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Using email and LinkedIn, I have been in contact with various legal professionals, authors, and philosophers to discuss the recent industrial action taken by barristers across the UK. It’s important to spell out the necessity of these strikes and how unsustainable the criminal justice system has become.

Many barristers are observing what they describe as “days of action” or a strike. Although, when discussing this with Alan Robertshaw (an author and barrister), he believed the term “strike” wasn’t necessary and stated, “it’s people withdrawing their labour unless the ’employer’ is willing to pay them properly”.

This involves barristers refusing to partake in legally aided cases. This is due to years of underpay which has resulted in a quarter of the workforce leaving the criminal profession. The average income for a criminal barrister working a 70-hour week is £12,200 in the first three years. Anyone can see that the notion a barista would likely be on a higher salary than a legally trained barrister is ludicrous.

A large problem is that criminal legal aid barrister’s fees are fixed and include all preparation work completed in the lead-up to a trial, regardless of how many hours they have contributed. To quote a figure sourced from LinkedIn, “A murder case… for which a barrister can only claim £2,575 + VAT… is likely to be years of work!” Surely, we should be incentivising full preparation and research for something with such heavy consequences?

Public opinion

My personal view is that the problem is largely caused by a lack of public understanding surrounding the criminal justice system. Many take the view that it doesn’t affect them as they ‘aren’t a criminal’ or think ‘surely less barristers are a bonus to society as it means fewer criminals being acquitted’. Furthermore, there is also a stereotype that ‘fat cat’ lawyers are already earning too much. However, this couldn’t be further from the truth. The disparity between pay in different areas of law is staggering. The strikes aren’t attempting to increase the pay of the civil lawyers working for wealthy corporations in large commercial contracts. They are aiming to force the government into properly supporting those who look after the most vulnerable and under-privileged in society, which it must be noted, are frequently wrongly accused.

In a discussion with Dharmendra Toor, a barrister, I aimed to verify the truth of my above claim. He supported my opinion and responded with, “We are striking for the sake of the junior juniors (those starting out) who can no longer survive. I am relatively experienced now, but barristers of all call, including those in silk, are unified in the belief that if we fail to act now, there will, without a doubt, be no sense of justice in the not-too-distant future”.

I raised this issue of poor public understanding with Stephen Davies, a criminal solicitor at Tuckers Solicitors. He said: “I think legal education amongst the public is poor. Our laws are made by parliamentarians and the courts; given both politics and law impacts on everyone within society, I remain surprised those subjects are not mandatory within the national curriculum. I suspect many people will not think about the prospect of being caught up within the criminal justice system because ‘it doesn’t affect them’, but the reality is, crime does not discriminate — you could be a victim of crime, or falsely accused of a criminal offence. If the situation arises, the public is entitled to access to justice and representation.”

“The problem with criminal justice today is that it has been cut to the bone,” he continued. “Publicly funded defence lawyers are reliant on the rate of remuneration that is determined by government. And that rate hasn’t been increased since the 1990s — but it’s worse than that. The rates have been savaged by cuts. Consequently, access to justice and the liberties of England are at risk — we now don’t have enough judges or defence lawyers. This is why lawyers are taking industrial action. This is the last stand. The backlog in the criminal courts is now so severe as a result of underfunding prior, during and thereafter the pandemic, that delay is rife — it has been baked into the system, and the only reason it hasn’t collapsed is due to goodwill from the profession, and an artificially suppressed level of activity. In other words, a reduced level of work entering the system; we simply do not prosecute anywhere near the volume of crime we once did. This means we risk miscarriages of justice on both sides of the spectrum — innocent people risk being convicted, and the guilty walk free. There couldn’t be a better time to be a criminal.”

In response to Stephen’s powerful statement, I proposed the theory that if this was an issue with the NHS, the level of public support would be considerably higher. However, it is a sad truth that the public’s legal knowledge is often inadequate and doesn’t allow them to grasp the importance of a fully funded criminal justice system in a functioning liberal democracy.

I then posed this hypothesis about the NHS to Sarah Magill, a criminal barrister and director of Azadi Charity. Her response stated: If the public knew how bad the criminal justice system had become, they would be horrified. It is painful explaining the problems and the delays to witnesses who are facing the system for the first time.” She concluded the lack of public knowledge could be at least partly because the “government’s brief and the media have historically not reported favourably about the CJS [criminal justice system] or those who work inside it”. As a result, she said, “there is public apathy towards us and a general disinterest in exploring the issues facing the system we work”.

Careers for the wealthy

This lack of funding has resulted in the criminal justice system becoming a career for the wealthy. Only barristers with other sources of wealth (such as wealthy parents) will be able to sustain their career. If not resolved, we will continue to see droves of junior barristers relocating to other careers that they don’t carry the same passion for. However, who can blame them? Barristers’ incomes have decreased on average by 28% over the past two decades, with devastating consequences.

I asked Oliver Kirk, a barrister at 5 St Andrews Hill, about this notion of criminal law becoming a playground for the wealthy. He said: “I do agree with this. There is already a two-track system where those with the means to pay for their own defence have a better chance than those who rely on legal aid. However, with defence fees for solicitors and counsel effectively frozen for the last quarter of a century, there is now a real risk of injustice as the defence simply do not have the means properly to investigate and present their cases.”

This is clearly a far from sustainable method of maintaining a functioning criminal justice system. Conclusively, if we wish to ensure that the innocent are rightly acquitted and the guilty properly punished, then there need to be changes in the legal aid scheme and its level of funding. Having spoken to many of the barristers partaking in the days of action, I can assure you they don’t enjoy doing this. However, they also understand the necessity of these strikes to ensure the future of the criminal justice system. I end on a quote by a personal hero of mine, Martin Luther King Jr. “Injustice anywhere, is a threat to justice everywhere.”

Jakob Fletcher-Stega is a third year law student at Liverpool University, creator of the Jakob Student Advice blog, and an aspiring barrister. He can be found on LinkedIn.

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At the death of George Floyd, the world stood in silence and solidarity. Social media plunged into darkness. The scorn of racial injustice confronted us once again. Every few decades a prodigious three-word slogan is born, protests erupt, and leaders rise to the challenge of addressing racial inequality. There is no doubt that we have come a long way but still, not quite far enough.

“No free man shall be seized or imprisoned […] except by the lawful judgement of his equals or by the law of the land.”

Article 39 — Magna Carta, 1215

The Magna Carta although intended for English nobility paved the way for our current laws on human rights and equality. Almost a thousand years on and the social landscape of the United Kingdom has changed tremendously and despite our achievements, several challenges are yet to be overcome. Laws have been passed, reports written, and commissions established yet the idea of utopian equality remains out of reach.

The problem

The purpose of the Criminal Justice Act 1991 is to “avoid discriminating against any persons on the grounds of race, sex or any other improper ground” and since its passage successive governments have published data on ethnicity and the criminal justice system.

In 2017 David Lammy MP published the Lammy Review, an independent review of the treatment of, and outcomes for, Black, Asian, and Minority Ethnic (BAME) individuals in the criminal justice system.

The Lammy Review found evidence of bias and discrimination against people from ethnic minority backgrounds in the justice system in England and Wales.

In 2019 a Black person was 4.3 times more likely to be stopped and searched, over three times more likely to be arrested, three times more likely to be prosecuted, 2.8 times more likely to be convicted and 3.3 times more likely to be given a custodial sentence than a White person.

Statistics and facts from the police

The Lammy Review found: “In particular, Black men were more than three times more likely to be arrested than White men, whilst Black women and Black boys were also significantly more likely to be arrested than White women and boys” and “those from BAME groups were three times as likely to be stopped and searched as those who are White. In particular, those who are Black were over six times more likely to be stopped.”

Consequently, cases progressed through the police, CPS, courts and prison system are skewed unevenly from the first stage of the process — with the police. The alarming stop and search statistics and arrest rates around the UK have been apparent for years and the improvement of trust in the criminal justice system requires change at the stage of police investigation.

Black people are clearly pursued more by the police than their White counterparts. This leads naturally to more arrests, more convictions and more custodial sentences.

A solution to the problem is to scrutinise the apparent over-policing of BAME communities. The Independent Office for Police Conduct which oversees the police complaints system in England and Wales has pledged to launch “race discrimination as a thematic area of focus to establish the trends and patterns which might help drive real change in policing practice”.

Currently the majority of complaints about the police are dealt with by the police force itself. The IOPC intends to investigate more cases where police forces are alleged to victimise BAME people but the IOPC will not be able to independently assess the nearly 32,000 complaints a year. These complaints should be dealt with independently to effectively discourage discriminatory practices and ensure accountability.

Another proposed solution to the problem was a more diverse and representative police force. In 1999 the Stephen Lawrence Inquiry (also known as the Macpherson Report) was published. It set targets for police forces around the UK to have the same proportion of BAME officers in their ranks as the communities they serve. Over two decades later the police is nowhere near reaching those targets and BAME people remain underrepresented in the police force.

Statistics and facts on sentencing profiling and the legal profession

More than 13% of the general population in the United Kingdom identify as being from a BAME background, yet BAME people account for a quarter of our prison population (Lammy Review, 2017). There are several reasons for this; one of which is the often-reported lack of trust BAME people have for the judiciary.

Only 8% of judges in the UK are of a BAME background, and with a BAME population of around 13% in the UK, the judiciary has repeatedly been slammed as being unrepresentative of society. A diverse judiciary brings equality of opportunity, democratic legitimacy and a substantive difference to decision making. An unrepresentative judiciary undermines the trust in our justice system. This is especially so when prison sentences for BAME people are 240% higher than their White counterparts for drugs offences (Lammy Review, 2017).

In order to promote judicial diversity, there is a need to support applications from a wide and diverse pool of well-qualified candidates from the legal profession. Steps are being taken to increase diversity such as the Judicial Work Shadowing Scheme which offers eligible legal practitioners, who are considering a career in judicial office, an insight into the work of a judge.

The legal profession which comprises both barristers and solicitors is the major source of the judiciary of the future. Currently, the proportion of BAME practising lawyers in law firms in the UK is estimated to be around 17%, far higher than the percentage of BAME people in the UK (13%) and the Ministry of Justice (MoJ) expects this to translate into increased diversity in the judiciary.

The MoJ should endorse measures such as publicly-stated targets for selection bodies, with monitoring and reporting on progress to the Justice Select Committee and time-limited quotas as recommended by the Lammy Review. The Judicial Diversity Committee was established to ensure greater diversity and the judicial office is working with the Judicial Appointments Commission to review and improve selection processes.

Further to current measures, there is a need for sustained training on both conscious and unconscious bias in the judiciary to reduce disparities in sentencing. Currently, judges and magistrates do receive training and guidance in unconscious bias from the Equal Treatment Bench Book concerning all minority groups.

Possible solution: ethnicity pay gap reporting

Gender pay gap reporting is now mandatory under the Equality Act 2010 and is having a gradual impact on decision making and career progression.

Ethnicity pay gap reporting should also be a mandatory requirement as data suggests BAME people currently hold just 4.6% of the top management roles. Greater diversity in the top positions will be a natural consequence of diverse recruitment however change in the senior parts of professions will take time. The top positions in many fields including the criminal justice system remain unrepresentative of society.

Possible issues with mandatory reporting

Mirroring an approach such as gender pay gap reporting presents its own issues. Firstly, there are currently no penalties for failing to report gender pay gap data and companies with less than 250 employees are exempt. Attempting to ensure diversity in the majority of law firms and chambers would be difficult if organisations with less than 250 employees are to be exempt.

Secondly, there could be some trouble in setting target figures given BAME populations aren’t evenly distributed geographically. This could be overcome by establishing specific targets by area or location.

Finally, ethnicity is largely self-reported and the term BAME is a wide term which encompasses a huge variety of people from many different ethnic backgrounds. Effective reporting of specific ethnicities would be difficult and introducing mandatory ethnicity reporting to the Equality Act 2010 would have its challenges. Legislating on this issue could be extremely effective in improving equality but it can equally be drafted so lazily as to be obsolete. Regardless of the challenges it is proposed to be a necessary step towards greater diversity in the criminal justice system and in society generally.

Increasing diversity, ensuring thorough education throughout the criminal justice system about the harms and effects of racial bias, improving social diversity and effective accountability are all necessary solutions.

The problem is circular, racial stereotypes drive inequality and inequality fuels and helps entrench stereotypes. Solutions can only be properly effective if the problem is confronted from more than one direction.

Fighting inequality is an uphill battle. The statue of Lady Justice stands above the Central Criminal Court in London, she is the personification of justice and fairness in the UK. She doesn’t (like her counterparts around the world) wear a blindfold. Her message is clear: justice, fairness and impartiality should not require closed or covered eyes.

Jalal Chohan is an aspiring barrister and a paralegal in criminal law. He graduated in law with management from Aston University and is now studying the bar course at The University of Law in London.

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On 14 September the most live threat to our fundamental right to protest in recent decades, the Police, Crime, Sentencing and Courts Bill (PCSC), will have its second reading in the House of Lords. The threat is threefold: the introduction of noise as a trigger for unlimited police-imposed conditions on protest, a new statutory offence of public nuisance, and the beefing-up of penalties for those in breach of the rules. Further, the evidence points to the fact that the bill is the product of a government attempt to clamp down on the freedom to protest.

Introduction of a ‘noise trigger’

Currently, under the Public Order Act 1986, the police have the power to impose conditions on public assemblies which can be triggered by an officer’s reasonable belief there may be serious damage to property, serious public disorder, or serious disruption to community life. The PCSC proposes a fourth, broader trigger for this power: noise. The so-called ‘noise trigger’ allows police to impose conditions on public assemblies if an officer reasonably believes that the noise it produces may “result in serious disruption to the activities of an organisation which are carried on in the vicinity”, or “may have a significant and relevant impact on persons in the vicinity” where this impact includes causing “serious unease, alarm or distress”.

The threat here is the introduction of an alarmingly low threshold for triggering police control of protests: noise is an almost unavoidable, and often desirable, by-product of protest. Just as alarmingly, under the PCSC the meaning of this vaguely worded trigger (as well as the meaning of an existing trigger: “serious disruption to the life of the community”) is controlled, through Regulations, by the Home Secretary. The power to make such regulations (which are a form of secondary legislation) hands the government the power to clarify “serious disruption” and potentially target the effects of protests of specific groups and, more generally, facilitate greater control over acceptable public expression.

The PCSC also hands the police more control over protests when their powers are triggered, expanding their previous control over place, maximum number, or maximum duration of an assembly (S.14(1) POA 1986) to allow them to impose any conditions that the senior officer on the scene regards as “necessary to prevent such disorder, damage, disruption or intimidation”. Police would also be permitted to take action against “one-man protests”. Such changes, in the words of Professor David Mead, render protest “far more in the gift of the police”, something which, as he points out, events such as police actions at the Sarah Everard vigil should highlight the danger of.

As the Court of Appeal held in R (Singh) v CC West Midlands Police (2006), protest “becomes effectively worthless if the protestor’s choice of ‘when and where’ to protest is not respected as far as possible”. Under the PCSC, it is plainly not.

Statutory offence of causing public nuisance

The PCSC does away with the common law offence of public nuisance and replaces it with a broad statutory offence involving any “act that, intentionally or recklessly, causes serious harm to the public or puts them at risk of such harm”. Here, “serious harm” includes where a person suffers “serious annoyance, serious inconvenience or serious loss of amenity”, and the offence would also include “conduct which endangers the… comfort of a section of the public”. Further, statutory public nuisance would carry an extremely high maximum sentence of ten years, given that when the common law offence was used to target protestors, such as in Roberts, Blevins & Loizou v R (2018), the court quashed the use of custodial sentences as “manifestly excessive”.

Given that many protests “obstruct” the public, cause “annoyance” or “endanger the… comfort of a section of the public” (indeed, this seems to be the whole point of protest), the offence allows for the criminalisation of close to the full range of public demonstration as public nuisance. Not to mention, the notion of being “criminally annoying” demonstrates the intolerance the government has for those they regard as “uncooperative”. Further, as Protest Matters points out, the PCSC revives the “almost… redundant” offence of public nuisance. Given the clear contempt the current government holds for protest, it does not seem a stretch to suggest that the revival of this offence (and in such a broad form) is simply designed to equip police and prosecutors with greater ability to crack down on “dreadful” BLM protests and those “uncooperative crusties” and “importunate nose-ringed climate change protestors” at Extinction Rebellion.

In the words of Lord Justice Laws, quoted in evidence by Adam Wagner at the committee stage of the PCSC’s progress through parliament, “rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them”. Protest will inevitably be annoying to someone. To allow this to be a reason to clamp down on one of the most important engines of social progress shows profound arrogance and intolerance. It is these two characteristics that are the true hallmarks of this bill.

Increased penalties

The PCSC proposes heavy increases for a number of penalties for actions conducted by protestors. Most prominently, the consideration of monetary value when sentencing the “destroying or damaging [of] a memorial” has been removed, allowing the imposition of a maximum of ten years imprisonment (under the Criminal Damage Act 1971) in all cases. As has become the pattern, the PCSC defines “memorial” broadly so as to include anything “erected or installed on land” as well as “any moveable thing (such as a bunch of flowers)”, with a “commemorative purpose”, placed on it. This commemorative purpose can be for persons, animals (both living and dead) or events. As such, the perpetrator of almost any level of damage (e.g. graffiti) to just about any statute, and many placards, signs and even flowers, is liable to ten years imprisonment.

It is hard to regard this change as anything other than a direct response to recent movements against statutes commemorating those involved in the slave trade and, in particular, the toppling of an Edward Colston statue during a BLM protest in Bristol. Yet again, we see the bill for what it is: a politically motivated clamp down on movements with which this government takes issue.

While many Tory MPs have pointed out that ten years is a maximum, the removal of the notion of punishment proportional to damage (which seems the only sensible way to punish) leaves the government open to pursue punishment according to enmity. Garden Court Chambers highlights how governments have been traditionally willing to vigorously pursue the maximum charges and penalties available when prosecuting hostile activists, such as the Stansted 15 who were charged under an act designed to suppress terrorism at airports with a maximum sentence of life-imprisonment. Such changes to penalties allow the government greater scope for punishing political dissenters how they see fit.

A clamp down on protest?

The motives of the government become clearer when one considers the surrounding context. The current government, particularly Boris Johnson and Priti Patel, have never been coy about their dislike for protestors and their frustration with certain movements has become increasingly obvious. This, combined with the explicit concession by current cabinet member, Sajid Javid (while he was Home Secretary), that “where a crime is committed [during a protest] the police [already] have the powers to act”, and that there is significant legislation that “already exists to restrict protest activities that cause harm to others”, must lead one to the conclusion that the PCSC is designed to attack protest that would otherwise not be regarded as criminal. That is, there is no need for this bill for any reason other than a politically motivated clamp down on dissenters. Indeed, as Garden Court Chambers suggests, “the suggested ‘gaps in the law’ simply do not exist… These additional powers are designed to make it prohibitively difficult for the public to exercise its right to protest at all”.

Protest is a fundamental democratic freedom and a vital source of social progress. As such, for a government to take what seem to be intentional steps to curb it is highly disturbing. For all the government assurances that the right to protest will be protected, examination of the content of the bill makes it hard for one to join them in reaching this conclusion. The effect of the bill, as Kenan Malik has warned, would be to reduce the right to protest to a right to “whisper[ing] in the corner”. This is something we should all, regardless of political stripe, be concerned about.

James Cox is an aspiring barrister. He is a graduate in Philosophy, Politics and Economics from the University of Oxford and a Lord Bowen scholar of Lincoln’s Inn. He will commence the GDL at City, University of London in September 2021.

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Netflix’s Bridgerton has quickly achieved international recognition, among people of all ages and backgrounds.

The eight episode series is set in Britain’s regency era, following our heroine Daphne Bridgerton and her family through London’s social season. As we get an insight into the elites, with their fancy gowns and cutting remarks, the series promises a fantasy world where all races are equal, where men respect women’s choices and women feel empowered to decide their own path. However, not all that glistens is gold, as the audience gets to see when a non-consensual sex scene is presented as acceptable between the two main characters.

The scene I’m referring to is at the end of episode six, shortly after Daphne and Simon were married. Simon told Daphne that he could not have children, but she begins to suspect this is a lie, and so decides to concoct a scheme to find out for herself. She initiates foreplay with her husband and once he gets carried away, she gets on top of him and holds him down. When he realises what she is trying to do, he calls her name desperately three times, and asks her to ‘wait’, TWICE. Alas, she continues regardless, forcing him to finish inside her, and becoming pregnant as a result. When they both realise what has happened, Daphne accuses him of lying, tricking and humiliating her, while he is still trying to come to terms with the fact that his wife had forced him into a sexual act he did not want, and hence, had not consented to.

My issue with this scene is how it might influence the actions of an unknowing viewer, especially the younger generation, which is why I want to approach this with 21st century law. In the English and Welsh jurisdictions, the Sexual Offences Act 2003 in its section 1 lists the requirements for the crime of rape to have taken place, essentially being penetration by A and the lack of consent from B. I’ll review the point on consent, which will illuminate the rest.

For there to be rape, B must not have consented to the penetration. Section 74 provides a definition for legitimate consent: ‘a person consents if he agrees by choice, has the freedom to make that choice and has the capacity to make that choice’. All three are required for consent to be valid, but the critical one here is ‘agreement by choice’. Simon had consented to penetration without ejaculation, thus when Daphne forces sex with ejaculation, Simon could not ‘agree by choice’.

The High Court of England and Wales addresses this issue in a similar case (R(F) v DPP), where a woman was adamant that she did not want another child, and yet her husband forced her to have sex with ejaculation giving the reasoning that ‘you are my wife and I’ll do it if I want’. As a result, she became pregnant. The High Court concluded that she was deprived of choice relating to the crucial feature on which her original consent was based and hence ‘her consent was negated’. ‘In law, this combination of circumstances falls within the statutory definition of rape’.

Similarly, in the extradition case of Assange this sentiment was reiterated, with the High Court concluding that ‘his conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003’.

The reason why most of the audience did not realise how Simon’s consent was negated is because the viewer is made to empathise with Daphne, as she has been betrayed by her husband when he misinformed her he could not have children. However, the end does not justify the means. Instead of just asking, Daphne decides to violate her husband’s freedom of choice and do something he would never have consented to in the first place. This is incredibly problematic, as millions of viewers might get the notion that violating someone’s freedom of choice is acceptable. That forcing a sexual act is okay. That marriage or being in a relationship gives you licence to do as you please.

It is NOT, for several reasons. Firstly, each person must have the right to decide what to do with their body, under the principle of autonomy. It is a basic human right that we must be able to choose, regardless of our circumstances. For example, just because Daphne and Simon are married does not mean they have a right to violate the other’s freedom of autonomy. Although in the past rape was not contemplated in the confines of marriage, this is the 21st century and we are now far from that.

Furthermore, it is not okay to violate someone’s freedom of choice because of the consequences it might bring, such as pregnancy or sexual disease. I am sure any person reading this article could agree that they would not like to see their life paralysed by the unexpected arrival of a child as a result of their partner not caring about their priorities. Man, woman or other, it is just not right.

Lastly on the issue of consent, the Sexual Offences Act 2003 recognises another instance where consent does not exist in section 76: there will not be consent where B intentionally deceives A as to the nature or purpose of the act. This alludes to the idea of transparency, deeming it necessary for both parties to understand the nature and purpose of the act they are engaging in. In the alluded to scene, there is a misalignment of purposes: Simon seeks sexual gratification, while Daphne seeks to verify her suspicions. She uses him, without his knowledge for a different purpose. This is another reason why consent does not exist in this scene.

Having dealt with consent, I want to discuss the first requirement of rape, penetration. Section 1 of the Act specifically alludes to a ‘he’, making it clear that only a man can be convicted of rape, because only he can penetrate. I would like to argue that restricting the offence to just the male sex is senseless. There is a clear parallel between Daphne and Simon’s sex scene and the R(F) v DPP case discussed above, where the woman consented to sex without ejaculation and her husband violated that wish, as the only difference between them is the sex of the perpetrator and of the victim. Both women and men are capable of forcing a sexual situation, which is why it makes no sense to criminalise the act on the basis of sex. I do not think section 1 should call for a ‘he intentionally penetrates’ but rather just ‘intentional penetration’. Therefore, in whichever instance where penetration happens, regardless of whose intention it is, that would be rape.

Bridgerton was generally a joy to watch, and the creators have taken an admirable first step towards portraying equality among people, regardless of sex or race. Other than a few exceptions, male characters are shown to be respectful of women, and women are shown to be empowered. However, there is so much more work to be done. The scene I have described in this article cannot go unnoticed, and it is imperative that the general public is not influenced by the characters’ acts. As we have seen, Daphne forces a non-consensual sexual act to confirm a suspicion she had about her husband lying to her. I am yet to understand why a rational person would incur in sexual assault to verify a suspicion instead of simple healthy communication. I am not a relationship expert, but assault is never the answer, and consent is always the priority.

Sara López-Viejo is a third year law with Hispanic law student at UCL.

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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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Justice has long been a spectacle.

Today, battling barristers, curious cases, shamed celebrities and unpredictable judgments make the perfect recipe for TV gold. The courtroom is a stage for the likes of Court TV to turn legal procedure into a spectator sport. But back in Anglo-Norman England, it wasn’t so much Court TV’s famous catchphrase ‘gavel to gavel’ as it was ‘wooden club to wooden club’.

In Anglo-Norman land disputes, lawyers would pick up their baculi cornuti (small wooden sticks), strap on a limited amount of protective gear and let their clubs smash out some justice. Trials by battle meant that these medieval ‘lawyers’ — known as champions — were valued primarily on their physicality. William of Copeland was the top-ranked land disputes champion of his time. One commentator praises him highly, noting that the mere sight of him is enough “to scare any tenant [defendant] who might have considered countering his challenge”.

Unsurprisingly, trials by battle were a popular spectacle. And fight-night-style trials were not the only type of performative justice. One that might appeal to fans of shows like Man vs Food and The Great British Bake Off are trials by cake. This was where individuals would seek to prove their innocence by eating a dry piece of consecrated bread. If you could swallow it, you were deemed to be innocent. But if you choked, you were guilty.

In 1053, Godwin, Earl of Kent, famously was said to have failed this test. He had sworn that he had no involvement in the assassination of the King’s brother. The bread, however, thought otherwise and Godwin choked to death. The prominence of trial by cake meant that the spectacle even had its own catchphrases like “May this morsel be my last!”. It’s not quite “soggy bottoms”, but it reinforces the evidence that these trials were, at heart, performances of justice.

I am sure Court TV would be keen to revive some of these eye-catching legal traditions. But I am less sure that the broadcasters would be mindful of their role in the passage of justice. These dramatic trials (in their many forms) were deliberately designed to be spectacles and were closely tied with legal procedure for a variety of reasons.

For many, these trials were a way of appeasing public dissatisfaction created by an inconclusive legal process. Both trial by battle and trial by cake were solutions in cases where there was not sufficient evidence for a judge to come to a decision. With such uncertainty, society looked to God to make the final judgement. These unusual tests provided a definitive answer to seemingly unsolvable legal questions because God was thought to intervene in the name of justice to defend the innocent. In essence, the trials meant nobody could escape the law thanks to a lack of evidence.

Whilst these superstitions may have been of driving force behind some proceedings, trial by battle seems a bit different. In fact, these traditions had secular origins and normally did not possess the cathartic closure of seeing the guilty party dead at the end of the proceedings. The champions could submit to an opponent by shouting the word “craven”. This meant that death was a rare outcome. Rather, there appears to be an economic rationale behind trials by battle: judges made money from the fights.

Although litigants were often incentivised to settle due to the cost of hiring a professional champion and the unpredictability of the outcome, effort was made to lower the barriers-to-entry by excluding expensive requirements such as horses, swords and armour. Judges were also masters of the pre-fight hype. They frequently whipped up spectators by making the champions swing a few punches “for the sport… and the public”, especially when the litigating parties disappointed the crowds by settling at the last minute. Just like Court TV, judges looked to profit from legal drama as much as possible.

The inventors of courtroom drama, however, were the ancient Greeks. This was in large part due to the fact that legal procedure was democratised. In Athens, all cases would be decided by a large jury (typically of around 501 jurors) which consisted of Athenian citizens over the age of 30. There was no judge or legal expert to guide them on the technicalities. Grieving friends and family members would be wheeled out onto the stage to appeal to jurors’ emotions. Sex and violence were also recorded by some writers as methods used to sway juries. The extent to which this really happened, however, is questionable. But it is clear that discussion of such dramatic performances in court were considered plausible.

Contemporary accounts tell us that ancient Greek trials fell into three genres that echo Greek theatre: tragedy, comedy and highly rhetorical cross-examination. In line with these links to the theatrical, defendants were often happy to try their hand at acting. In 489 BC, an injured defendant called Miltiades lay in total silence on a stretcher in front of the jury throughout the proceedings, replicating the pose of a dying tragic hero that was a common trope in Greek theatre. Lawyers also employed deliberately dramatic devices. A good example of this was when the poet Cratinus had been accused by his enemies of killing a female slave girl. It was only after 14 witnesses had testified that Cratinus had murdered her, when he finally revealed the very much alive slave girl in question to the shock of the jurors.

The proliferation of courtroom drama came in response to the democratisation of justice. No judge with legal experience was present to clarify the letter of the law. Instead, the people had the final say. And they enjoyed a show. Consequently, trials were more often than not the arena for vexatious cases that are reminiscent of the presidential and election debates we have today. From smearing political opposition to getting personal revenge on an enemy or rival, ancient Greek trials were a space to score political points and make or break reputations.

So, have any of these performative traditions survived today?

Scholars have extensively analysed traditions related to movement, space, gestures and clothing in the courtroom. They reveal a theatrical choreography behind legal proceedings, some elements of which have worrying consequences. For example, one study found that “jurors may be more likely to convict a person sitting in a dock than if the person were sitting at the bar table” — a threat to the presumption of innocence.

So, why do our courts function in a performative way? Trials seek to establish a convincing truth. By attempting to fill the gap between the truth and the “legal truth” that is represented during a trial, courtrooms are a space for disputed stories to be stitched back together. Lawyers propose and poke holes in competing narratives. Judges and juries decide which they are most convinced by in relation to certain legal issues.

This means the modern trial is dramatic by virtue of its narrative function. The late associate justice of the Minnesota Supreme Court, John E. Simonett, went as far as to compare the criminal trial to a play. He explained, a trial “has a protagonist, an antagonist, a proscenium and an audience, a story to be told and a problem to be resolved, all usually in three acts”. But, the extent to which we permit this dramatisation of justice is in our control.

So, what do the popularity of Court TV and the British government’s decision to allow a judge passing a sentence to be filmed and broadcasted publicly tell us?

Unlike in ancient Greece or Anglo-Norman England, throughout Europe today, we tend to prefer that the law is decided by a few legal experts. The push for TV trials indicates a move in a different direction. It both democratises and dramatises justice. This is not necessarily a bad thing. But history gives us some examples of when this happened that are worth considering. Athenian trials moved justice further away from the legal and towards the vexatious. Trials by battle and trials by cake used the spectacle of justice to an economic or social end. TV trials force us to reconsider where we want our justice system to be on this democratic and dramatic scale. The cameras are really asking us: what sort of justice do you want?

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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Spectre’s opening scene in the shadows of Mexico City’s Festival of the Dead exhibited all of the best things about Bond movies. Stunts: check. Exotic dancing and glamour: check. Mysterious love interest: check. Yet the last of these may soon be a thing of the past… For ultra-realistic spy movies based in the UK, anyway.

Would Spectre have been so thrilling if we had learned how 007 checked in at the embassy only a few hours after landing, compelled by government decree? Probably not.

The hope is that tightened domestic security laws introduced by a new Espionage Bill, will allow the government to prosecute hostile actors operating on British soil more easily. But will it work?

What’s going on here?

The British government has vowed to modernise spying laws, through a review of the Official Secrets Act, the introduction of an “Espionage Bill” and even a tightening of laws on foreign investment visas. This comes in the wake of the publication of a parliamentary report on the ‘Russia threat’ which accused the government of “badly underestimating” the Kremlin’s influence on the UK. In response, the government doubled-down on their refusal to review Russian interference.

The issue is, however, in the words of BBC political editor, Laura Kuennesberg, “if you do not seek, you do not find”. And the government appear to be intent on not seeking.

All that being said, it seems pretty unimpressive from the country which inspired the Bond universe.

Give me some details

Putin’s Russia is propounding a hawkish foreign policy, with a willingness to pursue its objectives without fear of threatening international peace. In the wake of the poisoning of the Skripals two years ago and the assault on international institutions by state-sponsored hacking groups, such as Cozy and Fancy Bear (spot the creativity), and even concerns surrounding Chinese influence exerted through Huawei hardware, Western governments have scrambled to react.

In response to these threats, the British government commissioned two reports (found here and here) on Russian interference. The first of these was published on 21 July.

What did the report say?

It scrutinised British security laws, criticised the government’s handling of the threat posed by Russia and proposed legislative changes. Furthermore, it accused the government of actively avoiding confrontation of Russian interference in British affairs. It described the UK as being the biggest target after the United States and NATO.

In addition to this, it said that British security agencies have concentrated too hard on the threat of Islamist terrorism, failing to protect the integrity of democratic structures by overlooking the threat posed by potentially hostile states, like Russia.

What is the Official Secrets Act?

It is the legislation in Britain which provides the main legal protections against spying and the unauthorised disclosure of official and sensitive information. It has not been updated since 1989 and was one of the main focuses of the report in question.

The current Official Secrets Act includes powers to prosecute anyone who shares classified information, including someone who intercepts it. Yet is incapable of dealing with newer tactics of influence such as big data manipulation and cyber-espionage.

Prosecution under the Official Secrets Act is rare (fewer than one a year). The rarity of prosecution is one of the reasons behind the reforms being proposed.

What changes are being suggested?

A review of the Official Secrets Act and the introduction of a new “Espionage Act”. The consequences of this would be twofold. It would sharpen the teeth of security agencies hoping to deal with threats posed by spying operations and would compel foreign agents operating on British soil to register with the government. Failure to do so would result in prosecution. This would allow for the prosecution of double agents too.

The Act is likely to be based on the American Foreign Agent Registration Act 1938. This would force individuals, working with foreign governments to register with British authorities or face extradition, preventing them from concealing their links to an overseas power and covertly lobbying for the interests of a hostile state.

Why are these changes necessary?

British security and cyber-security laws are said to be woefully outdated. An ex-head of MI5 described the Official Secrets Act as “dusty and largely ineffective” arguing that “it is not an offense in any sense to be a covert agent” in the UK “unless you acquire damaging secrets and give them to your masters”.

This was echoed by Nigel Inkster, former director of MI6 who said under current laws unless authorities catch “somebody red-handed taking delivery of papers marked ‘Secret’, it is really difficult to prosecute anybody for espionage” in the UK.

For example, in relation to cybercrime, as it stands, MI5 and its cousin security agencies are severely constrained by what they can investigate without being explicitly tasked by ministers. Updated legislation could allow intelligence services to be more pro-active in seeking out threats posed by hostile states, without explicit instruction by government ministers.

Legislation in the UK is said to be inadequate. Specifically, it is incapable of tackling modern threats, such as cyber warfare, as is imperative security agencies act quickly and without constraint.

What are the criticisms of these reforms?

Some argue this may constrain the freedom of the press. This is rooted in the fact that the Committee behind the report argue that the definition of “espionage” should be broadened.

Critics say a broadened definition could criminalise journalists who publish leaks and constrain whistleblowers from exposing malpractices. Defence of prior disclosure or publication would also be removed — making the re-publication of information already in the public domain an offence.

So, what’s going to happen?

At this stage, things are still uncertain. This report has created shockwaves, in part due to its blunt accusations of a sitting government about its willingness to overlook credible threats. It is worrying, too, that representatives of the British press remain not-consulted on questions of press freedom.

Yet one thing is for certain, British security agencies are no longer the bastion of spy agencies, both real and fictional, that they once were. Unfortunately, therefore, Bond’s real-life counterparts are not risking jail just yet and M is turning in her grave (in the Daniel Craig universe anyway).

George Maxwell is an aspiring solicitor and philosophy, politics and economics student, in his final year, at the University of Warwick.

The post Not so 007: Bolstering Britain’s security laws 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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Following weeks of endless pleas from criminal practitioners, jurors and witnesses alike Lord Burnett, the Lord Chief Justice, finally put a temporary stop to all new jury trials and hearings held in the Crown Court on 23 March.

This announcement came on the very same day the Prime Minister announced an end to freedom of movement until further notice. Long before this announcement was given, the government guidance had been for the pubic to practise ‘social distancing’ before being told to stay at home unless venturing out is absolutely essential.

So why is it that the criminal courts had been encouraged to go on as “normal” in direct contrast to the government’s own advice? Why was the Ministry of Justice (MoJ) so readily prepared to risk the health of court attendees by allowing trials to proceed? Why only now, at this time of crisis, are criminal practitioners among those regarded as ‘key workers’?

These are all questions which circle back to the importance both of the criminal courts and the criminal bar. One theory behind the potentially life-threatening decision to keep the criminal courts’ ball rolling is that the Ministry of Justice, the Lord Chancellor and the Lord Chief Justice are all too aware that the criminal justice system was already on its knees, unable to take yet another heavy blow.

Over the past few weeks, we have seen that the MoJ has been willing to gamble with the health of the public, court staff and lawyers — urging them to attend unhygienic and ill-equipped court centres to keep the criminal justice system afloat that little bit longer.

How did it come to this?

Before this pandemic was even a twinkle in the eye of the United Kingdom’s foresight, crown court trials, in many cases, were being listed over a year after defendants chose to enter a not guilty plea. Where trial backlogs had reached unthinkable lengths, we can justifiably question whether the criminal justice system can survive further setback in the wake of COVID-19.

In reality, it is impossible to pinpoint the precise cause of the current wreckage that permeates through all crevices of the system, but here a few of the more major problems:

The dramatic reduction in court sitting days over the past decade

Crown court sitting days have been cut by 15% in the last year alone, meaning that despite there being empty courts available for use, benches are not able to sit. A drastic and immediate increase in the number of sitting days is essential to tackle the ever-increasing delays.

The approach of the government angled towards being ‘tough on crime’

Where efforts are channelled towards punishment, rather than prevention means that more and more individuals are prosecuted for crimes, imprisoned, released and re-offend. This is frequently referred to as the ‘revolving door’ within the criminal justice system. The prevalence of knife-related offences is a prime example, having risen by 34% between 2015-2019. Despite the proven success of a focus on prevention and rehabilitation in Scotland, England and Wales are yet to follow suit.

The failure of the MoJ to increase fees for legal aid work

Despite recent criminal legal aid proposals set out by the MoJ to bring about new or increased payments to criminal practitioners in respect of large amounts of prosecution evidence, cracked trials and the review of unused material, these changes are simply not enough to rectify the economic instability of criminal practice.

As many junior practitioners know all too well, brief fees leave little to enjoy post-travel expenses and chambers fees. So where does COVID-19 and the halting of criminal hearings leave those individuals? The ones who often struggle to make ends meet, as so many young criminal barristers do, entirely dependent on the funds that come from their daily court appearances. A payment hiatus might just be the last straw for young criminal lawyers and a mass exodus from the career is now an increasing reality.

Will we sink or swim?

It is too early to fully comprehend the extent of the damage COVID-19 will leave behind but what we do know is that the criminal justice system is already crumbling. If there is to be any chance for survival after this pandemic there must be huge injections of funding to all keystones of criminal justice — the courts, practitioner fees, the police, the CPS. A piecemeal approach will simply not suffice in the current climate.

Amongst the doom and gloom perhaps one positive may flow from these strange and unprecedented times. Following the Lord Chief Justice’s statement of 23 March, “all hearings in the Crown Court that can lawfully take place remotely should do so”. This move towards utilising technology for criminal hearings may well be just what the criminal justice system needs to relieve pressure on the courts in life after COVID-19. It may be a solution forced upon us sooner than expected but could act to mitigate delays, save money and court time.

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The pressure on the criminal justice system in England and Wales is mounting.

Recent figures reveal that despite a rise in recorded crime, the number of defendants in court proceedings has been the lowest in 50 years. This indicates a crisis of access to criminal justice. Predictive policing and risk assessment programmes based on algorithmic decision making (ADM) offer a prospect of increasing efficiency of law enforcement, eliminating delays and cutting the costs. These technologies are already used in the UK for crime-mapping [1] and facilitating decisions regarding prosecution of arrested individuals [2]. In the US their deployment is much wider, covering also sentencing and parole applications [3].

While the lack of undue delay is an important component of access to justice, so are equality and impartiality in decision making. Can we trust algorithms to be not only efficient, but also effective in combating discrimination in access to justice? One of the greatest promises of ADM is its presumed ability to eliminate subconscious bias that inevitably underlies all human decision making. An algorithm is believed to be capable of providing fairer and more accurate outcomes. Kleinberg’s study showed that a machine learning algorithm trained on a dataset consisting of bail decisions from New York City taken between 2008 and 2013 was able to outperform judges in crime prediction [4].

Whilst a prospect of speedy and accurate decision making in standardised cases sounds very appealing to the underfunded and overloaded criminal justice system, there is numerous evidence suggesting that algorithms might not be as unbiased as we would expect them to be. This is because they can only be as fair as their creators and the data sets they are presented with. This problem is well illustrated by the research undertaken by Joy Buolamwini, a computer scientist who discovered racial bias embedded in the leading facial recognition technologies. Because of the lack of racial and gender diversity in their data sets, these algorithms incorrectly recognised women with darker skin tones as men. The conclusion is that underrepresentation of minorities in the datasets results in lack of accuracy and generates a deeply biased output.

However, even the most inclusive data sets do not guarantee a fair result when the training data itself indicates bias or historical discrimination. Chiao argues that prioritising certain predictive factors in criminal risk assessment might lead to entrenching racial disparities within the algorithm [5]. There is evidence that individual risk assessment programs, such as COMPAS, show racial bias and inaccuracy by incorrectly associating higher risk of reoffending with black people. It is so because seemingly neutral predictive factors, such as neighbourhood or previous arrest rate, in fact, reveal racial bias based on unfair policing practices.

Similar concerns have been raised by a human rights watchdog, Liberty, which warns against the use of historical arrest data in crime-mapping, arguing that it does not reflect the actual crime rate and is likely to reinforce over-policing of marginalised communities [6]. Reliance on such biased technologies could entail a violation of ECHR which requires a reasonable suspicion for an arrest to be lawful [7]. Feeding the predictive algorithms with data containing historical bias will not lead to an increase in equality and fairness. On the contrary, it will hinder access to justice by disadvantaging minorities and decreasing their trust in the criminal justice system.

On the other hand, it might be that the bias present in ADM will be easier to detect and combat than human bias. Algorithms can already be trained to be fairness-aware through incorporating anti-discriminatory constraints during data processing or removing the sources of bias prior to processing [8]. In practice, however, there is a major disagreement on how the notion of fairness in a mathematical model should be construed. It is virtually impossible for an algorithm to satisfy all definitions of fairness and maximise accuracy at the same time [9]. Nevertheless, many suggest that algorithms are generally capable of reaching a better trade-off between fairness and accuracy than humans [10]. Thus, ADM could become a valuable tool for understanding the barriers to access to justice and removing them [11].

But how can we ensure that algorithms live up to their full potential in combating inequalities? The best way to start is by increasing transparency and accountability of ADM technologies, which are often not properly tested or audited before their deployment in the justice system. The fact that private entities creating the technology can have a share in value-laden decisions concerning criminal justice is deeply problematic. It risks a fundamental erosion of access to justice by favouring what Buolamwini calls the “coded gaze”, a reflection of preferences and prejudices of those who have the power to shape technology. Public oversight over algorithms is crucial for ensuring non-discrimination and compliance with human rights.

Worryingly, the Law Society has expressed serious concerns regarding the lack of openness and transparency about the use of ADM in the criminal justice system. Some of its recommendations include development of the Statutory Procurement Code for ADM systems in criminal justice, creation of the National Register of Algorithmic Systems [12] and extension of the public sector equality duty to algorithms’ design process [13]. Increasing transparency and intelligibility is crucial for protecting the due process guarantees, especially the right to be given reasons for a decision and the right to challenge it. Therefore, it is equally important to introduce individual explanation facilities aimed at helping individuals understand how each decision was reached and how can it be appealed [14].

A troubling conclusion is that algorithms seem to expose a fundamental lack of substantial equality in the criminal justice system. Whether ADM will be a force for good in removing this crucial obstacle for access to justice, depends on the presence of public scrutiny and auditing mechanisms. Carefully monitored algorithms can make a major improvement by detecting social inequalities and providing a better balance between accuracy and fairness. On the other hand, opaque systems based on “pale male” data sets and entrenched bias are likely to reinforce inequality and hinder access to justice.

Malwina Anna Wojcik holds an LLB in English and European Law from Queen Mary, University of London. She is currently completing her LLM at the University of Bologna. Malwina is passionate about legal scholarship. In the future, she hopes to pursue an academic career.

The Justis International Law and Technology Writing Competition is in its third year. This year, the competition attracted entries from students at 98 universities in 30 countries. Judging was conducted by a panel of industry experts and notable names, including The Secret Barrister and Judge Rinder.

Sources:

[1]: For example PredPol used by Kent Police between 2013 and 2018 or MapInfo used by West Midlands Police.
[2]: For example Harm Assessment Risk Tool (HART). See: The Law Society Commission on the Use of Algorithms in the Justice System, Algorithms in the Criminal Justice System (June 2019) para 7.3.1.
[3]: For example Correctional Offender Management Profiling for Alternative Sanctions (COMPAS).
[4]: J Kleinberg et al, ‘Human decisions and machine predictions. Quarterly Journal of Economics’ (2018) 133, 237.
[5]: V Chiao, ‘Fairness, accountability and transparency: notes on algorithmic decision-making in criminal justice’ (2019) 15 International Journal of Law in Context 126, 127.
[6]: H Couchman, ‘Policing by Machine. Predictive Policing and the Threat to our Rights’ (Liberty, January 2019) 15.
[7]: Art. 5(1)(c) ECHR.
[8]: The European Parliament Research Service, Understanding algorithmic decision-making: Opportunities and challenges (March 2019) 46.
[9]: ibid 55.
[10]: Chiao (n 5) 129.
[11]: The Law Society Commission (n 2) para 8.4.
[12]: ibid para 8.2, Sub-Recommendation 4.3.
[13]: ibid para 8.4, Sub-Recommendation 3.1.
[14]: ibid para 8.3, Sub-Recommendation 4.4.

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The case of Caroline Flack throws up not only a media firestorm, but also a number of legal issues that a Highbury Corner District Judge will no doubt be wrestling with on 4 March 2020, the date she will attend for her trial.

There are two main questions that arise:

1. How do the prosecution proceed when the alleged victim reportedly doesn’t want to continue?
2. How can Flack plead ‘not guilty’ when she has apparently admitted assaulting Lewis Burton, her partner, to the police officers?

But the victim doesn’t want to ‘press charges’?

Our system is not like that of the United States, victims don’t ‘press charges’, that is a decision for the Crown Prosecution Service (CPS). In order to prosecute they must be satisfied that there is both a realistic prospect of conviction and that it is in the public interest to continue. Simply because Burton doesn’t want to continue, as has been reported, that doesn’t mean the case has to end.

There is more evidence in this case than just the oral evidence of Burton.

Firstly, it has been widely reported that he made a 999 call and stated that she was “trying to kill him” and that she had assaulted him. This, at first blush, is hearsay evidence and so not admissible. It is a statement not made in oral evidence that is evidence of any matter stated, namely evidence that an assault has taken place. The same can be said of anything that Burton said to police officers upon their arrival at the scene.

However, the CPS can seek to rely on this evidence under the hearsay provisions. Ordinarily, they could consider Section 116 of the Criminal Justice Act 2003 for where a witness is not available. This wouldn’t be met in this case — Burton is technically “available”, it seems he is just unsupportive.

The most likely application will be that this forms res gestae evidence, one of the common law provisions retained by the 2003 legislation. This allows the prosecution to rely on a statement where the maker is so overpowered by emotion the possibility of concoction can be disregarded (R v Andrews [1987]). The courts are likely to conclude that this is res gestae evidence given the apparent temporal proximity to the events taking place and considering the scene encountered by officers upon their arrival.

At this stage, the CPS may well be thinking they have evidence that they can happily rely on and not need to be concerned about Burton’s attitude to the case.

The defence argument

The CPS do face one increasingly high hurdle. This would represent an attempt to get around calling a potentially unhelpful complainant. It would appear that, at some point, Burton has made a statement to the police — that makes him a witness to proceedings. Once he is a witness, the CPS and police have powers to summons him to court and if he fails to attend, arrange for him to be arrested. This would be a rare use of this power, and arguably disproportionate, but this is a high profile case. Once brought to court, if Burton continues to refuse he can be convicted of contempt of court.

The reason this is relevant is because it demonstrates the steps available to the CPS to secure actual evidence. The case of Wills v CPS [2016] reviewed the position previously set down by the Appellate Courts. The decision in Wills confirmed that the CPS must properly explore the reasons for a witness’ not attendance before proceeding to res gestae. The court confirmed that it was essential that a complainant’s credibility be tested.

It would appear that the CPS have a long way to go at present to be able to meet the high test set out in Wills. They must be able to show that Burton’s reason for non-attendance is good enough to deprive Flack, and her legal representatives, of the right to test that evidence.

Even if this is done to a satisfactory level, the court retains a discretion to exclude evidence pursuant to Section 78 of the Police and Criminal Evidence (PACE) Act 1984. This is where the admission of evidence would have such an adverse effect on the proceedings that the court ought not to admit it. The outcome of a Section 78 argument is predicated on the proceedings as a whole, it is simply impossible to say at this stage which side of the balancing act a judge would rule.

But she’s admitted it?

The law on confessions is not straightforward, just because someone admits an offence at the scene that doesn’t mean they cannot plead not guilty.

Reports in the press suggest that she told officers that she had assaulted Burton. The first issue will be how reliable that account is, could the officers have been mistaken? Could media reports also be mistaken? This will be a consideration for Flack’s representatives.

The next challenge that could be mounted is exactly what was meant by it. There are various defences that can be put forward once an assault is accepted, was she acting in self-defence, out of necessity or (as has been suggested) is there going to be a defence of “accident”?

The most appropriate way to challenge the comment is not via a factual argument, it is via the law. Section 76 of the PACE deals specifically with confessions and the circumstances when they can be excluded. A confession is something said that is “wholly or partly adverse to the person who made it”. There would be no dispute that the things allegedly said by Flack were adverse to her case.

The test is whether these comments were made in circumstances which render the confession unreliable, or were obtained through oppression. The latter is unlikely to be relied upon, however, the former provides Flack with a possible solution. There are specific codes that the police must follow when dealing with confessions, or significant statements as they are referred to. They are required to do the following:

• Note the confession in their police notebook, as well as the time it was made;
• Ask the individual who made the comment to sign it as being correct;
• Put the comment to the individual in interview.

In addition to the above, it is important that an individual is not asked to comment prior to being cautioned. The fact that a comment is made prior to caution can be a significant factor in determining whether to exclude the evidence.

The cases of Keenan [1989] and Fulling [1987] give substantial guidance. The general rule is where there are “significant and substantial” breaches of PACE Code C, as set out above, the evidence should be excluded. Clearly, this argument will depend on the specifics of Flack’s case and the steps taken by officers.

A summary

If this were a normal case and Flack was an “ordinary” member of the public, this would be a two-hour trial in which the CPS would begrudgingly offer no evidence at 10:30am on the day of trial. However, this is not the case.

The matter has been listed for a day and a half. The court is clearly anticipating a substantial amount of legal argument. There will no doubt be lengthy representations provided to the CPS as to the prospects of success and the public interest in proceeding. Unfortunately for Flack, the domestic violence policy of the CPS has been updated and tightened over the past 18 months. This matter is unlikely to go away quietly.

There will be a number of pre-trial legal arguments. If the defence are not successful, we can most probably expect Flack to take a trip to the High Court — appealing a decision on either res gestae or Section 78 by way of case stated. I, for one, will be surprised if this case finishes in March 2020.

Rhys Rosser is a barrister specialising in criminal and regulatory law at 2 Bedford Row.

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The government, under Boris Johnson’s leadership, has announced plans to expand police stop and search powers. This article will consider whether the move is political rhetoric, or if we should be concerned.

Current stop and search law

There are three main statutory provisions the police rely on at present. Section 1 of the Police and Criminal Evidence Act 1984 (PACE) gives the police the power to stop and search any person or vehicle. The officer must have reasonable grounds to suspect that a person has: a weapon, illegal drugs, stolen property or an item that could be used to commit a crime.

Section 23 of the Misuse of Drugs Act 1971 also gives the power to search when a police officer has reasonable grounds to suspect that a person is in possession of controlled drugs.

Section 60 of the Criminal Justice and Public Order Act 1994 empowers the police to stop and search people in a designated area during a designated time. A senior officer must authorise the power when they consider that:

• Serious violence will take place and it is necessary to use this power to prevent such violence;
• A person is carrying a dangerous object or offensive weapon;
• An incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality.

Once authorised, officers do not need to have reasonable grounds to search someone.

New powers

Under the new rules, the government has lowered the seniority of officer required to authorise section 60 to inspectors; extended the time period that a section 60 order can be in force from 15 hours to 24 hours (which can be extended by 48 hours); and lowered the threshold of certainty so the inspector must reasonably believe an incident involving serious violence ‘may’ rather than ‘will’ occur.

The Prime Minister has written there is “nothing kinder or more loving you can do when you see a young kid who may be carrying a knife than to ask him to turn out his pockets”. Anyone that has been stopped and searched will surely disagree with this view, and describe it as a humiliating and chilling experience.

Does stop and search work?

Undoubtedly stop and search is an important tool for the police but we should be wary whenever civil liberties are watered down.

The Home Office has said “stop and search is a vital police tool when used in a targeted and fair way”. Britain’s most senior police officer, Cressida Dick, argues that the use of stop and search has led to a 15% drop in the number of under 25s stabbed in London.

But the statistics make for depressing reading.

Police use of stop and search has been falling since its peak in 2008/09 but the use of section 60 has been rising, especially in London.

• 277,378 stop and search incidents recorded in England and Wales in 2017/18.
• Weapons found in 2.8% of these searches.
• 2,501 section 60 stop and searches executed in 2018 (four times the number in 2017).
• 2% of all stop and searches carried out under section 60 between April 2017 and March 2018 led to an arrest for an offensive weapon.

We can see here that stop and search does uncover weapons in a small number of cases, so the Home Secretary’s argument that “just one knife seized during a stop and search could be one life saved” has some merit.

However, the national arrest rate for stop and search is 17%. When we compare with the 2.8% of arrests for weapons, that means that most of the arrests are probably down to drugs.

Arrest is not a solid indicator that stop and search is effective, because some people may react violently to being searched and be arrested for that.

You can manipulate figures and graphs all you like, but there is no denying that black people are more likely to be stopped and searched. Unfortunately, this has been increasing.

Black people were nine and a half times more likely to be stopped and searched than white people in 2017/18; the previous year they were just over eight times more likely, and in 2014/15 they were over four times more likely.

This disproportionality is defended by the Metropolitan Police, which claimed that those from an “African-Caribbean heritage” were more likely than white people to carry knives or be stabbed.

Are the powers radical?

The police in Wiltshire have said that the new section 60 powers will not have a large impact on their daily operations. West Midlands police have refused to use the new power. David Jamieson, the West Midlands police and crime commissioner, said that his force already have the powers they need, calling this “just another announcement aimed at getting a pre-election headline. It’s loud on rhetoric and quiet on detail”.

But section 60 orders are used regularly, most often after a stabbing has occurred. In August, a 15-year-old boy was stabbed in Lambeth, and a section 60 order was put in place. At Notting Hill Carnival this year, and the year prior, an order was put in place for the entire carnival. When four men were stabbed at London’s Eastern Electrics festival last month, an order was put in place in the borough of Merton.

Katrina Ffrench, chief executive of StopWatch UK, a coalition campaigning against the disproportionate use of stop and search, argues that weapons are more likely to be found when officers have reasonable grounds for searching.

She argues further that “officers do not have to use their brains, intuition or skills of observation to see if someone is carrying anything”. This “lazy policing” could damage the relationships between the police and communities.

The College of Policing has found that stop and search becomes less effective the more it is used. The likely impact on crime is usually “small, highly localised and short-lived”. Researchers utilising ten years of Met data found that there is only “limited evidence of stop and search having acted as a deterrent”. Crucially, the increase in use of section 60 did not appear to affect violent crime.

Unfortunately, all the evidence suggests that the extension of section 60 powers will not bring knife crime down, will not make us safer, and will further damage relations between communities and the police.

Anonymous Rookie works at a City law firm.

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In an age of ‘citizen’ journalism and rabid social media posts, the legal principle known as ‘the presumption of innocence’ is seriously under threat. The presumption, enshrined in the UK’s Human Rights Act, is a fundamental principle of our criminal law system. It is one that is so well-known, even to those who have little knowledge of our legal system, and yet appears to be so poorly upheld. Individuals are repeatedly condemned in the eyes of the public regardless of whether they have been in the eyes of the law.

Back in 2014, BBC News reported that Cliff Richard was being investigated by the police following an allegation of sexual assault on a child dating back to the 1980s. A presumption of guilt and public vilification ensued despite the fact that Sir Cliff was never charged.

Michael Jackson has also been publicly challenged. In 2005, in California, the pop sensation was tried for several allegations of sexual assault of young boys but was acquitted of all charges. However, he is still widely considered and branded a paedophile by sections of the media and public. Serious new allegations against the late popstar have surfaced too late for Jackson to face justice for a second time.

Meanwhile, R. Kelly, another American singer, songwriter and producer has recently been charged with sexually assaulting various teenage girls after a history of sexually-related charges and allegations of a sex ‘cult’.

The presumption of innocence, an integral part of the right to a fair trial, exists as a guarantee of an individual’s innocence if and until they can be proven guilty beyond reasonable doubt in a court of law. And as we all know, the burden of proof lies with the prosecution. But the presumption is systematically ignored as the cases of Sir Cliff, Jackson and many others demonstrate. The media publishes names, and commentators on social media defame.

Sir Cliff had the resources and wherewithal to fight back. In 2018, in the case of Cliff Richard v BBC and SYP, he recovered substantial damages from the BBC and the police force concerned for the investigation and making it public.

The decision in the Cliff Richard case reignited calls for legislation to protect suspects, to protect the presumption: a private members’ bill, the Anonymity (Arrested Persons) Bill, was debated in the House of Lords last month. The Bill proposes to make it unlawful to name individuals at the ‘suspect’ stage, that is, before they have been charged. Some argue that the case and any legislation that followed would unduly curtail press freedom and obstruct the public’s right to know.

Legal commentator Joshua Rozenberg has argued that such a law would encourage “secret arrests” and “would amount to a major change in the criminal justice system in England and Wales”. He said: “The solution is not to confine news of arrests to the internet rumour-mill”, but rather it is for the public to understand that “sometimes there can be smoke without fire”.

The counter-argument, however, is that there needs to be greater understanding of the effect that such reports can have on a person’s life: damaging reputations, livelihoods, the effect on immediate family, on personal health: the 78-year-old Sir Cliff reported ill-health following the allegations — including shingles and insomnia. He also acknowledges now a paranoia with being seen associating with young people and avoids having any photographs together.

When the public take on the role of adjudicator in matters of suspected criminality, the large brands feel pressure to react accordingly. Certain radio stations in Australia, Canada, New Zealand and the UK have pulled Michael Jackson’s music from airing in the wake of Leaving Neverland, a film documenting serious allegations of sexual abuse against the popstar. In response to the ongoing R. Kelly scandal, Spotify has removed his music from their playlists. Thus we see corporations too taking on the unofficial role of judge. Through protecting their brand image, these corporations cast judgment upon criminal allegations when a court of law has yet to do so.

While a court of law is susceptible to error, surely it would be better to leave the responsibility of apportioning blame to it rather than to public opinion. A court of law is designed with this purpose in mind, decisions based on evidence rather than emotion. Of course, public opinion does have a role to play in raising awareness surrounding certain topics, including that of sexual abuse, but “mob justice” has no checks to ensure impartiality and little or no power to verify the credibility of alleged truths.

Naz Khan is a final year undergraduate law student at Staffordshire University and an LLM candidate at Durham University. Upon completion of his masters, he aspires to work as a barrister.

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Freedom of speech is a highly contentious issue on university campuses right now. Recently, 98 expletive-ridden messages in a group chat were exposed, which made reprehensible racist, anti-Semitic remarks and jokes about raping female students. The participants in the chat were students at the University of Warwick.

This is the second group chat to be exposed to the mainstream media, with the Exeter law student racist group chat coming to light last year.

If these messages were sent directly to the females referred to, then it is highly likely the students concerned would face prosecution. The Warwick incident raises several interesting legal questions. Namely, the messages were sent in a private Facebook group chat that were then later exposed (presumably without the consent of all of the participants). No one has been charged as of yet. In fact, two of the 11 students were permitted to return to the University in September but have since decided against this.

The vice chancellor of Warwick University has said there was a “high likelihood” legal action would be taken. But has an offence been committed? And if so, should the students be prosecuted?

The law

Communications Act 2003

The starting point for the Criminal Prosecution Service (CPS) is section 127(1) of the Communications Act 2003. A person will be guilty of an offence if they “send by means of a public electronic communications network a message… that is grossly offensive or of an indecent, obscene or menacing character”. There is no need for it to be received. No victim is required. It has been held that Twitter is a public communications network (despite it being run on private servers) — so this Facebook chat would probably qualify too.

The key here is whether the messages were ‘grossly offensive’ — merely offensive is not enough. Grossly offensive is measured against “reasonably enlightened, but not perfectionist, contemporary standards” (DPP v Collins).

It must be emphasised that “satirical [or] rude comment… banter or humour, even if distasteful to some or painful to those subjected to it” will not be caught by section 127 (Chambers v DPP).

The offence is one of basic intent. The defendant must either intend the message to be grossly offensive, or at least be aware that a reasonable member of the public would view them to be so.

I think these messages, taken in their totality, would qualify as grossly offensive, based on DPP v Collins and Chambers v DPP. An offence under section 127 could therefore have been committed.

Malicious Communications Act 1988

This is another possible offence. Section 1 of the Malicious Communications Act 1988 prescribes a person who sends another person an electronic communication message which is grossly offensive or of an indecent, obscene or menacing character will be guilty of an offence if their purpose (or one of their purposes) in sending it is to cause distress or anxiety to the recipient or to any other person to whom he intends that its contents or nature should be communicated. Nothing requires the communication to be received.

This is couched in very wide terms but here, I doubt the participants in the group chat intended their messages to actually cause distress or anxiety. They probably viewed their messages as jokes. Due to the specific intent requirement of this section (Chambers v DPP), I don’t think an offence has been committed here.

It is worth noting that the CPS has an arsenal of other offences at their disposal, contained in the Public Order Act 1986 and the Protection from Harassment Act 1997. The two offences outlined above I believe to be the most relevant.

Freedom of expression

This is enshrined in Article 10 of the European Convention on Human Rights (ECHR). It is a qualified right but the European Court of Human Rights (ECtHR) has been very clear that it applies to information and ideas that offend, shock or disturb. (Handyside v UK, Vereinigung Bildender Künstler v Austria).

Prosecutorial guidance

Due to the extremely wide statutory drafting of section 127(1), prosecutorial discretion is key. The CPS initially struggled with the legislation, as was the case when Paul Chambers, an accountant, was initially found guilty of sending a menacing tweet but later won the High Court challenge against his conviction. Now, prosecutors can look to guidelines when determining whether prosecution in cases involving communications sent via social media is appropriate.

Evidential stage

The next step is the evidential stage in which there is a high evidential threshold. The CPS will only prosecute under section 127 where interference with freedom of expression is “unquestionably prescribed by law, is necessary and is proportionate”. Context is key.

Prosecutions will only be appropriate where the communication is more than offensive, shocking or disturbing; or more than satirical, iconoclastic or rude comment; or more than the expression of unpopular or unfashionable opinion about serious or trivial matters.

This is so, even if distasteful to some or painful to those subjected to it. Do the rape messages here go beyond the “pale of what is tolerable in society?” (DPP v Collins, Smith v ADVFN).

Kier Starmer, former director of public prosecutions (DPP) and CPS head, explicitly recognised that “banter, jokes and offensive comments” are “commonplace and often spontaneous”. It is relevant for prosecutors to consider:

• The way in which the communications were made
• The intended audience
• The application or use of any privacy settings
• The intention of those who posted the communications.

The individuals here may genuinely not have intended that their messages reach a wide audience — it was a private group chat.

Public interest stage

The CPS must then believe that it is in the public interest to prosecute. Since Article 10 ECHR is relevant here, on the particular facts of the case, it must be ‘convincingly’ established that a prosecution is ‘necessary and proportionate’.

Relevant factors include:

• The suspects’ age and maturity
• Whether the suspects have expressed genuine remorse
• The circumstances of, and the harm caused to, the victim
• Whether the communication was or was not intended for a wide audience, or whether that was an obvious consequence of sending the communication.

This last point is particularly important here.

Viable prosecution or thought crime?

The group chat participants may have committed an offence under section 127(1) of the Communications Act 2003, which is drafted very broadly. The students could be charged if the CPS decide that the messages are more than offensive, shocking or disturbing, do go beyond what is tolerable in society, and if it is in the public interest to prosecute.

It may be relevant that there have been protests by students, the fact that a second group chat has allegedly been created (showing no remorse) and several individuals have expressed their disgust and even fear to return to Warwick University’s campus.

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