Guest Post: Criminal barristers need the patience of monks but we have not taken vows of poverty

Today criminal barristers in England and Wales have begun what has been widely described as an all-out strike.  I am delighted to give these reflections by Kannan Siva wider circulation on this blog.  Kannan is a criminal barrister – a very good one and a formidable opponent – and he writes about the crisis facing the bar. We should not forget that criminal solicitors are facing almost identical problems: falling fees, firms closing, an ageing profession and rock-bottom morale.  Far from having the “world class criminal justice system” to which we all aspire we have a system that is falling apart at the seams.

Kannan Siva: “criminal barristers need … the patience of a monk and story-telling ability of a novelist.”

About 25 years ago I was a fledgling barrister hanging on every word of an elegant and charismatic retired South African judge. He was giving the final speech in a training session on advocacy. We were young barristers learning the art of persuasion. It was Sunday afternoon and instead of looking at the clock after a weekend of training, this tall, silver-haired man had us gripped. He ended with a rhetorical question. I can’t remember exactly how he phrased it, but it was something like this… Continue reading “Guest Post: Criminal barristers need the patience of monks but we have not taken vows of poverty”

Mr Justice Hayden was right to bring Archie’s futile treatment to an end.

Archie Battersbee’s life support was withdrawn yesterday, and his mother announced that he had died at 12.15 in the afternoon.

His parents have fought for his life with extraordinary determination. From their point of view it must have seemed as though the medical and legal establishments have unreasonably closed ranks to deprive their son of his last, incredibly slim, chance of life.

I think that view is wrong, but the questions raised by the case are agonisingly difficult.

Archie’s mother and her MP have suggested that there should be changes in the law surrounding end of life decisions for children, although exactly what changes she wants are unclear.

At present the law is clear enough to be stated in a single sentence and it is hard to imagine that anyone could sensibly disagree with it: what is best for this child? Continue reading “Mr Justice Hayden was right to bring Archie’s futile treatment to an end.”

Barristers’ on strike: should the Lord Chief Justice have gone ‘no comment’?

The Lord Chief Justice has been widely criticised by members of the criminal Bar for having appeared to take sides – the wrong side – in the profession’s current dispute with the government over fees.  In this guest post Edward Henry QC reflects on how well the head of the judiciary has been able to perform his delicate high wire act between the twin pillars of the Judiciary and the State.

I have not had the pleasure of appearing before The Right Honourable the Lord Burnett of Maldon, Lord Chief Justice of England and Wales, and until 22nd June 2022 felt a certain affinity with the Chief. Unlike me, he sports a fine bouffant, a luxuriant helmet of Albino Sable, or Arctic Fox. In contrast, I am follicularly challenged, but were I to apply shaving foam to my shining pate, having rouged my cheeks (as I once did for the Soho Women’s Collective panto) a certain similarity could be approximated, provided I shaved off my beard.

Henry:  pleasing adiposity
Burnett: Albino sable
Picture: Catherine Baksi

We do, after all, share a trencherman’s physique, and because of our pleasing adiposity, I fondly imagined the Chief to be an excellent dining companion – his face is reminiscent of a jolly two bottler transported from the late 18th Century Augustan age, when flasks were smaller (of course) for he’s surely not a toper. Yes, our taste in Art was unlikely to be simpatico, vouched for by the fact that for many months (or so it seemed) a ludicrous email announced that the Chief had signed a print of the RCJ, which wheezed, as follows:

“The Royal Courts of Justice” has been published in a limited edition of only 950 prints – every one of which has been hand-signed and numbered by the Lord Chief Justice and the artist, to create a rare and historic legal collectible – which is already being referred to as one of the most important and valuable in British legal history.

Whom had the Chief endorsed by autograph? A modern Piper, Piranesi, or Palladio? Well, up to a point Lord BoM! When one inspected the dismal scene, the eye was met by a dreary, tea-bag-stained embarrassment. The referee, in the above boilerplate quote, must have been laughing all the way to the Bank – but only on the unlikely assumption that anyone had bought a copy. Whilst I would not question the Chief’s artistic taste (even judgement) his association with this particularly plain (at least to me) print project seemed perplexing until I read it was for charity, which (as you know, dear reader) covers a multitude of sins.

The Chief’s announcement on the CBA’s ‘Days of Action” suggests that his devotion to charity does not begin at home. After stating the obvious, that the Judiciary is to uphold the ‘Rule of Law’, he then unwisely rubbed his magic lantern and an intimidating spectre, muttering darkly of ‘wasted costs’, ‘referral to the BSB’ and ‘disciplinary process’ wafted from the spout. Having already professed (as he did before in his recent Slynn Lecture) that the Judiciary were not involved in the dispute between the Government and the Bar, the Chief’s aspirations to neutrality seemed to be surreally at odds with the actualité. In contrast, when contemplating the dearth of criminal practitioners in the Crown Court, during the course of the Slynn Lecture he delivered on 16th June, he said the following:

At the same time as the judicial capacity of the Crown Court has diminished in recent years, so too has the capacity of the legal profession to service the cases that we would wish to list. Of course, I shall say nothing of the current dispute between the criminal bar and the government and its potential to increase the outstanding caseload and reduce timeliness. But as the volumes of work in the Crown Court reduced over a period of about ten years and at the same time the remuneration available to both solicitors and barristers was either frozen or failed to keep pace with even modest inflation, the number of specialist practitioners on both sides of the profession diminished. We are now running the Crown Courts at about 25% greater a rate than we were three years ago. The legal profession has struggled to keep up in many parts of the country since the Crown Courts returned to pre-COVID levels of work during 2021. A growing number of cases in recent months listed for trial have been adjourned because either the prosecution or the defence have been unable to find suitable representation. That is a capacity issue and to my mind both the legal profession capacity issue and the judicial capacity issue demonstrate how important it is to ensure that any system that is vulnerable to ebbs and flows of work has sufficient resilience to deal with an increase in demand. The legal profession does not appear to have that resilience at the moment. Sorting out remuneration difficulties is an obvious first step. But it will take time for solicitors’ practices around the country to react and increase the capacity of their criminal teams. It will take time for the bar to reverse the trend of drift away from criminal law and increase the number of barristers willing and able to undertake criminal cases. There is an additional problem. The pool of suitably qualified lawyers is not only small, but it is being fished by many. HMCTS needs to recruit more lawyers as legal advisers in the Magistrates’ Court and elsewhere in the courts and tribunals service. The Crown Prosecution Service has been increasing its number of lawyers by recruiting heavily from HMCTS and the private sector. There do not seem to be enough criminal lawyers to go round. [Emphasis added]

This sober analysis was right on the money, or lack of it, but for the fact that rates have essentially remained static for 25 years, as opposed to ten, eroded by inflation, which now threatens to gallop away. Money isn’t everything, and most criminal practitioners aren’t motivated by it. Those who accuse us of cupidity are way off beam when so many critical tasks, including vital scrutiny of ‘unused material’ that might undermine the case for the prosecution, or potentially assist the defence case, remained excluded from the time the AGFS was introduced in 1997, until relatively recently. For 20 years the analysis of this material, fundamental to the fairness of the trial process, was conducted free of charge, the reward being the honour and responsibility of defending another human being.

Having, on 16th June 2022, succinctly stated the problem, the Chief’s announcement on 22nd June was surprising in its lack of deftness, and emotional intelligence. How are you going to retain practitioners or recruit new entrants if you appear to threaten them with an ermine veiled cudgel? Although the communiqué was couched in opaque language, nerves are frayed and emotions raw, so it would not be surprising if worthy advocates, at the end of their tether, might feel threatened, or see this as an instance of not-so-subtle intimidation? How do you reconcile the Senior Judiciary’s pseudo-Swiss stance with the heavy ordnance of referrals, mandatory reporting to the Presiders, and potential disciplinary proceedings? The apparent encouragement, however oblique, that wasted costs orders might be applied for by the CPS, pitting advocate against advocate? Could someone please tell us how someone with such political savvy, astute intelligence, and adroit skill, got it so wrong? Then I saw the answer staring me in the face.

In his Slynn Lecture, the Chief referred to the negotiations between the Judiciary and the Government that preceded the Constitutional Reform Act 2005. The phrase he used when describing them was ‘The Concordat.’ That term has unfortunate historic connotations that may be revealing, even sinister.

In 1929 Mussolini and the Pope agreed terms akin to a truce – resolving (uneasily and unsatisfactorily) the battle between the temporal and the spiritual worlds. The choice of the word ‘Concordat’, with echoes of Mussolini’s Concordat, The Lateran Treaty, may be revelatory (I do not say it is) of the untidy ambiguities and unresolved pressures that still exist between the ‘Independent’ Judiciary and The Executive. In stating this, I am simply referring to the tension between the Executive and the Judiciary, exacerbated by populism, without appropriating the historic context of that dreadful epoch. Such fatuous comparisons cause justifiable offence, but the Chief’s choice of word seemed uncanny.

The last few years, quite evidently, have been fraught with danger for the Judiciary. The Senior Judiciary have been vilified and castigated, accused of treason, with no less than Lord BoM’s predecessor being styled as an ‘enem(y) of the people.’ The Crown Court judiciary are frequently lambasted for ‘being soft’ when diligently, and responsibly adhering to Sentencing Guidelines, which are founded on powers conferred by Government. Maybe, our current Chief, confronted by this mayhem, feels constrained to attempt the improbable (indeed impossible) challenge of becoming a high-wire aerialist, walking the tight-rope ‘twixt those twin pillars of Judiciary and State, in full regalia, wearing paste-encrusted buckled pumps? How far his efforts can be reconciled with a more resilient definition of ‘Independence’, requiring a more forthright quality of virtù, I leave you to judge.

Lord Burnett was a stellar brief – he was junior counsel to the Maguire Seven and the Guildford Four inquiries. He made an outstanding contribution to them both, exposing that fathomless abyss of utter darkness into which our system of criminal justice had fallen. Has he forgotten what he helped to reveal? Can he not remember the degradation, and torture of the innocent, enabled by a dysfunctional system, which has been repeated in our more recent past with the horrifying Post Office Horizon scandal? We now need, more than ever, fearlessly independent Judges and advocates to uphold rights, especially advocates willing to defend against the odds, whenever the risk of oppression and abuse of power threatens our liberties. The Criminal Bar’s withdrawal of labour, paradoxically, is not intended to destroy but to preserve: to preserve not only the Independent Bar, but the Criminal Justice System itself.

When appointed, Lord Burnett became the youngest Lord Chief Justice since Lord Parker of Waddington, who (in 1959) stressed that the judiciary’s “positive responsibility [is] to be the handmaiden of administration rather than its governor”. The judiciary as handmaidens (you give me a gender-neutral alternative!) of the Executive conjures up a procession of docile, red dressing gowned, ghosts gliding on and off the Bench, more concerned to approve rather than inclined to protect the citizen against the misuse of state power. Has a new era of judicial deference, unthinkable, perhaps, to Lords Bingham, Woolf, and Phillips begun?

It is not encouraging.

I fear, without condemning the Chief, that Lord Burnett may have chosen the wrong path, at least for now. The Slynn Lecture sits ill with the missive of the 22nd June. That latter statement may not have been an emetic, but it was unpalatable. It was better left unsaid, just as it may be for others to judge if this article were better to have remained unwritten. So, I’d better put that dinner à deux on hold for now. The corked bottle should have remained uncorked. To my colleagues, my good, worthy, and courageous colleagues, I wish you strength. We shall all need it.

Edward Henry QC practises in serious crime, business crime and fraud. He is Head of Regulation at Mountford Chambers, and his regulatory practice involves the defence of financial institutions and professionals. Many years ago, he had a successful practice defending sex-workers, which led to his playing a pantomime Dame, or to be more precise an “Ugly Sister” in the English Women’s Collective of Prostitutes’ Annual Panto. His performance1 was so unconvincing (“abysmal”) that he was not asked to repeat it. He writes in a personal capacity, and his views should not be attributed to Chambers, but if he laughs (or pokes fun) at any mortal thing it is so he should not weep.

1 On stage

Depp v. Heard: Why did an American jury reach a different decision than the English judge?

We now know that in Virginia it is defamatory to call Johnny Depp a wife beater, whereas in England, at least for the time being, it is not.

How could it be that on what was the same issue two courts could arrive at such contradictory verdicts?

The American verdict appears itself somewhat contradictory. Whilst finding mainly in favour of Depp, it did also make one finding in Heard’s favour. On one discrete issue, they found that she had not set up Depp in an “ambush” to fabricate hoax allegations of abuse. But that was a small crumb of comfort – albeit it has saved her $2M – in a decision that otherwise saw the jury exonerate Depp on the central allegation that he was a domestic abuser Continue reading “Depp v. Heard: Why did an American jury reach a different decision than the English judge?”

Colston summing up: those legal directions in full

Below is the full text of the legal directions given to the Colston 4 jury by the Recorder of Bristol, HHJ Peter Blair QC.  Unfortunately some of the formatting has been unavoidably altered, but not the text itself.

R v MILO PONSFORD, SAGE WILLOUGHBY, RHIAN GRAHAM & JAKE SKUSE

LEGAL DIRECTIONS – JUDGE’S HANDOUT

My jobs –

To explain to you the law which applies in this case.
I am responsible for decisions about what legal rules you have to follow.
All of my directions about the law, set out in this document, are compulsory for you to follow – you have no choice. If I get them wrong they can be corrected by an appeal.

To remind you of the core parts of the evidence to help you remember what witnesses have said, but you are the assessors of the evidence, not me. I will do that after you have heard the closing speeches of the advocates in the case.

Your jobs –

Appoint someone to chair your discussions. Choose someone in any way you want. That person should ensure everyone is given the opportunity of expressing their views and everyone listens respectfully to each other. The person you choose to chair your discussions doesn’t have any special status – you are all equally important – you each have one vote. When you have made up your minds one of you will need to act as your spokesperson and answer a series of questions from the court clerk to tell us what verdicts you have reached.

Make the necessary decisions about the facts of this case, as a group of the 12 of you together, in order to come to your agreed verdicts of either ‘guilty’ or ‘not guilty’. Here are some guidelines about how to approach your task
Assess what witnesses have said and assess the other material placed before you so as to decide what facts have been proved.

You are the only judges of the evidence.

Throughout your discussions as a jury you have to decide on the facts of the case. That’s not for me, nor anyone else.
Respect each others’ opinions and value the different viewpoints you each bring to the case.
Be fair and give everyone a chance to speak.
It is okay to change your mind.
Listen to one another.
Do not be afraid to speak up and express your views
Do not let yourself be pressured into changing your opinion, and do not pressure anyone else.
Do not rush into a verdict to save time. Everyone involved in this case deserves your attention and thoughtful consideration.
Do not under any circumstances make your own inquiries about anything to do with the case (as explained in the handout “Your Legal Responsibilities as a Juror” that you received on the first day of the trial).
If someone is not following the instructions in this document, or refuses to engage, or relies on other information outside of the evidence presented to you then you must let me know by sending me a note straight away.
You can vote on where you have all got to in your views at any stage of your discussions.
You can take votes by raising your hands or by writing it down – that is up to you.

Your verdicts have to be unanimous: 12-0 decisions. (If the time were to come when I could accept any verdict from you involving fewer votes than 12 in favour of it you must wait until I call you back into court and tell you about it.)

Who has the job of proving the facts of the case?

The Prosecution has brought the case to court, so
the Prosecution has the burden of proving its allegations.

A Defendant does not have to prove anything or disprove anything.

How is something ‘proved’?

Something is proved if, and only if, you are sure about it in the light of all of the evidence you have heard on that topic.

If, in the light of all of the evidence on that topic, you are not sure about it, then it hasn’t been proved.

Separate verdicts

There are four Defendants and so there are four verdicts of ‘guilty’ or ‘not guilty’ you have to reach.

You must examine the evidence in relation to each Defendant – one by one, reaching a separate verdict on each, based upon your analysis of the evidence against each of them.

Your verdicts may well all be the same, but they might be different.
It all depends on your view of the evidence against each.

What is it that has to be proved by the Prosecution for ‘Criminal Damage’?

The indictment charges contain a number of separate ingredients, all of which the Prosecution must prove before you can convict a Defendant.

The Prosecution has to prove all of the following against a Defendant (D) before you may find him/her guilty of causing criminal damage:-

1) D, jointly and together with others

2) damaged property;

3) the property belonged to another;

4) D intended to damage it, or was reckless as to whether it would be damaged; and

5) D did not have a lawful excuse for damaging it.

We are going to examine each of those five ingredients in a little more detail:-

  1. The prosecution alleges that the Defendants acted “jointly and together with others”.
    The law is that a person may be guilty of a crime either by carrying it out themselves, or, if they intended that the crime should be committed, by deliberately assisting or encouraging or causing it to be committed, even if it is actually carried out by others.
    A Defendant in this case may therefore be guilty, even if they did not personally cause damage to the statue, if they deliberately assisted/encouraged/caused others to damage it by providing ropes or by attaching ropes to the statue, intending to assist others to intentionally or recklessly cause damage to the statue.

 

2. Property is “damaged” if it is temporarily or permanently physically harmed. Whether you are sure there was physical harm to the statue or not (which is a question of fact and degree) is a question for you to decide on the evidence which you have heard.

3. Property is to be treated as “belonging” to those who have custody or control of it and to those who have any proprietary right or interest in it. The Prosecution case is that the statue was maintained by Bristol City Council and held in trust on behalf of the people of Bristol. The Defendants have not suggested that the statue belonged exclusively to one or more of them – they do not dispute that it “belonged to another”.

4. “Intending to damage the statue, or being reckless as to whether it would be damaged.” ‘Intending’ is a straightforward word which needs no further definition.
D would have acted ‘recklessly’ as to whether the statue was damaged if D was aware of a risk that damage would occur and it was, in the circumstances known to D, unreasonable to take the risk. If D was unaware of a risk that damage would occur then D could not have been reckless.

5. It is for the Prosecution to disprove that a Defendant had a “lawful excuse” for damaging someone else’s property.
In this case it is being argued that a D had one (or more) lawful excuses.

You will have to examine the lawful excuses set out below and decide if the Prosecution has disproved them.
The use of reasonable force to prevent a crime.

A person is to be treated as having a lawful excuse if:-

(1) they used such force as was reasonable in the circumstances as they believed them to be

(2) in the prevention of a crime.

(3) When they gave evidence you may consider that the Ds were saying they used force to prevent the following crimes:

the public display of indecent matter

the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it.

I will explain a little more about each of those three parts of this lawful excuse which is relied upon by the Defendants, but I will do so in reverse order: (3), (2) & then (1), because that will make it easier to understand.

May D have genuinely/honestly believed that a factual situation existed which amounts to a criminal offence (even if D’s belief was a mistaken one)?

There is a criminal offence of displaying indecent matter publicly.

May D have genuinely/honestly believed Bristol City Council was displaying ‘indecent matter’ in public with this statue on the Centre?

The definition of ‘indecent’ in the Oxford English Dictionary includes:

“unbecoming; highly unsuitable or inappropriate; in extremely bad taste; unseemly; offending against the recognized standards of propriety and delicacy; highly indelicate…”

There is a criminal offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it.

May D have genuinely/honestly believed that Bristol City Council was committing that crime by displaying an abusive statue, where one or more people were likely to have been caused distress by it?

The Defence argue that they genuinely/honestly believed that a factual situation existed which amounts to these criminal offences being committed by the Council.

The Prosecution argues that no criminal offence was being committed at all by the display of this statue – it was neither ‘indecent’ nor ‘abusive’, and you can be sure that the Ds did not genuinely/honestly believe a factual situation existed which would have amounted to these crimes.

If you decide that D may have genuinely/honestly believed that a factual situation existed which amounts to these criminal offences, you need to go on to examine the following.

(2) Were D’s actions carried out in order to prevent what they honestly/genuinely (even if mistakenly) believed to be a crime?

The Defendants argue that that is what they were doing – their actions were done in order to prevent one or both of those crimes, which they honestly/genuinely believed to be happening.

The Prosecution argues that they were not trying to achieve that, but instead were trying to force their own agenda because they were frustrated by the lack of progress in the debate about the statue.

Did D use ‘reasonable’ force to prevent a crime, in the circumstances as they believed them to be?

It is for you to decide what force was reasonable by your own standards. It is not what D thinks was reasonable – it’s what you think was reasonable.

However, the ‘circumstances’ in which force was used are the circumstances as D believed them to be.

If D only did what they honestly and instinctively thought was necessary to prevent a crime, then that would be strong evidence that reasonable action was taken.

In the case of the first 3 Defendants, did each of them honestly and instinctively think it was necessary to play a part in pulling down the statue to prevent a crime?

In the case of the fourth Defendant, did he honestly and instinctively think it was necessary to help roll the statue all the way to Pero’s bridge to prevent a crime?

The Prosecution says that even if you were to conclude Bristol City Council may have been committing one or both of the crimes now alleged (which is disputed), and even if you were to conclude the Defendants honestly (even if mistakenly) took the action they did to prevent one or more of those crimes,

it was unreasonable, in the circumstances as Ds believed them to be, to use force like this to prevent it, because there was a process through which concerns about the statue could have been dealt.

The Defendants argue that their actions were reasonable because any such processes had failed.

(ii) Belief in the consent of the owners

A person is to be treated as having a lawful excuse if he/she honestly believed,
at the time of the acts alleged to constitute the offence,
that those who the person honestly believed were entitled to consent to the damage,
would have consented to it,
if they had known of the damage and its circumstances.
(It does not matter if the person’s beliefs were justified or not, as long as they were honestly held.)

Neither Milo Ponsford nor Sage Willoughby have presented evidence that could form the basis of an argument that they had this lawful excuse.

Rhian Graham and Jake Skuse have given evidence to the effect that they had this lawful excuse for their actions, saying that on 7 June 2020 they honestly believed the statue was owned by the people of Bristol and honestly believed that, had the people of Bristol known of the damage and its circumstances, they would have consented to what was done.

The Prosecution argues that there is no way that they could possibly have honestly believed that the people of Bristol would have consented to what they did because they didn’t take any steps to find out.
If you consider that this lawful excuse applied, or may have applied, in the case of either of those two Defendants, then the Prosecution would have failed to disprove it and you will find that Defendant ‘not guilty’.

(iii) The final lawful excuse you have to consider concerns all four defendants (and, again, the Prosecution has the burden of disproving it). However, I am going to deal with it under a separate bold heading:-

Would convicting D be a disproportionate interference with his/her rights?

Courts must read and give effect to legislation such as the Criminal Damage Act in a manner which is compatible with a number of rights which we all have.

Two of those rights are:

the right to freedom of thought and conscience and to manifest one’s beliefs;
the right to freedom of expression, including to hold opinions and impart ideas.

These rights protect not only beliefs, such as anti-racism, and speech itself, but also actions associated with protest. Even where those actions have more than a minimal impact on the rights of other people, they need not result in a conviction. It is all a matter of fact and degree.

Limitations on these rights are permitted under laws like the Criminal Damage Act if they are necessary in a democratic society in the interests of public safety or for the protection of the rights and freedoms of others.

It requires balancing the defendants’ rights to freedom of conscience and belief, to freedom of expression and to protest, as against the interests of public safety and the protection of the rights and freedoms of others, such as the property rights of the Council.

The Ds will argue that even if you reject all of their other arguments, if you were to convict them it would be a disproportionate interference with them exercising those rights.

You will therefore have to decide if the Prosecution made you sure that convicting them of criminal damage would be a proportionate interference with them exercising those rights.

Even if you are sure that all the other elements of the crime of criminal damage are made out and that no other lawful excuse applies, you must go on to consider whether it is necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions.

Another way of looking at that question is to ask whether the interference in the defendants’ rights, which a conviction for the offence of criminal damage would cause, is proportionate in all the circumstances, including the individual actions of each D.

It is your task to make an assessment of where the balance lies, having regard to all the facts in the case.

In considering whether a conviction would be disproportionate for any D, the question for you is not whether you agree with their actions or their aims, nor is it about sympathy or whether you think they are likeable. Everyone in the country has these rights and we each enjoy identical protection of those rights. This means that people with whom we fundamentally disagree have exactly the same protection as those with whom we agree.

When examining the facts of this case and deciding whether you are sure it would be proportionate to convict a Defendant, you may wish to consider the following factors. The list is not intended to be exhaustive and you are not obliged to consider any individual factor if you do not consider it to be helpful in reaching your verdict. It is also up to you what weight to give the factors you consider helpful.

The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.

Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.

The importance to the Defendant of the method of protest adopted.

Whether the actions of the Defendant was directly aimed at the matter of which they disapproved.

Whether the Defendant’s actions presented a danger to public safety.

‘No comment’ interviews

The words of the police ‘caution’ are: “You do not have to say anything.
But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

As it says, it is a suspect’s right not to answer police questions, but there is also a warning that there might be damaging consequences if they do not mention something when questioned which they later rely on in court.

Two of the accused – Milo Ponsford and Jake Skuse, declined to answer any police questions.
When the Prosecution asked Milo Ponsford and Jake Skuse why, they both told you they acted on the basis of advice from a Solicitor’s representative.
They each acknowledged it was their own choice to decide whether or not to answer the police questions and face any consequences from a decision not to. They do not accept that the real reason behind their decisions not to answer questions was because they had not yet had time to think up answers which might provide them with the basis of a defence that they might be able to rely upon if they were charged with criminal damage.

They have now given you detailed accounts from the witness box. I will summarise their evidence in due course, but they were both asked: whether they had any lawful excuse for damaging it. Both replied “no comment”. They have now put forward accounts from the witness box, during the course of which they have said they did have lawful excuses for what they did.

Could they have reasonably been expected to set out what lawful excuses they now rely upon to the police when asked about the allegation in their interviews back in 2020? Why didn’t they answer the questions with the answers they have now given to you in court?

You must consider their explanations for that. They have each told you the real reason was because they took the advice they were given by a legal adviser. If you accept that may have been the real reason behind their decision to remain silent, then take this matter no further, don’t hold it against them.

However, if you are sure that the real reason for keeping silent was that that Defendant didn’t have an answer to those questions and was giving himself time to make-up answers later to support a defence to the allegation, then you are entitled to hold their silence at the police station against them and treat the things they have said from the witness box as having less weight.

You should only reach that conclusion if the prosecution case was so strong as to call for an answer and you think it is fair and proper to do so. You must not convict that defendant wholly, or mainly, on the basis of this point – it is just one of the factors which may feature in your assessment of all of the evidence in the case.

Sage Willoughby and Rhian Graham, on the other hand, answered many of the police questions and explained what motivated their actions. Do not hold it against them that they did not answer some police questions, because those questions have no bearing upon your assessment of whether they are guilty or whether any of the others are guilty.

Expert evidence

In this case you have heard the evidence of Professor Olusoga, who has been called on behalf of Sage Willoughby. Expert evidence is permitted in a criminal trial to provide you with information and opinion, within the witnesses expertise, which is likely to be outside your knowledge. You should look at it in its proper perspective – it is just part of the evidence as a whole to which you may have regard on one particular aspect of the case, namely if you think it helps you assess the question of whether displaying a monument of Edward Colston may be indecent or abusive. You are entitled to have regard to the historical information he has researched and interpreted when coming to your own conclusions. Bear in mind, however, that if, having given the matter careful consideration, you do not accept any parts of his evidence, or do not think it helps you answer the questions you have to answer, then you do not have to act upon it. It is for you to decide what evidence you consider relevant, what evidence you accept and what evidence you reject.

The relevance of the first three Defendants having no previous convictions

You should consider this in 2 different ways:

a) It is relevant to your assessment of their credibility as witnesses. Someone with previous criminal convictions might be considered less likely to be a truthful witness. Because they have not got criminal records you should take that into account in considering whether they are therefore more likely to have been truthful to you.

b) Would someone who has reached their ages without a criminal record have started offending now? It is relevant to your assessment of them because it may support the argument that they are not the sort of people who have a tendency to be law breakers.

These are not defences, because obviously no one would otherwise ever be convicted for a first time if they could rely on these two points as an answer to an allegation. You must take them into account, but it is for you to decide how much weight you give them.

Comments

The Prosecution and Defence barristers will make comments to you in their speeches, seeking to convince you of the strengths of elements in their cases and weaknesses in the other side’s case.

If those comments and arguments help you then please take them into account in your own thinking about the evidence, but you have to decide this case on the basis of your assessment of the evidence and not on the basis of anyone else’s.

It is possible that you may sense that I have a view about some parts of the evidence. I do not intend to influence your views one way or the other and I don’t intend to do so in this summing-up. You alone are the judges of the facts.

Evidence

What I will do is to pick out what I think may be the most useful and relevant parts of my notes to remind you of the evidence.

Because you are the judges of the evidence, not me, take no notice of any things I remind you about which you think are irrelevant.
Equally, if you remember things which I do not mention, pay attention to what you recall.

Final practical points

Don’t suffer in silence – if you need to be reminded of any of the evidence that has been given (remembering there cannot be any further evidence presented to you), or you need me to explain some part of the law more clearly, just send me a note and I will do what I can to help.

If some of you need the occasional break for a smoke then arrangements will be made for that.

Take all your papers with you when you go out to decide on your verdicts. There is no time pressure on you. If you are still discussing the evidence at around 4:30 and have not reached your verdicts I will have you back into court then and send you home overnight with some further legal directions. We will then resume again the next morning.

In addition the jury were given a series of questions in a “Route to Verdict” document.  This is set out here. Again, the formatting is not identical to that in the jury’s version:

ROUTES TO VERDICTS

Count 1 MILO PONSFORD (MP), SAGE WILLOUGHBY (SW) & RHIAN GRAHAM (RG)

Q1: Are you sure D, jointly and together with others, played a part in the pulling down of the Edward Colston statue on 7 June 2020?

If yes, go to Q2 If no, D is ‘Not Guilty’

Q2: Are you sure the Edward Colston statue was damaged on 7 June 2020 by being pulled down?

If yes, go to Q3 If no, D is ‘Not Guilty’

Q3: Are you sure the Edward Colston statue belonged to someone other than D?

If yes, go to Q4 If no, D is ‘Not Guilty’

Q4: Are you sure D intended to damage the statue; or, that D was aware of a risk damage would occur and that it was (in the circumstances known to D) unreasonable to take the risk?

If yes, go to Q5(i)(3) If no, D is ‘Not Guilty’

Q5(i)(3) may D have genuinely/honestly believed that a factual situation existed whereby Bristol City Council was committing one or both of the following criminal offences (even if D’s belief was a mistaken one):-

‘publicly displaying indecent matter’, or
‘displaying a visible representation which is abusive,
within the sight of a person likely to be caused distress by it’?
If yes, go to Q5(i)(2) If no, go to Q5(ii) for RG and go to Q6 for MP & SW

Q5(i)(2) may the force used by D have been done in order to prevent what he/she honestly/genuinely (even if mistakenly) believed to be one or both of those crimes?

If yes, go to Q5(i)(1) If no, go to Q5(ii) for RG and go to Q6 for MP & SW

Q5(i)(1) was the force used by D reasonable (in the circumstances as D believed them to be), or may it have been reasonable?

If yes, D is ‘Not Guilty’ If no, go to Q5(ii) for RG and go to Q6 for MP & SW

Q5(ii) may RG have honestly believed,
at the time she played a part in pulling down the statue,
that those who she honestly believed were entitled to consent to the damage,
would have consented to it, if they had known of the damage and its circumstances?

If yes, RG is ‘Not Guilty’ If no, go to Q6

Q6: Are you sure that convicting MP/SW/RG of criminal damage would be a proportionate interference with their rights to freedom of thought and conscience, and to freedom of expression?

If yes, D is ‘Guilty’ If no, D is ‘Not Guilty’

Count 2 JAKE SKUSE (JS)

Q1: Are you sure JS, jointly and together with others, played a part in rolling the Edward Colston statue towards Pero’s bridge on 7 June 2020?

If yes, go to Q2 If no, D is ‘Not Guilty’

Q2: Are you sure the statue was damaged on 7 June 2020 by being rolled towards Pero’s bridge?

If yes, go to Q3 If no, D is ‘Not Guilty’

Q3: Are you sure the Edward Colston statue belonged to someone other than JS?

If yes, go to Q4 If no, D is ‘Not Guilty’

Q4: Are you sure JS intended to damage the statue; or, that he was aware of a risk damage would occur and that it was (in the circumstances known to JS) unreasonable to take the risk?

If yes, go to Q5(i)(3) If no, JS is ‘Not Guilty’

Q5(i)(3) may JS have genuinely/honestly believed that a factual situation existed whereby Bristol City Council was committing one or both of the following criminal offences (even if his belief was a mistaken one):-

‘publicly displaying indecent matter’, or
‘displaying a visible representation which is abusive,
within the sight of a person likely to be caused distress by it’?
If yes, go to Q5(i)(2) If no, go to Q5(ii)

Q5(i)(2) may the force used by JS have been done in order to prevent what he honestly/genuinely (even if mistakenly) believed to be one or both of those crimes?

If yes, go to Q5(i)(1) If no, go to Q5(ii)

Q5(i)(1) was the force used by JS reasonable (in the circumstances as JS believed them to be), or may it have been?

If yes, JS is ‘Not Guilty’ If no, go to Q5(ii)

Q5(ii) may JS have honestly believed
at the time he played a part in rolling the statue,
that those who he honestly believed were entitled to consent to the damage,
would have consented to it, if they had known of the damage and its circumstances?

If yes, JS is ‘Not Guilty’ If no, go to Q6

Q6: Are you sure that convicting JS of criminal damage would be a proportionate interference with his rights to freedom of thought and conscience, and to freedom of expression?

If yes, JS is ‘Guilty’ If no, JS is ‘Not Guilty’

Harry Miller has won an important battle, but don’t expect the College of Policing to change very much

This piece originally appeared (behind a pay wall) in the Daily Telegraph on 21 December 2021.

In January 2019 a woman – who can be identified only as “B” – contacted Humberside Police.

I would like to report an individual by the name of Harry Miller [she gave his work details]. Miller has been making transphobic remarks on his Twitter account under the handle @HarryTheOwl. These comments are designed to cause deep offence and show his hatred for the transgender community.”

Mr Miller believes that biological sex is immutable. His tweets – which were not directed at B – often made the same point, sometimes in rather coarse terms, as when he quoted a snatch of doggerel:

Your breasts are made of silicone
Your vagina goes nowhere
And we can tell the difference
Even when you are not there ….”

In 2014 The College of Policing had issued Guidance to all forces, informing them that they must record all “hate incidents.” In so far it was relevant to transgender people, a “hate incident” was defined as:

any non-crime incident perceived by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender ….”

Such records “must be made,” the Guidance insisted, “irrespective of whether there is any evidence to identify the hate element.” In the Looking Glass world of the College of Policing the police had a role to play even when there was no evidence of a crime having been committed, no reason to suppose a crime was likely to be committed, no identifiable victim and no evidence of hatred. Continue reading “Harry Miller has won an important battle, but don’t expect the College of Policing to change very much”

Did Boris Johnson break the law with the Downing Street party?

The Policing Minister, Kit Malthouse, was interviewed by Mishal Husain on the Radio 4 Today Programme this morning. At about 08.20 he was pressed on the party allegedly held in Downing Street shortly before Christmas last year.  He said that he had been “briefed” in preparation for the interview, and been assured that anything that happened was “within the rules.”

Ms Husain asked him how it could have been within the rules.  Mr Malthouse did not explain. He was not an investigator, he said, and if there was a party, which he was neither admitting nor denying, he was not at it. He simply accepted what he had been told which seems to have been the bare fact that it was “within the rules.”

There seems little doubt that a party did take place in Downing Street on 18th December 2020.  Although the reports have been described as “unsubstantiated, anonymous claims” by the Deputy Prime Minister, there has been no denial of their substance.

No-one from the government has attempted to explain the basis on which the party could have been lawfully held. That may be because there is no explanation, or it may be because the explanation is more embarrassing than silence.

I’m afraid what follows necessarily involves an uncomfortably close look at some rather turgid law. But this is a legal blog, so if you’ve read this far you may be expecting that. Continue reading “Did Boris Johnson break the law with the Downing Street party?”

What is the point of the new so-called “dog theft” law?

The government has introduced legislation to create a new offence of what it calls “dog theft.” If passed it will form one of the weirdest additions to the criminal law since the 1745 Profane Oaths Act.

Profane cursing, which the 1745 Act made a criminal offence was, no doubt, a common problem in 1745. The same cannot be said for dog theft in 2021 which is not a very common crime at all.

The number of dogs in the country is not known, but it has grown in the last 5 years and probably now stands somewhere between nine and twelve and a half million. The number of “dog thefts” reported to the police every year has hovered around 1,500, although as not all police forces record such reports the total is probably closer to 2,000.

Some of those reported “stolen” turn out to have been lost, run away, removed by an estranged partner or, as appears probable in the case of Rory Cellan-Jones 15 year old collie, Cabbage, taken by accident.

The idea that there are organised gangs of criminals cruising the country looking for family dogs to steal is widely believed, widely promulgated by people who should know better and unsupported by the evidence: it is an urban myth. Although puppies and a few adult dogs do have a significant monetary value, the vast majority of family pets have none, which is why thieves hardly ever steal them. That is why so many dogs are abandoned or given to dog shelters.
Continue reading “What is the point of the new so-called “dog theft” law?”

The Church of England’s Interim Support Scheme: opaque, unfair and an invitation to the dishonest to fill their boots

The Church of England has an appalling record in dealing with child abuse.

It formed the subject of one strand of the Independent Inquiry into Child Sexual Abuse.

The predictable conclusion was that:

The Church of England failed to protect some children and young people from sexual predators within their midst. In the past, the system of child protection was under-resourced. Safeguarding personnel were at times ignored and their advice overlooked, in favour of protecting the reputation of clergy and the Church. During the Inquiry’s hearings, senior leaders in the Church apologised for its actions, recognising that failings identified by this investigation and other reviews were “profoundly and deeply shocking.”

Within the Church, and even before the IICSA’s report was published, there was a laudable desire to make amends for past mistakes.

It would take time to set up a proper redress scheme for victims of abuse, but in the meantime, under the auspices of The Archbishops’ Council (an executive body and charity within the Church of England), the decision was taken in September 2020 to establish an Interim Scheme.

The purpose of the scheme was:

“… to enable the Church to respond in particular to those survivors’ cases which are already known to the Church, where the survivor is known to be in seriously distressed circumstances, and the Church has a heightened responsibility because of the way the survivor was responded to following disclosure.” Continue reading “The Church of England’s Interim Support Scheme: opaque, unfair and an invitation to the dishonest to fill their boots”

National Disclosure Week: an occasion for celebration?

You may not have noticed that last week was “National Disclosure Week.” I had no idea that there was such a week until the Crown Prosecution Service started tweeting about it last Wednesday.

That the CPS is taking its disclosure duties seriously is of course a very good thing. Continue reading “National Disclosure Week: an occasion for celebration?”