Harm Intended v Harm Caused - Sentencing Sexual Offending

 'Let the punishment fit the crime' is a maxim that doesn't take much explaining nor much justifying. We don't sever limbs in this country preferring instead the deprivation of liberty as a more bloodless way of protecting the public with the hope that offenders can be returned to the streets as useful members of society.

What a crime was worth in terms of porridge used very much to be at the discretion of the judge provided he (invariably was a he then) didn't go beyond the maximum sentence or fly in the face of gentle and sometimes not so gentle pointers provided by the big wigs in the Court of Appeal.

Since the advent of the Sentencing Council all that has changed and now anyone can go online and type the crime of their choice into https://www.sentencingcouncil.org.uk/crown-court/ and get a good sense of what the going rate is.

Because every case turns on its own facts there is still some latitude allowed to judges as to where within the guidelines cases should fall and there is always the discretion permitted to them to depart from the guidelines if they can satisfactorily rationalise a basis for doing so.

For most offences the key questions are what's the offender's culpability and what harm has he caused (again, more often than not, it's a he). The public, reasonably, gets very exercised about the harm side of the equation. A killing represents the ultimate and most irrevocable harm. After homicide, sexual offending is generally considered to involve the greatest infliction of harm. When it involves children that is especially so because a. children are more defenceless and b. the development of a child can be irreparably poisoned by sexual offending.

There are many, many sexual offences relating to children to encompass harm actually done to children and harm intended towards children. Before the Internet most child sexual offending related to harm actually done to a child with harm intended to children being a harder offence to detect and investigate.

Since the advent of the online world there have been two main types of offending relating to devices. The creation, acquisition and distribution of indecent images of children. Then there is communication with children for sexual purposes or as a prelude to contact sexual offending.

Indecent images of children fall into three categories for sentencing purposes with Category A images encompassing the most serious level of abuse (penetration and/or sadism). Real children, real abuse, real trauma. Possession of Category A images has a starting point of 1 year with a range of 26 weeks to 3 years in prison. What is significant, from a legal perspective, is that prison sentences up to 2 years can be suspended. What this means, in practice, is that very many men (again, usually men) caught with the most serious images of child sexual abuse do not go to prison, at least the first time they commit the offence.

A disturbing reality is quite how many men view images of child sexual abuse online, the police are only able to investigate and prosecute a fraction. If every offender received an immediate custodial sentence the prison population would be significantly increased. Obviously many judges will imprison a first time offender but, in my experience at least, many more will not.

Turning to the communication offences, communications either inciting sexual activity by children or in preparation for contacting offending unsurprisingly attract, in numerous cases, substantial prison sentences. Much turns on the age of the child and the man (I won't keep including this caveat), and the nature of the activity incited or intended. A 17 year old boy soliciting a topless photo from his 17 year old girlfriend is a crime (yes, even though the of consent is 16) but that will generally be treated much less seriously than offences relating to children under the age of 16, especially where the offender is in his 20s or above. Offences involving children under the age of 13 are treated very seriously because a child under the age of 13 is in law conclusively deemed to be unable to consent.

In the last 10 years there has been a massive proliferation of cases involving vigilante groups posing as children on social media platforms waiting for men to make contact and, if communications turn sexual, then those men will be confronted and the police informed. Often this is a consequence of the man in question making arrangements to meet the 'child' and upon apprehension they are sometimes found with condoms, sex toys, toys and hotel bookings.

In such cases there can be no doubt whatsoever that, in the mind of the offender at least, he was anticipating a meeting with a real child for the purpose of real sexual abuse. The Court of Appeal has made plain (R v Privett (2020) EWCA Crim 557) over the last 18 months that such offenders should be sentenced by reference to the harm intended and not without a focus on the fact that there was no child to be harmed.

However, sometimes the offender makes no arrangement to meet and the vigilantes have to establish who the man is and where he lives or works and they will come to him. Depending on the nature and content of the communications these men too can be in jeopardy of substantial prison sentences. Such cases often attract media attention and the vigilante groups are generally anxious to publicise their activities and case outcomes. Many of the offences are susceptible to the Attorney General's Unduly Lenient Scheme whereby sentences can be referred to the Court of Appeal if considered to be much more lenient than they should be.

The men who engage in these communications are not deserving of much if any sympathy but, in my view, a distinction can and should be drawn between offenders who make arrangements to meet and betray, in the clearest terms, their intention to move offending offline and offenders whose online activity is definitely inappropriate and demands careful judicial examination and rehabilitative intervention but which is more a reflection of psychological immaturity or inadequacy rather than a determined intention to harm an actual child.

At any rate it's a curious feature of current sentencing norms that often men with images of actual children being harmed don't go to prison but most men who communicate with fictitious children do.

Dismissed for want of prosecution

 

A word from 2020 that quickly set everyone's teeth on edge was unprecedented. So many experiences were unique and never before experienced. Much has been written about the unprecedented experiences of the Criminal Justice System during this time and though the novelty of appearing before a Crown Court judge in my living room has long worn off I am no less grateful that in one small way there was an improvement in our way of operating. Brutal irony it is then that this tiny silver lining is in many places at risk of tarnish by an insistence upon attendance for wholly administrative hearings.

As I'm sure any proper lawyer would I'd swap that consolation prize in an instant for an overnight eradication of the backlog. But that isn't going to happen and day by day the pile of unresolved Crown Court trials grows ever bigger. The government recently announced that a cap on sitting days would be removed but that will in no way help if there aren't the judges to try the cases and the lawyers to litigate them.

Justice delayed is justice denied is by now an exhausted cliche rather than any kind of meaningful cautionary maxim. All justice these days is delayed, by months and even years. We need to realise that just as climate change imperils all of humanity there are changes affecting the Criminal Justice System which may very well lead to a cataclysmic updating of that maxim: justice destroyed is justice denied.

If I play Cassandra for a moment I would like you to imagine the following situations. You are gravely ill with cancer requiring immediate surgery. You turn up to hospital for your much needed operation. There are nurses there, the operating theatre is got ready. You wait. Eventually someone comes to find you, the operation won't go ahead that day, there is no surgeon available.

You have family in Australia. You book expensive flights for your family to fly there for Christmas, you plan and you book time off work. You turn up at the airport. You board the plane. You wait. Eventually a flight attendant announces that everyone will have to go home, there is no pilot available that day.

If these things happened to you would be horrified. You would want a refund, compensation, you would be complaining to your M.P., writing to The Times. Now let me tell you that for the last few weeks there have been increasing instances of trials being listed in the Crown Court and no barrister has turned up to prosecute them. I've even seen an example of there being no barrister available to defend one.

This is something that never, EVER happened before. In the magistrates' court if a prosecutor doesn't turn up the defendant can ask for the case to be dismissed. In the Crown Court, a courtroom, a judge and a jury will all have been allocated for the trial and like the start of a match at Wimbledon nothing can happen if one of the players doesn't appear on the court. Unlike Wimbledon there is no bye, another date has to be found and the disrupted lives of the defendant and witnesses are exposed to yet further disruption.

You won't have seen this on the news, you're unlikely to have read about it in the newspapers and you sure as hell won't hear the government talking about it, not when they can noisily announce a new crime of pet theft because the offence of theft theft apparently wasn't good enough.

But this new and, dare I say it, unprecedented phenomenon is profoundly troubling and augurs very ill for the future of our Criminal Justice System. For no barrister to turn up to a trial the allocated barrister has to be unavoidably unavailable. These days that is generally because they are inextricably involved in another case that has over run due to the delays that are bedevilling most trials. But is also has to mean that NOT ONE other prosecuting barrister is available to pick up the case. There are reports of scores of barristers' chambers whole circuits away from a particular court being asked if they have anyone that can accept a returned trial.

In a nutshell there are too many cases and not enough barristers. And yet just a few years ago there were too many barristers and not enough work. The Criminal Bar is not growing. Although it accepts newcomers every year it loses practitioners too. Getting going in the first 5 years after call is harder than ever. New barristers arrive in chambers with levels of debt that would make more senior members of the profession faint. If that debt can't be serviced, let alone reduced, market forces will prevail. Chambers are very public when they take a barrister on and very private when one heads for the exit.

A profession that can not renew itself sustainably will die. When that profession is responsible for administering the Criminal Justice System then justice will die. A time will come when your operation can't go ahead not because the surgeon didn't turn up that day but because there are no surgeons any more with the necessary skill and experience to operate.

You can't train an Old Bailey murder prosecutor in 6 months, you can't even train them in 6 years. Undertaking the most serious and sensitive criminal work is a lifetime's work. If every new barrister bails out due to financial pressure after 5 years where will we be in 15?

Masks & Armour - Finding Your Feet

  

It's that time of year when old hands wish the fledglings well and regale them with tales of their own puking terror and early days train wrecks. There are few Supreme Court briefs as anxiously prepared as that first ever trial in the magistrates' court. If you're lucky you'll get an old lag who's been around the block enough times to make sure you don't go completely off piste.

I invariably, in no way jokingly, give the same advice: always, ALWAYS have a pee before going into court. Having to dash out of your own wedding to the loo would be more embarrassing than having to do so from court, but only just.

As the days become weeks and the weeks become months you start to find you don't need to stay up until 2 in the morning prepping an agreed bail variation. Hell, you might even find you start enjoying it. Before you know it you will begin to feel like a proper barrister. Watch out!

Here is where I will give your pristine and immaculate gown a little avuncular tug. Not to give you my top tips for advocacy. I only really have one: no counsel was ever criticised for being too brief. But to give you a kindly warning about what the Bar can do to you if you don't take care.

When your business is other people's business and, in particular, their worst business it takes a toll. It takes a professional toll and it takes a personal toll. Youthful zeal, energy and idealism means that you might not notice this at first. But in time you will and without wishing to foist a world weary cynicism on you it is important not to be taken by surprise when it does.

To succeed healthily at the Bar you will need that flimsy piece of black fabric to armour you like steel when the chips are down. Angry clients and angrier judges have the potential to really knock the stuffing out of you. That's before you have to fend off opponents looking to ambush you in the robing room.

In a similar way when a witness devastates your case responding to that careless question too many or the jury's verdict makes a mockery of your months of toil your face must wear a mask of impassivity. You will need to learn to conceal your thoughts and feelings in court. Some never quite manage this and betray their lack of professionalism in ill temper and churlish gurning that makes plain their contempt for the tribunal or the witness.

Practice at the Criminal Bar is a constant lesson in the subtle differences between empathy and sympathy and, on occasion, the calamitous consequences of confusing the two. If you are completely indifferent to the plight of the defendant or the witness that is not professional reserve it is being a psychopath. Conversely if you make your client's pain your own you will lose objectivity and diminish precisely the distance they need from their advocate.

When you have learned to put on your armour make sure you do not forget to take it off; especially when you go home. There is no full life lived without vulnerability and what confers essential protection in courtroom combat can prove to be an impenetrable barrier in personal relationships. Likewise, do not let your courtroom mask, so much more useful than your wig, become your face.

It is really important to decompress, like divers ascending with care to avoid the bends. Those cutting their teeth with you down the mags will be a lifeline in the years to come, treasure them and nurture those friendships. They 'get it', you may find your family does not.

But most of all enjoy yourself. Without enjoyment the Bar becomes just a job and justice is too important an undertaking for that.

Closing the door on rape cases - Is excluding the public the answer?

This article reports that prosecutors are to start asking complainants in rape trials if giving evidence in a closed court is something that would help them give evidence. It is reported that the purpose of this is to drive up conviction rates. 

As all lawyers know and, I hope much of the public too, there are a raft of special measures designed to try and make giving evidence easier for victims of crime. Advocates can remove court dress, the witness can give evidence behind a screen or via a live link from another room in the court building or another building all together.

Recently there has been a national rollout of something that has been piloted for some time at a few courts and that is pre-recorded cross-examination. That means that many victims of sexual offences will be video interviewed by the police and then undergo video cross-examination many months before their case goes before a jury.

If pre-recorded cross-examination becomes the default the days of rape victims giving evidence in a court room in front of a jury may be over. There is perhaps some cause for content there but there is also cause for concern. All barristers that specialise in sexual offences know that the immediacy of victim testimony from the witness box will always be more effective than watching a recording on a screen.

Something that I still do not know the answer to, and I practise in these cases, is how judges are supposed to deal with notes from the jury containing questions that they want put to the victim if the victim is not participating in the trial process as a live witness. The whole point of pre-recorded cross-examination is to minimise distress to victims caused by delay awaiting the start of the trial. This is rendered completely ineffective if the victim has to deal with a jury question that arises on the hoof once the trial is underway.

In any event shutting the court room door to the public seems, in light of what serious sexual offences within the criminal justice system really require, a negligible benefit to victims coming at the expense of open justice. Indeed in my experience the public gallery is usually deserted with many of the catastrophic problems in the criminal justice system going completely unnoticed precisely because the public are not seeing what is happening and how it's getting worse.

That said I do not doubt that the court being a public arena is, and naturally is, a significant worry to many victims. That is what the range of special measures routinely deployed are for. It may be that there are some victims for whom giving evidence by live link does not suffice to allay their anxieties knowing that family, friends, supporters or just random members of the public are watching the evidence in the public gallery. That being so cavilling at a reminder that judges have powers to address those concerns may seem retrograde but I am concerned that this is a sticking plaster when the patient is suffering mortal wounds. 

The fact of the matter is that sexual offences are difficult, time consuming to investigate and deliver high emotional and life consequences. They require and deserve the best police, the best prosecutors and the best advocates.

Being best requires training, skill and experience. The combination of those three factors creates expertise. What rape cases absolutely do not need are amateurs, however enthusiastic, and newcomers, however willing. Over the last 10 years police numbers have been devastated and the CPS budget cut to the bone and this has coincided with rape cases becoming evidentially vastly more complicated. If you lose one good officer or one good lawyer the team takes a hit but there comes a point when too many are lost that institutional knowledge and awareness goes too and that is not retrieved by one good hire or a recruitment drive.

Shutting the door is not the answer, opening the purse strings is.