Taking the temperature - Cab ranks and the climate

If I had the time or the inclination I would quite like to write a radio play about Edwardian advocates returning from a long day in court prosecuting suffragettes and sitting down to dinner with their wives. Those conversations must have been fascinating. I imagine three types of wife. The first patting her husband on her back while fetching him a tumbler of whisky. The second saying nothing but privately seething. And the third I see as a kind of Mrs Banks loudly rooting for the defendants over the lamb chops. I say wives because the first woman barrister was not called until 1922, 6 years before the vote was extended to all women. I wonder whether any briefs were quietly declined. 

It may seem astonishing in 100 years time, when London may be under water and the climate migrations are measured in the millions, that there was a time that we prosecuted and imprisoned those who sought in desperation to compel radical preventative action, however annoyingly, vexatiously and illegally. It is not given to any of us to know the future but for every climate protester prosecuted and imprisoned there is a police officer arresting them, a lawyer prosecuting them and a judge sending them to prison. They also have friends, families, loved ones and children. They watch the news, read books, see the temperatures too. 

They are also all bound to apply the law as it is, as it is now, not in the future, and as it is now without application of private moral exceptions. The CPS does not force barristers to prosecute, on the contrary it requires those wishing to do so to jump through many hoops before permitting them to do so. But once on their lists if you’re offered an instruction you’re expected to take it. 

Barristers in criminal practice are not much given, in reality, to worrying much about the Cab Rank Rule. There are many who, as a matter of principle, refuse to prosecute. Some rarely if ever defend. Some avoid instructions in sex cases. Most of them are far too worried about making their next mortgage payment or tax bill. The news, therefore, that a number of lawyers were signing up to an undertaking to refuse to prosecute climate protesters was greeted with curiosity and some confusion among many criminal barristers. 

Who was it going to be? Grade 1 prosecutors, or Grade 4, or perhaps a selection from all levels. Or, as it transpired, not a single person that I’m aware of ever having prosecuted a case in the criminal courts. The Criminal Justice System is too important and too central to the functioning of society for those that practice within it preciously to declare ‘Nothing about us without us’. Likewise, the Millennial slap-down ‘Stay in your lane’ is high-handed and unbecoming. Criminal practice and policy is there to be debated by all; even barristers. 

But there’s a good reason why most criminal barristers think long and hard before making public comment, still less formal declarations, about traditional chancery cases, charterparties or abstruse points of patent law. I’m always happy to engage with fellow members of the ‘One Bar’ as the Bar Council likes to call us whether they’re on £2 mill a year or £20k. But I won’t mind admitting that if they want to weigh in on matters criminal they might want to help us point out that it is taking years for rape cases to come to trial and many criminal courts are literally falling apart. 

It's also worth reflecting why people protest. They want themselves and their cause to be noticed and nothing gets you noticed quicker than getting banged up.

Porridge off the menu?

Nothing new under the sun. You practise in criminal law long enough you find that what got abandoned 5 to 10 years ago as being hopelessly outdated is suddenly the great innovation. For example the foundation of the Crown Prosecution Service was all about putting prosecuting on a statutory footing thus creating a clear demarcation between the police as investigators and Service lawyers as prosecutors. And yet it was recently suggested (by some police officers unsurprisingly) that a potential solution to the backlog would be returning charging powers to the police, at least for some offences. Not a good idea in my opinion but also not the theme of this blog. 

Instead the theme of this blog is the backlog and is an evolution of my last post which is that if a solution to the backlog is to be found it is in sentencing policy. It has today quietly been revealed that magistrates’ sentencing powers are being reduced from 12 months imprisonment to 6 months. Which was the height of their powers for all the time I’ve ever been in practice until only a year ago. It was made plain by barristers individually and collectively in the form of the Criminal Bar Association that doubling magistrates’ sentencing powers was a very bad idea and for very good reasons.

A huge amount of the ‘churn’ in the criminal justice system comes about because of low lever offending and short prison sentences. Short prison sentences provide almost no rehabilitative prospects due to the lack of time for any meaningful programmes, education or training. Consequently offenders get banged up for a short unpleasant stay where they get to associate with other criminals and criminality on the inside. Then they get out with their personal relationships fragmented, their family ties frayed, their employment prospects diminished and their likelihood of offending almost certainly increased. 

This costs the taxpayer exorbitant sums of money and means that prison cells are occupied by a vast number of ‘see you next time’ offenders who pose a nuisance to society but not necessarily the threat of serious harm and whose potential to be encouraged, cajoled and educated away from a life of crime is never explored or given up on at the first sign of a setback. 

In ‘normal’ times that is pointless and expensive but it’s tolerated. In the midst of a stuffed prisons crisis this poses immense systemic difficulties. When police cells are being repurposed to house prisoners we have a problem and it’s a problem that requires a solution. And, as I have argued before, it requires a sentencing solution. 

Returning magistrates’ sentencing powers to the status quo ante collapse of the whole crumbling edifice is a small step in the right direction. But it does not connote vision or boldness of the kind that is required to keep HMS Criminal Justice afloat and the HMPs manageably occupied. 

One way of achieving that would be not to halve magistrates’ sentencing powers but to remove them entirely. Sentencing is a difficult part of the criminal justice process. It is part that seasoned lawyers of decades of experience get wrong even with the assistance of Sentencing Guidelines. It might reasonably be asked why we confer the power on enthusiastic amateurs to deprive offenders of their liberty. 

After all it is not English criminal justice practice to give juries a say in the sentencing process so why is this power conferred on the lay magistracy? It would be perfectly possible to reserve powers of imprisonment to District Judge carrying out a specific sentencing role in the magistrates’ court. Or to have a system whereby any offending convicted in the magistrates’ court in jeopardy of immediate imprisonment is committed for sentence to the Crown Court, a court of record in which only professional lawyers are involved in the sentencing process. 

Some might argue that this would be bureaucratic and procedurally burdensome. But would it really be more burdensome to society than the cost of incarcerating thousand of prisoners on short prison sentences when in reality those sentences provide no long terms solution to the risks posed by those offenders. 

We’ve tried most things before but we haven’t tried this. Maybe it’s time we did.