Consulate the next day, after spending the last 24 hours either with the police or in hospital.

“I’ve missed my flight because when I should have been boarding, I was being examined by a surgeon” I said to my airline and travel insurance company.

“I think I had my drink spiked and had to have a pregnancy test” I said to my friend who I sent various incomprehensible messages to the night before.

So here it is, one more time. My story, which really isn’t just my story.

On the 18th/early hours of the 19th July 2016, I was raped by a man whilst I was heavily intoxicated.  He first assaulted me whilst I was unconscious on his couch, and then he carried me to his bed where he forced his penis into my mouth, vagina and anus throughout the night, all while I was passing in and out of consciousness. Everytime I protested, he told me that he could “really fucking hurt me”. It wasn’t difficult to pin me down.

My assault occurred in Kuala Lumpur. I was 3 months in to my cliche ‘gap year’ and I had a series of flights booked the day after to get me to New Zealand, where I would be living for a year.

In August 2016, I arrived in Wellington, New Zealand, and met with the Wellington Rape Crisis. I was put in contact with them through the British Consulate Office in Kuala Lumpur, and they immediately put me on their waiting list for support and treatment.

I spent the next year trying to rebuild my life on the other side of the world, having arrived in New Zealand with 26p left of my overdraft. I spent a lot of that time working, though I got to travel too. I fought against my insurance company for six solid months, though eventually I won. I can’t make out that whole year was terrible, because it wasn’t. I got to live and work in one of the most beautiful countries on earth. I furthered my career, built lasting friendships and even got to work with the WRC on publishing a ‘Survival Guide’ for travellers who are assaulted overseas, but I had to do all that whilst processing what happened to me with no support. I spent the entirety of my year in New Zealand on Wellington Rape Crisis’ waiting list.

In August 2017, I arrived back in the UK and contacted both East and South London Rape Crisis centres but was told that I could not get onto the waiting list at either. In September I moved to Tooting and was told by SLRC to try again in January 2018. That month, I also contacted my local MP, Dr Rosena Allin-Khan to discuss the lack of access to support I have been facing since my attack over a year earlier and the impact that must be having on survivors all over the country. She wrote to the Secretary of State for Health, Jeremy Hunt, and asked what steps his Department is taking to provide support to survivors of sexual assault when services are over-subscribed. He replied that “allocations for Sexual Assault Referral Centres have increased this year”. She also asked the Secretary of State for Justice, David Gauke, what he is doing to reduce general access times to rape crisis centres. He responded with “In 2017/18 the MoJ directly allocated around £7.2m as a contribution to 97 Rape Support Centres across England and Wales”

 And yet in March 2018, I was told once again that South London Rape Crisis waiting list remains closed.

This really isn’t just my story. In March 2017, the Crime Survey for England and Wales estimated that 646,000 of adults aged 16 to 59 experienced sexual assault in the previous 12 months. 2017/18 data published by Rape Crisis England and Wales shows that 78,461 individuals accessed Rape Crisis specialist services. The CSEW have not yet published their data for the same period but I think it can be safely assumed that the numbers will remain proportionately similar, meaning that nearly 88% of those sexually assaulted will not have accessed Rape Crisis specialist services. It’s going to take a lot to convince me that that 88% have been able to access support elsewhere, seeing as more and more services are having to shut down their waiting lists.

As such, 17 July 2018 is going to be a big day for me. Not only will it nearly be the two year anniversary since my attack, but I will also be addressing the All Party Parliamentary Group for Sexual Violence, who will be discussing the funding landscape for specialist sexual violence services.  Because I, and everybody else in that 88%, deserve answers.

Why should we be forced to wait months, if not years, on end for sustained support to help us process a trauma which was not our fault in the first place? Why should we endure ongoing nightmares or total emotional oblivion as we continue to sleepwalk through a world that continuously tells us it was our fault, with the knowledge that only 7% of our attackers will be convicted relentlessly pounding our skulls? I reported my attack as soon as I was safe. The police were provided with my medical report, clothes, access to CCTV footage of two different bars, witness statements which corroborated mine, GPS data of where my phone tracked me during the hours of my attack, and still my attacker was not caught. Why?

Why did they ask me what was I wearing? How much I’d had to drink? How many men I’ve previously slept with? Why I didn’t fight? Why I couldn’t remember the details of what happened when I was unconscious?

Why will they never get to ask my attacker why did you rape her?

This government, namely Jeremy Hunt and David Gauke, seem to think they have done enough to help women like me. I am here to tell them they are wrong because somehow, despite all of this, I am one of the lucky ones. In March this year, I was finally able to access support through my employer when I very rapidly crashed through rock bottom and found myself unable to go to work, or even leave the house. How many others in that 88% who have been unable to access Rape Crisis do you think can say the same? As a university educated, white female with a shiney corporate job in the city, I have been protected by a certain amount of privilege which has allowed me to get me to where I am today. What about everybody else? This government, like so many before them, is failing them all.

It has long been known that 1 in 5 women will be raped, or nearly raped in her lifetime. It is now abundantly clear that the vast majority of those women will not be able to access support services crucial to their recovery. Enough is enough. We all have a duty to fight this so I am asking you now, write/tweet/send an owl to your local MP and ask them if they will be attending the APPG on Sexual Violence on the 17 July. Ask them if they will hear my story and help me to create something positive from what has been an almighty shitshow of the last two years. Your MP will represent so many women with stories like mine, maybe even you yourself have a story like mine, so let those stories be heard.

Please don’t let me continue talking to an empty room.

Lunch with the FT

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I had the pleasure of a spot of lunch with Barney Thompson, legal correspondent at the Financial Times, for the “Lunch with the FT” feature in this weekend’s edition. Given the profile of interviewee normally invited (recent guests include Woody Harrelson, Anthony Scaramucci and Jacinda Ardern), this is an honour I most certainly don’t deserve, but the prospect of a free lunch trumped any sense of guilt or propriety.

The feature can be found here.

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Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

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I am delighted to host a guest blog by James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP.

Readers may be aware of the events of recent days in relation to the campaign by Gina Martin to create a specific criminal offence to address “upskirting” (about which I wrote here). Last Friday saw the second reading in the House of Commons of the Private Member’s Bill introduced by Wera Hobhouse MP, and an objection to the Bill by Sir Christopher Chope.

The Spectator published a comment piece by Melanie McDonagh in which she wrote in support of Sir Christopher and against the merits of the proposed law. Here, two partners in Gina Martin’s campaign respond to that article. 

Upskirting is on the political agenda because of the tireless campaigning of Gina Martin, a 26 year old woman who was upskirted at the British Summer Time Festival last July. On Friday, to the shock of Parliament, Sir Christopher Chope blocked Wera Hobhouse’s Private Member’s Bill in support of Gina’s campaign.

After months of work by Gina’s campaign, Wera’s Voyeurism (Offences) Bill had earlier in the day been supported by the Government. With the Government on board it was widely expected that it would pass through the House and progress to committee stage, where details would be examined and amendments possibly made.

Sir Christopher put a spanner in the works by objecting to the Bill’s progress, a decision met with calls of “shame” from his Conservative colleagues. The disappointment and anger across the House – particularly among the Tory benches – was clear to see (and has been underlined by numerous subsequent tweets, and the Spectator’s own leak of Whatsapp messages between Tory MPs).

While the optics are poor, it is not fair to characterise Sir Christopher’s objection as being a defence of perverts. As he confirmed in conversation outside the chamber, Sir Christopher had not looked at the detail of the Bill and was not even familiar with upskirting. Sir Christopher’s objection is neither personal nor related to the Bill’s content. He objected because he feels that Private Members’ Bills should not be passed without debate.

Given the basis for this objection, a point of principle on the scrutiny of Bills in Parliament, we were perplexed to read Melanie McDonagh’s Spectator article “In defence of Christopher Chope’s ‘upskirting’ objection”.  McDonagh’s article (which is the most read on the Spectator website as at the time of writing) does Sir Christopher a disservice by associating him with a view that is utterly confused about both the current law and the proposed reform.

On the current law McDonagh states that “bad behaviour of this kind” – her euphemism for upskirting – is “dealt with under the offence of outraging public decency, as voyeurism”. This is legally illiterate. Outraging public decency and voyeurism are two entirely separate offences. To conflate the two is to miss the point.

Upskirting often takes place in populated public places. Outraging public decency, a common law offence which requires two or more people (other than the defendant) to be capable of seeing the act, is therefore available to prosecute most upskirting. But it is neither an adequate nor appropriate solution.

First, the offence does not provide full protection to women. If the prosecution cannot prove that two persons other than the defendant could have seen him take the “upskirt” photo, the offence cannot be used. So, for example, that if upskirting takes place when a woman is on a street or in another public place alone, no prosecution is possible. That is not acceptable.

Second, the offence does not reflect the wrongdoing. Upskirting is a sexual offence with a victim. The public are rightly outraged by upskirting but this outrage is secondary to the harm it causes. A charge of outraging public decency fails to acknowledge the harm to the victim, and fails also to recognise upskirters for what they are – sexual offenders.

The more appropriate offence of voyeurism is, in contrast, not generally available to prosecute upskirters. The reason: to prosecute for voyeurism the upskirting victim needs to have been observed doing a “private act”, which is not normally the case. This is why the Scottish Parliament modelled the Scottish offence of voyeurism on the English one but added extra provisions to that offence in 2010 to ensure it would cover upskirting.

As to the proposed reform as contained in the Bill, McDonagh says in her article that dealing with upskirting as voyeurism “sounds about right”. It might therefore have been expected that McDonagh would welcome the bill, that being not only the effect but the title. Not so. Instead, for reasons that are hard to fathom, McDonagh considers the bill to be a “preposterous exercise” that has been heroically “seen off” by Sir Christopher. You couldn’t make it up: McDonagh thinks (without realising it) that the bill is “about right” but characterises it as “preposterous”.

Continuing the theme in her views on sentencing, McDonagh inexplicably thinks upskirting does not “warrant” an individual being put on the sex offenders register (really?!). Consistent with her suggestion that upskirting is a minor irritation rather than the violation that it is, McDonagh also takes exception to the proposed two year maximum sentence, describing it as “excessive”. These points, she seems to suggest – with no basis – may have factored into Sir Christopher’s thinking. But we know that not to be the case (from Sir Christopher) and her points are again ill-informed: the bill makes no provision for sex offender registration (albeit that the Government had proposed to make this amendment at a later stage) and while voyeurism carries a maximum two year sentence, an offender prosecuted for outraging public decency could theoretically face a life sentence.

In defending Sir Christopher, McDonagh inexplicably seeks to ride two horses: insinuating on the one hand that upskirting is too trivial to warrant the attention of the criminal law, while on the other suggesting that prosecutors should target it with an offence allowing for life imprisonment. Which is it?

The Bill is on no view the “preoposterous waste of time” that McDonagh alleges.  It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law. Those who have engaged on the detail and know the relevant law agree: upskirting is a gap in the law and that gap needs to be filled with legislation that will allow upskirters to be prosecuted appropriately in all circumstances.

Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course, we understand his position. McDonagh, however, in seeking to defend that decision, does Sir Christopher a disservice by associating him with a series of ill-informed claims that he has never himself made.

—

James Chalmers is Regius Professor of Law at the University of Glasgow.

Ryan Whelan is an Associate at Gibson, Dunn & Crutcher LLP. Mr. Whelan has been advising Gina Martin on her campaign (pro bono) since August 2017.