Today on Radio 4, Home Secretary Amber Rudd was the latest government minister calling for an overhaul of the criminal law in the name of tackling “intimidation and aggression” on the internet. Her premise is that “what is illegal offline should also be illegal online”. This was repeated by Theresa May in a speech today in Manchester. The thrust of the complaint did not appear to be that existing laws are being poorly interpreted and enforced by police and prosecutors; nor that certain social media companies are famously reticent in providing information to prosecuting authorities; nor that the existing law is piecemeal and mishmash and could do with a jolly good refreshing and consolidating (all of which are undoubtedly true). Rather it was that there is a special quality to the law that means that certain threats or abuse made over the internet simply do not amount to a criminal offence, and that new laws are required pursuant to the Something Must Be Done Act.
Photo by Samuel Zeller
To help, I’ve cobbled together a comprehensive list of intimidatory acts that are illegal offline, but not illegal when committed over the internet:
Footnote: The Law Commission has been asked to conduct a review into the existing law that will cover, among other things, this very issue. I am fully prepared to bow to the Commission’s wisdom if I’m wrong and made to look like a bit of a wally.
I’ll be honest, out of all the ‘robust debates’ I’ve had online about criminal justice and sentencing of offenders, I would not have expected the most frustrating, fiery and ill-informed to be with someone advocating for less use of prison. It takes a special talent, I would suggest, to present an argument in such a way that you manage to alienate those who agree with your conclusion. Arise for your special badge, Lord Andrew Adonis, former Head of Policy at Number 10 Downing Street and erstwhile Transport Secretary.
The past few days have seen Lord Adonis stagger around Twitter swinging aimlessly at lawyers and judges like a punch-drunk case study on a late night police reality TV show. Every effort to gently usher him into the back of the van for some calm, reasonable, evidence-based discourse is met with another wild lunge towards camera – he has now blocked nearly every lawyer on Twitter – compounding the schadenfreude of rubbernecking passers-by. Unfortunately for Andrew, his identity is not pixellated to spare his embarrassment; rather emblazoned across each and every one of his (increasingly peculiar) assaults on the “cobwebbed judicial system”.
Extracts cannot really do justice to the tirade of tweets that Adonis launched towards the judiciary on this theme, and I’d recommend reading his Twitter timeline (with a glass of something stiff) to get the full flavour, but this is the nub:
Nothing world class about our judiciary, which jails more people for longer than any judges in Europe & wash their hands of prison crisis
Now some of us hacks did indeed offer a defence of judges (who, by constitutional convention, are not permitted to speak out publicly to defend themselves). And we did so not because, as Adonis suggests, we have a desire to become a judge (I think I have successfully set fire to that particular lifeboat for myself through this blog and my forthcoming book), or because we think all judges are wonderful (SPOILER: They’re not – most are excellent, but some are significantly less so), but because we see criminals being sentenced every single day, and have a certain experience in this field. And I struggle to think of many cases I’ve been in, either prosecuting or defending, where I have suspected that a sentence has been inflated because of an eye on reporters in the public gallery.
As for Adonis’ experience, I did ask how many judges he had seen passing excessive sentences out of fear of tabloid retribution, but received the following, less-than-full response:
The thing is, while to a layperson Adonis’ criticism would seem to make sense – judges are the ones passing these sentences, after all – a little knowledge of the law teaches that, to a large extent, judges’ hands are often tied, or at least lightly bound with handkerchiefs. That is because sentencing is not, as many might imagine from pop culture, an exercise in plucking a figure out of the air, whacking a (non-existent) gavel and intoning, “Take him down”. Crown Court judges are instead required to apply a horrendously complex morass of sentencing law and guidelines, which severely limit their room for manoeuvre. While they have discretion to pass a sentence that meets the justice of an individual case, it is a fallacy to presume that this discretion is at large.
Firstly, there are Sentencing Guidelines for most criminal offences, which judges are required by law to follow. We’ve looked at these guidelines in previous posts dealing with specific cases, but in short, they provide judges with a mixture of flow-charts and grids, setting out sentence “starting points” and “ranges” depending on which factors are present in a particular case. There is ultimately discretion built in as to where on the guidelines a judge pitches a case, but you can see for yourself that there is often not a great deal of wiggle room. Guidelines are set by the Sentencing Council, whose members are drawn from the judiciary, magistracy, legal practitioners, academics, police and the Director of Public Prosecutions. Guidelines are subject to public consultation, and the Council is accountable to the Ministry of Justice and has a statutory duty to consult with Parliament. The Sentencing Council is not, lest you be confused by Adonis’ complaints, a gaggle of judges operating under a cloak of secrecy.
Now I make clear – I do not agree with all of the guidelines. I think, for example, the way in which drugs are sentenced is largely ludicrous. A starting point of 4.5 years’ imprisonment for someone selling a few wraps of crack cocaine to fund their own habit is, with respect, the hallmark of a society that doesn’t have a clue what it is doing with drug policy, although the malaise for that lies with political culture at large, not the Sentencing Council. But even if you accepted Adonis’ view that the Council was a bunch of industry insiders fixing oppressively long sentences out of a desire to placate the red tops, it does not explain how, as Adonis postulates, it is fair to level cowardice charges at the several hundred other judges who are required day-to-day to follow the guidelines.
And, more importantly, judges must follow the law. Sentencing legislation is made by Parliament, which includes among its members Lord Adonis, as a member of the House of Lords. And judges have to follow the law set by Parliament. There is no discretion here. That is the essence of the rule of law and our basic constitutional settlement. I say this, because Adonis has suggested that judges should have “argued against” the government’s “policy” – by which he can only mean that they should have revolted and refused to follow the law that the government enjoined Parliament to make. So let’s get that sixth-form concept straight: judges have to follow the law set by Parliament.
9/ didn’t argue against this unjust policy & implemented it (including really shameful indeterminate sentences for ‘public protection’)
But for now, I want to look briefly at one area to which Lord Adonis refers in the above tweet – indeterminate sentences.
In 2003, when Adonis was ensconced in the bosom of Downing Street as Head of the Policy Unit, New Labour brought forth the Criminal Justice Act 2003, a huge, unwieldy piece of legislation which did many things, including introducing the notion of Imprisonment for Public Protection (IPPs). You may have heard of these – they have been in the news recently, as people given short “minimum terms” of as little as 10 months ended up serving over a decade under such sentences. The way that IPPs worked in theory was as follows: The judge would set a “minimum term”, after which the defendant would be eligible for release on licence, as long as he could satisfy the parole board that he was no longer dangerous. If he could’t satisfy the parole board, he would be detained until he could, potentially forever. As it happened, the government decided that they couldn’t afford to provide the rehabilitation courses that prisoners were required to pass in order to satisfy the parole board, meaning IPP prisoners were trapped in a Kafka-esque nightmare. For this reason, the Court of Appeal found that then-Justice Secretary Jack Straw had acted unlawfully in failing to provide the rehabilitation programmes, and in 2012 IPPs were repealed (although those passed before that date remained).
Now when IPPs were first introduced, if a defendant convicted of certain violent or sexual offences was found to be “dangerous” – the legal test for which was that he posed a significant risk of serious harm to the public – an IPP had to be passed. The judge had no discretion – the law was clear. If the offender met the risk threshold, the judge was not allowed to deal with him in any other way. This, unsurprisingly, led to an explosion in prison numbers – around 3,700 prisoners were serving IPPs by 2007.
This was the law until 2008. Parliament, realising its error, then amended the legislation to give judges discretion as to whether to impose IPPs where certain criteria were met. The word “must” was changed to “may”, and the threshold for imposing IPPs was heightened, to remove the scenario of tiny minimum terms (one as low as 28 days) resulting in years being spent behind bars. And, given discretion, judges stopped imprisoning as many people under IPPs.
Why do I focus on IPPs? It’s because they are the prime factor responsible for the increased use of prison. As the Parliamentary statistics that Adonis himself cites shows (thanks to @ProfChalmers), the length of sentence for all offenders has remained relatively stable across the 11 year period (2005 – 2016) except for a notable increase in indeterminate sentences.
That is not to say that all IPPs imposed were rightly so. Judges after 2008 did have discretion, and no doubt there will have been instances where it can be argued that an IPP was imposed where it need not have been (and many such cases will have been argued successfully before the Court of Appeal).
But what this incontrovertibly shows is that far from judges imposing increasingly lengthy sentences “out of fear of tabloids”, it was in fact politicians – Lord Adonis and his colleagues – forcing judges to impose certain types and lengths of sentence that was the greatest contributing factor to the increased use of prison. As for why politicians felt compelled to act in this way, you would have to ask them. But it may be there that “tabloid fear” finds its rightful resting place.
As for other factors of note that we can identify, we can see from the chart above an increase in determinate sentences of over 4 years. We can also see over the past 16 years a surge in prisoners convicted of violent and sexual offences:
Partly, this will be because of the increase in violent crime. Partly this will be attributable to the fact that the CPS are prosecuting more sex offences than ever, particularly allegations of historic (or “non-recent”) sexual abuse. Neither of these factors have anything to do with the judges. And, faced with serious sexual or violent offending, the guidelines and the legislation make clear what judges are required to do.
Ultimately, this is a silly argument, given the broad area of agreement between Lord Adonis and most lawyers. But I waste my Sunday afternoon to unpick Adonis’ complaints, even though I think we are on the same side, because there is no point embarking upon a remedy if you have mis-diagnosed the illness. And what is increasingly clear from Adonis’ tweets is that he lacks some fairly rudimentary understanding of the legal system.
For example, he suggests that Lady Hale, as the new President of the Supreme Court should “call out the trend to ever longer sentences”, apparently oblivious to how the Supreme Court operates.
11/ on the issue of sentencing & the prison crisis. She shd call out the trend to ever longer sentences, refuse to implement it within the
Sentencing policy has nothing to do with the Supreme Court. The Supreme Court’s only role in criminal sentencing is to rule on the infinitesimal number of criminal sentence appeals that make it to the Supreme Court from the Court of Appeal. Why are so few criminal sentence cases heard at the Supreme Court? It’s because in order to appeal upwards from the Court of Appeal to the Supreme Court, either the Court of Appeal or the Supreme Court has to certify that “a point of law of general public importance is involved in the decision”. This is a high threshold, and excludes the vast majority of sentence appeals (which tend to turn on their individual facts, rather than wider points of public importance). If you think that this threshold is too high, and that more criminal sentence cases should be capable of being litigated before the Supreme Court, you know who you can blame? Either the Parliament which enacted s.33 of the Criminal Appeal Act 1968. Or the Parliament which created the Supreme Court and defined its jurisdiction under the Constitutional Reform Act 2005. Head of Policy Unit at Number 10 Downing Street when the Supreme Court was created in 2005? Andrew Adonis.
Nor, regrettably, can the Lord Chief Justice, who is head of the judiciary and president of the Court of Appeal (Criminal Division), which hears sentence appeals from the Crown Court, decide of his own motion to “cut most sentences”. What on earth does this mean? That every sentence appeal he sits on must be allowed, irrespective of merits, in order to achieve an overall reduction? That the current legal test that the Court of Appeal applies, allowing appeals against sentence where sentences are “wrong in law or principle” or “manifestly excessive” be lowered to something less? If so, that is not within the gift of the Lord Chief Justice alone.
Not codification that’s needed – wh will prob bid sentences up still further – but for new LCJ & Pres of Supreme Court to CUT MOST SENTENCES https://t.co/gmakCyEyjY
I fear that Adonis has a rather childlike conception of the interaction between our various courts. If the Big Judge at the top says something, then all the other little judges will do it, seems to be the gist. It is alas not that simple. Sentences will not become shorter across the board simply because Lady Hale decrees, a propos of nothing, that it should be so. It is the same simplistic view of the world that claims, with a straight face, that the judges should, somehow, have stopped Adonis’ government from doing the reckless and damaging things it did:
9/ didn’t argue against this unjust policy & implemented it (including really shameful indeterminate sentences for ‘public protection’)
The solution, unfortunately for Lord Adonis, lies closer to home. Politicians, who are paid to make the arguments, need to change the tone of public debate on criminal sentencing. The corrosive tabloid culture that Adonis rightly decries is not going away. Parliamentarians need to be brave, and confront the toxic narrative of longer sentences and prison holiday camps that has informed Ministry of Justice policy for the past decade. Constituents should be told about the realities of prison and its proven limitations in reducing crime. The Dutch model that Adonis has held up as an example should be advocated by mainstream politicians on prime time interviews, not relegated to social media spats between ex-policy wonks and lawyers. The statutory manacles forcing judges to impose long sentences for certain offences should be re-examined and, where appropriate, released. The Justice Secretary could consider using s.128 of the Legal Aid Sentencing and Punishment of Offenders Act 2012, which would allow him to change the test for releasing the 4,000-odd remaining IPP prisoners who have served beyond their minimum terms. The plan to double the powers of magistrates – non-legally trained volunteers – to imprison people, allowing them to lock defendants up for a year for a single offence, could be snuffed out. If short prison sentences don’t work, why not consider a presumption against their use, as proposed by the Lib Dems at the last election? The increasingly popular trend for the Attorney General to “refer” (appeal) sentences as “unduly lenient” to the Court of Appeal – and to feed the prison works narrative by boasting about its successes – could be challenged. There has been a 108 per cent increase in AG References since 2010, no doubt attributable in part to media campaigns whipping up anger at perceived “soft sentences”, opinions often formed in wholesale ignorance of the facts.
There is a lot that could be considered as part of a remodelling of criminal sentencing. And no doubt judicial inclinations will form part of it. I don’t deny that some judges use prison too readily; of course they do. They are subject to the same human frailties and cognitive biases as the rest of us. But it is Adonis’ eagerness to pin the bulk of the blame on the judiciary, and the unsubstantiated assertion that they habitually falter out of genuflection to the tabloids, that I consider to be unfair. Because as we can see, that is not where the real problem lies.
In case anyone saw, listed amongst his various grievances with the legal system, the following tweet by Lord Adonis, I should like to make two brief points.
The Law Commission a talking shop which makes lawyers think they are effecting change when nothing changes https://t.co/fTSne2f6le
The Law Commission is a statutory independent body that conducts detailed research and consultations and makes recommendations, usually accompanied by weighty published reports, for changes in the law “to ensure the law is as fair, modern, simple and as cost-effective as possible.” The decision on whether to implement a recommendation by the Law Commission is for Parliament alone. Parliament. Which includes Lord Adonis. If “nothing changes”, the fault is entirely with the politicians.
But it’s not right to say that “nothing changes”. Two thirds of the Law Commission’s recommendations have been implemented. For a look at exactly what recommendations have been accepted, implemented and are pending, there is a handy list here, with which Lord Adonis may wish to familiarise himself. A subsequent apology to the Law Commission for his ill-informed and intemperate tweet as a senior Parliamentarian would, he might feel, be the very least he can do.
I have today written a piece for iNews on Harriet Harman’s resurrected plans to ban all evidence of sexual history from the courtroom, and why this is quite simply one of the most dangerous and stupid ideas of recent times.
Liz Truss, we hardly knew ye. Three days short of eleven months since her appointment as Secretary of State for Justice and Lord Chancellor in Theresa May’s debut cabinet, Ms Truss bows out to a slow handclap. Her achievements can be shortly listed, for they are none. Liz Truss never asked for the job, and, as became clearer each day of her eleven months-less-three-days overstay in the Ministry of Justice, was woefully ill-equipped for each aspect of it. She did not understand the policy she was promulgating wearing her Justice Secretary’s hat – having to be embarrassingly corrected by the Lord Chief Justice when she misunderstood and announced a policy about live link evidence in criminal trials – and lacked the resolve to carry out her constitutional functions in her Lord Chancellor’s robes.
At the time of her appointment, many people expressed concerns at Truss’ selection. They were accused by Truss’ supporters of rank sexism; in dispensing with Truss’ services after less than a year, Mrs May vindicates these critics. The painful truth is that, as suspected, Truss was never cut out for the role. Her appointment betrayed the Prime Minister’s shameful lack of understanding of the constitutional function of Lord Chancellor; indeed, it was painfully clear that May was blissfully unaware that, unlike any other cabinet position, there is a specific statutory requirement that a Lord Chancellor be “suitably qualified by experience”. This is because the Lord Chancellor has a specific constitutional role: they swear an oath which provides:
I do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.
A potted history of the role of Lord Chancellor is set out here, but in short, the position exists to ensure that someone in government is explicitly charged with acting as a watchdog for the rule of law and the justice system. The Lord Chancellor should be someone of sufficient gravitas and political clout to stand up to their colleagues and say: What you are proposing offends the rule of law/independence of the judiciary/efficient support of the courts, and is wrong. It is for this reason that the ideal job specification calls for someone of significant legal and political experience, usually in the twilight of their career, who is prepared to give a merry two fingers to the Prime Minister and Cabinet in the overriding interests of our constitution.
The apparent lack of experience and fortitude, and the whiff of a Graylingesque desire to treat the Ministry of Justice as a stepping stone to better things, founded the main objections to Truss. While many of us were disappointed that she was the third non-lawyer to be appointed in a row, Michael Gove’s relative success during his short spell tempered some of our self-regard. On the day of Truss’ appointment, I wrote:
“Yes, I would have preferred the role to go to someone whose profession has been chugging towards this last stop before retirement, unbeholden to the vagaries of political caprice, rather than a young MP with her eyes, one fears, on bigger, brighter things. I would, given a choice, opt for someone who has been in the trenches, who has sat in urine-stained cells with an addict smashing his face against a chair as you try to take instructions while a Crown Court judge loftily bellows for your attendance upstairs. Who knows what it is to be a partner in a legal aid firm one delayed LAA payment away from going under. Who has a lifetime’s worth of legal and constitutional wisdom to infuse into their political decisions.
But if Mr Gove has taught us anything, it is that it is only right and fair to pause and see what Ms Truss has to offer. Whether she is going to, as was reported happened at Environment, offer her department as a sacrificial cow in the post-referendum austerity era, or whether she is going to stick on her ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something she is going to physically fight for at every cabinet meeting, even if the consequences are that she is politically blacklisted from the Party, and higher office, for the rest of her career.
Because if that’s the kind of Lord Chancellor Ms Truss is going to be, fearlessly faithful to her oath of office, immersing herself in the law, doing right and fearing no-one, I don’t think I’d mind that she doesn’t have a law degree. And I don’t think my colleagues would either.”
But it quickly became clear that Truss was not that kind of Lord Chancellor. She had indeed been appointed precisely because May knew that she would not startle the horses. When May’s cheerleaders in the tabloid press and tub thumping Brexiteers, inexplicably livid at the notion of British judges doing their jobs and ruling on cases lawfully put before them in British courts, turned on the judiciary with a viciousness as dangerous as it was unprecedented, the Bat Signal for the Lord Chancellor went up. Judges were Enemies of the People. They needed sacking, or at least bringing to heel. Their sexuality was fair game, those gay ex-Olympic fencers. Their motivations and integrity were impugned. They were forced to seek advice from the police on securing their personal protection. Nigel Farage whipped up hysteria with calls for a march on the Supreme Court.
And Truss said nothing. Not a peep. When she was eventually shoved out onto stage, she muttered a brief platitude about the rule of law existing, and went on to repeatedly refuse to condemn the press or her Parliamentary colleagues for blatant attempts to intimidate the judiciary. This, it can be safely inferred, would have been on direct instruction from the Prime Minister, who responded to requests for comment with the same cowardly line.
Truss should have resigned then. She didn’t. She stayed on. By the end of her tenure, she had lost the confidence of the entire legal profession and the judiciary; some achievement in 10 months. Her epitaph was written for her by the Lord Chief Justice, Lord Thomas, who in a stunning break from convention told the House of Lords Constitution Committee that Truss was “constitutionally absolutely wrong”.
But let’s look ahead to her replacement: David Lidington, a long-serving MP and former Leader of the House of Commons whose name nevertheless had many of us reaching for Wikipedia. The first thing to note is that he is a not a lawyer. Which, given the historically legal quality of the role, is not ideal. But, as I explained at the time of Truss’ appointment, the legal profession and the judiciary have over the past 5 years become accustomed to non-lawyers donning the Lord Chancellor’s robes. The question is no longer simply, Are they a lawyer? Rather, it’s a much broader, Are they up to the job?
Presently, lawyers and commentators will be scrabbling over the new Lord Chancellor’s voting record and poring through Hansard (and Wikipedia) for clues to his disposition. What we know about Mr Lidington is this. He is a historian. This is a good start, although Chris Grayling’s degree in the same discipline did not encumber him in his wanton destruction of the justice system. According to Wikipedia, Mr Lidington has a PhD in “The enforcement of the penal statutes at the court of the Exchequer c.1558-c.1576”. He has won University Challenge twice, once as a student and once in a reunion show. These are all, to varying degrees, positives.
He has held various briefs since his election as MP for Aylesbury in 1992, although has not been called to serve in the Ministry of Justice (however, he did enjoy two spells as a junior minster in the Home Office in the 1990s). He was the longest ever serving Minister for Europe from 2010 to 2016, when he was appointed Leader of the House of Commons and Lord President of the Council.
While at the Foreign Office, he spoke about the importance of international human rights and of access to justice. He was a Remain supporter, who was in the press when it emerged that he had informed Parliament, entirely correctly, that the EU referendum was, as a matter of law, only advisory. He has shown that he is prepared to stand up to his own party on matters of constitutional importance, as in last December when he slapped down a fellow MP’s call for the appointment of judges to be brought under Parliamentary control following the “Brexit ruling”, replying:
“I hope that we don’t go down the route in this country where political considerations play a part in the appointment of judges.
“And of course our current system does depend on a balance, embodied in numerous conventions over the years rather than written into law, that Parliament, Government, respect each other’s place in our constitutional settlement and I hope very much that that will always continue to be the case.”
Already, we see a politician with an appreciation of the separation of powers, judicial independence and rule of law, and a willingness to stand up to those seeking to undermine those values, both of which were notably absent from Truss’ tenure. These are encouraging signs. His Parliamentary experience – 25 years to Truss’ six (at appointment) – accords with what might be expected for the role. That his record does not betray an appearance of ruthless career advancement and manic department-hopping suggests that he may have genuine intent to stay the course. Bob Neill MP, most recently Chair of the Justice Select Committee and a stern critic of his party colleague Truss, reacted to Lidington’s appointment thus:
Not to be. But I have a very high regard for David Liddington – moderate, consensual and listens
There are however less pleasing aspects to Mr Lidington’s record. He has consistently voted with his party to restrict the scope of legal aid and to limit success fees in no-win no-fee cases. This does not sit easily with a professed commitment to access to justice. His record on gay rights, up to his eventual conversion in favour of equal marriage, has historically lined up squarely with the pro-section 28 wing of his party. He has voted to repeal the Human Rights Act. None of these, indeed I would venture nothing in his Parliamentary record, screams of a man prepared to torch the party whip on the altar of justice. That said, a conversion from poaching to gamekeeping is not unknown when collective responsibility is lifted. Bob Neill has been rehabilitated from Chris Grayling’s right-hand MoJ hatchet man to staunchly independent chair of the Justice Committee, dishing out the just and righteous scrutiny that the system requires. People can change.
I would suggest that there is cause for cautious optimism. This is a left-field appointment by Theresa May (and of course one which, depending on the fading vital signs of her premiership, may be brief), but there is evidence that Mr Lidington, if he will forgive being damned with faint praise, is an immediate improvement on his predecessor. How far this improvement extends, remains to be seen. For my part, I would respectfully urge the new Lord Chancellor to start with a few visits to his local magistrates’ and Crown Courts, to see the legacy of his forebears in grim action. Once he has done so, I would urge him, as I did in futility to Liz Truss, to:
stick on his ceremonial wig, take soundings from experts and tell Theresa May that enough is enough, the courts are crumbling, legal aid is cut through the bone, the CPS is starved and the rule of law and access to justice are becoming rhetorical shells, and that root-and-branch reform and replenishment of the criminal justice system – from police station through to release from prison – is something he is going to physically fight for at every cabinet meeting, even if the consequences are that he is politically blacklisted from the Party, and higher office, for the rest of his career.
Because that is the kind of Lord Chancellor our justice system needs. And it’s the kind that millions of disenfranchised and vulnerable people deserve.
1. So what’s all this about a Tory election fraud?
The Crown Prosecution Service today announced that, following a police investigation into allegations relating to Conservative Party candidates’ expenditure during the 2015 General Election campaign, no charges will be brought. Fourteen police forces submitted files of evidence for the CPS to consider, said to show that candidates and their agents had submitted inaccurate expenditure returns and, in the case of all but one (a decision on which is pending), the CPS have concluded that no criminal charges should be authorised.
2. What was inaccurate about the expenditure returns?
In short, there are complex rules governing expenditure during election campaigns. One of the more simple is a legal requirement that all candidates – or in practice, their agents – submit to the returning officer within 35 days of the election a “true return” declaring their expenditure, stating all payments made relevant to the campaign together with invoices and receipts. This allows, among other things, for people to check that a candidate has not breached the spending limits (calculated according to a convoluted formula set out in section 76(2) of the Representation of the People Act 1983) to secure an unfair advantage. There are similar rules prescribed for registered political parties in relation to national campaign spending. In the 2015 General Election, the Conservative Party deployed “Battlebus2015”, a campaign in which party activists were bussed into target marginal seats. Problems arose when it emerged, as part of a Channel 4 investigation, that the travel, accommodation and subsistence costs of those activists had been classified as national party expenditure – part of the nationwide Conservative Party campaign – rather than local expenditure, and was therefore not declared on the records of the candidates whose campaigns the activists appeared to be helping. It was suggested by political opponents that this represented a deliberate attempt to circumvent the spending limits.
3. This sounds familiar. Hasn’t there already been a prosecution?
You’re thinking of the Electoral Commission investigation, which reported in March of this year. One of the many inexplicable quirks of electoral law is that it is enforced separately at national and local level. The Electoral Commission is the statutory regulator with investigatory and enforcement powers over registered political parties, and is responsible for securing compliance with requirements relating to, inter alia, political party campaign spending. The Commission has the power to investigate alleged breaches of the law and, if it finds a breach proved, to impose financial penalties, as set out in the Political Parties, Elections and Referendums Act 2000 (PPERA). But as I say, this is only at the national party level. The law governing individual candidates is the criminal law set out in the Representation of the People Act 1983 (RPA), enforced in the criminal courts by the police and Crown Prosecution Service. So where, as here, there are allegations that local expenditure has been misrecorded as national, it straddles the two parallel regimes. The Electoral Commission therefore investigated what offences, if any, were committed by the party, with the police and CPS looking at individual candidates and their agents.
4. What allegations did the Electoral Commission consider?
The Commission investigated a series of alleged discrepancies arising out of three by-elections in 2014 (Clacton, Newark and Rochester & Strood), European Parliament elections in 2014 and the General Election in 2015. This was wider than the CPS investigation that followed, as criminal proceedings in respect of any offences committed in 2014 were time-barred by statute, meaning the CPS were only concerned with the 2015 allegations. The full report is here, but in short, the Electoral Commission considered a series of allegations that the Conservative Party had failed to declare a complete statement of its spending, both by wrongly declaring local expenditure as national and by omitting certain expenditure – including £63,487 on the Battlebus – altogether; had failed to provide adequate accounting records; and had failed to keep invoices and receipts. Responsibility for this was said to ultimately fall on the Treasurer, Simon Day (who is presently under police investigation and so about whom nothing more will be said).
5. What did the Electoral Commission conclude?
It found that there had been three failures to keep accounting records sufficient to adequately show their transactions (in contravention of section 41 of PPERA), all of which related to the 2014 by-elections. And it found proved two offences proved under section 82(4)(b) relating to the 2015 General Election: firstly failing to submit a complete spending return (by wrongly including £118,124 of local candidate spending and omitting at least £104,765 of national spending); and secondly failing to provide receipts and invoices to the value of £52,924. The Commission fined the Conservative Party a record £70,000.
6. That sounds pretty damning. So why are the CPS are now refusing to prosecute?
It has to be borne in mind that the Electoral Commission and CPS were considering separate issues and applying separate tests, albeit with a common factual nexus. As far as the local candidates were concerned, there were two available criminal offences: “knowingly making a false declaration” contrary to s.82(6) of the RPA, amounting to a “corrupt practice” punishable upon conviction by up to two years’ imprisonment; and a lesser offence of failing to deliver a true return, amounting to an “illegal practice” contrary to sections 81 and 84, punishable by a fine. The distinction between “corrupt” and “illegal” in this context is that to prove the more serious “corruption” offence, the prosecution must prove that the individual acted dishonestly – i.e. that s/he knowingly acting dishonestly according to the ordinary standards of reasonable and honest people. When considering whether to prosecute, the CPS applies the “Full Code Test”. This has two parts – the evidential test and the public interest test. The evidential test is simply: is there a realistic prospect of conviction – i.e. of persuading a court of guilt beyond reasonable doubt – based on the available evidence? If this is satisfied, you go on to consider whether a prosecution is in the public interest. The CPS formed the view that, as the candidates and their agents had been assured by Conservative Party HQ that the Battlebus expenditure was legitimately part of the national campaign, it would be very difficult to prove that the candidates or agents acted dishonestly, as opposed to having acted mistakenly in good faith. In relation to the lesser offence of failing to deliver a true return, the CPS concluded, perhaps charitably, that for for the same reason it was not in the public interest to charge any of the agents or candidates with that offence.
7. So the Conservatives did nothing wrong?
You would be forgiven for thinking so, given the undignified grandstanding indulged in by Conservative Party members today – including utterly ludicrous calls from Karl McCartney MP, one of those investigated, to “abolish the Electoral Commission”, as if the CPS’ decision in any way undermines the Commission’s findings. It is a far leap from “insufficient evidence to prosecute in this instance” to “proven innocent of any wrongdoing ever”. The CPS appeared satisfied, as was the Electoral Commission, that the returns were inaccurate. You do not get fined £70,000 for playing by the rules. Furthermore, it must not be forgotten that during the Electoral Commission’s investigation, the Conservative Party was wilfully obstructive and refused to cooperate fully with the inquiry. This was one of the reasons cited in the Commission’s report for the unprecedented level of fine:
“The unreasonable uncooperative conduct by the Party, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation. This in turn increased the public funds incurred by the Commission during the investigation.”
“The CPS has decided – they are an independent body – they have decided that no charges will be brought against any candidate in relation to this matter. Candidates did nothing wrong. It’s very important and I repeat that – I have said it many times – candidates did nothing wrong.”
“[The CPS] confirmed what we believed all along” – that “local spending was properly reported”.
Is she lying?
Yes. Brazenly. The CPS in fact said the opposite, concluding, as we’ve seen, that there was evidence to support a prosecution of failing to submit true expenditure reports, but declined to prosecute as an act of clemency on public interest grounds.
In fact, lest anyone else be tempted to swallow the claim that the Party and its candidates have nothing to be ashamed of, the Commission’s reasons for imposing the £70k fine are worth reproducing in full:
In determining this penalty the Commission took into account the following factors:
The magnitude of the contraventions and the harm caused to confidence in the PPERA regime were, in the Commission’s view, significant.
The correct apportionment of spending between parties and candidates has a significant impact on the effectiveness of, and public confidence in, the PPERA regime.
The advantage obtained by the Party from its actions with each invoice provided to each of the three candidates and agents which inaccurately understated the amount spent by the Party on behalf of the three candidates. This is irrespective of whether, in the end, the Party’s candidates were successful in the by-election.
The significant uncertainty for voters as to whether the Party complied with its duties significantly, which increased the weighting to be attached to the magnitude of the breach and the impact on public confidence.
The lack of cooperation by the Party during the investigation.
The fact that the Party does not accept the requirement to keep records of this type, which leads the Commission to consider the risk that the Party may follow a similar course of action in future if the Commission does not take robust action to make its position clear.
An acceptance that, while the second and third contraventions were no less serious than the first, the three separate failures resulted from the same misconceived course of action.
In respect of the offence under section 82(4)(b) of PPERA related to the failure to deliver the Party’s 2015 UKPGE spending return with a statement of all campaign spending payments, the Commission has imposed the maximum financial penalty of £20,000.
In determining this penalty the Commission took into account the following factors;
The omission of over £100,000 of spending from the Party’s return alone, which was a significant loss of transparency and a failure of significant magnitude. The actual value of the under- and overstated spending was likely to be far greater.
The advantage obtained by Party by its actions; the inclusion in the Party return of what in the Commission’s view should have been reported as candidate spending meant that there was a realistic prospect that this enabled its candidates to gain a financial advantage over opponents. In this respect the Commission noted that the Battlebus2015 campaign visited target constituencies and that South Thanet was also a key priority for the Party.
The unreasonable uncooperative conduct by the Party, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation. This in turn increased the public funds incurred by the Commission during the investigation.
In respect of the offence under section 82(4)(b) of PPERA related to the failure to deliver all the required invoices or receipts with the Party’s 2015 UKPGE spending return, the Commission has imposed a financial penalty of £5,000.
In determining this penalty the Commission took into account the following factors:
The harm caused to confidence in the party finance regime represented an aggravating factor, in light of the value of the payments and the campaign to which they related. The omission of supporting information undermines the ability of the Commission and the public to review and verify the spending figures within the return. There was a consequent impact on transparency and most likely, as a direct result, on public confidence.
The unreasonable uncooperative conduct by the Party during the investigation, of which this offence was one element, which delayed without good reason and for a number of months the provision of information needed to progress the investigation.
The Party has now provided the missing invoices and receipts. However, these were only provided as a result of the Commission’s enquiries.
No. No no no. No. Just no. There is no evidence at all to reasonably support the claim that the CPS have reached the wrong decision; in fact it was predicted by much wiser commentators months ago. It was always likely to be tricky to prove that local candidates completing their expense returns in reliance on the advice of party HQ were individually dishonest, as opposed to careless. Furthermore, the golden rule in all such cases is that anyone not privy to the evidence, and who is limited to the information in the public domain, should tread carefully before reaching a view on the correctness of the CPS’ determination. To criticise a prima facie explicable decision without having seen the evidence on which it is based, or to imply conspiracy or undue influence, is to snap Occam’s Razor in a political tantrum.
10. So everything’s fine?
No. I wouldn’t say that either. Reform of the law in this area merits serious consideration. It is confusing and unjustifiable to have parallel systems for registered parties and individual candidates. There is something artificial about distinguishing between “national” and “local” expenditure where, as here, the national party focusses its resources on helping candidates in marginal local seats. As David Allen Green sensibly points out, the current set-up invites problems such as those that arose in this case. The statute of limitations of 12 months, which excluded consideration of the 2014 by-election, appears ripe for reconsideration. And the powers of the Electoral Commission are puny. A maximum fine of £20,000 for a single offence committed by a national Party does not even approach a deterrent. Commission chairman Sir John Holmes observed:
“There is a risk that some political parties might come to view the payment of these fines as a cost of doing business; the Commission therefore needs to be able to impose sanctions that are proportionate to the levels of spending now routinely handled by parties and campaigners.”
It’s not just the Conservatives at fault, either. It must be pointed out that the Electoral Commission has recently fined both Labour and the Lib Dems £7,000 and £20,000 respectively for similar failures to declare spending. There is much wrong in this case, and plenty that we can learn. Unfortunately for the more excitable on the internet, neither a failure by the CPS to pin down a clear Tory electoral fraud, nor vituperative incompetence on the part of a bumbling Electoral Commission persecuting innocents, is the lesson to take home.
Some political proposals are so self-evidently preposterous that to analyse them is to risk conferring dignity on the undignifiable. However, UKIP’s “Integration Agenda”, a rat’s nest of racialised assumptions masquerading as putative legal reform, trespasses egregiously onto the criminal law. Which, as any fule should know, is this blog’s turf. And on this turf, no idiocy is too stupid to be rebuffed.
Dimensions of time and space prohibit an examination of the full manifesto, so let’s consider a choice selection, hold our noses and inspect the intellectual machinery at work:
“Pass a law against the wearing of face coverings in public places. Face coverings are a deliberate barrier to integration and, in many contexts, a security risk too. The time has come to outlaw them. People should show their face in a public place”
By “face covering”, UKIP plainly intends to target the “niqab” (or, as Kippers inaccurately often refer to it, the burkha), in an emulation of the ban enacted in France in 2010. The problem with such laws, as France has discovered, is that in order to maintain the façade that this is not an attack on a particular group of people, rather a general principle, you have to ban all face coverings. Which means prima facie outlawing balaclavas, motorcycle helmets, Halloween masks, gimp suits, zentais (those all-in-one spandex body suits beloved of stag parties abroad) and football mascots, and then working backwards to create exemptions to avoid the law being utterly unworkable. UKIP has today spent significant effort responding to questions as to whether large, face-obscuring hats as worn on Ladies Day will be criminalised, and whether the ban would include beekeepers. Whatever your position on the liberal principles at play, the practical flaws with such laws are obvious.
“Implement school-based medical checks on girls from groups at high risk of suffering FGM. These should take place annually and whenever they return from trips overseas.”
Female Genital Mutilation (FGM) is a vexed topic with an unhappy history of state inertia at its heart. Needless to say, any pragmatic legislative changes that might save the ritual devastation of thousands of young girls each year should be given serious thought.
Serious thought, however, is the magical missing ingredient from UKIP’s proposal. It appears to take its inspiration from the controversial approach in France, where the law provides for widespread medical examinations of children, which it is said has assisted in the prosecution of cases of FGM (albeit under French law there is no specific such offence). But there are key differences. Firstly, the French system is not mandatory, although receipt of social security is dependent on participation. Secondly, it covers all children up to the age of six. For older children, girls identified as being at particular risk of FGM are required to attend for annual check-ups, and to submit to examination when returning from abroad.
When the French model was considered by the Home Affairs Committee in 2014, they heard evidence that the model had had the effect of increasing the age at which girls were forced to undergo the procedure so as to avoid the “mandatory” tests. Furthermore, the Royal College of General Practitioners told the Committee that routine screening could alienate hard-to-reach individuals and communities, which may prove self-defeating.
But whether the French model is desirable or not, a key difference is that, unlike UKIP, it is not premised on targeting unspecified social “groups”. Up until six, all children are examined. Beyond that, the focus is on girls identified as being at risk. There is an element of non-arbitrariness and proportionality, which is important when you are talking about invasive medical examinations of children. Similarly over here, compulsory medical assessments of children generally require the authority of a court (as with Child Assessment Orders) which will consider whether, on the facts, such invasive action is necessary. I will be corrected by anyone with greater expertise in the area, but I struggle to see how blanket compulsory invasive examinations of children of an undefined particular “group” can possibly be proportionate and not amount to undue interference with the child’s right to privacy and personal autonomy (as guaranteed by the UN Convention on the Rights of the Child).
By focussing on chosen “groups” and not individual assessments of risk, UKIP opens itself to charges of malign motivations, particularly in light of the rest of the Agenda (see below). And what of those unidentified “groups”? Does this include the child’s race? The child’s ethnicity? The child’s nationality? The child’s religion? Or does the heritage test run deeper? The parents’ race/ethnicity/nationality/religion? What if a child is adopted? Or mixed race? What if the child was born in Somalia to Muslim parents, but came to the UK and was raised by white Christian relatives? What happens to a 15 year-old convert to Islam? Does it matter if she is of African heritage? What if she is white? What will be the statistical threshold of “high risk”? Unless UKIP has answers to these, it will take significant effort not to hear a screeching dog whistle behind this policy, and infer that by “groups” they mean, loosely, “Muslim”, “brown” and “black”.
A final salute must be given to the intellectual endeavour behind the broadness of the final criterion, “whenever they return from trips overseas”, ensuring that the unfortunate child taken to Disneyland Paris for a weekend will enjoy a return journey contemplating her Monday morning at school spent with a stranger inspecting her labia.
“Make failure to report an instance of FGM by someone who has knowledge that it has taken place a criminal offence itself.”
Positive: The germ of a good idea.
Negative: This is basically already law. Section 3A of the Female Genital Mutilation Act 2003, as amended by section 72 of the Serious Crime Act 2015, makes it a criminal offence, punishable by up to 7 years’ imprisonment, for a parent or other responsible carer of a girl under 16 to fail to protect her from an act of FGM. Section 5B of the 2003 Act places a positive obligation upon healthcare professionals, teachers and social workers to report discoveries of FGM to the police.
“The CPS to operate under a presumption of prosecution of any parent whose daughter has undergone FGM [Female Genital Mutilation]”.
Putting aside the casual reversal of the presumption of innocence lying at the heart of our justice system, a “presumption of prosecution” means one of two things: either it surpasses the current test for prosecuting, about which below, or it doesn’t, in which case it is meaningless.
If it is intended to have meaning, it must supplant the existing Code for Crown Prosecutors, the guidance governing decisions to prosecute, which is issued by the Director of Public Prosecutions (DPP) under section 10 of the Prosecution of Offences Act 1985. Criminal prosecutions must only start or be continued where the Full Code Test is met. This comprises two parts: (i) the evidential test; and (ii) the public interest test.
The evidential test is simply expressed: On the evidence available, is there a realistic prospect of conviction? The public interest test comprises consideration of various factors, including the seriousness of the offence, culpability of the suspect, harm caused to the victim, age of the suspect, community impact, proportionality of prosecuting and national security.
It is unclear which of these two tests the “presumption of prosecution” is expected to override. If the former, it will mean that cases where it has been judged that there is no realistic prospect of conviction (such as where one parent is estranged from the child and does not appear to have the requisite “frequent contact” with her) will be prosecuted at significant public expense, with young, brutalised girls deliberately dragged through the mire of criminal litigation to no avail. If the presumption in favour of prosecution is to kick in at the public interest stage, then UKIP would be advised to read the existing Code, which, in the chapter dealing with the pubic interest test, states (at 4.8):
“Once the evidential stage is met […] a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.”
Or what one might call a presumption in favour of prosecution.
“In cases where the victims of grooming gangs are of a different racial or religious group than the offenders, the CPS should cite this as an aggravating feature of the offence when prosecuting, opening the way to a longer sentence.”
The meat of the racist pie. What this is not-so-subtly aimed at is those stories that excite the tabloids where gangs of Asian (often Muslim) men groom white girls. For UKIP, if there is one thing that aggravates the rape of a child, it’s a mixing of the races.
Currently, courts are required by law (section 145 of the Criminal Justice Act 2003) to treat racial or religious aggravation in the commission of an offence as an aggravating factor in sentencing (save for in relation to specific offences which are by definition racially/religiously aggravated, such as racially aggravated common assault).
What amounts to “racial aggravation” under s.145? The definition, set out at section 28(1) of the Crime and Disorder Act 1998, is where:
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 or religious group or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
This, it can be seen, is a definition that focuses on the defendant’s specific conduct. It doesn’t matter what race the defendant or victim is – it is the particular intent that matters. The offender and victim might be of different races, or the same – it’s irrelevant. UKIP’s reform would turn this on its head, focussing not on what the defendant did or said, but entirely on the colour of his skin. All that would be required, in certain (unspecified) offences related to child grooming, is that the victim belong to a different racial or religious group than the offender. The actual existence of racial or religious aggravation would be irrelevant. The message, whether intended or not, is, “It is worse to rape a child of a different race to your own.” It is difficult to discern a motivation behind this policy other than naked racism.
“CPS and police to be instructed to treat a so-called “honour” dimension of any act of violence as an aggravating feature, leading to it being accorded a higher –priority for investigation and prosecution and not a lower one.”
No-one wants to suggest that UKIP are a bunch of hog-brained, village ninnies who haven’t even consulted Google before firing off a range of mind-spasmingly senseless policies designed to prey on the very worst racial prejudices of their core voters. But an Integration Agenda that proposes intimately examining the genitals of children from minority groups, dragging such children through courts as witnesses where there is no prospect of conviction and locking up people for longer on the basis of their race, does not assist their cause.
UPDATE: A number of commenters with first-hand experience of the French system have been in touch and advised that the position as understood by the Home Affairs Committee regarding compulsory medical checks in France is incorrect. I am informed that, in fact, the medical checks that take place up to age 6 do not include invasive genital examination. The evidence reported by the Committee in 2014 and 2016, upon which I have relied, can be found here and here.
Today, in response to an op-ed in the Daily Mail in which Iain “Bit of a thicky” Duncan Smith pushed Hanlon’s Razor to its limit with his “interpretation” of the Supreme Court proceedings, I published a series of tweets. They have proved, contrary to expectation, common sense and decency, to be quite popular, and I have had several requests to collate them in a blogpost. So for those who so wish, here I do. For those who aren’t fussed or have already seen, sorry for the diversion and have a nice day.
1. It is hard to know where to start with this litany of stupid from the dissembling IDS, but let’s try. https://t.co/sdE21R7kTn
Every now and then, as Bonnie Tyler so nearly put it, I fall apart sobbing in giddy astonishment at the folly of our elected representatives. And I need you now, dear reader, and I need you more than ever as the willing sounding board in my echo chamber of lawsplaining.
The Bill aims to prohibit the wearing or public display, by a person not entitled to do so, of medals or insignia awarded for valour, with the intent to deceive. To borrow the media-speak, it targets the “Walter Mittys” who adorn themselves with unearned medallions and insist that everyone call them “Colonel”, causing enormous offence to genuine service personnel and their loved ones.
And it is wholly misconceived.
The text of the Bill is short and can be reproduced here:
The drafting is at least to the point. Pretend to have been awarded a medal for valour and face up to 3 months in prison (although the Committee in fact agreed with Mr Johnson’s suggestion that the maximum should be 6 months, so we can expect an amendment). If there is merit in its brevity, however, the plaudits end there. It is in every other way an appalling Bill.
There are two kinds of people who dishonestly wear military medals that they haven’t earned. Those who do so in order to obtain some sort of advantage, usually financial. And those who do so simply because they like the undeserved attention that the artifice confers.
The first category is plainly conduct requiring a criminal sanction. If you deceive in order to gain for yourself or to cause a loss to another, the law should intervene to protect the victim. And it does. We have the Fraud Act 2006 for just such an eventuality. So if you are duplicitously pinning on unearned medals to persuade people to donate to your fictional charitable cause, that is an offence under section 1 and 2 of the Fraud Act 2006, carrying a maximum sentence of 10 years.
The second category comprises, in the words of the Committee, “contemptible fantasists” – those tragic, often lonely men, whose deceit and/or delusion may well be deserving of public contempt, opprobrium and mockery, but who cause “harm” only to the extent that one equates “harm” with “moral offence”. Which I do not. First year undergraduates will be able to knock out essay after essay on the “mala in se” and “mala probihita” debate far more fluently than I, but I start from the philosophical position that criminalising conduct not because it causes harm but because it offends broader public sensibilities is a regressive misuse of the state’s coercive powers.
The Defence Committee in its report, regrettably, disagrees. It identifies that harm in such behaviour arises due to the “insulting” nature of the conduct, and the damage to the integrity of the system that it assumes flows therefrom. From this, the Committee gallops swiftly to its conclusion that a law is needed to protect the sensibilities of those offended.
The Defence Committee’s report is crammed full of other evidential gaps and leaps of logic. It confidently asserts, for example, that “We have received evidence that points to a continuing problem with military imposters”, before conceding that it is unable to identify with any accuracy the scale of this problem due to lack of recorded statistics. It acknowledges the Royal British Legion’s evidence that such conduct is “rare” and “not widespread”, but decides to favour the anecdotal evidence of the Bill’s sponsor and other witnesses. Quite how the Committee could hear conflicting anecdotal evidence and conclude that it was sure that the integrity of the system was imperilled is a mystery.
The Committee draws analogies with the offence of impersonating a police officer, which does not require proof of gain, without recognising the very different, specific and real harm that is caused by the public being misled into believing that an individual is invested with the coercive powers of the police.
It does not even take heed from history. For we had a law like this until a decade ago. A corresponding offence appeared in section 197 of the Army Act 1955, until it was abolished in the Armed Forces Act 2006. Justifying this decision at the time, the MoD said:
“the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform” and that the general offences under the Fraud Act 2006, which potentially attract much more serious penalties, would cover those eventualities. There was also a concern that “an offence based on an intent to deceive which did not involve fraud (for example, where there was no attempt to make a financial or property gain, or cause someone loss) was likely in practice to cause difficult questions of proof”.
The Report acknowledges this, before swiftly moving on without addressing the argument. Because it cannot be addressed. This new offence will be at once difficult to prove and entirely unmeritorious.
The report sensibly proposes that the MoD publish an online database of those awarded medals, to allow for swift public verification of claims to honours. This is a fine idea. It is a shame that this was not the sole remedy alighted upon, and that the Committee considered that instead stretched police, CPS and court resources should be expended on more prosecutions.
I do not for a moment doubt the offence caused to military personnel and their families. And I agree that there is a particular degree of unpleasantness and aggravation of offence, given the particular sacrifices that are by those who earn such honours. But it is worth remembering that the Walter Mittys of this world do not restrict themselves to the misappropriation of military honours. They pretend to be doctors, inventors, Nobel prize winners, retired detectives, lawyers, decorated firefighters and much more besides. And once we start saying that the law should criminalise deceitful conduct based not on harm but on offence, we will find other groups seeking similar protection. Why, it may reasonably be asked, should the same criminal sanction not be imposed on those who falsely claim to have saved lives in war zones as a member of Médecins Sans Frontières?
The Report also pays scant regard to the personal circumstances of those who will likely fall foul of this law. Many will be elderly. Many will have mental health problems. All, by virtue of the fact that they have not been charged with fraud, will be entirely harmless.
To suggest, on the day that the Lord Chief Justice correctly points out that our prisons are bursting at the seams with prisoners who we do not need to lock up, that what we urgently require is more tragic, deluded, harmless old men locked up for up to 6 months, represents exactly the kind of muddled thinking and crass appeal to populism that our MPs should know better than to indulge.
This post was written last Saturday when it was achingly vogue, then lay forlornly unposted over the weekend until staleness set in, by which time it appeared destined to linger forever in my draft folder. Serendipitously, it has been offered a second wind after one of the subjects tweeted me out of the blue, allowing me, I reckon, to segue to a discussion of why, last Friday, Justice Minister Sam Gyimah powered into the media’s bad graces by apparently blocking a Private Member’s Bill which sought to automatically pardon men convicted of now-abolished sexual offences.
When SNP MP John Nicolson presented the Sexual Offences (Pardons Etc) Bill for its second reading in the House of Commons last Friday, he and many other MPs spoke eloquently and passionately about the symbolic importance of enacting legislation which would extend the pardon granted to Alan Turing in 2013 to all men, living and deceased, convicted under historic legislation that criminalised homosexual activity between consenting males over the age of 16. Sam Gyimah, a new fixture in the post-Gove Ministry of Justice, then stood up and asked Mr Nicolson to withdraw the Bill. When Mr Nicolson refused, Mr Gyimah articulated his objections at sufficient length to ensure that there was no time for a vote on whether the Bill should progress to Committee stage, effectively, as it has been reported, “filibustering” the Bill.
Cue outrage. Gyimah was variously “a disgrace”, “shameful” and, in the words of Labour MP Wes Streeting:
Today @SamGyimah came to work to block a Bill to deliver justice for ppl imprisoned and chemically castrated for being gay. What a guy.
To understand, we need to rewind to the origins of Nicolson’s Bill, and the pardoning of Alan Turing in 2013. Following a vigorous public campaign, and a Private Member’s Bill presented by Lib Dem peer Lord Sharkey in 2012, the government exercised the Royal Prerogative to posthumously pardon World War II code-breaker Alan Turing, who was convicted in 1952 of gross indecency for a consensual same-sex relationship with a 19 year-old man. Turing was one of an estimated 50,000 men who, until the decriminalisation of homosexuality in 1967, were convicted under provisions of the Sexual Offences Act 1956 – mostly sections 12 (buggery) and 13 (gross indecency between men) – or (as in Turing’s case) its predecessor, the Criminal Law Amendment Act 1885, and whose lives were scarred, if not ruined, by being criminalised and often brutally punished for the sin of loving another.
In recognition of the injustice occasioned by this legislation, a further legacy of the Turing campaign emerged. Section 92 of the Protection of Freedoms Act 2012 provided for a procedure whereby anyone convicted under the relevant provisions of the 1956 legislation (or its predecessor) for consensual sexual activity with someone over the age of 16 could apply to have their conviction “disregarded”. The practical effect of this was that if the Home Secretary agreed that the sexual activity founding the conviction would not be an offence today, it would be wiped from the record.
Having a conviction “disregarded” under this procedure is not the same, it should be noted, as being pardoned. “Disregarding” results in the conviction being wiped from the record books. The effect is that no offence was ever committed. By contrast, a pardon “removes from the subject of the pardon all pains, penalties and punishments whatsoever that from the said conviction may ensue” (R v Foster  QB 115, 130), but does not eliminate the conviction itself. Its function is therefore, as far as historical convictions are concerned, largely symbolic. Furthermore, the disregarding process is presently only available to those still alive to use it. For the thousands of other Turings and their families, the stain of a criminal conviction lingers. It was for this reason that, at the 2015 General Election, the Conservative Party manifesto included a commitment to introducing posthumous pardons for historical sexual convictions that no longer amount to an offence.
Which brings us to Friday, and John Nicolson’s Bill. The Bill, in short, sought to automatically pardon anyone convicted of a “specified offence”. This included anyone eligible for the disregarding process, as well as those convicted under section 32 of the 1956 Act (solicitation by men), which was omitted from the scope of disregarding. The Bill also extended the disregarding procedure to permit relatives of deceased men to apply on their behalf for a posthumous disregarding. Which, one may think, would be the sort of thing that the government would support, given its manifesto pledge.
So why didn’t it? Well, the day before the Bill’s second reading, Mr Gyimah announced in a blaze of publicity that the government was enacting an “Alan Turing Law”, by throwing its weight behind a proposed amendment to another Bill currently at the House of Lords Committee stage, the Policing and Crime Bill. Lord Sharkey, he of the Turing pardon Bill, had proposed an amendment which would do two things: firstly, automatically posthumously pardon anyone deceased who was convicted of a “relevant offence”; secondly, provide that anyone living who applied successfully for a conviction to be disregarded would also be pardoned.
Therefore, the MoJ announced, it would not support Nicolson’s Bill, instead preferring to plough its own furrow with the Sharkey amendment. What Friday brought was then a gritty stalemate in the House, as each side waved its flag and ordered the other to join its cause.
Those in favour of Nicolson’s Bill argued that the symbolism of an Act specifically and solely addressing the injustice to be remedied was vital. Appending such a socially significant statement as an afterthought to an unremarkably-titled Policing and Crime Bill did the magnitude of its symbolism a disservice. It warranted the status of being an Act in its own right.
More than this, though, a blanket pardon would cater for the many people who may not want to relive a deeply unpleasant period in their history by going through the formal disregard procedure, but would take comfort from a law formally absolving them of any moral fault. The disregarding procedure has not been widely used. In some historic cases, key documents may no longer be available, presenting an obstacle to demonstrating that, for example, the sexual activity was consensual. The fear of a refusal to have a conviction disregarded, and the further shame and indignity of official rejection, no doubt plays heavily on the minds of many elderly men. A blanket pardon would offer the official acknowledgment to these men that they have been wronged, with the disregarding procedure available for those who wished further to take advantage of the practical effect of having a conviction expunged from the record.
The MoJ’s truculence was twofold. First, it was argued that the amendment to a Bill currently before the Lords afforded a quicker vehicle to bring about the desired change. Second, and loudest, the MoJ objected that the Bill as first drafted was wide enough to appear to pardon people convicted for gross indecency in cases involving non-consensual sexual acts, particularly with children. Historic sexual allegations were, and still are, prosecuted under the 1956 Act, with many nonconsensual acts prosecuted as gross indecency or buggery (typically acts that would nowadays be prosecuted as oral or anal rape), and the MoJ understandably did not want such convicts swanning around with the glow of a pardon. Or worse, it was suggested, using a pardon to worm their way around safeguarding provisions and obtain employment working with children.
This was still Mr Gyimah’s position on Friday. But it appears entirely disingenuous. Before Friday’s debate, the Bill was amended to make clear that the pardon would only apply to cases involving consenting parties over the age of 16, section 2(4) broadly mirroring the disregarding provisions. Even if the technical drafting leaves something to be desired, this could be ironed out at Committee stage. So this argument, still being peddled by the MoJ, is patent nonsense. As for the suggestion that there may be a queue of elderly paedophiles at the job centre looking to brandish a (false) pardon in support of applications to work as school dinner monitors, Gyimah well knows that the pardon itself would be ornamental. Section 2(6) provides that a pardon under the Bill would not affect any conviction, nor give rise to any right, entitlement or liability. Even if a pardon was wrongly “appropriated” by someone who didn’t qualify, it would have no practical effect. The conviction would remain on the record until formally disregarded.
“[The government’s] approach ties the pardon to the process of disregarding convictions from criminal records that already exists and would be extended by clause 3. There need not be such a link. The Government can be more generous. They can make a distinction between the powerful symbolic effect of the general pardon to men—some alive, many dead—and the mechanism by which individuals can benefit from the practical effects of a pardon through the disregard process. This, therefore, ensures that criminal offences that remain criminal offences today are not included in any practical consequences of the pardon. I know that the Minister will present a marginally different view and different concerns, but that discussion should be had at the Committee stage of this Bill. If the Government are not satisfied with the discussion in Committee then this Bill will not make progress towards becoming an Act.”
So why was Mr Gyimah so keen to ignore his Honourable Friend’s plea and obstruct the Bill’s passage? The only explanation one can infer is that of petty, partisan politics. A childish tussle over who gets their name in the history books. A decree from on high that it must be the Conservative party, not the SNP, to bask in the credit of bringing in The Alan Turing Law, regardless of whether the Sharkey amendment, well-intended though it undoubtedly is, fully addresses the injustices at stake. Given the choice, the government would rather appropriate a Lib Dem amendment and pass it off as their own than allow the SNP any credit for a Bill which may do the job better.
It is not right, as some have done, to level accusations of homophobia at Gyimah. But it is right to point out that the effect of his charge for vainglory may well be that a monumentally symbolic law is passed with the appearance of being a regrettable appendage to other, more worthy legislation. And that many thousands of men, who society accepts have done nothing wrong, are denied the pardon that might go some way to restoring their dignity.