Sentences on rioters should deter violence, not ostentatious acts of urination

Five people involved in the riots which occurred on March 21st in Bristol were sentenced yesterday. All received prison sentences and four out of the five deserved them. They had admitted throwing objects, and attacking both a police vehicle and Bristol’s central police station. Many officers were injured. In disturbances which lasted from early evening well into the night officers were struck, spat on, kicked and punched, some whilst defenceless on the ground. Some – with good reason – feared for their lives. Hundreds of thousands of pounds of damage was caused in damage to police property alone.

These were the four who deserved their sentences (details taken from the Avon and Somerset Police press release):

Kane Adamson, 21,  threw items including road signs, a road work barrier and an electric scooter at officers while he also threatened officers and repeatedly punched and kicked their shields. Jailed for three years and six months.

Brandon Lloyd, 21, pushed and kicked officers’ shields, cornered and assaulted a PC by kicking them, and threw items at and kicked the windows of the Bridewell Police Station, damaging the glass. Jailed for three years and 11 months.

Kain Simmonds, 18,  sprayed an aerosol in the direction of an officer’s face, kicked officers’ shields, kicked the window of the Bridewell and repeatedly struck a police van with an officer’s baton. Sentenced to three years and three months at a young offenders institution.

Stuart Quinn, incited others to attack police officers, throw items at the Bridewell and cause damage to a police van. Jailed for three years and three months.

The defendants appear to have been identified on police video footage, part of which was released after the sentencing.

The violence arose out of a protest against the Police, Crime, Sentencing and Courts Bill, which contains a great deal of lamentable new law. I have written in some detail on this blog about one particularly nasty aspect of the Bill aimed at Gypsies and travellers, but they are by no means the only objectionable provisions.

The Bill would also significantly extend the powers of the Police to prohibit or impose conditions on demonstrations and other public assemblies, to avoid what Clause 56 (11) calls “serious disruption to the life of the community.” What does that mean? The answer is that it means whatever the Home Secretary wants it to mean, because under Clause 56 (12) the Bill gives her the power “to define any aspect of an expression mentioned in subsection (11).” That alone is an extraordinary provision – though unfortunately less extraordinary than it once would have been – empowering a Government Minister to change the legal meaning of language as she or he sees fit. It is a type of legislation known to English lawyers as a “Henry VIII” clause, but given the potentially breathtaking powers it hands to government ministers to limit demonstrations it might be almost as accurate to call it a “Xi Jinping” clause.

None of that of course excuses the violence used against the police who are not responsible for the Bill, did not ask for it, and some of whom who may well, individually have had sympathy with many of the objections to it.

The violence was not just inexcuseable. It was also extraordinarily counter-productive: the Bill is aimed at controlling disruptive demonstrations. What better argument could Priti Patel have to demonstrate the necessity for additional powers than to point to one of the most violent political demonstrations of recent years in which brave police officers were targetted by demonstrators chanting “Kill the Bill”?

But the fifth defendant sent to prison did not deserve it. Yasmin Schneider – who identifies as non-binary and prefers the pronoun “they” – was given a 5 month sentence of imprisonment for “outraging public decency.” Their crime was that during the riots they urinated at the feet of the police. Should you wish to, you can see footage of one of the incidents at the end of the police video uploaded above. It is not especially disgusting to watch.

They were not charged with riot or violent disorder, or with any crime of violence. That was because the crime was not a violent one. It was an act of protest that many would have found distasteful, though to my mind at least it was a great deal less distasteful than chanting “Kill the Bill” at a riot when police officers were under sustained attack and fearing for their lives.

Why then was Schneider given a prison sentence?

As usual the full sentencing remarks have not been published, but the hearing was well covered by the Bristol Post. According to their report, Judge Patrick said that her actions “dehumanised the police” and that there was a “high degree of harm caused.”

One can understand that a defendant’s actions have to be judged in the context in which they occur. A single angry man on his own hammering on the outside of a police van is much less alarming than a man – like Kain Simmonds – doing so as part of a mob attacking the police. So it would be wrong to judge her as though she was a drunk caught short in the street after too many beers. In the context it was a calculated act of protest, and, given her plea of guilty, I suppose we must accept that the charge of “outraging public decency” was appropriate. It is, at least in my opinion, a dangerously vague common law offence (that is, it is not created by legislation) which criminalises – I take the definition from Archbold’s Criminal Pleading, Evidence and Procedure – “open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.”

There are no formal sentencing guidelines for outraging public decency and, as a common law offence, it theoretically carries an unlimited prison sentence. In practice immediate imprisonment is far from inevitable. Judge Patrick himself will be remembered by some for a 2014 case in which he imposed a suspended sentence on a man who tried repeatedly, though without success, to have sex with various sheep and cattle in front of outraged picnickers outside Tottenham Hotspur’s training ground.

In an earlier case (Hardy [2013] EWCA Crim 2125]), the Court of Appeal said that when sentencing a man for “displaying his semi-erect penis” by rubbing it on the back of a car and “shaking it up and down,” the courts should have regard to the sentencing guidelines for “exposure,” an offence under the S.66 of the Sexual Offences Act 2003, committed where a person “intentionally exposes his genitals, intending that someone will see them and be caused alarm or distress.”

It seems that Judge Patrick may have had those guidelines in mind, not least because of his use of the expression “high degree of harm caused.”

Where there is both a high degree of harm and high culpability, the sentencing guidelines for exposure suggest a starting point of 26 weeks imprisonment, although that would not necessarily be an immediate sentence, and it would in any case have to be reduced to give credit for a guilty plea. If either a high degree of harm or a high degree of culpability is not present the guidelines suggest the starting point should be some form of community order.

What are the factors that indicate greater harm and greater culpability? The guideline helpfully sets them out.

None of these applies, and in fact the exposure guidelines are perhaps not really very apposite to Schneider’s offence.

So how was it that the judge was able to conclude that public urination during a riot caused “a high degree of harm”? Certainly it caused no physical harm, and it seems improbable that any of the injuries suffered by the officers that evening were psychological injuries consequent upon seeing Schneider urinate. The judge fell back upon the nebulous assertion that urinating in front of police officers “dehumanised” them. Whatever that means, it is surely far better that during a riot a person should “dehumanise” police officers by ostentatious acts of micturition than by hurling a brick at them; or indeed by provocatively chanting “Kill the Bill,” something which nobody – so far – has suggested should be a criminal offence.

Moreover – at least judging by the report in the Bristol Post – Judge Patrick does not appear to have given much weight to the personal aspects of mitigation that Schneider’s counsel outlined to the court. These included homelessness at the age of 16, domestic abuse, pregnancy, a stay at a mother and baby unit, and what sounds like rather fragile mental health. Even if the judge regarded that mitigation as irrelevant, and because he is a humane and decent man I doubt that he did, it is still very difficult to see what an immediate prison sentence achieves that a suspended sentence coupled with some form of community order would not. If it is felt that only a harsh sentence would deter others in the future, surely it would make more sense to draw a sharp distinction between those demonstrators who used actual violence and those, like Schneider, who did not.

It is violence that needs to be deterred at political demonstrations, not tasteless or offensive acts of protest.

 

 

 

 

 

 

The evil lurking in clause 23 of the Nationality and Borders Bill

Immigration and asylum law is notoriously complicated and constantly changing.

In a recent Gresham College lecture, Lord Justice Haddon-Cave referred to an estimate from 2013 that immigration legislation and rules ran to over a million words – more than the total number of words in the Harry Potter series. In a case from the same year Lord Justice Jackson described the Immigration Rules and their numerous appendices as “having achieved a degree of complexity which even the Byzantine emperors would have envied.”

Things have got worse since 2013.

In 2017 a senior Immigration Judge described immigration law as:

A total nightmare. I don’t suppose the judges know any more about it than the appellants who appear before them.”

One of the very few people in the country who does know more than most appellants or judges is Colin Yeo. As he points out on his superb blog, statutory immigration law – not including the voluminous rules and codes of practice – is now divided between Acts from 1971, 1988, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014 and 2016. Each Act amends and re-amends existing legislation, thus adding yet further layers of complexity. Since he wrote that post, Brexit legislation has produced yet more statutory accretions.

The latest horror about to arrive is the Nationality and Borders Bill. Continue reading “The evil lurking in clause 23 of the Nationality and Borders Bill”

The Evil of Priti Patel’s Anti-Gypsy Legislation

What on earth has happened to Matthew Parris?

For the last thirty years or so he has produced beautifully written, persuasive columns on subjects from llamas to high politics, typically characterised by thoughtfulness, tolerance and moderation. Then, last Saturday he wrote an extraordinary piece under the headline “We should stop pandering to Travellers.”

It seems to have been prompted by the arrival of some travellers in a Matlock car park:

“… I’ve walked through the encampment many times a week for ages now. A scattering of Portaloos and wheelie-bins have arrived, more caravans recently, dogs on chains, and a string of steel barricades: the town is facing a serious loss of amenity and people worry — reasonably or otherwise — about security.”

Mr Parris concedes that the Travellers have done neither him, nor anyone he knows any harm. Nevertheless, “public anger is undeniable.”

Parris: Travellers have done me no harm

His central argument  was that “there is simply no place for the nomad [that is travellers and gypsies moving around the countryside in caravans] – in modern Britain.” Continue reading “The Evil of Priti Patel’s Anti-Gypsy Legislation”

The ordeal of Father Bill Bulloch

In May 1650 the “Rump” House of Commons passed an “Act for suppressing the detestable sins of Incest, Adultery and Fornication.”

Adultery by either sex became punishable by death, although if committed by a man with an unmarried woman it was deemed merely “fornication” with a sentence of 3 months imprisonment for a first offence (in a seventeenth century version of the “three strikes” rule it was death for a third offence of fornication). The Adultery Act was so successful in eliminating the detestable sin, that it during its ten years in force it only proved necessary to execute four women, and no men.

However, by 1660 its time was up. Other “Acts” of the Rump Parliament had included the abolition of the House of Lords and the abolition of the monarchy, so upon the restoration of both institutions in 1660 the Adultery Act was no longer recognised as being a validly created law. Since then adultery has not been a criminal offence in England and Wales. The misleadingly entitled tort of “criminal conversation” – it was not criminal and did not require any conversation – lingered on till 1857. Well into the second half of the twentieth century one could in theory obtain damages for adultery, but that ended in 1970. Adultery lingered on in law as a ground for divorce until last year, but with the enactment of the Divorce, Dissolution and Separation Act 2020 even that disappeared.

So it was a little odd to read in the Church Times last year that a Southend vicar, Father Bill Bulloch, was cleared of adultery in an English court. Continue reading “The ordeal of Father Bill Bulloch”

Essex Court Chambers, genocide and the allure of Chinese money

Lawyers, and perhaps especially barristers like to speak of the high nature of their calling. We defend human rights. We give a voice to the voiceless. We fearlessly ignore all personal considerations and strive only to uphold the rule of law. We are independent and cannot be bought or bullied. “Do right, fear no-one,” as the Criminal Bar Association used to say quite often. Fine words indeed.

At the Commercial Bar – that rarified corner of my profession where chambers, and even some individuals earn millions from international litigation and arbitration – the principle seems to have been watered down to “do nothing to upset China.” Continue reading “Essex Court Chambers, genocide and the allure of Chinese money”

The Batley Grammar School teacher should not be sacked for blasphemy

It is more than 6 years since the Charlie Hebdo murders. 12 people were shot dead in the magazine office, murdered by Islamists to avenge its publication of cartoons of Mohammed. Their “crime” was that they had committed blasphemy. Over the next three days a policewoman and 4 customers at a Jewish shop were also murdered.

In the immediate aftermath of the atrocity it became fashionable so say “Je Suis Charlie” in solidarity with the magazine. At least a million people, including the French President marched through Paris to demonstrate their support for freedom of speech. The British Prime Minister joined them, as did many other world leaders.

Even the Saudi Arabian ambassador attended the demonstration, which might have seemed a little surprising given the Kingdom’s well-known disapproval of blasphemy. However, Saudi Arabia does not endorse the extra-judicial killing of blasphemers. Instead – as with Raif Badawi – it punishes them with lashes and imprisonment, only very rarely with beheading, and then only after a trial.

In October last year Samuel Paty, a teacher was beheaded, again in France, after apparently showing his students some of the Charlie Hebdo cartoons of Mohammed. He had reportedly asked anyone who did not wish to see the pictures to close their eyes first. The precaution did not save him from a planned and premeditated attack by a religiously motivated mob. Continue reading “The Batley Grammar School teacher should not be sacked for blasphemy”

The prerogative of procrastination: what has happened to the Royal Commission on criminal justice?

A P Herbert once said “a Government department appointing a royal commission is like a dog burying a bone – except that a dog does eventually return to the bone”.

He was partly right of course, and many Royal Commissions have been used as a convenient means of burying subjects too difficult for governments to handle. Conveniently, they always take years to report, so they can be a useful way of transferring difficult problems to a future government. Often their recommendations have been ignored and in some cases Commissions have even been wound up before they have had a chance to produce any report at all.

However, Royal Commissions on criminal justice matters have tended to be rather more productive, and several have been instrumental in producing real and lasting change.

The Capital Punishment Amendment Act 1868, which abolished public executions, was introduced following recommendations in the 1864 – 66 Royal Commission on capital punishment.

In more recent times, the 1978 – 81 Royal Commission on Criminal Procedure led both to the establishment of the Crown Prosecution Service and to the passing of the 1984 Police and Criminal Evidence Act, two reforms of huge significance.

The 1991 Royal Commission on Criminal Justice made a number of recommendations that were not followed, but its important proposal for the establishment of a Criminal Cases Review Commission was accepted. That too was an important legacy, despite the CCRC’s recent troubles.
Continue reading “The prerogative of procrastination: what has happened to the Royal Commission on criminal justice?”

How could Priti Patel reintroduce the death penalty?

There was a flutter of interest on Christmas Day when, in festive mood, the Society of Black and Asian Lawyers tweeted the following:

A little bird at the @ukhomeoffice tells us @pritipatel has asked Civil Service to scope a policy paper on the restoration of the death penalty in the #NewYear2021 and the #Tories have the majority to do just that.”

In the past Ms Patel has expressed support for capital punishment. In 2006 she told the Mail on Sunday:

If you had the ultimate punishment for the murder of policemen and other heinous crimes, I am sure it would act as a deterrent. We must send a clear signal to people that crime doesn’t pay. The punishment must fit the crime and yes, I do support capital punishment.”

In a BBC Question Time programme in 2011 she said:

I have said this before and I will say it again, I do actually think when we have a criminal justice system that continuously fails in this country and where we have seen murderers, rapists and people who have committed the most abhorrent crimes in society, go into prison and then are released from prison to go out into the community to then re-offend and do the types of crime they have committed again and again.

I think that’s appalling. And actually on that basis alone I would actually support the reintroduction of capital punishment to serve as a deterrent, because I do think we do not have enough deterrents in this country for criminals.”

In fact, I’m not sure she has ever “said it again.” In an interview with the Mail on Sunday in 2019, asked about the death penalty she said:

I have never said I’m an active supporter of it and [what I said] is constantly taken out of context.”

If her apparently contradictory public statements can be reconciled, and perhaps they cannot, her position seems to be that the death penalty should be reintroduced even though she has never actually campaigned for its reintroduction.

However, let us make the unsafe assumption that the Society of Black and Asian Lawyers are correct, and that she has commissioned a “scoping exercise” in the Home Office to advise her on the feasibility of bringing back the gallows. Brexit may have removed one potential obstacle: any moves to reintroduce hanging would have met with objections from Brussels; indeed it would have been unlawful under the EU Fundamental Charter of Human Rights, Article 2 (2) of which of provides:

No one shall be condemned to the death penalty, or executed.”

Happily the team need not waste any time on the knotty problem of the exact status of the Fundamental Charter in UK law, because post-Brexit it has none.

So, aside from the many philosophical objections to the death penalty, what practical problems will Ms Patel’s scoping exercise into the establishment of a post-Brexit bloody code need to address?

The problems, even for a determined government with a sizeable majority, are considerable. Continue reading “How could Priti Patel reintroduce the death penalty?”

Barrister who breached Supreme Court embargo: “I felt I had no choice.”

I am grateful to Matthew for allowing me to reply to his blog-post regarding my contempt of court in breaking the embargo on the Heathrow judgment.

Imagine it is 2016 and you are in possession of a confidential report implying the cladding on Grenfell Tower meets appropriate fire-safety standards. You know that to be untrue. You might feel an obligation a) to sound the alarm; and b) to do so as loudly as you could (regardless of the breach of confidence).

What has that got to do with breaking the Supreme Court embargo on the Heathrow judgment? These were the key facts of our claim: Continue reading “Barrister who breached Supreme Court embargo: “I felt I had no choice.””

Unless he apologises Tim Crosland should never work as – or call himself a barrister again.

Tim Crosland says he has been a lawyer for more than 25 years, but he may not be one for much longer.

For the last five years he has also been a trustee of Plan B, a registered charity which he helped to found, whose objectives are given at length in its governing document, but are more pithily summarised in its twitter profile as:

Taking legal action against the British Government to secure a safe climate future for people and planet.”

He is a strong supporter of Extinction Rebellion, which he considers has achieved more in 18 months than other environmental groups achieved in three decades.

He is the very model of a “left wing activist lawyer,” and if you are interested in his politics and you can face over 40 minutes of his preening self-righteousness then you can watch him talking to Extinction Rebellion’s Roger Hallam – not to be confused with the equally but very differently deluded Roger Helmer – here

On Plan B’s website he is described as:

Tim Crosland, Director

Tim Crosland, Barrister, brings to Plan B expertise in international human rights, environmental law and litigation, and an inter-disciplinary, partnership-based approach to tackling climate change.”

One of Plan B’s legal actions was against the government. Indeed it was originally against the previous administration’s principal unsafe pair of hands Chris Grayling, the former Secretary of State for Transport. Along with Friends of the Earth, Plan B argued that Mr Grayling had unlawfully ignored the Paris Climate Agreement when it designated the “Airports National Policy Statement” as government policy. The ANPS does not of itself grant planning consent for the proposed third runway at Heathrow, but it does set the “policy framework” in which the decision on that consent will be made. It is a framework that makes it more likely that the third runway will ultimately be built.

Plan B lost in the Divisional Court, but last February it won in the Court of Appeal, which ruled that the Mr Grayling had not taken into account the government’s policy commitments on climate change as agreed to in the Paris Agreement.

The Government – by now Mr Johnson was Prime Minister – decided not to appeal. In truth, their defeat in the Court of Appeal may have been rather convenient. It allowed the Prime Minister, who once made what now seems a possibly disingenuous pledge to lie down in front of the bulldozers to prevent the airport’s expansion, to avoid, or at least put off, making any decision about a contentious issue.

By this stage, however, Heathrow Airport itself – Heathrow Airport Ltd – a company who very much did want the third runway to go ahead, had intervened in the case, and they did appeal, hence the case ended up in the Supreme Court.

The judgment itself is not easy reading: those who want to follow the various arguments without getting completely lost will, like me, find the Supreme Court’s Press Summary a good place to start. There will be some who would find the Supreme Court’s video recording of the hearings interesting; but I doubt there will be very many. Mr Crosland represented Plan B, and did so, no doubt in a revolutionary gesture, wearing a suit but no tie. I would illustrate this with a screenshot were it not for the fierce legend at the bottom of the Supreme Court screen:

“… re-use, capture, re-editing or redistribution of this footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.”

It may sound rather hair-splitting, but he appears to have represented Plan B in the Supreme Court in his capacity as “Director of Plan B” rather than as a barrister. That, at any rate is how he is described on the first page of the judgment.

Anyway, he lost. I say nothing of the merits of the decision. It turned to a large extent on an arcane point of statutory construction, namely the proper meaning of the phrase “government policy” in S.5 (8) of the Planning Act 2008. There is nothing in the judgment about the merits or otherwise of a third runway, and it makes no more sense to say that the Supreme Court supported its construction than to say that the Court of Appeal opposed it.

As is normal with Court of Appeal or Supreme Court judgments, the parties were supplied with copies of the draft judgment a day or two beforehand. There are lots of reasons for this. It gives them a chance to check the judgment for mistakes or obvious factual errors. Correction of these might occasionally make a significant difference to the outcome; a draft, after all is just a draft. There may be consequential arguments, perhaps about the wording of an order or about costs. It is hardly fair to ask the counsel involved to address these without at least a little time to prepare. But the drafts are supplied on the very clear understanding that their contents are not to be made public until “handed down,” either in open court, or by being formally made public by the Court itself. It is a system that usually works well and does so, like so much in the legal system, on the basis of trust. Solicitors and barristers – whether they have won or lost – can generally be trusted not to abuse it for personal or political advantage. Lawyers who believe that they have a monopoly of virtue are both tiresome and dangerous. Lawyers who cannot be trusted are a menace.

Unfortunately Mr Crosland could not be trusted. The day before the Court was due to hand down its judgment, using the twitter account of Plan B, he denounced the Supreme Court’s decision. He described his outrageous breach of trust as an “act of civil disobedience.” He had, he said “deep respect for the rule of law and the vital role of the judiciary in holding power to account,” although only, it seems, when he wins. The Supreme Court, in upholding what he called Mr Grayling’s treasonous betrayal of the young people of this country” had, he said, “betrayed us all.” 

Talk of treacherous judges in the Supreme Court is reminiscent of President Trump, and it certainly does not sound very respectful. It is the mirror-image of the “enemies of the people” language that some of the British press engaged in during the Article 50 or Prorogation litigation.

Mr Crosland knows that he – and possibly the charity whose twitter account he was usingwill face proceedings for contempt of court. The Court has already referred him to the Attorney General who we must hope will deal with the matter appropriately. Unfortunately he is a fanatic who will – Tommy Robinson-like – try to use a perfectly proper prosecution for contempt of court to turn himself into a political martyr.

The Court has also, entirely properly, referred him to the Bar Standards Board. It is almost inconceivable that they will not seek to discipline him.

However, there is a bit of a mystery here. Despite describing himself as a barrister, Mr Crosland does not appear in a search of the Bar Standards Board register of practising barristers.

It may be that he is an “unregistered” barrister. The law is not entirely straightforward, but is summarised on the Bar Standards Board website:

If someone is a barrister but they do not have a valid practising certificate, they are known as an unregistered barrister. Unregistered barristers are allowed to refer to themselves as “barristers” providing it is not in connection with offering or providing legal services. People who are not barristers may be committing a criminal offence if they describe themselves as a barrister. We may notify the police if we hear someone has been wilfully pretending to be a barrister.”

Unregistered barristers, just like practising barristers, are subject to disciplinary proceedings. They too can be suspended, struck off  or otherwise disciplined.

If Mr Crosland is indeed a barrister, and if he backs down, apologises and admits he was wrong then it may be possible for the tribunal before which he will eventually appear to take a lenient view. If he continues to grandstand and behave as though the ordinary rules of professional conduct do not apply to him because of the purity of his ideals I very much hope it will ensure that he is never able to work as, or call himself, a barrister again.