Tuesday, 16 July 2019

Juries abjured - Why MPs should press pause before pressing tweet


When you start out as a barrister it strangely takes a very long time to learn to speak normally in court. Very experienced and able barristers are able to conduct themselves as if in conversation. Newcomers and youngsters are most prone to falling prey to courtspeak, ten words when one would do, four syllables when one would suffice. Young or old, however, all barristers know that their words in court count and sometimes those words have to be chosen with absolute care. Mercifully, outside court, that pressure of scrutiny is lifted and barristers can speak more freely. However even allowing for that relative freedom few in number are the barristers that are prepared to comment on whether a verdict was right or wrong.

MPs bear the burden of having their spoken words weighed in every context. Of course speeches in the chamber usually bear the most significance but any chance remark can be seized upon and the MP called upon to explain themselves.

Lucy Powell, the Labour MP for Manchester Central has drawn praise and censure for commenting on Twitter in the wake of the acquittal of two boys tried for the murder of Yousef Makki in Cheshire. She tweeted: 

'You do have to ask if these defendants were black, at state school and from, say, Moss Side whether they would have been acquitted.' 

This tweet was picked up and reported by the Daily Mail prompting a flurry of commentary culminating in Ms Powell doubling down on her remark:

‘I stand by my comments on this. My point is wider: (not as judge & jury in this one) black, poor, young men - as is well-evidenced - are much more likely to get life-sentences for a peripheral, if any, role in a killing. These were acquitted.’

As far as I know Ms Powell did not attend any part of the trial. She certainly was not privy to the jury’s deliberations and therefore any comment she has made on the case will have been predicated on what she has heard and read about it.

There was a time when murder trials were reported almost verbatim in newspapers and readers could consider themselves almost as well acquainted with the evidence and submissions of counsel as the jurors. Those days are long, long gone. What gets reported today is a tiny, tiny fraction of what is said in court and in the absence of cameras only those in court get to see what is shown and how things are said.

Ms Powell’s original tweet was plainly a rhetorical question and it is clear what answer she would give. But why? How could she possibly know the answer to that question without hearing the evidence? How does she even know the ethnicity of the defendants given that they are entitled to anonymity as youths?

She assumes a great deal in her remark and most particularly assumes that the jury did not heed the judge’s directions in summing up and did not weigh carefully the evidence in determining whether they were sure of the defendants’ guilt. But maybe it’s not this particular jury’s objectivity she impugns but that of other juries. Which other juries? Which other cases?

Ms Powell has been quick to point to research and findings concerning potential institutional racial bias within the criminal justice system. There is an extremely important discussion to be had on this topic which is well served by those that have carefully researched the position. Nobody is served by a cavalier analysis of a single case where the author can’t know anything of the evidence that was called.

You can fight prejudice or inflame it by appearing to fight it. All those that work within the criminal justice system should welcome discussion and challenge but when it comes to the verdict to be reached in a particular trial there is a reason we entrust that task to a jury sitting in court not MPs who should know better.


Wednesday, 10 July 2019

Victim Personal Statements - The ins and outs

Marie Rimmer MP is in the news following criticism by her of edits made to a victim personal statement during the sentencing of a man sentenced to imprisonment for causing the death of a 4 year old girl by dangerous driving: https://www.bbc.co.uk/news/uk-england-merseyside-48915189. The victim personal statement has not been published, as far as I am aware, nor those parts that were excluded from the sentencing process.

Speaking in a debate in Westminster Hall Ms Rimmer criticised the fact that what she referred to as the victim impact statement was not read out in full apparently following application by the defendant's barrister that certain passages would be 'too upsetting' for the defendant. As always when commenting on a case without knowledge of the full facts a degree of circumspection must be applied in venturing opinions. The debate was triggered following a petition by the parents of Violet-Grace Youens. Ms Rimmer spoke in the debate which was held in response to the petition calling for mandatory life sentences with a tariff of 15 years in death by dangerous driving cases with consecutive sentences where more than one life was lost.

While one can wholly understand what motivates a campaign like this namely a hope that the severest sentence will cause drivers to think twice before taking risks that might result in death there are a number of reasons why mandatory life sentences are not appropriate for these offences. The chief reason is that the intentional causing of death (murder) does carry an automatic life sentence. If death or really serious injury was intended by the defendant then that would be the appropriate charge.

Driving offences focus on the quality of the driving. Sometimes defendants deliberately (as seems to be the case here) drive extremely dangerously where the risk of causing death is extremely high. Plainly a very severe sentence in those circumstances would be justified and it seems likely in the near future that the maximum (although not mandatory) sentence for death by dangerous driving will be increased to life imprisonment. However death can also be caused by momentary lapses of attention of the sort that every driver every day might be guilty of. Automatic life imprisonment for someone who has driven blamelessly for years, who might have the highest possible character in terms of public service and who is wracked by remorse does not, to me, seem to accord with some basic principles underpinning society's approach to sentencing.

My main topic of interest here though is the issue of Victim Personal Statements (VPS). In reporting of this case and colloquially these are often referred to as victim impact statements but there is a subtle but potentially important distinction in the official nomenclature: https://www.gov.uk/government/publications/victim-personal-statement

Victims of crime can choose whether to read these statements themselves at sentencing or have the prosecution barrister do so on their behalf. They are not produced in every case. They are often written before the trial has even happened. Sometimes a statement is made very early in the police investigation and an updated statement is made months later following a conviction. Occasionally the views of the victim can change markedly between those two statements.

In my opinion VPSs are important in a criminal justice system where victims can feel that they have very little voice. Judges should know, as should the public by reporting, what real life impacts are caused by serious cases. It is easy to make assumptions about how a particular crime may have affected a victim or bereaved person. There should be no room for assumptions in an evidence based criminal justice system.

However it is important that victims and society at large understand that judges when sentencing have to following statutory and common law authority. If a VPS calls for an offender to be locked up with the key thrown away the judge is not obliged to act upon that demand. Similarly, as sometimes happens, if a VPS calls upon a judge to show a defendant exceptional mercy and avoid imprisonment that should not be and is not determinative of the sentencing outcome.

Victims are entitled to write whatever they like in a VPS. That does not mean they are entitled to have anything and everything written in the statement read out in court. By way of extreme example if the VPS contains abusive or threatening language it would be absurd if the criminal justice system required judges to allow what may amount to a criminal offence to be committed in court in front of them.

Edits are regularly made to VPSs, what is important is that should only happen for proper reasons. Sparing the defendant's blushes or feelings is, in my opinion, very unlikely to be a proper reason. Inflaming what is in some cases a very highly charged sentencing hearing on the other hand might be. Reasons should be given and, insofar as it is possible, reasons should be understood.

Flexibility and discretion not rigidity and circumscription are what best serve justice and  best ensure that justice serves us.

Monday, 29 April 2019

The Truth Laid Bare - Mobile Phones and Sexual Offences

When something bad happens between two people in a locked room only those two people can ever know for sure what happened. That is the central, simple and fiendish problem that bedevils the vast majority of sex cases.  It is a problem that weighs heavily on every single person and agency involved in the handling of sex crime in the criminal justice system.

Being falsely accused of a sex crime and, still more terrifyingly, convicted of one means life ruination for a defendant. Being accused of lying about being a victim of sex crime is likely to be surpassed in trauma only by the actual assault and could even, in some circumstances, be more traumatising. The trial process is the imperfect but nonetheless the best system we have devised for determining how to determine fairly such allegations.

It is a fine balance and the burden and standard of proof is the safeguard against wrongful convictions. Victims and campaigners enquire what the safeguard is against wrongful acquittals and theirs is not an illegitimate enquiry. A great deal has been done in the last 20 years to try and prevent wrongful acquittals achieved by irrelevant or prejudicial attacks on the character of complainants. Contrary to some very misleading reports in the media defence barristers are not allowed to trawl through the sexual history of complainants in a muck-raking exercise.

But, because the vast majority of sex cases depend on a jury's assessment of the credibility of the person making the allegation and the credibility of person defending the allegation material which bears on credibility must be relevant and must be seized.

And so to mobile phones. It won't surprise you to hear that defendants have no power to stop police seizing and download the contents of their mobile phones. Images and communications that assist the prosecution case will be served as evidence in the case. Images and communications that assist the defence case will be disclosed to the defence.

When a complainant makes a police complaint of a sexual offence her (and it may of course be his) mobile phone is not necessarily seized or examined as a matter of course. If it is not seized or examined, however, and is subsequently lost, destroyed, sold or interacted with so that its contents are edited or deleted that can create a serious problem.

The problem is that if the defendant is charged he (and it may of course be she) may request disclosure of content from that phone.  In some circumstances a defendant may know precisely what the content is on a complainant's phone that would assist his case. For example, if messages have passed between the parties the defendant can request revelation of those messages.

However in some circumstances the defendant may not know what there is on the complainant's phone that might assist but has cause to believe that there may be content that might assist. For example the complainant may have texted/WhatsApped/Snapchatted/Facebook messaged/Twitter Direct messaged/emailed a friend after a sexual encounter in such a way that makes it plain that consensual sexual activity took place. The defendant won't know about that exchange unless the police and prosecutors look for it, find it and reveal it.

A major difficulty is the sheer profusion of messaging platform and apps contained in almost all phones. If the police do not have the phone then its contents can't be checked and at any trial that can present a problem for the defence and the prosecution also.

What the disclosure laws do not allow are fishing expeditions.  Therefore a defendant is not entitled to demand a wholesale revelation of the contents of a complainant's mobile phone. No proper prosecutor or judge should allow such a thing.  However a defendant is perfectly entitled to ask whether there has been a review of communications, images and social media activity that undermines the prosecution case.  If there has not then such a review should be pursued by the police and here we come to agreement from the complainant and the consequences of it being withheld.

We also come to money and training. Downloading mobile phones is not straightforward. The quantity of information they contain is mind-boggling, transferring that information from police to prosecution to defence is complicated. The vast bulk of that information is likely to have no possible bearing or relevance on an investigation and prosecution of a sexual offence. But some of it might. That requires police that know what the are doing and have the time and resources to do it, it requires prosecutors that know what they are doing and have the time and resources to do it and it requires defence lawyers that know what they are doing and having the time and resources to do it.

It also requires the complainant's consent. If a complainant has intimate photos on her phone that are unrelated to an allegation of sexual assault then they should not be admissible in a trial. If a complainant has social media activity or dating app activity on her phone that are unrelated to an allegation of sexual assault they should not be admissible. The stark reality, however, is that admissibility of that material is a matter for the criminal justice process and not the wishes of the complainant.

There are many aspects of making an allegation of a sexual offence that are capable of being intrusive and traumatic. Examination in a Sexual Assault Referral Centre (SARC) is a very intimate process the results of which are made available as a matter of course to defence lawyers. As criminal justice professionals we can not pretend to victims that the simple making of an allegation to the police of a wounding to their bodily integrity is the end of the matter. On the contrary it is only the beginning and it always requires proper investigation.

It is however incumbent upon all involved in the investigation and prosecution of these allegations to explain as sensitively and carefully as they can why the intrusion is necessary and justified and that the minimum amount of intrusion necessary takes place. Aggrieved voices criticising the current system are quick to point out that victims can feel that they are the ones on trial. They are not. But the credibility of their allegations are and evidence that bears on credibility should always be discovered and always be made available.


Tuesday, 23 April 2019

Pay Prosecutors Properly - Justice Demands It

When was the last time you heard a prosecution barrister speak in public? If you're struggling to recall a time, don't worry, they almost never do. A notable exception to this is the BBC's 'The Prosecutors' which is a documentary series following the work of CPS lawyers and, in a few cases,  the barristers that prosecute for them.

In the public mind English and American criminal justice are essentially one and the same thing hence English lawyers decrying the presence of gavels in English media (we absolutely don't use them) and reference to witnesses taking the stand (always called the witness box). One ubiquitous feature of American criminal cases is the running commentary and ready interaction with the media provided by District Attorneys. This does not happen here.

Occasionally in very high profile cases a CPS lawyer may make a media appearance to announce that charges have been brought before solemnly reminding viewers that the defendant is entitled to a fair trial. There will then be an embargo on talking to the press until either there is a conviction when the same lawyer will announce that justice has been served or there is an acquittal and a terse announcement made that the jury's verdict is respected. These media appearances are carefully prepared or even scripted and focus on the facts and absolutely do not function as commentary or an opportunity for opinion.

You will never, ever hear from the barrister that actually prosecuted the trial in court. There are a number of reasons for this:

1. The vast majority of prosecution barristers are independent, self-employed lawyers that belong to a chambers. They are not employed lawyers of the CPS. The CPS does employ advocates but they are comparatively few in number and when they prosecute in court there is almost always a reviewing lawyer responsible for progressing the case but not presenting it in court. Barristers like me act as agents or hired guns. It therefore stands to reason that when the media are spoken to it would be by an employee of the state's prosecution agency and not by an agent.

2. Another reason why you never hear from prosecution barristers is that most of them take their self-defined role as ministers of justice very seriously. This slightly precious concept is encapsulated in the maxim: the Crown suffers no losses and wins no victories. In other words when you prosecute you're not in it to win it you are there to ensure that justice is achieved and if that results in an acquittal then you have done your job. There is a concern on the part of many that engaging with the prurient interest of the media in some way taints justice with a result that is at best unseemly and at worst puts convictions in jeopardy.

3. There is also a clear understanding that, as a prosecution barrister, it is what is said and done in court that counts. You learn early on in pupillage never to express an opinion in court, it is why barristers should always say 'I submit' not 'I think'. Anyone who prosecutes regularly at a reasonable level of seniority can expect to see their name in the papers, often misspelled, especially if the case involves a celebrity or a scandal but when the judge rises the shutters come down with the journalists.

This post is no plea for prosecutors on primetime but it is a cautionary note. Just because you don't see prosecution barristers and just because you don't hear them doesn't mean they aren't there doing a very serious and vital job. Unfortunately the importance of that job is not reflected in the pay. If you have been reading this and thinking it weird that the CPS uses outsiders to prosecute the majority of its cases you would be right to think that, but there is one simple reason: money.

When I am sick the CPS does not pay me. When I am on holiday the CPS does not pay me. When I am caring for my child the CPS does not pay me. When I need training the CPS does not pay. When I need to buy law books the CPS does not pay. When I need a laptop with which to present evidence at trial the CPS does not pay. When I need to buy a replacement wig (!) the CPS does not pay. When (if) I retire the CPS will not pay.

If I screw up the CPS can stop instructing me tomorrow. If I annoy the CPS can stop instructing me tomorrow. If I embarrass the CPS can stop instructing me tomorrow. In short what the CPS loses by not employing me it gains in savings and flexibility.

It won't surprise you to hear that prosecution barristers are not, in the main, a radical and militant bunch. Accordingly they have tolerated an unacceptable situation in which fees have been frozen for many years and a significant amount of work goes unpaid. The Criminal Bar Association has sent a list of its most immediately pressing demands to the CPS and a review of fees for prosecution barristers is underway. It must result in meaningful improvements in rates of pay.

The new DPP Max Hill QC is a highly distinguished and accomplished prosecution barrister himself who as a former chair of the CBA is acutely aware of the Bar's discontent over remuneration. Obviously the CPS wants and will demand value for money but when people are not paid properly quality suffers and justice is imperilled. In the hardest and most serious cases the CPS must instruct the most able barristers not just the ones prepared to work for the money offered.

Quality costs but when murderers and rapists might be roaming the streets it's a price worth paying.