Why we need legal aid for the worst people in society

Recently, I’ve noticed an increase in the number of people getting cross about legal aid. I don’t know whether this can be causally linked to the backing tracks expertly laid down by our new Lord Chancellor, adopting the smooth jazzy beats of her pre-predecessor Chris Grayling to create a steady percussive “legal-aid-bad, legal-aid-bad” filtering through her more recent public pronouncements. Or whether it is linked to the influx of legal aid scare stories pumped out of the Ministry of Justice’s favourite tabloid antagonists. Or whether, like the tide, anger over legal aid is perennial, dipping out of eyeline only temporarily before its inevitable resurgence in deference to the gravitational pull of the moon. Or, for those of the Douglas Carswell Academy of Astronomy, the sun.

But whatever the cause, it’s always dispiriting to see the Legal Aid Monster rear its mythical head, not simply because the call for its restriction threatens my narrow self-interest (DECLARATION: I have fed and clothed myself thanks to legal aid), but because it again reinforces how poor a job we in the system are doing in explaining to people why legal aid matters.

The Legal Aid Monster. Or Honey Monster. I forget which.

The Legal Aid Monster. Or Honey Monster. I forget which.

This morning I have enjoyed a spirited exchange of views with a Twitter user who I understand to be involved with or linked to the police, whose views on criminal justice I always enjoy hearing (particularly the anonymised Tweeters with the liberty to speak freely about the chaos in which they are forced to operate, such as @InspGadgetBlogs and @ConstableChaos). Quite often, we echo each other’s despair at the non-workings of the system; sometimes, police officers offer an insight into problems that barristers don’t see first-hand, but which inform the issues that we deal with in court. Today, by contrast, my partner and I came at the issue of criminal legal aid from the polar extremes. I think there’s not enough of it, and that people are often left without adequate (or any) representation; he thinks that there is far too much, and that it should be removed entirely from repeat offenders.

His view, I speculate, is one that might prove popular with people fortunate enough to have avoided the criminal courts. He is certainly not the first person to have expressed it to me. But it’s a view which, with respect, is based on a fundamental misunderstanding of the purpose and function of criminal legal aid.

 

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Let’s start with the proposition that legal aid should be “for the needy”. A lot turns on that definition, but it is employed above in contradistinction to “career criminals with multiple convictions”. So I infer that by “needy”, the writer means “not guilty”. Or at least, “not guilty very often”. Which is problematic. For me, legal aid should be available to anyone whom the state accuses of a criminal offence. Like healthcare or education, it should be a universal civil right. You don’t choose to get ill or be born, so healthcare and education are provided by the state. You don’t choose to be accused of a criminal offence, so you should have the right to properly funded legal advice and representation when the state engages you in criminal litigation. Of course, some people invite criminal proceedings by committing the offence, but we only know that once proceedings have started and guilt has been admitted or established. I have no problem in principle with recovering the cost of legal aid and/or criminal proceedings from convicted defendants who have the means, but the flaw in the “legal aid for the innocent” argument is that you need the former before you can determine the latter.

Why do I say that? Surely, channelling the mantra of the magistrates’ court, a defendant knows whether he’s done it? Well, he may know that he’s done something. But knowing whether he’s committed the specific criminal act alleged by the state is something else entirely. He may know, for example, that he pushed past the shop assistant, nipped behind the counter, tried to grab money from the till but in fact grabbed a tenner that (unbeknownst to him) a customer had just put on the counter to pay for some cigs, and then grabbed the cigs and threw them to his mate (unwittingly striking him in the  eye and blinding him) before running off and accidentally knocking over a wonky display of uber-breakable glasses on his way out. But, as law undergraduates would be asked in this funhouse of an exam question, who is guilty of what? Is the first defendant guilty of theft? Burglary? Robbery? An attempt at one of those? If so, who is the victim? What level of assault is he guilty of, if any? Is he guilty of criminal damage if he didn’t mean to knock over the display? What of his mate? Is he guilty as a joint principal or an accessory? Or is he guilty simply of handling stolen goods? Or receiving criminal property? And what difference would the various permutations of charges make to his sentence?

My adversary suggested that a career criminal would know just as well as a lawyer which offence he has committed. My response was that his having attending a dentist once a year for 50 years does not qualify him to conduct root canal surgery. If I’d had more than 140 characters, I’d have posted the paragraph above. Criminal law is complex. It’s not something that can be absorbed by proximity. And it matters that it’s done right.

It matters because, whether you’re a nice or a nasty person, you should not be convicted of an offence that you have not committed. Not only because it offends fundamental notions of fairness and justice, but because once we accept wrongful convictions as an acceptable bargain in a cost/benefit trade-off, we endanger not just the individual but wider society.

If, as the commentator suggests, we remove legal aid from repeat offenders, we put them at the mercy of the prosecution agencies. It will not simply be a case of a defendant mistakenly pleading guilty to robbery (maximum sentence life imprisonment) when he is in law only guilty of theft (maximum sentence 7 years), but of defendants, unqualified and unable to present their own defence, being convicted of offences of which they are wholly innocent. Because the police do arrest entirely innocent people. And the CPS charge them with the wrong offences. And the only obstacle to a lengthy, undeserved prison sentence is a defence solicitor or barrister, challenging the prosecution case, testing the factual and legal correctness of the allegations and fighting their client’s corner. Without a lawyer, a defendant is often a sitting duck.

And if there were a system where the police, under pressure (as they are) to improve clean-up rates and buff their statistics, knew that charging repeat offender Big Dave with a burglary would see him being denied legal aid, whereas charging first-time offender Small Steve for the same offence would result in a defence lawyer fighting his case, there is a mighty incentive in place to pin the crime on the man with two arms tied behind his back, irrespective of the evidence. While most police would not, some would bend to the  temptation. Some already do.

We would thus roll into a system that encouraged prosecutorial malpractice. The wrong people being convicted, and the even wronger people – the real burglars, thugs, rapists – getting away with it.

Legal aid for career criminals isn’t a treat or privilege to personally enrich them. It is a safeguard that ensures, as best we can, that when the cell door slams shut, society has satisfied itself that the person inside is the person who is guilty of the offence. Removing legal aid in such cases may satisfy some primal urge to vengeance, or natural hostility towards those who repeatedly breach our social and criminal codes, but it makes us no safer, saves us no money, and, in the long run, would make our streets a far more dangerous place.

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The criminal law has no business interfering in bad relationships

On 29 December 2015, to relatively little fanfare, a well-meaning but ultimately flawed criminal law was brought into force. Today, some 8 months on, the Guardian reports that the number of people being prosecuted under this law is low, inviting remedy under David Allen Green’s so-prescient-that-it-surpasses-satire Something Must Be Done Act 2014.

The issue at hand is coercive but (generally) non-violent conduct in private relationships. Section 76 of the Serious Crime Act 2015 created a criminal offence of engaging in controlling or coercive behaviour in an intimate or family relationship, an offence which, it emerges, the police and prosecutorial agencies are not wielding with the vigour that campaigners had anticipated. Only 62 people have been charged under the legislation, as opposed to 20,000 for offences involving domestic violence over the same period.

The reason for this, I politely suggest, is twofold. First, this is a largely pointless law, re-criminalising already-criminalised conduct. And second, where it does provide for something new, it trespasses on territory over which the police cannot reasonably be expected to ride.

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The Law Against Bad Relationships

The intention behind this law, I add as a rider, is noble. The genesis of many violent domestic relationships can be located in non-violent but controlling and coercive behaviours exhibited early on. If we can address the latter, we can hopefully reduce the former. So far, so unobjectionable. It’s the next step of the argument that trips up the logician – namely that the best way to address controlling or coercive relationships is to pass a shiny new law threatening a 5-year prison term for those whose relationships do not cut the mustard. Like a pissed-up Premier League chairman on transfer deadline day throwing good money after bad, Parliament convinces itself that unwanted, ingrained human behaviour can be eradicated if we just chuck another law at it and send the bobbies in. Or, in the official argot of the Guidance to the Act:

“This offence sends a clear message.”

As any lawyer will tell you, and as I’ve said before in relation to the utterly useless stalking legislation, creating criminal offences to “send a message” is the golden ticket to ensuring the enactment of thoroughly bad law.

The law

So what is the law? An offence under section 76 is committed by a person (A) where:

(a) A is or was previously in an intimate or familial relationship with another (B);

(b) A engages in repeated or continuous behaviour towards B that is controlling or coercive;

(c) That behaviour has a “serious effect” on B, in that it causes either (i) B to fear, on at least two occasions, the use of violence; OR (ii) serious alarm or distress which has a substantial adverse effect on B’s day to day activities; and

(d) A knows or ought to know that their behaviour will have that effect.

The offence carries the same maximum sentence (5 years’ imprisonment) as inflicting grievous bodily harm, in presumed observance of the (unreferenced) assertion in the Statutory Guidance that “a repeated pattern of abuse can be more injurious and harmful than a single incident of violence”.

The legislation is silent as to what constitutes “controlling and coercive behaviour”, but the Statutory Guidance Framework offers examples of “types of behaviour associated with coercion or control”.

And these are, well…problematic.

Some of these example “behaviours” are, as the Guidance acknowledges, already crimes. And crimes carrying a rather pricklier stick than section 76:

  • Threats to kill (Max sentence 10 years)
  • Child neglect (Max sentence 10 years)
  • Assault (Depending on injury, max sentence of 6 months, 5 years or life imprisonment)
  • Criminal Damage (Depending on quantum of damage, max sentence 6 months or 10 years)
  • Rape (Max sentence life imprisonment)

As for the rest of the list, it stands as a glistening example of the problems inherent in attempting to regulate the intangible, indefinable dynamics of other people’s relationships. Highlights include:

  • Repeatedly putting [a person] down such as telling them they are worthless;
  • Threats to reveal private information;
  • Financial abuse, including control of finances, such as only allowing a person a punitive allowance;
  • Monitoring a person via online communication tools;
  • Monitoring their time;
  • Preventing a person from having access to transport or from working.

These are all, in certain contexts, indicators of toxic, damaging and unhealthy relationships that will spiral into violence. They are also, in certain contexts, the hallmarks of toxic, damaging and unhealthy relationships that won’t. Relationships that will sail their ghastly, destructive, hateful course through to natural completion without accelerating towards physical altercation. Relationships which, in a liberal society, people must be free to pursue and to endure, as long as that is their choice. Neither section 76, nor the police officer charged with enforcing it, has any way of predicting which route a shit relationship is going to trail. Whether it is going to turn violent – in which case, the criminal law should intervene to obviate objective harm – or whether it will remain simply miserable. If the latter, lovely as it would be if relationships were universally sprinkled with mutual respect, courtesy and affection, it is no role of the state to criminalise all deviations from the Richard Curtis romantic ideal, on the statistically vague hypothesis that some of these will turn violent. And to suggest that the police should be more proactive in identifying “coercive and controlling relationships,” and lining them up for prosecution, is broadening the ever-expanding role of overstretched and under-resourced police officers beyond law enforcement and into the arena  of relationship analysis.

If this sounds like a counsel of despair, that is not the intention. Rather it is an attempt to recognise the limited scope of the criminal law in modulating complex, intimate human relationships. If the government believes that it could “save” more women from potentially violent relationships by intervening to “fix” them when they are merely “controlling and coercive”, then that is surely the preserve of social workers, not police officers or prosecutors, and not least in a climate where police and prosecutorial resources are so depleted that cases of serious domestic violence are collapsing on a daily basis. If you try to legislate against every inappropriate personal interaction, you end up with a fuzzy mess like section 76, criminalising everything and nothing.

That, more than anything, might explain why only 62 prosecutions have been pursued. Key to good law is certainty and consistency. ‘Don’t use violence’ is a legal imperative that everyone understands. ‘Make sure you don’t excessively monitor your spouse’s time, and ensure that you don’t give them only a punitive financial allowance’ is the kind of sentiment which no doubt makes sense to well-meaning campaigners, but offers little clarity to the average Josiah or Josephine. Or to the poor sod of a police officer expected to enforce it.

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UPDATE: A number of people have pointed out a rather glaring topical omission from this discussion, given that this is the week of Helen’s attempted murder trial in The Archers. Helen, of course, was the longstanding victim of controlling and coercive behaviour at the hands of her husband, Rob, culminating in her stabbing him with a kitchen knife. She also provides an instructive example of the inadequacy of laws such as section 76. The difficulty in Helen’s case, and indeed the difficulty with many cases of domestic abuse, is that Helen for a long time did not consider herself to be a victim. Had concerned friends and family contacted the police, attending officers might have observed an isolated, dominated and deeply unhappy woman, bereft of self-worth living with a controlling, manipulative man, but without Helen’s recognition of her circumstances, and her willingness to support a prosecution, there would have been no chance at all of successfully prosecuting Rob under section 76. And here lies a further problem: Any criminal lawyer will tell you that the greatest obstacle in prosecuting allegations of domestic violence is securing the lasting cooperation of the complainant, for obvious and often understandable reasons. The power dynamics in abusive relationships are such that, even if the police manage to obtain a witness statement from a complainant at the time of an alleged assault, she will often have withdrawn support for the prosecution before trial. While allegations of assault can occasionally be successfully tried without the support of a complainant – through evidence of third parties or medical evidence of injury – cases such as will be brought under section 76 will inevitably require the complainant to give evidence not just of the facts of the coercive behaviour but of the personal impact upon her. In short, a successful prosecution under section 76 will usually require two things – (i) sufficient self-esteem and awareness of one’s circumstances, and (ii) unwavering support for a criminal prosecution – that for all too many victims of domestic abuse, for entirely understandable reasons, are absent. This too may explain why few successful prosecutions emerge under this legislation.

It’s not the police’s job to “believe victims”

I make plain at the outset that I will forever, until the untimely end of my days and beyond, harbour a residual affection for anyone, of any political persuasion, who tells Diane Abbott to fuck off. At any time of day, in any given context, this is surely always the right thing to do.

But today, Jess Phillips MP has made a boo boo from which I sincerely hope she will distance herself.

She was apparently responding to various media outings by Metropolitan Commissioner Sir Bernard Hogan-Howe, who, dodging the shrapnel from the implosion of Operation Midland, has formally announced a volte-face in the way police officers will approach allegations of sexual abuse. No longer, it seems, will we have beaming police officers hosting press conferences where they tell the world’s media that a complainant is “credible and true”. No more will they appeal for prospective complainants to come forward with the cry: You Will Be Believed. No, it appears that the police might give a vague nod towards such old nostalgia hits as the presumption of innocence, and the importance of comprehensive investigations.

Writing in the Guardian, St Bernard said:

We must be clear about the principle of impartiality at the heart of criminal justice. Dame Elish Angiolini, who has reviewed our approach to rape investigations, made a proposal that should be at the core of this debate. She detailed how our policy has moved over the years. In 2002, the Met said officers should “accept allegations made by the victim in the first instance as being truthful”. A report in 2005 called for a “culture of belief, support and respect”. In 2014, Her Majesty’s Inspector of Constabulary said: “The presumption that a victim should always be believed should be institutionalised.” A complaint of sexual abuse must now be recorded immediately as a crime.

Dame Elish questioned whether it is appropriate, or possible, to instruct an officer to believe. Instead, she said: “It is more appropriate for criminal justice practitioners to remain utterly professional at all times and to demonstrate respect, impartiality, empathy and to maintain an open mind … in the first instance, officers should proceed on the basis that the allegation is truthful.”

Now I confess ignorance of the aforementioned 2014 report – I had no idea that the state had formally codified this inversion of the presumption of innocence, although few defence practitioners will be surprised. Nevertheless, this is genuinely shocking. A presumption that a complainant is telling the truth is a presumption that the accused is lying. It is a fundamental reversal of the foundation of British justice.

Nevertheless, in response to Hogan-Howe’s article, Ms Phillips, seemingly determined to prove the maxim of Mr Justice Coulsen, tweeted:

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Right. A brief primer, if we may: The police’s job is not to believe.

The police are not Journey.

Stop Believin'. Seriously.

Stop Believin’. Seriously.

The police are charged as the investigative arm of the state where criminal offences are alleged to have occurred. Their various functions, duties and responsibilities are codified in bodies of statute, statutory instrument, codes of practice and case law. Those functions are many and varied, but include, critically for this purpose, as per the Code of Practice pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996, the duty to establish whether a crime has even been committed. If the investigation leads them to conclude that a crime has or may have been committed, the police have the duty to investigate all lines of enquiry, including those that point away from the suspect’s guilt.

It doesn’t end there. Once a suspect is charged, the police and the Crown Prosecution Service remain under a continuing duty of disclosure – which means they are required by law to provide to a defendant any material gathered during the course of the investigation which might assist the defence or undermine the prosecution. This vital function in ensuring that justice is done – that the innocent are acquitted and the guilty convicted – is not just compromised but wantonly pissed all over if the police adopt the starting point that they must accept unquestioningly everything a complainant says.

And this attitude is all the more grievous for the fact that it has been reserved, it seems, for the very cases in which the credibility of the complainant is most likely to be the issue at trial for the jury to decide. How on earth can the accused be sure that he has been provided with all the relevant information with which to defend himself – such as (as the courts often encounter in sex cases) previous false allegations by a complainant, or witnesses who may contradict the prosecution case – when the police are encouraged to build up a case to enshrine the complainant’s version of events?

It hurts that I have to make what feel like incredibly simple, facile points, but plainly I do: The starting point for all investigations – sexual and otherwise – has to be neutrality. If a complaint is made, the police must investigate it, and investigate it thoroughly. They should treat complainants with courtesy and respect, but with the same open mind and critical analysis as they should a suspect. This is not “victim blaming” or “calling all victims liars” or any other formulation to which Ms Phillips might wish to pin her badge. It is the police discharging their vital public duties properly and in accordance with the administration of justice.

If they don’t, innocent people end up in prison. Institutionalising “belief” leads to catastrophic miscarriages of justice. The kind where people spend decades, if not lifetimes, festering in a cell for something they did not do.

Netflix’s Making A Murderer stands as a pop culture exemplar of police officers forming a settled view of someone’s guilt, and moulding an investigation in the image of that One True Faith.

If she hasn’t seen it, I’ll happily pay for Jess Phillips’ subscription.