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.

Sunday, 15 October 2017

The road to freedom - why cyclists need protecting not prosecuting

In blogging topicality is everything. It is a source of wonder to me the speed with which some other legal bloggers manage to publish posts in the hours or even minutes after a high profile legal development.  One of the biggest impediments to part time blogging is that the full time job often prevents swift commentary and analysis.  And for that reason I felt that I had lost the moment to comment on Charlie Alliston who tragically hit Kim Briggs with his bicycle on Old Street resulting tragically and senselessly in her death.

It was a tragedy that in its immediate aftermath and during his trial at the Old Bailey that he struggled to acknowledge let alone, it would seem, accept any responsibility for.  Kim Briggs' widower, Matthew Briggs, has been left to raise their two small children alone without the love and support of his wife.  In those circumstances Mr Briggs' call for a review of cycling laws is wholly understandable.  The desire to find agency amidst the desolation of sudden bereavement must be all consuming and the belief that a change in the law might prevent a recurrence attributes some measure of meaning to an otherwise pointless tragedy.

The government has announced a review and in due course, no doubt, we can expect a proposal that the offences of death by careless and death by dangerous cycling will be enacted with maximum sentences matching their motoring equivalents namely 5 and 14 years' imprisonment.

There seem to be two main criticisms of the legislation under which Mr Alliston was prosecuted.  First it was old and weird sounding and secondly it attracted a maximum sentence of 2 years' imprisonment.  Dealing with the first complaint, true it is that having been acquitted of manslaughter by the jury they were left to consider an alternative count indicting him with wanton and furious driving under the Offences Against the Person Act 1861.  No mention of bicycles and no mention of death.  But instead the use of an Act under which all but the most trifling of assaults have been prosecuted for the last 158 years without complaint.  Old of itself is not bad.

Turning to the next complaint: the putative inadequacy of the maximum punishment.   The Secret Barrister comprehensively surveyed this case, these proposed changes and the sentencing implications in a recent post.  To the bereaved death by gun, knife, car or bike, most deliberate or most fleetingly reckless act does not alter the fact that death is loss forever.  The harm caused is identical.  Risk and intention are of course dramatically varying.  In recent years the penalties for death on the roads have started to focus relentlessly on the harm caused over and above the risk posed and the intention revealed.

I thought the moment to comment on all of this had passed but I should have predicted that the Daily Mail would ensure that impetus for a change in the law would not dissipate.  First it reported this tragic incident from May 2016 where no prosecution ensued.  Then it sought to survey deaths in bicycle collisions generally calling for a 'crack down'.  The big statistic is that in the last 7 years 25 pedestrians have been recorded as dying as a result of a collision with a bicycle.

Here are some statistics for road accident fatalities for 2000-2013 taken from GOV.UK:
YearRoad accident fatalities% change from previous year
Dealing with risk.  It is vastly more realistic to speak of the risk to cyclists than it is to speak of the risk from cyclists.  Cars are manufactured with a plethora of safety features to protect their occupants in the event of a collision.   Bicycles have zero safety features.  The biggest incentive there will ever be to a cyclist not to hit a pedestrian is the risk of harm to himself from any collision.  That is a very powerful incentive.  Far more powerful than even the longest prison sentence.

The biggest risk to cyclists is from motorised vehicles, in particular HGVs.  It is that risk that causes a number of cyclists, very regrettably, to cycle on pavements or in pedestrianised areas.  But it is relevant to acknowledge that they are doing that in almost all cases out of fear for their own safety.  

The Daily Mail and its ilk quite frankly hate cyclists.  When it is not deriding them it is calling on them in the most vigorous term to be controlled, regulated, limited, contained and ideally driven off the roads.  One only has to read the gallons of bile posted by its readers to see that this is a popular cause.  Cyclists must be licensed, they must be taxed, they must be insured, they must be number plated, they must be MOTd.

There is a simple reason why many motorists hate cyclists and that is freedom.  There is in this tiny crowded island a huge disconnect between the promise of driving and the reality.  I know because I drive and I have driven journeys that have taken me two or three times longer than it would to ride.  Was my car journey really necessary, probably not, was I harming the environment, definitely, was I wasting my money, definitely, was I getting fatter and unfitter, definitely.  And yet why did I do it? Because I am lazy, because there was no sanction or opprobrium either from the government or my friends and family, because the allure of the open road and convenience always eclipses reality.  However the risk I pose to others when I get behind the wheel is so vastly greater than that when I get on the saddle.  I believe the law should reflect that at least.

Cycling is still a weird outlying activity subject to animosity from the majority.  'Toughening up' cycling laws in a 'crack down' will do nothing to address the real threat to our safety and to our planet.  For that reason I can't support legislation that implies that the risk posed by cycling can in any way be equated with the risk posed by driving.

Friday, 6 October 2017

Goodbye John Thompson American Hero

Have you ever met an astronaut?  Hardly any of us have been in space,  a few more have summited Everest, a few more yet have won Olympic gold medals.   Achieving any of these things is extraordinary but it does not make someone extraordinary.  Only the extraordinary experiences of a very few are matched by equally extraordinary characters.  The far too young death of John Thompson this week has lost us one of those exceptional people.

John Thompson, or JT to everyone that met him, spent 14 years on Death Row in Angola, the Louisiana State Penitentiary for a murder he did not commit.  Prosecutorial misconduct of the gravest and most flagrant nature put him there.  He watched six execution dates come and go before the dogged persistence of his lawyers finally unearthed the wrongdoing that eventually resulted in his release.

A jury awarded him 14 million dollars for the wrong that was done him.  That decision was upheld by every court save for the Unites States Supreme Court which allowed the appeal against the award resulting in him receiving nothing for spending a decade and a half festering in a cell waiting to be extinguished by a needle, murdered by the state.

This is a summary of the Supreme Court case: https://en.wikipedia.org/wiki/Connick_v._Thompson

This is his written account of his experience in the New York Times: http://www.nytimes.com/2011/04/10/opinion/10thompson.html?pagewanted=all&_r=0

This is an interview with him so you can see and hear him for yourself: http://www.thestory.org/stories/2013-06/john-thompson

Many others take a different view but for me one Death Row exoneration is all the evidence I need that the Death Penalty deserves no place in any civilised society.  It is not evidence that the system works it is evidence that innocent people end up executed.

JT was eventually released in 2003 after 18 years of imprisonment.  I met him just one year later when I spent the Summer of 2004 interning with Nicholas Trenticosta, a dauntless and dogged defender of Death Row prisoners.  JT was working at the Center for Equal Justice where I was volunteering fresh out of law school.  He was still undergoing a decompression process that I strongly suspect lasted for the rest of his life.  Thanks to the steadfast support of his wife Laverne, the structure of working in the law office and the assistance of his friends and family JT was able not merely to survive his return to freedom but to thrive.

Many that are exonerated are not so fortunate.  The injustice that they have suffered overwhelms them and the longed for freedom of their imagination instead manifests itself in intoxicated oblivion, a swift return to prison or even suicide.  That none of those paths unfolded in front of JT is in small part attributable to his good fortune at having the support that was around him but in very great measure due to his heroic strength of character.

When many if not most men would have surrendered to hatred and bile JT realised that the only course that would permit him peace of mind and allow him to enjoy what he had and not what he was so grotesquely deprived of would be to turn outwards to alleviate the pain and suffering of others.  Accordingly JT founded a charity, Resurrection After Exoneration, that provided practical, financial, legal and medical help for those like him who had been chewed up and spat out by the American criminal justice system.

I will treasure my memories of the time I spent with JT, eating pig's tail and rice cooked by his wife, second lining in the projects, accompanying him and his family to a gospel service in his parish church.  But what I will treasure more than anything is the lesson that the true measure of a man is not the achievement of high office or accolades but how his character withstands life's challenges.  Few were tested more grievously and unjustly than John Thompson and few triumphed more magnificently.

Tuesday, 19 September 2017

Double or Bust? - Magistrates' Sentencing Powers

The retiring Lord Chief Justice has been reported as suggesting that magistrates' sentencing powers should be doubled to enable them to sentence offenders to prison for 12 months for a single offence.  This power has been on the statute books for many years but has never been brought into force.  His reasoning is that a huge cost saving will be made because magistrates will retain jurisdiction for more trials and more sentences.

There are three kinds of criminal offences in England & Wales: summary offences triable only in the magistrates' court, either way offences that can be tried in the magistrates' court or the Crown Court and indictable offences that can only be tried in the Crown Court.

When a defendant is brought before the magistrates' court if the offence is triable either way the prosecution will make representations about whether the case should be tried in the magistrates' court or the Crown Court.  The magistrates will then make a decision whether to retain jurisdiction or whether to send for trial to the Crown Court.  If the likely sentence on conviction would be more than 6 months' imprisonment then jurisdiction would ordinarily be declined because that is the maximum prison sentence magistrates can impose.  If the magistrates decide to retain jurisdiction the defendant has the right to elect trial in the magistrates' court or the Crown Court.

Doubling magistrates' sentencing powers would result in magistrates retaining jurisdiction in many more cases.  It, of itself, would not interfere with the defendant's right to trial by jury.  Trial in the Crown Court is hugely more expensive than trial in the magistrates' court and it takes longer for trials to be heard.  On the face of it, therefore, increasing magistrates' sentencing powers would both save money and time.  That sounds an attractive proposition.

Lord Thomas has the legal advantage over me in every respect but one and that is that I have practised in the magistrates' courts a lot more recently than he has and that recent experience causes me to hesitate to welcome this proposal.

There are essentially two schools of thought concerning the efficacy of prison.  The one I subscribe to is that prison is a necessary evil, being a place to exclude from society those that represent a clear risk to the safety and wellbeing of others and for whom rehabilitation in the community is impossible.  The other is encapsulated in the epithet: prison works.

Whichever school of thought you identify with the common ground is that prison is hugely expensive.  We have the highest prison population in our history and the highest in Western Europe.  Increasing magistrates' sentencing powers may have the effect of preventing defendants from coming before the Crown Court, it is however unclear why it would in any way cause the prison population to be reduced.

The vast majority of magistrates are unpaid volunteers.  It represents one of the most commendable forms of public service.  However I can't be the only person who finds it peculiar that unpaid volunteers are empowered to imprison their fellow citizens for up to 6 months.  We don't confer sentencing powers on juries so why do we permit lay magistrates to send people away?  We don't let enthusiastic and well meaning amateurs have a go at surgery so why do we allow them to make such fundamental decisions about people's liberty?

There is such a thing as a professional magistrate, called a District Judge, a magistrate with legal training and experience.  In contrast to lay magistrates they can sit and make decisions alone.  I therefore have an alternative suggestion to that of Lord Thomas.  Rather than doubling the sentencing powers of lay magistrates might it perhaps not be a solution to confine the power of imprisoning people in the magistrates' courts to the professional judges.  This surely would have the effect of ensuring that only those that absolutely have to be in prison are sent to prison.

Monday, 18 September 2017

Prey & Prejudice: Time to Regulate the Paedophile Hunters?

If church attendance figures are anything to go by few in modern Britain still believe in the devil.  That however is not to say that belief in and fear of evil is any less than it ever was.  Almost nothing today is more synonymous with evil than paedophilia.  It should follow then that anything done to combat paedophilia should be welcomed and those that lend themselves to the task of exposing and apprehending paedophiles should be lauded as modern day crusaders.

This proposition lies at the heart of a current BBC focus on paedophile hunting, the newest mushrooming manifestation of vilgilantism.  The premise is simple: self styled paedophile hunters (the vast majority of whom are men) set up fake profiles on social networking or dating sites and wait for a target (the vast majority of whom are men) to make contact.  They then announce themselves as being a child under the age of 16.  Online communication ensues which usually becomes sexual.  A meeting is arranged and the paedophile hunter then reveals himself to his quarry, performs a citizen's arrest and calls the police.

The target is arrested, interviewed, confronted with the content of the online communications, charged, prosecuted, (usually) convicted and (usually) imprisoned.  The paedophile hunter registers another 'kill', the police and CPS chalk up a win, the prison population swells by one and Britain's parents and children sleep soundly safe in the knowledge that there is one less dangerous paedophile on the streets.  On that analysis nobody loses except the dangerous paedophile and few will lament his misfortune.  However I would suggest the time is ripe for a rigorous analysis and wide discussion of whether theory is being reflected in reality.

It won't surprise you to hear that it is a criminal offence to communicate with a child and then meet or arrange to meet with them intending to engage in sexual activity.  Specifically it is an offence contrary to Section 15 of the Sexual Offences Act 2003, meeting a child following sexual grooming.  In paedophile hunter cases there is no child and therefore only an attempt can be charged.  However it is a general principle of law that attempting to commit a crime, for sentencing purposes, carries no less culpability than successfully committing a crime.  The maximum sentence for this offence is 10 years' imprisonment and a cursory Google search demonstrates that the vast majority of offenders convicted of this offence do indeed get sent to prison.

It seems to me that these are the topics that require discussion:

1. Regulation - At the moment there is absolutely no regulation of the activity of paedophile hunters.  They are private citizens and provided they adhere to the law governing private citizens there is no prohibition on their activities.  The same however is not true for the police.  There are myriad laws governing the way in which the police are permitted to exercise their extensive powers.  The police are permitted to undertake undercover operations but only within strictly circumscribed parameters.  Is this right?  

2. Filming - Hitherto it has been extremely commonplace for paedophile hunters to film their stings often broadcasting in real time to their social media sites and often with the videos being uploaded to YouTube.  The obvious risk that attaches to this is of prejudicing the possibility of a fair trial.  Any police officer that uploaded their bodyworn footage of an arrest prior to trial would almost certainly lose his job and potentially face prosecution.  Should this continue?

3. Arrest - Very few paedophile hunters appear willing to involve the local police force prior to a sting taking place.  In the main the practice is for the the paedophile hunter and accompanying associates to confront the target, perform a citizen's arrest and only at that point call 999.  This effectively precludes the police from making an evaluation as to whether someone should or should not be arrested.  It also carries the real risk of impeding an ongoing investigation not known about by the paedophile hunter.  Consider, for example, a police investigation into the activities of a paedophile ring, the activity of a paedophile hunter could force the police to arrest one member of that ring at the expense of the integrity of the investigation into other potentially more dangerous paedophiles.  When should the police be alerted?

4. Safety - When vigilantism is unconstrained there is always the risk of something going wrong.  You only have to watch a few videos of the sting encounters to see that these are emotionally highly charged situations.  If matters are not put into the hands of the police there is a real risk of people being hurt or even killed or even worse of a misidentification of the target.  Is this activity dangerous?

5. Entrapment - English law is very reluctant to recognise the concept of entrapment, this especially applies to the activities of private citizens.  The police are trained as to the extent to which they can involve themselves in the commission of a criminal offence.  Accordingly Test Purchase Officers (TPOs) can buy illegal drugs from drug dealers, their purpose is not to consume those drugs it is to identify and apprehend drug dealers.  What a TPO can't do is approach a completely random person about whom they know absolutely nothing and persuade them to sell drugs.  Pursuant to Section 44 of the Serious Crime Act 2007 it is a criminal offence intentionally to encourage an offence.  The police know this but do the paedophile hunters?

6. Risk - There are, without doubt, very dangerous paedophiles both within society and within custody.  We all, but especially the police and the courts, owe children a duty of care to be protected from these people.  The question is whether the activities of paedophile hunters are, in all cases, assisting in that endeavour.  When the target of a paedophile hunter has never before come to the attention of the police, never before presented as a safeguarding risk to any official body, has no indecent images of children on any of their devices is there a question mark about the risk that they pose?  Are scarce police, court and prison resources being well spent on processing and incarcerating that person?  I don't have answers to those questions but I believe they are questions that need asking and answering.

The Neighbourhood Watch has a long and admirable history of public spirited local citizens working hand in glove with local police officers for the benefit of all.  Is it too much to suggest that if paedophile hunting is to be sanctioned that it be incorporated into something similar?

Thursday, 14 September 2017

A tribute to His Honour Judge John Plumstead

When I was a young(er) barrister I remember one of my colleagues reminiscing about the French chef at Knightsbridge Crown Court to whom an order was given on arrival in the morning for a freshly cooked lunch eaten in convivial company in the Bar Mess during the short adjournment.  Knightsbridge Crown Court with Harrods for a neighbour is long gone as is the supply of food fresh or otherwise from almost all courts.  Instead we have peeling wall paper, leaking roofs, broken toilets.  Conviviality is in very short supply.

A rare pleasure it is then to appear at St Albans Crown Court where every Thursday all advocates are invited to a curry lunch with the judiciary sitting there.  Far from being an opportunity to curry favour (sorry) with the judges this is the best possible reminder that ultimately wherever we sit in the courtroom we are trying to achieve the same thing.

What has always made those lunches particularly enjoyable was the company of HHJ John Plumstead, the twinkling embodiment of bonhomie.  I know he has many friends and admirers that can attest to his qualities off the bench.  My dealings with him however were purely professional and it is on a professional level that I can observe that justice has lost one of her most human and likeable disciples.

It is no exaggeration that some courtrooms provoke in the heart of barristers a real sense of dread either because their custodians clearly absolutely hate being a judge or, worse, absolutely love it.  A proper judge respects the role but doesn't harbour intense feelings about it.  A superlative judge remembers they are a human being first and a judge second.

Judge Plumstead was never anything but human, his compassion for those who came before him whether wrongdoer in the dock or wronged in the witness box was deservedly legendary.  His was a discursive and informal style that put people at their ease even if juries sometimes wondered when the judge's stories would come to an end and the trial resume.  In sentencing he believed first and foremost in mercy and giving people a chance with a few notable exceptions, he couldn't stomach those that were violent towards women nor benefit fraudsters.

Instructions to appear in his court, whatever the case, always provoked in me the feeling of visiting a favourite uncle.  His sudden death has robbed all those that practise in St Albans of a kind and good judge, him and his family of what should have been a long and very well earned retirement.  He will be much missed. 

Tuesday, 4 July 2017

Grenfell Tower: What lends legitimacy?

Legitimacy, most formally defined, means in accordance with the law but another and equally valid meaning is having the quality of acceptance.  The furore that has surrounded the appointment of Sir Martin Moore-Bick has exposed a tension between those two definitions.

On the one hand here is the recently retired Vice President of the Civil Division of the Court of Appeal.  Barrister since 1969, QC since 1986, Recorder since 1990, High Court judge since 1995, Lord Justice of Appeal since 2005.  Legal and judicial careers can be more glittering and exalted, but not much more.  Being a criminal practitioner I never appeared in front of him but from what I have read his decades of experience in commercial cases would make him ideally suited to the forensic disentangling of the contractual threads that led to the Grenfell Tower tragedy.

On the other hand here is a posh old white man, educated at The Skinner's School, Tunbridge Wells and Christ's College, Cambridge about whom the only thing non-lawyers have heard is that he upheld a decision permitting Westminster Council to offer a tenant that had been evicted housing 50 miles away without disclosing what local alternatives were available.  The Supreme Court reversed his ruling.  What can this man know of the pain, anguish and fears of the bereaved, homeless and dispossessed of  Grenfell Tower?  How committed can he be to exposing what caused this to happen and who is to blame?

No sooner has he been appointed there are calls from some quarters for his resignation, including from the newly elected Labour MP for Kensington in whose constituency Grenfell Tower stands: still bearing its victims unknown and perhaps unknowable.  The (new) Lord Chancellor has leapt to his defence and rightly so.  But of course he was appointed by the Prime Minister so the Lord Chancellor loses no political capital in defending the appointment.  Any allegation that Sir Martin will not faithfully and lawfully discharge his duties in chairing the inquiry should be evidenced not bandied about by those who should know better.  

When the criticism being levelled is that you hail from the establishment being defended by the establishment affords you no defence.  In a very real sense however this criticism is absurd.  Inquiries are what judges do.  They are what judges are trained for and experienced in.  To complain that the chair of the inquiry is a judge would be as ridiculous as complaining that the heroic firefighters who gallantly and selflessly fought the blaze had a background in putting out fires.

What the critics are really saying though is that the outcome of the inquiry may lack legitimacy if the chair is from 'them' not from 'us'.  But where would a chair from 'us' come from?  It is hard to imagine that a single member of the Court of Appeal grew up in a Grenfell Tower, or ever did.  What this terrible fire and its inquiry may be exposing is that the male, pale and stale complaint is not just a manifestation of special pleading but the articulation of a legitimate anxiety that if judges don't look and sound like the people they serve there is a danger their service will not be acknowledged or, more dangerously yet, accepted.

Inquiries have not had a good time of recent.  The history of Hillsborough is the springboard.  There is the £190 million cost of the Saville Inquiry.  There is the 7 years it took the Iraq Inquiry to reach publication.  There is the extraordinary turnover of leadership of the Child Sexual Abuse Inquiry.  It would be unconscionable for the Grenfell Tower Inquiry to go awry before it has even started.

There is a solution to anxieties about the creation of a representative judiciary and that is proper funding of legal aid.  If judges are to be drawn from all quarters of society then legal careers need to be open to all quarters.  That means enabling the impecunious able to come to law in the first place and ensuring that they can make a living from it.

Meanwhile those that criticise Sir Martin Moore-Bick's appointment would do well to have their evidence to hand and good explanation for their preferred candidate.  It is a cornerstone of our justice system that all evidence is considered before judgement is cast.