Friday, 26 July 2019

Privilege Part 3

In Lindsay Anderson's classic film If... of 1968 there is a scene in which a wide eyed new boy called Jute undergoes a test in which he is quizzed on school slang by boys in the year above. When he fluffs his answers he is shouted at because the boy responsible for teaching him gets the punishment if he flunks the real exam. This scene is based on a tradition that was still ongoing when I arrived at Eton called the Colours Test. It was the school's way of ensuring that newcomers became au fait in its bizarre lexicon as soon as possible.

Terms are halves, lessons are Divs, teachers are Beaks and so on with probably as many as 200 different words being unique to Eton. All institutions accumulate their own slang, abbreviations and acronyms but Eton went out of its way to codify an entirely different language as if it was admitting its pupils into a masonic brotherhood.

Some of this slang would have been recognisable to fathers, grandfathers, great-grandfathers and to generations immemorial. Some of it immediately marking out an OE from a particular time. When I arrived at the school in 1993 I was introduced to an insult that I had never heard before nor have heard since: goggy.

The simplest and most identifiable definition of this word would be geek, as in computer goggy. However at Eton this word had a wider application. It was possible to be almost any kind of goggy, with one conspicuous exception, you could not be a sports goggy. Eton being what it is meant that there was something of a social dimension to the insult, a sneering aspect.

To be goggy meant being too interested in something, too keen, too earnest, too removed from the calculated aloofness most cherished by the boys at the school. At the time it seemed the most natural thing in the world to scorn those unable or unwilling to participate in effortless superiority. Now I blush to recall that.

Since then I have, of course, realised that graft, determination and focus are what really separates proper people from the idlers and pretenders. Privilege is what disrupts the advancement of proper people and instead propels the charlatan and the fraud.

And so, inevitably, to the Prime Minister who even in late middle age appears never to have relinquished his contempt for the little people who strive in the detail to build and create. Nothing could be more goggy than the European Union and yet here is a fully fledged edifice the result of the industry and vision of thousands of toilers.

A hallmark of adulthood is seeing beyond the surface; in Boris Johnson's case we have a man of hidden shallows.

Tuesday, 16 July 2019

Juries abjured - Why MPs should press pause before pressing tweet

When you start out as a barrister it strangely takes a very long time to learn to speak normally in court. Very experienced and able barristers are able to conduct themselves as if in conversation. Newcomers and youngsters are most prone to falling prey to courtspeak, ten words when one would do, four syllables when one would suffice. Young or old, however, all barristers know that their words in court count and sometimes those words have to be chosen with absolute care. Mercifully, outside court, that pressure of scrutiny is lifted and barristers can speak more freely. However even allowing for that relative freedom few in number are the barristers that are prepared to comment on whether a verdict was right or wrong.

MPs bear the burden of having their spoken words weighed in every context. Of course speeches in the chamber usually bear the most significance but any chance remark can be seized upon and the MP called upon to explain themselves.

Lucy Powell, the Labour MP for Manchester Central has drawn praise and censure for commenting on Twitter in the wake of the acquittal of two boys tried for the murder of Yousef Makki in Cheshire. She tweeted: 

'You do have to ask if these defendants were black, at state school and from, say, Moss Side whether they would have been acquitted.' 

This tweet was picked up and reported by the Daily Mail prompting a flurry of commentary culminating in Ms Powell doubling down on her remark:

‘I stand by my comments on this. My point is wider: (not as judge & jury in this one) black, poor, young men - as is well-evidenced - are much more likely to get life-sentences for a peripheral, if any, role in a killing. These were acquitted.’

As far as I know Ms Powell did not attend any part of the trial. She certainly was not privy to the jury’s deliberations and therefore any comment she has made on the case will have been predicated on what she has heard and read about it.

There was a time when murder trials were reported almost verbatim in newspapers and readers could consider themselves almost as well acquainted with the evidence and submissions of counsel as the jurors. Those days are long, long gone. What gets reported today is a tiny, tiny fraction of what is said in court and in the absence of cameras only those in court get to see what is shown and how things are said.

Ms Powell’s original tweet was plainly a rhetorical question and it is clear what answer she would give. But why? How could she possibly know the answer to that question without hearing the evidence? How does she even know the ethnicity of the defendants given that they are entitled to anonymity as youths?

She assumes a great deal in her remark and most particularly assumes that the jury did not heed the judge’s directions in summing up and did not weigh carefully the evidence in determining whether they were sure of the defendants’ guilt. But maybe it’s not this particular jury’s objectivity she impugns but that of other juries. Which other juries? Which other cases?

Ms Powell has been quick to point to research and findings concerning potential institutional racial bias within the criminal justice system. There is an extremely important discussion to be had on this topic which is well served by those that have carefully researched the position. Nobody is served by a cavalier analysis of a single case where the author can’t know anything of the evidence that was called.

You can fight prejudice or inflame it by appearing to fight it. All those that work within the criminal justice system should welcome discussion and challenge but when it comes to the verdict to be reached in a particular trial there is a reason we entrust that task to a jury sitting in court not MPs who should know better.

Wednesday, 10 July 2019

Victim Personal Statements - The ins and outs

Marie Rimmer MP is in the news following criticism by her of edits made to a victim personal statement during the sentencing of a man sentenced to imprisonment for causing the death of a 4 year old girl by dangerous driving: The victim personal statement has not been published, as far as I am aware, nor those parts that were excluded from the sentencing process.

Speaking in a debate in Westminster Hall Ms Rimmer criticised the fact that what she referred to as the victim impact statement was not read out in full apparently following application by the defendant's barrister that certain passages would be 'too upsetting' for the defendant. As always when commenting on a case without knowledge of the full facts a degree of circumspection must be applied in venturing opinions. The debate was triggered following a petition by the parents of Violet-Grace Youens. Ms Rimmer spoke in the debate which was held in response to the petition calling for mandatory life sentences with a tariff of 15 years in death by dangerous driving cases with consecutive sentences where more than one life was lost.

While one can wholly understand what motivates a campaign like this namely a hope that the severest sentence will cause drivers to think twice before taking risks that might result in death there are a number of reasons why mandatory life sentences are not appropriate for these offences. The chief reason is that the intentional causing of death (murder) does carry an automatic life sentence. If death or really serious injury was intended by the defendant then that would be the appropriate charge.

Driving offences focus on the quality of the driving. Sometimes defendants deliberately (as seems to be the case here) drive extremely dangerously where the risk of causing death is extremely high. Plainly a very severe sentence in those circumstances would be justified and it seems likely in the near future that the maximum (although not mandatory) sentence for death by dangerous driving will be increased to life imprisonment. However death can also be caused by momentary lapses of attention of the sort that every driver every day might be guilty of. Automatic life imprisonment for someone who has driven blamelessly for years, who might have the highest possible character in terms of public service and who is wracked by remorse does not, to me, seem to accord with some basic principles underpinning society's approach to sentencing.

My main topic of interest here though is the issue of Victim Personal Statements (VPS). In reporting of this case and colloquially these are often referred to as victim impact statements but there is a subtle but potentially important distinction in the official nomenclature:

Victims of crime can choose whether to read these statements themselves at sentencing or have the prosecution barrister do so on their behalf. They are not produced in every case. They are often written before the trial has even happened. Sometimes a statement is made very early in the police investigation and an updated statement is made months later following a conviction. Occasionally the views of the victim can change markedly between those two statements.

In my opinion VPSs are important in a criminal justice system where victims can feel that they have very little voice. Judges should know, as should the public by reporting, what real life impacts are caused by serious cases. It is easy to make assumptions about how a particular crime may have affected a victim or bereaved person. There should be no room for assumptions in an evidence based criminal justice system.

However it is important that victims and society at large understand that judges when sentencing have to following statutory and common law authority. If a VPS calls for an offender to be locked up with the key thrown away the judge is not obliged to act upon that demand. Similarly, as sometimes happens, if a VPS calls upon a judge to show a defendant exceptional mercy and avoid imprisonment that should not be and is not determinative of the sentencing outcome.

Victims are entitled to write whatever they like in a VPS. That does not mean they are entitled to have anything and everything written in the statement read out in court. By way of extreme example if the VPS contains abusive or threatening language it would be absurd if the criminal justice system required judges to allow what may amount to a criminal offence to be committed in court in front of them.

Edits are regularly made to VPSs, what is important is that should only happen for proper reasons. Sparing the defendant's blushes or feelings is, in my opinion, very unlikely to be a proper reason. Inflaming what is in some cases a very highly charged sentencing hearing on the other hand might be. Reasons should be given and, insofar as it is possible, reasons should be understood.

Flexibility and discretion not rigidity and circumscription are what best serve justice and  best ensure that justice serves us.