Has Philip Davies MP just proposed the stupidest law of all time?

I’ve heard some stupid ideas in my time. The proposed “sentence escalator” is a classic, providing that “any person convicted of the same criminal offence on more than one occasion must receive a longer custodial sentence for the second or subsequent offence than his longest previous sentence for the same offence” – regardless of the facts of that subsequent offence.

The creation of a specific offence of stalking – which is identical to the existing offence of harassment and carries the same maximum sentence, only it adds an extra element making it harder to prove – was another. But naturally when it comes to legal folly, you can’t beat a bit of everyone’s favourite professional twit – arise, Philip Davies MP.

This may or may not be Philip Davies MP

This may or may not be Philip Davies MP

Today he has been in the House of Commons supporting the Foreign National Offenders Bill, the brainchild of those dildos-in-arms Peter Bone and Philip Hollobone. This short Private Members’ Bill, referred to by Hollobone in Parliament today – I kid you not – as “the “Send Them All Back Bill”, aims to “make provision to exclude from the UK foreign nationals found guilty of a criminal offence committed in the UK.”

And boy, it does.

Its purpose may be to satisfy Tory backbench lust for being tough on foreign crims. Its effect would be to provide for the automatic deportation of someone who took their child out of school to go on holiday.

It is, without a doubt, one of the stupidest, crassest legislative proposals I’ve ever seen. Its draftsmanship appears to be the work of a particularly poorly-educated dormouse typing in elasticated mittens. The Bill provides for automatic deportation for anyone convicted of a “qualifying offence”. Or, to be more accurate, a “qualfying” offence. As the Bill manages to mis-spell the word “qualifying”.  What is a qualifying (or qualfying) offence, you ask? Something pretty bad, presumably? Violence? Sex? People smuggling?

Well yes, those would all be caught. But then those types of cases are likely to already be caught by section 32 of the of the UK Borders Act 2007, which provides for an order for automatic deportation where a sentence of imprisonment of 12 months or more is imposed upon conviction for an offence. Section 3(6) of the Immigration Act 1971 also gives a court a general power to recommend deportation in other cases (although in practice it is rarely used).

No, in Bone, Davies and Hollobone’s Bill, a “qualifying offence” is, per section 1(4):

“any offence for which a term of imprisonment may be imposed by a court of law.”

The key word here is “may”. The test isn’t whether prison is in fact the sentence in a particular case. It is whether the offence is imprisonable in theory. The question is: “Does Parliament allow a court to impose a prison sentence for this offence, even if no court in their right mind ever would?” If the answer is Yes, you’re out, Mr Foreign, with your funny accent and weird trousers.

Out of interest, here are some imprisonable offences, the commission of which would, if this Bill ever became law, see a non-British citizen, who had never been in trouble before, deported:

  • Taking your daughter out of school to go on holiday (section 444(1A) of the Education Act 1996)
  • Kissing your wife in a public toilet (s.71 of the Sexual Offences Act 2003)
  • Bringing a can of beer onto a coach on the way to a football match (section 1(3) of the Sporting Events (Control of Alcohol etc.) Act 1985)
  • Taking that can of beer into the football stadium (section 2(1) of the Sporting Events (Control of Alcohol etc.) Act 1985)
  • Writing “I love you” in chalk on a pavement (section 1 of the Criminal Damage Act 1971)
  • Travelling on a railway without buying a £1.80 ticket (section 5(3) of the Regulation of Railways Act 1889)
  • Making an offensive joke on Twitter (Section 127(1) of the Communications Act 2003)
  • Standing in the street holding up a placard reading: “Philip Davies MP is a flipping ninny” (section 4A Public Order Act 1986)

Now a number of Mr Davies’ supporters have taken issue with some of these examples on Twitter – these would never sensibly be prosecuted, they cry. So no problem arises. I agree – it would be madness to prosecute in the above circumstances. But it does happen. I see it every day. The “public interest” test is not always applied properly by the prosecuting authorities. A chippy police officer will issue a fixed penalty notice, the recipient will refuse to accept it, and before you know it there’s a magistrates’ court issuing a summons. And if such a thing did happen, if one of those examples was the subject of a prosecution, and a conviction, the court presently has a measure of discretion as to how to deal with it.

The court could order a small fine. Or impose a conditional or absolute discharge – which is in effect no penalty – to reflect how minor they consider the offence to be.

But if it has been charged under legislation which gives the court a discretion to imprison, the poor defendant would, in Bone and Davies’ world, be kicked out of the UK. The Home Secretary would have no choice but to make that order. And that is intentional. The purpose of the Bill is to deprive the authorities of any discretion when dealing with trivial cases.

That is why it is so very stupid. And so very Philip Davies.

Prosecutions are a shambles – how can the DPP suggest otherwise?

“For last year’s words belong to last year’s language

And next year’s words await another voice.

And to make an end is to make a beginning.”

― Little Gidding, T.S. Eliot

Fashion dictates that the first written offering of a new year be contorted around a vague theme of resolutions and renewal. And those who know me would surely attest that if I am anything, it is, in the words of Muswell Hill’s finest, a dedicated follower of fashion. So there, above, is your inspirational New Year quote. We can even all pretend it was plucked fully-formed from my repertoire of feel-good literary bon mots, rather than copy-and-pasted from Google.

I like The Kinks. They really get me.

I like The Kinks. They really get me.

With that out of the way, I can reassure that what I am about to say is in no way symptomatic of any New Year’s resolve to change. It is not a January volte-face, nor does it represent an overspill of festive goodwill. I in fact said it, fleetingly, guiltily, sometime in mid-December when this would have been an achingly current blogpost had I got round to it. But it does need saying. And here it is:

Philip Davies MP was right about something.

The date, for future annual commemoration, was 15th December 2015. The day that Director of Public Prosecutions Alison Saunders appeared before the Justice Select Committee to face questioning over the performance of the Crown Prosecution Service. I have previously politely queried Mr Davies’ suitability for a position on this committee, in light of various observations he has made on the topic of criminal justice. But here, at this hour, with the DPP at his mercy, he triumphantly made what I am sure he would agree was his first ever positive contribution to public life.

Labelling her “complacent”, Davies told the DPP this:

“One of the most depressing things anyone can possibly do is go to court and see the standard of the crown prosecutors – particularly at the magistrates’ court, where it is often little more than a shambles. You have got crown prosecutors who are literally reading the case file out for the first time.”

And

“It is a shambles. If a victim is actually sat there coming to see their bit of justice being done, what on earth must they think when they see a crown prosecutor reading out the thing for the first time, or not even having the files?”

I’ve said before that I recognise the invidious position that the DPP finds herself in. I don’t expect her to get to her feet and angrily boom that relentless budget cuts have kicked ten types of excrement out of the festering penniless corpse of the CPS, and that it’s a miracle some days that anyone gets prosecuted at all. But, again as I’ve said, it is disappointing, to put it mildly, that the DPP continues to deny that any problem existed.

The DPP’s retort to Davies recounting an occasion when he saw a prosecutor in court shuffling his papers as he struggled to find the right file was to point out that, ACTUALLY, one wouldn’t see papers being shuffled as mags’ cases are now all digital. So there. Zing.

Allow me to lay some truth on yo. I’ve spent many a cursed day prosecuting in the magistrates’ courts as an agent. Agent prosecutors are independent solicitors or (usually junior) barristers paid £200 a day by the CPS to prosecute cases when the CPS is short on staff, or where they realise at the last minute they’ve massively smurfed up. You are allocated a courtroom for a day, and prosecute everything that is listed in it. This will either be a “list’ court, in which you could have anything up to 50 “quick” cases, such as first appearances, allocation hearings (hearings to determine whether a case should be heard at the magistrates’ case or the Crown Court), onward remands (short administrative hearings for defendants in custody), legal applications and traffic offences. Or, more commonly as a barrister, it will be the trial court, in which listing will have crammed up to 8 trials in the hope that some might resolve.

For a CPS-employed prosecutor, who has a special £2k-a-pop laptop plugged into the electronic “Casework Management System (CMS)”, all the case papers should be available digitally (on those rare occasions that CMS is actually working). But for an agent, who is not permitted access to CMS, you get emailed at 6pm the night before a series of “e-briefs” – stretching to hundreds of pages –.which you will print out at your own expense. These e-briefs are rarely complete, seldom comprehensible and will always be missing the latest information – such as the letter sent the day before by the defence solicitors informing the CPS that the defendant will be changing his plea to guilty, or the last minute review from the CPS lawyer decreeing that the case should be terminated.

So after the agent has been up all night trying to derive meaning from the trial files, s/he will have to spend the time between the court building opening (9:00am) and the courtroom starting (9:45am) to endeavour to check with a CPS employee what is actually happening in each case, track down the reams of missing evidence, prepare for trial (i.e. think about what you’re going to say in your speeches, what questions to ask etc), speak to the 15 witnesses who have turned up, chase the ones who haven’t, liaise with the police and fence with the 8 defence solicitors vying for your attention as they howl for vital material that the CPS has failed to serve, and that you can’t obtain without access to the Casework Management System. As you sprint from witness suite to CPS office trying desperately to piece together something of an effective trial, you have three indifferent magistrates screeching for your attendance in court, “as we can’t sit here wasting time, Mx Barrister”. If the defence approach you to make an offer – e.g. the defendant will plead guilty to some charges if you drop the others – your professional judgment, as the person with knowledge and conduct of the trial, is worthless and the decision whether to accept has to be made by a Senior or Divisional Crown Prosecutor, sitting in an office on the other side of the county. Who is rarely available on the phone to make that decision, being perennially in a Very Important Meeting with other CPS bureaucrats. Meanwhile if there is a particularly complex case – such as a youth defendant in custody seeking bail – listed in another courtroom, it will be transferred to you if the CPS prosecutor in that court doesn’t have the necessary experience, and you will be expected to deal with it there and then. You will be allowed no time to read it, and will be expected to simply stand up and divine the prosecution case. While mentally working through the preparation for the remaining trials, and working out just how you’re going to get that critical witness’ evidence completed so that she can go and pick her child up from school at 3 (which Witness Care hadn’t established until about five minutes ago was an issue). Occasionally, an entire trial will be transferred to you from another court. And again, you will be expected to get to your feet, having not seen the case before, and crack on with a criminal trial.

The DPP told the Justice Committee that she had “never seen a prosecutor in court reading out a file for the first time”. Those solicitors and barristers earning their meagre crust in the magistrates’ court will tell you – it happens every single day. And for the DPP to pretend it doesn’t, and that it’s not a scar on the conscience of the justice system that we can’t afford to treat the prosecution of criminal offences with the care and attention that victims, defendants and the public deserve, only serves to legitimise the words of Philip Davies. Which is perhaps the greatest tragedy of all.

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UPDATE: I should clarify, following various comments on Twitter, that none of the above is intended to suggest that CPS-employed prosecutors have it any easier than agents. They don’t. Virtually all of the above, and more besides, applies to CPS prosecutors as well. And what makes the DPP’s blasé ripostes even more aggravating is that, with each pronouncement, she is denying, and thereby preserving, the intolerable working conditions through which her organisation is dragging its employees, day after miserable day.