The Secret Barrister

by The Secret Barrister

  Criminal law, we must remember, is the ultimate sanction for alleged wrongs; not the only. For victims denied justice in the criminal courts, other – admittedly lesser – routes exist. Civil claims for unlawful harm caused, where the standard of proof is lower and the remedy financial, may feel like a lesser justice, but are nonetheless available. There is no alternative remedy for the wrongly convicted.

  The impact for humanity of not doing all that is reasonable to avoid the conviction of the innocent and its direct, irreversible consequences is, for me, captured by the sentiment of John Adams at the chapter’s outset. This is why we venerate the presumption of innocence, and why, where there is an irreconcilable clash of interests, the system must operate in the defendant’s favour.

  Which swings us, finally, back round to Jay. And why, in spite of whatever personal views I might have held, and notwithstanding the impact of the proceedings on his family, I believe justice was done. The process, and the verdict, were right. Even if I had the right to judge him – and as his counsel, I do not and should not – would I declare myself sure of his guilt beyond reasonable doubt? I don’t think I would. Whatever standard of certainty I am able to move myself to, it is not enough. And if it were me, accused of the most heinous crimes, it would not help me sleep, as I slipped into the top bunk of my cell, to know that twelve strangers, who knew nothing about me beyond what they were told in a court of law, thought I might have done, or probably did, what I was accused of doing. If there was any doubt in their minds, I would want the benefit of it.

  Yes, I found Jay’s daughters convincing. But I may well have found Susan convincing, staring into the whites of her eyes across a courtroom as she sobbed through her evidence. And the whole point of juries, their essential function, their joy, is that we take decisions away from the tired eyes of jaded legal professionals and entrust them to the collective wisdom and life experience of twelve everymen and -women. Jay’s jury saw and heard everything that the parties found and considered relevant, and were not sure of his guilt. They didn’t – couldn’t – declare him innocent; but where there was doubt, as I have to recognize there was, they properly exercised it in his favour.

  And whenever I vacillate in my view on whether, in essence, we are doing things right in our system, one question springs back, boomerang-style, and smashes against my synapses: what system would I want as the falsely accused? Knowing what I already know after only a few years exposed to the grimy coalface of the criminal justice system, would I have faith in an inquisitorial jurisdiction where the state, with its variable competence and political vulnerability, controlled my fate throughout? Or would I trust the presentation of my case to an independent solicitor and advocate, and hope that twelve ordinary people, shown evidence that is relevant, reliable and fairly adduced, would find the prosecution insufficient to convict me?

  Every time the answer is the same.

  10. The Big Sentencing Con

  ‘Nearly 80 per cent of Brits believe the country is soft on crime, a shock new survey has found. The ComRes poll for the Mirror revealed there is a widespread view that criminals get off too lightly and sentences are not tough enough. More than three-quarters of all those quizzed said punishments did not match the crime. And four in five are not happy with the justice system and believe offenders are treated much more leniently than in the past. The findings come as the government promises to crack down on offenders.’

  The Mirror, 21 June 20141

  As the word ‘guilty’ tumbles from the foreman’s mouth and casts the ashen defendant into a silent stasis, the question burning through the hearts of the courtroom immediately self-extinguishes and reignites. ‘Did he do it?’ suddenly becomes ‘What’s he going to get?’ The twelve judges of fact in the jury box enjoy the formality of the prosecutor reading out the defendant’s previous convictions, and are then thanked for their civic duty as their function ends and the defendant’s fate is formally transferred into the hands of the judge of law.

  The newly minted convict will have been advised by his lawyers of the sentence he should expect upon conviction, but we always couch and qualify and (in my case at least) try to avoid specific figures that can be thrown angrily back in our faces in the cells with a globule of spit. Court of Appeal sentencing case law, nowadays largely supplanted by formal Sentencing Guidelines, allow both the prosecution and defence advocates to make targeted submissions to the Crown Court as to roughly what the correct sentence should be. But there are no guarantees.

  Curiously, the reaction in court is usually the same, whatever the sentence. If the judge delivers good news – anything other than immediate imprisonment generally qualifies – the defendant will take it with poker-faced stoicism. Sometimes family members in the public gallery will coo or cheer, or the defendant might squawk a ‘thank you, Your Honour’ as the dock is unlocked, but mostly proceedings conclude with a striking absence of emotion.

  Likewise, if the judge hands down bad news – and the judicial remark, ‘Your barrister has said everything that could be said,’ is the giveaway that immediate prison is coming – it is normally greeted with a stiff upper lip in the dock. Outbursts of emotion, even from first-time defendants facing a lengthy prison sentence, are rare. On that front, special mention must go to a defendant at Chelmsford Crown Court in August 2016, who, upon receiving his eighteen-month sentence for racist abuse, told Judge Patricia Lynch QC that she was ‘a bit of a cunt’. Her Honour’s reply – ‘You are a bit of a cunt yourself’ – was a little naughty, but also, in many ways, everything that could be said.2

  Outside the courtroom – in the lobby or down in the court cells – the emotional strictures are loosened, and tears of joy or sorrow flow more easily. When I’m trooping downstairs to the cells, the natural inclination is to try to find a positive to draw the sting of the immediate shock; although, unless the sentence is so high as to potentially justify an appeal, my soothing words often amount to little more than the impotent observation that the sentence ‘could have been worse’. Aside from giving as much inside information as I, someone who has never served a prison sentence, can, and assuring the defendant, from a similar position of ignorance, that the sentence will go quicker than he expects, there’s often nothing constructive that I can say. He’ll go, stony-faced and perhaps red-eyed, handcuffed to the white-shirted cell staff to wait for the van to take him to an available prison, while I retreat back upstairs to normality.

  The impact of sentence of course doesn’t end there. The aftershock is felt outside the court walls. How the defendant is treated, and what sentence he gets, is important also to the victim, sitting nervously in the public gallery as justice is meted out to her abuser. And it matters to the public, who must after all have confidence in the outcomes of our criminal justice system if it is to maintain its legitimacy. This, it seems, is where we have a problem. Because the tone of public debate over the way we sentence those who break the law would suggest that we are getting things seriously wrong.

  The old faithful that is revisited in the tabloids most weeks is the Out of Touch Judge ‘letting off’ some foul, acne-scarred, daemonic hoodie with a ‘slap on the wrist’ for a capital offence. Presumably there’s an industry template for such stories, as the formatting never wavers: there’ll be a photo of the yobbo, fag in mouth, leaving court (ideally giving a middle-finger salute to the goading cameras), juxtaposed with a portrait photograph of the humourless-looking judge. The photo will usually show the judge in their ceremonial, full-bottomed wig, which is never worn in court – judges on the bench have since the 1840s worn a short frizzy horsehair wig, like a barrister’s but with tighter, bubble-permed sides – but which successfully emphasizes to the readership how old-worldy and disconnected this crusty enemy of the people is.

  And the angle is always the same. The lip will quiver but the outrage will not quaver. We Are Going to Hell in a Handcart. Dangerous, remorseless ASBO-fiends who would slaughter us in our beds are having their anarchic urges indul
ged, worse encouraged, by lefty liberal elitist judges who defy the public will and bend the rules to keep fiends out of prison. Those who are sent to prison are sent to rudderless holiday camps where they get free Sky TV and reacharounds paid for by YOU the taxpayer, and in any event are not sent there for long enough. Considered conclusion: sentencing of criminals is a con.

  And, for what it’s worth, I agree. With the conclusion at least, if not the diagnosis.

  Sentencing of offenders often amounts to a giant confidence trick on the general public. The law – decades of on-the-hoof populist legislating – is impossible to understand. Sentences passed are often entirely out of kilter with public expectations, and the same criminal behaviour can be dealt with entirely differently in alike cases. Worst of all, there is an inherent dishonesty in the presentation of criminal sentencing, arising out of a lack of clarity as to what those setting policy want to achieve. Each new dawn heralds a fresh ministerial vacillation over the purpose of sentencing; contorting in the political winds. The public is treated to schizophrenic episodes where a pledge to reduce prison numbers (achieved through rehabilitation, investment in prisons and a sparing use of custodial sentences) is entertained concurrently to vows of longer sentences, spartan prison regimes3 and bans on prisoners receiving books.4 Meanwhile, the only consistent narrative on which the public can depend is that 1990s counsel of despair – ‘Prison Works’ – which is kept on life support in tabloid editorials, their fatuous commentary generally left uncorrected by pusillanimous politicians.

  Sentencing, it seems clear to me, does not appear to achieve what the public are led to believe it should. And it will remain a con as long as we fail to be honest about what sentences mean, what we want from our sentencing policy and how that might best be achieved.

  Is It the Judges?

  If you believe what you read, the problem is the judges; politicized and activist, imposing their own political ideals on sentencing decisions. Thus we end up with sentences that lack consistency and haemorrhage public support.

  And it would be foolish to deny the influence of personal factors in judicial decisions, least of all sentencing. While the judicial oath binds judges to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will, they remain susceptible to the same human frailties and cognitive biases as the rest of us. No two judges are the same, and two similar defendants might be sentenced entirely differently depending on their tribunals. Who you get is often determinative of what you get.

  If there has been a trial, the same judge will usually pass sentence, but where a defendant has pleaded guilty, it is normal for a judge to be randomly allocated for the sentence hearing. Frequent flyers become well acquainted with the judicial personalities in their local courts, and the seasoned crim sitting opposite you can either break down in tears or dance on the table with jubilation (I’ve seen both) when you tell them the identity of their sentencing judge.

  Given what is known about the social, educational and professional backgrounds of judges, it’s difficult to entertain the tabloid conspiracy that any criminal judges congregate on the far left of the anarcho-communist spectrum, but it’s undeniable that some are more lenient than others. There can sometimes be a rather unedifying scrabble when the barristers in a court list get wind that another courtroom with a gentler judge has finished early and is looking to take work, as a succession of pleading wigs jostle sotto voce with the court clerk to be reserved a seat on the chopper out of Saigon.

  Avoiding irritating the judge is also key to any hope of a lenient sentence. And this applies just as much to your advocate. If the judge likes the barrister or solicitor, they will be more disposed to taking a chance on a borderline defendant. Being junior, particularly at the very beginning, I found that pity was a strong card to inadvertently play. I have no doubt that in several of my cases, the judge took one look at the baby gopher-on-ice defending and passed a much more merciful sentence than was warranted. On the other hand, I have watched as judges struggle to disguise their contempt for the defence barrister, or the terrible points they are making in ostensible mitigation, and where you can almost see the judge mentally adding months onto the sentence the longer the plea in mitigation goes on.

  A local legend concerned a (now-retired) judge who was once sentencing a nasty domestic assault. At the hearing, the defendant’s wheelchair-bound mother, for whom the defendant was said to have caring responsibilities and whose tragic plight formed a central plank of his barrister’s mitigation, was strategically seated on the front row of the public gallery, quietly sobbing throughout. The judge handed down three years. He then called the barristers into his chambers, took off his wig and said, ‘What do you reckon, chaps? Bit harsh? I was going to give him two, but then he wheeled his sympathy act in.’

  It is not just personality. Environmental factors play their part. I can assure you from anecdotal experience that if your sentence is moved over lunch to a judge who had geared himself up for an afternoon off, it will not end well, and disappointment as a driver of long sentences has some basis in academic research. A working paper by two economists studying juvenile court sentences in Louisiana between 1996 and 2012 reported robust findings that longer sentences were imposed by alumni of Louisiana State University following unexpected defeats for the Tigers, the LSU football team.5 Other factors were controlled – the only explanation for the disparity was that judges were carrying their disappointment into the courtroom and visiting it upon the unlucky defendants.

  Tiredness and hunger have also been shown to be relevant. An American study published in Psychological Science in December 2016 suggested that on ‘sleepy Monday’ – the day after the switch to daylight saving time – sentences imposed by judges were 5 per cent higher than on any other day of the year.6 An Israeli study of parole board decisions in 2011 showed that a prisoner’s chances of release receded to near zero as the clock ticked towards lunchtime, immediately after which the likelihood soared.7 Again, this is borne out in practice, as any barrister who has shoehorned their sentence hearing into the morning list at 12.58 and keeps the judge’s stomach rumbling beyond 13.30 will attest. Quite literally, what the judge had for breakfast may influence your sentence.

  On a more sinister note, Ministry of Justice research published in 2016 purported to demonstrate an association between ethnicity and the likelihood of a prison sentence in the Crown Court. Under ‘similar criminal circumstances’, the odds of imprisonment for offenders self-reporting as black, Asian and Chinese or other were higher than for offenders from self-reported white backgrounds (53 per cent, 55 per cent and 81 per cent higher respectively).8 These statistics should be treated with caution, as the analysis suffered from significant limitations (particularly in its definition of ‘similar criminal circumstances’);9 however I would not suggest that such trends do not exist. There is a vast body of psychological research demonstrating the prevalence and power of unconscious bias in human decision-making, and how we are hard-wired to respond positively to those we perceive as similar to us, and to react against those we perceive as different.10 It would appear arguable as a matter of common sense that the composition of a judiciary in which only 6 per cent identify as Black, Asian or Minority Ethnic (BAME)11 might lead to overall sentencing outcomes which reflect an unconscious preferential treatment of white defendants compared to BAME defendants convicted of similar offences.

  But while inconsistency in sentencing might be accounted for in part by idiosyncratic judicial behaviour and cognitive bias, it is only a tiny piece of the jigsaw. The main reason for incoherent sentencing outcomes and policy isn’t capricious judges; it’s that incoherence is embedded in the sentencing framework.

  ‘Hell is a Fair Description of These Sentencing Laws’

  A sentencing hearing broadly takes three parts: one, the prosecutor outlines the facts of what the defendant has done, and draws the court’s attention to relevant law and guidelines – note, unlik
e in America, the prosecutor does not actively call for the highest sentence possible, nor are neatly wrapped ‘plea bargains’ presented for a judge to green-light a sentence agreed between the parties. Two, the defence advocate advances a ‘plea in mitigation’, presenting the mitigating features of the offender and offence, and persuading the judge to take the most lenient course. Three, the judge passes sentence.

  The third part sounds easy. It’s not. Sentencing a defendant is not simply an exercise of a judge plucking a figure out of the air, whacking a non-existent gavel and barking, ‘Take him down.’ The law and procedure is hideously, unnecessarily complex.

  To try to make sense of sentencing is to roam directionless in the expansive dumping ground of the criminal law. Statutes are piled atop statutes. Secondary legislation bearing titles unrelated to the amendments they make to primary legislation and the half-baked, half-enacted and half-revoked brainchildren of some of our dimmest politicians lie strewn across the landscape, stretching out farther than the eye can see. The many hundreds of legislative provisions exceed, at a conservative estimate, 1,300 pages.12 If one were seeking a totem to the despair caused by the work of licentious, headline-chasing governments revelling in the ruin they wreak, sentencing law would be it.

  And this is only the structure; that page count does not include the hundreds of sheets of Sentencing Guidelines and thousands of Court of Appeal judgments that steer judges on the detail.

  The burden of the sentencing exercise is therefore huge. There are a range of sentences each with their own qualifying criteria, from discharges and fines through community orders to custodial sentences, both immediate and suspended. There are mandatory life sentences, automatic life sentences (not the same thing), discretionary life sentences, extended sentences of imprisonment (various iterations of which each carry their own special complex provisions about prisoner release dates), special sentences for ‘offenders of particular concern’, hospital orders (with or without restrictions) and mandatory minimum custodial sentences, to name a few. And that’s before one considers the ancillary orders – some discretionary, some mandatory – that attach to certain offences: driving disqualifications, penalty points, endorsement of driving licence, extended driving retests, restraining orders, Sexual Harm Prevention Orders, Serious Crime Prevention Orders, compensation orders, ancillary financial orders, confiscation orders (under no fewer than three different statutory regimes), deprivation orders, forfeiture orders, dog destruction orders, criminal behaviour orders, company director disqualification orders, recommendations for deportation, credit for time spent on bail on a qualifying curfew, mandatory statutory surcharges (of a dizzying array of ever-changing figures depending on the sentence and the date of the offence) and costs.13 And this is just adult offenders – youth sentencing boasts its own panoply of (arguably even more confusing) overlapping provisions.