The Chair of the Bar Council, Maura McGowen QC has made the controversial suggestion that defendants accused of “sexual crimes” should remain anonymous until after conviction.
It seems that this was laid out by the Chair on the Stephen Nolan Show on Radio 5 last Saturday http://www.bbc.co.uk/programmes/b01qlf9d and has been confirmed by the Bar Council, by way of Re Tweeting.
Although I understand the sentiment from where this position comes from and readily recognise the trauma caused to people who have serious unproven allegations thrown at them, sexual or otherwise, I simply cannot see how this can work.
There are a number of essential distinctions between the position of a defendant and that of a witness, the latter of which, in certain circumstances is entitled to anonymity.
Essentially, the criminal justice system in this country, despite political efforts to the contrary, is based upon the Open Justice principle. Only in exceptional circumstances is that resoled from. Adopting that central tenet, if a person is charged by the State with a criminal offence, the proceedings should be conducted publicly, as Re Times Newspapers Ltd  1 WLR 1015, put it “with all the consequences that that entails. It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted”.
The administration of justice is clearly in peril, as the courts have recognised, if a witness cannot give reliable evidence unless they are protected by a variety of special measures, including, ultimately anonymity, but this rigid principle is unlikely to extend to defendants.
As such, the Chair of the Bar Council seems to be proposing something which is entirely out of step with the trend of current legal thinking. Nothing wrong with that, I accept, providing that it is logical and practical. It is not.
I find the proposition difficult, if only in terms of its logic. Why “sexual crimes”? What, in relation to an accused defendant, distinguishes them from, say, the heinous allegation of child murder or even a less serious offence, which upon conviction could ruin a person’s career. For instance, an allegation involving dishonesty or breach of trust could be devastating if you had made your name upon adhering to such principles. If we are to have anonymity for “sexual crimes”, (and I pause to ask, if this means all crimes with even the slightest sexual content?), why draw the line there? If Ms McGowen is going to be consistent, then it should extend beyond those closed categories and be universal. If this were to be so, all defendants would be entitled to anonymity.
In any event, sometimes it is vital for the investigating authorities to make public the name of accused people. By doing so, significant evidence can be gathered and other, potential complainants identified and particularised in a single trial to enable the jury to have a clear representation of the extent and similarity of the allegations.
For all these reasons and accepting the understandable impulse to raise the concerns of an accused, the suggestion on defendant anonymity is misconceived.
In the calendar of criminal offences, there can be nothing more
appalling than the sexual violation of any individual and the whole
issue, quite understandably triggers painful and volatile debate. Most
importantly, the victims of sexual offences are caused anxiety and
distress whenever the subject of sex offenders becomes a topic of
public debate and unless the issue is discussed accurately and
responsibly, there is the real risk that victims will be deterred from
reporting crimes to the police.
So it is that Ministers, Commentators and interest groups, including
the NSPCC http://www.nspcc.org.uk/, waded into this highly sensitive
area when the ruling in R (on the application of F by his litigation
friend F) and Thompson (FC) (Respondents) v Secretary of State for the
Home Department (Appellant)  EWCA Civ 792
came into force a few days ago.
It does none of these groups any credit to analyse for a moment the
ill-judged, knee-jerk reactions which flooded onto the media. The
misinformation and at times downright hysteria coming from the mouths
of people who should know better was shocking. Furthermore, there can
be no excuse for it. I think that we can safely assume that Ministers
and Charities such as the NSPCC have legal advice and that the impact
of ‘F’ upon the way sex offenders are monitored in England and Wales,
was recognised as being marginal and certainly not worthy of the
hyperbole of the last few days.
Lets put a few myths right. Sex offenders still have to register as a
matter of compulsion. Sex offenders still remain on the list for life,
as they have always done and do not automatically come off it after 15
years. Sex offenders will have to convince a Police Force that they
are safe to come off the Register after 15 years of being on it in the
community and one can assume, having not been convicted of further
Listening to the rhetoric of Ministers and in particular Theresa May,
the Home Secretary over the last few days, it is not surprising that
vulnerable people, victims and those under threat, were shaken by what
they were hearing.
The problem is, that when it comes to sexual offending, politicians
have been brought up to take no chances… look what happened to Ken
Clarke for instance. Best deal with it in broad strokes so that there
can be absolutely no room for misunderstandings, or worse, the media
deliberately making it a crisis.
For a moment, for those who want a calm consideration of the
situation, let’s get to the facts.
By way of background to the legal foundations for the present
position, we need to go back to the Sex Offenders Act 1997
http://www.legislation.gov.uk/ukpga/1997/51/contents and in
particular, Section 1(3)
. This laid down that there would be an automatic statutory
notification upon conviction of the name, address and date of birth of
the offender within 14 days of the conviction. This was to be given to
the police and that they should further give notification of any
address at which they would be staying for 14 days or longer.
Then came the Criminal Justice and Courts Services Act 2000
http://www.legislation.gov.uk/ukpga/2000/43/contents which reduced
notification time to 3 days and introduced a requirement that if the
offender went overseas, they should give notification within 48 hours
of travel to include details of the carrier, points of arrival, where
they were staying, date of return and point of arrival.
Both pieces of legislation were repealed and substituted by the Sex
Offenders Act 2003
http://www.legislation.gov.uk/ukpga/2003/42/contents Section 82
Take a look at this provision. It strengthens the already stringent
regime of the previous legislation and quite properly restricts any
movement and activity of convicted sex offenders comprehensively. I
make this point and lay out the historical development of these three
protective statutes, because listening to Ministers over the last week
or so, you could be forgiven for thinking that it has all been swept
away. It has not.
Victims of sex offences and those who may be on the edge of reporting
sex offences should know that the law provides for extensive
restrictions upon those convicted. Ministers do irreparable damage to
the criminal justice system when they imply otherwise.
A close reading of ‘F’ also makes it clear that the Supreme Court were
bolstering this protective series of provisions. Lord Phillips
confirmed in terms that it is lawful to monitor for life sex offenders
and everything that their Lordships said, marked and reiterated the
heinous status of sexual offending in the eyes of the law.
The case was not about whether sex offenders should or could be
monitored for life, it was a case decided upon the very narrow issue
of whether 15 years after release, some could apply for a review, as
to whether they might be removed from the Register.
As a matter of law, and quite rightly in my view, the Supreme Court
decided that being put on the Register for life, without the chance of
review was disproportionate when taking into account the provisions of
Article 8 of the European Convention on Human Rights http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-to-respect-for-private-and-family-life.html.
Proportionality was considered with reference to the leading authority
of De Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing  1 AC 69 [at page 80]
http://www.bailii.org/uk/cases/UKPC/1998/30.html , in that the
requirement in question should be no more necessary than to accomplish
The objective is to keep Society safe. There was considerable
consideration in the case of whether sex offenders can ever be safely
let back into the community without close monitoring and this debate
continues outside of the Supreme Court. Perhaps reassurance can be
gained from official statistics for 2008 which suggest that
reoffending rates for sex offenders at 26.8% is lower than domestic
burglary [59.9%], and Robbery [38.1%
As such, the Supreme Court ruled that no chance of review was disproportionate.
That is the reality. Of course some will say that there should never
be an opportunity of review, they would probably be the same people
who argue with passion that ‘the keys should be thrown away’. But
whether we like it or not, the ultimate protection for Society is
rehabilitation and sometimes, just sometimes, the odd sex offender
might persuade a policeman that that is possible. That is the top and
bottom of it and it seems to me that this debate is more a product of
the political conference season than responsible public reassurance.
On the 1st September 2012 Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect. http://www.legislation.gov.uk/ukpga/2012/10/section/144/enacted
There is nothing in this title to give away that the new law which is quite literally going to hit the streets on this date represents not only a significant statement of political intent but also fundamentally weakens one of the most iconic ‘rights’ in the legal dictionary.
Section 144 of the Act lays down a new offence of squatting in a residential building. It has a number of elements:
A person who is in the residential building as a trespasser must have entered as such.
They must have known or ought to have known that they were trespassing, so, for instance, protecting from conviction someone who enters residential property as a result of bogus letting agents misrepresentations.
And the person is living in the building or intends to live there for any period of time, protecting those who gain access, say, to pick up mail.
The offence does not apply to a person who enters as a legitimate tenant and subsequently defaults with rent payments. In these circumstances, the landlord will be expected to pursue established eviction proceedings.. Upon conviction, following summary trial or plea, the sentence can be up to 6 months imprisonment and\or a £5,000 fine.
The provision was introduced to protect owners and lawful occupiers of any type of residential building and makes it more difficult for trespassers to assert they have rights in respect of residential buildings because their occupation of that building will be a criminal act. The real significance of this is that Section 6 of the Criminal Law Act 1977 http://en.wikipedia.org/wiki/Criminal_Law_Act_1977#Section_6_-_Violence_for_securing_entry, which makes it an offence for a person without lawful authority to use, or threaten violence to secure entry to premises against the will of those inside, which may include someone who is a trespasser, will be curtailed. Put another way, in relation to residential properties, squatters’ rights are dead.
The Police will not now be deterred from a squatters’ rights notice on the door of a residential building. The Police will have a lawful authority under Section 17 of the Police and Criminal Evidence Act 1984 http://www.legislation.gov.uk/ukpga/1984/60/section/17 to enter that property and make an arrest.
On the face of it, there can be little complaint that the blight, as some see it, of residential property, which has been left unoccupied, being taken over by trespassers is being brought under control. I see that and I respect it.
But the consequences of this new legislation will be that, sometimes and I stress, sometimes, homeless, vulnerable people will be forced back onto the streets. This is a concern which is accepted and articulated by the Ministry of Justice in their notes which accompany the Act and cannot be dismissed as liberal heart bleeding.
We should expect the Police to enforce their new powers with tact and sensitivity.
This sort of legislation does highlight the debate about the way the Police deal with disadvantaged members of Society. It is right to emphasise, that apart from the rare political occupation, many of those who occupy deserted residential properties are themselves homeless, unemployed and generally poor.
There are a number of pieces of respected research upon Police behaviour which continues to highlight the prejudicial way by which the Police deal with the socially deprived. Current debate, quite properly has concentrated upon the attitudes of the Police to racial or religious groups, and to that of sexuality and the spotlight has been turned away from the way the Police treat the socially and economically deprived. This is somewhat concerning as the majority of society with whom the Police interact are from exactly those latter categories.
Bethan Loftus makes the point very clearly in her book ‘Police Culture in a Changing World’ [OUP] http://ukcatalogue.oup.com/product/9780199560905.do when she observes [at page 165], that “the economically excluded were the prime targets of police concern and practice. Officers saw themselves as locked in battle with what they termed ‘scrotes’ who would otherwise infest their respective areas.”
Section 144 is just the sort of legislation which might be utilized by a disparate group of interests, from public opinion driven politicians to a police force which continues to have the much less analysed prejudices of social status, or even class, very much in its DNA.
In many respects, and particularly on the surface, this section represents a sound and much needed development. There is no doubt, that it will reassure the property owner, who is entitled to such reassurance, but we should think a little further than loud cheers of welcome, and think to its enforcement.
With Section 144 comes responsibility and it raises some fundamental questions about how the Police relate to the vulnerable.
Later on this week the DPP is convening a workshop to consider how the CPS will approach decision making as to whether people should be prosecuted as a result of their use of the social media.
It is reassuring that one of those people attending this event is David Allen Green, my instructing solicitor in the so-called Twitter Joke Trial. It is important that the DPP should listen very carefully to what he has to say because the events which unfolded and ultimately resulted in Paul Chambers being before the Lord Chief Justice should never happen again.
Much has already been written on this case. Of course, as long as the proceedings were live, given the fact that I was representing Paul Chambers, it was not appropriate for me to write anything of length about the matter, particularly as for the last few weeks, the most senior criminal judge in the country, along with two respected and experienced colleagues, were considering what has turned out to be a significant judgment as to the conduct expected by the criminal law upon those who engage on the social network, and particularly Twitter.
The Judgment in Paul Chambers v Director of Public Prosecutions  EWHC 2157 http://www.judiciary.gov.uk/media/judgments/2012/chambers-v-dpp-judgment is both clear and succinct and dealt with our arguments, so far as the court needed to, to come to a judgment in the case. It should be emphasized that any Appellate court does not need to deal with every argument raised by Counsel in the course of a hearing, only those matters which will be determinative of any decision that is required to form the basis of a judgment.
This is perhaps why, those expecting to see a full consideration of the Article 10, Freedom of Speech provisions in the European Convention on Human Rights, will be disappointed.
David Allen Green and I realised that the axis of the previous legal strategy, presented by Ben Emmerson QC was not going to succeed. Their argument was heavily weighted in favour of the Human Right, Freedom of Speech issue.
One of the decisions that any legal team needs to make when practically considering the best way to put a client’s case is to focus upon what they think are the best arguments, the arguments which will win a case, rather than the most worthy arguments.
It should be made very clear, I am one of the most passionate supporters of the Human Rights Act and in this case, Freedom of Speech. It was fundamental to our recent submissions in the ‘Occupy’ case and the rights relating to the protests outside St Paul’s Cathedral, but in the Paul Chambers case, it seemed to us that the route to success lay in an analysis of the criminal law.
That is not to say that Freedom of Speech was not the stalking ghost behind all of our submissions and the Chambers case could perhaps be described as one of the most important cases on Freedom of Speech, without mentioning, in any significant respect, its name.
So where are we as the dust begins to settle on the Twitter Joke Trial?
A number of things can be distilled from the judgment of the Lord Chief Justice, and his analysis of the Communications Act 2003 Section 127.
Paul Chambers, a 26 year old man at the time of the event was of previous good character when he posted the now notorious message, or joke as we now can legally call it, on the 6th January 2010. The message was posted onto the public time line which meant that although it was sent to his girlfriend, it was available to be read by some 600 or so Followers. The unfortunate series of events which then played out are now probably known by millions of people, culminating in his arrest at his place of work and a series of cases spanning 9 days in overall court time, all of this, despite the fact that on the 13th February 2010 it was observed that the South Yorkshire Police considered the message “a joke”.
In passing it should be said that I agree with the gathering voices who are demanding an explanation as to why the CPS, in the face of all this, considered that it was worth expending very many hours and thousands of pounds of taxpayers money upon taking this man through the whole panoply of criminal courts that this country has to offer. It is perhaps sobering to compare the way the CPS have dealt with Paul Chambers and the court appearances of Abu Hamza to realise that there is little between both cases when it comes to the number of courts that have been required to engage with the issues. The word proportionality keeps coming into my mind every time I consider the role of the CPS in this case.
After both Doncaster Magistrates Court and then the Crown Court, on appeal, maintained the defendants conviction under Section 127 (1) (a) of the 2003 Act http://www.legislation.gov.uk/ukpga/2003/21/section/127, the Crown Court stated a case for the High Court to consider. It is worth emphasizing this, as, contrary to some reports, this case was not a conventional appeal against conviction. The relevant statutory provisions in relation to case stated appeals from the Crown Court (and indeed the Magistrates Court) are set out in the Supreme Court Act 1981 Section 28 http://www.banksr.co.uk/images/Statutes/R-S/Supreme%20Court%20Act%201981%20(as%20enacted).pdf, wherein any order, judgment or other decision of the Crown Court can be challenged, in this case on the basis of error of law.
Importantly, when it comes to considering whether the DPP could have withdrawn his opposition to case stated procedure, Practice Direction 52 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part52 provides that where the parties agree as to terms of disposal of the matter, it can be listed as an uncontested proceeding without the necessity of the parties or their representatives having to attend. The DPP did not take this step.
The case stated to the High Court turned upon a definition of the words “of a menacing character” contained within Section 127 (1) (a) of the 2003 Act.
We decided to direct the attention of the court to the Actus Reus and Mens Rea elements of the offence. Interestingly, right up until the final hearing, the Prosecution were arguing that there should be no requirement of intent on behalf of the sender of the message. This was a dangerous submission and one which had to be dealt with comprehensively.
The judgment of the Lord Chief Justice is reassuring and here are the 4 principles as I see them
1] A message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside the Act, because it lacks menace.
2] The test is an objective one.
3] The message needs to be examined in its context.
4] The mental element of the offence is directed exclusively to the state of mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.
This is an important case on a number of levels, yes for Freedom of Speech, of course for the right to make a joke, which should, perhaps now be enshrined in the Convention, but it also provides a timely warning, that however sensible the law, it is always at the mercy of thoughtless, careless and insensitive application.
I am standing for Vice Chair of the CBA. Here is my manifesto.
Any comments or observations (hopefully polite!) are welcomed.
Over the last decade, I have been representing the Criminal Bar both on the CBA and the Bar Council.
During that time, I have developed a reputation as one who fearlessly and independently stands up for the criminal barrister in whatever forum that becomes available so that our voice is heard. I will continue to do this.
For instance, I demanded that the Bar Council expose the potentially corrupt practice of referral fees and forced it to the top of the agenda in numerous CBA and Bar Council meetings.
In my time working on the CBA Committee, I have seen genuine and committed negotiations undertaken on our side by people of integrity, only to see them undermined by the duplicity of politicians.
There is, of course, a place for continued negotiation, there always will be, but there is also a time to admit that Government have taken us for granted and abused our goodwill. That time has come.
I do not hesitate to say now that I am in favour of properly considered, carefully planned, industrial action, whether it be a complete withdrawal of labour or more targetted, subtle, but effective withdrawal of cooperation.
We are at a time in the history of our profession when we cannot afford to be cheated upon again by government.
The next two years or so will be critical for the Criminal Bar. Without any doubt, the Coalition Government will be developing and implementing legislation as their last throw to influence the General Election. We know only too well how the last Government rushed through legislation in the dying days of their power to attack the livelihoods of criminal barristers.
There are major challenges ahead.
We must oppose proposals which could result in ‘one stop shops’ for solicitors and be vigilant to oppose the implementation of block contracts and unfair price competition which is just around the corner and only last week supported by Ken Clarke.
Preserving the separate and distinct identity of the Criminal Bar will be a major challenge in the next few years and the CBA must encourage new business models and practices which will allow us to compete on an even playing field with solicitors.
Quality Assurance will not go away and we need to make sure that whatever regime may be put in place, it is structured so as to reflect the talents and abilities of the Criminal Bar. Ultimately, if this is not achieved, I would not hesitate to advocate withdrawal from the scheme.
As someone who does a significant proportion of work on Circuit, I will ensure increased and significant engagement between the CBA and the Circuits. There is always a concern that the CBA can become London orientated. Over the last year or so, we have been attempting to correct this and conferences on Circuit have been a great success. As Editor of CBQ for nearly 7 years I have always sought to reflect the Circuit view as well as all in the rank and file of our profession.
But more can be done to involve the Circuits. As SE Circuit Representative on the Bar Council, I am acutely aware of life as a circuiteer and I will encourage the trend of more meetings on Circuit and opportunities for regular Q & A Sessions around the Country to give everyone a real chance of getting involved.
The Criminal Bar is a broad church. As a product of a Comprehensive School I have for many years been a campaigner for social diversity. My work for the Citizenship Foundation in support of State School students taking an interest in the work we do is but one example of the central spine of my belief. Fairness.
I have no aspirations for future preferment, but my aspirations for the Criminal Bar are significant.
In the old days, candidates would be expected to include within their manifesto, their views on detailed policy, I hope that I have done that. But my manifesto in this election is nothing short of a promise to stand up to those who are attacking us….whoever they may be.
Voting online has started now. Please access https://www.criminalbar.com/ to vote.