One of my more memorable cases at number one on that list, the Court of Appeal, was the case of R v J (a minor).
J was a fifteen-year-old lad called Josh. He had had sex with a thirteen-year-old girl. As such, in the eyes of the law, both were under the age of consent to have lawful sex. They had been caught when one of her friends posted about her mate’s dalliance on, yes, you’ve guessed it, Facebook. The girl’s parents discovered this and they weren’t happy. When they questioned the girl, she intimated that she had been raped.
Josh was interviewed and accused of rape. His response, perhaps understandably given his immaturity and the seriousness of the allegation, was: ‘Rape! She was mad for it.’
The girl was then interviewed again and admitted that it wasn’t rape. Unfortunately for Josh, having made an admission to having sex with a thirteen-year-old girl, which is a criminal offence, he was charged with sexual activity with a child. And, in the Youth Court, having confessed to the charge, he had little option but to plead guilty.
After entering his plea, his solicitor started to wonder whether this was right and asked me what I thought. ‘Because,’ as he said, ‘it doesn’t seem fair, does it, that one kid under sixteen should be charged because he was a boy, and the girl who was also under sixteen, and therefore had also technically broken the law, wasn’t charged at all.’
I saw the logic in this, so I tried to be clever and drafted grounds of appeal to challenge the decision to charge ‘J’. I said that this was an unreasonable decision, and that the conviction should be quashed. I genuinely believed that I had made a smart legal point. I signed my grounds of appeal and argument and sent them off feeling pretty pleased with myself.
When it came to the hearing, I arrived at the Royal Courts of Justice with my blue bag slumped nervously over my shoulder and walked past the usual array of cameras and journalists, who were there for a much more newsworthy case involving a footballer. I then made my way through the massive oak doors, through security and into the marble-floored hall. As a barrister it is where you want to be, demonstrating your brain and wits in one of the highest courts of the land. The problem though, is that your wits and your brain are minuscule in comparison to the brain and wits of a High Court Judge. They are smarter than you, they know more than you, and they will take what you think is a clever point and destroy it. Unless, of course, it really is a clever point, in which case they will make you argue it and discuss every detail of it, until you are left pleading with them to stop. As my shoes clip-clopped across the forecourt, I was now starting to worry that my clever point was actually a bit shit.
I went down to the robing room and started to put my kit on. There is a different atmosphere in the robing room of the Royal Courts of Justice. The banter, mild bullying and overt misogyny of a typical Crown Court robing room gives way to gloom and fear. There is no conversation, no laughter, no smiles, just the grim features of lawyers busily losing all confidence in the arguments that they are about to proffer.
When I first started, the robing room at the Royal Courts of Justice had a lovely elderly attendant called Arthur who used to play Radio 3 on a transistor radio, and called everyone sir – sadly, Arthur’s been retired off, and the sound of Radio 3 has been replaced with the grim silence of fear.
I was to be in front of Mr Justice McCoombe, Mr Justice Lacey and Lord Justice Swinton. I had been in front of Swinton once before. He asked me a question which I answered in such a garbled way that he never bothered asking me another one.
I made my way into the court and sat on the Counsel’s row; my heart was pounding and a strange nervous pulse had developed inside my wig. I no longer had any confidence whatsoever in my clever point.
I listened to the two cases that were heard before mine. Both were appeals against sentence. One of them involved an armed robbery; a rather old, tired-looking barrister with a Northern accent was sluggishly suggesting that the sentence of six years was manifestly excessive.
Suddenly, Mr Justice McCoombe turned on him. ‘Mr Leaman,’ he said, ‘your client pointed a sawn-off shotgun into the face of a totally innocent Post Office cashier.’
‘Ah,’ said Leaman, pointing a hoary old finger in the direction of the Judge, ‘but at least he didn’t pull the trigger, My Lord.’ The appeal was dismissed.
By the time they got to me, my confidence had completely evaporated. I stood up, a complete bag of nerves. I opened my mouth and hoped that words would follow in the form of vaguely coherent sentences.
‘My Lords,’ I began, ‘this appeal concerns the inherent wrong that, in my respectful submission, befell my client.’
They seemed disinterested but at least no one had shouted at me. I continued tentatively, like a mouse tip-toeing through a minefield. Initially it was going quite well, until I got to my – increasingly less clever – point: ‘After all,’ I said, ‘the Sex Offenders Act was not meant to be a stick to beat errant teenage boys with.’
At this they took it in turns to kick me, metaphorically, around the court.
‘Mr Winnock, isn’t it designed to protect teenagers?’ asked Lacey.
‘Yes, of course, My Lord,’ I said.
‘Then why shouldn’t it protect the thirteen-year-old girl your client had sex with?’
‘It should, My Lord.’
‘So what is the point of your appeal?’
‘It’s just unfair and unreasonable, My Lord.’
Lord Justice Swinton now joined in. ‘Unreasonable to protect children, Mr Winnock? Unfair to protect thirteen-year-old girls? Really?’
‘No, My Lord.’
‘Because that is what you want us to find, isn’t it?’
‘Not at all, My Lords.’
‘But you accept that if we find in favour of your client, that is, that it was unreasonable to prosecute him for having sex with a thirteen-year-old girl contrary to the law as passed by Parliament, then we would be saying that it was wrong to protect thirteen-year-old girls from having sex with men?’
‘I don’t think that’s what I’m saying, My Lord.’
At this stage I no longer knew what I was saying, my mind had taken on a cabbage-like quality. He was absolutely right. My point was totally garbage. Complete crap. I had tried to be clever and had come up before people far cleverer than me.
‘Is that what you want public policy to be, Mr Winnock?’ added Mr Justice McCoombe. ‘Some kind of green light for everyone to have sex with thirteen-year-old girls?’
I stood there and made a noise that I imagine was not dissimilar to the sound of air coming out of a dead person.
‘Do you have anything else to put to us, Mr Winnock?’
Only that I wanted to run away and hide. ‘No,’ I said.
And with that, the appeal of ‘J’ (a minor) was dismissed. I left court truly humbled I had tried to be clever, and I wouldn’t be trying again any time soon.