Thursday, 20 April 2017

A review of Nina Raine's 'Consent'

Police officers and doctors more than any other professionals suffer from the teeth grinding frustration of seeing their occupations ludicrously misrepresented on the screen. However any visit to the GP or interaction with a police officer rapidly acts as as a corrective to misapprehension about the difference between dramatic licence and often dismal reality.  Furthermore a glut of fly on the wall programmes allow the viewing public to differentiate between fact and fiction from the comfort of their own homes.

The Bar more rarely is the subject of dramatic treatment on the small screen with Silk, starring Maxine Peake, being perhaps the best recent example; although for many over the age of 40 the quintessential TV barrister will always be Rumpole of the Bailey.  Much less often are barristers the subject of documentaries. Even when they have been the cameras in England have always been forbidden from the courtroom.  So whatever appears on screen does not include the main professional endeavour of most barristers which is courtroom advocacy.

This means that unless an individual is caught up within the justice system as either a victim, a witness, a juror or a defendant they may live their whole lives without seeing a barrister on their feet in court.  Before television and radio newspapers, national and local, would carry very full accounts of trial proceedings. Since the advent of the internet and the rapid contraction of print media only a handful of cases are reported and even then almost never in full.  One effect of this is that media reporting at best usually provides a snapshot and sometimes a very misleading one of what happens in court.

Accordingly when a mutual friend put the acclaimed playwright Nina Raine in contact with me last year I was more than happy to discuss with her a work in progress about justice, rape and the involvement of barristers in the justice system.  It was immediately clear to me that here was somebody looking to produce a thoughtful and thought provoking piece about one of the most contentious aspects of the criminal justice system namely the prosecution and defence of serious sexual offences.  However her excellent play 'Consent' is about so much more than this.  It compellingly illustrates the interplay and tensions that exist between reason and feeling in sexual relationships and in friendships.  It also illuminates the hardening effect constant exposure to examinations of sexual violence can have on the private lives of professionals.

The play, on now at the National Theatre, has rightly won rave reviews in The Guardian, The Telegraph, and the Independent.  This is because the cast have expertly brought to life Nina Raine's characters and lent real authenticity to the quickfire exchanges that see loyalties and judgement tip one way then another.  I saw the production alone and eavesdropped shamelessly in the interval to get a sense of the audience's reaction.  It would be fair to say that there was little admiration expressed for the barristers on stage and their approach to work.  This is not a play in which any character engages the sympathy of the audience save for rape victim Gayle, uncompromisingly presented as further victimised by the court process.

It is no place of mine to complain, however, that none of the barristers were very nice! That there are in real life barristers compassionate and skilful operating within an imperfect and underfunded system to achieve just outcomes does not, I hope, need saying.  But with that essential caveat in mind this is an important play and a mighty fine entertainment to boot.

Monday, 20 March 2017

Trial by Camera: who benefits from recorded cross-examination?

Theatre v film.  Some appreciate both art forms equally some prefer one to the other.  What all can agree on is they represent very different experiences for the audience. 

It is worth bearing that consideration in mind when one approaches the Lord Chancellor’s policy that pre-recorded cross-examination for all complainants in rape cases will be introduced in all courts in England and Wales following a (very limited) pilot scheme.

As an aside it is regrettable that the Lord Chancellor refers automatically to victims rather than complainants.  If a person makes a complaint of rape he, generally she, is a complainant.  Very often, if not usually, the purpose of the trial process is to obtain a jury’s determination as to whether they are sure a rape occurred.  Until that verdict is returned it does victims no disservice to talk about complainants as part of the trial process.  This is not a matter of mere semantics.

Barristers get used to a seemingly endless process of consultation on myriad topics from a plethora of sources: chambers, Inn of Court, Criminal Bar Association, Bar Council, Bar Standards Board, Legal Services Board, Ministry of Justice.  Some cynics doubt whether any real regard is ever given to the responses. 

However as a specialist advocate in cases of rape and other serious sexual offences I do not recall being invited for my opinion as to the wisdom or benefit of this particular innovation.  It is akin to the Department of Health asking patients whether video consultations would be welcomed instead of face to face and not thinking to ask doctors whether this is a good idea.

When a rape trial starts it is already usual that the complainant’s account will be presented to the jury by way of playing an Achieving Best Evidence (ABE) interview conducted by a specialist police officer.  Generally cross-examination is then conducted over a live link to a separate room in the court building immediately afterwards.  The ABE interview will usually have been conducted very shortly after a complaint is made to the police often, and inexcusably, many months before the trial actually happens.

All of the evidence is watched by a jury on a TV screen.  The jury do not have a flesh and blood witness in the same room with them.  What studies and what evidence is there as to what effect that has on juries’ assessment of witnesses?  Can the answer really be none?  I am often anxious when prosecuting that this loss of immediacy is actually damaging to the prosecution case.  Watching a screen is just not the same as watching a person.  It scarcely needs pointing out that defendants do not and will not be afforded the same opportunity to give their evidence remotely or pre-recorded.

In principle, however, I do not criticise this development but its workability is going to be fraught with difficulties that, not surprisingly, have a lot to do with money.

In no particular order:
1. Delay – in any case there should be minimal delay between charge and trial.  In rape cases this is especially true and yet it is commonplace for months to pass between these two dates.  That is unfair to complainants but it is also unfair to defendants and jurors having to try matters that have become stale through the passage of time.
2. Disclosure – this word which will be relatively meaningless to the layman is central to the prevention of miscarriages of justice.  In a rape case the completeness of disclosure of undermining material by the prosecution is essential.  Much of that material will be in the hands of the police/prosecution but delay (see 1) slows down readiness for trial.
3. 3rd party material – this is material not in the hands of the police or prosecution but which is nonetheless material that should be provided to the defence.  Generally this encompasses medical records, social services records and school records.  The procedure for obtaining this material is bureaucratic and burdensome and bedevilled by delay (see 1).
4. Court listing – some trials are given fixed start dates in the diary and as a rule rape trials should fall into this category although, deplorably, not all do.  However the majority of trials are placed into warned lists which means a trial can start on any day of an allocated week.  Not surprisingly this plays havoc with barristers’ professional diaries.  Obviously in a case with pre-recorded cross-examination the defence barrister that conducts that cross-examination must be available for the subsequent listing for trial.
5. Movement – by which I mean circumstances in which a need arises to revisit pre-recorded cross examination.  Let’s say a complainant’s pre-recorded cross-examination happens in January with a trial in June.  Ongoing investigation by the police and the defence can produce evidence upon which the complainant will require further cross-examination.
6. The defendant – under the current system a complainant cross-examined on Monday could very likely be followed by the defendant being cross-examined on Tuesday.  He will have had a matter of hours to reflect on the content of that cross-examination.  Under the new scheme defendants may have many months to consider what evidence to give in response to the complainant’s evidence.  This scenario hardly assists the cause of complainants and the prosecution.
7. Everyone else – the rationale for this development is that giving evidence about allegations of rape is especially stressful and traumatic.  What about attempted murder?  What about aggravated burglary?  Is being cross-examined about those offences intrinsically less distressing than a sexual allegation.  Why is pre-recorded cross-examination not being rolled out for all cases?


Time will tell whether this system is actually going to work and I hope the statisticians will keep a very close eye on what effect this has on pleas and the outcome of trials.

Tuesday, 14 March 2017

Code D Rodeo: Keeping PACE



In a recent trial my opponent was reminiscing about the ubiquity of verballing before the Police and Criminal Evidence Act 1984 was enacted.  He then asked me if I remembered those days.  A perfectly reasonable question unless you know that I was born in 1980!

It can be very difficult for barristers of my generation to imagine what criminal justice was like before that raft of essential safeguards was enshrined in statute.  So many requirements of PACE are second nature to us comparative youngsters at the Bar.  For example the execution of identification procedures in relation to civilian witnesses is now a wholly formalised and settled process which ought to prevent any defence objection.

Unfortunately, however, police officers purporting to make identifications sometimes believe themselves to be a special case.  Just as verballing has vanished so CCTV has proliferated to a remarkable extent.  This presents obvious opportunities for identification of criminals but also real pitfalls if that identification is not capable of withstanding judicial scrutiny.

I recently defended in a burglary case, instructed by Shaw Graham Kersh Solicitors where CCTV had been retrieved from homeowners.  Footage was circulated to local officers and our client was purportedly identified in footage relating to two burglaries by two separate officers.

Nearly 10 years have elapsed since the Court of Appeal in Regina v Smith and Others [2008] EWCA Crim 1342 handed down clear guidance as to what should have happened. Where a police officer attempts to identify a suspect from images, (s)he is subject to the same principles and procedures as a civilian witness and thus must comply with the rules and spirit of PACE Code D:

A police officer asked to view a CCTV recording is not in the same shoes as a witness asked to identify someone he has been committing a crime. But […], the safeguards which the Code is designed to put in place are equally important in cases where a police officer is asked to see whether he can recognise anyone in a CCTV recording.


It is important that the police’s officer initial reactions to the recording are set out and available for scrutiny. Thus, if the police officer fails to recognise anyone on first viewing but does so subsequently those circumstances should be noted. The words that the officer uses by way of recognition may also be of importance […] as should any words of doubt.

Even if police officers are not avid readers of the Criminal Law Review as a minimum they should know and be able to demonstrate adherence to the mandatory requirements of Code D of PACE which stipulates at paragraphs 3.34 -3.37 that whilst the viewing takes place, a contemporaneous note of the following must be made:

a.       Whether the person knew or was given information concerning the name or identity of any suspect.
b.     What the person has been told before the viewing about the offence, the person(s) depicted in the images or the offender and by whom.
c.        How and by whom the witness was asked to view the image or look at the individual.
d.       Whether the viewing was alone or with others and if with others, the reason for it.
e.      The arrangements under which the person viewed the film or saw the individual and by whom those arrangements were made.
f.        Whether the viewing of any images was arranged as part of a mass circulation to police and the public or for selected persons.
g.       The date time and place images were viewed or further viewed or the individual was seen.
h.       The times between which the images were viewed or the individual was seen.
i.         How the viewing of images or sighting of the individual was controlled and by whom.
j.        Whether the person was familiar with the location shown in any images or the place where they saw the individual and if so, why.
k.       Whether or not on this occasion, the person claims to recognise any image shown, or any individual seen, as being someone known to them, and if they do:
(i)                   the reason;
(ii)                 the words of recognition;
(iii)                any expressions of doubt;
(iv)               what features of the image or the individual triggered the recognition.

If this is done allegations of bad faith can be rebutted, the quality of the purported recognition can be discerned and challenged and, importantly from the prosecutor's perspective, s.78 exclusionary applications can be seen off.

Unfortunately for the prosecution in my case almost none of the safeguards had been adhered to either because the officers involved were ignorant of the Code D  requirements or they chose not even to pay them lip service.  Consequently an application to exclude the crucial identification evidence was acceded to and no evidence was offered.

It would be the simplest imaginable thing for the police to design a pro forma template to circulate with still or moving images of suspects which would require any officer purporting to recognise a suspect to demonstrate step by step compliance with Code D.  If more prosecutions are not to end face down in the sawdust this needs to happen now.

Wednesday, 9 November 2016

Trump & Brexit - Who's fooling whom?


Among the many mangled sayings of George W. Bush one of the most infamous was his butchering of this aphorism:

“There's an old saying in Tennessee — I know it's in Texas, probably in Tennessee — that says, fool me once, shame on — shame on you. Fool me — you can't get fooled again.”

It was an almost endless source of surprise to me and many that a man so inarticulate could occupy the Oval Office.  And yet he did for 8 long years, and in the aftermath of the nuclear detonation under the American body politic last night there are some who look wistfully back at a time when the debasement of politics at least had its recognised limits.

In 2008 the world was treated to Barack Obama's vaulting rhetoric and responded by recognising and endorsing the audacity of his hope.  It is obvious now, however, that there were many millions at home that did not recognise themselves in his dreams; that saw reflected in his success only their failure.

Ever since Hillary Clinton made her presidential ambitions known there has been the lurking doubt, now agonisingly realised, that she did not share Obama's ability to achieve the highest office through the vanquishing of history by the unstoppable force of destiny.

She lost to Obama because he had hope on his side and now she has lost to Donald Trump because he had anger on his.  But what new republic do the millions of Trump voters now really expect him to deliver? A basic rule of politics is never insult the voters and with her 'basket of deplorables' lapse Clinton betrayed, however fleetingly, the contempt she felt for those supporting her ogreish opponent.

Voters don't like being insulted to their face and nor will they tolerate implied slights regarding their intelligence.  Traumatic though the events of 2016 have been 2017 will be the test of whether stupidity and ignorance lies behind the coronation of Trump over there and Brexit over here or whether this ascendancy has a more nuanced source.

WE know that the Brexiteers lied before the referendum and WE know that Trump lied his way to the White House.  The question is do THEY know?  How many Brexit voters truly believed that £350 million per week would be reallocated to the NHS?  How many Trump voters truly believed that the wall will be built, Muslims banished and Clinton jailed?

I suspect the answer is surprisingly few.  The common thread is the emotional willingness of people to be lied to.  Clinton could not win the presidency through reason and appeal to the intellect because what genuine solace could she offer to the millions suffering declining living standards in the Rust Belt and elsewhere?  It is to her credit that neither could she lie in such a bare-faced way as her monstrous adversary, who had the temerity to brand her as the crooked one.

There are rarely easy answers to hard questions and I believe that the vast majority understand that in their heads, that does not mean they wish it were not so in their hearts.  Mrs May and Mr Trump both know that they can't undo globalism.  Rank opportunism has propelled them to suggest that they can.  The question that awaits an answer is what reckoning there will be when their impotence is made manifest.

Thursday, 20 October 2016

Hanging Cheds & The Court of Public Opinion

The court of public opinion has no fixtures, it doesn’t even have warned lists, instead its sittings are unannounced, unexpected and often unnecessary.  It is also an unusual court because its jury is not confined to 12 in number but instead has no limit.  There is no judge, no usher, no clerk.  Rights of audience are granted to anybody with Internet access.  Its most significant peculiarity is that there are no rules of evidence save one: all opinion is admissible.

The ferocity of the firestorm of opinion generated by the Ched Evans acquittal has, even by the exceptionally high and cacophonous standards of modern outrage, been astonishing.  Some of that opinion has been well informed; very much has not.  We have not heard from the jurors involved, the barristers or the judges and it is highly like that we will not.  For those of us that did not sit through every day of two trials by jury and hearings in the Court of Appeal (Criminal Division) we are reliant on the accuracy and completeness of newspaper reporting.

If you are a legal blogger a quick way to gain an audience is to be one of the first to offer commentary on whatever is the high profile case of the day.  Many of my peers are both swift and skilled in this regard.  In my estimation they perform a valuable unpaid public service offering interpretation and commentary to legal matters that enable readers to turn to sources other than newspapers and media websites so that they can understand better the issues involved.

I am often slow to blog on topical cases.  There are a number of reasons for this.  A practical reason is that being topical requires prioritising blog writing often in the midst of professional commitments which plainly must come first.  A second reason is the difficulty of being informed.  As a lawyer, obviously, the hope and expectation is that I am informed on the law and if I am not I know how to become knowledgeable.  But it is the facts that can be so difficult.  Newspaper reporting of trials, even as high profile as Ched Evans’, necessarily contains a tiny fraction of what is actually said and shown in evidence.

Therefore in this blog I do not seek to comment on whether the verdict in this case was right or wrong, surprising or expected.  I do have the strongest possible feelings about Mr Evans’ conduct that night and believe that I would shun and censure any relative or friend who behaved similarly.

If you want to read some useful, insightful and informed commentary on it I commend TheSecretBarrister.com; Matthew Scott (this time in The Telegraph ) and Nicholas Diable.

If you are inclined to offer your opinion don’t let me stop you.  All I will say is that I would be very slow to venture my thoughts on the outcome of complex surgery without undertaking an enormous amount of research and reading first.  Hard cases make bad law is an expression all lawyers are familiar with to which the social media coda is that ignorance makes for bad opinions. 

Wednesday, 7 September 2016

Depressing regressing at Justice

When Michael Gove was unexpectedly appointed Lord Chancellor I am chastened to admit I was among some lawyers who instinctively deprecated the development.  It was Francis Fitzgibbon QC, the new and welcome chairman of the Criminal Bar Association, who reminded us that we of all people should avoid rushing to judgement.

In the event Mr Gove showed some real promise and some unexpected symptoms of reforming zeal as the months wore on.  By the time of his hubristically inglorious dismissal from government he had succeeded in reversing almost every single disastrous policy of his predecessor.  In fact many observers were looking forward with some enthusiasm to see what policy of his own he would formulate.

Problem solving courts were a promising possiblity.  Meaningful and innovative prison reform seemed to be right at the top of the agenda.  A complete newcomer to the justice system seemed intent on mastering his brief and applying his intelligence and energies to addressing some of the most intractable problems bedevilling rehabilitation.  Just one year in the job and the Brexit bombshell threatens to derail the whole programme.

Unsurprisingly given their history and with perhaps genuine distate for his machinations, less Machiavellian more Blackadderian, Mrs May decided there was no room in her cabinet for Mr Gove.  Thus the poor benighted justice system has been presented with its third leader in not as many years.  This time I held my tongue.  Liz Truss should have a chance to prove herself.  Judge a Lady Chancellor by her actions not others' words.

Unfortunately, however, today's performance before Parliament's Justice Committee suggests little cause for optimism about the prospects for justice.  The dreaded and cliched political anxiety about being soft on crime
had alread put paid to overhaul of the courts.  Now it appears any meaningful prison reform may also be off the table.  And back on it is the government's dead cat policy the British Bill of Rights.  Any time, energy and money spent on this pointless exercise in window dressing is a diversion from addressing the real and urgent issues facing justice.

Alex Cavendish has already excoriated the new Lord Chancellor's showing today, I for one hope his pessimism is unfounded.

Monday, 8 August 2016

Same same but different: Stop the bother about the other




Another day another miserable story about Muslims being treated disgracefully by an airline for the simple fact of being Muslim.  Sadly these stories seem to be proliferating, somebody reading Arabic poetry, somebody with a beard, somebody with dark skin, somebody praying; all reasons now, apparently, to be ejected from planes, to be questioned by the police, to be suspected, to be ostracised and to be hated.

The fear of the other expressed in mistrust and hatred is well documented and well known.  When times are tough blame is always apportioned and history teaches us that minorities are the first to suffer as the target of societal anxieties and ire.

It is said that familiarity breeds contempt but so often discrimination springs from contempt for the unfamiliar.  If none of your friends or family are Muslim/gay/black then how much more likely is it that the otherness of their identity will seem to challenge your own.  If you are in a position of strength and privilege then perhaps this otherness will seem less confronting and less fraught with danger for  the integrity of your own sense of self.  By way of example  London did not vote for Brexit because London does not see the EU and its immigrants as a threat to its identity.  The total opposite is true for so many of England's market towns.

I am as dismayed as any decent person that fear of otherness is slowly lending acceptability to overt Trumpian racism, prejudice and downright stupidity.  The short term dangers attendant upon the sanctioning of these base instincts are obvious: more strife, more hostility and more separation.

However my fear of these developments is dwarfed by my fear of the medium to long term problems that the globe has to grapple with, and be under no illusion, they are global problems.  Ironically my fears here stem not from otherness and human diversity but instead from our similarities.  To explain what I mean one only has to consider the example of Bhutan, the remote and inaccessible Himalayan mountain kingdom.  Tourism in Bhutan is very heavily regulated and controlled.  Its traditions have endured in large measure due to a combination of its isolation and the care with which exposure to the outside world has been controlled.  One consequence of this is that the arrival of television in Bhutan is still a relatively recent development and it was one which allowed a clear view of how a society unconnected to the world could change through the arrival of technology.  The answer was enormously, immediately and irrevocably.

As many proponents of Brexit seem not to understand you can’t opt out of globalism.  One manifestation of globalism is commonality of desire and longing: whether that is for iPhones, Coca Cola, a Mercedes or holidays abroad.  Everyone everywhere wants these things because whatever our race, colour, creed or sexual preference we share the same instincts.  We want to consume, we want to possess, we want experience and novelty and we want to expend the minimum possible effort getting it.  The problem for all of us is that the satisifcation of these desires, shared from shore to shore, will destroy our world and ourselves.

Climate change is not caused by otherness it is caused by sameness.  The dwindling of meaningful employment is not caused by otherness it is caused by sameness.  Obesity is not caused by otherness it is caused by sameness.  The solutions to some of these problems are simple but they are political anathema because they require fewer possessions and more effort.  I am frightened that there is no room and no oxygen for the essential debates that must be had about these problems because we are distracted by the phantom threats of otherness.  Our energy and will is sapped by a false fear of terror rather than by a well founded anxiety of what our actions and impulses, replicated seven billion fold around the planet, are doing to the only world we have to live in.

When we recognise that we have more reason to fear ourselves and the satisfaction of our desire for possession without effort then we are ready to combat that fear through action.  This action is not just manifested in the decisions we take in our own lives but in the policies that we demand of our politics and politicians. Stop worrying about the threat posed by others and by the other and take responsibility for the threat that comes from within.