This week I have had two articles published: one in the Times, about the Kavanaugh nomination and the unreliability of evidence of ‘demeanour’; the other in the London Review of Books – a review of the Secret Barrister and an account of the deplorable state of our criminal courts and publicly funded justice in general. The LRB piece originally had a section about Sarah Langford’s marvellous In Your Defence, for which there was not enough space, so here is what I wrote about it:
Sarah Langford writes in her own name, and describes in detail eleven anonymised cases in which she has appeared – three in family law, the rest in crime. She describes how she has advocated for her clients, but she also steps back to give a more complete account of the all-too-human stories that lie, for example, behind a bitter fight over who gets the children in a divorce, or what drives a young man to admit an offence he has not committed. Langford speaks of her own occasional misgivings about her role and the function she fulfils in a compromised system of justice – her candour and the depth of her humanity are unusual in a profession in which few of us have the time or inclination to reflect before the next case comes along. Her book is not confessional, but it gives an intimate and true account of the challenges that a thoughtful and sensitive person faces in her line of work.
Each of these books ought to shock those who know little of our system of criminal and family justice. They might end up agreeing with Robert Conquest that to understand how an institution works, you should assume that it is run by a cabal of its enemies. These books show where things have gone wrong, but they also show something of the calibre of the people who keep it going by refusing to let its enemies triumph.
Jolyon Maugham QC, the well-known Remain campaigner and tax law specialist, writes in the New Statesman of the ‘impunity’ that he believes the legal system grants to men who commit rape. He is shocked by the ‘attrition rate’ between the number of sexual offences of rape and the number of convictions in Court. He cites figures from the Office for National Statistics that suggest that in 2013 ‘there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.’ He believes ‘the solution can only be to change the law’, and questions whether juries should try rape cases at all.
Whether juries are fit to try many kinds of case is a question that is never long out of public discussion. There are those like the outgoing director of the Serious Fraud Office who thinks juries should not try serious frauds, because they are too complicated; others say the same about cases with difficult scientific issues; and many in the senior judiciary think that defendants should lose the right to choose jury trials in cases that are too simple, such as shoplifting (not so simple if you wrongfully acquire a conviction for dishonesty and cannot get a job). In short, the jury has many enemies.
But the jury is you and me and our neighbours. Young and old, wise and foolish, all made of the same crooked timber of humanity as the judge, the police officer and the defendant on trial. The genius of this accidentally arrived at way of doing justice is that twelve turns out to be the right number to even out the differences. In her seminal 2010 study Are Juries Fair?, Professor Cheryl Thomas was permitted to speak to hundreds of jurors about their deliberations. The answer to her was Yes, with caveats including the need to give more help, such as written directions on the law and a list of the questions jurors should ask themselves on the ‘route to verdict’. The Courts have adopted most of her recommendations.
Professor Thomas corrected one of the ‘Misconceptions about jury verdicts in rape cases’: ‘contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate)’. That figure was consistent with the general run of cases, and does not suggest that there is anything peculiar about rape trials that sets them apart from others. The hallmark of many rape trials is that the jury have to decide between two contradictory accounts – complainant v defendant – with little or no supporting evidence on either side. Trials like that are not exclusive to cases of rape. With the prosecution having the burden of proving their case so that the jury are sure, the decision for the jury in any such case can be hard.
The prevalence of sexual offending is a great social evil, but the legal system and the alleged weakness of jury trials in particular can’t be held responsible for men committing rape, any more than they can for the upsurge in knife crime or burglary. Myths still abound about disrespectful treatment of women complainants by the police and in Court. Police officers, prosecutors and judges receive specialist training in sex offence work; abusive cross-examination by defenders is rare and judges do not tolerate it. That may not make the prospect of reporting a rape to the police and following it through to trial much less daunting, but perpetuating myths may contribute to the ‘attrition rate’. We can surely improve the support given to victims of sexual abuse, but changing the rules is not the way forward.
It’s not every day that one’s client is a legendary figure – as mine was, in the shape of Vladimir Bukovsky. It turned out that he was far too ill to be tried on the charges that he faced, of having indecent images of children, which he denied. At 75, his body was giving out, and the Judge at Cambridge Crown Court found his cluster of illnesses meant he could not effectively participate in the trial, even via a videolink from his home. The prosecution was stayed and remains in suspense until, perhaps, he is well enough again. This was a man who took on the Soviet state as a boy – he was expelled from school and then from university in 1961 for ‘lacking the character of a Soviet citizen’, and he spent the next 12 years in and out of prisons, labour camps and psychiatric wards – for the offence of ‘hooliganism’ – or as we would say, for telling the truth about the state’s systematic abuse of human rights. In 1971 he smuggled documents out of Russia that showed how political prisoners were treated as insane – and was promptly locked up again. Recognised by now across the world as a prisoner of conscience, in 1973 he won his freedom, albeit in exile, by being exchanged like Cold War chess pieces for the leader of the Chilean Communist Party, Luis Corvalan, whom the Pinochet regime had imprisoned after the military coup. Bukovsky settled in the UK, and became a figurehead for the pro-democracy Russian diaspora all over the world. The Yeltsin government eventually restored his citizenship that the Soviets had removed, but Putin stripped him of it again when he had the temerity to stand against him in the 2008 presidential election. A man of extraordinary courage, but what a dismal last chapter to a heroic life.
Yesterday I attended the memorial service at the Temple Church for His Honour Judge Plumstead, who died aged 64 in September. The church was packed: family, friends, colleagues from Bench and Bar, and members of the Court staff at St Albans, where he sat. The service was both grand and intimate, with personal reminiscences, a poem read by his daughter, hymns for the congregation and pieces for the superb Temple choir, and the stirring words of comfort that the Church is so good at providing on occasions like this. John Plumstead was a rarity among judges – many are respected, some are liked, but almost none are loved. He was.
Julie Bindel (Guardian 12 August 2016) thinks it’s wrong for juries to try rape cases because they lack expertise and don’t find enough defendants guilty. If lack of specialist expertise barred randomly selected members of the public from being jurors, there would not be many jury trials left. Citizens, in committees of 12, are remarkably good at dealing with complex cases of all kinds, and at doing justice. Judges generally agree. Trial by one’s peers is not something to toss away lightly on the basis of stereotypes and misconceptions. Working out who is telling the truth is not a matter for experts in any type of criminal case. Our fellow citizens are good at it, whichever segment of society they come from. Yes, they can sometimes produce results that the powerful dislike: stand up Clive Ponting. It’s sad that a brave campaigner for the powerless like Julie Bindel comes out with the same sort of thing. Juries have far more legitimacy in trying serious crime than a case-hardened panel of ‘experts’ ever would.
In rape cases juries are not less likely to convict: according to Professor Cheryl Thomas’s 201o study ‘Are Juries Fair?’ (answer: yes), in the 2-year period she studied juries, they convicted more readily in rape trials than in comparable cases of serious violence, at 55%. In the larger Court centres across England and Wales, the overall conviction rate ranged from 69% to 53%. The reasons for the differential were unclear but may be due to uneven distribution of different kinds of cases between the Courts. So rape convictions are not out of line with the general pattern.
Very few rapes are stranger rapes; in many cases, the accused and the accuser know one another and are the only significant witnesses. Where the issue is consent, the fact that ‘penetration’ has occurred is admitted and needs no scientific proof. The jury invariably decide the case by weighing one person’s word against another. That is seldom an easy task, in Court or outside, when judging an accusation of rape or anything else. The law demands –rightly – that no one may be convicted of an offence unless the jury are sure of guilt. They may think the evidence proves the accused is probably or possibly guilty – there may be strong suspicions – but still not enough to get over the line into being sure. That high standard protects the innocent from false or mistaken accusations – a protection of great value for which we should all be thankful.
Juries in rapes now receive explicit legal directions from the judge that are designed to dispel myths about complaints of rape. There are statutory restrictions on evidence about an accuser’s ‘sexual history’, which are rigorously applied. Juries hear about it only if it would cause serious unfairness to the defence if it was withheld. Judges have to strike a balance.
Prosecutors and Judges have specialist training before they can take on rape and serious sexual offence cases. Prosecutors are required to inform witnesses of the type of questioning they may face from the defence. In cases involving vulnerable witnesses, the Judge now receives the questions to be asked in cross-examination in advance, and may disallow inappropriate ones.
We could do more. A compulsory programme of vulnerable witness training for all advocates is coming. We could make the Court experience better for witnesses– by for example restoring the canteens that went in a recent mean-spirited round of cuts, so people at least can get a cup of tea while waiting. The MOJ could see to it that trials come on quicker.
What Julie Bindel proposes is to strip away a vital civil liberty because she thinks too many guilty men walk free. Perhaps some do: it may be a high price for our freedom, but it’s still worth paying.
Dear Mr Corbyn
I write to you as my constituency MP, to urge you to use your vote in the House of Commons to block the invocation of Article 50 of the Lisbon Treaty, and so prevent the disaster that Brexit will surely bring upon this country. You are widely respected for your work in North Islington, one of the most deprived constituencies in the UK, where you have stood up for the poor and dispossessed whose interests you have at heart. The most vulnerable will go the wall first.
The referendum result should not be seen as an unambiguous statement of the electorate’s settled will to leave the EU: it is too narrow for that interpretation; and the Leave campaign was a farrago of half-truths and downright lies, which will have deceived a fair number of voters about what Brexit would mean. If anything, the so-called ‘Project Fear’ by Remain underestimated the damage. The poorest will suffer the most. We can already see that the collapse of the currency and the stock market is sending the economy into a state of shock, perhaps recession. Investments are being suspended or stopped. Pension funds are worth less. Employers will make redundancies, and cut wages. There won’t be enough tax revenue for benefits or basic services.
Democracy is not served when the dice are loaded, as they were here, by a feral press, and by self-serving mendacious leaders. Accepting the result just because it’s a vote is not good enough in these circumstances, when so much is at stake. Your vote against Brexit in Parliament, and your ability to explain your vote, could save the country from the disaster it faces. It will save the very people who are closest to your heart, and their children and grandchildren, from years of intense uncertainty (at best) – and maybe it will even save Parliamentary democracy itself. Ask yourself this: if the Tories had offered a referendum on the death penalty, and 51.9% of the electorate voted for it, would you just accept it?
It’s not too late, even now. Please don’t let them have their way. Vote Brexit down.