Post-script: Mustafa Bashir, a non-existent cricket career and victim vulnerability

As predicted in my last post, Mustafa Bashir, the wife-beating amateur cricketer who received a suspended sentence of 18 months’ imprisonment after hitting his wife with a cricket bat and forcing her to drink bleach, was today recalled to court and re-sentenced under the “slip rule” (section 155 of the Powers of Criminal Courts (Sentencing) Act 2000). HHJ Mansell Q.C. exercised this power after it emerged that, contrary to claims made on Bashir’s behalf in his barrister’s plea in mitigation, he was not in fact on the verge of signing a professional cricketing contract with Leicestershire County Cricket Club. Re-sentencing on the true factual basis as has now emerged, the judge passed a sentence of 18 months’ imprisonment straight.

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The sentencing remarks are reproduced in full below, and I urge all of the people – in particular politicians like Diane Abbott who ran to the radio stations to bleat in clear and wilful ignorance of the subject matter – to read them, and to circulate them with the same vigour as they did their original criticism. Key points, briefly, are as follows:

  • Despite wildly misleading headlines from the BBC (and no doubt others to follow), the sentence has not been reviewed because of “public outcry”. It is solely because important information put before the court on the last occasion has transpired to be untrue. If you take away nothing else from this post, please at least remember that.
  • Bashir was afforded the opportunity to gather evidence to support the claims made at his sentence hearing. He managed a few emails suggesting he had attended a couple of “net sessions”, but nothing to suggest he was anywhere close to the professional contract that was claimed was awaiting him. The Judge said that there “was not a shred of evidence that you had received an offer of a full-time contract from Leicestershire CCC”.
  • Bashir, instructing a new barrister, admitted that there was no professional contract, but claimed that there had been a misunderstanding, in which both his previous barrister and the probation officer had been confused by what he was trying to tell them, and had mistakenly overstated the true position. He said that he didn’t correct his barrister when the untrue assertions were made on his behalf in open court as he was too emotional to pay attention to what was being said. The judge rejected this entirely, pointing out that Bashir had submitted a letter, purportedly from an agent, in which false claims to have played cricket for Pakistan Under-19s were repeated.
  • The Judge concluded that this was a “false claim” and “deliberately made”.
  • On the last occasion, the Judge explained that the decision not to send him to prison immediately was finely balanced, and that the offer of employment was a material factor in tipping the scales in Bashir’s favour. Today, the Judge said that now that the true situation was known, the grounds for suspending the sentence no longer existed. You may of course feel that the offer of a job should not of itself have amounted to a reason to suspend the sentence in the first place; this is an entirely legitimate view, although as I explain in my last post, it is not uncommon for judges to attach significant weight to the impact of a sentence upon a defendant’s employment.
  • HHJ Mansell Q.C. explained that in passing a sentence of immediate imprisonment, he was not punishing Bashir for lying to the court. This is important on two fronts: Firstly, it refutes the social media meme that “domestic violence doesn’t get you jail, but lying to a judge does”. The defendant has not been punished for lying to the judge. He has been sentenced as if the lie had never been told. Which brings us to the second point: as Bashir has not been punished for the lie by the judge, I’d venture that it makes it more likely that the Crown Prosecution Service will consider a prosecution for attempting to pervert the course of justice to be in the public interest. Given the publicity that has followed, the CPS might wish to fire a warning shot across the bows of any defendant tempted to advance false mitigation by making an example of Bashir.
  • The Judge went on to expand upon the assessment of “particular vulnerability” that he conducted on the last occasion. At the risk of sounding immodest, it is pretty much as I tried to explain in my last post; namely, the Judge was simply assessing the criteria required of him by the Sentencing Guidelines. Anger at the judge for his approach in this regard ought properly to be directed at the Guidelines that he was required by law to follow. And to the media outlets who selectively reported his comments (including omitting the key word “particularly”).
  • That all said, none of this detracts from my original assessment in the last post, vis the length of the sentence. On the reported facts, 18 months’ imprisonment still appears a generous result for the defendant.

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Sentencing Remarks of HHJ Mansell Q.C., Manchester Crown Court

Mustafa Bashir, on 21st March, I sentenced you to concurrent terms of imprisonment of 18 months on two counts of Assault ABH.

I suspended those sentences of imprisonment for a period of 2 years on condition that you undergo a supervision requirement and a programme requirement.

I have listed your case today for a review of that sentence pursuant to s155 of the Powers of Criminal Courts (Sentencing) Act 2000, following reports in the media suggesting that you may have misled the court as to your future career prospects.

I directed that you should produce evidence to support the claims you made that you had previously been offered a contract to play cricket for Leicestershire and that such offer remained open to you if you kept your liberty.

You have failed to produce any evidence to support those claims.

All that you have produced today is a handful of emails showing that you may have attended an indoor net session at Grace Road in December 2014, and an outdoor net session in April 2015.

There is a further email from you in December 2015 in which you enquire about the outcome of a trial you had attended at the club.

There is no evidence as to what team you were trying out for or what the outcome of such trial was.

The coach at Leicestershire with whom you were in email communication has made a statement to the effect that he does not recall you, which you would think he would, in light of the fact that you were considerably older than the majority of cricketers he was seeking to recruit for the club at that time.

Your name does not feature in the list of attendees at the trials held in 2015.

Therefore, in summary, there is not a shred of evidence that you were ever chosen to play for Leicestershire CCC, let alone that you had received an offer of a full-time professional contract.

It has been suggested by your counsel Mr Sastry, who has appeared today and acts on your instructions, that this is all an unfortunate series of misunderstandings, and that your past career achievements and future career prospects were accidentally over-stated.

I reject this submission.

You were interviewed by a probation officer, Michael Whalley, in advance of the hearing and told him you had played cricket for Pakistan Under 19’s.

You now submit that he misunderstood this and you only played for Islamabad in a national competition.

You also say he misunderstood you when he reported you had played “semi-professional cricket for Leicestershire

Finally, you explain that when he reported that you were “due to sign a contract with a team shortly before your arrest” this was not with Leicestershire but with Methley CC in a Yorkshire-based league.

In his plea in mitigation, Mr McKee, acting no doubt on your instructions, submitted that if you were permitted to keep your liberty, you would be “employed by Leicestershire as a professional”. 

He referred to the pre-sentence report and added that you had been “about to sign a contract when you were arrested”.

He is an experienced counsel and would not have made such a bold submission had you not instructed him that this was the case.

You claim that he has misunderstood the position but if that was the case, it begs the question why you did not speak up at the time and correct his mistake.

Your response is that you were emotional and not listening carefully to what was said in court and so did not hear what he said.

The evidence that gives the lie to your explanation advanced by you today is a letter that was submitted to the court on your behalf by your solicitors from a man named Abid Riaz, said to be a sports agent with the Pro Elite Sports Agency in Bolton.

He wrote that he had been your agent for several years and that you had played cricket for Pakistan at Under 19’s. Unlike the Probation Officer, it is hard to see how an experienced Pakistani cricket agent could have made such an error.

He also claimed he had arranged your trial at Leicestershire, of which there is no evidence.

He concluded his letter by saying that you had a “very bright future ahead of you as you had been selected to play for Leicestershire County Cricket Club”. 

There was no misunderstanding here on the part of the probation officer, or Mr Riaz, or your counsel.

You were clearly making a claim to the court that you had a career in professional cricket ahead of you which was false.

You made that claim quite deliberately in the hope that you would avoid a prison sentence.

As I made clear when sentencing you, the appropriate sentence for these offences was 18 months’ imprisonment.

I then said the following –

“The only issue for me to grapple with today is whether your good character; the delay since these offences; and your current situation – namely in a settled relationship with a partner who complains of no violence and who is supportive of you; your employment, which you have been in since April last year; as well as your prospective employment, which is offered in cricket for Leicestershire County Cricket Club; whether all those factors taken together can save you from serving that sentence today. I have to tell you that it is a very finely balanced decision, because the court simply will not tolerate violence in a relationship of this nature.”

It was only because of the combination of all those mitigating factors I referred to – but particularly your new relationship and your future career prospects – that I took the exceptional course I did.

Therefore, now that it has come to light that a fundamental aspect of your plea in mitigation was false, I have no hesitation in varying the sentence and imposing immediate sentences of imprisonment, which I would have passed had I known the true position.

I stress that I am not altering my sentence to punish you for lying to the court. You may well face investigation into whether you have committed quite separate offences of perverting the course of justice.

I am altering my sentence because I was fundamentally misled by you as to your personal circumstances.

The sentence on each count on the indictment is therefore an immediate term of imprisonment of 18 months concurrent on each count.

You will serve half the 18 months in prison, then will be released on licence.

You are liable to be recalled at any time if you breach the terms of your licence or reoffend.

All other aspects of the sentence stand, including the restraining order which will apply indefinitely, as well as the order for costs.

VULNERABILITY 

I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim.

I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.

Having set out in some detail the facts of the case, all of which I accepted as truthful and accurate from the victim’s witness statements, I turned to sentence and said the following –

“These were two very serious offences of violence against your former partner. I am not convinced on the guidelines that she was particularly vulnerable due to her personal circumstances”

The words “particularly vulnerable due to her personal circumstances” are taken from the Sentencing Guidelines Council definitive guideline for offences of Assault, which I was bound to and did follow.

This is one of three factors that the court is required to consider in determining the harm caused by the offence.

Particularly vulnerable means especially vulnerable, exceptionally vulnerable or unusually vulnerable

There is a second guideline for sentencing in cases of domestic violence to assist judges with what this means in practice.

Victims who are very young or old, who are physically or mentally disabled, and female victims who are pregnant, are all to be treated as particularly vulnerable.

The guideline also contains the following paragraph:

For cultural, religious, language, financial or other reasons, some victims of domestic violence may be more vulnerable than others, not least because these issues may make it almost impossible for the victim to leave a violent relationship”

It was to this passage that I was referring when I gave the example of a woman who comes to the UK from a foreign country to live with her husband or partner, leaves her friends and family behind, makes few if any friends here and struggles with the language, with the result that she becomes effectively trapped in a violent relationship.

In referring to the fact that Miss Karim was an intelligent woman, who had worked as a receptionist and studied at university, and who had a network of friends, I was simply highlighting the fact that she had a degree of independence and support that some victims, whose circumstances are different, do not.

I was doing no more and no less than making a finding, in accordance with the sentencing guidelines, that she was not particularly vulnerable as compared with other victims whose personal circumstances are different.

She was, however, plainly vulnerable, as my sentencing remarks made perfectly clear.

She was vulnerable before the assaults started, because of the controlling behaviour of the defendant, which had distanced her from her family and friends, and which had undermined her confidence.

She was vulnerable after the assaults due to the ongoing psychological effects on her of the defendant’s violence.

I stated clearly that this was an aggravating factor and increased the starting point for sentence.

I referred in detail to her Victim Personal Statement, in which she described how she had been confident, active, humorous and positive about the future before the assaults.

I observed how, following the assaults, her confidence went down, she started to hide away from friends and family and her studies were affected.

I also noted that the most significant effect on her was that she now had issues with trusting people, and particularly men, and that she believed she would find it very difficult to trust another man in future.

I am concerned that the misreporting and misunderstanding of my remarks may have given Miss Karim the impression that I did not believe her account as to the effect these offences have had on her, or that I did not consider her to be vulnerable.

I trust that she will be given a copy of the transcript of my sentencing remarks on the last occasion and a copy of the remarks I have made today, copies of which are also available for the Press.

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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?

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“[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.

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.