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‘Monday’ Message 09.07.19

Chair’s Update:
Chris Henley QC



Race and the CJS:

The scenes outside the Old Bailey last week, as the contempt proceedings against the leader of the EDL were going on inside the building, made me think once again about the issue of race and the CJS. The EDL leader, who has helpfully taken the name of a low grade football hooligan from his hometown of Luton, rather than using his minor public school sounding real one, had been joined by a bunch of his most ardent supporters who took up position immediately outside the main entrance to building. Their range of chants was reassuringly limited but they were quite noisy. An atavistic dislike of racial and cultural difference oozed from their every pore. When I was there for the previous protest on 14th May, I felt almost sorry for them. Not enough love in their lives would be my North London patronising assumption. But probably not far from the truth.

But the real point was that however plastic, pantomime and sad they looked to me, with their fluttering Union Jacks and Brexit placards, raging against the progressive tide of inclusion and mutual enrichment, they created a horribly aggressive and intimidating atmosphere for those people having to deal with the real trauma of an appearance at the Old Bailey. On the 14th they spilled across the road, unimpeded by any barriers, shoving mobile phone cameras in the faces of anyone they took exception to. They had a low loader parked up, to use as a stage with a large screen and speakers, blocking the cycle lane and generally obstructing the road. At the second demonstration last week a double decker bus with their handsome Prince’s face on was parked up, performing a similar function, and was allowed to remain, bar a forlorn parking ticket.

Why should witnesses, defendants, or jurors going about their lawful but very stressful business, have to experience or tolerate such a hateful atmosphere, have to run that sort of gauntlet?

A light touch or questionable indulgence:

Perhaps the City Police thought a light touch would better maintain the peace, but this sort of questionable indulgence, and that’s what it was, was to be contrasted with the much firmer enforcement of a smaller anti-racist group hemmed in by barriers further up the road, as is the normal routine. I saw this group being jeered at and abused at close quarters by EDL supporters, free roaming with impunity, whereas any of the smaller group attempting to do the same in reverse were marched straight back.

They are entitled to protest, of course they are, but the normal rules, respecting the rights of others to move freely and not to feel threatened, did not seem to apply. It would be interesting to know who it was exactly who granted permission for their demonstration, at such an outrageously inappropriate location, claustrophobically close to the entrance, and the thinking behind it. This is on the assumption that permission was actually granted. Access should surely have been denied to the low loader and the bus.

Rajiv Menon’s email:

Rajiv Menon QC who was at the Old Bailey on both occasions, was so unimpressed with this ‘special’ treatment and ‘deference’ shown to the EDL group, he has sent an email raising some questions. Here is some of what he has written….

In my 25 years at the criminal Bar, I am unaware of any other political demonstration involving hundreds of protestors that the City of London police have allowed to take place directly opposite the Central Criminal Court. Other protestors, I believe, are told to protest in the open space at the junction of the Old Bailey and Newgate Street, so as not to obstruct traffic. Why is there so much apparent police deference to Mr Yaxley-Lennon and his supporters? Why the special privileges they are seemingly given? It is unthinkable that the police would allow any other political protest (for example, an anti-racist demonstration or a demonstration in support of Islamists) the same latitude and courtesy.

I was outside the Central Criminal Court at lunch-time (14th May), watching the two protests. I saw a number of Mr Yaxley-Lennon’s supporters, some with Britain First placards, some with anti-immigrant and anti-refugee placards, being allowed to leave their protest in the road directly opposite the front doors of the Central Criminal Court and provocatively stand on the pavement in front of the old court building, taunting the anti-racist protestors. I asked a senior police officer why they were not using their public order powers to prevent a breach of the peace, stop these white nationalists from protesting on the pavement directly outside the old court building (which I have seen them routinely do with other protestors in the past) and stop these white nationalists from provocatively taunting the anti-racists. The officer turned away and refused to answer my question.

On the same day, I saw a number of people outside the building, some undoubtedly jurors, some undoubtedly relatives of defendants, some undoubtedly members of the public, who looked frightened and intimidated by the white nationalist protest. The police did nothing to allay their fears.

On 14th May 2019, the Old Bailey road was obstructed by a flat-bed truck (with a huge television screen and loud, powerful speakers) and hundreds of supporters in the street. Traffic had to be diverted. The police did nothing to prevent the road from being obstructed. When I asked a senior police officer why they were doing nothing to prevent the road from being obstructed, I was told that we have the right to protest in this country. When I replied that I was not asking them to ban the protest but was querying why they were being so deferential to Mr Yaxley-Lennon’s supporters and allowing them to obstruct the road, I was told to complain to the Commissioner of the City of London police. 

Today, unlike on 14th May 2019, there were barriers erected around the area directly opposite the front doors of the Central Criminal Court. As I approached the barriers at about 9.35 am this morning, along with a number of other counsel, in order to enter the building, we were told to wait as Mr Yaxley-Lennon, surrounded by some of his supporters, was about to enter the building. Whilst everybody else (whether counsel, solicitors, jurors or journalists) had to queue and wait their turn, Mr Yaxley-Lennon was being treated by the police like he was royalty and the rest of us had to wait for him to enter the building first. There was then a scuffle (I could not see what triggered this). Mr Yaxley-Lennon decided not to enter the building at that stage and addressed his supporters outside the building instead. I had to jump the barriers to enter the building.

Things have arguably got worse since the Lammy Review was published:

So back to the broader issues that more directly concern us. The Lammy Review which reported in September 2017 shone a bright, very focused light on disproportionality on the grounds of race in the criminal justice system. At every stage, at every moment of intervention, from arrest and charge, then decisions on bail, all the way through to sentence, outcomes for BAME defendants are disproportionately adverse. Their treatment on the same facts is different. Since Lammy reported the criminal courts’ treatment of black defendants has not improved; in fact things have got worse. The proportion of BAME inmates in Young Offender Institutions has gone up from 43% and now stands at 51%; higher as a proportion than in the US. Yet there is silence from those who set sentencing policy on this as an issue, and no strategic plan within the court system to deal with any of the Lammy priorities. There is glacially slow progress on improving the racial balance of the judiciary in the Magistrates’ Courts, the Crown Courts, and beyond. Within the M25 there is only one black Crown Court Judge, other minority ethnic groups are marginally better represented, but in many courts across the country there are none.

We are all responsible. A BSB survey on pupillage, published last week as part of their annual statistical update, showed very significant disparities in obtaining pupillage between white and BAME students with the same academic qualifications, e.g. if you had a 1st class degree and a very competent BPTC grade 53% of white students had obtained pupillage compared with 37% of BAME students, if a 2:1 degree and ‘very competent’ the figures were 44% to 23%.

The police, prison service and MoJ may be far from perfect, but there is honesty within these institutions about the reality and a desire evidenced by a clear plan in place to address it. David Lammy explained in his recent guest Monday Message that the prison service has committed to recruit 14% of its staff from BAME background by the end of 2020, and that the MoJ has set up a Race and Ethnicity Board and adopted the principle of ‘explain or reform’ when reviewing the impact of policy. But what about us and the Courts?

The Court of Appeal’s response to the Supreme Court Judgment in Jogee has been pretty miserable. The gasps of joy at the presumed implications of this momentous decision by the families, disproportionately black, who have been hurt unduly by ‘the wrong turn’ the law took, have not been met with a contrite determination to put right every arguably flawed verdict. Instead the bar was raised to a test of ‘substantial injustice’, with the result that virtually no existing conviction has been interfered with. The families now gasping for different reasons.

The humane, and in my view absolutely right decision (not really for me to say but anyway), to suspend the sentence in the very sad Letts case – sending relatively modest amounts of money to their son in Syria – was a mercy not shown in other cases where the defendants were Muslim and pleaded guilty, for example in one case a hospital director and his wife were imprisoned immediately for 2 years 3 months, and 1 year 10 months, respectively for sending £219 to a nephew in Syria.  The Letts were convicted after a trial and sent a little more to their son. There is an inescapable inconsistency.

This is not about the integrity or judgment of any individuals, this is about a collective need to robustly challenge the complacent, conceited alibi that decisions are independent, made on their own facts, and blind to race, colour or creed. We need to be honest, open our eyes, and jettison the ‘alibi’ if the facts plainly do not bear it out. Currently, we do not have equal treatment and someone in a very senior position needs to take this issue by the scruff of its neck. An annual authoritative racial and diversity audit of every facet of the criminal justice system, examining transparently the true state of things, would be a powerful statement of genuine intent.

The sooner we acknowledge the problem the sooner we might start doing something about it. We are all responsible.

This week’s poem: ‘Tonight I can write the saddest lines’ by Pablo Neruda:

(Given the rather downbeat tone of this Message I have chosen the most beautiful, melancholy poem)

‘Tonight I can write the saddest lines.

Write, for example,’The night is shattered
and the blue stars shiver in the distance.’

The night wind revolves in the sky and sings.

Tonight I can write the saddest lines.
I loved her, and sometimes she loved me too.

Through nights like this one I held her in my arms
I kissed her again and again under the endless sky…’.

Seriously, Wow. No?

Love Island for Lawyers:

Ok, finally to brighten and lighten, apparently it’s Love Island season again (never watched it myself, obviously), so I thought it might be useful to provide some legal translations of some the catchphrases:

‘Got a text’ –  a new brief has arrived in chambers
‘If there’s one thing I am, it’s loyal’– I’m going to cut your throat
‘Grafting’– doing an overnight skeleton argument
‘It is what it is’ –response to an unanswerable bad character application
‘Casa Amor’– The Court of Appeal
Recoupling’ – a successful application to transfer the representation order
Pied’– sacked by your client
My type on paper’ –  I’ve never met the client
Putting all your eggs in one basket –serving a defence statement
‘Can I pull you for a chat’ – you should be pleading guilty
‘Being a total melt’ – applying for an adjournment
Cracking on’– moving chambers

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