In this chapter, I want to talk about my particular area of daily practice – criminal justice. For those who have read The Secret Barrister: Stories of the Law and How It’s Broken, the territory trodden may have a familiar feel, but the focus here is different. Rather than concentrating on how criminal justice works (or doesn’t work) in practice, over the following pages we will look at the way in which we discuss criminal justice, and the stories we tell ourselves – and are told by our betters – about who it is for.
For crime, perhaps more than any other area of law, is something on which almost everybody has a strong opinion. And it is understandable why the subject of criminal justice often provokes such heightened, visceral responses. Criminal offences are the most serious and most affecting breaches of our legal code. At the highest end, they force us to confront unimaginable truths about what we are capable of doing to each other. Even at the lowest end, crimes by their very nature represent such grave wrongdoings against the rights of others or society that the state cannot stand by. It is not enough to – as we do with the civil law – signpost the wronged party in the direction of a courtroom and invite them to assume the responsibility and cost of litigation, if they feel strongly enough about seeking redress. Instead, the state swoops in to remove the dispute from the citizens and feed it through the machinery of the criminal justice system. Private citizens retain a role, as a complainant and/or witness, but their pain and suffering is municipalised; the case passes into public ownership as a transgression not just against one, but against us all. The prosecutor is not an individual, but the Crown. Contrary to popular myth, the injured party does not decide whether to ‘press charges’; the decision whether to prosecute rests with Her Majesty’s Constabulary and the Crown Prosecution Service.1
We all have a stake in criminal justice. And, even if we are fortunate enough to have evaded its direct icy grasp, we can immediately empathise with those who are rendered victims. When we read those awful stories of harm, suffering and loss writ large, we put ourselves or our loved ones in the victim’s shoes. We dare to contemplate, even if for a second, that it was our child who was hurt, our home that was burgled, our spouse who was killed by that driver.
By contrast, it is rare that, when a story about a criminal case breaks, our thoughts – much less our sympathies – lie with the accused. That side of the criminal justice coin does not recommend itself to us as immediately. Nobody likes to imagine, much less plans, that they will be accused of a crime. Such fates befall other people – people who invite the attentions of the state. People who deserve it.
As a result, there is, I worry, a tendency in how we discuss criminal justice – and how we are encouraged to discuss criminal justice – to overlook or distort the principles underpinning the system, in particular when it comes to our understanding of what the system is designed to achieve, who it is for and why it affords the protections it does to those accused of criminal offences.
The neat dichotomy between ‘victims’ and ‘criminals’, good and bad, deserving and undeserving, leads to a common conception of an unbalanced system that sprinkles privilege on the wrong people.
The idea that the protections built into the criminal process have the effect of frustrating justice, rather than securing it, is not new. But, allowed to run unchecked, this idea is dangerous, for it purchases cover for those who would, for their own purposes, like to wear down those protections. Protections which – hard as it may be to imagine right now, reclining in the comfort of your own home – you or your loved ones may, one dark day, depend upon to safeguard your liberty. It is critical, then, that when we are encouraged to agree that the criminal courts are unbalanced, and to endorse reforms to the way the system works, we understand exactly what we are discussing, and what we might be agreeing to surrender.
In order to grapple with the narratives we hear about criminal justice, we will need briefly to lay some foundations about how the criminal courts operate. That will form Part I of this chapter. In Parts II and III, we will look at how our understanding of two key principles – the burden and standard of proof, and the right to a fair trial – can become warped in the blizzard of confused and misleading rhetoric that envelops criminal justice. If you have read The Secret Barrister: Stories of the Law and How It’s Broken, and/or have a confident grasp on the theoretical underpinnings of the criminal courts, feel free to skip ahead to Part II.
‘[We have] a corrupt legal system and a police force crippled by political correctness, in a generous welfare state where the rights of criminals outweigh those of victims and society as a whole.’
Richard Littlejohn, Daily Mail, 24 May 20162
A fuller explanation of the historical development of our criminal trial process is available elsewhere, but, for our purposes, it will assist to quickly run through some of the basics.
The criminal courts of England and Wales operate on an adversarial system, in which two competing sides – prosecution and defence – present and argue their cases in front of an independent judge and/or jury, which delivers a verdict on whether the prosecution case is proved on the evidence.
Back in the sixteenth century, the fashion was for lawyer-free ‘altercation’ trials, in which the prosecutor was the alleged victim and the defendant represented himself, and the court was expected to pick the bones out of a Jeremy Kyle-style confrontation, with few rules to govern the process. However, the model that has evolved since the eighteenth century has imported lawyers acting for either side. As of 1985 and the creation of the independent Crown Prosecution Service, public prosecutions3 are mainly brought by the CPS, acting on evidence gathered by the police, and represented in court either by in-house CPS lawyers or by independent barristers (like me). Crucially, because prosecutions are now brought by the state, in the name of the Crown rather than the complainant, the potential victim is not actually a formal party to proceedings. They are often vital as witnesses, and the CPS should ensure that they are kept informed and are consulted about the progress of a case, but the case itself is not ‘theirs’; the adversaries are the state and the accused.
Meanwhile, defendants are represented by independent defence lawyers, either a solicitor or both a solicitor and a barrister, depending on the nature of the case.
This theoretically guarantees equality of arms between the parties. Each has a lawyer to advise, prepare and present their case, question witnesses at trial and deal with any arguments as to how the law applies. Cases should therefore be decided on their evidential merits, rather than because one side has the advantage of legal assistance while the other is flailing in the dark.
The nature of the tribunal returning a verdict on a criminal case varies according to the type of alleged offence and the court in which it is heard. Despite the indelible cultural association between courts and juries, barely 1 per cent of the 1.37 million criminal prosecutions launched each year are determined by jury trial.4 All criminal cases begin life in the magistrates’ courts, and around 95 per cent remain there. Only the most serious cases – generally those where a sentence of over six months’ imprisonment is expected upon conviction – tend to find themselves sent to the Crown Court, where the prospect of trial by jury awaits.5
The magistrates’ courts are presided over by either a ‘bench’ of three non-legally qualified volunteer magistrates (assisted by a qualified ‘legal advisor’), or a single, legally qualified ‘District Judge’. Magistrates (or District Judges) are responsible for the whole process: they take pleas from the defendants (‘guilty’ or ‘not guilty’); make orders to assist in preparing not-guilty pleas for trial; decide any legal applications that might arise (such as disputes over whether a piece of evidence is admissible); hear the evidence at trial; decide cases; and, if a defendant pleads or is found guilty, pass sentence. The general idea is that, for less serious criminal offences, a quicker, cheaper and more streamlined process than applies in the Crown Court is justified. (Whether you accept that premise is, of course, another matter, but there you have it.)
Of the few that are sent to the Crown Court, the majority resolve with a defendant pleading guilty (or sometimes the prosecution dropping the case), leaving only a (relative) handful of jury trials. In contrast to the magistrates’ court, there is a strict division of labour in the Crown Court. A judge presides over the trial to decide all questions of law (including, if it gets that far, the sentence), while all questions of fact, including the verdict, are in the hands of the jury. The jury comprises twelve random members of the public, drawn from the electoral roll and compelled under threat of imprisonment to attend their local Crown Court and do their public duty.
Although the first incarnation of juries, in the thirteenth century, involved gathering locals with direct knowledge of the case under discussion and inviting them to conduct their own amateur investigations as part of the trial process, the emphasis in the modern era is on independence. Jurors should not know personally any of the people involved in a case. In the American system, jurors can be quizzed about their beliefs and the parties vie to secure the most favourable jury composition, but no such process occurs here. You get who you’re given, and who you’re given are in turn instructed by the judge that they should not undertake any of their own research or discuss the case with anybody else. The verdict should be the views of the twelve people who have all heard the same evidence, rather than based in part on a rumour that someone has read on Twitter.
The trial itself, whether in the magistrates’ or Crown Court, follows the same format. The prosecution opens the case (tells the court what the allegation is), and then calls its evidence. This is usually in the form of witnesses giving oral evidence (note, from the witness box – nobody ‘takes the stand’ in England and Wales), but can also include documents and other ‘real evidence’ – such as the bloodied knife or stolen loot. The witness tells the court what they know, and is then cross-examined by the defence advocate (usually a solicitor in the mags, and often a barrister in the Crown Court6). The prosecution case is followed by the defence case, in which the defendant can give evidence (if he chooses) and call any witnesses of his own, who will be duly cross-examined by the prosecutor. All evidence is subject to strict and complex rules, designed to ensure it is relevant, probative, lawfully obtained and not unduly prejudicial.
When the evidence has been heard, each advocate can address the court in a closing speech, weaving together the threads of evidence that assist their case, and, after the judge has neutrally summed up the case and (in the Crown Court) directed the jury on the applicable law, the finders of fact retire to consider their verdict.
And, after they have assessed the evidence and resolved the key issues – Which witnesses do we believe? What really happened? – they are ultimately required to agree, either unanimously or by a majority of no fewer than ten,7 on the answer to one question: Are we sure, on the evidence, that the defendant is guilty?
If yes, the verdict is guilty. If no, the verdict is not guilty.
The idea is that this edifice provides a solid and safe laboratory for examining and testing evidence, from which the jury can reach fair conclusions. The evolution of the various elements of our trial process has taken centuries, but each part has been carefully calibrated to ensure that a criminal trial is as fair as it can be.
Yet, when it comes to discussing many of these key elements, we can see crucial misunderstandings being repeated, in a vicious circle of confusion, anger and frustration. And perhaps the greatest misunderstanding arises out of the system’s most important guiding principle, as encapsulated in that ultimate question posed to the jury: the burden and standard of proof.
‘Presume everyone in the country is guilty of something – which they are – and lock them up. The entire population. And anyone who can, to the satisfaction of a senior judge, prove themselves to be wholly and fundamentally innocent, will be released. There’d be a bit less fannying about then, wouldn’t there?’
Detective Inspector Grim, The Thin Blue Line, 19958
‘Presumed innocent until proven guilty beyond reasonable doubt’ is a concept with which we all become familiar in our early years, but is nevertheless remorselessly drummed into juries and magistrates at regular intervals throughout every criminal trial in the land. The prosecution brings the case, telling the jury what the defendant is accused of (the burden of proof); it is then for the prosecution to make the jury sure – to prove guilt beyond reasonable doubt (the standard of proof). The defendant does not have to prove his innocence. ‘Sure’ has, in the modern era, overtaken ‘beyond reasonable doubt’ in the language that judges and advocates are expected to adopt, apparently because the phrase ‘beyond reasonable doubt’ led to too many questions from jurors confused as to what that meant.
Probably the most striking example of a confused jury in recent times arose in the first trial of economist Vicky Pryce, in 2013, convicted (at a retrial) of perverting the course of justice after taking speeding penalty points for her husband, former minister Chris Huhne. After being directed on the law and retiring to consider their verdict, the jurors sent to the judge a list of ten questions, including not only ‘Can you define what is reasonable doubt?’, but the rather worrisome, ‘Can we speculate?’; ‘Does the defendant have an obligation to present a defence?’ and ‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?’9 The judge’s concerns that the jury were displaying ‘absolutely fundamental deficits in their understanding’10 of their role was only slightly less damning than the conclusion invited by the Daily Express, which asked, ‘Are some people just too stupid to serve on a jury?’11
But, to return to the point, ‘reasonable doubt’ is now out; ‘sure’ is in. Which is fine and dandy, insofar as it means that courts now only have to deal with questions from jurors confused as to the meaning of ‘sure’.
The centrality of the burden and standard of proof cannot be overstated. Its first formal articulation is commonly traced back to 1791, when the country’s best renowned defence barrister, William Garrow, told a jury at the Old Bailey that ‘every man is presumed to be innocent until proved guilty’. More recently, in 1935, Viscount Sankey LC, in a House of Lords decision, provided the quote that inspired a thousand unimaginative defence closing speeches (as well as a series of Rumpole of the Bailey), when he remarked:
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt . . . If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner . . . the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.12
When we examine the principle a little closer, its value becomes clear. The prosecution bears the burden of proof because it is only fair that a party making an allegation against an individual explain what the allegation is and how it can be proved. This applies throughout legal codes, both in civil and criminal law: he who asserts, must prove. Switching the burden of proof onto a defendant will often require that they prove a negative, which is usually impossible. If you can bear me explaining the joke, it is why Detective Inspector Grim’s rant at the beginning of this section is funny. The notion of anyone, particularly when faced with something as serious as a criminal allegation, having to prove that they didn’t do something, offends both our inherent sense of fairness and plain common sense.
As for the standard of proof being so high – compared to the standard that applies in the civil courts, where a claimant only has to prove his case on ‘the balance of probabilities’, i.e. so that a court finds it is more likely than not (51 per cent to 49 per cent, if you like) – the rationale lies in the peculiar nature of the criminal sanction. The consequences of a criminal conviction – from the stain on your character through to the loss of liberty – are serious and life-changing. While civil cases often raise issues of enormous importance and can have their own serious ramifications – loss of money, loss of your house, loss of your job, loss of your child – a criminal conviction can encompass all of those and much more besides.
And, if it were you standing in a courtroom accused of a crime you swear you did not commit, being judged by twelve strangers who knew nothing about you other than what they had been told in a court of law, you would want those twelve to be sure – not just suspicious, or semi-persuaded, or of the view that it was more likely than not – before they came back and gave the single-word verdict that brought your life crashing down around you.
Numerous cases in the criminal courts centre on the conflicting accounts of two people. Many more involve contested identification evidence, which is always fraught. How many times have you been pretty sure you recognised a friend in the street, only to discover when you next spoke to them that you were completely mistaken? The risks of allowing convictions where a jury is fairly sure that a witness was pretty sure of the correctness of their evidence speak for themselves. The unsupported evidence of a single witness, like identification evidence, can (and often does) found a criminal conviction, but it has to be of such high quality that the court can be sure there is no room for error.
In criminal proceedings, you also have the inherent imbalance of power between the prosecutor and defendant. The state’s resources far exceed the individual’s. The state can call upon a police force of over 120,000 officers imbued with both the manpower and the legal authority to search, seize, arrest, detain, question and scientifically examine in the course of their investigation. A lone defendant and his solicitor cannot even begin to compete in the evidence-gathering stakes. Placing the burden of proving an assertion on the party best placed to investigate all lines of inquiry and obtain all the relevant evidence is, again, an appeal to basic standards of fairness. If the suspect has committed a criminal offence, the state should, with all its power and resources, be able to prove it to the highest standard.
That is why, where there is any doubt in a criminal case, we exercise it in favour of the accused. Even though it means that, inevitably, a number of factually guilty people will benefit and be found not guilty, we prefer this as the lesser of two evils. This idea informs Blackstone’s formulation, that it is better that ten guilty men go free than one innocent man suffer (a formulation which is perhaps not as well known as I’d assumed, given the ‘outrage’ reported in the Daily Mail after Cliff Richard quoted it on ITV’s Loose Women in 2018).13
Unfortunately, the burden and high standard for convictions often carries invidious consequences.
The elision of the interests of the complainant and the burden of the prosecutor can make the trial process particularly horrid for victims of crime. We often hear complaints from victims’ groups that complainants in criminal proceedings feel as if they are ‘put on trial’,14 or being forced ‘to prove they’re not lying’.15 That’s because, quite simply, they are. A criminal trial requires the state to prove the truth and accuracy of its allegations. If the state’s allegations are based on the testimony of a witness, the state must prove that the witness is truthful and correct, and satisfy the court that there is nothing that fatally undermines the credibility of the witness’ evidence. That is unavoidable.
The standard of proof can bite even harder. It means that factually guilty people can be acquitted. It means that, in many cases, victims will leave the criminal justice system with a sense of grievance, of injustice squared, when something which they know happened – something terrible and unlawful, for which they deserve justice – cannot be proven on the available evidence.
There is an obvious risk that lawyers pontificating about the philosophical importance of their cherished principles appear at best stuck in an academic bubble, removed from the real lives of those affected, at worst airily and callously indifferent. We think it’s far more likely than not that this man killed your child, but our first principles mean that we’re going to let him go scot-free. Yes, we accept that the evidence all points towards your complaint of rape being completely true, but find ourselves a fraction short of ‘sure’, so no justice for you, I’m afraid. Please be sure to complete your witness expense form – we wouldn’t want you to miss out on reclaiming your parking.
And, having spent a decade sitting post-trial in witness suites with complainants bruised by the experience of cross-examination and numbed by the pain of verdicts that fly in the face of their lived, bloodied experience, I know, from those re-victimised at its hands, the collateral cruelty of the standard of proof, how it can appear an impediment to justice, rather than its guarantor. Delivered from behind the veil of secret jury deliberations, victims will never know how and why their fate was decided as it was.
Furthermore, notwithstanding that I think Blackstone is broadly correct, I would never suggest that it follows that the pain of a victim denied justice is worth only a tenth of that of a wrongly convicted defendant. As a prosecutor, I see daily how important the state imprimatur of a conviction can be to help complainants and their families move towards closure, and the devastation when a ‘not guilty’ drops from a foreman’s lips.
But I think perhaps the best way to explain it is that, while the official mark confirming that a crime was committed, and a sentence to match the gravity of what was done, will often be of enormous importance to a victim of crime, it is not the only form of justice available. It may well be the one that matters most, but other – if lesser – forms do exist. The civil courts, as we have seen, operate on a lower standard of proof, and many victims of crime have secured a different form of justice in those courts. High-profile examples from Scotland have in recent years seen complaints of sexual offences, which did not result in criminal convictions, being successfully relitigated as civil claims.16 I’m not for a moment suggesting that this is equivalent justice, but it is something.
By contrast, if you are wrongly convicted, there is no alternative. That is your lot. The very best you can hope for is that you are vindicated on appeal, but, once those routes are exhausted, you are left, indelibly, with the stain and consequences of conviction. And nothing you can do will ever begin to put that right.
And, while a criminal justice system which too frequently allows the guilty to go free will quickly lose public support, one which is happy to fill its prisons with the ‘possibly guilty’ and ‘probably guilty’ will disintegrate entirely. No system, short of DI Grim’s, can ever promise to catch all, or even most, guilty people. But a good system can promise not to convict you unless you do something wrong. It can prioritise and honour that term of the social contract: if you live a law-abiding life, you need not fear the coercive sanction of the state. Rather than a watered-down memorandum of understanding stating that if you live a law-abiding life, the coercive sanction of the state might still on any given day uproot your life and take everything, because that’s the way we catch more bad guys.
Of course, even with the standard of proof as high as it is, wrongful convictions still occur. In the past five years, 557 convictions were found by the Court of Appeal to be ‘unsafe’ – the test for overturning a conviction.17 No system is perfect. But, by calibrating the burden and standard of proof to emphasise and minimise the risk of convicting the innocent, we can, at the very least, reinforce and preserve the incentive to be good.
So that is, broadly speaking, why we have the burden and standard of proof. And much of the theory may strike as instinctual; we know it, even if we don’t ever articulate it. And we would certainly expect it to apply if ever we were wrongly accused of a crime. We would want the prosecution to be forced to prove to the highest possible standard that we were guilty.
But it is when we move away from the why, and towards the question of how the principle operates in practice, that we seem to trip ourselves up. In particular, there is recurring confusion about the meaning of ‘not guilty’ and ‘guilty’, and the presumption of innocence.
The problem with a ‘not guilty’ verdict is that it means quite literally just that. Not. Guilty. Those two words embrace a wide spectrum of possibilities, from a jury being certain of innocence to their being a hair’s breadth away from sure of guilt. Because we don’t require juries to give reasons or explanations for their verdicts, this means that, in every acquittal at the Crown Court, there is an unsatisfactory lacuna, as those involved can only speculate about what evidence the jury did and did not accept, and what conclusions were drawn.
So it is that, following an acquittal, interested parties queue up to offer their own divination. Most commonly, a defendant will suggest that he has ‘proved his innocence’ by virtue of his acquittal. This, it follows from what we’ve looked at, is simply not true. He has been found not guilty. The legal presumption of innocence remains intact, meaning you retain immunity from coercive criminal sanction. But neither of those things amounts to a positive finding of innocence. Of course, a good number of acquitted defendants will, as a matter of fact, be innocent, but their positive vindication is not exhaustively established solely by that binary, inscrutable jury verdict. And it may sound like the pettiest ‘Well, actually . . .’ with which to rain on an acquitted defendant’s chips, but it is vital to bear in mind the distinction. Because it feeds into other myths about the meaning of an acquittal.
A good example was the media circus that surrounded footballer Ched Evans, who was convicted of rape before having his conviction quashed on appeal and then being acquitted at a subsequent retrial. A prepared statement read outside Cardiff Crown Court following Mr Evans’ acquittal declared, ‘My innocence has now been established.’18 A particular and unpleasant feature of this case, since Evans was first charged in 2011, had been the abuse piled onto the complainant by Mr Evans’ supporters, including teammates.19 Her name had been circulated online, in contravention of the legal prohibition on publishing the identity of complainants in sexual allegations, and she and her family had been subjected to appalling abuse and threats, forcing her to change her name and move house five times.20 Following the acquittal in 2016, calls for vengeance boomed once more throughout social media. The complainant had been shown to be ‘a liar’.21 Except, of course, she hadn’t. Not in the least. She, like every other complainant in a criminal trial where there is an acquittal, was no more a proven liar than the defendant was a proven paragon; the verdict simply does not allow for that inference to be drawn. The issues in this trial were whether the complainant – who was so drunk that she did not even remember having sex with Evans and his teammate, Clayton Donaldson, that fact only coming to light as part of the police investigation after the complainant reported losing her handbag on a night out – had consented, and whether Evans had reasonably believed she had consented. The verdict of not guilty could well have indicated the jury being sure that, because of her condition, the complainant was too drunk to consent, but being slightly less than sure that Evans did not reasonably believe that she was consenting. In such a scenario, there would be absolutely no finding of fact adverse to the complainant at all. But, by asserting his ‘demonstrated’ innocence, Ched Evans was, whether intentionally or not, signalling that he had proven the untruthfulness of the girl involved.
The prevalence of the myth that an acquittal equals a false complaint is troubling. An astonishing exchange took place in October 2017 between Radio 4 Today presenter John Humphrys and Director of Public Prosecutions Alison Saunders, when the latter made the obvious observation that not every acquittal at a rape trial represented a false complaint. ‘Really?’ spluttered Humphrys, his incredulity copied the next day in a headline in the Sun accusing the DPP of ‘sparking outrage’ with her comments.22
An illustration of the fallacy is the trial of DJ Neil ‘Doctor’ Fox in 2015. Mr Fox was acquitted at Westminster Magistrates’ Court of ten allegations of indecent and sexual assault brought by six women, and announced that he had been ‘vindicated’. He said, ‘a lot has been said and written about me . . . [that] will need to be addressed and rectified’, adding what the Telegraph interpreted as a ‘hint that he could sue the Crown Prosecution Service’.23
However, as Mr Fox had been tried at a magistrates’ court, rather than a Crown Court, the magistrates, when announcing their verdicts, gave reasons, as they are required to do. These were published and provided a slightly different impression than one might have gleaned from Mr Fox’s punchy statement.24 The court emphasised that they did not find that any of the complainants had been untruthful – to the contrary: ‘We believed each of the complainants.’ The acquittals, the court explained, were due to the bench variously not being sure of the facts alleged, sure of the context in which the events occurred or sure that the conduct amounted to the criminal offences charged, with many complications arising due to the age of the complaints.
It was a peculiar ‘vindication’ of Mr Fox. For one, the court was satisfied that, in respect of one of the allegations, the defendant ‘has lied to us’. The magistrates were sure that, while not criminal, ‘his behaviour on some occasions crossed the line of acceptable behaviour’. They were sure that he had grabbed the breasts of one of his colleagues, and described this as ‘completely unacceptable’. They were sure he had simulated sex with another female colleague, an act which was ‘coarse and unacceptable’, which led to the woman feeling ‘belittled and humiliated’. Mr Fox himself accepted tickling and simulating sexual intercourse with another woman; again the court declared this ‘unacceptable’. In relation to an allegation that Mr Fox had indecently assaulted a fifteen-year-old girl by placing her hand on his penis and putting his finger in her vagina, the court stated: ‘[W]e believe [the complainant]. We do not think she is lying or fantasising. We are aware that for a variety of reasons events a long time ago can be misremembered. In these circumstances it is an invidious task for a court to say it is sure that what is alleged did indeed happen. We have a small doubt and that must be exercised in favour of the defendant.’
As for the implication that the CPS had erred in bringing the prosecution, the court dealt with this head-on: ‘Nor should this verdict be taken as a criticism of the decision to bring this prosecution. It was a strong case and one that needed to be brought to the court for determination.’
This is another common misconception about a not guilty verdict: the notion that an acquittal is evidence that a prosecution should never have been brought. We hear this a lot, but it is a product of the same logical fallacy. The test that is applied to all prospective prosecutions (the ‘Full Code’ test) is twofold: (i) is there a realistic prospect of conviction on the available evidence? (ii) is it in the public interest to prosecute? The threshold of ‘realistic prospect of conviction’ is deliberately lower than the test to actually convict (sure/beyond reasonable doubt), for obvious reason. If the CPS only ever charged cases where they were sure of the suspect’s guilt, not only would we have a system where large numbers of meritorious prosecutions would never be brought, but the function of the jury would be usurped by a single reviewing lawyer, modelled on something akin to Judge Dredd. Hence the CPS ask themselves, having regard to all of the evidence, Is there a realistic prospect of conviction? This strikes the balance between pursuing cases which are weak – risking miscarriages of justice and/or dragging witnesses and defendants through the strain of criminal proceedings where it is obvious that the evidence is too thin to convict – and not charging cases which are strong, but which the prosecution is not certain of winning.
Inevitably, prosecutors make mistakes. Cases which should be weeded out at an early stage are charged. But an acquittal is not by itself proof of this. Any working criminal trial system will result in some acquittals. The obverse – a 100 per cent conviction rate – would be far more disconcerting.
What are the signs of a prosecution that shouldn’t have been brought? It’s difficult, as an outsider to a case, to say. At the end of the prosecution case, if the judge considers the evidence to be so weak that no jury properly directed could safely convict, they are required to direct the jury to return a verdict of not guilty (referred to as a ‘submission of no case to answer’). Such a direction may be an indication that proceedings should never have been instituted, but, again, it is not of itself conclusive. Trials are dynamic processes. Frequently, the shape of the prosecution case changes, as witnesses don’t turn up, or do not give as full an account in the witness box as they did in their written statement (referred to as ‘failing to come up to proof’), or give unexpected answers in cross-examination, or accept propositions put by the defence which assist the defendant’s case. Sometimes, a defence lawyer will do an outstanding job in cross-examination and get the sole eyewitness to agree that, actually, they didn’t get as good a look at the burglar as they’d suggested in their witness statement, and, all of a sudden, a watertight prosecution case is being booted by the judge at half-time.
Without knowing the details of an individual case, and in particular the evidence heard and the decisions reached by the fact-finders, it is impossible to draw the conclusions that many would wish. In the Crown Court, the closest we might get to an answer on acquittal will be, on rare occasions, a judicial blast at the prosecution following a not guilty verdict, with attendant reasons for the judge’s ire, but most acquittals conclude without remark, the underlying reasons remaining forever unknown.
Where a defendant pleads guilty, it means that he is accepting having committed a criminal offence in the way alleged by the prosecution. Where he admits he is guilty but disputes the factual basis of his guilt (e.g. ‘I accept assaulting the complainant by punching him, but I deny kicking him’), then the parties will either agree a ‘basis of plea’ setting out the mutually accepted position, or, if the parties can’t agree, the judge will resolve the issue, usually by hearing a trial without a jury, in which the judge alone decides whether she is ‘sure’ that the prosecution version of events is correct.
Where a defendant is found guilty, it means that a jury of his peers were sure, on the evidence, that he committed the criminal offence charged. Because we don’t require juries to give reasons or explanations for their verdicts, it is up to the judge to consider the evidence and determine on what ‘basis’ the jury convicted (a situation which I personally find wholly unsatisfactory, but there you have it), and to pass sentence accordingly. The judge’s sentencing remarks will make clear to the public the facts that the court – jury and judge – has found.
It follows that a guilty verdict can be more nuanced than appears from a press release – and certainly different from the ‘facts’ alleged by the prosecution when the prosecutor opens the case at the start of the trial. As we have seen, trials are dynamic, with the shape of the prosecution case morphing as the evidence emerges. Even where a defendant is convicted, what is actually proved by the evidence can present a radically different factual complexion, resulting in a sentence far removed from what he would have received had he been convicted on the original prosecution facts.
A graphic illustration arose in 2018, when a man called John Broadhurst was tried for the murder of his partner, Natalie Connolly.25 The prosecution opened the widely reported case to the jury as a brutal and intentional killing, born out of jealousy. One evening, when both parties were intoxicated, Broadhurst had inflicted over forty injuries on Natalie, including severe bruising to her buttocks, back and breasts, a fracture to her eye socket and haemorrhaging of her vagina, after Broadhurst inserted, and then attempted to remove, a bottle of carpet cleaner. As she lay bleeding and dying at the bottom of the stairs, Broadhurst took himself off to bed, only calling an ambulance the following morning, by which time Natalie was, in the callously flippant words used by Broadhurst to the emergency services, ‘dead as a doughnut’.
On its face, a clear case of murder – in law, unlawfully causing death with the intention to either kill or cause really serious harm. Natalie had been heavily under the influence of alcohol, and had taken cocaine, amphetamines and poppers. While it may have been the level of intoxication, rather than the injuries themselves, that was the primary cause of death, the jury were told how the prosecution pathologist would give expert evidence showing that her injuries ‘at the very least accelerated her death’, which would be enough to establish murder.
But as the trial progressed, and evidence was given by prosecution and defence medical experts, an alternative possible narrative emerged. Broadhurst had claimed that the injuries were either inflicted at Natalie’s request, during consensual sex, or were caused when she was stumbling around, heavily intoxicated. Instinctively, many people would consider this a ludicrous defence; but the evidence, once tested, started to afford it some credence. The prosecution witnesses – Natalie’s own family – gave evidence that she had previously told family and friends of how she and Broadhurst enjoyed ‘rough sex’, and had even shown them bruising she had sustained to her body. She was jokingly referred to as ‘Anna’ by her friends – a reference to the character in Fifty Shades of Grey. The medical experts appeared to accept that the bruising was consistent with having been caused in this way. The injuries to her head and eye socket were consistent, the experts said, with having been caused accidentally as Natalie ‘stumbled around in a heavily intoxicated state and collided with objects’. Broadhurst’s explanation for the vaginal injury was supported by computer evidence which the defence had indicated they would apply to put before the jury, and which suggested that Natalie had ‘a proclivity for such things’. The expert evidence which dealt with the cause of death was far from straightforward. While the prosecution’s pathologist maintained that, in his opinion, the cause of death was a combination of the injuries and Natalie’s intoxication, he also accepted that the alcohol and cocaine levels alone were sufficient to have killed her. His opinion that the injuries and intoxication worked in tandem to accelerate her death was set against the opinion of the two defence experts, who gave evidence during the prosecution case that, in their view, the levels of intoxication, rather than the injuries, were the cause of death.
All put together, at the end of the prosecution case, the Crown were left in difficulties. The ambiguity presented serious problems in making a jury sure that (a) Broadhurst intended to kill or cause really serious harm, and (b) his unlawful actions significantly contributed to cause of death. This did not mean that Broadhurst had not committed a serious criminal offence – he had. He ultimately pleaded guilty to gross negligence manslaughter, on the basis that he left Natalie at the bottom of the stairs without dialling 999 when he had a duty of care towards her and it was obvious that there was a risk of death. But the facts that were eventually established as provable by the evidence varied considerably from the prosecution’s initial expectations. By the end of the case, ‘guilty’ meant something quite different from when the trial began. After the judge heard legal submissions at the close of the Crown’s case, the charge of murder was withdrawn from the jury, and Broadhurst pleaded guilty instead to manslaughter.
Understandably, when confronted with the original prosecution facts and the sentence ultimately passed – three years and eight months’ imprisonment – many commentators and politicians were shocked. How could anyone not be? But much of the analysis that followed betrayed a troubling misunderstanding of the evidence, and, crucially, of the burden and standard of proof.
Some of the commentary was simply false. Grazia ran a feature blaming the jury for not ‘buying’ the prosecution case, apparently oblivious to the fact that the decision was taken away from them.26 Harriet Harman MP told BBC Woman’s Hour that the Broadhurst case introduced ‘a new defence, which was, “Yes, it was violence, but it was violence she wanted, because . . . she was the sort of woman who wanted S & M.”’
This, as we have seen, is just not true. Consent provides no legal defence to the infliction of actual bodily harm, let alone death. A famous case with which all first-year law students are invited to grapple is R v. Brown,27 in which the House of Lords, in 1993, upheld the convictions of a group of men who had inflicted eye-watering bodily harm on other men in the course of consensual sadomasochistic sexual activity involving sharp instruments, hot wax and urethras. Consent, the Lords ruled, provides no defence to deliberately injuring another person.28
So, when Ms Harman went on to say, ‘It doesn’t matter whether or not people do want S & M . . . nobody is justified in killing another person,’ implying that the Broadhurst case suggested the opposite, she misrepresented both the facts of the case and the operation of the law. Had the medical evidence established that Broadhurst inflicted the injuries in the way the prosecution alleged, and that they had caused death, he would have been guilty of murder. Consent was relevant only to the extent that it offered an explanation for the injuries to contradict the prosecution allegation of a brutal assault with an intention to kill or cause really serious harm. Theoretically, had he not pleaded guilty to manslaughter, he could have been charged with and found guilty of inflicting actual bodily harm on Natalie in respect of the injuries said to have been caused ‘consensually’.
The Independent ran an op-ed condemning the ‘catastrophic . . . second-guessing by the CPS of the jury that they would not believe Broadhurst intended to kill his girlfriend’.29 Again, this misunderstands the issues. It was not that the CPS didn’t think a twenty-first-century jury would believe that a man would brutalise his partner. Juries up and down the country demonstrate every day through guilty verdicts that they are more than capable of ‘believing’ that violent men inflict horrific injuries upon women. It was a fact-specific case, in which the particular combination of evidence – including the independent testimony of medical experts – meant that the prosecution could not prove the elements of murder to the required standard.
But this – the central role played by the burden and standard of proof in the outcome of the case – was lost in the fog. The Independent inadvertently encapsulated the confusion when it suggested that the CPS ‘calculated that twelve jurors would believe Broadhurst’s defence’. As far as misstatements of the principle go, this mangling of the burden of proof takes some beating. For it was not the case that the CPS calculated that the jury would believe the defence; rather they concluded that, given the evidence that emerged at trial was consistent with the account Broadhurst had given from the start, the jury couldn’t be sure that his defence – that he did not cause the life-ending injuries – was untrue. This is a key difference. If the burden was on Broadhurst to prove that Natalie’s death happened in the way he claimed, it would likely have been a very different story. But it wasn’t – it was on the prosecution to disprove that Natalie could have died in the way Broadhurst suggested. When the prosecution realised that it couldn’t, it reassessed what it could prove. It consulted Natalie’s family, who, having been made aware of the evidential position in this highly complex and unusual case, confirmed they were content for the Crown to accept a plea to manslaughter.
The accusation voiced in the Observer that the CPS ‘did not trust’ the jury and were guilty of ‘accepting the historical fallacy of domestic violence as a non-serious issue’,30 suffered from the same fundamental misunderstandings. The comment piece, having outlined the original prosecution allegations, rhetorically asked, ‘Exactly what would it take for a woman’s violent death at the hands of her partner to be called murder?’ The short response would be ‘evidence capable of making a jury sure that the accused inflicted unlawful violence causing death, with intent to kill or cause really serious harm’. Applied to this case, the outcome may well have been very different if there had not been prosecution evidence to support Broadhurst’s claim that consensual sexual violence was a feature of the relationship. Or if the medical evidence had discredited Broadhurst’s explanation as to how all of the injuries were caused. Or if the medical evidence had demonstrated that the infliction of injuries was a significant cause of death.
But none of that was present. Instead, had the murder charge gone to the jury (and it has been reported that the judge was not willing to allow this),31 the jury would have been left with medical evidence capable of supporting two contrasting explanations, and only Broadhurst’s evidence as to what took place. The jury may well have been suspicious. It may well have thought that the original prosecution narrative of a jealous boyfriend resorting to gratuitous violence provided an attractive and credible explanation. It may well have doubted the plausibility of Broadhurst’s account. But that would not have been enough.
This was an awful case, and the headline – three years and eight months for the loss of a young mother’s life in this most brutal and degrading manner – understandably inflamed the public’s instinctive sense of fairness. Even taking into account the fact that the sentence appears in accordance with the sentencing guidelines for manslaughter, I would not challenge anyone who read the facts and concluded that, guidelines aside, this was a sentence that was difficult to comprehend for behaviour so callous, with consequences so serious.
Cases such as these also carry the weight of the historic failure of the justice system to deal with violence against women. The concern is entirely reasonable. There is no criticism of the bona fides and noble motives at play. Sounding a warning and asking Is this OK? is vital. Historically, there were too few such questions; a male-dominated legal system was allowed to trample over the rights of women with little public challenge. Here, Broadhurst had obviously done something criminally wrong. A young woman had been killed in the most horrifying circumstances, redolent of the type of wanton violence committed against women which has too often gone unpunished. It would be frankly negligent to read the headline and not ask questions.
But the taking of the headline at face value, the failure to seek answers before publicising settled conclusions, and the carelessness with which basic facts and first principles were treated in the course of the public debate that followed must be challenged. Because it all represents deeper problems with our understanding of criminal justice.
If the picture had been as straightforward as presented in the think pieces, the outrage would have been entirely justified – no, it would not have been enough. If our courts entertained the notion that a man could secure a woman’s consent to her own fatal mutilation, or if prosecutors abandoned a viable murder trial because they suspected it would not survive the inherent misogyny of the jury, this should be front-page news. If our system was geared so that all a homicidal man need do is assert, ‘She was asking for it,’ for an indolent prosecution service to throw in the towel, I would be hoping for marches in the street.
But none of that, in this case, was true. The prosaic reality – that an evidentially complex case meant that the prosecution could not discharge its burden of proof to the high criminal standard – was not even alluded to in the commentary. The burden and standard of proof did not even occur to writers talking about juries ‘believing Broadhurst’s defence’. The legal elements of the offence charged were deemed similarly unworthy of remark.
Instead, there was an immediate leap to the broad conclusion that the original prosecution allegations were true, even after the prosecution had themselves disavowed them. The allegation of a sadistic murder by a controlling partner fit a familiar narrative about criminal trials. The assumption was that any outcome at odds with that narrative had to be flawed. The state had made an allegation of guilt; therefore, it must be right.
And dispelling the confusion in this case is important. Not only because it is vital to public understanding that something as central to our justice system as the burden and standard of proof be accurately represented by those with the most prominent platforms. Not only because consistency demands that we are equally critical when the law is misrepresented by those on the side of the angels, the purity of whose cause – justice for victims of domestic violence – is not in dispute.
But it matters because, when we fail to distinguish between ‘accused’ and ‘guilty’, between a state-sponsored allegation and proven guilt, we contribute to a conflation that is exploited by those with ulterior agendas. We find ourselves nodding along as ‘tough on crime’ politicians reframe the delicate balance of competing interests alive in the system, from ‘state versus complainant versus accused’ to ‘criminal versus victim’, or ‘criminal versus law-abiding public’.
When we buy into the message that the prosecution case is always correct, and any deviation from a guilty verdict is by itself evidence of a malfunctioning system, we invite changes to the law and procedure to make it easier for the prosecution case to remain intact.
And this, when we look at the changes that have been advocated to criminal justice over recent years, is precisely what legislators have set out to do.
‘What concerns me is that the criminal justice system always seems to put the rights of the criminal ahead of the rights of the law-abiding public and the victim.’
Philip Davies MP, 20 August 201132
The pattern is formulaic. A scourge will be identified – almost always something complex, socially embedded and multifactorial, for which the solution requires careful evidence-gathering, long-term thinking, multi-agency involvement and politically unappealing decisions. A politician will tell the public that, actually, the solution is simple and located in the criminal justice system, which is perennially weighted in favour of the criminal. Shaking their head solemnly, our hero will vow to rebalance the system in favour of the law-abiding public.
The way in which this is achieved varies. Let’s look at three common examples: rules of evidence; the right to legal representation; and the right to jury trial.
Over recent decades, a quick-’n’-easy answer has been to change the laws of criminal evidence. Criminal evidence is a mystery to most people outside the criminal law. It occupies year-long modules of professional legal training courses, and takes years of practice before its idiosyncrasies sink in. It is therefore ripe for political picking.
In the 1990s, Home Secretary Michael Howard defied the advice of three Royal Commissions and introduced laws to abolish the centuries-old right to silence in criminal proceedings. The right was long considered a vital corollary of the burden of proof, with its origins often ascribed to the response to the oppression of the seventeenth-century Star Chamber, in which alleged traitors and heretics were interrogated, tortured and tried in secret. Those who refused to answer questions were immediately convicted and gruesomely punished.33
In the modern era, the right was reflected in the ability of a suspect to decline to answer police questions or give evidence at trial, without any adverse effect. Similar to the fifth amendment of the United States constitution, it was accepted that the prosecution should be required to prove criminal offences without the assistance of the person accused. But Mr Howard, in a climate when the IRA terror attacks were at the forefront of popular consciousness, set about changing this. In 1993, he told the Conservative Party conference, ‘The so-called right to silence is ruthlessly exploited by terrorists. What fools they must think we are . . . The so-called right to silence will be abolished. The innocent have nothing to hide . . .’34
The changes, brought in in 1994,35 mean that, if a suspect fails to mention when interviewed by police something he later relies on in court, or if he chooses not to give evidence at his trial, the jury can be invited to draw an ‘adverse inference’ against him – in other words, add it to the prosecution evidence as evidence of guilt. This was cheered by the Association of Chief Police Officers, who remarked that the change ‘will help redress the balance in favour of justice for victims, witnesses and the mass of law-abiding citizens’.36
Instinctively, the ‘nothing to hide’ mantra may be superficially attractive. But it ignores that people may remain silent for a variety of reasons unrelated to innocence or guilt. Perhaps because they are protecting someone else. Or are afraid of reprisals. Or because they are confused or overwhelmed by the experience of being arrested and interviewed in a police station. Or because they want to wait and see what the evidence against them is, so that they can give the best account of themselves. They may not give evidence at trial on legal advice, because their lawyer has made an assessment that, if the suspect gives evidence, they are liable to give a poor impression. I have given this advice to clients who screamed their innocence at me during our conferences. The case against you is weak. I know you want to tell the jury your side, but, in my judgement, you are likely to trip up, get yourself in a tangle and inadvertently help the prosecution case. It is better for you to say nothing.
And while, without doubt, the right to silence was relied upon and exploited by some very bad and very guilty people, they are of course not the only ones who are affected by its removal. It also affects, for instance, children with learning difficulties. In 2010, a teenager with an IQ of sixty-eight and the language ability of a seven-to eight-year-old did not give evidence at his murder trial. The judge duly directed the jury that this was something that could be added to the prosecution case against him.37 In 2005, Sam Hallam was convicted of murder. His conviction was quashed seven years later by the Court of Appeal after it transpired that he had been a victim of ‘manifestly unreliable identification evidence’, a ‘failure by police properly to investigate his alibi’ and ‘non-disclosure by the prosecution of material that could have supported his case’.38 Part of the prosecution case against him at trial, which secured his wrongful conviction, was his decision, on legal advice, to give ‘no comment’ during his police interview.
The New Labour government that followed Mr Howard in 1997 was similarly wedded to the pressing need to ‘reclaim the criminal justice system’, as the extremes of antisocial behaviour and Islamist terrorism preoccupied the Prime Minister. Tony Blair frequently complained about ‘Justice weighted towards the criminal and in need of rebalancing towards the victim,’39 and, in 2003, introduced two major changes to criminal evidence. Hearsay evidence – something said by somebody outside court, which the prosecution wishes to rely upon to prove the truth of what is said – has historically been largely inadmissible, for obvious reason. If you are accused, say, of stealing an apple, it is not fair for the prosecution to call a random member of the public to tell the court, ‘Jim told me that he saw the apple being stolen.’ You want Jim himself, the primary source of the evidence, to attend to be questioned. The Criminal Justice Act 2003 made it much, much easier for the prosecution to introduce hearsay evidence. The same legislation also made it easier for prosecutors to introduce evidence of a defendant’s ‘bad character’ – previous convictions (or even just allegations) – which was largely kept out of criminal trials to ensure that juries focused on the evidence in the trial rather than the defendant’s unpleasant reputation. Towards the end of his tenure, in 2006, Mr Blair was still banging the same drum.
Now, I don’t pretend that these issues are straightforward; there is a wealth of academic literature debating where the lines should lie in criminal evidence. But what was straightforward was the narrative publicly deployed by the government: these changes should only worry you if you’re a criminal. Those are the only people affected. Criminal versus victim. Never ‘accused’. Guilt is presumed.
Over the last few years, we have seen similar rhetoric applied in relation to allegations of sexual offending. The Ched Evans case made headlines after his conviction was quashed and a retrial ordered, when the Court of Appeal accepted new evidence relating to the sexual history of the complainant. In most cases, sexual history evidence is completely irrelevant. In some, however, it will have a bearing. It can never be used to attack a complainant’s credibility, and has to satisfy strict statutory criteria, including, critically, that the judge is satisfied that, if the evidence is not allowed, there would be a risk of a wrongful conviction. For my part, I am not convinced that, on its facts, the Court of Appeal decision in Evans was correct; however, its presentation in the media was an exercise in shameless scaremongering. The decision was fact specific and set no precedent, but many suggested otherwise. A piece in the Daily Mail described the decision as creating ‘a rapists’ charter’.40 MPs untruthfully claimed41 the decision allowed a return to days where a woman’s sexual history would be held up in court as evidence that she was either promiscuous or unworthy of belief – myths which have been outlawed in the courts since 1999. A shocking case in Ireland, in which a complainant’s underwear was reportedly paraded in court by the defence barrister as suggestive of the complainant being ‘open to meeting someone’, was disingenuously rolled up into the debate, despite such behaviour being plainly prohibited in the courts of England and Wales.42
And quickly, entirely justified concern for the treatment of complainants in sexual cases led to a widespread refusal to acknowledge the competing interests at play in criminal trials, and the strict circumstances in which this type of evidence might be allowed. For instance, a complainant stating on oath that he would never have had consensual sex because of his devout faith may be exposed as untruthful by evidence of a contradictory sexual history. A complainant may allege a violent and unusual sexual attack involving bondage and handcuffs, which the defendant maintains was consensual; if the complainant had three partners, all of whom confirmed that she would habitually instigate this exact type of BDSM, this might be relevant to the issue of consent.
Neither would be determinative of the issue of guilt, but they would both potentially be relevant to the jury’s considerations. Without this evidence, there could be an incomplete picture and a risk of injustice.
Now, there may well be a case to say that the relevant law – section 41 of the Youth Justice and Criminal Evidence Act 1999 – is not being used as it should, that it is too permissive and results in complainants being asked intimate and embarrassing questions where it is unjustified. The most recent research does not support this,43 but no issue can be taken with a request for a full review into how the law is applied in practice, and whether judges or practitioners require further training. But that was not the political response. Instead, MPs rushed to table a Private Members’ Bill seeking to force judges to exclude all and any evidence of sexual history in all circumstances, even where judges were sure that to do so would risk a wrongful conviction.44 There was not even a pretence at acknowledging that this would, inevitably, result in innocent people being imprisoned. The clash was criminal versus victim, and the latter had to win out.
Without doubt the most sustained assault on the foundations of the criminal justice system is aimed at the right to legal representation. Having just spent a chapter on the subject of legal aid, we will not revisit the pantheon of myths over its cost and purpose, but the lack of public outcry at the increasing restrictions on criminal legal aid since 2012 suggests that the regular diet of tabloid stories of criminals ‘racking up huge bills’45 on legal aid has succeeded in turning Britons against the once-uncontroversial notion that anybody accused of a crime is entitled to legal advice and representation.
That legal aid is an essential prerequisite to establishing, fairly and safely, that an accused individual is guilty of the charge alleged, is ignored. Where someone pleads or is found guilty of a criminal offence, the importance of ensuring that they are dealt with lawfully and properly at their sentence hearing is seldom championed. Of course, where someone is convicted of a crime and has the means to reimburse the state for the cost of their legal aid, I have no quarrel with requiring that as part of the overall penalty for committing an offence. But where, as is often the case, those convicted don’t have a penny to their name, that should be absorbed by the rest of us, and recognised as the low price to pay for a fair and civilised system, and for the insurance that, were we ever dragged into the criminal justice system, we would not be cut adrift for lack of money, forced to single-handedly fight the prosecution’s qualified lawyers, with our liberty on the line.
But criminal legal aid, the propaganda has convinced us, is for criminals. Not the accused. It follows that we, the good law-abiding denizens of this green and pleasant land, have no need for it. And if we don’t need it, we sure as mustard shouldn’t be paying for it to be frittered away on criminals.
The natural consequence is that, recast as a luxury, criminal legal aid has been removed from swathes of the population. In magistrates’ courts, anybody with an annual gross household income – the income of you and your partner – over £22,325, does not qualify for legal aid.46 In the Crown Court, everybody used to be eligible for legal aid, in recognition of the fact that the consequences of a Crown Court conviction extend to life imprisonment. Since 2014, anyone with an annual household disposable income of £37,500 or more is excluded from criminal legal aid.47
If you don’t qualify for legal aid, you will be forced to pay privately. Private fees for lawyers are like private fees for dentists; it is not until you pay them that you realise how artificially low the state price is. Private fees for a long or complicated criminal trial can cost tens if not hundreds of thousands of pounds. And the kicker, courtesy of Chris Grayling’s changes in 2014? If you are acquitted, you cannot claim your full legal costs back. You are only entitled to claim legal costs at artificially low legal-aid rates; the shortfall is met from your savings or selling your house. One high-profile case in 2018 saw a doctor, accused of serious offences by a ‘serial fantasist’, facing a £94,000 legal bill after the prosecution case collapsed.48 Conservative MP Nigel Evans, whose party introduced this Innocence Tax, was himself stung for £130,000 when acquitted after a lengthy trial at Preston Crown Court in 2014.49
It is not only the financial cost of upholding equality of arms that the public are being successfully encouraged to resent; increasingly, it is the very notion of criminal defence itself.
Since the evolution of the modern adversarial process in the eighteenth century, the role of independent defence lawyers – solicitors and barristers – has been crucial. We exist to fight our clients’ causes, so that, wherever an accused person denies guilt, they have the same access to legal advice and representation as the prosecution. The age-old dinner-party question of How can you defend someone you know is guilty? is easily answered once it is explained and understood that we cannot ever know a defendant is guilty unless he tells us. If he does tell us, we are then limited in what we can do to help. What we absolutely cannot and will not do is stand up in court and positively assert that he is innocent; to do so would be to mislead the court, which is among the gravest of professional sins. However, if the client insists he is innocent, notwithstanding that the evidence against him may be overwhelming, it is not our job to judge, but to present his case as persuasively as we can. Because we do know, from headlines throughout our country’s history, that defendants facing ‘overwhelming’ evidence can, in fact, be completely innocent. If lawyers were to judge, and to refuse to act based on the reprehensible nature of the allegations or the strength of the prosecution evidence, we would not only be usurping the function of the jury, but betraying our reason for being.
However, this settled principle is being undermined by a corrosive conflation of lawyers with the (alleged) sins of their clients. We saw this writ large in the 2016 US Presidential election. Republicans launched a series of attack adverts against Democratic candidate Hillary Clinton and her running mate Tim Kaine, in which the horrific acts of some of their clients from their days as criminal defence lawyers were plastered across the nation’s TV screens.50 ‘America deserves better’, intoned the voiceover, warning voters that the pair had ‘a passion for defending the wrong people’.51
A marginally more subtle line of attack was adopted in the London mayoral election of the same year, when Conservative candidate Zac Goldsmith accused Labour candidate, and former solicitor, Sadiq Khan of ‘providing cover’ to extremists, deprecating that Mr Khan ‘chose to defend’ an alleged terrorist.52 The notion that criminal defence lawyers neither choose their clients nor by association endorse the crimes that they may or may not have committed was either beyond Mr Goldsmith, or within his comprehension but merrily sacrificed in the pursuit of votes.
In 2019, Harvard Law School professor Ronald S. Sullivan Jr, a respected defence lawyer, found himself the subject of angry calls to resign from his faculty after agreeing to defend alleged sex offender Harvey Weinstein. His attempts to explain the importance of representing ‘unpopular defendants’ were drowned out by the rage of his students, whose petitions, marches and vandalism – Whose side are you on? was spray-painted on the faculty building – succeeded in evoking a shameful response from the university. Rather than reminding these bright young minds of the essential function of criminal defence, Harvard administrators promised a ‘climate review’ to investigate Professor Sullivan’s conduct.53 In May 2019, Harvard announced that his tenure would not be renewed.54
Lest we tell ourselves such things would not happen in our own country, an unpleasant reminder occurred in early 2019. After thirty-one-year-old Jack Shepherd absconded on bail prior to his trial and conviction for manslaughter, following the death of a young woman called Charlotte Brown on Shepherd’s speedboat, a tabloid campaign was launched to find the fugitive. The tabloid artillery turned from the cowardice of Shepherd,55 onto (naturally) the scandal of him being entitled to legal aid,56 before settling on his lawyers,57 who had the temerity to continue to represent him. Shepherd’s solicitor, Richard Egan, said that, although he was in contact with his client, he did not know his whereabouts, and valiantly attempted to explain the importance of Mr Shepherd retaining the right to instruct lawyers and pursue an appeal against his conviction. ‘We represent,’ he explained. ‘We do not judge.’
His efforts at calming the seas did not succeed. After stories in the Daily Mail making incorrect claims about the legal-aid fees that his firm had supposedly raked in,58 Mr Egan received a torrent of abuse, culminating in a letter, marked with a swastika, threatening to petrol-bomb his office and kill his children.59
As for the hallmark of criminal justice – those twelve men and women good and true, injecting democracy and public participation into the criminal process in adherence to the spirit of Magna Carta – this is also not guaranteed.
The theory in support of the jury system revolves around the notion of jurors as the bulwark against state oppression, that anybody mistreated by the state has the guarantee of a decision by a completely independent body of normal citizens. We do not select juries like in the US, where the parties vie to secure their favoured jury composition. They are randomly selected from the electoral roll, and the expectation is that they will bring a diversity of experience and skills that equip them to reach the correct verdict, as well as ensuring that the public’s collective notions of justice remain central to the operation of the criminal process.
Increasingly, however, special-interest groups are identifying particular types of crime where it is said that the conviction rate is insufficient, and locating the problem in the biases of the ordinary people sitting in judgment.
The two that have featured most prominently in the media are driving offences and sexual offences. In relation to the former, a piece in the Guardian in 2016 by Martin Porter QC called for people accused of dangerous driving not to be allowed to elect trial by jury, on the premise that ‘jurors are too ready to acquit drivers who cause death or injury to pedestrians and cyclists’.60 Observing, correctly, that the conviction rate for all offences is higher for trials in the magistrates’ court (64 per cent) than the Crown Court (52.2 per cent),61 Mr Porter proposed depriving defendants of a trial in the latter. He listed some examples of acquittals reported in the media, in cases in which he claimed ‘the evidence against the driver seem[ed] very strong’, and surmised that, as there were more drivers than cyclists, jurors were predisposed to sympathising with the former. There were no statistics in support of his thesis. And the fact that Mr Porter himself was a cyclist, who had very recently taken out an unsuccessful private prosecution against a driver who had been acquitted by a jury,62 was an interest he forgot to mention in his comment piece. But his message was nevertheless clear: the trial process isn’t producing enough results to my liking, so let’s change the trial process.
Cases involving sexual allegations have been the subject of similar proposals, albeit there is a body of evidence in which these are grounded. The gap between the reported rate of sexual offences and the conviction rate is well known. The figure of 6 per cent is often cited, and, although it is difficult to state with precision, appears broadly correct. The Office of National Statistics reports that only one in six offences of rape are reported to the police.63 Of those, just over half result in a charge, and 58 per cent of rapes charged end in conviction.64 And it is not because 94 per cent of complaints are untrue. There is a problem – that much is undeniable.
What is less straightforward is how best to address it. Many difficulties arise at the early investigation stage when crucial scientific and other evidence is gathered or lost, as we saw when we considered the problems in the John Worboys investigation. An inherent difficulty with sexual allegations is that often the only evidence is the word of the complainant against the word of a suspect, particularly where the issue is consent. While this does not bar a conviction (there is no longer any requirement for ‘corroboration’ evidence – the evidence of a single complainant is enough, if the jury is sure of their evidence), it inevitably makes things more difficult for a prosecutor to prove the case to the criminal standard. Cases involving young people frequently occur against a backdrop where the parties have been drinking, where memory is fragmented. This is not a judgement, but it can make the job of making a jury sure of what happened that little more difficult.
Sexual cases are also unusual because the requirement that the prosecution prove a defendant did not reasonably believe the complainant was consenting can result in situations where a crime both has and has not been committed. A complainant may not have consented, but the defendant may have reasonably – but mistakenly – believed that she was consenting.
The stigma – and sentence – that attaches to sex offences also plays a role in the figures, as defendants are far less likely to admit guilt. Only 35 per cent of defendants charged with a sexual offence plead guilty. The next lowest category of offence for guilty pleas is violence, to which 60 per cent of defendants plead guilty. Drugs offences attract guilty-plea rates of 80 per cent.65
But the fear expressed by campaigners is that juries fall prey to common societal ‘rape myths’, such as preconceptions as to what constitutes a ‘typical’ victim or ‘typical’ rapist; that certain modes of dress or drinking mean a woman is ‘asking for it’; how a ‘typical’ rape victim acts in the aftermath; and the meaning of consent. Notwithstanding that the conviction rates at trial for sexual offences are broadly comparable with other offences, and that juries are given strong directions by judges on the dangers of rape stereotypes and myths, the concern is that attitudes commonly expressed in surveys and the media inevitably filter into the jury pool. And there is some academic research that suggests this could be a real problem.66
So it is that some MPs have called for the abolition of juries in sex cases,67 with the stated aim of increasing the conviction rate at court.
I am by no means ideologically wedded to jury trial. I would be nervous about all decisions being taken by lone professional judges, but I do often worry about the opacity of the jury system – it is illegal for a juror to disclose what happened during their deliberations – and how that makes it impossible to assess how juries operate. However, I would suggest that the first step prior to fundamental change is to investigate how juries are working in practice, not merely in a simulated environment. Whether it’s requiring jurors to provide reasons for their verdicts, as happens in other countries, or allowing researchers to observe deliberations, we need to know whether juries are working as intended before we campaign to replace them.
And the research should not be confined to one category of offence. Because it follows, surely, that if jurors are allowing prejudice to blur their assessment of the evidence in one type of trial, others are at risk too. And while the emphasis in this discussion is on wrongful acquittals, it stands to reason that widespread failures to pay heed to the evidence will be resulting in wrongful convictions as well.
But the analysis rarely extends that far. It is framed solely as an issue of increasing conviction rates in one type of offence.
And this should trouble us. An inconsistency is intolerable. We cannot swear allegiance to the rule of law while running a parallel system – providing for a mode of trial which we hold up as a gold standard for ‘normal’ suspects, with a second, more pro-conviction tribunal for the crimes we really can’t abide. Either juries are what we tell ourselves they are – the democratic guarantor of liberty faithfully applying the burden and standard of proof and the law to the evidence – or they are seriously flawed, pumping out the wrong verdict with alarming frequency. If the latter, we need to know, with a view to making radical changes to our trial process for all offences, not just some. And for the protection of defendants as much as complainants.
The unifying implication is that only the guilty are put on trial. ‘Suspect’ and ‘criminal’ are used interchangeably, as we are conditioned to agree that the criminal process is in every case a matter of easing the inevitable transition from the former to the latter, and the quicker, cheaper and more painlessly this production line is oiled, the better.
Inevitably, we risk losing our bearings. We are encouraged not to think critically about what changes to our trial system would mean if we were wrongly accused, because the subtext is that we wouldn’t be. The police will only arrest the guilty man. But we know this is not true. We know that innocent people are arrested and charged every single day. And we know from the history books that some are convicted and spend years of their lives incarcerated for something they didn’t do.
Our conviction rate – which includes guilty pleas – was at the latest count 87 per cent,68 meaning that, out of the 1.37 million people prosecuted in the last year, over 178,000 are either acquitted by a court or have the proceedings against them abandoned. Many of those, inevitably, will be factually guilty people against whom there was just not enough evidence to meet the standard of proof. But, equally inevitably, some will be entirely innocent. It is for them – in recognition that they could be us – that the protections exist.
There is, I think, a strange doublethink in our culture. From the films we laud as classics, to the TV shows we binge-watch, to the books we inhale, we cannot get enough of stories of miscarriages of justice. From Twelve Angry Men to The Shawshank Redemption; from Making a Murderer to The Innocent Man; from To Kill a Mockingbird to Sirius Black in Harry Potter – innocent citizens victimised by a malfunctioning judicial process are the heroes we root for the most. Yet, lifting our heads away from the screen, we are prepared to accept at face value the assurance that this wouldn’t happen in our lives. We are content to live in a society where, since 2014, we routinely refuse compensation for victims of miscarriages of justice, setting them an impossible standard of proving their innocence before we will even contemplate an official apology. Where defence lawyers are monstered as accessories to their clients’ alleged crimes. Where what matters is increasing the number of convictions, rather than ensuring their safety.
And there is a risk, I know, that, in focusing this discussion on cases involving sexual violence against women, I might appear as just another centurion of the law’s old guard, feeding the claim from the alt-right that there is an epidemic of false complaints. I promise you, I am here not with my #HimToo banner, shouting ‘What about the menz?’ in a reflexive panic at modernity snapping at my privileged heels as the immunity conferred by the patriarchy is finally breached.69 As a prosecutor, I will tell you now, in terms of numbers, there are more men getting away with it than there are wrongful convictions.
I understand why many victims of crime, particularly gender-based violence, feel so strongly that the system is unfairly weighted against them; it’s because, for centuries, it has been. Complaints have not been taken seriously. The police, prosecutors, lawyers and judges have treated complainants abominably. Our justice system has for most of its existence been something run solely by men and in the interests of men, and, while things have improved a lot, I don’t pretend it’s all better now. It’s not. The raw figures alone tell us that things have to be improved.
But we don’t – can’t – structure criminal justice by reference solely to numbers. The vast majority of reports may well be true, but that tells us nothing about the merits of an individual, contested allegation. That is why we have to be so cautious when presented with easy fixes to up conviction rates.
And if it appears that I pay particular attention in this chapter to sexual violence, it is precisely because it bears all the characteristics – a low conviction rate, historical institutional indifference, belated global awareness – that lend themselves to every successful campaign to make it easier to convict those accused. It is when we are confronted with cases of the utmost horror that we are at our most vulnerable to the political siren call: ‘Let’s just make it a little bit easier to stop these criminals getting away with it.’
Note that the political prescription is not to improve investigation or detection, or the accessibility of the trial process. It is not, in the context of sexual offending, to stop the closure of Rape Crisis centres, or tackle the crisis in forensic science. Or increase the number of Independent Sexual Violence Advisers (ISVAs), who are essential in helping victims navigate the most difficult years of their lives. We could improve training for police officers, or develop a national education campaign to teach young people about respect and consent. Instead of announcing cuts to the justice budget of 40 per cent and sacking a third of the court staff,70 we could resource the courts so that victims do not have to wait years until there is a courtroom available to hear their trial, by which time memory – the most valuable currency in criminal evidence – has corroded.
Those things, however, cost money.
What is cheap and quick for a government in a tight spot is to hack away at one or two fundamental protections. Follow the trusted recipe: conflate ‘accused’ and ‘guilty’, and surf the popular approval of ‘rebalancing’ the criminal justice system.
As with so much else of what we’ve seen in these pages, the greatest trick they are pulling is convincing you that the alleged ‘criminal’ will never be you.