Category: Criminal Law

Whole Life Orders when there is not loss of life

10th February 2023

Although this blog is written generally from a liberal perspective, I do not object – in principle – to whole life orders for exceptional offences.

Other liberals would contend that no prisoner should face the prospect of never being released, to have all hope removed – and that to put a person in this position is in and of itself a cruel and unusual punishment, a form of torture.

But although this blog is deeply sceptical of imprisonment as a routine punishment, there seems to me to be a special category of offenders whose offences mean they should literally have a life sentence.

If whole life sentences, however, are available, one question which arises is whether such sentences should be limited to murderers.

And this question has, again, been prompted by the sentencing of David Carrick.

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The estimable legal blogger and criminal barrister Matthew Scott has set out why the sentence for Carrick of thirty-two years is correct.

Scott tells us that the reasoning of the judge as set out in her sentencing remarks is “unassailable”.

Given he is an experienced criminal barrister and I am not (and neither will be most of you) then we should defer to his expertise.

But “unassailable” was not the view I formed when I read the sentencing remarks.

Instead my immediate reaction was that the reasoning was not compelling.

In paragraph 32 of the sentencing remarks, the judge says:

“I have assessed very carefully whether given your abuse of position this case should attract a whole life order.”

In paragraph 35 of the remarks, the judge then says:

“The stand out feature is the element of abuse of the status of a police constable but having considered the matter with care I have come to the same conclusion as the prosecution. Of the utmost gravity though this is, the “wholly exceptional circumstances” test is not met.”

What confused me was that in the Wayne Couzens case, the Court of Appeal held (emphasis added):

It provides for its unique and defining feature, which was that Couzens had used his knowledge and status as a police office to perpetrate his appalling crimes against Ms Everard and for the extensive and extreme nature of the other aggravating features which were present: the significant and cold-blooded planning and pre-meditation; the abduction of Ms Everard; the most serious sexual conduct; the mental and physical suffering inflicted on Ms Everard before her death; and the concealment and attempts to destroy Ms Everard’s body.

We agree with the judge that having determined there should be a whole life order, given the misuse of Couzens’ role as a police officer and the serious aggravating features of the offending the guilty pleas did not affect the outcome.

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It seemed to me that if the Couzens’ role as a police officer meant that what otherwise would be a long term sentence was converted into a whole life order then it would follow that the same would be the case for Carrick.

Against this view, the Crown Prosecution Service in the Carrick case made a point of not seeking a whole life order, and I did not immediately understand this concession, and nor why the judge went along with it.

But now, looking again at the authorities, I can see why Scott is (probably) right and – unsurprisingly – why my instinct was (probably) wrong.

Let me explain.

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On the face of it, the legislation permitting whole life orders is not limited to murder or any other offence:

S. 321. Life sentence: minimum term order or whole life order

(1) Where a court passes a life sentence, it must make an order under this section.

(2) The order must be a minimum term order unless the court is required to make a whole life order under subsection (3).

(3) The order must be a whole life order if—

(a) [in effect, the offender is over 21], and

(b) the court is of the opinion that, because of the seriousness of— (i) the offence, or (ii) the combination of the offence and one or more offences associated with it, it should not make a minimum term order.

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This means as long as the conditions in section 3(a) and 3(b) are ticked then there can be a whole life order.

There is no mention of any particular offence.

But in a 2020 case the Lord Chief Justice sitting with the other senior criminal appeals judges considered whether non-murderers would ever meet the threshold for a whole life sentence.

The Court of Appeal said (in a passage which I have broken up for flow):

We endorse the line of authority which does not shut the door to a whole life tariff in a case not involving murder.

The infinite variety of circumstances which give rise to serious offending make it impossible to identify such cases in advance, but we give an indication of the circumstances that might justify such a sentence.

We can envisage circumstances where murders of similar exceptionally high seriousness […] are substantively planned to a point close to execution (conspiracy to murder or attempted murder) but the crime does not occur because the enterprise is foiled or prevented by some fortuitous intervening event.

Examples might include when a bomb planted on a commercial airliner fails to explode or does so without causing sufficient damage to bring it down; similarly, a bomb in a public place does not achieve the wicked aim of those who planned or planted it; or intervention by the authorities prevents an act of mass-murder.

There will be other cases that do not involve a planned homicide of this kind which will merit a discretionary whole life term but, as Lord Phillips observed in Neil Jones, when they occur the need for such a sentence will be clear.

Otherwise, a determinate term of appropriate length will meet the requirements of retribution and punishment.

The offending in the cases of McCann and Sinaga, very serious indeed though it is does not, in our judgment, call for either to receive a whole life tariff.

This is not to minimise the seriousness of their offending but instead to ensure that the most severe sentence in our jurisdiction is reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment.

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So if a whole life order can be imposed when there has not been loss of life – but normally it should be where there was a plan to murder which somehow failed.

If this is the settled and firm view of the court of appeal – and the sheer seniority of the judges on that panel would indicate that should be taken to be the Court of Appeal’s policy, then we can see why the Crown Prosecution Service and the judge in the Carrick case did not seek or consider a whole life order.

Yes, a whole life order can be imposed where there is not loss of life – but not even in a case like Carrick, notwithstanding the misuse of the defendant’s misuse of his police status.

Indeed, it would appear that the misuse of the police status was instrumental in getting Carrick to the starting point of a sixty year sentence which, after the “credit” for his guilty plea, and a reduction to take account of what period a life prisoner would otherwise spend out of prison on licence, ended up with the minimum of thirty-two years to be served.

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You may think that despite the Court of Appeal setting out the exceptional circumstances where a non-murderer can get a whole life order, one should have been imposed in Carrick’s case.

Or you may think that given the age of Carrick, it is academic whether it is a thirty-two year sentence or a whole life order.

Or you may have another view.

My own normative view is that the Court of Appeal has set too narrowly the sort of cases that warrant a whole life order, and that if misuse of his position as a police officer was enough to convert Couzens’ sentence to a whole life order then the same should have been the case for Carrick.

But practical law is not normative but positive, and you have to take the law as it is, and not what you would like it to be; and the Court of Appeal’s policy on whole life orders meant that neither the Crown Prosecution Service nor the trial judge were in a position to seriously seek or consider a whole life order in this case.

And, for the reasons Scott gives in his post, it is indeed unlikely that the Court of Appeal will shift its position if Carrick’s sentence is referred to it as being “unduly lenient”.

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Good bans v. bad bans, and how can you work out the difference?

11th January 2023

Hurrah, single-use plastics are being banned.

They are being banned in the European Union:

And now they are to be banned here:

Hurrah, hurrah.

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But.

Some followers of this blog will say that the “Hurrahs” seem odd, given my general wariness of “banning” things.

(This 2011 New Statesman post is still one of my favourites.)

Surely: if we outlaw plastic forks, only the outlaws will have plastic forks?

There is something to that: banning a thing is not a magical spell.

All a legal prohibition means is that the thing prohibited is attended by different legal consequences than before.

And certainly banning a thing in-and-of-itself is rarely an instant solution to any problem.

Here, however, may be an example of where a ban is proportionate and likely to achieve its public interest goal, without adverse externalities.

If you really want a plastic fork, then presumably you can still make them.

If you collect plastic forks, you can still add to your collection from a suitable dealer and proudly show that collection off on your Instagram account.

The ban is instead about the use of such products in the marketplace.

According to the consultation document, the government has been mindful that there are substitutes in place, and the impact of the ban has been assessed:

The government also said that banning such things is not its preference: 

This is a sensible approach, and it is heartening to see that there is considered and apparently evidence-based approach to putting in place a prohibition.

If only all proposed prohibitions – and the continuation of existing prohibitions – were subject to such a considered approach.

Prohibitions have their place in public policy – this is a liberal blog and not a libertarian one – but too often in politics and media the “ban” is a form of magical thinking.

Let us hope this is not a single-use policy approach, and that it is recycled for other policy areas.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

On “banning” things, again

20th December 2022

Let us talk briefly – again – about “banning” things.

It is a topic which I have addressed before on this blog and elsewhere.

In essence: law is not magic, and so just “banning” something does not make that something somehow disappear in a puff of theatrical smoke.

And usually the something being banned will just continue, but will be attended with different legal consequences than before.

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Take for example the “illegal” asylum seekers (and, yes, we know – or should know – that seeking asylum is not itself an offence).

The clumsy government just wants to ban such asylum seekers harder, with “tougher” measures and “crackdowns”.

A sensible response would be to provide a safe route for asylum seekers to make their applications, and to provide proper resources for the applications to be adjudicated, but: no, we have to ban, harder and harder.

And yet asylum seekers still come, but through criminal gangs.

Or take for an example, the idiotic “war on drugs”.

The supply and use of drugs still continues, but with accompanying criminality and extortion.

Banning the drugs has not made the problem disappear, but instead made it more dangerous for everyone involved.

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None of the above means – or should be taken to mean – that prohibitions do not have their place.

There are many things that should be prohibited.

But any prohibition, in and of itself, is not enough – it instead needs to be part of a wider legal and policy framework.

Law and policy need to be resourced and able to deal with what happens when that prohibition is breached, and what happens next.

And politicians need to realise that banning something is stage one or two of a process of dealing with a perceived social or moral wrong, and not the only stage.

But politicians will not realise this.

We will get “crackdowns” and “tougher” measures instead.

Perhaps we should be “tough” on “crackdowns” instead.

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Prisons will not be reformed until and unless we rethink our views on punishment and retribution

2nd December 2022

Here is the introduction to a thing about prisons I wrote at the Financial Times in 2013:

We are all, of course, familiar with the notion of prisons – and many of us will have Very Strong Opinions about the lengths of custodial sentences:

“Six years! Eight years! Fifteen years! More, more!”

“Higher, higher, higher!”

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But.

For the reasons set out in that Financial Times piece, prisons are a strange as well as counter-productive idea for dealing with most crimes.

Prisons, generally speaking, are an expensive way of making bad people worse.

But the notion of incarceration is so deeply embedded in our collective consciousness it takes real effort to dislodge it.

It was not always like this.

In some earlier times, prisons were where you kept those charged with a crime until their cases could be heard and any sentences – capital, corporal, transportation – could be imposed.

Imprisonment itself was thereby a means to an end, rather than the punishment for criminal activity.

(The position for civil matters was different, with the debtors’ prisons, asylums and workhouses, all keeping certain undesirables out of the way.)

Around 1800 imprisonment became the normal punishment itself for crime – though for many onlookers the loss of liberty was not enough: prisons also had to be as miserable if not brutal as possible.

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And little, if any, thought is ever given to the (innocent) families and dependents of those incarcerated.

If they are thought about at all, it is with a shrug and a vague idea that it is the criminals who are to be blamed and/or that their (innocent) families and dependents are tainted by association.

And so that the innocent suffer becomes an output of the criminal justice system, as well as the protection of the innocent being the system’s supposed purpose.

The state has to destroy innocent lives, so as to protect them.

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There are at least two problems for any reform of prisons.

The first is that imprisonment is central to how society thinks about the punishment of crime.

A convicted person receiving a range of sanctions will still be described “as walking free from court” by outraged newspapers to their outraged readers.

The second is a consensus of what should replace imprisonment, especially given the popular view that retribution is the central purpose of punishment.

Of course, those who pose a danger to others or commit murders and other serious offences against the person should be locked away – and, unlike many liberals, I even support whole-life tariffs in exceptional circumstances.

But until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative.

I was once asked what current day practice would be looked on in the future as akin to how we now see those who facilitated slavery.

My answer, more with hope than expectation, was: incarceration being considered the norm for punishments, with any alternative having to be justified.

Anyway, this post was triggered by reading this piece in the Guardian.

Let me know below what you think – about the points I set out above and the Guardian article, and what you think about prisons and imprisonment as punishment generally.

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Guest Post: Adam Wagner’s Emergency State reviewed by the legendary police blogger Nightjack

18th October 2022

The legal blogger Adam Wagner has written a book about the coronavirus regulations.

But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.

Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.

Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.

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Emergency State by Adam Wagner

Review by Richard Horton

 

A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.

Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”

I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.

I was being offered one of those fabled “glide path to retirement” jobs.  This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.

Of course I snatched his arm off.

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I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.

I had my feet underneath me, everything was going well and then March 2020 happened.

From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.

The world had caught a virus and here in England, the Government tried to take control.

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Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.

On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.

My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.

The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk  for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.

Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.

I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.

Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.

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Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.

As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”

What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance?  How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?

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As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.

Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.

He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.

This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.

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From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.

He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.

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The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.

Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.

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If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.

We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.

I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?

This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation  were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.

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As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.

If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.

There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.

We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing.  Will those lessons be remembered when we pass this way again?

Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.

Richard Horton

TAFKA NightJack

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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The not-at-all-devastating “devastating” Johnson opinion on contempt of parliament

2nd September 2022

The “opinion”, we were told, would be “devastating”.

To quote the Daily Mail:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.'”

Not just devastating – but devastating absolutely.

Gosh.

Huge, if true.

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The opinion has now been published on the government’s website.

The government website calls it a “legal opinion”:And the document itself is formatted and signed as an opinion, and it even records the instructing solicitor, who happens to be a criminal defence specialist.

But the opinion does not set out any views on the criminal law, and nor is it in respect of criminal proceedings, and the authors of the opinion are not criminal lawyers.

Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.

One could even perhaps doubt – but for (ahem) what the government website says – whether this document constitutes a legal opinion at all.

That it has been placed happily into the public domain would make one wonder if any legal privilege would attach itself to this document.

But.

The question for this post is not whether it is a legal opinion or not, but is it devastating?

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An opinion – which is the name for a document setting out the views of a lawyer on a particular legal matter – is a curious form of legal document.

It is not a pleading or statement of case, which would set out a client’s legal position before a court or tribunal.

Nor is it a statement containing evidence that would set out the facts which a party wishes to put before a court or tribunal.

And nor is it a skeleton argument, which provides a summary of the legal arguments on which a party wishes to rely.

All three of these documents – pleading or statement of case, statement of evidence, skeleton arguments – are court- or tribunal-facing.

They are to assist the court or tribunal in determining the questions before it.

And an opinion is not itself a letter before action, which a party will send to another party so as to set out its case before a claim is issued.

No.

An opinion (or an “advice” depending on the matter) is usually a thing between a client and their lawyer.

The lawyer tells the client their view of the law – and it is to the client that the lawyer has the duty.

Sometimes, such opinions are shared or published by the client – so as to inform or influence third parties.

For example, before he went on to other things, the tax barrister Jolyon Maugham wrote an informative post on how certain tax barristers were well-known for giving convenient advices to be shared:

(Maugham and I are not close, and I am not an uncritical fan of the Good Law Project, but that was – and is – a remarkable piece of legal blogging.)

The point is that such “opinions” are that – they are the views of a lawyer who has an obligation only to their client, even if the client choses to share that document with third parties.

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As such, an opinion is rarely “devastating” – at least, not to any one else other than the client.

It is merely an expression of a view.

No court or tribunal will adopt such an opinion uncritically as its own view – and, indeed, lawyers are required to set their cases in different documents, mentioned above.

There is a fashion for campaigners and pressure groups to commission opinions from lawyers to use as aids for their goals.

And many lawyers are happy to provide such opinions, knowing they are going to be used for such non-judicial purposes.

But such opinions have, by themselves, almost no weight as a legal document.

They are PR, not probative.

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And now we come to this, capital-O Opinion.

This Opinion is, in effect, a PR exercise.

If this Opinion was, in fact, devastating then – in my view – it could have been quietly disclosed to the House of Commons committee of privileges in respect of its inquiry.

The inquiry would then have been devastated.

The content of the Opinion would have been so formidable that the committee would have known the game was up, and they would have terminated the inquiry with immediate effect.

That is what the effect of a “devastating” opinion would have been: devastation.

But this Opinion was not quietly disclosed to the committee.

It was instead placed into the public domain.

On a Friday afternoon.

After it was leaked to a newspaper.

(And although those reading this blog may not be readers of the Daily Mail, the newspaper was right to give this Opinion prominence and to quote the insider – for the Opinion and what the insider said are newsworthy.)

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The publication of this Opinion is an example of litigation by other means.

It is an appeal for media and public support.

It is an attempt to place pressure on the committee to drop the inquiry.

For if the Opinion were truly devastating there would be no need for publicising it on the government website or for leaking it to the press.

That is the difference between something being devastating and something being described as “devastating”.

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The Opinion is not strong.

Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate.

The colour of a thing would be black, but for it being white.

The object would be cheese, but for it being chalk.

And here:

“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”

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There are a few points to make about this Opinion.

To begin with, the inquiry into whether Boris Johnson misled the House of Commons is a matter for Parliament and not the courts.

And Parliament is in charge of its own procedures which, as a matter of basic constitutional principle (and the Bill of Rights), cannot be gainsaid by the courts.

So to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.

But.

It gets worse.

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The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.

This has been spotted by the Labour MP Chris Bryant:

The motion referring Johnson to the privileges committees was as follows:

The question for the committee is whether the misleading of the House of Common amounted to a contempt.

If Johnson did in good faith give an incorrect statement then at some point he would have realised the error.

That would not be a contempt.

But.

Under the rules of Parliament (and the Ministerial Code) Johnson was also under a duty to correct the record as soon as he realised, at the “earliest opportunity” and he has chosen not to do so.

Here is Erskine May, the authority on parliamentary procedure (highlighting added):

On this, see this thread by Alexander Horne from back in April:

And my post on the same:

There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.

The Opinion mentions the relevant duty in paragraph 26 (and the corresponding Ministerial Code duty in paragraph 28) but uses it only to somehow say that it indicates only deliberate lying can be contempt.

But if this a point set out in Erskine May, and obvious to Horne (and me) in April 2022, then it is a point that should have been addressed in an Opinion dated 1 September 2022.

As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.

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The Opinion is also odd in how it seeks to judicial-ise parliament.

This has already been spotted by the estimable Hannah White:

This contempt inquiry is a parliamentary (and political) exercise into assessing whether Johnson was dishonest.

This process is required because of the notion (or fiction) that MPs do not lie to the House.

This is because it is assumed MPs are honourable – and it is out of order for one MP to accuse another of lying in the Commons.

Ministers, for example, do not sign “statements of truth” when giving their answers at the dispatch box.

(And you will remember that Johnson lost the prorogation case at the Supreme Court because he refused to sign a statement of truth, under pain of perjury, as to his true reasons for the prorogation.)

As such the privileges committee inquiry is part of what some commentators call the “political constitution”.

It is how certain issues and disputes are dealt with within parliament, rather than outside of parliament by courts or other agencies.

The Opinion, by seeking to judicial-ise part of the process is taking a misconceived pick-and-mix approach.

The committee has set out its process and has called for evidence:

A motion was passed by the Commons; a process was adopted in accordance with the relevant rules agreed by Parliament; documents have been sought and evidence has been called for.

This is entirely appropriate for the parliamentary issue which needs to be addressed and resolved.

If the committee were to be amenable to judicial review, then the entire process would cease to be an entirely parliamentary matter.

The whole process would have to be recast, with judicial protections built in at each stage.

And, in any case, there is no good reason – and certainly no reason set out in the Opinion – why Johnson cannot simply explain why he gave a misleading statement and did not correct it at the earliest opportunity.

He can answer, parliamentarian to parliamentarians.

The motion of the House gives precise particulars of the statements, and he was the one that made the statements.

The sanction, if he is found in contempt, is not civil or criminal liability – no criminal record or county court judgment – but a sanction to him as a parliamentarian – he could be suspended, or perhaps face a recall petition.

This is a parliamentary process to deal with a parliamentary question with a possible parliamentary sanction.

To assert that “[b]ut for Parliamentary privilege, a court hearing a judicial review brought by Mr Johnson would in our view declare the approach taken by the Committee to be unlawful” is therefore not just deft, it is also daft.

*

As a further observation: why has this matter not seemingly gone through the government legal system and treasury counsel?

It appears a top white-collar criminal firm and the barristers have been instructed directly by the Prime Minister, presumably with public money.

For all Johnson’s derision about “lefty lawyers” and his supporters’ attacks on legal aid “fat cats”, Johnson is very ready to use taxpayer money to find technicalities so as to frustrate processes.

Those caught in the criminal justice system do not have access to this sort of legal advice.

*

To conclude: the Opinion is not only not strong, it is a disappointment.

One would hope and expect that its esteemed authors would have provided a more compelling critique of the process; that they would have engaged with the “earliest opportunity” charge; and that they would have explained, in parliamentary terms why it was unfair, rather than relying entirely on a “but for” rhetorical device and a false analogue.

This could have been a far more interesting opinion.

But instead, we got this weak, misconceived, incoherent document.

Frankly, it is devastating.

 

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POSTSCRIPT

 

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Never underestimate archivists and librarians – as Donald Trump is discovering

31st August 2022

Here is a lovely story about libraries and public policy.

The year is 1983.

The library is the British Library, formerly hosted in the reading room at the British Museum and other sites.

Nicolas Barker, then the library’s head of conservation, and Lord Dainton, then the chair of the British Library Board, had a problem.

Public finances were under pressure, and spending cuts were everywhere.

But.

They needed to work out a way to convince the then Prime Minister Margaret Thatcher about the urgent need for the move of the library to a new purpose-built building.

They decided to keep the issue simple: no lengthy paragraphs in a wordy report, still less charts or tables.

And certainly no waffly arguments.

They instead took her half a dozen books, as well as a novel by one of her favourite authors, which were falling apart, regardless of the care being taken to conserve them.

They placed the books on the table in front of Thatcher.

Silence.

She looked with horror at the state of the books.

Silence.

And then they then said:

‘Mrs Thatcher, we need a new building because all our books will fall to pieces if they stay where they are.’

So horrified was the Prime Minister at the potential fate of the national collection that they got the go-ahead for the new building.

*

There are perhaps two morals to this tale (which I have told before here and is recorded in this obituary).

One is that sometimes exhibits are more persuasive than words.

The other is never to underestimate archivists and librarians.

*

That there seems a real prospect of legal jeopardy for former President Donald Trump because of a breach of American archival law.

For many watching this is evocative of Al Capone being nailed on tax evasion charges.

Archival offences seem to Trump’s supporters a convenient pretext for legal action, rather than a substantive wrong.

But.

It is a substantive wrong.

For keeping documents and other information safe both for now and for posterity is a central function of the state.

It is how the government (and legislature and judiciary) of one day speaks to those charged with power in the future.

It is how those with power can be confident that certain information does not go to those who would use that information to cause damage and injury.

Like the integrity of the currency and protecting the realm, preservation of certain information is a core duty of those entrusted with power.

And like the damaged books put in Thatcher, visual evidence can be telling:

(Source.)

Of course, few of us know the facts.

It may well be that this legal exercise comes to nothing, and Trump escapes personal legal liability again.

And Trump is entitled to due process, like you and me.

But the wrongful removal of information from a government is not a trivial thing.

For without properly documented information, modern governments could not function.

That is why laws and policies about document management and retention are so important.

And there would be a wonderful irony if laws and policies about ensuring the integrity of written information were used to check the arch-abuser of political language and post-truth politics.

POSTSCRIPT

The historian Dr Adam Chapman has provided us with this similar story – click through to read more:

 

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The significance of the Bar strike

22nd August 2022

The criminal Bar has voted to go on strike – that is to not accept any new instructions after 5 September 2022.

Elsewhere on the internet you will find detailed and persuasive accounts of why the criminal Bar has resorted to this – for example here.

The action will cause pain – trials and other hearings that those involved have spent months and years waiting for will now not go ahead.

The added stress for victims and the accused is probably unimaginable for the rest of us.

People’s lives will be ruined further.

Yet.

The barristers’ strike is not really the cause of the problems with the criminal justice system, but more the effect of deeper problems.

This is a criminal justice system that may well have collapsed before now, and it is only by luck it has survived this long.

Like the “good chaps” theory of the constitution, the criminal justice system is in part held together by the goodwill of many of those involved,

For example, self-employed Barristers will take on cases at extreme short notice, and will do work (and travel considerable distances) on life-changing cases and not get paid.

And this goodwill has been exploited.

Legal aid fees are now at a level where it is impossible for junior barristers to survive.

The situation is not sustainable.

*

Politicians and time-poor, copy-hungry news reporters like the easy assertions of “tougher sentences” and “crackdowns” – but that is a mere fictional diversion when there is a functioning criminal justice system.

And if the criminal Bar now just drops hands, then it is difficult to see how the system can continue – indeed, to see whether it still constitutes a “system” at all.

This is what the strike signifies.

The strike signifies that a crucial part of our polity is not functioning – the part that is there to provide justice for both victims and the accused, the part that deals with coercive sanctions and punishments, and so perhaps the most important part of any organised society.

And the government and the media do not care, for as long as they can type and shout “Law and Order!” in return for clicks and cheers it is irrelevant that there is no law being applied, and and no order being imposed.

The political-media construct of “Law and Order!” does not correspond to the mundane, inefficient reality of the criminal justice system.

They are two distinct things, with no direct connection between them.

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“Attrition” – a guest post by Joanna Hardy-Susskind

22nd July 2022

The guest post below by Joanna Hardy-Susskind is a remarkable piece of writing, and it may be one of the best ever UK legal blogposts.

It was published yesterday on the Secret Barrister blog and it is republished here, with the kind permission of both Joanna and SB, so that it can gain the widest possible audience.

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Attrition

In 1999, Baz Luhrmann topped the UK charts with Everybody’s Free (To Wear Sunscreen).

We used to play that song on the drive to school. I was 12. My mum drove a banger that we called Bessie. “Come on Bessie” we would cheer as she chugged up the hill. Sometimes Bessie let us down, but no one minded. She did her best. Bessie’s radio had a cassette player. I liked to watch it hungrily eat tapes and spit out a glorious pop sound. My mum played the Sunscreen song on repeat. I remember those days. I remember that song. And, recently, I remembered the words:

“Live in New York City once”, the song advised, “but leave, before it makes you hard”.

School was the local comprehensive. Students were the beneficiaries of textbooks-between- two, dicey Ofsted inspections and our very own Police Liaison Officer. We did our best with what we had. And, by pure chance, it transpired we had something better than wealth: we had luck.

I had the good fortune to be born to hardworking, tremendous parents. They taught me right from wrong and the grey areas in-between. They taught me that precisely nothing in this life was given for free. And that, for some, working twice as hard is required to even make the starting line.

I was determined. And I was lucky. I read. Ferociously. I liked the words. As an adult I sometimes pronounce words incorrectly because I have only read them in books. I occasionally do it in court. Judges look at me quizzically, my expensively educated opponents tilt their heads and I confuse them all by just beaming. “Here I am”, I think silently, “with people like you”.

I remember going with my dad to buy our first family PC. It was magnificent. I typed out the words I had read. I moved them around the page until they flowed. Until they sounded just so. I did not recognise it then, but I know it now – it was advocacy. I memorised syllabuses and mock exam questions and photosynthesis and Pi and Oxbow lakes and the Somme. An A Level was not something my school offered. So I navigated Sixth Form, UCAS, bursary and then scholarship applications. I moved word after word around page after page and I persuaded people. That I knew things. That I could pass exams. That I might have some promise.

I failed often. And, each time, I returned home to my parents and their relentless cheer. “You did your best,” my mum would say. After my Oxford interview, a rejection letter landed on the doormat. I read it and muttered “two of the other candidates went to the same school, the SAME SCHOOL.”

Sometimes, I still mutter it to myself.

But luck, like rage, has a habit of holding out. I got into Law school. Words fell into place there. Sentences and paragraphs and persuasion. I was good at it. But it took everything I had. Loans. Sacrifice. Scholarships. A brutal commute when the money ran out. “It will all be worth it one day love”, my dad would offer on our bleary-eyed 6am car journey to the station. He would drive in his slippers. I would eat cereal in the passenger seat.

To become a barrister then, you had to eat 12 dinners “in hall”. It was a heady mix of Harry Potter and a weird wedding banquet. I did not know any barristers – so I took my mum. We rode cheap off-peak trains, googled which forks to use and giggled in the Ladies’ loo after drinking Port.

In my final interview to become a barrister – with 2 vacancies for 300 candidates – I wore a second-hand suit from eBay. No one noticed. My words tumbled out persuasively. More so, it transpired, than the same old boys from the same old schools. When I got the job, I opened the box containing my barristers’ wig in our lounge. We all stared at it like it was a wild animal.

Off I went. Defending people. People who had less luck, less guidance, fewer words. Many of them hoped that the courts would be fairer to them than life had been.

The words did not prepare me for the fighting. For the people I had to fight for. The terrified 14 year old girl in custody who asked me for a tampon, the shamed 55 year old who had lost his job and stolen, the addicted 21 year old with the sobbing mother, the father concealing a wobbly lip for a son who had not done his best. “Keep a professional detachment” my elders would say and I would nod before going home to lie on my bathroom floor with a rock in my heart. On and on it went. The drivers, the employees, the teachers, the students, the children, the ordinary people who thought court was no place for them until it was. Human story after human story. Stories I recognised. The grey area between right and wrong expanded. And I fought. A first court appearance then paid £35. I would have done it for free if I had not been shouldering a five-figure student debt. The cases got more serious, the money got a little better, but the relentless conveyor belt never let me exhale. I measured my success in precious ‘Thank You’ cards I stored safely in a box.

When luck runs low, I read them.

The finances have never kept pace with the fight. With what is required of me. With what is required of the mass of legally-aided barristers who ultimately have to rely on successful partners, generous families or sheer luck to get by. But, money aside, it is the conditions that deliver the sucker punch. Without a HR department the job takes and takes. There is no yearly appraisal. No occupational health appointment. No intervention. No one to assess the toll. There is a high price to be paid for seeing photos of corpses, for hearing the stories of abused children and for sitting in a windowless cell looking evil in the eye. There are no limits as to how much or how often you can wreck your well-being, your family life, your boundaries. No limit to how many blows the system will strike to your softness. The holidays you will miss, the occasions you will skip, the people you will let down. The thing about words is that they sometimes fail you. When you emerge from a 70-hour week and notice the look in the eyes of the proud parents who propelled you here – but miss you now.

And then, slowly, but to the surprise of absolutely no one, my colleagues – my friends – began to leave. Now, everything runs late. “Counsel will have to burn the midnight oil,” the nice Judge chuckles to the nice jury before I go home to lie on my bathroom floor again. The cases keep coming. The backlog grows. I am increasingly numb to the cruelty of telling broken human beings that the worst thing that ever happened to them will not be resolved for years.

Trial dates creep into 2023. Then, 2024. I edit police interviews for free. I prepare pre- recorded cross-examinations for free. I write sentencing notes for free. I teach new barristers for free. I offer suicide-prevention advice for free. The government issue statements saying everything is fine and I read them over and over trying to work out how they did not realise that justice costs something. That this is all worth something. That some of us gave everything to be here.

And so, it was this week I was reminded of Bessie and the song and those words.

“Live in New York City once, but leave, before it makes you hard”.

Perhaps being a criminal barrister is like living in New York City. Do it once, sure. But maybe I should choose a time to leave. Before it makes me hard.

I find it too heart-breaking to look that decision squarely in the eye. But many have managed it. Perhaps they had no choice. Criminal Bar Association figures show an average decrease in real earnings of 28% since 2006. Our most junior barristers work for less than the minimum wage. We have lost a quarter of specialist barristers in 5 years. 300 walked away last year alone. We miss them. Their talent and company and humour. Their help in shouldering a backlog that now stretches to the horizon.

Though sometimes I feel it, I am not alone. This summer, my (learned) friends took brave and bold action. To make this profession a better, fairer place than when we arrived. For those who choose to remain. For those brave enough to leave. And for those of us, hopelessly in love with this job, who are yet to decide.

But, most importantly, we must make this vital, important job viable for anyone who is about to begin. Regardless of their starting line.

Joanna Hardy-Susskind is a criminal defence barrister.

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The Metric Martyrs case – twenty years on

30th May 2022

Before Brexit, there were the Metric Martyrs.

The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.

The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.

Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.

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The first striking thing about Thoburn is the complexity of the applicable law.

Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.

Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:

“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”

(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)

This judicial observation has wider import.

It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.

And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.

On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.

And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.

Few onlookers would side with the legal-ese.

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A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.

Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.

This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.

The legal arguments were hopeless.

And this, in turn, was (in my view) a problem.

Many people at the time (and since) thought there was something not right about these prosecutions.

It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.

It seemed – to use a European Union concept – disproportionate.

But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.

There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.

Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.

And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.

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Weights and measures – like currencies – are both instruments and ornaments.

As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.

As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:

https://twitter.com/jjvincent/status/1530905866689445888

I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.

And this is despite not being especially patriotic, and not being opposed to metrification in principle.

I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.

*

But.

The government’s latest proposals. of course, do not make any sense.

This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.

Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings

And, in any case, often the relevant laws were home-made and not from Brussels:

As a former Lord Chancellor avers, this ‘policy’ is also a political rallying call which is made again and again:

*

The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.

And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.

(Few now can reckon in pounds and shillings – which also went in 1971.)

Yet it is one of those areas where law and policy cannot easily outpace lore and culture.

Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.

They will not easily shift – and perhaps some may never disappear altogether.

The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.

Such a government should be treated with disdain.

But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.

Not by a country mile.

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