Monday, 12 March 2018

Laughter is the best medicine (& the best defence)

Nobody loves a prosecutor.  I learnt this quite early in my career when friends and family would be fascinated to hear of trips to the cells or prison visits.  But tell them you were the Crown's representative in court and there was always notably less enthusiasm.  I put this down to the secret knowledge that lies in all hearts of our own wrongdoings.  Whether that's right or wrong it is no place for a minister of justice to seek a jury's love still less to have them laughing down the jury box.

I was thinking of this reading Matthew Scott's timely repost of his excellent survey of celebrity cross-examination; in particular that of the recently departed Sir Ken Dodd famously acquitted of tax fraud and defended by George Carman Q.C.  Interestingly Carman is probably the last barrister whose name is known by a majority of the public such is the diminished prominence of the Bar in public life and discourse.

In fairness prosecuting tax cases always carries with it the handicap of persuading a jury they should sympathise with the tax man over the defendant.  When the person being prosecuted is an adored comedian even a forensic genius would struggle and, of course, every comedian feasts on a straight man.  It's a dangerous business getting into a fight with a clown.

I have, thankfully, never prosecuted a celebrity or comedian.  I have however been involved in cases involving well known people and seen first hand what a distorting effect it can have on the whole process.  Separate to the circus of celebrity is charm and humour and when a defendant or their barrister is possessed of both getting the jury to focus on the evidence can be a real struggle.

One of the biggest problems prosecutors can encounter is when defendants are extremely attractive and there are plenty of studies showing that a defendant's attractiveness can make a real difference to the outcome of trials and even sentencing exercises.  It is known as the halo effect.

There is, until AI takes over the whole process, unfortunately not very much that can be done about this.  Any system that is overseen by humans is subject to the foibles, weaknesses and prejudices which define every one of us.  We are very used to hearing in the media of prejudice against certain groups within society.  We think very much less about prejudice in favour of certain groups.

It's something for all of us who practise advocacy to think about and while doing so perhaps we can spare a thought for the unloved prosecutors.

Thursday, 22 February 2018

Legal Aid - A Defence (again)

I am convinced it is not by chance that The Secret Barrister’s avatar is a bunny rabbit because only the Duracell Bunny or a close relative could blog as indefatigably as she does which leads to my second conviction namely that she must be a she.  I don’t know her identity but the sheer range of topics covered by her blog are, to my mind, conclusive evidence of a multi-tasker.  One thing she and I share as bloggers is a sense of Sisyphean despair at tackling flagrantly unacceptable misreporting of Legal Aid. 

In the dock today without a hint of a defence is the Daily Mirror.  So frequently has The Secret Barrister had to barbecue this particular canard that her response this time is a thread of tweets referring back to multiple previous explanations of why everything about the story is wrong and why its author and the newspaper’s editor should be hanging their heads in shame.  Exhibiting the masochistic tendency that inspired me to become a criminal barrister in the first place I will start rolling the rock up the hill – AGAIN.

John Worboys committed monstrous crimes.  It is very easy to understand on an emotional level why the expenditure of a single penny of public money on his behalf feels like a flagrant and outrageous waste when there are children living in poverty, hospital corridors full of trolleys and roads full of potholes.  I will try (although sometimes I wonder why) to explain on a rational level why this expenditure is necessary; something perhaps even to be proud of.

First no cash was given to Worboys.  Legal Aid expenditure on his case is money that has been spent on his case not on him.  In a nutshell public money was spent on a public good.

But, I hear you cry, he is monstrous, how am I, a member of the public, benefitting from this expenditure?  Well, imagine for a moment we lived in a society in which those accused of crimes received no Legal Aid at all.  We would not all die overnight as we might if Sizewell B was allowed to meltdown.  But within time the health of society would be imperilled by a very different kind of radiation namely injustice.  Rich wrongdoers would be unconcerned by this change, indeed they could even be beneficiaries of it.  However the innocent rest of us would be placed in real jeopardy.

To illustrate the wickedness of the Mirror’s headline consider an equivalent attack on the NHS.  There are some who argue that the fat should be disentitled to heart surgery, smokers to lung cancer treatment, alcoholics to liver transplants.  However it is possible to be a teetotal, vegan, athlete and require all of those treatments.  Are we really in favour of an NHS that only treats those whose lifestyles are entirely blameless and pure?

To say that you approve of Legal Aid for only the innocent and the deserving is entirely to misunderstand the purpose of Legal Aid and indeed the point of the Criminal Justice System which is to ensure the conviction of the guilty and the acquittal of the innocent.  Convicted criminals can be ordered to pay costs, obviously an effective sanction if they can afford to pay.  If they can’t afford to pay then, yes, we as a society have to foot the bill.  Nobody said civilisation would be free.

Of course it may be that I have wholly misunderstood the true meaning of the Mirror’s attack.  Perhaps they have no issue with the principle of Worboys being granted Legal Aid it is just the sum that is in issue.  After all £166,000 seems a mighty large amount to fritter away on lah-di-dah lawyers for one of society’s dregs.  Perhaps the Mirror would not have balked at £16,600 or maybe its limit would have been £1,660?  If it’s the figure that is causing the outrage come to my chambers and you can show me your workings for a fair and reasonable expenditure of Legal Aid taking account of the seriousness of the allegations, the quantities of evidence served, the extent of the unused material, the number of prison visits required, the ambit of defence evidence to be marshalled, the weeks or months spent in court, the cost of administering a solicitor’s office and a barrister’s chambers and the fact that lawyers need to make a living.  And that is not a living that includes holiday homes in the South of France and school fees that is a living to live on.
Without Legal Aid the blameless will get banged up and monsters will walk among us.  It’s as simple as that.

P.S. If you like this sort of thing but done better buy The Secret Barrister's book:

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:

This is his written account of his experience in the New York Times:

This is an interview with him so you can see and hear him for yourself:

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?