Tuesday, 19 September 2017

Double or Bust? - Magistrates' Sentencing Powers

The retiring Lord Chief Justice has been reported as suggesting that magistrates' sentencing powers should be doubled to enable them to sentence offenders to prison for 12 months for a single offence.  This power has been on the statute books for many years but has never been brought into force.  His reasoning is that a huge cost saving will be made because magistrates will retain jurisdiction for more trials and more sentences.

There are three kinds of criminal offences in England & Wales: summary offences triable only in the magistrates' court, either way offences that can be tried in the magistrates' court or the Crown Court and indictable offences that can only be tried in the Crown Court.

When a defendant is brought before the magistrates' court if the offence is triable either way the prosecution will make representations about whether the case should be tried in the magistrates' court or the Crown Court.  The magistrates will then make a decision whether to retain jurisdiction or whether to send for trial to the Crown Court.  If the likely sentence on conviction would be more than 6 months' imprisonment then jurisdiction would ordinarily be declined because that is the maximum prison sentence magistrates can impose.  If the magistrates decide to retain jurisdiction the defendant has the right to elect trial in the magistrates' court or the Crown Court.

Doubling magistrates' sentencing powers would result in magistrates retaining jurisdiction in many more cases.  It, of itself, would not interfere with the defendant's right to trial by jury.  Trial in the Crown Court is hugely more expensive than trial in the magistrates' court and it takes longer for trials to be heard.  On the face of it, therefore, increasing magistrates' sentencing powers would both save money and time.  That sounds an attractive proposition.

Lord Thomas has the legal advantage over me in every respect but one and that is that I have practised in the magistrates' courts a lot more recently than he has and that recent experience causes me to hesitate to welcome this proposal.

There are essentially two schools of thought concerning the efficacy of prison.  The one I subscribe to is that prison is a necessary evil, being a place to exclude from society those that represent a clear risk to the safety and wellbeing of others and for whom rehabilitation in the community is impossible.  The other is encapsulated in the epithet: prison works.

Whichever school of thought you identify with the common ground is that prison is hugely expensive.  We have the highest prison population in our history and the highest in Western Europe.  Increasing magistrates' sentencing powers may have the effect of preventing defendants from coming before the Crown Court, it is however unclear why it would in any way cause the prison population to be reduced.

The vast majority of magistrates are unpaid volunteers.  It represents one of the most commendable forms of public service.  However I can't be the only person who finds it peculiar that unpaid volunteers are empowered to imprison their fellow citizens for up to 6 months.  We don't confer sentencing powers on juries so why do we permit lay magistrates to send people away?  We don't let enthusiastic and well meaning amateurs have a go at surgery so why do we allow them to make such fundamental decisions about people's liberty?

There is such a thing as a professional magistrate, called a District Judge, a magistrate with legal training and experience.  In contrast to lay magistrates they can sit and make decisions alone.  I therefore have an alternative suggestion to that of Lord Thomas.  Rather than doubling the sentencing powers of lay magistrates might it perhaps not be a solution to confine the power of imprisoning people in the magistrates' courts to the professional judges.  This surely would have the effect of ensuring that only those that absolutely have to be in prison are sent to prison.

Monday, 18 September 2017

Prey & Prejudice: Time to Regulate the Paedophile Hunters?

If church attendance figures are anything to go by few in modern Britain still believe in the devil.  That however is not to say that belief in and fear of evil is any less than it ever was.  Almost nothing today is more synonymous with evil than paedophilia.  It should follow then that anything done to combat paedophilia should be welcomed and those that lend themselves to the task of exposing and apprehending paedophiles should be lauded as modern day crusaders.

This proposition lies at the heart of a current BBC focus on paedophile hunting, the newest mushrooming manifestation of vilgilantism.  The premise is simple: self styled paedophile hunters (the vast majority of whom are men) set up fake profiles on social networking or dating sites and wait for a target (the vast majority of whom are men) to make contact.  They then announce themselves as being a child under the age of 16.  Online communication ensues which usually becomes sexual.  A meeting is arranged and the paedophile hunter then reveals himself to his quarry, performs a citizen's arrest and calls the police.

The target is arrested, interviewed, confronted with the content of the online communications, charged, prosecuted, (usually) convicted and (usually) imprisoned.  The paedophile hunter registers another 'kill', the police and CPS chalk up a win, the prison population swells by one and Britain's parents and children sleep soundly safe in the knowledge that there is one less dangerous paedophile on the streets.  On that analysis nobody loses except the dangerous paedophile and few will lament his misfortune.  However I would suggest the time is ripe for a rigorous analysis and wide discussion of whether theory is being reflected in reality.

It won't surprise you to hear that it is a criminal offence to communicate with a child and then meet or arrange to meet with them intending to engage in sexual activity.  Specifically it is an offence contrary to Section 15 of the Sexual Offences Act 2003, meeting a child following sexual grooming.  In paedophile hunter cases there is no child and therefore only an attempt can be charged.  However it is a general principle of law that attempting to commit a crime, for sentencing purposes, carries no less culpability than successfully committing a crime.  The maximum sentence for this offence is 10 years' imprisonment and a cursory Google search demonstrates that the vast majority of offenders convicted of this offence do indeed get sent to prison.

It seems to me that these are the topics that require discussion:

1. Regulation - At the moment there is absolutely no regulation of the activity of paedophile hunters.  They are private citizens and provided they adhere to the law governing private citizens there is no prohibition on their activities.  The same however is not true for the police.  There are myriad laws governing the way in which the police are permitted to exercise their extensive powers.  The police are permitted to undertake undercover operations but only within strictly circumscribed parameters.  Is this right?  

2. Filming - Hitherto it has been extremely commonplace for paedophile hunters to film their stings often broadcasting in real time to their social media sites and often with the videos being uploaded to YouTube.  The obvious risk that attaches to this is of prejudicing the possibility of a fair trial.  Any police officer that uploaded their bodyworn footage of an arrest prior to trial would almost certainly lose his job and potentially face prosecution.  Should this continue?

3. Arrest - Very few paedophile hunters appear willing to involve the local police force prior to a sting taking place.  In the main the practice is for the the paedophile hunter and accompanying associates to confront the target, perform a citizen's arrest and only at that point call 999.  This effectively precludes the police from making an evaluation as to whether someone should or should not be arrested.  It also carries the real risk of impeding an ongoing investigation not known about by the paedophile hunter.  Consider, for example, a police investigation into the activities of a paedophile ring, the activity of a paedophile hunter could force the police to arrest one member of that ring at the expense of the integrity of the investigation into other potentially more dangerous paedophiles.  When should the police be alerted?

4. Safety - When vigilantism is unconstrained there is always the risk of something going wrong.  You only have to watch a few videos of the sting encounters to see that these are emotionally highly charged situations.  If matters are not put into the hands of the police there is a real risk of people being hurt or even killed or even worse of a misidentification of the target.  Is this activity dangerous?

5. Entrapment - English law is very reluctant to recognise the concept of entrapment, this especially applies to the activities of private citizens.  The police are trained as to the extent to which they can involve themselves in the commission of a criminal offence.  Accordingly Test Purchase Officers (TPOs) can buy illegal drugs from drug dealers, their purpose is not to consume those drugs it is to identify and apprehend drug dealers.  What a TPO can't do is approach a completely random person about whom they know absolutely nothing and persuade them to sell drugs.  Pursuant to Section 44 of the Serious Crime Act 2007 it is a criminal offence intentionally to encourage an offence.  The police know this but do the paedophile hunters?

6. Risk - There are, without doubt, very dangerous paedophiles both within society and within custody.  We all, but especially the police and the courts, owe children a duty of care to be protected from these people.  The question is whether the activities of paedophile hunters are, in all cases, assisting in that endeavour.  When the target of a paedophile hunter has never before come to the attention of the police, never before presented as a safeguarding risk to any official body, has no indecent images of children on any of their devices is there a question mark about the risk that they pose?  Are scarce police, court and prison resources being well spent on processing and incarcerating that person?  I don't have answers to those questions but I believe they are questions that need asking and answering.

The Neighbourhood Watch has a long and admirable history of public spirited local citizens working hand in glove with local police officers for the benefit of all.  Is it too much to suggest that if paedophile hunting is to be sanctioned that it be incorporated into something similar?

Thursday, 14 September 2017

A tribute to His Honour Judge John Plumstead

When I was a young(er) barrister I remember one of my colleagues reminiscing about the French chef at Knightsbridge Crown Court to whom an order was given on arrival in the morning for a freshly cooked lunch eaten in convivial company in the Bar Mess during the short adjournment.  Knightsbridge Crown Court with Harrods for a neighbour is long gone as is the supply of food fresh or otherwise from almost all courts.  Instead we have peeling wall paper, leaking roofs, broken toilets.  Conviviality is in very short supply.

A rare pleasure it is then to appear at St Albans Crown Court where every Thursday all advocates are invited to a curry lunch with the judiciary sitting there.  Far from being an opportunity to curry favour (sorry) with the judges this is the best possible reminder that ultimately wherever we sit in the courtroom we are trying to achieve the same thing.

What has always made those lunches particularly enjoyable was the company of HHJ John Plumstead, the twinkling embodiment of bonhomie.  I know he has many friends and admirers that can attest to his qualities off the bench.  My dealings with him however were purely professional and it is on a professional level that I can observe that justice has lost one of her most human and likeable disciples.

It is no exaggeration that some courtrooms provoke in the heart of barristers a real sense of dread either because their custodians clearly absolutely hate being a judge or, worse, absolutely love it.  A proper judge respects the role but doesn't harbour intense feelings about it.  A superlative judge remembers they are a human being first and a judge second.

Judge Plumstead was never anything but human, his compassion for those who came before him whether wrongdoer in the dock or wronged in the witness box was deservedly legendary.  His was a discursive and informal style that put people at their ease even if juries sometimes wondered when the judge's stories would come to an end and the trial resume.  In sentencing he believed first and foremost in mercy and giving people a chance with a few notable exceptions, he couldn't stomach those that were violent towards women nor benefit fraudsters.

Instructions to appear in his court, whatever the case, always provoked in me the feeling of visiting a favourite uncle.  His sudden death has robbed all those that practise in St Albans of a kind and good judge, him and his family of what should have been a long and very well earned retirement.  He will be much missed. 

Tuesday, 4 July 2017

Grenfell Tower: What lends legitimacy?

Legitimacy, most formally defined, means in accordance with the law but another and equally valid meaning is having the quality of acceptance.  The furore that has surrounded the appointment of Sir Martin Moore-Bick has exposed a tension between those two definitions.

On the one hand here is the recently retired Vice President of the Civil Division of the Court of Appeal.  Barrister since 1969, QC since 1986, Recorder since 1990, High Court judge since 1995, Lord Justice of Appeal since 2005.  Legal and judicial careers can be more glittering and exalted, but not much more.  Being a criminal practitioner I never appeared in front of him but from what I have read his decades of experience in commercial cases would make him ideally suited to the forensic disentangling of the contractual threads that led to the Grenfell Tower tragedy.

On the other hand here is a posh old white man, educated at The Skinner's School, Tunbridge Wells and Christ's College, Cambridge about whom the only thing non-lawyers have heard is that he upheld a decision permitting Westminster Council to offer a tenant that had been evicted housing 50 miles away without disclosing what local alternatives were available.  The Supreme Court reversed his ruling.  What can this man know of the pain, anguish and fears of the bereaved, homeless and dispossessed of  Grenfell Tower?  How committed can he be to exposing what caused this to happen and who is to blame?

No sooner has he been appointed there are calls from some quarters for his resignation, including from the newly elected Labour MP for Kensington in whose constituency Grenfell Tower stands: still bearing its victims unknown and perhaps unknowable.  The (new) Lord Chancellor has leapt to his defence and rightly so.  But of course he was appointed by the Prime Minister so the Lord Chancellor loses no political capital in defending the appointment.  Any allegation that Sir Martin will not faithfully and lawfully discharge his duties in chairing the inquiry should be evidenced not bandied about by those who should know better.  

When the criticism being levelled is that you hail from the establishment being defended by the establishment affords you no defence.  In a very real sense however this criticism is absurd.  Inquiries are what judges do.  They are what judges are trained for and experienced in.  To complain that the chair of the inquiry is a judge would be as ridiculous as complaining that the heroic firefighters who gallantly and selflessly fought the blaze had a background in putting out fires.

What the critics are really saying though is that the outcome of the inquiry may lack legitimacy if the chair is from 'them' not from 'us'.  But where would a chair from 'us' come from?  It is hard to imagine that a single member of the Court of Appeal grew up in a Grenfell Tower, or ever did.  What this terrible fire and its inquiry may be exposing is that the male, pale and stale complaint is not just a manifestation of special pleading but the articulation of a legitimate anxiety that if judges don't look and sound like the people they serve there is a danger their service will not be acknowledged or, more dangerously yet, accepted.

Inquiries have not had a good time of recent.  The history of Hillsborough is the springboard.  There is the £190 million cost of the Saville Inquiry.  There is the 7 years it took the Iraq Inquiry to reach publication.  There is the extraordinary turnover of leadership of the Child Sexual Abuse Inquiry.  It would be unconscionable for the Grenfell Tower Inquiry to go awry before it has even started.

There is a solution to anxieties about the creation of a representative judiciary and that is proper funding of legal aid.  If judges are to be drawn from all quarters of society then legal careers need to be open to all quarters.  That means enabling the impecunious able to come to law in the first place and ensuring that they can make a living from it.

Meanwhile those that criticise Sir Martin Moore-Bick's appointment would do well to have their evidence to hand and good explanation for their preferred candidate.  It is a cornerstone of our justice system that all evidence is considered before judgement is cast.

Wednesday, 21 June 2017

Debating with Pros and Cons

Over a door at reception to Her Majesty's Prison Pentonville there is a sign: Beware of the sliding doors.  I don't know how many of its inmates are fans of Gwyneth Paltrow's 1998 film of the same name exploring the fickleness of fate but it's not a bad motto for the prison that is 'celebrating' its 175th birthday this year.  Pentonville, or The Ville, has had a tough time recently with a homicide and a spate of stabbings last year and, adding to anxieties about the prison, a double escape.

Kudos to the prison authorities therefore for continuing to embrace a relationship with the inspired organistation Vocalise which I am proud to say is an endeavour founded by Gray's, my own Inn of Court.  Vocalise sends mentors into partner prisons to teach inmates the skill of parliamentary style debating.  The inmates debate each other and periodically host matches against visiting students (all their matches are home games, for obvious reasons!).

I answered a last minute call up to judge a debate between a team of four inmates against four students from the Cambridge Union, one of the foremost debating clubs in the country if not the world.  Even with the expert tutelage of Gray's Inn Bar students I didn't much fancy the chances of the plucky inside amateurs.  How wrong I was...

Criminal barristers get very used to visiting prisons but only ever to the quarters designated for legal visits.  It is unsurprisingly extremely difficult to gain access to the wings of a prison unless you are on official prison business.  It was therefore, despite my familiarity with prisons and cells and gaolers, still a remarkable experience to stand in The Ville's central hall with grandfather clock and big brass bell and look down the long flights of the radiating wings.  The Ville is 50 years older than my own antique seeming home, it was built when Dickens was 30 years old and it is astonishing that it is still in use in the 21st century.  Walking through G Wing, scene of the stabbings and location of the escape, it was possible to see inmates lying on their bunk beds in the strikingly small cells.

The venue for the debate was the library where among other tomes for loan was, improbably, 'Writing a Romance Novel for Dummies', there was also '10,000 Dreams Explained' and Victor Frankl's 'Man's Search for Meaning' on display suggesting plenty of appetite for introspection and understanding the effects of incarceration.

The format of the debate involved a student starting with a 5 minute speech followed by an inmate opposing with two further speeches on both sides, some questions from the floor, then two concluding summary speeches of 3 minutes.  Points of information were allowed if accepted and the first and last minute of each address was protected from interventions.

Not only did the inmates more than hold their own they deployed and answered points of information to powerful effect.  When it was suggested that cigarettes or 'burn' were an essential release for stress and tension engendered by being locked up for the vast majority of the day one of the students responded that some other relaxant could be found prompting a quick witted inmate to enquire who would be supplying the yoga mats and Werthers Originals.  The inmates explained that 'burn' was an essential currency and a student, without realising that prisoners have no access to cash, naively queried what was wrong with money. One of the inmates replied that perhaps they could be issued with Bitcoins.

In fairness to the Cambridge team, who were all new to the Vocalise programme, it was hard to imagine what they thought they were letting themselves in for.  Certainly turning up to a prison trying to persuade a room full of inmates that they could and should forego their tobacco was rather like expecting turkeys to vote for Christmas.  Nonetheless, without any hesitation my fellow judge and I were of the unanimous view that the inmates carried the day.

It was poignant that on a day where the Queen's Speech made no mention of intended and much needed prison reforms that I was seeing with my own eyes and hearing with my own ears the good that comes from teaching those incarcerated the virtue of reasoned rhetoric over fists and flare ups.  Vocalise is a good thing and expanstion of its reach and remit can't come too soon.  I am strongly of the opinion that nobody should be empowered to imprison another until they have slept a night in a cell.  While I, thankfully, did not have that experience it wasn't only the inmates that learnt something today.

Monday, 5 June 2017

Up with the lark; down with the nightingale - Justice Jaded

Where is justice done? When is justice done?  These are two questions that almost never get asked as being peripheral to the main and only question: Is justice done?  However they are essential questions when considered in light of Her Majesty's Courts & Tribunals Service's (HMCTS) proposed Flexible Operating Hours for courts.  A pilot scheme proposed for London and elsewhere will see some courts sitting as early as 0800 and some sitting as late as 2030.  

It is clear from this proposal that in the mind of HMCTS justice is done in a courtroom (where) and only as that court is sitting (when).  If true it must conversely be the case that at no time and in no place outside the courtroom is justice being done.  This is nonsense.

Barristers go to court but they don't prepare in courtrooms they prepare in offices (chambers) equally judges don't prepare in courtrooms they prepare in their offices (chambers).  When barristers and judges are in court they can't at the same time be in their chambers preparing.  The other place they can't be is at their homes with their family and children.  If I sound like an idiot pointing this out it is because it is an idiotic thing to have to point out.

At the moment the vast majority of Crown Courts and Magistrates' Courts sit between 1000 and 1615 with an hour break for lunch between 1300-1400.  If there is a trial going on the court will sit in the morning and rise in the afternoon.  This is not good enough for HMCTS.  HMCTS feels that more justice can be squeezed into one court in one day like putting more toothpaste in the tube.  The plan is that every courtroom will sit twice in a day.  Early morning to lunch.  Early afternoon to supper.  One day twice as much justice. 

The best bit is that it's flexible and of course that's what we all want in our lives: flexibility.  However flexibility is only flexible when it's on your terms.  When flexibility is imposed on you that is something else; it's called inflexibility.  We are creatures of habit.  The Bar is a catastrophic profession for cultivating good habits.  Every day is a nightmare of unpredictability every personal life a litany of missed weddings, funerals, nativity plays and faltering emotional connection with a loved one.

During the constant professional earthquake that is preparing for stressful and difficult trials one small point of certainty is that there will be some (not much) time at the start of theday and some (not much) time at the end for preparation and having a life.  Justice being worked on outside the courtroom so that injustice is avoided inside the courtroom.

If your instinct is that the Bar should shut up and suck it up on this becase everyone else is working 24/7 zero hours contracts reflect of this analogy.  You are about to go in for major life saving cancer surgery.  Now find out that your surgeon is having a childcare crisis at home because the hospital has scheduled your operation to begin an hour before her childminder arrives.  Now find out that your surgeon does not even know your name and hasn't read any of your notes because the surgery he was performing the previous day didn't finish until 2000 and he had a two hour journey to get home and he hasn't slept.

The Bar Council has published a Protocol for Court Sitting Hours. Read it  and support it: otherwise you'll be the one bending over backwards.


Friday, 26 May 2017

The Miserable Month of May

The first responsibility of government is protection of the people.  Judged by that standard the harsh truth is that Mrs May has already failed as Prime Minister.  That is a harsh judgement because what happened in Manchester is something we have been told over many years to steel ourselves for.  It is her bad luck that it has happened on her watch.  However my sympathy for her is significantly tempered by a number of factors.

First the timing of this attack is no coincidence or matter of chance.  We are days away from an election and this savage blow aimed at children having fun underlines the impotence of democracy to safeguard us against undiscriminating death and distress.  Only the most ardent Conservative could argue that this is a necessary election.  It's an election that Mrs May said she would not seek, it has lost us vital time in engaging with the Brexit negotiations, and the whole endeavour smacks of cynical opportunism.

How hollow rings the already hackneyed cliche that Mrs May means strong and stable government.  Not strong enough to save the lives of young girls not stable enough to avoid emptying the barracks.  The government will of course be privy to intelligence that indicates that deploying troops is an absolute necessity but Mrs May must be either blind or panic-stricken if she can't see how symbolically dismal this appears.

Soldiers at the Palace of Westminster would not have stopped the attack in Manchester and should, heaven forbid, another attack follow hot on its heels we can be certain it will not be where the rifles are.  Should that happen the futility of taking the military option will be writ large.

With all that in mind it is extraordinary that some have deplorably suggested that this attack is conveniently timed for Mrs May.  Quite the contrary: an effect of this grievous blow, no doubt intended, is that the much anticipated landslide for the Conservatives will likely now not happen.  Already the polls have shown a remarkable narrowing of the gap between them and Labour.  Why should people fear chaos with Corbyn when they are already experiencing misery with May?

The leaking of the Labour manifesto prompted a frenzy of sneering and derision from the Tory press and commentators all of whom had forgotten that there is no such thing as bad publicity.  At least it contained ideas and real policy proposals.  They may be financially implausible but they were offering something to vote for.  People want to vote for hope not against fear and Mrs May has shown she has nothing to offer for the former and nothing to protect against the latter.

Tuesday, 16 May 2017

A preview of Channel 4's The Trial: A Murder in the Family

With good cause many actors hold dear to the maxim: 'Never read your own reviews'. Barristers do not have that luxury; instead every trial concludes with a review announced to your face in open court.  One word or two.  Win or loss.  Success or failure.  Every verdict should be met with a face like a mask but behind that mask roil the strongest emotions: exultation or desolation.  And even the coolest professional detachment can't fend off the self-doubt that assails the defeated.  What did I do wrong? What should I have done differently? Was it me?  And just as the gladiator in the Colosseum can't ask the crowd why they gave the thumbs up or thumbs down it is not merely unprofessional to ask a jury for their reasons it is a criminal offence.

Any barrister worth their salt would give their eyeteeth to know the secrets of the Jury Room.  If you are sensible enough to undertake the South Eastern Circuit Advanced International Advocacy Course at Keble College, Oxford you will reap the benefit of filmed jury deliberations analysing your performance.  Outside of that highly specialist (and expensive) course it is pure conjecture whether you win a trial because of, or in spite of, your advocacy.

All that being said Channel 4's unique series starting this Sunday evening The Trial: A Murder in the Family is going to be an absolute must watch for members of the Bar (and the judiciary for that matter).  Screening nightly over five consecutive nights this innovative programme blends a real judge, real barristers and a real jury trying a murder case as if for real with actors playing the defendant and civilian witnesses.

The judge is the retired Recorder of London, HH Brian Barker CBE QC, no less, prosecution counsel Max Hill QC, past chairman of the Criminal Bar Association and past Leader of the South Eastern Circuit and defence counsel is John Ryder QC a titan of the defence Bar.  A lesson though it no doubt will be to watch them in action for many barristers the real interest will be in seeing what points pique the jury's interest, what they find persuasive and what they find unconvincing.

For the vast majority of viewers that are not practising lawyers this will be as close to real as they can get without sitting in the public gallery of the Old Bailey.  If you like watching crime dramas, legal thrillers, police procedurals this will be unmissable viewing.

I will be personally very interested in watching because I became aware of this project at a very early stage right at the start of last year when I met with one of the producers and lent what small assistance I could to facilitating a connection to the recently retired judiciary.  Once the project was under way I became more closely involved by helping David Etherington QC, who had brilliantly masterminded the creation of the whole case, by assisting with drafting the enormous number of documents that comprise the evidence in even the most 'straightforward' murder trial.  I am very much used to advising on the evidence but this is the first and I suspect only time that I will have written some of it.

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.