The Secret Barrister

by The Secret Barrister

  The Law Commission, the independent statutory body charged with researching and publishing recommendations for potential law reforms, put it succinctly in 2015: ‘For a lay person to discover the law would be practically impossible.’14

  More times than I can recall have I watched a client’s eyes glaze over as I try to explain, in as clear terms as I can, the possible sentence that he faces. Given how much rides on sentence – the likelihood of getting a certain type of sentence will often inform whether a defendant pleads guilty or not – it is outrageous that the law appears deliberately incomprehensible to those who need to understand it most.

  And it’s not just the public. Lawyers and judges are often flummoxed. In 2012, the sentencing expert Robert Banks examined 262 randomly selected Court of Appeal cases and found that in ninety-five – that is 36 per cent – unlawful sentences had been passed by the Crown Court. That’s not simply that the Court of Appeal thought that the sentences were too long; rather the Crown Court judge had done something that they did not have the power to do, or had not done something they were legally required to. These were not all points advanced by the barristers drafting the grounds of appeal either; many were missed and only spotted by the Court of Appeal’s own lawyers.15

  In a High Court case in 2010 concerning the release dates of a prisoner in custody, Mr Justice Mitting was moved to observe:

  [Explaining the effect of the sentence and the release date] is impossible. Indeed, so impossible is it that it has taken from twelve noon until twelve minutes to five . . . to explain the relevant statutory provisions to me, a professional judge. The position at which I have arrived . . . is one of which I despair. It is simply unacceptable in a society governed by the rule of law for it to be well-nigh impossible to discern from statutory provisions what a sentence means in practice.16

  Lord Phillips in the Supreme Court went one further, stating: ‘Hell is a fair description of the problem of statutory interpretation caused by [these provisions].’17

  It’s all very well requiring judges to give reasons for and to explain the effect of sentences ‘in ordinary language,’18 but this is hampered if the court itself is struggling to work out what is going on. And the confusion defeats the founding precept of open justice. There is no point whatsoever in throwing open the courtroom doors to the public if the law being discussed is not even understood by the lawyers. Little surprise that, whenever I ask a defendant or a victim after a sentence hearing whether they were able to follow what was happening, the answer is, without fail, a wide-eyed ‘No’.

  Release dates of prisoners is a particularly egregious example of courts failing to explain the effect of sentences, with serious consequences for public confidence. Criminals not serving the sentence that is handed down in court is a red flag to Middle England, and largely the anger arises because the explanation behind early release, and the earliest date on which a prisoner might be released, are never specified in court.

  All defendants serving a standard determinate prison sentence are automatically released on licence after serving half of their sentence. The reasons are that this (a) helps to reintegrate the offender back into the community while retaining a power to recall him to prison if he fouls up; and (b) reduces prison numbers (about which more later). You may or may not agree with those justifications, but there they are. That part is easy to understand, if not accept. But that’s only half the story; for a variety of reasons, ‘half way’ is rarely the actual point of release.

  Some defendants will be released well in advance of half way, under Home Detention Curfew (HDC)19 or Release on Temporary Licence (ROTL), which includes Resettlement Day Release, Resettlement Overnight Release, Childcare Resettlement Leave and Special Purpose Licence. Days spent on remand in custody are automatically, and rightly, counted as days already served. If a defendant has had a condition of an onerous curfew (nine hours a day or more) whilst on bail, every two days so spent count as a day towards sentence.

  The problem is that the calculation of these dates and a defendant’s eligibility is, as the High Court comments above demonstrate, often impossible for a sentencing judge to work out and pronounce on the spot. The calculation is usually made by the prison once the offender is processed (and is usually subject to a further risk assessment closer to the release date). So in court the date of release is left deliberately vague. The public hear, ‘Three years in prison, of which you will serve up to half, minus days spent on remand/subject to a qualifying curfew,’ and are then aghast when they learn that the defendant has been released after only a few months of that sentence. This, they fairly complain, is not what it said in the brochure. No one tells us, the public – or the victim – that the headline numbers rattled out in court bear little resemblance to time thenceforth served.

  The fault for this confusion lies solely with the legislators who have given us this system. When it comes to failing to explain reasons for sentences, however, the legal profession must admit its culpability. Most judges do a good job, but there are common traps. ‘Ordinary language’ to a judge or barrister does not always accord with ‘ordinary language’ to ordinary people. We legal professionals all slip too easily into the native lingo of the criminal courts that carries little meaning to outsiders. ‘Totality’ is one example. This sentencing principle holds that where someone is being sentenced for multiple offences, we do not adopt a US-style approach of cumulating multiple consecutive terms resulting in whacking great sentences of up to several hundred years; instead the court must consider the offending in the round and pass an overall sentence that is just and proportionate. So, for example, if John sells a small bag of cannabis to four people and is sentenced for four counts of supplying a controlled drug of Class B, the judge does not take the sentence that would be passed for one such offence (roughly twelve months’ imprisonment) and multiply it by four. She would instead pass an increased sentence, say eighteen months, concurrent on each count. Sometimes consecutive sentences are appropriate, such as when someone is being sentenced for two unrelated offences, or where there are separate offences against separate victims; but again, the judge will have regard to totality and will rarely pass for each offence the sentence that would have been passed in isolation.

  Again, you may not agree with that approach; your personal view may be that we should have consecutive American-style sentences. Four offences of selling cannabis are, you might argue, four times as serious as one, and the equivalent of 4 four-and-half months for a single offence is insufficient. But totality is the principle that judges are required by law to apply, and is usually the reason why someone might be convicted of multiple offences and receive a sentence that appears, in isolation, unexpectedly low.

  Frequently though, rather than explaining this, the judge will simply say, ‘I have had regard to totality,’ a shorthand understood by the legal professionals, but virtually meaningless to anyone else. Anyone overhearing and wanting to look up ‘totality’ would not know in which of the 1,300 pages of fragmentary sentencing legislation to start.20

  The Law Commission is presently developing a new comprehensive Sentencing Code for 2018, with the overdue aim of drawing all existing sentencing law and procedure into a single streamlined document. However, while a noble and vital endeavour, it would be naive to think that this alone will mend the disconnect between the public and the law. Because complexity aside, the rationale of sentencing policy can be difficult to understand.

  Guidelines and Statutory Maxima

  It is hard to explain, for example, the sentencing ranges and starting points prescribed by the Sentencing Guidelines, which are published by the Sentencing Council (an independent non-departmental body of the Ministry of Justice) and which judges are required by law to follow.21

  Guidelines exist for a wide range of, although not all, offences, and operate by way of convoluted flow charts and grids designed to assess seriousness by reference to concepts of ‘harm’ and ‘culpability’. By feeding the facts of a case into
the guidelines, you should arrive at a ‘category’, which provides for a sentence ‘starting point’ and a range. By then considering a further list of potential aggravating and mitigating factors (such as previous convictions), the judge can move the sentence up or down the category range as appropriate, to arrive at the sentence (before any deductions for guilty pleas).

  The guidelines themselves are drafted by the Sentencing Council following public consultation, but in some ways run counter to public intuition. For a start, none of the sentencing ranges go up to the statutory maximum sentence. In some cases, it is not even close. The guideline for inflicting grievous bodily harm with intent, the most serious offence of violence short of homicide carrying a maximum of life imprisonment, provides for an offence range (i.e. from the bottom of the lowest category to the top of the highest) of three to sixteen years’ imprisonment. Although the court can sentence outside the offence range if it would be ‘contrary to the interests of justice’ to sentence within it, what this means in practice is that most offences carry an artificially low ceiling, well below the maximum sentence set by Parliament.

  So when I was defending a man, Michael, who on a night out had got very drunk and, in a petty argument with a girl he was chatting to in a club, had bitten a chunk out of her cheek leaving life-altering scars, even though on paper he had been charged with an offence carrying a maximum of life imprisonment, he, I and the courts knew that it was extremely unlikely that he would be looking at a sentence beyond sixteen years.

  For the victim this is often hard to understand. I’ve sat opposite complainants in court witness rooms, who have been told by the police that their violent ex-boyfriends have been charged with assault occasioning actual bodily harm, an offence carrying up to five years’ imprisonment, and have had to break it to them that, actually, the highest category on the Sentencing Guidelines envisages a starting point of only eighteen months, with a range not going beyond three years. When they shout and scream and cry in frustration, I can’t help. I can’t explain why. I just sit there nodding dumbly, another officious bearer of bad, irrational tidings.

  The absence of a holistic or consistent philosophy underpinning sentencing policy is laid bare when you compare guidelines for different offences:

  — Debbie, a thirty-eight-year-old prostitute, sells a wrap of cocaine to feed her addiction. The starting point for sentence is four and a half years’ imprisonment.

  — Charlie rapes a nineteen-year-old girl in her flat after being invited home. The starting point on the Sexual Offences Guideline is five years’ imprisonment.

  — Harris runs a nifty scam from his second-hand car business and cheats Her Majesty’s Revenue and Customs of £2 million in VAT. He’s looking at an eight-year starting point.22

  Accepting the ruinous social and individual impact of supplying Class A drugs, and even ignoring the plain reality that its true devastation is rooted in the implausibility of prohibition, it would take a bold anti-drugs campaigner to submit that selling a wrap of coke is, on any assessment of harm or culpability, broadly equivalent to a rape. And I doubt you’d find anyone to agree that depriving the taxman of 0.0006 per cent of its revenue is even worse.

  The fault does not lie solely with the guidelines – their starting points and ranges are anchored to (sometimes age-old) Court of Appeal cases, and subject to statutory maxima set by Parliament. And some of these maxima make no sense. A classic example is assault. If I punch you and chip your tooth – assault occasioning actual bodily harm – the statutory maximum is five years’ imprisonment. If I punch you and you fall, bang your head and suffer irreversible paralysis – inflicting grievous bodily harm (without intent) – the statutory max is the same. The guidelines provide for marginally inflated starting points and ranges for the latter, but they are dancing on the head of a pin.

  These stand as but a handful of examples of the often-perverse operation of the law and guidelines, many of which tie the judge’s hands in irrational binds, and none of which are easily explicable to the watching public. But they, like the unjustified complexity of the legislation and procedure, are merely symptoms of a deeper malaise. The broader problem is that our lawmakers in Parliament and government refuse to be honest, with the public or with themselves, about what we are trying to achieve with sentencing policy.

  What Are We Trying to Achieve?

  For me, this is the question that I avoid. Because, day to day, the criminal justice system can feel like a numbers game. Get ’em charged, process them as swiftly as possible through the courts, impose a sentence and wait and see what happens. If they come back, hit reset and try the same damned formula. As long as people are being convicted and sentenced, the system must be working. Complicity in the aphorism defining insanity as repeating the same thing and expecting different results can be difficult for us to admit.

  The official purposes of sentencing – and, by logical extension, the criminal justice system – are set out in legislation:23

  (a) The punishment of offenders

  (b) The reduction of crime (including its reduction by deterrence)

  (c) The reform and rehabilitation of offenders

  (d) The protection of the public

  (e) The making of reparation by offenders to persons affected by their offence

  But balancing and reconciling these often-conflicting aims in practice is not easy. Particularly given the demographic of the people most frequently before the courts.

  When I prosecute a twenty-three-year-old man with severe autism and ADHD, who has the learning age of a thirteen-year-old and acts out his frustrations through spontaneous bursts of increasingly serious violence against his sixty-two-year-old mum, what should the court do? When Darius, our mentally unwell youngster from earlier, inevitably comes before the courts again for his inability to follow the rules of civilized society, which of (a) to (e) do we prioritize?

  When we see the victims of yesterday’s crimes – the abused daughters of the guilty Jays, for example – descending into spirals of theft, drug abuse and drug supply, bounced for years between prison and the streets, how do the abstract principles above take practical effect? Some such delinquents can be glued back together by the tireless efforts of the Probation Service and substance abuse workers, but many can’t. Community orders or suspended sentences with drug rehabilitation requirements have been tried a dozen times, and a dozen times have failed. What next?

  When I defend a young kid carrying knives for his gang leaders, the only role models in his uneducated, unsupported shit bucket of a childhood, how does anyone in the system persuade him to give up the only security he knows, when his mates have all been shot or stabbed? How do you persuade him to put down his arms, cut his associations and gamble his life on a rigged roulette wheel for the prize of a law-abiding suburban existence that he thinks people like him can never win?

  While the courts do their best to wrestle sensitively with these imponderables, the mood music outside the court buildings spun by media and political DJs is one-note: prison. Prison for all.

  That last example is a case in point. When statistics in 2015 indicated a troubling rise in youths carrying knives, the analysis was blunt. Parliament had no truck with the proposition that focusing on intensive community rehabilitation and addressing the social attitudes that normalize knife-carrying in certain subcultures might reduce crime and protect the public, and could be combined with a non-custodial punishment that satisfied our need for vengeance. Instead, they looked at the list, turned (a) up to eleven and to tabloid joy introduced mandatory minimum sentences of six months’ imprisonment for repeat knife carriers.24

  It didn’t matter that statistics demonstrate that short prison sentences under six months are ineffective in preventing reoffending;25 it didn’t matter that we would be introducing young people, who may not be otherwise criminally sophisticated, into an environment with hardened criminals who habitually carry weapons far more dangerous than knives. It didn’t matter that the experi
enced judge hearing the case, who knows the individual facts and is best placed to assess how to balance the competing purposes of sentence, may have considered that a non-custodial sentence best protected the public. Prison works. Repeat after me, children. Prison works.

  And I’ve seen these young people sucked in. We all have. The first custodial sentence is rarely the last. And in their cases, as with so many others, it can often feel as if the needle is stuck on retribution, at the cost of all else.

  Prison has become our cultural default; a synonym for justice. If someone commits a crime, we expect them to be ‘locked up’. Those, such as bankers, whose despised behaviour society wishes were criminal, should be ‘behind bars’. A criminal conviction, that permanent, life-altering stigma of one of society’s fallen angels, is never enough. Nor is it sufficient to pass a sentence designed to promote reparation, such as a compensation order or a community order comprising a form of restorative justice. Nor for a prison sentence to be suspended, to hang the Damoclean sword over the offender’s head as a bond of good behaviour.