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Wears a black cape and fights crime. Not Batman. • Author of award-winning No.1 bestseller The Secret Barrister. New book, #FakeLaw, available now to pre-order.
AlanLB 🦋 ⚖ 🦋 Profile picture Jay Jernigan Profile picture Hugh #FBPE Profile picture Jeffrey Rubinoff Profile picture RICHARD LINTER Profile picture 31 added to My Authors
1 Jul 20
There has been quite a bit of coverage today about the so-called “rough sex defence”, which the government is claiming credit for abolishing.

This is a difficult and sensitive subject, but I think it’s worth a brief [THREAD] looking at the truth behind the headlines.
The first thing to note is that there isn’t actually any such thing in law as a “rough sex defence” to murder - or indeed, to any form of assault causing injury.

It is a long established principle of the common law that a person cannot legally consent to being injured or killed.
This has been confirmed by the Court of Appeal in several high-profile cases, most famously (for law students) the case of R v Brown in 1993. This involved the prosecution for ABH of a group of men who inflicted injury on each other during consensual sado-masochistic sex. Image
Read 23 tweets
29 Jun 20
Trials are how criminal barristers make a living. We’ve earned nothing for months. The best thing for us financially would be to support the govt’s plan to replace jury trials with trials by judge & magistrates

We vote against our own interests because it’s the right thing to do
Basically, I’m very proud of my profession. And I think we’re all entitled to be. Even though many of us are struggling to pay rent or mortgage, we are prepared to go without for even longer in order to defend the justice system’s first principles.
In the words of the eponymous hero in his powerhouse speech in Bean - The Ultimate Disaster Movie:

“That’s marvellous. Well that’s what I think, anyway.”
Read 3 tweets
28 Jun 20
“Building new prisons to support the construction industry” is grim even for this chronically misguided Ministry of Justice.
Given that @MoJGovUK is presently threatening to tear up our centuries-old right to jury trial because of the court backlog, here’s an idea:

Spend that £2.5bn earmarked for prisons on building new, modern courts. And use them to hold safe jury trials to clear the backlog.

It’s a hallmark of this government that they would rather spend billions building new prisons than a fraction of that sum ensuring that the people we’re sending there are actually guilty.
Read 4 tweets
23 Jun 20
I worry that this seismic change to our constitution is not being given the attention it urgently warrants. So I'll say again:

The government wants to abolish jury trials in order to address a court backlog caused by its own cuts, under the pretence that it was caused by Covid.
Pre-Covid, there was a backlog of 39,000 cases in the Crown Court. The govt was content with this appalling state of affairs; happy to make defendants, victims & witnesses wait years for justice.

Covid has pushed the backlog to 41,000. This, apparently, demands urgent action.
41,000 cases is unacceptable. It requires urgent action. But that action is not tearing up the right to jury trial, and replacing it with trial by a single judge and two magistrates.

Action means resourcing the system properly, re-opening courts, sourcing alternative venues.
Read 12 tweets
19 Jun 20
The lies begin.

The backlog in the criminal courts has *NOT* been caused by Covid-19. It has been exacerbated, but was already nearly 40,000 cases in the Crown Court pre-Covid.

The delays are due to the govt’s refusal to resource the justice system.

Don’t let them lie to you.
The government chose to repeatedly cut "court sitting days" - causing a huge backlog of trials.

The Justice Secretary and Lord Chief Justice are now both openly endorsing abolishing jury trials, to "solve" the "problem" that the government deliberately engineered.
We have warned about this for YEARS. Til we were blue in the face. The government kept cutting, and the press largely ignored it, favouring "soft sentence" nonsense peddled by the Home Office.

Now we face a genuine threat to one of the fundaments of our constitution.
Read 6 tweets
15 Jun 20
Prison is reserved for cases which are so serious that only immediate custody will suffice.

This is obviously disgusting. But nobody was hurt. Nothing was damaged. The “victim” is the public’s sensibilities. The harm is purely offence. And the judge accepted there was no intent.
Is it really the case that recklessly causing offence is so serious that no other penalty, other than a life-defining sentence of imprisonment, is appropriate for a man with no previous convictions? I know some will think Yes, and I understand why. But I struggle with this.
Outraging public decency is itself an unsatisfactorily broad offence. The Law Commission has published proposals to reform it (ignored by the government), observing “it is not a tool for the enforcement of morals”. That, I have to say, looks to me what has happened here.
Read 4 tweets
14 Jun 20
I’m not even angry. Just resigned to the predictability; the sheer dearth of imagination in this brain trust of the intellectually damned. All they ever have to say on criminal justice - the only answer they can ever think of - is “longer sentences”.

We deserve so much better.
We already have an offence of criminal damage. Where damage is caused to a value of over £5,000, the maximum sentence is already 10 years.

This proposal seeks to increase the sentence for low-value criminal damage where the target is a statue.

A statue.
There are so many problems with criminal justice. The system is close to collapse - the courts are backlogged, trials are delayed for years and lack of resources often cause cases to collapse.

A serious government could do so much to improve it. But these people are not serious.
Read 6 tweets
12 Jun 20
“Violent protestors to be jailed within 24 hours.”

Oh dear. Populist silliness and #FakeLaw from a Justice Secretary who should know better, and a Home Secretary who just doesn’t.

Here’s why: [SHORT THREAD]
1. Not all people charged with offences arising out of protests will plead guilty. Some will elect trials in the magistrates’ court, which will take months to come round.

Some alleged offences will be tried in the Crown Court, where there is a trial backlog of at least a year.
2. Of those who plead guilty, a number will be young and have no previous convictions. Courts will be expected to obtain Pre-Sentence Reports from the Probation Service (or Youth Offending Team for under-18s) before sentencing. Due to current pressures, this will take time.
Read 8 tweets
9 Jun 20
Well this is one in the eye for all the critics. Miss Sandra from the United States has reviewed my work and finds my lawsplaining VERY interesting AND wants to send me some photos. Today is a good news day.
So now we wait.
Come on Miss Sandra.
Read 6 tweets
8 Jun 20
.@pritipatel is either making up sentencing laws, or has hopelessly misunderstood how the existing law works.

As Danny says, there is no minimum sentence for the offence of assaulting an emergency worker.

Here’s the video of @pritipatel pledging to double a minimum sentence *that does not exist*.…
The most charitable interpretation of this fiasco is that the Home Secretary, reading from a prepared document having supposedly been fully briefed, confused the words “maximum” and “minimum”. Which, in criminal law, is about as forgivable as confusing “guilty” and “not guilty”.
Read 5 tweets
5 Jun 20
@tomhunt1988 When did you last attend a Crown Court, Tom?
@tomhunt1988 I’d also be interested to know your evidence base for the assertion that length of sentence serves as a deterrent.
@tomhunt1988 Finally, as you’re advertising your expertise, can you tell us more about your plans for ending automatic early release? How does it differ from the recent changes? Are you proposing ending early release for all prisoners? What does research say about the effect on reoffending?
Read 3 tweets
5 Jun 20
@MissEllieMae Defund the police? As someone who watches victims of sexual and violent crime failed on a daily basis by a justice system that has been cut through the bone, I can tell you with confidence that this is the stupidest thing anyone has said about criminal justice in a long time.
@MissEllieMae The article you are tweeting gives you the context. In the US, spending on police and prisons has soared at the expense of social programmes. In the UK, the justice budget has been cut more than any other area of public life over the last decade.
@MissEllieMae The police have already been defunded, as have the prisons, the CPS, the courts, Probation, legal aid - every element of criminal justice is in crisis. Police investigations take literally years now, and many viable prosecutions still collapse for - yes - lack of basic resources.
Read 3 tweets
5 Jun 20
@Joanna__Hardy @BPTC_Lecturer Why do we have bread? Who first thought, “I bet if I grind some wheat and mix it with fungus, water, salt, sugar and butter, whack it around a bit and then heat it in an enclosed space, that will taste good”?
@Joanna__Hardy @BPTC_Lecturer And did that person just happen to get the quantities, the kneading and the baking time perfect on the first attempt? Or did they make an inedible monstrosity, but still think, “I reckon if I just tinker with the amounts and the heat I’m onto a winner”? Either way, what a genius.
@Joanna__Hardy @BPTC_Lecturer This is a serious cooking question, and I expect a full explanation. I just don’t understand the mindset of that irrepressible little bread inventor, filling his cave with piles of misshaped, unrisen and burned trials and errors. What motivated him to keep going?
Read 3 tweets
5 Jun 20
This illustrates the importance of legal representation for those accused by the state.

But for this footage, the official state narrative - “tripped & fell” - would have been swallowed whole by many, not least those in my mentions fuming at lawyers offering help to protestors.
This is why, even though it’s sometimes unpopular, we don’t simply accept the truth of an accusation at face value.

Instead we demand an independent criminal investigation, and, equip each other, through legal aid, with the tools to mount a defence.
Inevitably, guilty people will sometimes try to use this to their advantage to evade justice. And it’s frustrating, I know. I prosecute these people. But it’s the trade-off in a system engineered to try to avoid innocents being wrongly accused and convicted by the state machinery
Read 5 tweets
4 Jun 20
The Attorney General is a liar. Her tweet was clear, as was its meaning. If a barrister acted with such dishonesty in court, they would likely be reported to the Bar Standards Board.
“I’m sorry. I recognise that it was inappropriate to comment, let alone express a legal opinion, on prospective criminal proceedings. I take the role of Attorney General seriously, and apologise for putting partisan politics ahead of my constitutional responsibilities.”

Read 5 tweets
1 Jun 20
The incident giving rise to this allegation occurred in April 2019.

The courts do not have capacity to hear the trial until June 2021.

This is happening all over the country. These delays pre-existed Covid - the govt refuses to pay for enough courtrooms to open to hear trials.
Covid-19 presents severe problems to running Crown Court trials. Adjourning them is the right thing to do. But if the earliest that a court centre can accommodate an adjourned trial is a year away, something is going very wrong.

This is not a working justice system.
Read 3 tweets
1 Jun 20
@MRJKilcoyne @Louise_VJ I don’t know why I’ve been tagged in this thread, and can’t see most of it, but putting aside Henriques’ comments, there is a very real problem with legal aid rates and funding at the junior criminal Bar, with people earning below minimum wage for 60-hour weeks.
@MRJKilcoyne @Louise_VJ It’s not a fashionable or sympathetic topic, as shown by your caricature, but it’s vital. Very few graduates want to become criminal solicitors because the pay is so low. Pay and conditions at the criminal Bar is forcing many - especially women - out of the profession.
@MRJKilcoyne @Louise_VJ This means that, after years of progress, criminal law is going to be the preserve of the independently wealthy, reinforcing the very stereotype you rail against. It also, inevitably, will deter the best candidates from pursuing crime.
Read 4 tweets
31 May 20
Indoors, I should add. The government is happy for you to have sex with up to 5 other people in your garden
(In law, at least. The Guidance, although not the law, requires you all to be two metres apart at the time)
To those asking “was this not illegal before?”, the answer is complicated. Reg 7 (prohibition on gatherings) didn’t apply to gatherings inside a private address. Reg 6 prohibited leaving your house, but *without reasonable excuse*. Excitingly, this meant that... 1/2
Read 5 tweets
28 May 20
Lots of excitement about “might”.

The reason for this is that the police don’t determine breaches; they form an opinion. If that opinion is disputed, a court will decide.

In this context, “might” means the police concluded it *was*. Hence they say they would have sent him back.
As is demonstrated by the police saying they would have used a power that is only open to them if they consider that a breach has occurred:
Ultimately though, the police views only confirm what was obvious, and won’t change any minds. And they can’t offer any view on breaches of Guidance. Those who want to gaslight the public will continue to do so unabashed. C’est la vie. The bigger issue is the Attorney General.
Read 3 tweets
28 May 20
So now we have a conflict.

The police, having considered the evidence have expressed the view that Cummings did break the law.

While the Attorney General and superintendent of the CPS @SuellaBraverman immediately endorsed a partisan claim of no legal wrongdoing.

What a mess.
It looks as if no action is to be taken, but had Cummings been issued with a fixed penalty notice, and had he refused to pay, he would have been prosecuted. By the Crown Prosecution Service. Whose independent judgement would have been compromised by the AG’s partisan games.
This, I’m afraid, is a resigning issue for @SuellaBraverman. She has, through a wholesale failure to understand her role as Attorney General, politicised an independent criminal inquiry, presupposing the outcome and embarrassing the CPS.
Read 3 tweets
27 May 20
@davidallengreen @bbclaurak Indeed, and the changing details from the “source” in the tweets that followed smack of a quickly changing story. Eg this account conceded he travelled “when he and his wife had coronavirus”. Not “because he feared he might get it”.
@davidallengreen @bbclaurak Then, as critics point out the breach of the rules that would follow relying on elderly parents for care, suddenly the source offers “further details”, clarifying the prospective caregiver as the sister. By time of statement, is sister and nieces.
@davidallengreen @bbclaurak Oddly, the “small number of people in No 10” who “knew that Cummings had gone to Durham” were not mentioned in his statement. Indeed, he claimed that he only told the PM some days later.
Read 5 tweets