Category: Criminal Law

The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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The boon of published sentencing remarks

15th December 2021

One good thing for the public understanding of the law that has come from the internet is the publication of ‘Sentencing Remarks’.

These are not judgments – at least in a legally technical sense – but explanations by a judge about how they gone around setting the sentence of someone guilty of an offence.

Today there are two sets of sentencing remarks about highly unpleasant and disturbing cases (both of must have a content warning).

Some may want to read them for their grisly detail.

However the rest of us – especially students of law and others with an interest in the legal system – will be able to gain fascinating and detailed insights into investigations, prosecutions and sentencing.

In the olden days, these remarks were never normally available – one would have to rely on any news reporters in court, and one would then have to depend upon on the edited (and editorialised) news reports.

Now, you can read the judge’s words for yourself – and form your own view.

You may still think after reading remarks that a sentence is too low or too high – but you will at least be able to inform your view with how the sentence has been arrived at.

The best way to keep up is to follow the England and Wales judiciary’s Twitter account or to visit their site from time to time.

The regular publication of these remarks will not, by themselves, cure the promotion of misinformation about law generally and high-profile cases in particular.

But the more they become part of the normal information openly available about cases and the criminal law in the news, the better the general knowledge of the criminal justice system.

They are a boon to the public understanding of law.

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The Parable of the Prime Minister’s Curtains and the Mysterious Black Bin Bag

12th December 2021

From time to time, if you are lucky and alert, you can watch urban legends form in real time before your eyes.

In the last twenty-four hours we have seen the creation of a new conspiracy theory, to go with the likes of the moon landing hoax and Piltdown man.

It began with a tweet and a picture:

It is a good, good scoop.

The picture, of course, is not in and of itself incriminating.

Three people, including the Prime Minister, on a Zoom or similar call.

The Santa hat and the tinsel are indicative of it perhaps not being an especially earnest work call.

It is unlikely, for example, that the other call participant was, say, Vladimir Putin.

But it is the context which makes the picture significant.

If the three participants were not together for work purposes at the time of last Christmas then it would seem to have been an unlawful gathering.

And if, instead of Vladimir Putin’s stern unsmiling face, the Prime Minister was looking at a screen full of quiz participants – his own staff – crowded around their monitors, then his staff would seem to be in unlawful gatherings too.

When the Prime Minister said ‘all the rules have been followed’ he did not mention they were the quiz rules.

If these contextual points can be made out then this could be a difficult situation for the Prime Minister and his staff.

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You would think this was bad enough – and sufficient to satisfy those who are hostile to the Prime Minister and distrustful of him.

But no.

The picture also, it was contended, showed something even worse, if you looked carefully.

Looked hard, like one would look at a slice of toast to maybe see a somewhat bewildered face of Jesus.

In the top-left corner, we were told, there is black bin liner.

And if there is a black bin liner, it followed, it would have to be masking a security camera.

But.

There is no black bin liner.

And under the lack of a black bin liner there is no security camera.

What you can see is a pelmet – in effect upholstery for curtains.

You can see this in these pics:

This, of course, did not prevent a number of usually sensible people from tweeting about a black bin liner hiding a security camera – members of parliament, journalists, critical thinkers.

As well as all those who, well, would also tweet without any hesitation in other situations about ‘dead cats’ and ‘false flags’.

What all this tells us is a couple of things,

The first is the truth that many people will want to see a deeper conspiracy when no conspiracy needs to be posited.

The second is that we have a Prime Minister for whom many will believe it is plausible is capable of adopting the tactic of putting a black bin liner over a Downing Street security camera.

The number of people ready to believe this of our current Prime Minister is in and of itself significant.

(Indeed, some reading this blog post would be ready to believe if there were more compelling evidence.)

But as this blog averred recently, we have an arrogant government that has not even got the basic competence to be deceitful and cunning.

Even if there were a security camera in Downing Street instead of a pelmet, Johnson would probably not have cared anyway.

This is because he would (then) have undoubtedly not even thought that it could possibly matter – at least to him.

So what?

Well.

And now we come to the real political significance of the picture.

For what is important for what happens next to the Prime Minister is how freely this information is now being given to the press by his own staff.

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Why the prime minister and other politicians should not be wearing police uniforms

7th December 2021

One of the wisest political decisions in the inter-war years was to ban political uniforms:

They knew in the 1930s that the combination of uniforms and democratic politics is not a happy one.

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This blog has previously been critical of the Home Secretary for wearing an especially designed police uniform and attending a police operation:

Not even Winston Churchill wore a police uniform as Home Secretary in similar circumstances:

One perhaps hoped that the Home Secretary’s wish to dress up in police uniform was a one-off.

But no.

Now we have this spectacle:

We have the very Prime Minister wearing a police uniform.

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Does it matter?

Surely there is no harm in politicians wearing fancy dress?

And perhaps there is no harm in them doing so, as long as they look silly when they do.

But.

A distinction between the police and the civilian politicians to whom they are accountable is a good thing.

The blurring – even removal – of that distinction is, in turn, a bad thing.

The distinction is a mark that we are not a police state – and a mark that we are not in any way approaching a police state.

It is a line – a police line, if you will – which should not be crossed.

Even for promotional photographs.

And already we are at a stage where ministers are expected to have at least two United Kingdom flags behind them in official photographs and films.

That would have too seemed odd for a British politician not so long ago.

Visual rhetoric and paraphernalia is potent, sometimes toxic.

The legislators of 1936 were sensible enough to halt political uniforms in the United Kingdom before it went too far.

A similar prohibition on politicians in uniform would also be a wise move.

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The lack of care about the Downing Street rule-breaking is more concerning than the rule-breaking itself

5th December 2021

Yesterday this blog covered a government supporting politician saying openly that the police should not trouble themselves with the now infamous Downing Street party of last Christmas.

Today the Lord Chancellor and Justice Secretary said – incorrectly – that the police do not normally investigate offences more than a year old.

There is something up here.

Yesterday this blog averred that it is not a good thing for politicians to routinely be reporting each other to the police, and also that the penalties for parties a year ago were disproportionate.

So, on those bases, this blog is not cheering and clapping the prospect of the police and the criminal process getting involved in a matter of political controversy.

But.

Even taking any reservations at their highest, there is also something worrying about how ministers, their advisers and their political supporters are so nonchalant about having broken the rules themselves.

And for the nonchalance of the Lord Chancellor and Justice Secretary to extend to incorrectly stating the position of the police incorrectly, then that makes the situation very worrying indeed.

His language was also especially evasive:

‘Unsubstantiated.’

The word a lawyer often uses when they cannot deny the alleged fact, but are instead pinning everything on a lack of proof.

It is invariably telling when the word is used instead of the more simple ‘untrue’.

Perhaps the government will brazen this out.

Perhaps it will be a mini-scandal soon forgotten in our exhausting, hectic news-filled times.

But it is worth pausing a moment to consider what is actually happening here.

There are credible, non-denied reports of a substantial breach of the criminal law in Downing Street.

That would be bad enough – though sometimes mistakes and misjudgments do happen.

But it is the cavalier attitude of the government and its supporters to these reports that is more concerning.

One rule for us – and no rules for them.

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A United Kingdom politician openly says that Downing Street should be above the law

4th December 2021

Here is a tweet to consider carefully, from a British Member of Parliament:

Let’s separate out the issues here.

First, there is something to be said against politicians reporting each other to the police and seeking prosecutions.

Getting the police involved should not be a a routine part of political activity and party campaigning.

It is, to an extent, distasteful as a partisan tactic.

But second, if there are laws then they do have to be enforced equally.

It may well be that the penalty against parties last Christmas was disproportionate and illiberal.

But it was a penalty that many outside Number Ten incurred.

And so either those penalties for others should all be revoked or the party-goers of Downing Street should be treated the same way.

One does get the sense that those in the government machine regard the laws and rules they impose on the rest of us to be only for the rest of us to comply with.

Third, the Member of Parliament is openly saying that Number Ten  should be exempt from police investigation and excused from the deployment of scarce police resources.

That is an extraordinary proposition, if you think about it.

But one suspects the Member of Parliament has not really thought about it – though that, in turn, makes it worrying as a casual aside.

On any view, such a public statement by a Member of Parliament tells us some unfortunate things about the state of our polity as 2021 comes to an end.

Brace brace.

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The UK state’s admitted collusion in the death of Pat Finucane should inform public debate on immunities for state agents and operatives

31st October 2021

My column in Prospect this month is on the ‘licences to kill’ that exist in the law of the United Kingdom.

But in case any person thinks that article is alarmist or somehow academic in averring the existence of such provisions and their implications, reference should be made to the circumstances of the death of Pat Finucane.

These circumstances are not as well known as they should be, and they should inform any consideration of the law and practice of lethal force by or on behalf of the United Kingdom.

These are three things to know.

First: the lawyer Pat Finucane was killed in 1989.

Second: in 2012, Sir Desmond Da Silva, the author of a government-commissioned report, concluded:

“Overall, I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the State. […]

“The real importance, in my view, is that a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.”

(Paragraph 115 here.)

Third: the then prime minister of the United Kingdom David Cameron admitted and apologised for this collusion:

“The collusion demonstrated beyond any doubt by Sir Desmond, which included the involvement of state agencies in murder, is totally unacceptable.

“We do not defend our security forces, or the many who have served in them with great distinction, by trying to claim otherwise.

“Collusion should never, ever happen.

“So on behalf of the Government, and the whole country, let me say again to the Finucane family, I am deeply sorry.”

(Column 297 here.)

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There is, of course, a lot more that should be known about the killing of Pat Finucane by anyone interested in the history of Northern Ireland and in the history of the United Kingdom state.

But it should be more widely known that there is no doubt that the United Kingdom state colluded in the death of a civilian and the United Kingdom state has admitted and apologised for its collusion in this death.

This is therefore not the extreme accusation of some anti-government agitator but the confirmed position of the United Kingdom state itself.

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And so the possibility is not fanciful that powers and immunities that the United Kingdom state confers upon itself may be misused by the United Kingdom state.

The possibility of misuse is such that there should be anxious scrutiny of these powers and immunities.

The United Kingdom state does not say that it wants to kill people.

But by granting itself – and its officials and operatives – immunity from any legal liability, it is creating a situation where there is no legal disincentive from ensuring unlawful deaths do not happen.

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The *real* licences to kill issued by the United Kingdom state

29th October 2021

What would be a ‘licence to kill’?

The word ‘licence’ is familiar – but is also important.

At law, a licence is not – say – a mere endorsement or an encouragement.

It is not really just a bare permission (which can be for something you are permitted to do anyway).

A licence is a permission to do a thing that otherwise would be unlawful – but for that licence.

It is, in effect, the get out of jail card – or at least a get out of any liability card, either criminal or civil.

So, for example, a licence will stop a person in another person’s field from being sued for trespass, or a software user from being sued for copyright infringement for using another proprietary software.

Or a licence will stop you from being prosecuted for driving a car on the public highway – or even for watching everyday programmes on an everyday television.

And so on.

Licences are the signifiers of the sheer extent of the prohibitions around us.

They are permissions to do things that are otherwise banned.

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A ‘licence to kill’ would be a permission to kill another person that otherwise would lead to the killer incurring criminal and/or civil liability for that killing.

In essence: to kill without legal consequence.

You may think that a ‘licence to kill’ is the fictional stuff of James Bond and other spy thrillers.

But, in legal fact, they exist in the law of the United Kingdom – and they are multiplying.

They are not formally called ‘licences to kill’, of course – and they are not numbered sequentially (as far as we know) – but they do exist.

Go over to my column this month at Prospect magazine to find out more.

(And please do click on the article, as it means a lot to me and to the magazine.)

 

The “I will make something up…who are they going to believe, me or you?” police officer only gets a written warning – and why this matters after the Sarah Everard murder

2nd October 2021

The news in the United Kingdom has been dominated in the last few days by the murder of Sarah Everard by a serving policing police officer by means of his police powers – for which the murdering police officer received an exceptional whole-life sentence.

There have been some dreadful (if not surprising) responses – such as the preposterous metropolitan police statement that those who doubt the credentials of an arresting officer should ‘wave down a bus’ (see this blog yesterday).

Another inane statement was made by a Conservative politician and crime and police commissioner.

Sarah Everard should have been more “streetwise about the law”:

https://twitter.com/davidallengreen/status/1443936403323248645

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This strange view that one should challenge an actual police officer prompted memories of an incident last year in Lancashire.

Watch this video of a confrontation – watch it a few times, so the content of the exchange sinks in:

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Here the police officer actually shouts at someone challenging his power of arrest:

“I will make something up…

“Who are they going to believe, me or you?

“Who are they going to believe, me or you?”

*

Presumably the citizen here challenging the police officer was not being streetwise enough.

Presumably the citizen should have waved down a passing bus, so that the bus driver could adjudicate.

*

So whatever happened to this police officer?

The police officer here is conducting himself in such a way as to undermine police officers everywhere, and indeed so as to undermine the rule of law.

Presumably this conduct would have the most serious of sanctions, and this officer would no longer employed be in the police force.

And his colleague stood by watching this happen, as if it was a normal part of a police officer’s working day.

*

Well.

All that happened is that the officer received a mere written warning.

This was reported just over a month ago, some fifteen months after the incident.

All the Lancashire police said was:

“A misconduct meeting has been held in relation to this matter and the officer involved has received a written warning.

“The matter is now concluded.”

The officer is not named and he is presumably continuing with his police work otherwise unaffected by what happened.

The Independent Office for Police Conduct (IOPC) provided more information:

 ‘At a misconduct meeting in May he accepted breaching the standards of professional behaviour in respect of: integrity, discreditable conduct, authority, respect and courtesy, use of force; and duties and responsibilities.’

Let’s break this down.

This means the police officer accepted he acted:

– with a lack of integrity,

– discreditably,

– with a lack of authority, respect and courtesy, and

– in breach of his obligations in respect of the use of force, respect and courtesy.

And for all these admitted failures, the police officer did not even get a final written warning, let alone anything more onerous.

Perhaps if he is filmed doing this again, he may be given a final written warning – because then it would be really serious.

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The full IOPC statement is here and it is dated June 2021.

It states (with my comments in brackets):

“During our investigation, which was completed in December, we obtained accounts from the two police officers involved in the incident as well as the complainant and one other man who was there at the time.

‘We reviewed the video footage and a number of other police witnesses provided statements.

[One can bet they did.]

“Neither of the police officers were wearing a body-worn video camera.

[What a surprise.]

“We found that when police arrived, they found themselves blocked by a van and a car. The complainant was one of four men present at the time who were requested to move the vehicles.

[They evidently brought it on themselves.]

“Only part of the interaction between the police officer and the complainant was caught on camera.

[And that presumably lessens the seriousness of the particular exchange recorded.]

“We found one officer had a case to answer for misconduct. At a misconduct meeting in May he accepted breaching the standards of professional behaviour in respect of: integrity; discreditable conduct; authority, respect and courtesy; use of force; and duties and responsibilities.

“He was given a written warning.’

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The impression given by that last sentence – and the impression the BBC converted into a statement of fact in its report – is that it was the IOPC that imposed the sanction.

But usually the IOPC reports, and it is the particular force that imposes the sanction.

So I asked the IOPC about this yesterday, and they told me:

“at the end of an investigation we determine whether an officer has a case to answer for misconduct or gross misconduct. The force will then arrange disciplinary proceedings (if required) and it is for the person (or panel in some cases) in charge of that hearing to determine whether the case is proven and, if so, what the sanction should be.”

So it was the Lancashire police who gave the written warning, and not (as the BBC reported) the IOPC.

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And what about the police officer who just looked on as this officer shouted his threats about making things up?

The IOPC said:

“The other officer whose conduct we investigated was found to have no case to answer.”

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Lancashire police assert that the matter is “now concluded”.

Concluded, that is, with a mere written warning, with the officer keeping his anonymity and presumably he is carrying on policing citizens.

And presumably he is also giving evidence regularly in court on which convictions are supposed to rely.

Who is the court going to believe?

Him or the defendant?

A police officer who freely – and loudly – threatens that he will make things up when his credentials are challenged.

And the court will not know any different.

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“The matter is now concluded.”

But.

The matter is not “concluded” – certainly not in this post Sarah Everard age.

It is not good enough that behind closed doors, in secrecy, mild sanctions are imposed for conduct which even the officer admitted was in breach of so many rules of conduct.

This is ‘closing of the ranks’ – but in a systemic and structural way, rather than as a matter of mere police culture.

And there will be many who will not be surprised at the police misconduct here:

https://twitter.com/davidallengreen/status/1251578141908361217

Street wisdom is no help.

Waving-down a bus will not make a difference.

https://twitter.com/davidallengreen/status/1443940430471643152

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That a police officer who shouts loudly that he will make something up when challenged will keep his job and his anonymity – and will presumably carry on policing citizens and providing evidence to courts – is an absolute counterpoint to the assertions that citizens when confronted with an arresting officer can do anything other than comply.

For who would a court believe?

The serving police officer with a warrant card?

Or the arrestee?

“I will make something up…

“Who are they going to believe, me or you?

“Who are they going to believe, me or you?”

Who indeed.

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Why the advice of the Metropolitan Police that those concerned by wrongful arrest ‘wave down a bus’ is besides the point

1st October 2021

The metropolitan police have published statement in response to the public concern about the case of Sarah Everard, who was murdered by a police officer using his police powers.

The statement is here.

In the final part of the statement there are suggestions about what to do if you are arrested by a lone plain clothes officer, and it concludes with this advice:

‘If after all of that you feel in real and imminent danger and you do not believe the officer is who they say they are, for whatever reason, then I would say you must seek assistance – shouting out to a passer-by, running into a house, knocking on a door, waving a bus down or if you are in the position to do so calling 999.’

Waving down a bus.

Just think about this.

As the estimable Hannah Rose Woods avers:

Imagine the scenes of a person challenging what may be a lawful arrest by stopping a bus and getting the bus driver involved.

It would probably end up with the hapless bus driver being arrested as well.

One gets the sense that the writer of this police statement had, by the end of it, ran out of ideas and was winging it like an unprepared student in the last half-hour of an examination.

But even the other advice in the statement is unrealistic and misconceived.

Anyone challenging arrest can say hello to the offence of resisting or wilfully obstructing a constable in the execution of their duty.

They may also say hello to Mr Taser.

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https://twitter.com/davidallengreen/status/1443889485234704401

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Telling you how to vet whether someone stopping you in the street is actually a plain clothes police officer is rather besides the point, when it is the actual police officers that are the problem.

For this is the problem with the Everard case.

The murderer was a police officer, using police procedure.

The problem is not about public confidence about whether these people are police officers or not.

The problem is that they are police officers.

Here consider these two tweets from the writer Eleanor Penny:

https://twitter.com/eleanorkpenny/status/1443499311636025346

https://twitter.com/eleanorkpenny/status/1443502729645764609

She is absolutely right.

The problem is not that this murder was a ‘wrong un’ – a bad apple, and so on.

A problem is the immunity and impunity with which police officers routinely and casually use their coercive powers.

They know they can use their coercive powers at will, with no real accountability.

The powers of stop and of arrest are so general, and the thresholds they have to meet (or say they meet) are so low, that they can freely inflict what would otherwise would be an assault as they wish.

And even if, in a particular instance, an officer exceeds their authority, there is no real consequence for the officer: a civil action may be brought against the police force, or a complaint may be made, but the officer will continue in their job unaffected.

When you come to believe that a warrant card is a casual device, then – at the extreme – you have the situation in the Sarah Everard case.

An extreme on a scale, and not something isolated.

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Yesterday this blog set out why the whole-life sentence for the murderer of Sarah Everard was spot-on.

Because the offence was committed by means of the use of police power, then it was so exceptionally serious as to warrant an exceptional sentence.

But.

The misuse and abuse of police powers are relevant in many other situations, and the law – and judges – should similarly be alert to their presence, and not just in the extreme cases.

And it should not be for those facing arrest to vet the credentials of an arresting officer.

Still less wave down a bus driver to get them involved and possibly also arrested.

The problem is about how police officers are, in effect, unchecked and (to use a phrase) a law to themselves, with no real accountability.

And this should not be made the responsibility of the arrestee or potential victim.

That bus has passed.

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