Sunday, 4 November 2018

Final Warning - Time to Fix Warned Lists

There are three reasons why guilty defendants do not plead guilty before the day of trial.  First they hope witnesses won't turn up for the trial.  Secondly they hope the prosecution won't get its house in order in time for the trial.  Thirdly they are in denial.  

All three reasons explain why warned lists exist.  The courts have learnt from long experience that very often trials do not proceed when they're listed.  The prosecution pulls the plug, the parties aren't ready, witnesses don't turn up - the defendant decides that, after all, he did do the crime.  Because the received wisdom is that an empty court is a wasted court there need to be back up trials, understudies waiting in the wings ready to run onto the stage when the main attraction drops out at the last minute.

If your model of an efficient justice system entails judges sitting in full fig on the bench for the maximum number of minutes a day then you will never relinquish the warned list trial.  Of course it may be a matter of supreme indifference to you that they are presiding over half prepared trials or trials that that take twice as long as they should do because of the difficulty of getting witnesses to court.  Bums on seats laddy, that's what it's all about.

Except it really, really isn't.  It is difficult to draw parallels with other sphere of your life where the warned list concept might apply.  Yes the NHS in its current parlous state might mess you about a bit but when was the last time you were told your vital cancer surgery might start on Monday, or Tuesday, or Wednesday, or Thursday or Friday or if not that week then 3 months hence?  Imagine booking a flight to Barcelona for your holiday turning up at the airport and being told to go away and sit by your phone because they might be able to get you on a flight the next day and if not then the day after or maybe not at all.  You would rightly be incensed by such treatment, want your money back, write letters to your M.P.

Yet the Crown Court does this to victims of serious crime and defendants every single day.  Explaining this concept to newcomers to the court system is embarrassing and difficult to justify.  Their case, possibly one of the most important events in their life, doesn't even warrant a date in the diary just a nebulous time period during which they can't do anything else except wait anxiously on the off chance that a gap in the court's diary will emerge.

Just as vexing is the concept of a floating trial whereby everybody gets dressed up to go to court only to be told that the trial which everybody expected to 'crack' (plead out) is in fact full steam ahead and so there is no room at the inn.  This is a frankly contemptuous way to treat often traumatised and frightened people.

And all of this before one even addresses the flaw at the heart of the warned list system.  Warned list trials are supposed to ensure the efficient and smooth running of the courts.  However because of the professional (and familial) chaos they wreak in everybody's lives they do anything but produce efficiency.  In the vast majority of cases criminal barristers are not paid for their time.  They are paid for being in court when a trial happens or a guilty plea is entered.  Therefore all preparation for a trial is essentially free.  That is perfectly fair and proper if the barrister that prepares the case does the trial.  However the warned list system means that very often is not the case.

I can have a case in my diary for months on which I have advised, attended conferences and hearings and because it is arbitrarily listed on a Wednesday and not a Monday another barrister picks up the case the night before, has to mug up on the papers like a student cramming for an exam and keeps all the money.  It is stressful for my colleague, impoverishing for me and unfair on the parties to the case who can find that both the prosecution and the defence barrister have no more than 18 hours 'knowledge' of the case.

This system is wholly inimical to proper case ownership, responsibility for the preparation and preparedness of trials and the cultivating of the sort of candid, frank and trusting relationship between barrister and defendant that may result in a trial being avoided all together.

Cases with experts are fixed because the courts don't believe in messing around professional witnesses but aren't prepared to accord this courtesy to the victims of crime.  Sex cases are usually fixed (although, outrageously not invariably) because the courts acknowledge that complainants in those kinds of cases may be especially traumatised.  But, in what are unacceptably referred to as volume crime cases, all parties should expect to be at the court's beck and call.

All practitioners know how the MoJ loves a pilot so my suggestion is that a few courts are selected to trial universal listing of trials as fixtures; from the shortest affray to the longest fraud every judge, every barrister, every defendant, every witness, every police officer and every clerk will know exactly when a trial will start.  Let's see what effect that has on trial readiness and the effectiveness of trials.

Where there can be no doubt is the positive effect it will have on the planning of the lives of all those involved in the trial process both professionally and personally.

Tuesday, 2 October 2018

Word for Word & Measure for Measure - More Justice in Rape Cases

Sitting down with your client after they have been convicted of a serious offence is an unenviable task familiar to all defence advocates, even the most brilliant ones.  One of the chief virtues of prosecuting is that because your client is the Queen, (notionally at least), you never have to sit down with your client.  And indeed it is surprisingly rare following an acquittal for a prosecution advocate to have to account to anybody for the result beyond filling in the rather euphemistically named adverse verdict report.

In particular it is very rarely required of the prosecution advocate that they have to sit down with the complainant and explain why the jury found the defendant not guilty.  Generally the complainant is long gone by the time a jury's verdict is returned and it is the job of the police to let them know the outcome.  The complainant, however, is (rightly) entitled to speak to the prosecution advocate on request at a formal meeting.  It is not something I have ever had to do but I know barristers who have.  They can't be easy meetings for anyone involved because the complainant wants answers and frankly the barrister is usually unable to give them.  Juries don't give reasons for not being sure of the defendant's guilty and second guessing why they weren't sure is a fool's errand.

I have prosecuted and defended serious sexual offences for a number of years now and have a fairly clear sense of the sort of features in a case that will make a conviction unlikely.  What is much less clear to me is what makes a strong case.  I am, obviously, not talking about cases in which the defendant has denied intercourse took place and his semen is found on swabs or cases in which (unusually) an assault is caught on camera or is witnessed.

I mean a case in which a complainant comes forward and says they were raped in their home or the defendant's home or a hotel room and the defendant says sex took place but it was consensual.  What then makes for a strong case?  Is it time candidly to admit that if those are the facts that such a prosecution is intrinsically weak, uncorroborated as it is by any evidence emanating from a person without a vested interest in a conviction or a person without a vested interest in an acquittal?

The Guardian in the last week or so has shone a powerful spotlight on rape prosecutions in England and the now familiar cry has gone up that there are not enough convictions.  Unenthusiastic as I am about statistics generally I positively recoil from them in the context of sexual offences.  It is correct that you can count the number of allegations made to the police, you can count the number of charges approved by the Crown Prosecution Service, you can count the number of guilty pleas, you can count the number of jury acquittals and convictions.

However claims about the number of wrongful acquittals are just that.  The whole point of the trial process is to test whether a jury of 12 are sure of a defendant's guilt.  If juries are not sure they are supposed to acquit and, however imperfectly, that signifies that justice has been served.  That is understandably cold comfort for the complainant who has endured the stress and indignity of giving evidence under oath in public.  But it's the best process we have devised so far.

The general tenor of The Guardian's reporting is that the system is broken and something must be done to boost the conviction rate.  Rash is the commentator, however, who is prepared to say publicly what the 'correct' conviction rate should be.  A clear theme is that juries are still falling prey to the myths and stereotypes that cause them not to believe the accounts of complainants.  That opinion leads swiftly to the conclusion that trying rape cases should be taken away from the prejudiced public and placed in the hands of objective trained professionals.  Alternatively the burden of proof could be placed on the defendant to prove that consent was given.  Lastly the standard of proof could be reduced from sure of guilt to probably did it.

Juries are people and people get things wrong.  Objective trained professionals are also people and they also get things wrong.  Furthermore it is possible to be a trained professional and yet be utterly unobjective.  The difference is that in a jury of 12 bias and prejudice should be flushed out within group discussion.  I am also not persuaded that with the current burden and standard of proof that removing rape cases from juries would necessarily result in more convictions.

Of course the burden of proof could be reversed so that defendants would have to prove their innocence or the standard of proof diluted so the prosecution only had to make juries a bit suspicious.  The inescapable result of either of those changes would be the conviction of the innocent.  There are some for whom that is a price worth paying to get more rapists convicted.  I am not so sure.  A criminal justice system that is cavalier about whether those that are being brought to justice are in fact criminals is a system that works against social cohesion not in its favour.

I do however have a proposal for an improvement.  It is not a proposal designed to ensure more convictions, it is however a proposal to ensure that trials are fairer and more just.  Like many I have watched from afar Brett Kavanaugh's appearance before the Senate Judiciary Committee.  In this piece in Current Affairs the author has undertaken close textual analysis of the transcript of the proceeding to venture an opinion about the veracity of the nominee.  You may or may not disagree with his conclusions.

What I will say is that examining the words actually used by a witness enables a tribunal considering them to consider what was actually said.  That may not sound especially insightful or surprising but did you know that juries retire to deliberate without any transcripts of the evidence that they have heard? Instead barristers try to keep a note of the questions that they have asked and the answers that they have received.  I don't know if you've ever tried to pat your head and rub your stomach at the same time but it is child's play compared to trying to cross-examine a defendant in a rape case while keeping a verbatim note of his answers.

Of course the poor old/young judge is the one charged with keeping a note for reminding the jury of the evidence in the case.  Some judges can, surprisingly, almost type at verbatim speed which leads to a very (very) long summing up.  Other judges note only that evidence they regard as being important which can lead to a very (very) general review of the evidence.

Frankly both these approaches are absurd.  It is the 21st century and technology is supposed to be the salvation of us all but most especially within the criminal justice system.  How is it possible that juries do not retire with verbatim transcripts of the words actually used by witnesses in the witness  box in answer to the words actually used by the barristers questioning them?  If I am assessing somebody's account I want to read exactly the words they used because equivocation and deceit can turn on a comma.

Better tools lead to better outcomes and whether that leads to more convictions only time will tell.

Friday, 31 August 2018

The Children Act - A lesson for lawyers

Criminal lawyers deal sometimes with terrible cases involving devastated lives and distressing evidence.  However I always say the family lawyers have it worse.  The reason is that even the worst criminal case that ever happened involved a past event.  Every day that passes is a day further away from that event.  The majority of family law cases involve an event that is unfolding around the judge and the lawyers - a divorce, a child at risk of serious harm, a child gravely ill.  In divorce cases the involvement of the lawyers can sometimes be a fuel to the flames; aggravating not mitigating the event.

As the Charlie Gard case so prominently demonstrated family law cases occasionally involve judges making life or death decisions.  That places an almost unique strain on a human being.  The tragic reality is that the judge in Charlie Gard's case did not have life in his gift.  The somewhat false dilemma at the heart of The Children Act is that Mrs Justice Maye (Emma Thompson) does.  I say false dilemma because it would be an extraordinary judge that would allow a child's death to weigh on their conscience by concluding that respect for that child's conscience should eclipse respect for that child's life.

I am a legal latecomer to reviewing this film, which in parts veers close to melodrama, and I have no interest in commenting on whether court dress was rightly or wrongly being worn except to say that the silliness of wigs always seems magnified on screen and that's before a High Sheriff in full fig makes an appearance.  Despite the heroine of the piece being My Lady not My Lord and some efforts at diversity in the court scenes this film is an absolute vindication for those that believe the law is the preserve of the metropolitan liberal elite.  A posh white judge living in Dickensian gloaming plays the piano to operatic accompaniment in her downtime.  

One thing I will say for any student of the law is that the film exemplifies my belief that it is far more important to do work experience with a judge (marshalling) than it is with a barrister (mini-pupillage).  Watching Emma Thompson scythe through her cases dismissing advocates in front of her brought a grimace of recognition.  What some might call brisk others might call peremptory and, a foolish few, even bitchiness.  To paraphrase 1 Corinthians 13 When I was a barrister, I talked like a barrister, I thought like a barrister, I reasoned like a barrister.  When I became a judge I put the ways of barristers behind me.  Know your judge, know her instincts, know her thinking then you're persuading not provoking

What really interested me about this film though were two lessons learned by 'My Lady' of application to all lawyers and judges everywhere.  The first is a simple lesson to articulate but on occasion fantastically difficult to put into practice.  There is a line between the professional and the personal.  Sometimes it's as obvious as the Great Wall of China sometimes as indiscernible as a white thread on a marble floor.  End up on the wrong side of that line and catastrophic consequences can ensue for you but, even more dangerously, for your client also.

The second lesson is the great missed opportunity of the film.  There are no spoilers in revealing that Stanley Tucci plays the judge's unhappy husband nor that they have no children.  Indeed this provides the backdrop and context for the events that unfold in court.  This part of the film makes it absolutely essential viewing for families, partners and spouses of barristers and judges.  It reveals a domestic strain that plays out for me and almost every barrister I know that is not a child, husband or wife of a barrister.

On a really fundamental level your family do not care how serious, how taxing, how agonising your case is if it is taking you away from them.  In the film the judge is dealing with literally a matter of life or death but all her (intelligent, insightful, caring) husband knows is that it is yet another brick in the wall built between them over 20 years.  

It is the great irony of the film that this formidably intelligent woman who cares and thinks so deeply about families reveals herself to have thought and cared so little about her own.  Like a Michelin starred chef eating McDonalds at home.  She castigates her husband for his obviousness yet does not acknowledge how clearly he signposted the jeopardy her professional focus had brought into their marriage and their home.

In this respect the second lesson is actually the same as the first.  There is a line between the professional and the personal.  If lawyers allow their personal lives to be drowned by their professional obligations they should cry no tears when their nearest and dearest make for the nearest lifeboat.

I know all too well the wrinkled annoyance writ large on her face at her husband's complaining that she is giving her focus to something that is genuinely objectively important but there is a very big diary out there containing the dates of all the weddings, funerals, school plays and family holidays missed by barristers and judges because they were up to their elbows in a case.  It's sometimes said that life is what happens when you're busy making plans: for us lawyers life is often what happens when you're busy making submissions.

Friday, 24 August 2018

Privilege Part Two

Waitrose running out of hummus, your Uber rating taking a knock, that day's Pilates class being full are all classic first world problems.  But a quandary I wrestle with eclipses them all, namely wondering how much privilege I should seek to bestow on my child.  Admittedly this is not a question of Bill Gates telling his children they won't be inheriting his billions because he wants them to make their own way.  Although, interestingly, that has not stopped him from ensuring they have received the best possible education and a reassurance that, while they won't be billionaires, they will have a safety net that the average child could only dream of.

If you are not privileged you don't think twice about doing absolutely everything in your power to provide your child the maximum possible privilege, as much of a head start as you can muster for them.  In truth many privileged people don't think much about this either.  But the fact is that once you're fortunate enough to provide for your child's basic needs you have to make decisions about their more evolved needs.  Education is unquestionably chief among them.  The education you provide your child in your home is, universally, a matter for you as its parent whether you live in Hull or Honolulu.  Conferring privilege upon them in that regard is entirely contingent on how much time, energy and interest you take in cultivating their interests and developing them as a human being.

Some people are so financially disadvantaged that simply providing for their child's basic needs allows them no time for this domestic development.  Some people are so financially advantaged that they outsource what should be domestic development to outsiders and to institutions.  Either scenario is liable to produce a person lacking the benefit of a parent or parents who have been able or willing really to focus on that child and who that child might be.

Every single one of us is born with talents.  Some of those talents are highly marketable, a natural affinity for coding by way of example, some confer a negligible financial advantage, such as being really good at whistling.  Talent is innate but skills are learnt.  The privileged are remarkably adept at ensuring that their children become skilled in a marketable way irrespective of their talent.  Top jobs go to the privileged because the skills they require have been drummed into their occupants from a tender age.  If talent is not nurtured it will never blossom, like the seeds sown on stony ground in the parable, equally if sufficient skills are taught to the untalented they will bear a fruit of sorts like tomatoes forced in English greenhouses.

The privileged understand all of this implicitly.  It is why they spend so much money ensuring their children pass the right exams at the right schools to get into the right universities so they are at the front of the queue for the right jobs.  This is all done whether the talent is there or not.  The counterpoint to all this is that an unprivileged child may be blessed with all the necessary talent but, denied cultivation of the necessary skills, they will pass no exams, go to no university and not even know about the jobs.  Take a moment to imagine, for example, what the world would have lost if Shakespeare had never learnt how to write or Mozart how to read music.

Wanting the best for your child is not wrong.  Being able to give the best to your child is not wrong in the same way that it is not wrong to win the lottery.  However we don't need to look far to see lives ruined by huge payouts.  What you do with your privilege is what counts.  And privilege is not necessarily the same as wealth.  It has always been an odd feature of the British class system that it was possible to be privileged and yet not actually very well off.  Increasingly, however, money does now mean privilege and its lack denotes its absence.  While charity does begin at home when you concentrate privilege solely in your child you inflict a small concomitant harm on society.

The Criminal Bar is, unquestionably, a profession that requires talent but it also requires many skills.  For a majority of barristers gaining access to the Bar entailed some connection to privilege.  A huge resource of raw talent alone is unlikely to propel an aspirant through all the countless hoops that precede entry to the Inns of Court.  This is where those of us who have benefitted from privilege, thereby enjoying the privilege to practise, owe it to other people's children to provide a helping hand.

The Bar Council runs a mentoring service for students in Year 12 & Year 13.  There is no good reason not to volunteer for it.  The student I mentor is so brimful of enthusiasm and he knows that he will have to make the connections that for some of us were provided on a plate.  It costs me nothing but a small amount of time to be a resource and a guide.  The Kalisher Trust has for many years provided concrete financial help to embryonic criminal barristers but also undertakes outreach work teaching children how to construct an argument, conquering their fears of public speaking.  These are the sort of soft skills that the privately educated sometimes don't even realise were inculcated in them and therefore look askance when promising youngsters don't present with the polish of privilege.  Kalisher is always in need of funds so if you're cash rich and time poor why don't you support its work: (and yes that is me modelling a fetching pair of pink trousers).

I remember balking the first time I heard the expression 'check your privilege'.  As time has gone by I have realised that anyone who has been the beneficiary of privilege needs to undergo their own truth and reconciliation exercise.  It's not enough merely to check privilege we need to fully survey and delineate it because unless we understand how we have been advantaged it's highly unlikely we will be motivated to advantage others.  

Ultimately it goes without saying that I want the best for my child but only so that he can give the best of himself.

This is the second part of a post that I have published on both my legal blog Counsel of Perfection and also my parenting blog The Paternity Test because it touches on both my professional and personal interest.

Sunday, 19 August 2018

Privilege Part One

The Bar Council is running a successful social media campaign at the moment titled #IAmTheBar. Barristers from across the country are recounting the adversity they overcame, the long roads they travelled, the deterrents they fended off to be called to the Bar.  The tales make for inspiring reading and hopefully the young and not so young seeing them are persuaded that not all barristers are people like, er, me.

A procession from Eton to Oxford to the Inns of Court misses only a stint in the Guards and a safe seat to avoid giving me the institutional royal flush.  I am the Bar people expect because I am the Bar as it always was.  In fact, as the Bar Council's campaign correctly demonstrates, today barristers are a much more diverse bunch than people and the media give the profession credit for (at least on the publicly funded side).  This is thanks to a short-lived purple patch when Legal Aid was rightly widely available and rightly properly funded.  As the tide has gone out faster than the sea at Weston-super-Mare many commentators have predicted a raising of the drawbridge and a return to the privileged Bar of old.

In one important respect they are wrong.  And they are wrong because of the way in which privilege operates.  This blog is not about the funding of legal aid, I have written about it until I am blue in the face, and the Secret Barrister continues to do so to much more public and beneficial effect than I ever have.

We hear a lot from the privileged.  One of the biggest benefits of privilege is that it gives you the biggest stage.  You don't have to fight to be heard and you assume, by your privilege, that when you speak people will listen.  One topic that the privileged rarely talk about, however, is privilege.  When they do it is often, absurdly, to insist that they don't have it; like a child covered in spots claiming not have chicken pox.  You will no doubt remember the extraordinary claim that Benedict Cumberbatch had been 'held back' by his Harrow education.

I obviously can't speak for Harrovians but the thing about having been to Eton is that you just can't, with a straight face, deny your privilege.  It's like a marquess claiming to be middle class.  That isn't to say that some don't try.  If you live on privilege island you will only meet privileged people and that is a very comfortable place to live, it's surprisingly easy to pretend that there isn't the rest of the world out there.  For the moment you acknowledge your privilege you have to acknowledge the absence of privilege and that provokes some uncomfortable realisations.  Like how you got a bloody great big head start in life.  Like how maybe it wasn't just hard work and brains that got you into Oxbridge.  Like how maybe you weren't the best man (or woman) for the job: just the most advantaged.

And on the subject of women you don't get to be privileged only by going to Eton.  You just have to be a man, or white, or heterosexual, or live in Western Europe, or have a roof over your head.  Every single one of us has some privilege over the next worse off person and there are many, many worse off people.  However, because the conveyor belt of social mobility is only supposed to go in one direction, many of the privileged don't want to know about, still less care for, those less fortunate than them.  You might be in the 1% but unless you're in the 0.1% you're still a worker, still struggling, keeping it real because you only have a Range Rover not a Lear jet.

Have a think about who does the complaining when tiny incremental changes are suggested to reduce the number of trampolines given to privately educated men trying to reach the top jobs.  Quotas for women are unfair, say the men who have enjoyed a 100% quota, quite literally for centuries.  I don't know why they're complaining because they seem to have forgotten the first rule of Privilege Club which is that, like the Hotel California, you can check out any time you like but you can never leave. Privilege is not like your house keys or your passport; it's not something you can lose.  Where it is like your passport (at least until next March) is it enables you to go anywhere and do anything without the hassle of getting a visa, of obtaining permission.

I don't see privilege like an island I see it like a wall.  On the privileged side the sun is alway shining, there is always enough to eat, everybody knows everybody and absolutely nobody wants to be on the other side of the wall, many pretend there is no other side.  On the unprivileged side the weather is very changeable, sometimes there is food sometimes not, there are many strangers some of them hostile, most want very much to be on the other side of the wall and are abundantly aware of how extraordinarily difficult it is to scale.  Think The Wall in Game of Thrones and double it.

On the top of the wall there's an 'I'm Alright's Watch' keeping an eye on the masses but preserving privilege for the few.  From time to time they might dispense the occasional scholarship pour encourager les autres but like a bouncer at Studio 54, ensuring that only the right sort are let in.  Noblesse may sometimes oblige but never forget the divine ordination of the privileged child's favourite hymn: 

The rich man in his castle,
The poor man at his gate,
God made them high and lowly, 
And ordered their estate.

As a privileged person working in criminal law I ascend to the top of my side of the wall (there's a lift) and see what life is like for the unprivileged.  At the end of the day I go home and when I'm being my better self I reflect on my good fortune and wonder at how I can pass some of that privilege on.  When I'm being my worst self I worry about how I'm going to adhere to the second rule of Privilege Club, which is how I'm going to pass some of that privilege on - to my child.

And that rule is why commentators on the social mix of the Bar are mistaken.  Privilege begets privilege or it is repudiated.  It bears its unfair fruit when one generation passes on the leg up to the next generation.  If legal aid won't pay the school fees (and it won't) the privileged won't touch publicly funded work with a bargepole.  It does rather beg the question where the barristers of the future will come from if the unprivileged can't afford to get over the wall and the privileged are scared they might fall off it.

Next week in Part Two - What to do with your privilege? (hint: pass it on).

I am publishing this on both my legal blog Counsel of Perfection and also my parenting blog The Paternity Test because it touches on both my professional and personal interest.

Tuesday, 7 August 2018

Unduly Enlarging Scheme?

Child sexual abuse is an abhorrent crime. Filming or photographing child sexual abuse is an abhorrent crime. Viewing films or photographs of child sexual abuse is an abhorrent crime.  All of these crimes cause harm to children. Not all of these crimes are as common as each other. Nobody can know whether ten times more people view images of child sexual abuse than actually engage in child sexual abuse or whether it is a hundred times more. Whatever the figure, once an image is on the Internet it is there for all who choose to view and see it. And the ugly reality is that a great many people, the vast majority of them men, do choose to find and view these images. Vastly more than are ever arrested or come before a court.

As for all sexual offences the courts have clear guidelines to follow in sentencing these offenders.  The guidelines encompass three different types of offending in an ascending order of seriousness: possession; distribution; and production of images.  The guidelines also encompass three different types of image in descending order of seriousness: penetrative sexual activity; non-penetrative sexual activity; and other indecency.

At the lowest end of the guidelines, possssion of other indecent images, a medium level community order is recommended.  At the highest end of the guidelines, production of images of penetrative sexual activity, 9 years' imprisonment is recommended.  Even a non-lawyer would, I hope, accept that is a very wide range of sentencing disposals sufficient to achieve a just sentencing outcome for almost any kind of indecent images case.

Because people make mistakes, even judges, the criminal justice system allows appeals when sentences are too severe but also when they are too lenient.  However there is an important distinction.  Any sentence for any crime is susceptible to appeal (either to the Crown Court or the Court of Appeal) if the defendant feels the sentence is too severe.  Only a limited number of offences allow an appeal if it is felt a sentence is too lenient, and it is not the victim that brings the appeal, it is the Attorney General.

The Attorney General's Office sets out the procedure here:

A press release issued yesterday reveals that in 2017 the Attorney General referred 173 sentences to the Court of Appeal as being unduly lenient with the result that 137 offenders had their sentences increased:

This is against a backdrop of an ever increasing number of complaints from members of the public about sentences being too low.  Addressing every one of these complaints costs time and money.  These are both resources suffering drought like conditions within the criminal justice system. That being said it is only right that the public have a platform to challenge and query sentences.  Prosecutions are brought in the name of the Crown but if sentencing is not for the public then there can be no public confidence in sentencing.

Unfortunately public confidence in sentencing is a very sensitive topic for those that practise within the criminal justice system.  If social media and below the line commenting is believed there are those that won't be satisfied until the noose and transportation are back on the statute books.  Hot on their heels are the prison is a holiday camp brigade and the any sentence less than 40 years is unduly lenient legion.

There are some respects in which the public are right to feel conned by sentencing.  It is very difficult to explain or justify why it is that when a judge pronounces a prison sentence that the offender will not spend that period of time in prison.  In short it is a money saving fiddle. Prison is very, very expensive and in far too many cases it does nothing to prevent reoffending. More temeperate politicians know that very well but far too few of them are prepared to say so publicly.  

Instead the party line is that prison works and there will be plenty more of it for anyone the public particularly abhors and the public abhors nobody as much as a paedophile.  With that in mind it is difficult for practitioners to welcome the suggestion that the Unduly Lenient Scheme should be extended to encompass indecent images of children:

It is difficult to welcome for two reasons.  First I am not aware of a study that suggests that judges are habitually misapplying the sentencing guidelines for these cases.  If they are not then this would be a meaningless enlargement of the scheme beguiling the public into believing that they have agency in this arena and that suddenly a lot of people who weren't going to prison will be going to prison.  Secondly if it is felt necessary that the prison population should be increased by thousands then there are more politically direct ways of expressing that policy.  The cost and effect of such a policy should also be spelled out.    

Monday, 12 March 2018

Laughter is the best medicine (& the best defence)

Nobody loves a prosecutor.  I learnt this quite early in my career when friends and family would be fascinated to hear of trips to the cells or prison visits.  But tell them you were the Crown's representative in court and there was always notably less enthusiasm.  I put this down to the secret knowledge that lies in all hearts of our own wrongdoings.  Whether that's right or wrong it is no place for a minister of justice to seek a jury's love still less to have them laughing down the jury box.

I was thinking of this reading Matthew Scott's timely repost of his excellent survey of celebrity cross-examination; in particular that of the recently departed Sir Ken Dodd famously acquitted of tax fraud and defended by George Carman Q.C.  Interestingly Carman is probably the last barrister whose name is known by a majority of the public such is the diminished prominence of the Bar in public life and discourse.

In fairness prosecuting tax cases always carries with it the handicap of persuading a jury they should sympathise with the tax man over the defendant.  When the person being prosecuted is an adored comedian even a forensic genius would struggle and, of course, every comedian feasts on a straight man.  It's a dangerous business getting into a fight with a clown.

I have, thankfully, never prosecuted a celebrity or comedian.  I have however been involved in cases involving well known people and seen first hand what a distorting effect it can have on the whole process.  Separate to the circus of celebrity is charm and humour and when a defendant or their barrister is possessed of both getting the jury to focus on the evidence can be a real struggle.

One of the biggest problems prosecutors can encounter is when defendants are extremely attractive and there are plenty of studies showing that a defendant's attractiveness can make a real difference to the outcome of trials and even sentencing exercises.  It is known as the halo effect.

There is, until AI takes over the whole process, unfortunately not very much that can be done about this.  Any system that is overseen by humans is subject to the foibles, weaknesses and prejudices which define every one of us.  We are very used to hearing in the media of prejudice against certain groups within society.  We think very much less about prejudice in favour of certain groups.

It's something for all of us who practise advocacy to think about and while doing so perhaps we can spare a thought for the unloved prosecutors.

Thursday, 22 February 2018

Legal Aid - A Defence (again)

I am convinced it is not by chance that The Secret Barrister’s avatar is a bunny rabbit because only the Duracell Bunny or a close relative could blog as indefatigably as she does which leads to my second conviction namely that she must be a she.  I don’t know her identity but the sheer range of topics covered by her blog are, to my mind, conclusive evidence of a multi-tasker.  One thing she and I share as bloggers is a sense of Sisyphean despair at tackling flagrantly unacceptable misreporting of Legal Aid. 

In the dock today without a hint of a defence is the Daily Mirror.  So frequently has The Secret Barrister had to barbecue this particular canard that her response this time is a thread of tweets referring back to multiple previous explanations of why everything about the story is wrong and why its author and the newspaper’s editor should be hanging their heads in shame.  Exhibiting the masochistic tendency that inspired me to become a criminal barrister in the first place I will start rolling the rock up the hill – AGAIN.

John Worboys committed monstrous crimes.  It is very easy to understand on an emotional level why the expenditure of a single penny of public money on his behalf feels like a flagrant and outrageous waste when there are children living in poverty, hospital corridors full of trolleys and roads full of potholes.  I will try (although sometimes I wonder why) to explain on a rational level why this expenditure is necessary; something perhaps even to be proud of.

First no cash was given to Worboys.  Legal Aid expenditure on his case is money that has been spent on his case not on him.  In a nutshell public money was spent on a public good.

But, I hear you cry, he is monstrous, how am I, a member of the public, benefitting from this expenditure?  Well, imagine for a moment we lived in a society in which those accused of crimes received no Legal Aid at all.  We would not all die overnight as we might if Sizewell B was allowed to meltdown.  But within time the health of society would be imperilled by a very different kind of radiation namely injustice.  Rich wrongdoers would be unconcerned by this change, indeed they could even be beneficiaries of it.  However the innocent rest of us would be placed in real jeopardy.

To illustrate the wickedness of the Mirror’s headline consider an equivalent attack on the NHS.  There are some who argue that the fat should be disentitled to heart surgery, smokers to lung cancer treatment, alcoholics to liver transplants.  However it is possible to be a teetotal, vegan, athlete and require all of those treatments.  Are we really in favour of an NHS that only treats those whose lifestyles are entirely blameless and pure?

To say that you approve of Legal Aid for only the innocent and the deserving is entirely to misunderstand the purpose of Legal Aid and indeed the point of the Criminal Justice System which is to ensure the conviction of the guilty and the acquittal of the innocent.  Convicted criminals can be ordered to pay costs, obviously an effective sanction if they can afford to pay.  If they can’t afford to pay then, yes, we as a society have to foot the bill.  Nobody said civilisation would be free.

Of course it may be that I have wholly misunderstood the true meaning of the Mirror’s attack.  Perhaps they have no issue with the principle of Worboys being granted Legal Aid it is just the sum that is in issue.  After all £166,000 seems a mighty large amount to fritter away on lah-di-dah lawyers for one of society’s dregs.  Perhaps the Mirror would not have balked at £16,600 or maybe its limit would have been £1,660?  If it’s the figure that is causing the outrage come to my chambers and you can show me your workings for a fair and reasonable expenditure of Legal Aid taking account of the seriousness of the allegations, the quantities of evidence served, the extent of the unused material, the number of prison visits required, the ambit of defence evidence to be marshalled, the weeks or months spent in court, the cost of administering a solicitor’s office and a barrister’s chambers and the fact that lawyers need to make a living.  And that is not a living that includes holiday homes in the South of France and school fees that is a living to live on.
Without Legal Aid the blameless will get banged up and monsters will walk among us.  It’s as simple as that.

P.S. If you like this sort of thing but done better buy The Secret Barrister's book:

Tuesday, 16 January 2018

The Perfect Prosecution - A Recipe

Those of us that prosecute and defend often see prosecutions in nautical terms.  Can the Crown construct a watertight case? Can the defence torpedo the case and blast a hole below the waterline?

A much better analogy, in my humble opinion, is baking.  This is because as well as getting the ingredients right timing is everything.  Of course in baking there is nobody looking to sabotage your effort, that is unless you're a contestant on Bake Off.  But the point remains that if you find out at the last minute that one of your ingredients is wrong your Victoria Sponge will collapse in on itself.

Disclosure, a source of constant vexation and anxiety for criminal practitioners, has had a rare and necessary moment in the glare of public attention.  There were the Liam Allan and Isaac Itiary cases in December and now the  Samson Makele case.

All of these cases had a common feature; a failure at an early point in time to identify undermining messages in sex cases, a discovery that rendered the main ingredient in the case unreliable.  This has provoked a torrent of commentary in both the mainstream media and from the legal commentariat regarding fears about the integrity and fitness of the disclosure process.

I have a slightly different point to make.  I prosecute regularly and like any prosecutor perusing a new brief immediately turn my mind to the weaknesses in the case that the defence may or may not be alive to. Put another way have I got all the ingredients I need in the right order and at the right time to prevent a soggy bottom?

The test to be satisfied before any suspect can be charged is whether there is a realistic prospect of conviction.  In other words is a conviction more likely than not.  Lawyers making charging decisions can only do so on the basis of the evidence gathered by the police and put before them.  It is however often the case that the police are directed to gather more evidence before a final decision is made.

In any sex case where consent is raised as a defence either in the police interview under caution or because it is self-evident that such a defence will be raised a key issue will be what communication occurred between the parties before the alleged offence.  An equally key issue will be what communication occurred between them or between either of them and third parties after the alleged offence.

It seems to me that any prosecutor making a charging decision who has not been provided with that evidence in advance of making a decision runs a real risk of misapplying the test, of mixing the flour and milk before they have any eggs.  To my mind a proper disclosure issue is one that arises when a defendant raises an issue for the first time only after charge.  If the question was known before charge then that is not a disclosure issue it is a charging issue.

The time is long past for phone downloads and social media communications to be added to the list of essential ingredients for charging  decision in sex cases.