Anything you do say may be given in evidence.

The end of the prosecution case in England and Wales is conventionally the moment when the defendant’s interview under caution is adduced in evidence. At the time of the interview the defendant will have been a suspect and it is the opportunity of the police to glean the suspect’s version of events and the opportunity of the suspect to give theirs. Or not give it. I have no idea what the statistics show but many interviews under caution are met with no comment either in response to legal advice given or because the suspect of their own volition has decided it would not be in their interest to answer questions.

The caution is as follows: 

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” 

I’m getting so long in the tooth that when I started practice the interviews were recorded on tape with an annoying backing track to ensure that nobody could interfere with the contents of the recording. They continued to be recorded on tape until remarkably recently, I was given to understand to some degree because the police had one of the largest stockpiles of cassette tapes in the country. 

Briefs would come tied up in pink (defence) or white (prosecution) tape with an envelope containing a cassette tape so that the accuracy of the transcript could be checked against the recording. This resulted in a colleague having an absurd experience once when no tape was included in their brief, a request for a copy of the tape prompted a photocopy of the cassette. 

The recordings of interviews are almost never played in court before juries. Instead the prosecution barrister and the investigating officer have to engage in a moment of am-dram by reading out the transcript. I say am-dram but ‘doing the voices’ is seriously frowned upon. I only discovered recently that the Southern practice of having the barrister read the defendant’s part and the officer reading the police part is reversed in more Northern parts of the country. 

Mercifully the tapes have finally gone the way of fax machines and recordings are now digital and immediately available as digital links. No comment interviews are not adduced in evidence to save juries the brain numbing tedium of having an entire unanswered interview read to them. Instead an agreed fact informs the jury that the defendant made no comment and, where significant questions went unanswered, what they were. 

When answers are given the parties have to scrutinise the transcripts to make sure that anything irrelevant, inadmissible or prejudicial gets edited out of the interview: references to previous convictions, the officer’s opinion that the defendant is bang to rights, lengthy discussion about what the defendant had for lunch. 

When I started if such edits were not resolved in good time before the trial edits had to be done with Tippex, black marker pen (never desirable) or, especially fiddly, with scissors cutting out the offending passages so that the transcript could be photocopied on top of a blank page. I don’t miss any of it. Now edits are track changed, commented, highlight and implemented at a touch of a button. 

However, the transcript reading remains and now that we’re in the digital age it seems to me absurd that juries don’t automatically get to hear the defendant’s own voice and, where video recorded, see their own face in the police interview room. Everybody knows that often in life it’s not what was said but how it was said. It seems to me that if the police interview under caution is of evidential significance, which it obviously is, juries should at the very least actually get the chance to see and hear it. 

So many improvements to the criminal justice process require money or complicated reform. This seems to me to be basic and immediately capable of implementation.

Counsel of Despair

 I recently tweeted the following observation:

It’s important to say that the message that there’s no point in reporting sexual offences to the police is a counsel of despair. There are many police officers, lawyers and judges that make it their life’s work to take such allegations seriously and have them tried properly.

And it would be fair to say that, to some readers at least, it was neither an important nor welcome message.

A very niche benefit of Twitter to criminal barristers is that it's a reminder that when you address a jury what you think you're saying, or what you want to say, is not necessarily what the jury are hearing you say. Because juries don't provide feedback other than through their verdicts this is not a reminder often given in court.

For the avoidance of doubt here is a list of things I did not mean in that tweet:

1. That all victims of sexual offences must report to the police.

2. That if victims of sexual offences do not report to the police then they are not victims.

3. That if victims of sexual offences report to the police they are guaranteed to see their attacker convicted.

4. That all police officers are perfect. Or lawyers. Or judges.

5. That I do not think there are very serious problems with the criminal justice system, particularly in relation to sexual offences.

6. That I am oblivious to a prevailing, possibly near universal, view that reporting to the police is a futile act.

When the perception is that justice is very difficult or impossible to achieve it is entirely understandable why a victim of a sexual offence might prefer to heal privately in their own way and in their own time.

The sometimes re-traumatising effect of the criminal justice process is something that is frequently remarked upon and written about. Contending with a forensic challenge to your integrity and credibility when you have been a victim of rape must be, at the very least, a galling experience, if not profoundly upsetting and destabilising.

Acknowledging that reality while reconciling it with the need to maintain a rigorous and fair trial process is something that causes any lawyer of good conscience a great deal of concern and anxiety. An inescapable if harsh fact is that the criminal justice process is not therapy and its direct purpose is not healing. Its purpose is to correctly identify wrongdoers, hold them to account and punish them when required. Another equally difficult concept is that a not guilty verdict or even a decision not to charge does not mean that an offence did not happen, it means that there was insufficient evidence to prove that it did. Obviously when the main evidence comes from and is the person making the complaint that will feel like the most personal of judgements. But a system in which the making of an allegation of itself ensured a conviction would be a dangerous thing to have.

I have not experienced the criminal justice process as a victim of a sexual offence but I have witnessed those that have on scores of occasions. People often ask me how does it feel to defend someone I know is guilty. What I have never been asked is how it feels to sit with a distressed victim in a dilapidated room at court in the aftermath of the acquittal of a man who hours before I had suggested to a jury was a provable rapist. I can tell you how it feels. It feels really bad.

I know what is wrong with the criminal justice process and to some extent I know what is required to fix it. Money plays a very large part in that. But that's not the only part. Where Twitter and other platforms are useful is that you hear tales and narratives that rarely make it into law schools and court rooms. Social media gives victims a voice. I am always listening because without listening you don't hear and if you don't hear you don't learn.

But like a beleaguered doctor hearing about troubling symptoms I would never counsel not getting them looked at. The criminal justice process is not what it should be, too many victims are let down by the police and the courts. But disengagement from the system does not provide alternative recourse. If we don't use the system and make it work there is no other. There are people that care about it and the victims that have no choice but to use it and I should know because I see them every day.

Not every rape that gets reported to the police results in a conviction but no convictions result from rapes that are not reported.

Just One Of Those Things - Defending Andrew Malkinson

Miscarry at one time meant merely mistake. In its modern usage it means the tragedy of a lost pregnancy or the tragedy of a wrongful conviction. Those who have had the misfortune to experience either of those utterly dissimilar tragedies may be united in one fervent desire and that is to know why. And sadly, all too often, when a pregnancy is lost there is little more doctors can say than it was just one of those things. Medicine cannot discern the why. It is also the reason why I privately wince when I hear the expression miscarriage of justice. Because there is always a why, it’s just a question of whether there is the time, resource and will to ensure the why sees the light of day. 

I prefer and endorse the expression wrongful conviction. For few things are more full of wrong than the conviction of an innocent person. And few are the wrongful convictions caused by mere mistake. At the heart of almost every wrongful conviction there is a failing, either deliberate or negligent. The hallmark of a healthy, functioning justice system is a desire to expose and root out that failing. By dissecting the wrong and holding it up to the light justice is vindicated in unflinching scrutiny. 

An analogy that resonates for me is that the dispensing of justice is the love in action of a society for its people. Those that love you care for you and when wrong is done to you they seek redress for you. When a government assumes that responsibility and discharges it properly it is exhibiting, on a societal level, exactly that kind of love writ large. Conversely, when wrongful convictions are tolerated and lie unexposed the government demonstrates disdain not just for those immediately affected but for all of us.

But it would be absurd to suppose that such disdain affects us all equally. To say that those directly affected by wrongful convictions experience devastation does not come close to describing the impact on the wrongfully convicted, those that love and care for them and the victims of the crime giving rise to the wrongful conviction. On one side of the equation is a person who has known from the moment the guilty verdict was delivered that an injustice had been done and on the other is someone who from the very same moment thought justice had been done. Both of them cruelly cheated of justice. 

Few are the students at law school intent on criminal practice who do not suppose that one day they might be involved in the righting of a wrongful conviction. In reality involvement in such cases is vanishingly unlikely. Post-conviction appeal work is extremely difficult and hard to come by and very poorly remunerated, that is if it is remunerated at all. 

Lawyers have to obtain access to the evidence called at trial, transcripts need to be applied for, unused material scrutinised, liaison needs to take place with the lawyers that appeared at first instance, instructions taken, investigation undertaken, fresh evidence sought. If preparing for a trial is like a walk in the Lake District mounting a post-conviction appeal as a lawyer new to the case is like trying to traverse the Himalayas in someone else’s climbing boots. 

It is not an undertaking that the English criminal justice system encourages or generally rewards. A defendant convicted in the Crown Court by a jury has the right to apply for leave to appeal. They have no automatic right of appeal. If leave is granted and the appeal refused or a renewed oral application for leave to appeal is refused then the conviction is affirmed. The only realistic option for a defendant in such a position is to make an application to the Criminal Cases Review Commission which has the power to refer cases back to the Court of Appeal. It is not a power which it readily or speedily exercises. 

A hallmark of the English system is certainty and finality. In other systems convictions are not final until all possible rights of appeal are exhausted. We favour a one-shot system. The expectation is that all involved should get it right first time. The problem is that the system falls desperately short when that expectation proves unfounded. 

In an English criminal case the defendant has no right to see all material in the hands of the police and the prosecution. The prosecution serves the evidence that it relies on to prove its case and all other relevant material held by the police is supposed to be listed in a schedule. That material is called unused material. If in the judgement of the prosecutor any of that material is capable of assisting the case for the defendant or of undermining the prosecution case then the prosecutor is under a duty to provide that material to the defence. This is what lawyers mean when they talk about disclosure. 

However, if material or information is known to the police but is not listed on that schedule then the prosecutor does not know about it and if the prosecutor does not know about it the defence can’t know about it, the judge can’t know about it and the jury can’t know about it. That is when verdicts turn on incomplete evidence and when they do they invariably turn against defendants. 

There is something paradoxical about genuine humility which is that proximity to it is a curiously ennobling experience. Anyone who has heard Andrew Malkinson speak on TV, radio or podcast in the wake of his quashed conviction will have heard that his is a voice of reason and of compassion too. He is acutely conscious that the injustice he has suffered on his side of the equation has also now been suffered by a victim of a terrible crime on the other. I know that many who have listened to him will have marvelled that he does not speak with the ranting recriminations and reproaches commensurate to the wrong that has been done to him. 

If you imagine for a moment a place that you really don’t want to be but you know that you have no choice to be, for example A&E with searing pain at 3 in the morning or an airport departures lounge with a 2 hour delay think about the sense of frustration you might feel that you are stuck there. Then imagine you’ve been imprisoned for 17 years for a horrible offence you did not commit. It’s a preposterous thought experiment because none of us can imagine the latter scenario. I’ve been visiting prisons for nearly 20 years of practice as a barrister and I can’t begin to conceive of how anyone could get through a week of such an experience. 

Yet Andrew Malkinson managed it. Undoubtedly it has taken a massive toll on his mental and physical health and it has cheated him of the prime of his life. But the colossal sense of anger he must feel is articulated in the most reasonable way and it is all the more forceful for that. A refusal to accept responsibility for a crime that he did not commit meant that Andrew Malkinson spent 10 years in prison beyond the tariff for his life sentence because a key requirement for being deemed safe for release is recognition by the offender of their crime. This is another invidious way in which the English system traps the innocent in a Catch 22. 

It is difficult to communicate in words the level of opposition Andrew Malkinson has endured in his quest to establish what happened to him and those acting for him have encountered. That basic and burning desire to know why has been met with obduracy, resistance and inaction. Evidence has been destroyed, information has been withheld, questions have gone unanswered. The fact that none of that precluded Andrew Malkinson from finally seeing his conviction quashed and not just because modern science has rendered critically significant DNA evidence that was there all along but because the jury was kept in the dark about evidence that should have ensured he was never convicted in the first place is thanks entirely to the relentless work of APPEAL, his solicitor Emily Bolton and their investigator James Burley. 

The dismaying reality is that there are many more Andrew Malkinsons languishing right now in prison cells. If you’re not prepared to tolerate that fact as just one of those things can I encourage you to consider making a donation: https://appeal.org.uk/donate

The Clink Restaurant at HMP Brixton

 

Same place different experience. It's a statement of the obvious that two people can be in the same place having a radically different experience. To give a really extreme example imagine a hangman and a condemned man both standing on the gallows. They might occupy the same physical space but their mental space might as well be in different universes.

It's also possible to be the same person in the same place having a radically different experience. The hospital doctor being delivered to their own A&E in an ambulance. The pupil returning to their old school to take up a teaching post. I've had this experience with my 'side hustle' as a TV legal consultant returning, after a very lengthy gap, to a closed Camberwell Green Magistrates' Court when it became the set for Landscapers. Everything completely familiar and utterly strange at the same time.

Yesterday I finally passed through the gates of the last London prison in 20 years of practice that I had never visited, HMP Brixton. Going on a 'Legal' never loses the strangeness of entering the 'secure estate' but the purpose is always the same whatever the type of case might be. The taking of instructions and the giving of advice. There is generally not much time to ponder the purpose of prison itself.

But I have been in prisons for other reasons. In 2009 I saw an extraordinary production of West Side Story in HMP Wandsworth. Pimlico Opera has been putting on prison production for years now and in 2024 will be in HMP Bronzefield: https://grangeparkopera.co.uk/pimlico-opera/. More recently I judged a debate about banning smoking in prisons in HMP Pentonville between a prison team and a visiting team from the Cambridge Union (the home team won and quite deservedly so). This was organised by Vocalise which is an excellent student led initiative run by Gray's Inn, my Inn of Court, taking debating into prisons: https://www.graysinn.org.uk/education/students/career-development/vocalise/.

Artistic expression and persuasion through words are both absolutely commendable and I would suggest essential endeavours to be encouraged within prisons. But in terms of concrete and immediately employable training in skills it's hard to see anything beating The Clink Charity. My reason for visiting HMP Brixton was to have lunch at their excellent restaurant.

It was an outing organised by Dolly Theis, wife of one of my closest friends, and whose passions for rehabilitation and food policy neatly dovetailed under one roof where food is made fresh with many of the ingredients grown in the gardens of other prisons in England & Wales. I'd heard of The Clink before but what I had not realised was that its activities extend far beyond the restaurants at HMP Brixton, HMP High Down near Sutton, and HMP Styal near Manchester Airport.

The group of policy makers, journalists and other interested people I accompanied was addressed by Yvonne Thomas the recently appointed Chief Executive of the charity. She is a persuasive and engaging advocate of its virtues and activities but, as the saying goes, the proof of the pudding was in the eating and in my case that was an impressively towering strawberry baked Alaska. Preceded by a heritage tomato tart and a perfectly cooked duck breast this was serious food, properly made and attractively presented. There was no call or need for patronising platitudes.

The restaurants are dry, the cutlery is plastic and the dire warnings about trying to enter without storing your mobile phone in a locker before entry mean you can be in no doubt that you're in a restaurant with a difference. But the most important difference is that the food is being cooked and served by people who have been presented with a golden opportunity to move on from an anti-social past to find employment in the most social industry of all: hospitality. Also, leaving a restaurant with a clear head where the meat has to be cooked perfectly and where you have given and received from your dining companion undivided attention is all a plus in my book.

For a birthday party with a twist, an unforgettable date night, or a work outing with a difference it can't be beaten. Book here: https://theclinkcharity.org/

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.