The prosecution of Gazza raises some troubling questions

I am going to break my cardinal rule and offer comment on a legal case without having read the judgment or sentencing remarks. My excuse is that the case in question was a guilty plea at Dudley Magistrates’ Court, and my exhaustive research suggests that the District Judge has not followed the modern fashion of making his sentencing remarks publicly available. Therefore it is armed only with what I accept at the outset are (inevitably) incomplete media reports that I step up to bat for Paul Gascoigne.

paul-gascogine

Gazza yesterday, on the day of trial, pleaded guilty to what was widely reported as “racially aggravated threatening or abusive words or behaviour”, which I assume to be a reference to an offence contrary to section 31(1)(c) of the Crime and Disorder Act 1998. This law provides for a racially aggravated version of the offence of using threatening or abusive words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to thereby be caused harassment, alarm or distress (section 5 of the Public Order Act 1986).

The facts, as reported, are that Gascoigne, while presenting “An Evening With Gazza” at a venue in Wolverhampton, said to a black security guard working at the show and standing in a dimly lit part of the auditorium, words to the effect of, “Can you smile please, because I can’t see you.” The audience were understandably unimpressed at this unwitting spontaneous tribute to Bernard Manning, and several walked out. The guard, for his part, felt sufficiently upset by what he perceived to be an attempt to humiliate him in front of a large audience to contact the police. A remorseful Gazza told the rozzers that he didn’t mean to upset the target of his quip, but it was too late – cue a decision to charge Wolverhampton’s newest failed comic under the legislation above, and, ultimately, his guilty plea, criminal conviction and sentence.

It is undeniable that what Gascoigne said was offensive. It is wholly understandable that his manifestly unfunny joke based on the race of the blameless security guard would have caused the man significant embarrassment (although, for context, the £1,000 compensation he was awarded by the court for his hurt feelings is the maximum that a victim of a moderate sexual assault could hope to receive from the Criminal Injuries Compensation Authority). One cannot ignore the cultural and historical context of such remarks, redolent of an era when marking the otherness of minority racial groups was not merely a source of ribaldry but a necessary precursor to normalised discrimination and violence.  As the District Judge said in terms when passing sentence, Gascoigne’s comments – and the suggestion advanced on his behalf in mitigation that such bantz are standard fare in football dressing rooms – betray an attitude ill-fitting with the progressive 21st century.

But – but but but but – it is not a criminal offence to hold or display attitudes ill-fitting with the progressive 21st century. It is not a criminal offence to give offence. It is not a criminal offence to tell bad jokes. Even racist jokes. And the application of the law in this case causes me some concern. Not least as the Judge, if his comments have been reported accurately, appears to himself have misunderstood the scope of the legislation. “As a society, it is important that we challenge racially aggravated behaviour in all its forms,” he observed. Which as a meme, is fine. But as an authoritative statement of law is simply wrong. “All forms” of “racially aggravated behaviour” are not prohibited by law. By social codes and contemporary standards of decency, yes, but the particular sanction of the criminal law is reserved for contraventions of accepted norms that Parliament deems sufficiently serious for the state to mark through impinging upon individual liberty.

The legislation sets out the conduct that carries the unique stigma of a criminal conviction. An offence under section 5 of the POA 1986 is itself a dubiously-deployed law, often the tool of first resort of police officers faced with low level disorder, but even its broad scope is limited as follows. To commit an offence, a person has to do two things:

  1. Use threatening or abusive words or behaviour, or disorderly behaviour
  2. Within the sight or hearing of someone likely to be caused harassment, alarm or distress.

After much effort by free speech campaigners, this law was modified in 2014 so as to remove the reference to “insulting” words or behaviour. Insulting someone is no longer a crime. To trigger section 5, your words or behaviour must be abusive or threatening, or your conduct disorderly. On the available information, we can discount that Gascoigne’s words amounted to threats or “disorderly behaviour”. Which leaves us with abuse. It is ultimately a matter of fact for a court whether words are abusive, but given that there is an explicit distinction between abusive and insulting, the former must amount to more than the latter. You can insult someone without being abusive. You can offend someone without being abusive. You can be unpleasant, without being abusive. You can, as the legislation provides, threaten someone without being abusive. And you can display racist views, without being abusive. You can, for example, posit in a lecture theatre that a certain race is genetically inferior, and politely or jovially back this up with cod science and debunked theories off the internet, causing all manner of offence, without being abusive. I labour the point, but it is important, because as offensive, insulting, demeaning, humiliating and upsetting as Gascoigne’s off-the-cuff remark may have been, categorising it as “abusive” does not, in my mind, work. There are words for what this was, but “abuse” isn’t one of them. “Abuse” contemplates a measure of ill-will; or as Merriam-Webster has it:

“language that condemns or vilifies usually unjustly, intemperately, and angrily”.

It is difficult to see how this applies to the reported conduct. And this leads into a second issue arising from the legal definition of “racially aggravated”, as provided by section 29(1) CDA 1998. Prohibited conduct is “racially aggravated” if:

(a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial […] group; or

(b)the offence is motivated (wholly or partly) by hostility towards members of a racial […] group based on their membership of that group.

In other words, there must be either objectively demonstrated hostility, or a subjective hostile motivation behind the offence. And again, I accept that something may have been lost in reporting or translation, but an offensive joke from a performer towards a person in an auditorium, based on race or otherwise, would not ordinarily be an automatic indicator of hostility. It can be, and much depends on delivery. But hostility is difficult to infer from what we have been told. Again, I emphasise, there is a distinction between expressing racist views and doing so with hostility. Both are socially unacceptable. Both are ripe for mockery, condemnation, shunning and re-educating. But only the latter brings the might of the state to bear upon an individual.

Gascoigne, by pleading guilty on the day of his trial, is deemed to have admitted that his conduct was both hostile and abusive, and he will no doubt have been fully and competently advised by his lawyers that he should not plead guilty unless he accepts those elements of the Crown’s case. But people do plead guilty for various reasons, not least the desire to avoid the stress or public exposure of a trial, notwithstanding whether the evidence truly supports the prosecution charge (and it is noted that his solicitor, when mitigating, still maintained that there was “no malice” behind the comments). Given that this is a man with a well-documented history of personal, medical and psychological difficulties, it is difficult not to wonder whether his vulnerabilities played a part in his decision not to mount a defence. At the very least, those vulnerabilities, and the apparent borderline criminality of his conduct, raise questions over whether the public interest was truly satisfied by dragging this damaged man through the criminal courts.

The Metro should be ashamed of this blatant dishonesty

Another Thursday, another news outlet seemingly heck bent on grabbing my dander and yanking it to attention. Today is the turn of the Metro to use its front page to demonstrate how to merrily defecate on the quaint outmoded journalistic principles of “fairness” and “accuracy”. Although, extending to the Metro the fairness that it has denied its duped readers, some sort of prize – the Trump Award for Incorrigible Spaffwaddery, perhaps – is due for the audacity in slamming (to adopt the journalese) a judge as “soft” for imposing the maximum sentence the law allows. We are through the looking glass now, my friends.

Some very shoddy journalism

Some very shoddy journalism

The author of this mess has either not read or not understood the sentencing remarks of HHJ Kinch Q.C. yesterday when dealing with the £14m Hatton Garden burglary, in which he carefully explained how he had arrived at the sentences imposed. Top tip for you – if you’re going to report on a legal story, just have a gander at, y’know, what the Judge actually said. It’s even easier, I’d suggest, when the Judge takes the time to type, publish and make his remarks publicly available to the press. Frankly, I don’t blame the Learned Judge for waking up this morning, seeing the newspapers and wondering why the jiminy he even bothers.

So, a quick primer for the Metro. The defendants John Collins, Daniel Jones and Terence Perkins were charged with conspiracy to burgle. The maximum sentence for any burglary, other than a dwelling, is 10 years’ imprisonment. That’s not a judicial folly of a crim-hugging judge. That’s section 9(3) of the Theft Act 1968, the law, as enacted by Parliament.

At the hearing, the prosecution submitted that an offence of this type called for the maximum sentence available – i.e. 10 years. The defence argued that this should be reserved for even worse cases. You don’t have to have been at the hearing to know this – the Judge sets this out in plain English at para 17.

The Judge agreed with the prosecution. In fact, he said, at para 20:

“I am satisfied that nothing other than the maximum sentence permitted by law would be appropriate as a starting point for anyone convicted of conspiring to take part in this exceptional case.”

For each of the principal offenders – Collins, Jones and Perkins – the Judge, applying credit for their guilty pleas, as he is required to do by the Sentencing Guidelines and the Court of Appeal authority of R v Caley [2012] EWCA Crim 2821 – again, legal mandates, these, not some soft old bugger dishing out freebies like Werther’s Originals – arrived at the maximum sentence the law allowed – 7 years’ imprisonment.

So, how did the Metro reporter interpret the proceedings?

IMG_1357

 

“[The Judge] showed leniency after prosecutors suggested ten years should be the ‘starting point’ for sentencing”.

Leniency? LENIENCY? HE GAVE THEM THE MAXIMUM SENTENCE THE LAW ALLOWED. WHAT MORE DO YOU WANT, YOU PUSTULATING TWIT?

By all means, criticise – as I often do – the law that tied the Judge’s hands. Throw your weight behind the Law Commission’s valiant efforts to inject some sense and consistency into the sentencing morass that has resulted from decades of on-the-hoof populist legislating by idiot politicians.

But don’t blame the Judge.

I don’t particularly enjoy taking personalised pot shots at journalists, because I recognise that it’s a damn difficult job, and often the story you want to write doesn’t fit with what those above impel you to write. And inevitably there’s a compromise. I know the industry.

But stories like this – lacking even a resemblance to the truth – cannot be left unchallenged. This was not a case of soft sentencing. It was the polar freaking opposite. And either you, Mr Reporter, know that, and are lying to your readers. Or you and/or your subs haven’t bothered to do the most basic research before filing copy. Either way, you should be deeply embarrassed.

The Prosecutors: 10 things you missed

Last night, BBC 4 debuted its brand new corporate video documentary on the Crown Prosecution Service. And I, no doubt like many defence lawyers, CPS employees, barristers and judges, felt doused in a purifying tide of relief to learn that, fortuitously, the past decade of my professional career has been one long dream. Less the Dallas-shower-dream and more a Lucy-In-The-Sky-With-Diamonds zippy acid headfangle, but a mirage nonetheless.

lucy_in_sky_with_diamonds_by_weirdplushie-d5r2kzi

Because what we learned last night is that, happily, when the CPS is prosecuting a case, certain things that we in the industry have come to think of as standard simply don’t occur. In particular, thank Lordy, we didn’t see any of this:

  1. Sheaves of correspondence from defence solicitors piling up unanswered;
  2. Lawyers whose crushing caseload means it takes a week for them to return the prosecuting barrister’s call;
  3. Caseworkers at court breaking down in tears at the Sisyphean task of covering four courtrooms at opposite ends of the building;
  4. A series of broken photocopiers waiting for “the contractor” to turn up, while evidence sits uncopied and unserved;
  5. A defendant being wildly over-charged as a ploy to elicit a guilty plea to the correct offence;
  6. Five boxes of highly relevant disclosure languishing under a desk, waiting to be dumped on the defence on the first day of trial;
  7. A serious case of wounding with intent being dismissed by a livid judge after the CPS failed, at the fifth time of asking, to obtain the medical records from the hospital;
  8. A serious armed robbery being abandoned because obtaining the key scientific evidence is too expensive;
  9. A “Level D” CPS senior lawyer telling the prosecuting barrister that they have to run a case with no prospects “because of our statistics”;
  10. A sweating prosecution barrister at court trying hopelessly to speak to a “Level D” on the telephone so that a decision can be taken on a case, said “Level D” being permanently in a Very Important Meeting from which they must not be disturbed.

Re those last two, what the hagiography intriguingly did show was what well may have been one of these aforementioned Importing Meetings, which took the form of a pleasant-looking committee at which a selection of earnest nodding types shook their heads for an hour over a series of religiously and racially aggravated offences and the way in which they had been dealt with by the prosecutors and the courts. A nutter who had posted anti-Semitic nonsense on a Russian online Nazi forum and some other clown who had urinated on a mosque took the spotlight, and there were tuts all round at the perceived leniency of the charging decisions and sentences.

Now while unpleasant and (in the case of the second at least) worthy of prosecution, it would be remiss not to reflect with a sigh of hangdog familiarity that this type of – in the grand scheme of a criminal populace stabbing, raping and shooting with abandon – relatively minor offence perhaps doesn’t require the resources devoted to it by this inquest. And that if the same time, diligence, resources and reflection were given over to the serious criminal cases that we on the ground see collapsing day after day, then perhaps so many wouldn’t, well, collapse.

Sadly, this window into the internal priorities of the CPS is played out in court by the head-banging decisions with which prosecuting barristers frequently have to joust. On a recent serious armed robbery – five balaclava’d yobbos wielding axes and hammers playing Supermarket Sweep in a jewellers – the sentencing exercise had to be delayed for several months. Why? Because one of the yobbos had been charged with a (unrelated) racially aggravated common assault, in that he had shoved his girlfriend and called her a “white bitch”. He admitted assaulting her, but denied using those words.

Even though he was looking at what was ultimately a 14-year sentence for the armed robbery, and the racially aggravated common assault would add quite literally nothing to his sentence, the CPS abandoned perspective in favour of their precious targets, and insisted that this trivial matter could not be dropped. Because racially and religiously aggravated offences, and satisfying the statistical whims generated in relation thereto are, per CPS policy, more important than anything else.

The resident judge, when so informed, turned a dashing shade of mottled puce, and, after receiving three truculent letters of non-explanation from the “Level D”, demanded that she attend court in person to justify her stance. Curiously enough, the day after the judge made this order, an ad-hoc review of the case concluded that, perhaps, it might not be in the public interest to pursue it after all.

I’ve noticed this little trick increasingly adopted by Judges when confronted by the faceless, unaccountable and unjustifiable institutional slavishness to statistics and box-ticking. Drag the box-ticker to court and make them justify their actions.

Noticeably the documentary also didn’t show that.

Is it worse to rape little Asian girls than little white girls?

A quick apology – I’m coming to this story a little late. That is partially my fault, and partially the fault of Lord Ashcroft and his delicious third-hand allegations of porcine impropriety. It has been a distracting few days.

An unsullied pig

An unsullied pig

This ground was stomped upon a little by various commentators at the end of last week, but, like a custodial sentence of over 4 years, some stupidity is never spent. Accordingly I grant myself leave to dig around a little in the Daily Mail story sitting below the headline:

Judge rules it is right that child molester who abused ethnic minority girls got longer sentence because Asian sex crime victims suffer more than whites

The judge in question is Mr Justice Walker, giving the Court of Appeal’s judgment in an appeal against a sentence imposed by HHJ Cahill Q.C. at Leeds Crown Court, relating to sexual offences committed by the Appellant against two girls aged 13 and 9. In dismissing the application for leave to appeal, the Court of Appeal approved the sentencing principles applied by HHJ Cahill, and it is this facet of the judgment that has attracted the media’s attention, and, taking the media reporting on trust, the opprobrium of various charities and victims’ rights groups.

Now it is not my job to act as spin doctor for the Court of Appeal. Nor do I hold any particular affection for the recent legal fetish (endemic at the Crown Prosecution Service) for hierarchies of victimhood predicated on race, religion or other “protected characteristics”.  If correct, this is quite properly splash-worthy news.

But is this what the Court of Appeal said? Really?

The facts of the offence can be gleaned from the Court of Appeal judgment. The victims were Asian, as was the Appellant, and the key passage of the judgment reads as follows:

“8. The remaining point taken by Mr Shafi is that the judge had, he submitted, regarded the offending as aggravated because of the victims’ ethnic and religious origin. This point is, with great respect to Mr Shafi, a misconception. In her sentencing remarks the judge observed that J was finding it difficult at school because her friends knew what had happened, leading to problems and shame for her. In relation to G, the judge observed that she had had difficulty as a result of what the applicant had done to her. This had caused G to behave completely out of character: she had previously been a young girl doing well at school, and now was not doing as well as expected. For the family as a whole there had been enormous implications. The father had said that he and their mother were struggling and felt socially isolated because, within their particular community, it brought great shame on the whole family when things like this happened. He was also concerned about the future marriage prospects for his daughters. The applicant, coming from this community, knew only too well the effect upon the children and their family and this was an aggravating feature.

9. In this regard Her Honour Judge Cahill was, entirely properly, having regard to the particular harm caused to the victims by this offending. As it happened, that harm was aggravated by the impact on the victims and their family within this particular community.”

For what little it is worth, I fail to see how, being faithful to the careful wording of the judgment, it is possible to sincerely arrive at the Mail’s interpretation.

When passing sentence for a criminal offence, the court is required to conduct an assessment culpability and of harm. For sexual offences, the Sexual Offences Definitive Guideline applies, and offers assistance in this exercise, but as a general principle of sentencing, the impact of an offence upon a victim is relevant to the court’s assessment of harm.

The excitement appears to have been generated by the reference to the buzzwords “shame”, “marriage prospects” and “community”. Clearly, the contention runs, the court is embracing a dangerous relativism and finding that, by virtue of the racial background of the victims and their cultural attitudes towards offences of this type, an offence against them automatically warrants a stiffer sentence. But less attention has been paid to the rather important use of the word “particular”, and the rather crucial phrase “as it happened”.

The assessment of harm was not based on the Judge’s own assumptions as to the likely or theoretical impact upon a child from a certain racial background; it was based upon evidence provided by the victims and their parents in Victim Personal Statements. In this particular case, the impact upon the victims was that described by the parents in their evidential statements. There is no general statement of principle, either by HHJ Cahill Q.C. or by the Court of Appeal.

Crucially, and most damaging for the story that the Mail wishes it had, there was no direct comparator. There was no white victim of this defendant, assaulted in identical circtumstances, in respect of whom a lesser sentence was imposed. The hypothetical comparator (if there was one) would have been an Asian child victim in identical circumstances save that the impact upon her and her family had not been as severe.

Let’s say the victim had been a white child to atheist parents in a small, close-knit Cotswold village, and the parents had provided a Victim Personal Statement in which they expressed distress at the impact of the offence upon the family’s place within the community, and voiced their fear that, due to the norms and mores at play in that community, their daughter’s social functioning would be irredeemably harmed. If the judge, in passing sentence, commented that in this particular case this particular harm was an aggravating feature, adding that it further aggravated the position that the defendant knew at the time of committing the offences of this likely impact upon his particular victim, it would take some distortion to paint this as a judgment devaluing the worth of Asian children.

There has been a wealth of academic and jurisprudential endeavour splurged on the morality of the “eggshell skull” principle that lies at the heart of the criminal assessment of harm, and that is a legitimate debate. But that’s not the debate the Mail wanted to have.

The headline stated – and people were invited to believe – that a court had set a general principle that raping Asian girls was worse than raping white girls.

This is simply not true.

 

Witless for the Prosecution: A brief response to the CPS’ response

Last weekend, the Sun on Sunday gobbled up the juiciest, lowest-hanging fruit on the legal stories tree (if such an arboreal metaphor exists) and published a mini-splash on the various maladies rotting the Crown Prosecution Service.

The article, “Witless for the Prosecution”, relied upon seemingly anecdotal evidence from two anonymous CPS whistleblowers – one a “top barrister” (so not me) – and reported that “morale has hit rock bottom and staff are cracking under the stress”. Implicitly attributing the problem to the 31% cut in CPS staff since 2010 (although remaining strangely silent on The Sun’s vibrant enthusiasm for the austerity agenda that directly led to that cut), the piece listed a series of bullet points alleging various examples of overworked employees and failing prosecutions.

A legal tree

A legal stories tree

None of which, to readers of this blog, is news. But The Sun is nevertheless to be congratulated on pursuing a scandal that the broadsheets have hitherto seen fit to ignore.

Today, the CPS found time and resources to publish a response. Describing the original article as “misleading” and “ridiculous”, it took issue with various facets including suggestions that prosecutors deal with 160 cases at a time (the average per lawyer is 79, the CPS retorts), and that two lawyers can cover as many as 16 courts. By way of final fanfare, we were assured that “Our record of delivering justice for the public speaks for itself”. In other words, the take-home message ran, it’s a happy and well-oiled crew manning HMS CPS.

No doubt the Sun on Sunday has sufficient material from its sources to respond itself. But just to add a dash of balance into the mix, I would respectfully submit the following anecdotes for consideration:

  1. It is not uncommon for CPS caseworkers at the courts I attend to be expected to cover up to five courtrooms. Caseworkers are the glue that hold the CPS together – they prepare the cases in the office, take records of court hearings, assist barristers at court and gather, chase, locate and copy any material that may be requested by one of the (conservative estimate) fifteen barristers in any given court. It is an exhausting and unforgiving job covering one court’s load. To attempt this job running between five different courtrooms is simply Sisyphean. I have in the past fortnight seen caseworkers reduced to tears at the impossibility of their job.
  1. I cannot speak personally to the average number of cases per caseworker nationally. What I can say is that I receive repeat instructions from caseworkers I know to be diligent and assiduous, who, due to their workloads, are recently unable to deal with simple requests I have sent them in relation to serious cases involving firearms, robberies and near-fatal violence.
  1. A junior member of my chambers was recently at the magistrates’ court, prosecuting a “magistrates’ list”. Basically, any given magistrates’ courtroom will have a list of up to 50 short hearings (first appearances, legal applications, sentences etc), or a shorter list of trials, and the CPS will often instruct barristers as “agents” to do all the prosecution work in one courtroom. My colleague was given 9 trials to prepare for a single day. Preparing a trial properly from scratch takes at least an hour. He received the papers at 9am. Court started at 9:30.
  1. I have in the past two months prosecuted a dozen trials for the CPS. Not a single one had been prepared fully in accordance with counsel’s advice. And only 1 of those 12 resulted in the defendant being convicted of the offence originally charged.
  1. This year I have lost count of the number of prosecution witnesses who have told me that, as a result of the way they have been treated by the CPS, next time they are a victim of crime, they will not be calling the police.
  1. This month I have watched two extremely dangerous men released onto the streets due to basic failings by the CPS.

I appreciate the difficulties that Alison Saunders as Director of Public Prosecutions faces in remaining politically neutral. I do not expect to see her travelling to Jeremy Corbyn rallies (in a female-only carriage, natch) publicly denouncing the financial rape of her department. But if she is unable to publicly speak the truth about the funding crisis in the CPS, she could at least do the public the service of not publishing Pravda-style vignettes seeking to minimise and delegitimise valid criticism of the remorseless chaos that is the prosecutorial system.

It is indeed true that the CPS’ “record of delivering justice for the public speaks for itself”. It would just be edifying if there were a little more honesty about exactly what that record is.