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Lambo-driving lawyer Akhmed Yakoob is the latest lawfluencer on our radar, educating the masses on TikTok about law and crime.

Yakoob, a criminal defence solicitor, has amassed a strong 105,000 following on the popular video-sharing app, plus over 1.3 million likes since he set-up his account in October 2020.

He says his following grew substantially when he started posting at least once a day towards the end of last year, telling us his main driver is to have “more people educated and less people convicted”.

His videos feature motivational advice (“get comfortable being uncomfortable”), interesting cases he’s worked on, as well as criminal law insights such as what to do if you’re caught with cannabis and what not to do when pulled over by the police. His snappy vids often end with his catchphrase, “there’s a defence for every offence”.

In one video he recalls working on a murder case at the Old Bailey. In another, he recounts successfully defending two clients charged with conspiracy to supply class A drugs.

In several of his videos Yakoob, a serious crime specialist of over 15 years, is seen driving a £200,000 yellow Lamborghini Urus, one of two he owns, with the personalised number plate ‘0U12 LAW’.

@akhmedyakoob Handling business #fyp#fypシ #lawyersoftiktok #tiktokpakistan #lamborghini #urus #viral #islamabad ♬ original sound – Akhmed Yakoob

Some of his videos are just for laughs, and in one video (below), he contrasts what people think it’s like being a lawyer (this time driving a Ferrari) versus what he actually gets up to (paperwork, reading and answering the phone to “constant new clients”).

@akhmedyakoob #lawyersoftiktok #lawyersontiktok #PrimarkSummerUp #fyp #foryoupage #murder #lawyer #adayinmylife #dayinthelife #law #suits #birmingham #birminghamuk ♬ Circus Clown – Sound_Galaxy

Yakoob is the director of Maurice Andrews Solicitors, a criminal law practice in Birmingham founded in 1988. He took over in 2016 and claims to have propelled the business to “making millions”. The firm specialises in areas including drugs, murder, terrorism and serious fraud.

“What inspired me to be a lawyer was when I was 16 years old one of my close mates was arrested for attempted murder, and I believe he was innocent of that,” he shares in another TikTok. “However, he still ended up doing nine years in prison.” The British Pakistani practising Muslim then went to college and though his grades weren’t “up to the standard to get me into a university” through the help of a tutor he was able to secure a place to study law at Wolverhampton University, graduating in 2010.

After completing the Legal Practice Course at The University of Law in Birmingham, he goes on to explain in a video uploaded to YouTube, where he is also active and has over 180,000 views, he struggled to find a job. His dad eventually stepped in, took him to a law firm and said, “you don’t need to pay him, keep him, teach him what he needs to learn”. He worked there for two years, before moving to his present firm.

Yakoob credits working for free, often from 5am until 10pm and making as many connections in his starting years as the drivers contributing to his success. “Hard work puts you where good luck can find you,” he says. “When you’re young, you work to learn, you will earn later, and so any experience you can get, just grab it with both hands because some opportunities will come to you and they will be guised as free work, early mornings, late nights, you just have to keep going — with that kind of attitude you can succeed in any area of life.”

Did you know Legal Cheek is also on TikTok? Give us a cheeky follow — @legalcheek.

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It has long been asserted that our legal system, and in particular the criminal legal aid system, is the “finest in the world”. It is a cute soundbite, but having spent a decade at the coalface of criminal justice, I can quite frankly tell you; that notion is laughable.

Last month the Law Society published a shocking report which highlighted the crumbling state of our court buildings. Among the issues were asbestos, mould, seats and carpets held together by duct tape, leaking raw sewage, broken heating, and courts where disabled court users are unable access parts of the building. These issues, whilst wholly unacceptable, are sadly only one small aspect of a — now literally — crumbling justice system.

Defendants and victims are now routinely waiting years for justice, which is completely unacceptable, more so in cases involving serious violence or sexual abuse. There are significant delays in even the most routine cases. In March 2023 I am due to appear in a Magistrates’ Court trial relating to a simple matter of driving without due care and attention — a matter which took place in March of 2021.

There are almost 75,000 criminal cases now delayed as a result of continued backlogs and some trials are now being listed in 2024. Cases are collapsing due to the failures of an overworked, underfunded and poorly managed Crown Prosecution Service. Adjournments and wasted hearings are commonplace. Court directions and the Criminal Procedure Rules are routinely circumvented and treated as optional, often with impunity. Courts have been closed up and down the country, with many defendants and victims having to make long journeys to access justice. The majority of police investigations now fall into the ether and even the most routine charging decision can take months.

There is little to no communication or constructive dialog between the defence and the crown, particularly in cases before the Magistrates’ Court, or those sent by the police for a charging decision. Youths, and defendants with mental vulnerabilities are routinely being failed — criminalised rather than helped. The CPS are routinely represented in the Magistrates’ Court by prosecutors not empowered, or willing, to make decisions or exercise a modicum of common sense. Often, the only mechanism to focus minds and have a case properly reviewed and managed is to elect trial at the Crown Court where possible, further burdening an overworked system.

The tragic case of the Killamarsh murders has now triggered a review of how probation officers handle cases. Prisons are full, with inmates now being held in police cells as an overflow measure, and the rate of deaths in custody is the highest it has ever been.

There are failures and immense difficulties across every organ of our criminal justice system. How the system has not yet collapsed is beyond me. Taking stock of the above — a bit of asbestos seems rather insignificant.

The state of criminal defence is equally dire. The “fat cat” image peddled by the tabloid press could not be further from the truth — some criminal barristers are now being paid the equivalent of less than the National Minimum Wage.

In 2018 the average age of a criminal duty solicitor was 47; this rose to 49 in 2021. There are fewer graduates embarking into criminal defence than ever before — and perhaps with understandably good reason. No one goes into criminal defence for the money, but even genuine passion and a vocation has its limits, and is often overshadowed by a derisory salary that has not risen since the 1990s. That perhaps best explains the recent mass exodus of lawyers seeking an alternate practice area. Since 2007, over a thousand criminal defence firms have closed their doors.

In what should have been a turning point in 2018, HM Government recognised the serious concerns about the long-term sustainability of criminal legal aid. In response, it commissioned the Independent Review of Criminal Legal Aid led by Lord Bellamy KC. The Justice Secretary Dominic Raab went on to completely reject the advice of his government’s own review. The Law Society has now warned that there is no future for criminal defence solicitors unless the recommendations made by Lord Bellamy’s review are immediately implemented.

Whilst disregarding the advice of its own independent review and failing to ensure money is available for a properly funded criminal defence system, the government seems perfectly content to spend £300 million on rolling out the common platform case management system — a system so ineffective, useless and administratively burdensome that 97% of court legal advisors voted to stage mass walkouts over its inception.

The message to the justice secretary cannot now be any clearer — our criminal justice system is no longer the envy of the world. Rather, it is on a cliff edge. Urgent action and fundamental change is needed to avoid a complete collapse. Not at some arbitrary point in the future, but now.

Ben Brown is a solicitor advocate, Law Society elected council member for criminal defence, and former Crown Counsel to St Helena, Ascension and Tristan da Cunha.

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The Law Society of England and Wales has warned students considering pursuing a career as a criminal solicitor that they’re now “highly unlikely” to earn a “reasonable” income following the government’s decision to implement a “real-terms cut” on legal aid rates.

The stark warning from Chancery Lane came in response to the Ministry of Justice’s decision to increase legal aid fees for solicitors by just 11% in response to the crisis engulfing the criminal justice system.

This is despite an independent review, chaired by Sir Christopher Bellamy KC, recommending an immediate 15% increase as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.

Addressing the impact the decision will have on the junior end of the profession, Law Society president Lubna Shuja said:

“Our warning to those entering the profession, and considering a career in criminal defence practice, is that given the current situation with criminal legal aid, it is highly unlikely that you will be able to generate a reasonable professional income from this work.”

Shuja said Justice Secretary Dominic Raab had made the “wrong decision” and the 11% rise in reality equated to a “real-terms cut” on fees that have been frozen since the 1990s.

“Until the government chooses to address the crisis in the criminal justice system, victims will continue to be let down, court delays will increase and talk of being tough on crime will be nothing but empty words,” she said.

“Having seen that direct action gets results, the response from some of our members may be to resort to disruptive tactics,” Shuja added.

A survey undertaken by the Law Society earlier this year found that a whopping 81% of junior lawyers were reluctant to peruse a long-term career in crime, with low pay, long hours and poor work/life balance among the reasons citied by respondents.

In October, criminal barristers suspended their strike action after narrowly accepting the government’s offer of a 15% pay rise.

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A criminal defence solicitor is turning her 30 years’ experience of the justice system into a comedy show debuting at this year’s Edinburgh Fringe.

Abigail Rolling, a freelance solicitor who qualified in 1995, will use her sixty-minute show, Shit Lawyer, to share anecdotes, jokes and legal conundrums with Fringe-goers throughout August.

But the show will also contain serious undertones, with the lawyer turned comedienne exposing “in heart wrenching detail” the impact decades of underfunding and neglect has had on both criminal lawyers and their clients.

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“The fact is that justice has become diluted, with bulging prisons, closing courts, and trials that take years to be heard,” Rolling said. “This is a tragedy for victims of crime and the accused who are found to be innocent, and that could easily be you, or someone you know. Shit Lawyer is a manifesto for change. It’s time to show that the business of criminal law has had very little to do with justice.”

These difficulties in the criminal justice system will come as little surprise to regular readers, with recent research showing that 81% of junior lawyers felt the once-revered justice system was not an attractive long-term career.

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The overwhelming majority of junior lawyers feel criminal law is not an attractive career option, a new flash poll undertaken by the Law Society has found.

The survey discovered a whopping 81% of junior lawyers were reluctant to peruse a long-term career in crime, with low pay, long hours and poor work/life balance among the top factors cited by the nearly 140 respondents.

Providing further details as to why they don’t see a long-term future in crime, one young lawyer said: “I do not trust that the government would ever fund it adequately to allow a solicitor a good wage and quality of life. Why go to university and the huge debts to earn the wage they do, the hours they work and antisocial hours at that.”

Another respondent explained how they recently switched from criminal to commercial law, where newly qualified associates working in the latter can trouser upwards of £100,000 a year. “As a single person the salary was fine but as a parent it is not sustainable,” they said. “Having moved to commercial law within a year I have already doubled the salary that I received as a criminal solicitor.”

A further junior lawyer told researchers: “No work-life balance, no prospects for a family, very little pay, too emotionally draining without enough support, not respected by the public.”

The comments flag similar issues to those contained in special report undertaken last summer by Legal Cheek.

One student told us how they were were advised during a mini-pupillage to “train away from crime within ten years and do something more lucrative”, while another wannabe solicitor said that she and many of her peers were “thinking twice about entering criminal defence” given the financial downsides.

The poll comes as criminal barristers continue to apply a ‘no returns’ policy — they agree not to accept cases that are returned by colleagues who have a diary clash — over their longstanding concerns with legal aid funding.

Although the government confirmed in March it had accepted an independent review’s recommendation to pump an extra £135 million a year into the criminal legal aid sector, the Criminal Bar Association (CBA) says the increase in fees under the deal will “not be sufficient to retain enough criminal barristers to keep the wheels of justice turning”.

The CBA is now considering further action with meetings and a ballot of members scheduled for next week.

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A growing list of chambers have publicly declared that their criminal barristers will not accept returns from today over longstanding concerns with legal aid funding.

So far 25 sets and 13 individual barristers have come out in support of ‘no returns’, a live document administered by Twitter account Idle Court shows. The chambers include Exchange Chambers, Garden Court Chambers, 25 Bedford Row, among others.

Under no returns, barristers agree not to accept cases that are returned by colleagues who have a diary clash.

The action results from a recent ballot in which 94% of Criminal Bar Association (CBA) members voted to no longer accept return work, though they will continue to attend court and accept cases of their own.

This came in response to the government’s decision to invest an extra £135 million a year into the criminal legal aid system, the minimum recommended by Sir Christopher Bellamy QC in his review.

The CBA said in a statement:

“The action will be maintained until government agrees to a fair settlement of the criminal bar’s longstanding concerns about unacceptably low legal aid fees that are driving hundreds of our barristers out of criminal practice.”

The number of specialist criminal barristers has shrunk by a quarter in the last five years, the CBA said, meaning that there are now “insufficient” prosecutors and defenders to reduce the backlog of nearly 60,000 cases in the Crown Court.

“Without immediate action by government to substantially increase legal aid fees, more barristers will be forced out of criminal work and the backlog will grow longer, leaving victims and defendants waiting years for their cases to be heard.”

The government recently announced a 15% increase in fees, but only for new cases from October.

The CBA said that given the backlog, barristers could be waiting until 2024 and beyond to reap the benefit of any fee increases.

On Friday, the Bar Council released research showing that the number of barristers practising full-time in criminal law has dropped by more than 10% in 2020-21 compared to a year earlier — from 2,670 to 2,400.

The Law Society, meanwhile, has said that it understands why criminal barristers are taking a stand.

Law Society president I. Stephanie Boyce said: “The Criminal Bar Association and the Law Society are, for different reasons, both of the view that the Ministry of Justice’s proposals are woefully inadequate to address the crisis in the criminal defence professions.”

“Criminal law is no longer an attractive career option for young solicitors or barristers,” Boyce continued. “Many of those who are currently practising in criminal law will be considering how long they are able to continue doing so. We understand why barristers have chosen to take this action.”

Last year we carried out an investigation which found that law students are starting to veer off a career in criminal practice.

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Criminal barristers in England and Wales have voted overwhelmingly in favour of taking action if the government does not commit to a “substantial increase” in legal aid.

Nearly 2,000 barristers responded to an urgent survey by the Criminal Bar Association (CBA), demanding reform by the end of March. The survey results, released today, show that 96.5% of respondents are in favour of taking action, including ‘no returns’, if the government does not “commit to a substantial increase in criminal legal aid”.

An independent review of the criminal legal aid budget, led by Sir Christopher Bellamy QC, proposed a cash injection of £135 million a year as a “minimum” first step to “nursing” the system back to health after “years of neglect”. He said there was “no scope for further delay”.

Justice Secretary Dominic Raab has committed to responding to the review by the end of March, but barristers fear no action will be taken until at least the summer.

Some 91% agreed that the government’s current timetable is “unreasonable”, and 94% said ministers should publish their response to the review by 14 February and carry out the statutory consultation on changes being made by 31 March.

“The views of the criminal bar could not be more clear,” said CBA chair Jo Sidhu QC and vice chair Kirsty Brimelow QC, in a joint statement. “Government must now take the urgent action necessary to resolve the funding crisis that has left the criminal justice system on its knees and driven out hundreds of our colleagues who could no longer sustain a career on pay that has declined in real terms over the last 25 years.”

They said that without the requisite undertakings from the government by 14 February, the CBA will move directly to a ballot for action.

Raab told Radio 4’s Today programme this morning: “The one thing that would hold back recovery in the courts system is if the Criminal Bar Association and criminal lawyers go on strike”.

He added: “I don’t think that would be supported across the wider sectors of the justice system and I certainly don’t think that will be supported by the public.”

The CBA hit back in a tweet saying: “Our members are the only thing that has kept the system on the rails for the last two years… 96% say enough. Inject funds now to save the future criminal justice system.”

Our members are the only thing that has kept the system on the rails for the last 2 years.

With no funding increase in 25 years, working conditions are intolerable.

We are dedicated to justice & hard working (+60h/pw.)

96% say enough. Inject funds now to save the future CJS. https://t.co/3Zlf8fsiPu

— The CBA (@TheCriminalBar) January 18, 2022

Sir Christopher is due to give evidence on the review’s findings to the House of Commons’ Justice Committee this afternoon. Speaking ahead of this, Law Society president I. Stephanie Boyce reinforced her support of the measures suggested in the review and said she is keen to work with government on the detail of what will be required to implement them.

“If this does not happen, we fear that our members will leave the market at ever faster rates, which will seriously compromise the government’s ability to clear the huge backlog in the criminal courts and ensure timely justice for victims, witnesses and defendants,” said Boyce.

The news follows an investigation carried out by Legal Cheek last year which found that law students are starting to veer off a career in criminal practice.

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A photo of the Ministry of Justice’s (MoJ) Christmas tree has sparked a flurry of outraged responses from criminal lawyers on Twitter.

The MoJ’s permanent secretary tweeted from her official account a photo on Friday showing the decorative tree up in the atrium of the MoJ’s London headquarters.

“It’s beginning to look a lot like Christmas,” she wrote as the caption. “Still much to do between now and Christmas — but the tree is up at MOJ HQ!”

It’s beginning to look a lot like Christmas

Still much to do between now & Christmas – but the tree is up at @MoJGovUK HQ! pic.twitter.com/nBCoXgw2Af

— Antonia Romeo (@AntoniaRomeoUK) December 3, 2021

The cheery tweet seems to have sent criminal barristers over the edge, with many questioning the MoJ’s priorities as courts across the country crumble and the backlog of cases continues to grow.

“Good to see you’ve got your priorities right,” tweeted Ben Edwards, a criminal barrister at Foundry Chambers. “[P]erhaps you should use the money you paid for this ridiculous tree to ensure crown courts’ heating worked or to ensure the ceilings aren’t falling in… instead you think THIS is more important?! Shocking. Get a bloody grip.”

Criminal barrister turned Labour politician Karl Turner MP waded in with a tweet saying: “How absolutely lovely. Let’s not mention the 75k cases blocked up in the crown wourts, criminal solicitors and barristers absolutely shattered and defeated. Court buildings crumbling and much more. We’ve got the Chrissy tree up! Well done Dominic Raab you are an absolute saviour.”

Meanwhile, academic and lawyer Becca Jiggens suggested the MoJ launch its own advent calendar with a twist.

Missed opportunity to have an MoJ Advent Calendar, reopening a closed court each day.

— Becca Jiggens remains fucking outraged (@beccajiggens) December 3, 2021

Elsewhere, Tomas McGarvey of 2 Bedford Row wrote: “Utterly detached from the reality of the criminal justice system.”

His chamber mate Nick Barraclough tweeted in response a photo of what appears to be a flooded corridor in a court building. “Them and us,” he wrote.

Ministry of Justice. Them and us . . https://t.co/Lt9WBDz1bu pic.twitter.com/W34nCQDYbD

— Nick Barraclough (@nmbarraclough) December 3, 2021

Fellow criminal barrister Tony Kent shared an image of an out-of-use urinal in another court building to which other Twitter users responded, “Merry P*ssmas” and “MoJ literally taking the p*ss”.

Not in Reading Crown Court it’s not. https://t.co/9e4mF5motg pic.twitter.com/htZbjKxtnD

— Tony Kent **No Way To Die** (@TonyKent_Writes) December 5, 2021

Prison Storm, a Twitter account dedicated to the state of the country’s prisons, wrote:

“…A groundswell of deep frustration exists across courts and prisons which is in stark contrast to the apparent festive cheer within the Westminster bubble.”

Just weeks ago Justice Secretary Dominic Raab irked barristers by sending a pre-recorded message to the annual bar conference whilst he was out at a Christmas festival and snapping selfies with a giant roller-skating Christmas pudding and bauble.

Raab said over the weekend that there will not be a MoJ-wide Xmas party this year amid concerns over new coronavirus variant Omicron. The MoJ will instead be holding “appropriate drinks at a smaller scale” — much to the delight of criminal barristers.

The MoJ has been approached for comment.

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Channel 4 has been given “unprecedented access” to one of the country’s top criminal defence chambers for a new legal docu-series following the day-to-day life of a group of barristers.

The four-part documentary, The Defenders, will explore the work that goes into “preparing ‘the defence'” and will follow barristers from 25 Bedford Row through their cases — from when they are given a brief, through to the twists and turns of the judicial process, preparing for court, up to the verdict.

The barristers handle cases from speeding fines to murder, shop lifting to armed robbery, high stakes fraud to drugs conspiracy.

The Defenders, which airs from spring, will also show the barristers’ lives beyond work, their families, friendships and hobbies.

The series has been commissioned as part of Channel 4’s Black to Front project which aims to improve Black representation on-screen and more widely in the TV industry. The pubcaster has commissioned Spring Films to produce the series.

Shaminder Nahal, commissioning editor, said:

“We’re used to seeing TV programmes about crime — but it’s rare to see what goes on in the world of the barristers defending the alleged criminals. These films will attempt to tell us new truths about the justice system, and how it works — and the people working with in it, and caught up in it.”

BBC Two previously aired a three-part legal docu-series exploring the work of the Crown Prosecution Service. The Prosecutors documented lawyers battling to secure convictions and starred criminal judge Julie Warburton formerly of The 36 Group chambers.

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Ex-Love Islander and law grad Tyler Cruickshank has set his sights on a career as a criminal lawyer.

Like the many legally-minded contestants before him, the 26-year-old model hasn’t ruled out a career in law and wants to train as a solicitor after graduating with a 2:1 law degree from St Mary’s University in Twickenham in 2018.

Cruickshank worked as an estate agent before finding fame in the villa this summer.

“I do miss the buzz of being an estate agent and meeting different people as well as being around my team,” he told OK! magazine. “There is just different things on the horizon for myself.”

“I am definitely going to go back to my law stuff in the future,” he added. “I want to go into criminal law which is not as lucrative as public law and company law but I am really interested in it and I was when I was at university.”

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“My uncle owns a criminal law firm and I actually did some work experience there when I was really young and it really did interest me,” he continued. “I just didn’t want a mundane job where it is the same day in, day out. I definitely do want to be hands-on solicitor and criminal law is something slightly different every single day. It could be that one day you are having to get someone from the police station and deal with it down there and another day you could actually be building the case with research.”

“For me, coming from a legal background, I was always going to go into law anyway. My estate agency days were definitely numbered and I did know that.”

Cruickshank placed fourth in this summer’s series of the dating show with his now-girlfriend Kaz Kamwi, 27, an Insta-influencer and Birmingham City Uni sociology grad, who he said has been helping him navigate the world of content creation. He now has 234,000 followers on Instagram and often posts ads for brands such as Boohoo MAN.

Love Island series seven saw not one, not two, but three(!) legally-minded contestants enter the Spanish villa. Joining Cruickshank in the most recent series of the show were Ulster University law graduate Matthew MacNabb and Birkbeck law student Sharon Gaffka.

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This is the second instalment in a special two-part feature examining the future of recruitment in criminal practice. You can read part one here.

It may sound like a bunch of comic book superheroes, but nobody on the Justice Committee wears a cape.

The MPs on the committee do important work all the same. A recent report on “The Future of Legal Aid” concluded that, without reform accompanied by more cash, British justice risks becoming a bad joke.

Among the specific warnings were that many criminal legal aid firms “are not able to recruit or retain lawyers, with a significant number leaving to join the Crown Prosecution Service”. Evidence before the committee included the Birmingham Law Society highlighting “significant concerns about the lack of new entrants to criminal practice, for both solicitors and barristers”.

The Criminal Bar Association (CBA) says there’s already a shortage of defence barristers. Its chair, James Mulholland QC, recently compared the group to the ancient prophet Cassandra, doomed never to be believed. “Concerns first expressed seven years ago and monthly since 2018”, Mulholland wrote, “have finally come to pass these past few weeks”.

Those left in the field are under appalling strain. A CBA spokesperson told Legal Cheek: “We hear daily tales of burnout. This is not a question of money. This is not even a question of wellbeing. It is a question of whether people can survive”.

Another of the Cassandras, solicitor Bill Waddington, reckons “we are now seeing the system collapsing. Something as big as the criminal justice system doesn’t just collapse in 24 hours — it takes a period of time — but it is now completely dysfunctional”.

None of this is news, of course, and the reasons for it (primarily financial) are well known. But as we explored in the first instalment of this article earlier in the week, there are increasing suggestions that law students can see this dysfunctionality for themselves, and are starting to veer well clear of criminal practice — even if it’s been their heart’s desire for years.

To gauge this sentiment, Legal Cheek spoke to a dozen law students and recent graduates with an interest in criminal law.

It’s fair to say that everyone we spoke to is approaching a criminal career with their eyes open. Several mentioned the Secret Barrister’s book, Stories of the Law and How It’s Broken, which doesn’t exactly promise an easy ride.

“I have definitely thought twice (countless times) about going into criminal law when it is so obviously in disarray, especially following the Secret Barrister’s book and the news article about how one legal aid barrister was earning less than minimum wage”, admits Leeds Beckett student Clark. He doesn’t know many fellow students planning to specialise in crime, and does know people who have been put off by the horror stories.

Clark himself, though, won’t be diverted from his planned course of legal aid barristering: “It hasn’t put me off even though I am well aware of how atrocious the situation is”.

Other students gave us variations on that theme: we know what we’re getting ourselves in for. Jasmine, a second-year at Queen’s University Belfast, is among them. She told us:

“I do find it deeply concerning, and it has prompted me to begin to consider other career paths besides criminal law. It’s upsetting, because on the one hand my passion lays within the criminal law sector, but on the other hand I have to think realistically about job prospects — can I afford to risk poor pay, especially when I will be having to pay back student loans and other living expenses?”

But even though she’s considering her options, Jasmine’s “primary goal” is still the criminal bar. “The pay may not be great, but people will always need someone to represent them”, she says.

Others have decided, with regret, that it’s just not feasible. A London-based pupil barrister tells us of getting two pupillage offers, one criminal and one civil. Despite “a real interest in pursuing a career at the criminal bar”, he ultimately went civil.

“What made the decision for me to opt for the civil pupillage was the massive disparity in the relevant pupillage awards; the news about the CJS being throttled by continual cuts; and work-life balance, which is difficult anywhere at the bar, but the reports from my friends in criminal practice were that it was pretty impossible there”, he tells us.

The 30-year-old added that “while I think I would have been happy to slum it in my early 20s I really didn’t want to do that now given I’ve started to think about settling down with my girlfriend and potentially start a family”.

Second-year law student Barney agrees. “I really want to have a family and it just seems like I would be missing most of my children’s lives”, he says. Despite wanting to be a criminal lawyer all through school, “I’ve decided completely against it and wouldn’t consider it now”. Among other things, the more he learned the less realistic it seemed, explaining:

“The pay and general conditions started to really seem like insurmountable downsides. I wouldn’t ever say I’d be motivated by high pay to do a job — I don’t want to be a solicitor or work in a big firm and earn massive amounts like some of my coursemates do — but hearing about how much legal aid would actually pay in many cases really made me worried.”

Criminal lawyers themselves often advise against. “I did work experience with a barrister who is now a Crown Court judge”, Barney remembers. “He told me that crime was good for learning advocacy, but that you should train away from crime within ten years and do something more lucrative”.

Jack, a recent Strathclyde grad, has plumped for the stability on offer in prosecution rather than defence. He’s accepted a traineeship with the Scottish prosecution service, saying that people are “thinking twice about entering criminal defence” given the financial downsides. “I think the benefits and career is more appealing package wise as a prosecution lawyer rather than defence”, Jack adds.

As this suggests, there’s no inherent lack of interest in criminal law. Katy, a second-year at the University of Sussex, says “it’s a shame because the majority of my friends who also study law say that criminal law is one of if not their favourite topic, so it leads me to believe that it has more to do with earning potential as opposed to personal interest”.

In fairness, it’s not all or nothing. Durham LLB student Laura, an aspiring barrister, told us “my intention to work around this issue of limited financial rewards due to legal aid fees is to diversify my practice areas and hope to build a mixed practice with the addition of family law or civil law combined with criminal work”.

Another budding barrister who’s starting the Bar Practice Course in September told Legal Cheek: “Many I’ve spoken to have talked about mixed practice. I myself would like to combine criminal with family law as a result of the instability in criminal law practice”.

The fact that most of our admittedly unscientific sample were interested in becoming barristers rather than solicitors chimes with Rebecca Wood’s experience. At her small outfit in Devon, currently struggling for training contract applicants, “students will come to me for work experience and generally if they have any interest in crime will go to the bar — that’s what their ambition is”.

For Wood, inability to recruit would be an existential threat to her firm’s criminal department. “If there isn’t a trainee or new blood coming in, crime just won’t survive the next decade in our firm”, she says. “It’s make or break”.

Many in her position are pinning their hopes on the Independent Review of Criminal Legal Aid, rumoured to be reporting next month. Waddington says firms could respond quickly if given a big increase in legal aid funding. “I do think that the recruitment problem would be eased if firms were in a financial position to be able to offer better salaries and conditions”, the veteran says — although he’s less confident that the government would act on any such recommendation.

No matter what Lionel Hutz might think, a dearth of criminal lawyers is bad news for the whole of society. For Rebecca Wood, though, it’s a personal tragedy as well.

“This is what I’ve always wanted to do”, she tell us. “I’d like to live out my days as a criminal lawyer. I desperately don’t want to write wills, that’s all.”

This is the second instalment in a special two-part feature examining the future of recruitment in criminal practice. You can read part one here.

The post Meet the law students having second thoughts about criminal practice appeared first on Legal Cheek.

This is the first instalment in a special two-part feature examining the future of recruitment in criminal practice.

Like many of the best lawyers, Jinder Singh Boora’s career was launched by cheesy American television.

“As a child I was a very poor sleeper. After bedtime I used to creep downstairs and watch TV”, the Birmingham circuit judge said in a recent interview. “I came across an American legal drama named Petrocelli. I just remember looking at the attorneys in court with their smart clothes and perfect teeth and thinking — I want some of that!”

The likes of Petrocelli and its British equivalents — from Crown Court and Justice to the more recent Silk and Defending the Guilty — have helped to ensure a steady flow of idealistic recruits into criminal law over successive generations. Unlike most other practice areas, criminal defence is something people grow up wanting to do.

But the reality of criminal practice is nowhere near as glossy. Lawyers’ groups have been saying for years that low pay, high workloads and crumbling courts will eventually start putting law grads off crime as a career path.

The Criminal Bar Association, representing barristers, has been warning of a “recruitment crisis” since at least 2015. The Law Society of England and Wales talks about “a dearth of young solicitors willing to go into criminal law”.

So are those dire predictions now starting to come true? And how much of that is down to law grads themselves thinking twice about criminal defence work?

“I think students are very aware of the future looking pretty bleak in crime”, says Rebecca Wood, head of criminal litigation at Woollcombe Yonge in Plymouth. She recently advertised a training contract in her department, expecting it to be “like gold dust”, as it was when she was on the criminal traineeship hunt 15 or so years ago.

So far, the ad has received “hardly any responses”, Wood tells Legal Cheek. “I don’t want to be unfair on the few that have applied, but I was expecting hundreds. We advertised for training contracts in conveyancing recently which were snapped up — a flood of applications”.

Wood’s tweet about her disheartening recruitment experience seemed to strike a chord. “I used to get lots of unsolicited applications”, said Sonya O’Brien, a partner at another small firm in Oldham. These days, “I can’t remember the last time someone sent a CV in”.

Of course, problems in some areas of the country may not be reflected across the board. In Scotland, which has an entirely separate criminal justice system anyway, young lawyers still seem super keen.

One firm, Keegan Smith in Livingstone, recently reported 120 applicants for a single criminal defence trainee role. “The standard was all very high”, partner Iain Smith wrote on LinkedIn.

“My impression in Scotland is that at the trainee level it is supply of roles (and the ability to fund such roles) that is the problem, not any lack of interested applicants”, says Professor James Chalmers of Glasgow University. “I haven’t noticed any change in this over recent years”.

Lecturers elsewhere have different experiences. “I am not aware of a single former student who has taken a training contract in a criminal legal aid firm in the last five years, compared with many who have in firms working in other areas of law”, says Dr James Thornton of Nottingham Trent University. While lack of training contract opportunities is a factor, “it also seems to be the case that the job simply does not appeal to many students”.

Research by Thornton and others, based on interviews with criminal lawyers, points to a “declining proportion of law graduates opting to pursue a career in criminal law”.

That’s tricky to back up with hard stats: there’s no ready data on how many people apply for a training contract or pupillage in crime specifically. The Law Society does keep tabs on the average age of criminal duty solicitors, which gives an indication of the health of the recruitment pipeline.

That picture is pretty bleak in many areas of the country. In Wood’s part of the world, Devon, 58% of criminal duty solicitors are aged over 50. That picture is replicated in many regions: across the rest of the South West, much of Wales and in Worcestershire, over 60% are aged 50+.

As Thornton points out, though, that could be down to retention problems as well as a lack of trainees coming in. The number of criminal trainees across England and Wales has jumped around a bit, but there isn’t a consistent downward trend, according to data collected for the Independent Review of Criminal Legal Aid. There were 540 trainees at criminal legal aid firms in 2018/19, compared with 490 the year before and 570 the year before that.

But the same figures show a sharp rise in the number of solicitors dropping out of criminal legal aid: almost 3,000 in 2018/19. Some of that will be down to their firm dropping legal aid or closing down, but not all: every criminal lawyer has stories of colleagues quitting young.

Bill Waddington of the Criminal Law Solicitors’ Association remembers taking a newly qualified criminal defence solicitor along to a meeting with government ministers a few years ago, to reinforce the point that she was a “rare specimen” even then. Fast forward to 2021, and she’s now working for the Crown Prosecution Service.

“Criminal legal aid firms can’t compete with what the CPS is offering in terms of salary and benefits”, Waddington says. On top of that, “we lose people to other branches as well. If they’re intent on doing publicly funded work, they will have a much better existence in family law, which is better remunerated and doesn’t come with 24-hour call-out”.

Similarly, the Bar Council says that “those who do still enter the profession are swiftly confronted by the reality of the low fees and this rapidly drives out all but the most financially secure”. Around one in eight pupil barristers at criminal sets “already felt they would be unlikely to be able to sustain a full career at the bar”, according to a survey earlier this year.

Whether it’s recruitment or retention, the result is the same: an ageing pool of increasingly stressed-out criminal defence lawyers wondering where the next generation is coming from.

In the second instalment of this special two-part feature, out later this week, we hear from law students themselves about whether all the horror stories about criminal practice are deterring them from going into the profession.

The post Do law students still fancy a life in crime? appeared first on Legal Cheek.

Elon Musk’s pig, Gertrude, looks like any other pig. But the coin-sized chip Musk’s company Neuralink have placed in Gertrude’s brain makes her a key part of a ground-breaking experiment to discover if technology can enable us to do things with thoughts.

The chip is a brain-computer interface (BCI) which picks up neural activity. Musk hopes to decode this neural activity so that it can be understood as instructions for a computer, allowing BCI users to control a computer with their minds. In other words, BCIs can transform a thought into an act.

For many who have lost certain bodily functions, BCI technology is a scientific miracle. The technology has the potential to treat neurological conditions like dementia or Parkinson’s, restore paralysed individual’s ability to control their bodies and even allow the blind to see again. But for prosecutors, judges and policy makers, BCIs are a troubling legal headache.

Proving criminal responsibility for most crimes requires the prosecution to prove both a defendant’s criminal act (actus reus) and intention (mens rea). So, how would this work for a defendant who used a BCI to commit a crime? An act is defined in most legal systems as “a bodily movement” (the quote here is from the US Model Penal Code). But a crime committed using a BCI involves no bodily movement. Nevertheless, if we take a neuroscientific approach, this is not an insurmountable obstacle for a prosecutor.

The chain of causation for a BCI user is as follows. First, the BCI user imagines an act that they want the computer to perform (I shall refer to this as a “mental act”). Second, neural activity is triggered by the mental act that is input for the BCI. Finally, the BCI interprets this neural activity and performs the act. Just as a finger pulls the trigger on a gun, neural activity triggers the BCI. Therefore, the neurons that fire and produce measurable neural activity could plausibly be considered the actus reus in cases involving the use of BCI technology. So, it appears that a legal loophole in prosecuting disembodied acts can be avoided. But at a price.

By finding actus reus in the activity of a defendant’s neurons, we have been forced to expand the law into the mental sphere. This is a sphere which, in keeping with the Roman law maxim that “nobody shall be punished for thoughts” (cogitationis poenam nemo patitur), is not regulated by the law. In the UK, this doctrine is a right enshrined in article 9 of the Human Rights Act 1998. Given the repercussions for our freedom of thought, is it acceptable to regulate BCIs? If not, can legal systems that only regulate outward behaviour properly maintain the rule of law in BCI cases?

The middle ground between a BCI Wild West and criminalising thoughts is granting BCI users the ability to waive their right to freedom of thought. For those that this technology offers the most, for example tetraplegics, this may well be a right they are happy to waive. Should an individual be allowed to take such a decision? Legislators would have to step in to clarify who can use BCIs and judges would have to recognise implied consent from BCI users to waive this right to freedom of thought.

When deciding this, we must not ignore how significant this expansion of government regulation would be. For the first time, certain thoughts or mental acts would be outlawed. As a result, law-abiding BCI users will be forced to think before they think, regulating themselves in an unprecedented way. This is the immediate ‘legal headache’: BCIs force us to consider the merits of breaking a human right that is fundamental to democratic society and individual liberty in order to avoid criminal loopholes.

There is, however, a second long-term ‘legal headache’. Using the brain’s neurons to establish responsibility forces us to reconsider how we determine responsibility more broadly. How we attribute responsibility is (and has always been) a social decision. In some societies in the past, if an act was compelled or inspired by a divine force, then the law did not deem the individual responsible. In societies where an artist considered the muses responsible for their work, an acceptable waiver of responsibility was the excuse that “God made me do it”.

Today, we consider acting people to be responsible. But this could change in the future, especially if BCIs help to promote neuroscience to the forefront of the legal system. A recent example that highlights the influence of neuroscience on policy is Holland’s adolescent criminal law that came into force in 2014. This law allows those aged between 16 and 22 to be tried as an adult or as a juvenile at the court’s discretion. The underlying rationale is based on neuroscience: Holland’s new system hopes to take into consideration the mental development of defendants when sentencing them. This represents a social shift that sees the brain as the responsible agent.

This shift, which was famously critiqued as “brain overclaim syndrome” by Stephen J. Morse, could have some troubling consequences. The data recorded by BCIs (especially from the amygdala which regulates emotion) offers temptingly persuasive evidence for a defendant’s mens rea and mental state. The question for judges is whether this data is admissible evidence.

A neurocentric legal culture would encourage a judge to admit such evidence. If admissible, a high level of cross-examination is vital to ensure that there is clarity around neuroscience’s technical and interpretive limits. For example, there is evidence that factors like parenting and socio-economic status change the way the amygdala and prefrontal cortex function. The fact that neuroscientific technology is overwhelmingly tested on students from Western Educated Industrialised Rich and Democratic (WEIRD) population means that there is a possible bias in interpreting neuroscientific information. Unquestioned, these limitations allow lawyers to cast uncertain aspersions based on competing expert testimony which could lead juries to jump to false conclusions.

Furthermore, if the brain is considered responsible for criminality, then a reform of the penal system is implicit. The chances of recidivism and the methods with which guilty prisoners are treated — be it regenerative or punitive — would no longer be based on human nature and character. Instead, neuroscience would nuance our understanding of criminality and how to treat it. And the result might not be dissimilar to the Ludovico Technique, a type of psychological treatment that Antony Burgess portrays in his dystopian novel A Clockwork Orange.

Gertrude the pig is just the start of a technology that could rewire the legal norms of responsibility and radically change the legal concept of action. In light of this, policy makers and judges must prepare the criminal justice system for advent of BCIs. There is currently no regulation that is specific to BCI technology in the UK, as the British government acknowledged in a report published in January 2020. That is because the technology is still being developed and there are no clear solutions yet. But one thing is for sure: Elon Musk’s pigs promise to be a complex legal headache for scholars, lawyers, judges and legislators for decades to come.

William Holmes is a penultimate year student at the University of Bristol studying French, Spanish and Italian. He has a training contract offer with a magic circle law firm.

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A furloughed solicitor has turned her lifelong love for baking into a successful cookie business.

Sarah King, 32, founded ‘The Cookie Mail’ when having been furloughed in March, she found herself with a lot more time on her hands. The criminal defence solicitor turned to baking and began sending the sweet treats in letter-box sized packages to family and friends as a way to cheer them up during the period of social distancing and isolation.

“The idea was born out of lockdown and took off so quickly”, said King, who gave up her full-time position, once reinstated, to work flexibly as a consultant with Kingsbury Ellis, a criminal defence firm in North London, so she could juggle baking with briefs.

In the six months since she launched she’s set up her own website to deliver the freshly baked goods across the country. She’s sent out around 1,200 orders so far and says her cookies have gone down a treat with colleagues and clients.

The company also runs a subscription service to get a monthly delivery of cookies to your door, and takes bespoke orders. King told Legal Cheek that she’s received requests from corporate clients wanting to send their staff a selection of cookies in the run-up to virtual Christmas parties. Hodge Jones & Allen placed an order with her last month for an awards ceremony while another law firm has been in touch to bulk-buy cookie boxes.

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She splits her working week between lawyering and baking which sometimes means she has to wake up as early as 4:30am to fit everything in, but remote-working has made this easier. “Some weeks it’s 50/50, some weeks it’s more cookies than law and on others, it’s very little sleep,” she says. “It just depends. Mondays are super busy because that’s when I prepare the orders that come in over the weekend.”

But the criminal solicitor of over ten years says she plans to continue juggling baking cookies alongside her criminal caseload for the time being. “I’m not ready to leave the law completely,” she says. “I’d like to manage both for as long as I can.”

She continued:

“I’ve been a criminal defence solicitor for over ten years and it’s all I ever wanted to do since I was 13-years-old. I would like to establish my business to a point where I can take on staff but also to offer internships to young people that have been caught up in crime.”

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Chris Daw QC’s new book, Justice on Trial, has received a mostly positive reception. He thinks this is due to the public having an appetite for the subject matter which has received a lot of media attention as of late.

The coronavirus crisis has magnified debate around prison reform while the Black Lives Matter movement has thrust questions around racial imbalance in the criminal justice system into prominence.

We’ve hit a sort of ‘reset’ point in society. People have realised that some aspects do need to change and have become, perhaps, more receptive to new ideas like the ones Daw proposes in his book.

The COVID-19 lockdown has made us realise that we can do a lot more remotely than we might have thought. For Daw — a serious crime silk at Millennium Chambers and member of Lincoln House Chambers — remote-working has been “liberating”. He’s not on the go as much, travelling to court or to client conferences, and is able to maintain a sense of discipline around his diary, he tells me when we speak.

More broadly, technology and more specifically, remote monitoring, offers creative solutions to improving the criminal justice system, as Daw addresses in his book. The idea is simple: prison is costly; and by embracing technology, and the so-called “virtual prison”, we can remove non-violent offenders, who let’s be honest, “don’t learn anything useful” in physical imprisonment, and keep track of them as they go about their lives. They could go to work or through education, attend counselling or rehabilitation, and “just be more productive” than they are behind brick walls and barbed wire.

Interestingly, where he doesn’t see tech has much of a place is virtual hearings for criminal trials. “There are far too many low-level cases going through the courts that should be diverted away from the system and dealt with in other forms,” he tells me. “By using online courts for criminal cases you’re enabling a system that is already broken. Why online? Well, why do it at all? It’s a waste of time.” This narrative continues in his book.

Justice on Trial is a manifesto, if you like, proposing radical reform to the criminal justice system. It’s at breaking point, he argues, and to break free of the cycle of crime, perpetuated as much by our criminal justice system as by those behind its bars, we must rip up the playbook and start again. Daw lobbies mainly for three things: we should close all prisons but for a few inmates; legalise drugs (under government control); and put a stop to children being tried in the adult system.

Headline-grabbing, that’s for sure, and an ideology the far-right would have a field day opposing. But make no mistake: Daw is no apologist for violence and antisocial behaviour. His views do not arise from some ‘soft’ liberal perspective. He is only interested in hard facts and what works to reduce crime and prevent recidivism. Daw’s ideas are simple; they are steeped in history and intertwined with anecdotes and lived experience from his many cases and travels.

25 years in the justice system and I can tell you that it's broken.

I can also tell you how to fix it…

…but you might not like my suggestions.

Available now https://t.co/K3CN5ASpyW pic.twitter.com/EBwzzeZbjW

— Chris Daw QC (@crimlawuk) July 28, 2020

All in all, Daw presents a compelling case for reform. His ‘blueprint’ for society will make readers question the dogma they’ve been fed for years. Prison is the “default soundbite” of politicians standing for election, for example, while the ‘War on Drugs’ in modern times is, simply put, political point-scoring. It’s no wonder why then that the Prime Minister, Home Secretary and Justice Secretary top the list of people he’d most like to read his book.

Does he think his ideas will ever become reality? The answer is, sadly (or whichever way you view it), no. He doesn’t see there being motivation beyond the mainstream “lock ‘em up” mentality nor for radical drug reform. But he has faith it will succeed in parts. We’re likely to see the scaling back of drug classification to some extent, he predicts, and maybe even change in our approach to incarceration, particularly among young offenders.

Before he carved out a career in serious crime work, Daw studied and completed pupillage in Manchester. He started “at the bottom of the criminal bar”, accepting instruction on matters ranging from shoplifting to sex work. He soon progressed over a 20-year period to take on serious and organised crime cases, including murder, and numerous forms of financial crime. It wasn’t until he took silk in 2013 that his practice diversified and he began to accept instruction on “an eclectic mix” of ‘general crime’ — cases ranging from robbery to rape.

Daw has represented notorious drug barons through to premier league footballers. He takes on fewer cases now, about four to six each year, in contrast to the 20 or so he’d have on the go as a junior, but they’re far more complex and tend to last much longer. He tells me it took him just over a year to take Justice on Trial from initial concept to print; all while continuing to accept instruction and shoot a BBC documentary.

Though he has spent the years since he took silk doing private work, I was curious to ask whether he would begin his career in criminal law now, as the system is today, public sector cuts and all? The Bar Council, for example, found recently that almost four in ten criminal barristers are unsure if they will still be practising law by the end of next year. “I still would,” he responds resolutely, adding: “Being a criminal lawyer — it’s one of those things that’s either in your blood or not.”

Daw became “hooked” on the criminal law career path as a teen sitting in on crown court cases in the public gallery. “I became addicted to the whole process,” he reflects. It was never about the money, or lack thereof: 20-year-old Daw made just £9,000 in his first year of practice. “Anyone deciding on a career in criminal practice because they’ll make money from it is looking at the wrong job — there’s never been a guarantee of making money at the bar,” he says. What will get students far in this line of work is, ultimately, passion. That alone is what got Daw through what could sometimes stretch to 70 hours a week of work as a junior barrister.

He expresses sadness at the thought that youngsters could be put off a career in criminal law. “We need bright new blood in criminal law from diverse backgrounds,” he says. “I think it’s a real shame people are put off — they should go for it and that’s really important.”

To help them on their way, Daw has, again, alongside his other pursuits, entered the world of ‘vlawging’. Some of the content on his YouTube channel, which has amassed over 12,000 views, by the way, focuses on current affairs (there are snippets of some of the television interviews he has given) but the rest is chock-full with application tips on how to secure pupillage. Daw tells me he even takes video requests and follows these up if he receives enough interest.

So what’s next for Britain’s top criminal barrister? The epilogue to Justice on Trial touches on the dark web and internet of crime, something that Daw says he is fascinated to see play out in the years ahead and how law enforcement adapts to this new underworld of criminal activity. It could be the focus of a sequel, he teases, adding that he does not intend for this to be his last foray in the world of writing. He concludes:

“I enjoyed the process; and it has been rewarding to see the impact the book has had on debate. If I can contribute to just getting people talking about criminal justice and potential reform in a serious way then I consider that to be worthwhile.”

Chris Daw QC is a serious crime silk at Millennium Chambers. His new book, Justice on Trial, is out now.

The post A life of crime appeared first on Legal Cheek.

The banning of the ‘rough sex’ defence for violent crimes is certainly not a conclusive step in the protection of vulnerable victims.

However, it is undoubtedly progress in ensuring perpetrators of heinous crimes are appropriately sentenced. Further, it should help to prevent the unjustifiable ‘secondary victimisation’ of the individual by prohibiting the besmirchment of their character. Importantly, doing so in a manner congruous with the existing legal framework for sex offences and the role of consent.

For context, the ‘rough sex’ defence, also known as the ‘50 Shades of Grey‘ defence, refers to a claim made by a defendant mostly in a case of homicide during sexual activities. A claim stating that the victim had consented to having serious harm inflicted upon them for sexual gratification, so they must lack the intent to kill or cause grievous bodily harm. The veracity of these claims is often contested, as well as whether it should even be a relevant factor worth considering at all.

The claim that a victim’s death was caused from sexual acts gone awry is not new to the courts, despite not being a recognised defence for homicide. Nonetheless, it has been used at least 60 times in the UK, according to activist group ‘We Can’t Consent To This’. Of these killings, it is claimed that 45% have resulted in reduced sentences, altered charges to a lesser offence, acquittal or even no charges at all. In the past decade we have seen a 90% increase of such cases which, hopefully, soon decline. The perpetrators should going forward have commensurate charges brought against them, and sentences imposed on them that befit the depravity of such conduct.

Strangulation to the point of death (among other injuries) that occurred in the, now infamous, killing of Grace Millane show what appears to be the shameless use of the ‘rough sex’ defence employed in circumstances that appear entirely to show the opposite. Perhaps, it is regarded a convenient tool. Dr Stuart Hamilton notes it is hard to disprove a lack of intent since in autopsies there is little distinction. He says:

“If you strangle someone deliberately in order to kill them or if you’ve seen something on the internet and decide to give it a go and it goes horribly wrong, the physical findings aren’t going to be all that different.”

Additionally, to account for its rising relevance, such practices in the bedroom seem to be becoming more relatable to the public who are increasingly participating in these types of conduct. It is unclear why the defence is being used more still; a sentiment echoed by Dr Samantha Pegg, criminal law lecturer at Nottingham Trent University. She says:

“It does seem over the last year or so that there has been absolutely a significant shift and people do seem to be using that excuse of sadomasochism. It might just be that shift in culture and they think a jury might believe them, or in fact it might be true.”

The trial process is unfortunately often traumatic for victims and witnesses in the best of times. Nowhere might this be truer than in victims of harrowing sexual violence who later become victims once more to the ‘sex gone wrong’ defence. Sinisterly, it reframes the crime itself, as though the woman not only brought about her own assault, but that the men helplessly acquiesced to their victim’s request. Inconceivable mental gymnastics are at play here, substantiated by a perverse trawl through their victim’s sexual history.

One may argue that the ban on this defence is an inappropriate delve into the intimate matters of private individuals and what they are free to consent to, that it is wrong to interfere in what happens to allegedly consenting adults. This argument fails when such a violation of the private lives of the victims is necessitated whenever the defence is invoked.

Further, one simply cannot fathom the pain the victim’s families must endure hearing these potentially false assertions on the part of the defendant against their loved one who may no longer be with them. In those cases, the victims have neither the opportunity to defend themselves nor provide their own account. Millane had, without her consent, her alleged sexual disposition speculated upon by the defendant as well as the media who reported all of it. It is highly probable that none of the victims would have approved of these disclosures to the public which will not appear in this article for that reason.

The publicising of this invasive ‘information’ will likely deter victims and their families from speaking out against their aggressors and seeking justice in the courts. There are enough hurdles to clear and sources of pain for families in that position, that we should not be enabling defendants to create more without good reason.

There is sufficient reason for this ‘change’ in the law beyond the moral justifications. The approach taken to determine the extent to which someone can give legal consent to harm is one of category-based exemptions. An example of exemptions made societally can be found in R v Barnes which demonstrated that engaging in some sports gives implicit consent to the risk of harm even including grievous bodily harm.

The main authority on consent to harm in sexual matters is R v Brown that states that consent cannot be given lawfully in sadomasochistic activities which do not form an exemption. This is generally the approach taken by the courts though it is fair to say that cases like R v Wilson that seem to be diametrically opposed muddy the waters.

Accordingly, Dr Pegg believes the newly passed bill would change virtually nothing, merely consolidating the existing position of the courts.

“At the moment it’s no defence at all to say that person is consenting, because of Brown. People certainly can’t consent to being killed, they can’t consent to injury which amounts to actual bodily harm if it’s in the course of S&M.”

The provisions of the newly passed bill, the Domestic Abuse Bill 2019-21, regarding the ‘rough sex’ defence may consolidate the existing common law position, but what of its legitimacy in relation to relevant statues?

Unsurprisingly, we find our focus primarily on the Sexual Offences Act 2003, particularly considering its aims. A Home Office review in 2000 outlined many objectives that gave rise for the need for the statute. One principle worth noting is that:

“[T]he criminal law has a vital role to play … where society decides that children and other very vulnerable people (including victims of sexual abuse) require protection and should not be able to consent. It is quite proper to argue in such situations that an adult’s right to exercise sexual autonomy in their private life is not absolute.”

As important as this principle is the statement that the statute was brought about to give clarity to the “patchwork quilt of provisions ancient and modern that … [lack] coherence and structure”.

The success of the statute in achieving these aims is disputed but the legitimacy of such goals are not. The proposed changes to the laws of consent in the new bill should make progress in pursuit of these aims. The application of the ‘rough sex’ defence has consistently been contentious, and laws that settle a conflict in the common law should be welcomed. Certainty and transparency are key principles to uphold in maintaining the rule of law.

Critics of the bill may argue that if real consent was given by the victims and the tragic results were genuinely accidental, then the defence is reasonable and that it is a mitigating factor relevant at least in sentencing. However, whether this is agreeable is not that pertinent as a question of current law. The position has been, for over 25 years, that consent for such activities is not recognised legally.

Therefore, the question that ought to be posed is; given the current common law position, should consent of the victim be an admissible factor in cases of sexual conduct that results in serious harm?

From this reformulation of the question, it seems clear that it could not logically be found to be a relevant factor in one’s defence unless the underlying position on consent to harm as part of sadomasochistic activities were to change.

Until then, the bill provides a logically coherent and clear resolution; without any consensus families and victims have suffered nothing short of smear campaigns, and many repugnant crimes have not been met with appropriate charges or sentences.

Few argue that the bill will settle disagreements on consent in law, but fruitful discussions cannot begin where there is no agreed starting point. I hope and believe that this proposed change, due to be debated in the House of Lords still, will be the first step in the right direction to protecting victims and ensuring justice is served.

Haitham Salih is a first-year law student at Lancaster University. He has an interest in commercial law.

The post ‘Rough sex’ defence ban: A step in the right direction appeared first on Legal Cheek.

Both Trevor Belle (61-year-old taxi driver) and Belly Mujinga (a 47-year-old railway worker at Victoria Station) tragically lost their lives due to coronavirus in April this year. Before contracting the disease, both Belle and Mujinga had been spat at whilst working during the pandemic.

Regarding Mujinga’s case, the British Transport Police stated that the attack did not lead to her death. The force claimed that no action would be taken against the man behind the attack, based on the negative antibody test he presented after the incident. They concluded that there was “no evidence to substantiate any criminal offences” therefore the matter would not be referred to the Crown Prosecution Service (CPS).

However, the CPS has since asked to review this police investigation.

The perpetrators in both Belle and Mujinga’s cases committed common assault by battery. Battery is the application of unlawful force upon another and falls under section 39 of the Criminal Justice Act 1988, carrying a maximum sentence of 12 months. Case law has established that this offence covers incidents such as spitting, pushing, and slapping.

Whilst these perpetrators have not been prosecuted, other defendants who spat at emergency workers during the pandemic have been.

Brandon Wallace was sentenced at Barkingside Magistrates’ Court for assaulting two emergency workers; he spat at police officers whilst claiming he had the virus. George Crean has also been sentenced to 12 months in prison, for removing his face mask to spit at an officer during his arrest.

In cases like Belle and Mujinga, for many, a summary offence does not feel like justice. Therefore, this short article will question whether the law can go further and whether spit attacks during a global pandemic could constitute an indictable offence.

Constructive manslaughter (also known as ‘unlawful act manslaughter’) is a form of involuntary manslaughter. It is involuntary as an unlawful killing has taken place, but the defendant lacks the mens rea (the guilty mind) for murder.

There are four elements to prove this:

1. There must be an unlawful act

2. The unlawful act must be dangerous

3. The act must cause death

4. The defendant has the mens rea of the unlawful act

As previously established, the unlawful act here would be a battery.

The prosecution would then have to persuade the jury that the act committed was dangerous. In court, this is an objective test, based on what a sober and reasonable person would regard as giving rise to some harm (albeit not serious harm) — held in the case R v Church.

Pre-pandemic spitting would not be dangerous, however, given the current climate a jury may decide that in these unprecedented circumstances it is.

In passing the Coronavirus Act 2020 the government laid down legislation highlighting the dangers of the virus. Under this Act those breaking the rules (e.g. excessive travel) would be sanctioned, reinforcing the severity of COVID-19.

The novel virus is a global threat and, in the UK, it has now killed more than 40,000 people; the second-highest death toll in the world. COVID-19 also transmits through particles emitted from the respiratory tract, which shows actions such as spitting and coughing present a risk of it spreading, as a result the government guidelines have suggested we stay two metres apart from people outside our households.

Furthermore, people from the BAME (Black, Asian and Minority Ethnic) community (like Belle and Mujinga) are at greater risk as they are twice as likely to die from the virus.

Therefore, a reasonable and sober person would know that spitting at someone, who belongs to a high-risk category, knowing that the virus has deadly effects, would give a risk to some harm.

The prosecution then has to show causation, meaning the unlawful act has caused the death. This limb is more challenging.

The force found no connection between Mujinga’s death and the act, based on the fact that the perpetrator did not actually have coronavirus at the time he spat on her (his antibody test was negative). However, the Centre for Disease Control (CDC) has warned that antibody tests for COVID-19 may be wrong “up to half of the time”. CDC also states on their website “test results should not be used to make decisions about returning persons to the workplace”.

It seems difficult to comprehend if we are unable to use this test to decide trivial matters such as going to work, how the police can conclude criminal liability from it.

Yet, though the flawed test does not disprove a connection between the two, it remains unclear whether the spitting was the solely attributable cause of Mujinga’s death. If the antibody test were inaccurate it would remain difficult to show this was the transmission which caused her to catch the virus. As a key worker with inadequate Personal Protective Equipment (PPE), she would have been exposed to other people.

So, if the perpetrator had tested positive, would a prosecution for manslaughter have been brought?

Still very unlikely, because without being able to give scientific evidence, it would be impossible to prove beyond all reasonable doubt that the perpetrator’s spit was the exact transmission.

However, in circumstances where a victim was not exposed to, or in contact with other people after the incident, causation could potentially be proven.

The final element would be to show that the defendant has the mens rea of the unlawful act committed. For battery, this is intention or recklessness. Spitting is an intentional force against a person (or at the very least, reckless). It does not matter that a defendant does not foresee death.

If a case similar to Belle or Mujinga’s were to arise after the pandemic (and causation could be proven) then the law of constructive manslaughter would have to consider whether intentionally passing/attempting to pass on COVID-19 could satisfy this.

For some, this may seem implausible, yet in other Offences Against the Persons, diseases have been incorporated through common law.

In R v Dica judges amended the law to include the reckless transmission of a disease (HIV) with intent to cause harm constituted grievous bodily harm (GBH). This precedent was later followed and extended in Daryll Rowe’s case to incriminate the deliberate transmissions of HIV; he essentially used the disease as a ‘weapon’.

Although this string of case law relates to a different offence and disease, common law has shown some flexibility and a willingness to evolve to recognise the severity of harm diseases can cause.

It will, therefore, be interesting to see whether the law develops to address issues after the pandemic where COVID-19 has been used to intentionally spread or attempt to spread the virus, causing the death of a person.

Anna Hayes is a second-year law student at the University of Birmingham.

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Dominic Cummings undertook a journey from his home in London to his parents’ residence in Durham on the 27 March 2020.

After trying unsuccessfully to weather a media maelstrom concerning those (and subsequent) movements, Cummings took to a solitary desk within the picturesque grounds of Number 10’s Rose Garden yesterday to have his say. The following is a (partial) timeline of his movements:

27 March 2020: Journey from Cummings’ London home to his parents’ home in Durham. At this point, neither Cummings nor his wife were displaying symptoms associated with coronavirus (but his wife had other symptoms.

28 March 2020: Cummings developed symptoms of coronavirus.

13 April 2020: Return journey from Durham to London.

Between those dates there were various events involving Cummings and his family, including the hospitalisation of his four-year-old child, a trip to the grounds of Barnard Castle to test his eyesight and a sojourn in some woods. The question to be considered here, however, is whether that initial journey (the Durham journey) on the 27 March 2020 — some 260 miles, a five-hour drive — was lawful.

Sat comfortably amidst the rose-red background of Number 10’s garden, Cummings essentially offered two explanations; firstly, concern that he and his wife would not be able to provide effective care to their four year-old child and, secondly, because his “London home had become a target… for harassment”.

The regulations

The relevant law is to be found in The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. That takes the form of a UK Statutory Instrument (SI), made pursuant to section 45 Public Health (Control of Disease) Act 1984. The regulations impose, inter alia, restrictions upon the operation of business and movement. Part 6 decrees a prohibition in terms that, “during the emergency period, no person may leave the place where they are living without reasonable excuse”. The regulations came into force on the 26 March 2020.

Reasonable excuse

The question, then, is what constitutes a reasonable excuse. Part 6(2) specifies a list of 12 non-exhaustive examples thereof. At first glance, ‘Cummingsgate’ does not fall into any of those. It need not, however. We must examine, then, the two explanations that have been provided.

Childcare

This justification hinges upon the need for assistance with childcare for the Cummings’ son in the event of the incapacitation of both parents. Parents equals plural. Cummings seems to have feared incapacitation such that it would render the provision of effective childcare difficult (or even impossible). There are several points to consider:

1. Government guidance specifies that:

“If you live with others and you are the first in the household to have symptoms of coronavirus (COVID-19), then you must stay at home for at least 7 days, but all other household members who remain well must stay at home and not leave the house for 14 days… for anyone else in the household who starts displaying symptoms, they need to stay at home for at least 7 days from when the symptoms appeared…”

2. Given that the government has repeatedly assured the British public that the virus will be a mild disease for the majority of the infected, why did Cummings form the view that he (and presumably his wife) would be impacted to such an extent that incapacitation would surely (or even likely) follow?; and

3. Cummings acknowledged that he did not seek the assistance of friends in London for childcare, as he did not want to expose them to a potentially deadly virus when his 17 year-old niece in Durham had offered her assistance. Would exploring options closer to London, at least in the first instance, have been a reasonable precursor to driving some 260 miles?

It is difficult to see how the Durham journey was essential at the time it was made, at least insofar as the provision of childcare was concerned. Whilst one can sympathise with a parent’s anxieties, it must be remembered that the legislation was introduced in response to exceptional circumstances where the government demanded sacrifices of the British people — and in response to which no doubt the vast majority made those sacrifices.

One must assume that Cummings did not have access to a crystal ball prior to undertaking the Durham journey on the 27 March 2020. He could not have known, therefore, if he would/had contract(ed) the virus, and, if he did/had, how bad it would be. The travel was clearly pre-emptive. Whilst that does not render it unreasonable per se, it may well be an important factor.

Harassment target

The suggestion is that the Durham journey was intended to escape the intolerable hostility of which Cummings — and his family — were a target. There does not seem to be any suggestion that the tempo of hostility was greater on the 27 March 2020, than it was, say, on the 26 March 2020, or the 27 February 2020, or indeed any other date. So, did that hostility just happen to reach a crescendo on the same day that the welfare of his child led him to make the five-hour drive?

It is difficult to see how this explanation, without further clarification, constitutes a reasonable excuse. Did a particular event increase Cummings’ fear to hitherto unacceptable levels and compel him to essentially flee? If so, what was it? Was it reported to the police? If not, why not? The devil will be in the detail and detail, if Cummings’ reticence has been anything to go by so far, will likely not be forthcoming.

There seems to be at least a prima facie case that there has been a violation of the regulations insofar as the Durham journey is concerned, and that is saying nothing about the various other escapades that seem to have ensued once there; undertaking a 60-minute driving test may well raise more than a few legal eyebrows, for example.

The future of ‘Cummingsgate’, and particularly any prosecutorial response, clearly remains to be seen. Whilst contemplating a trial may well have a whiff of prematurity, Cummings would bear an evidential burden in explaining his actions. One would presume that he would give evidence on his own behalf to that end. One can also speculate as to his performance as a witness but, judging from his performance at the Rose Garden matinee, he is certainly reminiscent of many a defence lawyer’s bread and butter ‘punter’.

Syam Soni is a criminal barrister at 4BB Chambers and Broadway House Chambers.

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Undoubtedly, the coronavirus pandemic has caused rapid change to numerous aspects of life as we know it, touching the legal sphere in numerous ways.

If there is a public inquiry into how the pandemic has been handled, it is likely to include the availability and supply of personal protective equipment (PPE) to those working on the frontline, especially NHS staff or health and social care workers.

Since the COVID-19 crisis reached the UK the government has been under increasing pressure to accelerate the supply of PPE to those working on the frontline, addressing a fear that these people are most at risk of catching, spreading, and of dying from the novel virus.

There is a growing concern among health workers as to whether they are being put in harms way in their place of work due to the lack of PPE, and some have expressed their unwillingness to carry out their duties because of the heightened risks. The law relating to this is set out in the Health and Safety at Work Act 1974, which places an obligation on employers to provide a safe place of work.

One medic couple, Dr Meenal Viz and her husband Dr Nishant Joshi, have already instructed solicitors who have written to their trust setting out their claim (pre action protocol, as is required of them under the law) before taking out legal action. This is likely to be one of many.

For health professionals who have already lost their lives after contracting COVID-19 a more serious question which needs addressing now is whether there should be an investigation carried out under criminal law and charges brought against individuals or trusts for manslaughter (the unlawful killing of an individual). These investigations are the responsibility of the Health and Safety Executive (HSE).

The focus of HSE at present is on helping the government’s response, rather than investigating breaches from employers who may have failed in their moral and legal duty to limit their employees’ exposure to coronavirus.

Yet, the potential for future litigation and prosecution of those who may be considered to have failed may be numerous. In this short piece we look at whether a successful prosecution could be instigated against the NHS trusts in their failure to provide PPE to NHS and healthcare workers on the frontline for manslaughter.

To try to improve the UK’s situation over the past few weeks the NHS Supply Chain has delivered 397 million pieces of PPE equipment including FFP3 masks (masks which offer advanced levels of protection against dust, fumes or infection), surgical masks and other PPE equipment to NHS trusts and other healthcare settings. A hotline for NHS trusts to order PPE whenever they need it has also been introduced.

The World Health Organisation (WHO) has since confirmed that the UK’s new guidance is consistent with the highest levels of protection in the world.

In announcing that the distribution of PPE would be stepped up further (10 April) the Health Secretary Matt Hancock caused a backlash in suggesting that NHS workers have been using too much PPE, which may be a reason for the shortage. Hancock claimed “there is enough PPE to go around, but only if it is used in line with our guidance. We need everyone to treat PPE like the precious resource that it is”.

The Royal College of Nursing openly rejected this. Dr Jenny Vaughan, of the Doctors Association UK also told Sky News that “we absolutely acknowledge that things have improved, but there are still many, many gaps and we can’t afford gaps when it comes to people’s lives”. As well as this, a member of the British Medical Association’s council, Dr David Wrigley, claimed that over 50% of doctors had responded to its survey saying they do not have the supplies they need in the first place.

The lack of PPE available to NHS staff and other healthcare workers, could potentially be a cause of death for those fighting this ‘war’ against COVID-19. Consultant urologist Abdul Mabud Chowdhury died aged 53, on 8 April, more than two weeks after first being admitted to hospital. Five days before his death he took to Facebook to warn the Prime Minister about the lack of PPE, appealing for “appropriate PPE and remedies” to “protect ourselves and our families”. John Alagos also died from the virus, the youngest nurse known to have died of COVID-19 in the UK, at the age of 23. His mother has since claimed he had not been wearing the right protective clothing at work after treating COVID-19 patients in 12-hour shifts at Watford General Hospital.

We have seen a ‘herculean effort’ being exerted in efforts to increase the availability of PPE recently. However, should more have been done sooner? And should we be holding anyone accountable for the death of those NHS/healthcare workers before PPE was stepped up?

The Corporate Manslaughter Act 2007 was a landmark Act introducing into law the possibility for finding companies and organisations liable and guilty of manslaughter as a result of serious management failures which resulted in a grossly negligent breach of a duty of care.

For a successful claim, the prosecution must prove the following three things:

(i) that the defendant is a qualifying organisation,
(ii) who owed a duty of care,
(iii) and that there was a gross breach of that duty (by the organisation) in the way in which its activities were managed/organised.

The management would need to be seen to be a substantial element in the breach and the gross breach of the organisations duty caused, or significantly contributed to the death.

Section 11(1) of the 2007 Act provides that specified government bodies can be prosecuted for corporate manslaughter, contrary to the exception that usually ‘Crown bodies’ cannot be prosecuted for criminal offences.

Schedule 1 lists the government bodies to which the offence applies, which includes the major departments of central government such as the Department of Health. The Department of Health and Social Care (DHSC) is a department of Her Majesty’s Government, responsible for government policy on health and adult social care (in England). Public bodies such as local authorities and NHS trusts, are bodies incorporated by statute (s.25 para 15) which can also be liable.

Sections 3-7 of the 2007 Act specify exceptions from liability relating to actions which exempts public body liability in public emergencies, exempting “decisions of a public authority in relation to issues of public policy (such as the allocation of public resources)”. This equally applies to policy decisions made by the central (or local) government, who are also exempt in these circumstances.

Due to the pandemic being a global issue, this ‘emergency’ exemption is something the trust would seek to rely upon.

Given the knowledge and advice our country gained from the preceding Italian experience and other countries around the world, we were behind the curve and by all accounts we were slow to take action and prepare for what was to come. There is much information as to what was known and what should have been done including mass testing and testing of healthcare professionals to stop them spreading the virus to colleagues. What was foreseeable weeks and months before it reached our shores, is wholly different to an emergency which was unknown before it was identified.

The question of whether this amounted to gross negligence is something which is a live issue and needs to be addressed as a matter of urgency by the HSE once we regain a sense of normality. Only then can criminal charges be contemplated.

The government has recently announced an inquiry into the disproportional impact the virus is having on obese, male and black, Asian and minority ethnic (BAME) communities following the higher number of deaths in proportion to those from white backgrounds, however the terms of reference do not go so far as dealing with the whole issue of the lack of PPE and testing or whether criminal charges should be brought.

Anna Hayes is a second-year law student at the University of Birmingham. Khadim Al’Hassan is a criminal barrister at Park Square Barristers.

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