Challenges in Criminal Justice 2022004347, 9780367698041, 9780367698072, 9781003143321

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Challenges in Criminal Justice

This collection examines contemporary challenges to the criminal justice system in England and Wales. The chapters, written by established academics, rising stars and practising lawyers, seek not only to highlight these challenges but to offer solutions. The book examines issues with legal assistance in the police station, concerns relating to juror decision making and problems in and presented by both virtual hearings and the advent of the Single Justice Procedure Notice. The work also examines challenges surrounding vulnerability in the criminal justice system. Here, diversity includes vulnerability in the criminal trial, neurodivergence as well as issues with diversity and marginalisation in the criminal justice system as a whole. The book also discusses matters centred around sexual offending – including the attrition rate in rape cases as well as the recent development of ‘vigilante’ paedophile hunters and their acceptance as a viable limb of the criminal justice system. Finally, the volume looks at the post-conviction stage and examines recent prison policy through the lens of the human rights of the prisoner. The closing chapter examines the independence of the Criminal Cases Review Commission and highlights how recent changes have undermined this. While focused on England and Wales, the topics discussed are of wider international significance and will be of interest to students, academics and policy-makers. Ed Johnston is a Senior Lecturer in Law at the University of Northampton, UK. His research interests are in the areas of disclosure, the role of the defence lawyer and rise of managerialism in an adversarial setting. Ed has recently published his monograph, The Role of the Defense Lawyer: Perceptions and Conceptions within a Changing System. He is the co-author of the Criminal Procedure and Punishment textbook and has published a number of articles concerning changes to the criminal justice process.

Routledge Contemporary Issues in Criminal Justice and Procedure Series Editor Ed Johnston is a Senior Lecturer in Law, University of Northampton

The Law of Disclosure A Perennial Problem in Criminal Justice Edited by Ed Johnston and Tom Smith Challenges in Criminal Justice Edited by Ed Johnston Probation, Mental Health and Criminal Justice Towards Equivalence Edited by Charlie Brooker and Coral Sirdifield See more at https://www.routledge.com/Routledge-Research-in-Legal-History/ book-series/CONTEMPCJP

Challenges in Criminal Justice

Edited by Ed Johnston

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Ed Johnston; individual chapters, the contributors The right of Ed Johnston to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Johnston, Ed, editor. Title: Challenges in criminal justice / edited by Ed Johnston. Description: Abingdon, Oxon ; New York, NY : Routledge, 2023. | Series: Routledge contemporary issues in criminal justice and procedure | Includes bibliographical references and index. | Summary provided by publisher. Identifiers: LCCN 2022004347 | ISBN 9780367698041 (hardback) | ISBN 9780367698072 (paperback) | ISBN 9781003143321 (ebook) Subjects: LCSH: Criminal justice, Administration of--England. Classification: LCC KD7876 .C429 2023 | DDC 345.42/05--dc23/eng/ 20220526 LC record available at https://lccn.loc.gov/2022004347 ISBN: 978-0-367-69804-1 (hbk) ISBN: 978-0-367-69807-2 (pbk) ISBN: 978-1-003-14332-1 (ebk) DOI: 10.4324/9781003143321 Typeset in Galliard by Taylor & Francis Books

Contents

List of illustrations Acknowledgements List of contributors Table of cases Table of legislation 1 Introduction

vii viii ix xiv xvi 1

ED JOHNSTON

2 Legal assistance at the police station: Shifts and contradictions in the context of Covid-19

6

ED JOHNSTON AND ED CAPE

3 Jury decision making in the criminal trial

26

REBECCA K. HELM AND MADELEINE MILLAR

4 The jury on trial: Guilty or not guilty? Investigating jury trial issues through a comparative approach

47

CRISTINA D’ANIELLO

5 Contemporary issues in criminal court procedure

65

JENNI WARD

6 Vulnerability in the criminal trial

83

SAMANTHA FAIRCLOUGH

7 Caught in the net: Police powers of investigation and the risks for autistic individuals

100

TOM SMITH

8 Diversity in the criminal justice system JAMES PICKLES

121

vi Contents 9 Listening to ‘Leading Voices’: Using expert insight to identify challenges to, and suggestions for the improvement of, rape investigation and prosecution in England and Wales

141

BENJAMIN A. HINE, ANTHONY D. MURPHY, EMMA WILLIAMS AND BIMSARA KENNATH WIDANARALALAGE DON

10 Paedophile hunters and the road to injustice

164

KAREN WALTON AND REBECCA PENFOLD

11 Prisoners’ human rights in England & Wales: Zigzags, flatlines and missed opportunities

180

ANASTASIA KARAMALIDOU

12 ‘Regulated from a spirit of hostility’: Independence and the Criminal Cases Review Commission

197

JON ROBINS

Bibliography Index

214 242

Illustrations

Figures 8.1 8.2 8.3

Proportion of female police officers. Stop and search rate per 1000 people, by ethnicity. The proportion of adults throughout the criminal justice system in each ethnic group, 2018.

125 133 134

Tables 3.1 5.1 5.2

Demonstrated biases in jury decision making Defendants proceeded against – England and Wales Age profile of serving magistrates end of April 2020

39 68 73

Acknowledgements

I would like to express my thanks to the authors for their patience, dedication to the project and excellent contributions to this volume. I think this makes for a really interesting collection. I would also like to thank my editor, Alison Kirk, for her support. Finally, I would like to thank my family, Wolfy, Erin and Jacob for their support along the way. Thank you

Contributors

Prof. Ed Cape is an internationally known researcher in the field of criminal justice, and is also the author of a range of practitioner texts. His recent research projects include two examining effective criminal defence in a range of European countries, and a third on effective criminal defence in Latin America. In 2014 he published the results of an empirical study of the rights of suspects in police custody in four European jurisdictions, and recently published a study of pre-trial detention decision-making in England and Wales. Ed wrote Improving Pretrial Justice: The Roles of Lawyers and Paralegals for the Open Society Foundations, and a handbook on early access to legal aid for the UN Office on Drugs and Crime. Publications for legal practitioners include Defending Suspects at Police Stations, which is currently in its 6th edition, and Ed contributes to Blackstone's Criminal Practice and writes case commentaries for Criminal Law Review. Dr. Ed Johnston is a Senior Lecturer in Law at the University of Northampton. Ed’s research interests are in the areas of disclosure, the role of the defence lawyer and rise of managerialism in an adversarial setting. Ed has recently published his monograph, The Role of the Defense Lawyer: Perceptions and Conceptions within a Changing System. He is the co-author of the Criminal Procedure and Punishment textbook and has published a number of articles concerning changes to the criminal justice process. Dr. Rebecca Helm is a Senior Lecturer and Director of the Evidence-Based Justice Lab at the University of Exeter. She is a current UKRI Future Leaders Fellow, and is an expert in the field of psychology and law and using quantitative methodology to examine the legal system. Her research examines how legal procedures work in practice, and how changing aspects of procedure can enhance the ability of the justice system to achieve normative goals. This research includes examining how juries function when making legal decisions, how the legal system assesses (and should assess) the reliability of testimony, and when and why people choose to ‘admit’ guilt. Her work has been funded by UK Research and Innovation, the Economic and Social Research Council, and the American Psychology and Law Society, and has been published in leading journals in both law and psychology. Dr. Helm is also a qualified solicitor in England and Wales and attorney in New York, USA. She is enthusiastic

x

List of contributors about utilising empirical data and insight from cognitive science in legal practice, and works with students in the University of Exeter Community Law Clinic to provide legal services to the community.

Maddy Millar is a PhD student in the Evidence-Based Justice Lab at the University of Exeter. She has a BSc in Psychology from the University of Exeter and a Masters in Research in Psychology from the University of Bath. Her interests lie in understanding biases in cognition, and, more specifically, in uncovering the cognitive processes involved in sub-optimal decision making. Maddy’s PhD research focusses on the effects of System Justification on jury decision making; she is interested in how juries perceive threats to their social system, and how their responses to such threats may result in a failure to engage in critical evidence evaluation as required by the adversarial model. She has presented her work at a number of conferences, and has won prizes for her oral and poster presentations. Dr. Cristina d’Aniello obtained her first degree in Law at the Seconda Università degli Studi di Napoli, Italy. After passing the bar examination, she worked as a lawyer in Italy. She then moved to the UK in 2012, where she completed an MSc in Clinical Criminology followed by a PhD in Criminology at the University of Leicester. In March 2019, Dr. d’Aniello joined the Department of Social Sciences at UWE Bristol as a Lecturer in Criminology. Her primary research interests include Miscarriages of Justice, Jury Decision-Making, Psychology in the Courtroom, Deception Detection in Forensic Contexts, and Organised Crime. Her research focuses on real-world issues and adopts transnational, interdisciplinary and comparative approaches to contribute to the improvement and reform of the criminal justice system. Dr. d’Aniello is Associate Editor of Contention: The Multidisciplinary Journal of Social Protest and an ad-hoc reviewer for a number of academic journals in the field of Criminology. Dr. Jenni Ward is a Senior Lecturer in Law at Middlesex University. Before joining Middlesex in 2007 she was an academic researcher at Goldsmiths College and before that at Imperial College. Her main areas of research were young people living in state care, illicit drug use, and youth transitions to adulthood. She has held funding awards from the ESRC and Home Office to examine the lives of care leavers making the transition to independent living. Her doctoral research was an ethnography of rave nightclub culture and drug dealing. Jenni currently researches the magistracy and transformations to summary justice in the lower criminal courts. Dr. Samantha Fairclough joined Birmingham Law School as a Lecturer in September 2017. Prior to this, she was there as an ESRC funded PhD student. During this time, she contributed to teaching on various LLB degrees at the Law School and held a position as a Teaching Fellow from 2016–17. Her research and teaching interests lie in the fields of criminal evidence, law and justice and specifically on the way in which the defendant is treated versus other participants in criminal trials.

List of contributors xi Dr. Tom Smith is an Associate Professor in Law and member of the Global Security, Crime and Justice research group, within the Faculty of Business and Law, University of the West of England (UWE) Bristol. His research interests include remand (pre-trial detention and bail); disclosure of evidence in criminal proceedings; criminal defence lawyers; criminal legal aid; court reporting and open justice; and neurodivergence within the criminal justice system. Tom has published in various peer-reviewed law journals (including the Criminal Law Review and Howard Journal of Criminal Justice) and given papers at national and international conferences. He has undertaken various research activities with NGOs, charities and Government bodies, including working on cross-jurisdictional projects related to criminal defence and a pretrial detention reform project in China; delivering training for the Judicial College and College of Policing on disclosure; and giving evidence to the Victorian Royal Commission into the Management of Police Informants and various House of Commons Select Committee inquiries. He has co-edited a collection examining disclosure in the criminal justice process (2020), and is co-author of the book, Criminal Procedure and Punishment. He is also editor of a forthcoming book on autistic suspects, defendants and offenders in the criminal justice system. Tom is the Co-ordinator of the Neurodivergence in Criminal Justice Network (NICJN), a research and knowledge exchange group seeking to promote evidence-led practice in criminal justice processes involving neurodivergent individuals, which brings together expertise from academia, practice and the community. Dr. James Pickles is a Lecturer in Criminology at the University of Brighton. He held previous posts at Sheffield Hallam University as a Lecturer in Criminology in 2018, as an Academic Tutor at the University of Sunderland, and as an Associate Lecturer at Northumbria University. James has also worked as a youth and community worker, co-facilitating LGBT+ youth groups across the North East of England. His doctoral research explored the experiences of antiLGBT+ hate crime across three community strands: police, voluntary sector, and students. His research focuses on sexuality, gender, hate, violence, and sexual health. Dr. Ben Hine is a Senior Lecturer in Psychology at the University of West London. He is an interdisciplinary researcher with interests in applied gender, criminological, and forensic psychology. For example, he has explored the manifestation of gender within the criminal justice system, specifically the impact of rape myths in the progression of female and male cases through the criminal justice system. This includes two large-scale projects assessing police officers’ beliefs and judgements, and rape case reviews in collaboration with the Mayor’s Office for Policing and Crime (MOPAC). He has also worked in collaboration with charities Safelives and The Mankind Initiative to conduct large scale case reviews to illuminate the needs of domestic violence victims. Anthony Murphy is an Associate Professor of Psychology and Director of Psychology Programmes at the University of Birmingham Dubai. Anthony is an

xii List of contributors interdisciplinary researcher with primary interests in areas of forensic and clinical psychology, with particular foci on violent and sexual crimes, biopsychosocial antecedents and trajectories into crime, clinical management, and psychological phenomenology. Anthony’s collaborative research, in conjunction with Dr Ben Hine and the London Mayor’s Office for Policing and Crime, has contributed significantly to policy and practice in the training of Police Officers in the UK. He is an Associate Fellow of the British Psychological Society, a member of the Society for Evidence-Based Policing and the European Association of Psychology and Law, and a Senior Fellow of the Higher Education Academy. Emma Williams is the Director of Policing Research and Strategic Partnerships at the Centre for Police Research and Learning at the Open University. Previously Emma was the Director of the Canterbury Centre for Police Research and the Programme Director of two MSc programmes at Canterbury Christ Church University (CCCU) for serving officers and staff. She has over twenty years’ experience of police research and learning. Specialising in qualitative research she has been involved in the management of projects and researcher roles. Emma has experience of leading sensitive research areas including work interviewing vulnerable, victims of sexual violence. Emma is a proactive driver of engagement in policing, particularly within the federated ranks and a keen user of social media for widening communication. She writes regularly for ‘Policing Insight’. Having worked in an academic, operational and policy environment throughout her career in policing she has excellent understanding of how research impacts in all of these areas. Part of her professional ethos is to engage police practitioners in research, its outputs and in using evidence to implement change in policing. B. Kennath Widanaralalage Don is a Lecturer in Psychology at the University of Westminster. His research interests include Forensic Psychology, victimology, and masculinity. His doctoral thesis focuses on the experiences of male-on-male rape and sexual abuse survivors and explores issues around the barriers encountered by male survivors in self-recognising and disclosing their victimisation, accessing therapeutic support, and reporting to the police and engaging with the Criminal Justice System. His research has brought him to engage with men affected by sexual violence, as well as third-sector support services across the UK. He is committed to an inclusive approach to the study of sexual and interpersonal violence that gives voice to the experiences of victimisation within marginalised and hidden communities. He holds an MSc in Forensic Psychology from the University of Kent and a BSc in Psychology with Criminology from the University of West London. Karen Walton is an experienced, heavyweight criminal practitioner with a proven track record in dealing with complex serious offences. She has extensive experience in cases involving vulnerable witnesses. Karen has more recently had experience in an increasing number of young defendants charged with sexual offences and issues of mental health conditions including neurodiverse conditions. Karen has worked

List of contributors

xiii

extensively with intermediaries and experts in neurodiverse conditions. Karen is a Middle Temple vulnerable witness trainer in the Middle Temple Advocacy training programme and will be a trainer on the Ethics programme in 2022. Karen is an authorised supervisor and chair of chambers’ women’s group. Karen provides seminars and training in sexual offences for solicitors. Karen has represented defendants involved in gang related crime and homicide. She is ranked in Chambers and Partners. Rebecca Penfold is a junior criminal practitioner. She is a member of St John’s Buildings in Manchester and a door tenant at Drystone Chambers, London. She is a criminal defence specialist and defends a range of general criminal cases, spanning violence, fraud, and sexual offences. Rebecca is also particularly adept at defending in the regulatory criminal cases, ranging from animal welfare, environmental offences through to fire safety. As an advocate Rebecca is focussed upon obtaining the best result for the client, appreciating that consequences are often far reaching. Rebecca is also instructed to prosecute and defend in professional misconduct proceedings. She fundamentally believes in access to justice and to that end engages in social mobility programmes. She works towards improving the Bar for all, offering support through mentoring more junior members of the Bar and sitting on various Bar committees. Dr. Anastasia Karamalidou is Senior Lecturer in Criminology at the University of the West of England, Bristol, and Senior Fellow of the Higher Education Academy. Anastasia is passionate about comparative and inter-disciplinary research. Her PhD research was a comparative prison study of prisoners’ human rights in England and Wales, and in the Netherlands. Anastasia’s research interests focus on prison systems, human rights, European human rights law, and psychoanalysis, exploring the application and employment of human rights and psychoanalytical insights in prison reform. Her publications include the monograph Embedding Human Rights in Prison: English and Dutch Perspectives and the edited collection The Prison at the Crossroads. Dr. Jon Robins is a Lecturer in Criminology at Brighton University. He is also a freelance journalist and author of books including Justice in a Time of Austerity, Guilty Until Proven Innocent and The First Miscarriage of Justice. He is editor of the Justice Gap (www.thejusticegap.com).

Table of cases

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin). Castorina v Chief Constable of Surrey [1988] NLJR 180. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S., 579 (1993). Dayanan v Turkey No 7377/03. Edwards v United Kingdom 14 March 2002. Firth v Epping Magistrates’ Court [2011] EWHC 388 (Admin). Graham v Chief Constable of West Mercia Constabulary and Others [2011] EWHC 4 (QB). Hayes v Merseyside Police [2012] 1 WLR 517. Howarth v Commissioner of Police of the Metropolis [2011] EWHC 2818 (QB). JH and TG case numbers 04/5576/D3 and 04/5577/D3. Keenan v United Kingdom 3 April 2001. Lord Hanningfield of Chelmsford v Chief Constable of Essex [2013] EWHC 243 (QB). McGlinchey and others v United Kingdom 29 April 2003. R (Amin and Middleton) v Home Secretary [2003] QB 581. R (DSD & Anor) v The Parole Board of England and Wales [2018] EWHC 694. R (Middleton) v West Somerset Coroner [2004] 2 AC 192. R (on the application of DPP) v Redbridge Youth Court [2001] EWHC Admin 209. R (on the application of L) v Chief Constable of Surrey Police [2017] 1 WLR 2047. R (on the application of OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin). R (Wakenshaw) v Secretary of State for Justice [2018] EWHC 2089. R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin). R v Anthony [2005] EWCA Crim 952. R v Argent [1997] 2 Cr App R 27. R v Beckles [2004] EWCA Crim 2766. R v Betts and Hall [2001] EWCA Crim 224. R v C (2001) EWCA Crim 1054. R v Camberwell Green Youth Court [2005] UKHL 4.

Table of cases

xv

R v Cannings [2004] EWCA Crim 1. R v CB [2020] EWCA Crim 790, [2021] 1 WLR 725. R v Clark [2003] EWCA Crim 1020. R v Condron [1997] 1 Cr App R 185. R v Dlugosz, R v Pickering, R v MDS [2013] EWCA Crim 2. R v Hallam (2012) No. 2011/04293/C5, para 76. R v Howell [2003] EWCA Crim 1, especially paras 23 and 24. R v Kiszko (unreported) 18 February 1992, CA. R v Loosely [2001] 1 W.L.R. 2060. R v Maguire (1992) 94 Cr App R 133. R v McIlkenny and Others [1992] 2 All ER 417. R v Newell [2012]. R v Paris, Miller and Abdullahi (1993) Cr App R 99 (CA). R v Raghip, Silcott and Braithwaite (1991) The Times, 9 December 1991. R v Hill Richardson; R v Conlon; R v Armstrong; R v Hill and others (1989) The Times 20 October. R v SH [2003] EWCA Crim 1208. R v Thacker and others [2021] EWCA Crim 97. R v Turnbull [1977] QB 224. R v Waltham Forest Youth Court [2004] EWHC 715 (Admin). R v Ward [1993] 1 WLR 619. Richardson v Chief Constable of West Midlands Police [2011] 2 Cr App R 1. Salov v Ukraine App no 65518/01 (ECHR 9 September 2005). Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942. State v Henderson 27 A.3d 872, 915 (N.J.S.C. 2011). States v Telfaire 469 R.2d 552, (D.C. Cir. 1972). Sutherland v Her Majesty’s Advocate [2020] UKSC 32. T v United Kingdom (1999) 30 EHHR 121; SC v UK (2005) 40 EHHR 10. Woolmington v DPP [1935] UKHL 1. ZH v Commissioner of Police of the Metropolis [2012] EWHC 604 (QB).

Table of legislation

Adoption and Children Act 2002 Civil Partnership Act 2004 Contempt of Court Act 1981 Coroners and Justice Act 2009 Criminal Evidence (Northern Ireland) Order 1999. Criminal Procedure (Scotland) Act 2004 Criminal Justice and Public Order Act 1994 Criminal Legal Aid (Remuneration)(Amendment)(No 2) Regulations 2020 SI No 497 Criminal Procedure (Amendment No 2) Rules 2017 Criminal Procedure Rules 2015 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 Domestic Abuse Bill 2020 H.M. Government (2015) Criminal Justice and Courts Act 2015 H.M. Government (2021) Police, Crime, Sentencing and Courts Bill Home Office, ‘Code A (Revised) Code of Practice for the exercise by: Police Officers of Statutory Powers of stop and search Police Officers and Police Staff of requirements to public encounters’ (2015) Home Office, ‘Code C (Revised) Code of Practice for the detention, treatment and questioning of persons by Police Officers’ (2019) Home Office, ‘Code G (Revised) Code of Practice for the statutory Power of Arrest by Police Officers’ (2012) Human Rights Act 1998 Italian Code of Criminal Procedure (CPP) (2020) Italian Constitution, art 111 Marriage Equality (Same Sex) Act 2013 Police and Criminal Evidence Act 1984 Police, Crime, Sentencing and Courts Bill 2021–22 Policing and Crime Act 2017 Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 Protection of Freedoms Act 2012

Table of legislation xvii Regulation of Investigation Powers Act 2000 Serious Organised Crime and Police Act (SOCPA) 2005 Terrorism Act 2000 The Crime and Disorder Act 1998 The Equality Act 2010 UN Convention on the Rights of Persons with Disabilities 2006, art 13(1) Youth Justice and Criminal Evidence Act 1999

1

Introduction Ed Johnston

It has been said that the criminal justice system of England and Wales is in a state of crisis. This crisis has been worsened, but not created, by the Covid-19 pandemic. The crisis stems from decades of cuts and underfunding, resulting in problems that were then exasperated by the pandemic.1 This edited collection draws together perspectives from both practitioners and interdisciplinary academics alike to examine problems at various stages of the process; these include the police station stage, the criminal trial, issues with vulnerability, neurodiversity as well diversity and representation in the criminal justice system. The book also explores the investigation and prosecution of sexual offences, prisoners’ human rights and closes with an examination of the issues faced by the Criminal Cases Review Commission. The book seeks to explore these problematic areas as well as offering solutions to the issues at hand. Not every area of the criminal justice system could be dealt with in one collection but the editor has attempted to cover a broad spectrum of issues at varying stages of the criminal justice system and they have broadly been grouped by similar themes. The book opens with Johnston and Cape’s chapter which examines how legal assistance at the police station has been impacted during the national lockdown, which started in March 2020. The Covid-19 pandemic presented severe challenges to the criminal justice system in England and Wales. The issue that received most public attention was the suspension of criminal trials and, in particular, the difficulties of conducting jury trials in the context of social distancing. Less publicised, but no less problematic, were the challenges at the investigative stage of the criminal process, especially ensuring respect for the procedural rights of persons suspected of a crime. A person arrested on suspicion of a criminal offence is entitled to ‘consult a solicitor privately at any time.’2 One response to the need for social distancing was a protocol, agreed between the CPS, NPCC, Law Society and a number of other professional bodies, under which police interviews may be conducted entirely ‘virtually’ or, where an interview physically takes place at a 1 See The House of Lords Constitution Committee, 22nd Report of Session 2019–21, Covid-19 and the Courts (2021), https://publications.parliament.uk/pa/ld5801/ ldselect/ldconst/257/257.pdf, accessed November 2021. 2 S.58(1) Police and Criminal Evidence Act 1984.

DOI: 10.4324/9781003143321-1

2 Johnston police station, with the suspect’s lawyer participating by telephone and/or other electronic means. In this way, the right to consult a solicitor under PACE is preserved, although it requires some ‘creativity’ in respect of the requirements of PACE Code of Practice C, para 6.8, which provides that a suspect is entitled to have their solicitor ‘present’ when they are interviewed. This chapter questions whether this ‘creative’ approach sufficiently respects the right to a lawyer and, in this context, also examines the latest ‘efficiency’ mechanism known as Pre-Charge Engagement. In Chapter 3 Helm and Millar chapter focuses on decision making in the criminal trial and in particular focusses on the role of the jury, which has been well established to reflect an essential part of democracy in many jurisdictions. Supporters of the jury note significant benefits of citizen involvement in the criminal trial, including balancing power given to state officials and experts, and ensuring trial decisions reflect values and judgments of the community. However, contemporary literature in both law and psychology questions the ability of jurors to make accurate factual determinations in criminal cases. As knowledge of both forensic science and jury decisions increase, a potential chasm between ‘scientifically’ correct verdicts and juror verdicts is revealed, fuelled by juror misunderstandings and susceptibility to standard biases and heuristics. This raises the question of whether, when and how jurors should cede their decision-making prerogative in the criminal trial. In this chapter, the authors explore the literature on the role of the jury in the criminal trial, and the psychology of jury decision-making. This chapter suggests that current research in cognitive science has the potential to inform changes to trial procedure to improve the accuracy of jury decision-making, while preserving the important benefits of lay decision-making. In keeping with the theme of jury trials, Chapter 4 by D’Aniello offers a comparative approach and highlights some of the most worrying issues occurring in jury decision-making contexts. European juries differ from Anglo-American juries and from one another in several aspects. However, despite the differences, none of the jurisdictions that uses juries seems to have found the ‘perfect recipe’ for a wellfunctioning jury system. The occurrence of miscarriages of justice involving incorrect jury verdicts demonstrates that the jury trial as a whole may be failing to respond to those democratic needs that constituted the foundations of its introduction. Nevertheless, the jury system appears to be ineradicably rooted in those jurisdictions that chose to introduce it. This chapter, looking at juries from an international standpoint, proposes a critical comparative analysis of some of the most worrying issues occurring in jury decision-making contexts. As the chapter will show, in the search for solutions, comparisons at international level can offer fruitful insights on how to promote improvement and reform of the jury trial worldwide. In Chapter 5, Ward suggests that a number of aspects of criminal court procedure in the English and Welsh justice system are undergoing radical alteration that produce a different side to court justice administration. These raise important due process considerations and questions. This chapter discusses various changes that have been occurring to court justice over the years. For example, the ongoing consideration of

Introduction

3

trial by jury with support for ‘judge only trials’ in some circumstances. The decline in ‘lay’ magistrates serving in the lower criminal courts that if replaced by single sitting professional judges of which there is indication would mean are moving to a court system no longer underpinned by principles of ‘lay involvement’ and ‘participatory democracy’, but to one more akin to systems of ‘professional justice’. These carry their own its own benefits and criticisms. Both the incentivising of early guilty pleas, so that trial hearings are no longer required, and the use of virtual court hearings are other contemporary concerns arising in criminal court procedure. All of these raise important questions of neutrality. The chapter argues these alterations have been edging forward in significant ways, but have accelerated through the revised working practice brought about the Covid-19 health pandemic, and may well become courtroom experiments that are here to stay. The book then moves on to examine marginalisation in the criminal justice system and for the purposes of this book, marginalisation includes the vulnerable witness, autistic suspects and diversity/representation. Fairclough (Chapter 6) considers vulnerability issues within the criminal trial setting and the responses created to reduce pressure faced by the vulnerable witness and allow them to present the best version of their evidence. Specifically, it focuses on adaptations to the traditional way of eliciting evidence from vulnerable witnesses (and defendants), which have come thick and fast in the last 20 years in the form of special measures. These measures permit eligible witnesses to use video link, screens, pre-recording, and other communication support such as intermediaries to give evidence. This chapter considers whether special measures go far enough in protecting and assisting vulnerable individuals who testify in criminal trials, through an exploration of issues including the (instrumental) conceptualisation of vulnerability, the exclusion of the accused and the use of special measures in practice. Finally, this chapter considers the possible effects that the Covid-19 pandemic has had on the delivery of justice for vulnerable individuals as the accused or witnesses in the proceedings. In the Chapter 7, Smith examines a specific area of vulnerability: the challenges faced by autistic suspects in interactions with police officers, both in public spaces and in custody settings. The chapter notes that the needs of neurodivergent individuals, including autistic people, have been receiving increased attention from policy makers and practitioners in recent years. Yet, significant problems in managing the needs of autistic and other neurodivergent persons remain, risking both unfair treatment and ultimately unjust outcomes. The chapter focuses specifically on the difficulties faced by autistic suspects when the police exercise their powers to gather and examine evidence of alleged criminal behaviour, particularly ‘street’ powers (such as Stop and Search) and pre-charge detention. Smith highlights two key issues. First, the increased potential for such powers to be used against autistic suspects, due to the flawed framework governing police powers and a general failure to appreciate that behaviour and communication of autistic individuals may not be suspicious or criminal at all; and second, the increased likelihood that interactions between the police and an autistic individual may cause the latter to experience distress and confusion, and that further use of investigatory power (and even criminalisation) may become more likely.

4 Johnston Chapter 8 highlights how the criminal justice system has recruited and empowered a monochromatic section of society to deliver and implement justice; typically carried out by white men. Meanwhile, minority communities and underrepresented groups such as black, Asian, and minority ethnic groups (BAME); lesbian, gay, bisexual, and trans communities (LGBT+); and women, have been historically over-policed, persecuted or neglected by key criminal justice institutions. Issues of marginalisation in relation to race, gender and sexuality have led to lasting tensions and mistrust between diverse groups and criminal justice agencies. Such tensions have raised questions over the validity and legitimacy of the criminal justice system’s treatment of these groups. Key landmark events, such as the Wolfenden Report, the Stephen Lawrence Inquiry and the Brixton Riots, have therefore led to changes in how justice is delivered to diverse groups. In response to these events, calls for diverse groups to be included in criminal justice agencies, practices and policies have been made, in order to implement wider social change, build bridges with those who are marginalised and improve the delivery of justice. Contemporary criminological evidence demonstrates that diversity within criminal justice agencies helps to implement appropriate organisational change and agility. This chapter examines how gender, race and sexuality have been historically represented in the criminal justice system and explores modern mechanisms of diversity inclusion. Chapters 9 and 10 are centred on sexual offences and offending. In Chapter 9 Hine, Murphy, Williams and Widanaralalage Don examine the issue of attrition in rape cases. This chapter brings a number of ‘leading voices’ to offer contemporary perspectives on the investigation of rape in England and Wales. This chapter presents a series of individual essays, provided by hereby named ‘Leading Voices’ within the sector, which identify the current challenges to effective rape investigation and prosecution, along with suggestions for improvement. Contributions were drawn from all sections of the criminal justice system and beyond, including charities and third sectors bodies, police forces, prosecution services and government/oversight bodies and roles. It is hoped that the direct provision of expertise from those on the frontline to academics committed to assisting with this critical issue, will help stimulate research resulting in lasting improvement for rape victims. Critically, the individuals in this chapter identify the need for: training to address damaging attitudes about rape (or rape myths), more collaborative and holistic working among justice sectors, more effective use of technology and associated data in case investigation and prosecution and greater resourcing in all areas to combat chronic underfunding resultant from austerity measures. Importantly, it is argued that it may be necessary to reconceptualise the idea of ‘success’ in relation to rape prosecution, which takes complainant satisfaction into greater consideration. Chapter 10 is written by two practising criminal law barristers, Karen Walton and Rebecca Penfold, and examines how the rise of vigilante justice has been accepted into the criminal justice system and effectively, how ‘paedophile hunters’ have been an investigative arm of the criminal justice process. This chapter analyses the ramifications and dangers of this contemporary development. The final two chapters of the book examine challenges at the post-conviction stage of the criminal justice process. In Chapter 11, Karamalidou examines the

Introduction

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status of human rights in the prison estate of England and Wales and explores the impact of the legalisation of human rights on penal policy. Specifically, the chapter documents key developments in the evolution of prisoners’ human rights in England and Wales with particular reference to prisoners’ right to life and humane treatment. These developments are critically discussed in light of the long-standing politicisation of penal policy in England and Wales and the negative outcomes of recent penal policy initiatives, such as the Rehabilitation Revolution, Reform Prisons and the 10 Prisons Project. Key negative outcomes, such as increases in selfinflicted deaths, self-harming and violence, as well as reduced opportunities for purposeful activity are a poignant reminder of the limitations of human rights as a strategy for sustained penal reform. Against this background, the chapter considers ways towards a humane and re-integrative imprisonment model. To this end, it proposes a combined approach to the formulation of sentencing and penal policy, and a commitment to prisoners’ right to education. Finally, the book closes with Robins’ chapter on issues with the Criminal Cases Review Commission. In 1997, the Criminal Cases Review Commission (CCRC) was established. In certain cases, the CCRC can refer the case back to the Court of Appeal if it believes that there is a real possibility of the conviction being overturned. The CCRC presently receives about 1,500 applications a year, mainly from prisoners claiming their innocence. Over the CCRC’s first 20 years it referred 652 cases to the Court of Appeal which means an average of 32.6 referrals a year. In 2017 the CCRC referred 12 cases back to the Court of Appeal which represented a referral rate of just 0.77 per cent. That marked a dramatic fall from an average of 3 per cent. In 2018, the CCRC referred 19 cases and, in 2019, 13 cases. A report commissioned by the All Party Parliamentary Group on Miscarriages of Justice, published early 2021, called upon the CCRC to ‘demonstrate its independence.’ It also noted that the Commission had suffered the ‘biggest cut’ of any part of the criminal justice system since 2010 and its caseload has more than doubled over the same period. This chapter will set out why the CCRC’s independence was fundamental to those who made the case for the establishment of what was then considered to be a unique innovation in a criminal justice system; how the original proposals for the CCRC attempted to secure its independence; and account for recent developments which undermine that independence. Finally, it will make the case that such changes have irreversibly changed the justice watchdog despite its statutory protections. I hope you enjoy this multi-disciplinary collection. I believe the chapters offer insightful commentary on challenges in the modern criminal justice system.

2

Legal assistance at the police station Shifts and contradictions in the context of Covid-19 Ed Johnston and Ed Cape

Introduction The Covid-19 pandemic presented the criminal justice system in England and Wales with significant challenges. Already in crisis as a result of a decade of budgetary cuts and under-investment, criminal justice institutions and personnel were ill-equipped to deal with the disruption to processes and procedures resulting from the threat of cross-infection in the context of the need for limited social contact, low morale, a poorly maintained and inadequate estate and, initially, a lack of personal protective equipment. Whilst recorded crime declined in the first few months of the pandemic,1 the backlog of court cases – which was already large – ballooned.2 As in so many other areas, the pandemic cruelly exposed weaknesses in the system which were evident but which had been largely ignored. Those who were arrested or interviewed as ‘volunteers’3 continued to have the right of access to a solicitor4 conferred by the Police and Criminal Evidence Act (PACE) 1984. However, it quickly became apparent that, given the dangers of infection, many lawyers were reluctant or unwilling to attend police stations in person. By the beginning of April 2020, an agreement (or ‘protocol’)5 was made between the police, prosecution and lawyers designed to avoid personal attendance 1 Office for National Statistics, Coronavirus and Crime in England and Wales August 2020, 26 August 2020, https://www.ons.gov.uk/peoplepopulationandcommunity/ crimeandjustice/bulletins/coronavirusandcrimeinenglandandwales/august2020. 2 The number of outstanding Crown Court cases rose significantly from 39,878 in March 2020 to 56,875 in February 2021. Outstanding magistrates’ court cases rose from 395,978 in March 2020 to 525,059 in July 2020, before falling back to 466,445 in December 2020 (House of Lords Select Committee on the Constitution 22nd Report of Session 2019–21, Covid-19 and the Courts, HL Paper 257, ch 3). 3 Defined in PACE 1984 s29, and see PACE Code C para 3.21A and Note for Guidance 1A. 4 Note that whilst PACE 1984 s58 refers to a right to consult a ‘solicitor’, in practice such advice may be provided by a solicitor’s representative, in respect of which there is a system of accreditation. For an explanation, see Cape, E., Hardcastle, M. and Paul, S., Defending Suspects at Police Stations (Legal Action Group, 2020) paras 1.45–1.48. 5 Interview Protocol between National Police Chiefs Council, Crown Prosecution Service, The Law Society, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association, 2 April 2020.

DOI: 10.4324/9781003143321-2

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by lawyers wherever possible. Inevitably, this agreement was made without consultation with those who would be arrested or interviewed, even though (arguably) it was contrary to the right to consult a solicitor under PACE 1984. The protocol, subject to modifications, was still in existence 18 months later. In the midst of the disruption caused by the pandemic, a major procedural innovation, Pre-Charge Engagement (PCE), was introduced in December 2020. This requires a suspect, where applicable, to make important decisions about whether to engage with the process and, if so, what information to disclose to the police. The intention is that PCE should have an impact on the course of the police investigation, the decision regarding whether to initiate criminal proceedings and, potentially, the trial itself. Yet PCE was introduced at the very time that the right of access to a lawyer was severely attenuated. The purpose of this chapter is to examine these two developments from the perspective of procedural justice and fair trial, and to consider their longer-term implications. We argue that they are indicative of two significant, contradictory, trends. On the one hand, those who are suspected of crime are increasingly required, or at least encouraged, to engage in the criminal process from the moment that they are informed that they are suspected of crime. On the other hand, the procedural protections afforded to those in this position, in particular the right to effective legal advice and assistance, are being weakened. What is said or done, or not said or done, by a suspect at the early stages of the criminal process increasingly has an impact on the outcome. Yet suspects are having to make such decisions at a time when access to effective legal advice and assistance is less likely to be available to them. This calls into question whether fair trial, in terms of both process and outcome, remains a right and a principle that is respected in practice.

From courtroom to police station Two decades ago, John Jackson argued that the focus of the criminal trial was in the process of being shifted from the courtroom to the police station. The police interview, wrote Jackson, was being ‘transformed … into a formal part of the proceedings against an accused’.6 The innovations introduced by PACE 1984 had changed the investigative stage, and in particular police interrogation of suspects, ‘from a process of preparing cases for trial to becoming a real substitute for trials themselves’.7 Jackson was not opposed to this development per se but argued that, this being the case, the procedural safeguards embodied in PACE – especially the right of access to a lawyer and the requirement for an appropriate adult to attend 6 Jackson, J., ‘Silence and proof: Extending the boundaries of criminal proceedings in the United Kingdom’ (2001) 5(3) International Journal of Evidence and Proof 145– 173, 173. 7 Jackson, J., ‘Police and prosecutors after PACE: The road from case construction to case disposal’ in E. Cape and R. Young R (eds), Regulating Policing: The Police & Criminal Evidence Act 1984 Past, Present and Future (Hart, 2008) 276. See also McConville, M. and Marsh, L., Criminal Judges: Legitimacy, Courts and StateInduced Guilty Pleas in Britain (Edward Elgar, 2014).

8 Johnston and Cape in the case of juvenile and vulnerable suspects – were not sufficient to guarantee a fair trial process. In particular, Jackson argued that mechanisms should be introduced to actively encourage suspects to seek legal advice before interview, to give their lawyers full disclosure to enable them to provide informed and effective legal advice and to enable full access to police and prosecutors to make representations afterwards. In the years since Jackson first identified this phenomenon in England and Wales, the significance of the investigative stage of criminal proceedings has been increasingly recognised internationally, and particularly in Europe. In 2008, in the landmark case of Salduz v Turkey, the European Court of Human Rights (ECtHR) emphasised the importance of legal assistance at the investigative stage, in particular since ‘[n]ational laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings’.8 In 2009 the European Union adopted a programme of legislation governing the procedural rights of suspects and accused persons, including the right of access to a lawyer, disclosure and special safeguards for children, all of which include provisions applicable at the investigative stage.9 Despite this emphasis on the importance of procedural safeguards at the investigative stage, in England and Wales the PACE procedural safeguards remained, in law, substantially unchanged.10 However, there have been a number of changes to the context in which the procedural safeguards apply which have, on the one hand, weakened those safeguards whilst, on the other, reinforcing the investigative stage as the focus of the criminal process. Jackson was writing in the context of emerging empirical and other evidence regarding the impact of the ‘inference from silence’ provisions of the Criminal Justice and Public Order Act (CJPOA) 1994.11 Those provisions had invested the product of police interviews with even greater evidential weight since, in effect, they raised the prospect of adverse consequences for the accused if they do not disclose details of their defence even before a decision regarding prosecution is taken. Furthermore, the courts rapidly determined that the fact that the accused had been advised by their lawyer not to provide this information would not prevent adverse inferences from being drawn. The relationship between police 8 27 November 2008 ECtHR Grand Chamber No 36391/02, para 52. 9 For an account of international, and European, standards see Cape, E., ‘Defense rights, duties, norms, and practices in common law and civil law jurisdictions’ in D. Brown, J. Turner and B. Weisser (eds), The Oxford Handbook of Criminal Process (Oxford University Press, 2019). 10 Although the PACE Codes were revised in certain respects to comply with the EU Directives on interpretation and translation, and on the right to information. These were the only Directives under the programme in respect of which the UK Government opted-in. Following UK withdrawal from the EU, these Directives are no longer binding, but the Codes have not been amended in this respect. 11 In particular, Jackson, J., Wolfe, M. and Quinn, K., Legislating Against Silence: The Northern Ireland Experience (Northern Ireland Office, 2000), and Bucke, T., Street, R. and Brown, D., The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994, Home Office Research Study No 199 (Home Office, 2000).

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interview and trial was described by the Court of Appeal as a ‘benign continuum’, which was not to be thwarted by defence lawyers advising silence without ‘good’ reason.12 However, in a series of judgments, the courts sought to limit the circumstances in which they would consider legal advice to remain silent ‘good’ advice (and thus avoid inferences).13 Thus, by the early part of the twenty-first century, the investigative stage and the police interview were firmly entrenched as a primary focus for the determination of guilt or innocence. This was further reinforced by a number of other developments. Police investigative and evidence-gathering powers were incrementally strengthened – for example, the summary power of arrest was extended to all offences,14 detention without charge beyond 24 hours was extended to all indictable offences15 and powers to take and retain biometric samples were increased.16 The range of out-of-court disposals increased, and although their use waxed and waned, the effect was that many cases were disposed of at the investigative stage.17 A series of reviews and policy initiatives were established and introduced which were designed to ensure that cases that result in a criminal charge are dealt with promptly, with plea taken at the first court appearance, rapidly followed by sentence in the case of a guilty plea. Courts were encouraged to resist adjournments even if prosecution disclosure had not been forthcoming. Complaints of lack of disclosure and lack of time for defence lawyers to consider their advice regarding plea were increasingly met by the response that ‘your client knows whether he is guilty’.18 These developments required the strengthening of due process safeguards at the investigative stage if fair trial was to be preserved. However, whilst there have been limited improvements mostly, but not exclusively, by way of amendments to the PACE Codes of Practice,19 the overall impact of legislative, policy, procedural and 12 See R v Howell [2003] EWCA Crim 1, especially paras 23 and 24. 13 See, for example, R v Condron [1997] 1 Cr App R 185, R v Argent [1997] 2 Cr App R 27, R v Betts and Hall [2001] EWCA Crim 224, R v Beckles [2004] EWCA Crim 2766 and, most recently, R v Thacker and others [2021] EWCA Crim 97; and see Cape, E., ‘Sidelining defence lawyers: Police station advice after Condron’ (1997) 1 (5) International Journal of Evidence and Proof 386–402. 14 By amendments to PACE by the Serious Organised Crime and Police Act (SOCPA) 2005 s110. 15 It was originally only possible where a person was detained in respect of a ‘serious arrestable offence’. 16 By the Protection of Freedoms Act 2012. 17 For example, conditional cautions were introduced by the Criminal Justice Act 2003, which enabled ‘enforceable’ conditions to be attached to cautions. For an analysis, see Allen, R., Less is More – The Case for Dealing with Offences out of Court (Transform Justice, 2017). 18 See, generally, Johnston, E. and Smith, T. (eds), The Law of Disclosure: A Perennial Problem in Criminal Justice (Routledge, 2021). 19 For example, limited changes to the obligations on the police to disclose information at the investigative stage, changes to the identification and determination of vulnerability in respect of suspects, and tightening of the regulation regarding the treatment of ‘volunteers’ (ie, suspects who have not been arrested).

10 Johnston and Cape cultural changes has been to weaken due process safeguards at the early stage of the criminal process. Arrested and volunteer suspects have continued to be eligible for legal aid under a non-means-tested scheme, but the role and effectiveness of criminal defence lawyers at the investigative stage has been severely compromised by the introduction of standard fees for police station work that mean that lawyers are not paid for the work they actually do on any particular case. Moreover, those fees have not been increased for two decades which, along with other cuts to criminal legal aid, has resulted in fewer law firms doing this work, fewer solicitors working in those firms and an ageing profile of criminal defence solicitors.20 In less serious cases, legal assistance has been limited to telephone-only advice, and the introduction of a call centre system weakened the link between lawyers and their clients.21 A policy of encouraging the police to treat suspects as volunteers rather than arresting them, whilst arguably well-motivated, has resulted in fewer suspects receiving legal assistance before and during police interviews, and less scrutiny of the conduct of those interviews.22 A Home Office inspired police station building programme has resulted in the physical exclusion of lawyers from custody suites23 and, with the transfer of responsibility for charging decisions from custody officers to Crown prosecutors in respect of all but the least serious offences, removal of the opportunity for defence lawyers to make effective representations and to negotiate regarding charge.24

Covid-19 and remote legal advice A person who is arrested and held in custody at a police station is entitled to consult with a solicitor in private at any time.25 PACE 1984 does not explicitly state whether the right is a right to consult a solicitor who is physically present, or whether remote consultation is sufficient. However, PACE Code C (and Code H in terrorism cases) indicates that it includes a right to consult with a lawyer who is physically present (Code C para 6.1), and the Code also provides that a suspect is 20 For a summary of the relevant statistics, see the House of Commons Justice Committee, The Future of Legal Aid, Third Report of Session 2021–22, HC 70 27 July 2021, ch 2. The Committee recommended that the level and structure of criminal legal aid fees be reviewed, and that they ‘should be reformed to ensure that they offer a fair rate for the work required’ (para 38). 21 For an early analysis, see Bridges, L. and Cape, E., CDS Direct: Flying in the Face of the Evidence (Centre for Crime and Justice Studies, 2008). 22 See Pierpoint, H., ‘The risks of voluntary interviews’ (2020) Criminal Law Review 818. Cf, Gibbs, P. and Ratcliffe, F., 24 Hours in Police Custody – Is Police Detention Overused? (Transform Justice, 2020). 23 Kemp, V., Bridewell Legal Advice Study: Final Report (2013), online research report available at https://nottingham-repository.worktribe.com/output/1002649. 24 Charge decisions by Crown prosecutors was introduced by the Criminal Justice Act 2003 s28 and Sch 2, with detailed allocation of responsibilities for charging governed by guidance issued by the DPP. The current version is available at https://www.cps. gov.uk/legal-guidance/charging-directors-guidance-sixth-edition-december-2020. 25 PACE 1984 s58(1). There is provision for access to be delayed for up to 36 hours (PACE s58(6)-(11), with similar, but not identical, provisions in respect of persons arrested on suspicion of terrorism), but the power to delay access is relatively rarely used.

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entitled to ‘have the solicitor present when they are interviewed’ (Code C para 6.8). This is reinforced by the Legal Aid Agency’s contract with legal aid providers which sets out the circumstances in which personal attendance is mandatory, including to provide advice and at police interviews.26 So it seems clear that a detained suspect has a right to have a solicitor physically present for the purposes of consultation and during a police interview, and that a solicitor (at least, where they are funded by legal aid) is, other than in exceptional circumstances, under an obligation to attend in person to provide advice and to attend police interviews. However, the position is not quite as clear as it would initially appear. Whilst a suspect has a right to the personal attendance of a solicitor, there is (for understandable reasons)27 no legal obligation on a solicitor to attend. Whilst the default position is that a detained person who wants legal advice may not be interviewed until they have received it (which begs the question of whether advice provided remotely is sufficient to satisfy this requirement), an interview may proceed in the absence of legal advice if, inter alia, the solicitor contacted declines to attend (Code C para 6.6(c)). Where a nominated solicitor declines to attend, the suspect must be informed of the Duty Solicitor Scheme, but if a duty solicitor declines to attend in person, it would seem that a police interview can proceed. This may be contrasted with the position regarding appropriate adults for children and vulnerable suspects, in respect of whom certain investigative procedures cannot proceed in their (physical) absence.28 The provisions regarding the right of access to a solicitor were predicated on a ready supply of solicitors willing and able to provide legal advice in person at police stations, facilitated by a non-contributory legal aid scheme. The decline in legal aid briefly described in the previous section, and the hollowing out of the legally aided criminal defence profession, put that assumption in question, but the Covid-19 pandemic added a further critical strain to that precarious situation. Social distancing is just about impossible to achieve in the context of police stations. Even if it is possible to arrange booking-in procedures, and solicitor/client consultation facilities, that pay due regard to rules regarding social distancing, police interviews present an almost insuperable challenge. Police interview rooms, with the necessary recording facilities, are generally small and frequently poorly ventilated. In the most straightforward case, at least three people will be present (police officer, suspect and lawyer), and this may expand to five or six people if the suspect is a juvenile or vulnerable, and/or an interpreter is required. Social distancing in this context is simply not possible, although the dangers could be alleviated to a certain extent if all participants are provided with adequate personal protective equipment.29 26 Legal Aid Agency Standard Crime Contract 2017 paras 9.38–9.40. 27 Since this would interfere with the professional discretion of a solicitor. 28 For example, a juvenile or vulnerable suspect must not be interviewed ‘in the absence of an appropriate adult’ other than in specified exceptional circumstances (Code C para 11.15). 29 Such problems are not confined to England and Wales, but have been experienced in many other European countries. See Fair Trials, Beyond the Emergency of the COVID19 Pandemic: Lessons for Defence Rights in Europe (Fair Trials, June 2020), available at https://www.fairtrials.org/publication/beyond-emergency-covid-19-pandemic.

12 Johnston and Cape Following the onset of the pandemic, it quickly became apparent that, given the dangers involved, many defence solicitors were reluctant to, or refused to, attend upon their clients in person. A ‘custody protocol’ was rapidly agreed between the Crown Prosecution Service, the National Police Chiefs’ Council and the Law Society,30 initially published on 2 April 2020, setting out a procedure for avoiding personal attendance by lawyers where possible. Under the protocol, the default position was that legal advice should be provided by telephone, and that assistance during police interviews should be by video link. Where this was not possible because of lack of appropriate facilities or otherwise, the procedure to be adopted depended on the seriousness of the case, for which purpose cases were divided into three levels. For the least serious level, Level C, suspects should normally be released (on bail or without bail) to be interviewed at a later date. For Level A and B cases, attendance by a solicitor was to be by video link, with the suspect and the officer in the case in separate rooms, or the same room, depending on available facilities; or if neither of these options was feasible, all parties were to be physically present (and issued with appropriate personal protective equipment (PPE)). Three weeks after the protocol was initially published it was revised to permit ‘attendance’ by a solicitor – both for the purposes of pre-interview advice and during a police interview – by audio link only; in recognition of the absence in many police stations of adequate video link facilities. In addition, the protocol provided that ‘special care’ should be taken in deciding whether a young or vulnerable suspect should be interviewed, and also indicated that the protocol should apply to interviews of ‘volunteers’ as well as of detained suspects.31 The protocol arrangements were facilitated by an adjustment to the legal aid regime, so that solicitors could claim the normal standard fee for a police station attendance even though the attendance was by audio or video link.32 The protocol was agreed at a time when it was unclear how long the pandemic would last. In providing that, in Level C cases, any interview should be delayed, the protocol implied a belief that the special arrangements would be relatively short-lived. However, as events turned out this, of course, was not the case. By August 2021, the protocol was still in force, although amended in May 2021 to exclude from its provisions juvenile and vulnerable suspects.33 It was clear that there was some sensitivity concerning whether the protocol arrangements were compliant with the right to consult a solicitor under PACE. In June 2020, the Home Office issued a consultation on proposed temporary amendments to PACE 30 Together with the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association. 31 The protocol and covering letter are available at https://www.cps.gov.uk/legal-guida nce/coronavirus-interview-protocol-between-national-police-chiefs-council-crown. For a critique, see Cape, E. and Hardcastle, M., ‘Custody protocol: COVID-19 response’, Legal Action Group (June 2020) 49–50. 32 See Legal Aid Agency, Coronavirus (COVID-19): Remote Working, 14 April 2020, https://www.gov.uk/guidance/coronavirus-covid-19-processing-and-payments#cla iming-police-station-attendance-fee. 33 https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Inter view-Protocol-between-NPCC-CPS-TLS-CLSA-and-LCCSA-updated-May-2021.pdf.

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Codes C and E. In particular, it was proposed that attendance by a solicitor at a police interview could be by video or audio link, with the interview to be visually recorded in the case of the latter. Remote attendance by the solicitor could, in effect, be vetoed by the suspect (or appropriate adult if relevant) or the solicitor, although the revisions did not deal with what should happen where a suspect vetoed remote attendance but the nominated solicitor (or any other solicitor) was unwilling to attend in person. However, in February 2021, the Home Office announced that, taking into account the responses to the consultation, rather than amend the Codes, it would be ‘more effective’ to improve compliance with the protocol through clearer guidance.35 It is notable that the Government’s consultation response made no attempt to quantify the issue – there are no reliable statistics on the proportion of cases in which legal advice and assistance is provided remotely. In fact, statistics are not even routinely collected on the numbers of suspects who request legal advice.36 The consultation also did not engage with the question of the legality of the protocol or, indeed, the legality of the proposed amendments to the Codes. As has been the case in many other areas of civic life, COVID-19 has exposed and exacerbated weaknesses and tensions that pre-existed the pandemic. As noted earlier, PACE itself does not explicitly state that a detained suspect is entitled to legal advice and assistance via the personal attendance of a solicitor and, whilst the Codes and legal aid regulations were formulated on the basis that a suspect is so entitled, they are capable of being changed with no or minimal Parliamentary scrutiny. This is an issue that has bedevilled attempts to introduce an effective right to legal assistance at the investigative stage in many countries and regions. For example, the EU has legislated to require member states to ensure that detained suspects have a legal right of access to a lawyer at the investigative stage, including a right to have a lawyer present in police interviews.37 However, in most EU countries only a small proportion of suspects are able to exercise this right in practice because, amongst other reasons, many lawyers are unwilling or unable to attend in person; partly because of the absence of effective and sustainable legal aid 34 Available at https://www.gov.uk/government/consultations/revising-pace-codes-c-a nd-e/letter-to-statutory-consultees-accessible-version. 35 Evidence of lack of knowledge on the part of some custody officers, and solicitors, of the requirements of the protocol is provided by research carried out in Autumn 2020. See Transform Justice, Fair Trials and NAAN, Not Remotely Fair? Access to a Lawyer in the Police Station During the Covid-19 Pandemic (2021) 25, https://www.fairtrials. org/publication/not-remotely-fair-access-lawyer-police-station-during-covid-19. 36 For research evidence, see Pleasence, P., Kemp, V. and Balmer, N., ‘The justice lottery? Police station advice 25 years on from PACE’ (2011) Criminal Law Review 3; and Kemp, V., ‘Digital legal rights: Exploring detainees’ understanding of the right to a lawyer and potential barriers to access legal advice’ (2020) Criminal Law Review 124. 37 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.

14 Johnston and Cape systems, but also because lawyers and law firms are often not organised to provide such a service.38 Although the UK Government has been pursuing a policy of encouraging and developing virtual (ie remote) court hearings,39 there is a paucity of research evidence on how they work in practice and, in particular, the impact on lay participants. There is even less empirical research evidence regarding the impact on suspects of remote legal advice, and remote legal assistance in police interviews,40 although an online survey of appropriate adults was published in early 2021.41 Before examining the implications of what little research evidence there is for remote legal advice and assistance for suspects detained by and/or interviewed by the police, it is worth conducting a reality check on the position of criminal suspects, particularly those arrested and detained by the police, but also those who are interviewed as volunteers. An arrested suspect detained at a police station is there under compulsion. Whilst a person who has previously been arrested may be familiar with their situation, that is not the case for the many for whom arrest and detention is a novel event. They are reliant on the police to inform them of their procedural and other rights, and are also reliant on them to give effect to those rights that they choose to exercise. They have, in principle, a right to remain silent, but they will be informed that if they do remain silent this may have adverse consequences for them if the matter goes to trial.42 The suspect has to make decisions about whether to answer questions in interview and/or whether to make a statement, whether to cooperate with requests for biometric and other samples, and whether to accept an outof-court disposal.43 They may well be nervous or apprehensive, be concerned about how long they will be in the police station and worried, for example, about their medication, children, dependants, job, etc. A volunteer may be embarrassed about having a 38 Research has also identified impediments unrelated to lawyers, particularly various ploys adopted by the police to discourage legal advice. See, for example, FRA, Rights in Practice: Access to a Lawyer and Procedural Rights in Criminal and European Arrest Warrant Proceedings (Publications Office of the European Union, 2019); Blackstock, J. et al., Inside Police Custody: Am Empirical Account of Suspects’ Rights in Four Jurisdictions (Intersentia, 2014); and Lloyd-Cape, E., Inside Police Custody 2: An Empirical Study of Suspects’ Rights at the Investigative Stage of the Criminal Process in Nine EU Countries (Irish Council of Civil Liberties, 2018). 39 The Crime and Disorder Act 1998 s57A-57C permits the use of video link for certain preliminary and sentencing hearings. An expansion to other hearings was proposed in the Prison and Courts Bill, introduced in 2017, but this was a casualty of the general election in April 2017. 40 It is noteworthy that a Criminal Justice Joint Inspection concerning the impact of COVID-19 on the criminal justice system, published in January 2021, did not examine the impact on suspects at all. See Justice Inspectorates, Impact of the Pandemic on the Criminal Justice System (Justice Inspectorates, January 2021), https://www.justi ceinspectorates.gov.uk/hmicfrs/publications/impact-of-the-pandemic-on-the-crimina l-justice-system/. 41 Transform Justice, NAAN and Fair Trials, Not Remotely Fair? Access to a Lawyer in the Police Station During the Covid-19 Pandemic (2021), https://www.fairtrials.org/p ublication/not-remotely-fair-access-lawyer-police-station-during-covid-19. 42 PACE Code C para 10.5. 43 Most out-of-court disposals for adults require consent of the suspect.

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police officer in their home, and uncertain about whether they can ask the police officer to leave, and what is likely to happen if they do. There is no comprehensive statement of the role of the solicitor in relation to a client who is a criminal suspect. PACE Code C states that the solicitor’s role is to protect and advance the legal rights of their client, and that they may intervene in police interviews to seek clarification, challenge an improper question or the manner in which it is put, and may advise their client not to answer particular questions.44 More broadly, the ECtHR has described the role of the lawyer as being to ‘secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention’.45 Therefore, the lawyer must be in a position to develop a rapport with their client and assess any vulnerabilities, obtain instructions from them, seek disclosure from the police, provide advice to their client as to their legal position and the appropriate strategy to adopt in the police interview, prepare the client for interview, provide advice and assistance during the police interview, and seek to ensure that their client’s procedural rights are respected. They may also need to be able to make appropriate representations regarding any investigative procedure that the police wish to pursue, contact family members and professionals such as a doctor, effectively communicate with an appropriate adult and/or interpreter, and make effective representations regarding bail and charge, or other method of case disposal. So, two important questions arise where attendance by the solicitor is by audio or video link: what impact does this have on lawyer/client communication, rapport, and trust; and what impact does remote attendance have on the solicitor’s ability to carry out the range of functions described above? PACE 1984 s58 provides that a suspect has a right to consult with their lawyer in private, that is, confidentially and out of the hearing of others, particularly police officers. This right has always been problematic in relation to telephone conversations between suspects and their lawyer, particularly because in many police stations, private telephone facilities are not available.46 Evidence suggests, reflecting similar problems with remote consultation in court proceedings,47 that in many cases confidential consultations (both outside of and during police interviews) are either not possible, or not facilitated even if technically possible.48 44 PACE Code C Note for Guidance 6D. 45 13 October 2009 ECtHR Dayanan v Turkey No 7377/03, para 32. 46 Kemp, V., ‘Digital legal right: Exploring detainees’ understanding of the right to a layer and potential barriers to access legal advice’ (2020) Criminal Law Review 124–142, 138. 47 Gibbs, P., Defendants on Video – Conveyor Belt Justice or a Revolution in Access? (Transform Justice, 2017) 12; Terry, M., Johnson, S. and Thompson, P., Virtual Court Pilot: Outcome Evaluation (Ministry of Justice, December 2010) 22, https://www.gov.uk/ government/publications/virtual-courts-pilot-outcome-evaluation-report. 48 Transform Justice, Fair Trials and NAAN, Not Remotely Fair? Access to a Lawyer in the Police Station During the Covid-19 Pandemic (2021) 23; Fair Trials, Beyond the Emergency of the COVID-19 Pandemic: Lessons for Defence Rights in Europe (Fair Trials, 2020) 25, https://www.fairtrials.org/publication/beyond-emergency-cov id-19-pandemic.

16 Johnston and Cape The means by which lawyers and their clients communicate also has an impact on the extent to which rapport and a relationship of trust can be developed, which is particularly important where the lawyer and client are not previously known to each other. As the Judicial College notes in its good practice guidance on remote court hearings, ‘empathy is hard to convey over the phone’.49 The most comprehensive evaluation of remote court hearings conducted in England and Wales found that the lack of face-to-face contact between defendants and their lawyers acted as a barrier to building trust and rapport, and also inhibited the ability of lawyers to identify whether and when their clients wished to speak to them.50 Similar problems with remote advice at police stations were identified in the Transform Justice report on video (bail) hearings, and two reports on the impact of the Covid-19 pandemic on police station advice.51 The potential for establishing rapport and trust will be weakened if the suspect interprets remote attendance by the lawyer as meaning that the lawyer is not sufficiently interested in them to attend in person. As one appropriate adult reported, ‘[o]n approximately nine occasions the interviews have needed to be stopped because the [suspect] was angry at the solicitor and felt they should be there’.52 Indeed, the difficulties in establishing rapport and trust are likely to be particularly problematic in the case of children and vulnerable suspects.53 Whilst some lawyers have reported that they are quite happy to give advice and assistance remotely,54 what is largely missing is evidence concerning the perceptions of suspects themselves, including whether they understand (and trust) the advice given to them. This issue reflects a broader question concerning whether a suspect is able to ‘participate effectively’ in the criminal process which, in turn, has implications for the perception of whether there has been a fair process.55 This is 49 Judicial College, Good Practice for Remote Hearings (2020) 4, https://www.judiciary. uk/wp-content/uploads/2020/03/Good-Practice-for-Remote-Hearings-Ma y-2020-1.pdf. 50 Fielding, N., Braun, S., Hieke, G. and Mainwaring, C., Video Enabled Justice Evaluation (University of Surrey, May 2020) 64, https://www.sussex-pcc.gov.uk/m edia/4862/vej-final-report-ver-12.pdf. And it appears that the availability and quality of the equipment necessary to facilitate remote attendance varies considerably between different police forces and different police stations. See, for example, Fair Trials, Beyond the Emergency of the COVID-19 Pandemic: Lessons for Defence Rights in Europe (Fair Trials, 2020) 24. 51 Fair Trials, Beyond the Emergency of the COVID-19 Pandemic: Lessons for Defence Rights in Europe (Fair Trials, 2020) 24, https://www.fairtrials.org/publication/ beyond-emergency-covid-19-pandemic; Transform Justice, Fair Trials and NAAN, Not Remotely Fair? Access to a Lawyer in the Police Station During the Covid-19 Pandemic (2021) 21, available at https://www.fairtrials.org/publication/not-remotely-fa ir-access-lawyer-police-station-during-covid-19. 52 Not Remotely Fair? 21. 53 Gibbs, P., Defendants on Video – Conveyor Belt Justice or a Revolution in Access? (Transform Justice, 2017) 25. 54 Many such comments were made via Twitter. 55 See, for example, Owusu-Bempah, A., ‘The interpretation and application of the right to effective participation’ (2018) 22(4) International Journal of Evidence and Proof 321–341.

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recognised by the Judicial College in its good practice guide for remote court hearings, in which it states that ‘[t]he process, rather than merely the result, is a significant consideration in terms of the delivery of real justice’.56 The question of trust in the lawyer is not only of relevance to the extent to which the involvement of the lawyer is effective, but has wider implications because trust in the lawyer is only one (albeit important) aspect of trust in the criminal process itself. This, in turn, affects willingness to co-operate with criminal justice processes as both suspect and witness, and ultimately willingness to comply with the law.57 David Lammy noted, in his review of the treatment of black and minority ethnic people in the criminal justice system, that trust in the system on the part of people from ethnic minorities is already fragile, and this is also likely to be the case with other sections of the community, particularly juveniles.58 The concern is that remote attendance by defence lawyers at a critical stage of the criminal process will only exacerbate this fragility. An important question regarding attendance by solicitors is whether their decisions about whether to attend in person or virtually are made (only) taking into account relevant factors, such as whether the suspect is a child, mentally or otherwise vulnerable, in need of interpretation, and the seriousness and complexity of the suspected offence(s). It is important to remember that, for those solicitors acting under legal aid, under the special provisions made by the Legal Aid Agency referred to earlier, the rate of payment is the same whether or not the attendance is in person. This provides a powerful financial incentive to deliver advice remotely, especially when combined with the fact that a solicitor providing advice remotely can deal with more clients (each attracting a standard fee) in a wider range of police stations.59 Robust evidence is lacking, although there is some anecdotal evidence that some lawyers do not appear to be taking relevant factors into account.60 With regard to lawyer/client consultations, some lawyers have reported that when providing advice by telephone, they are subjected to time pressures which 56 Judicial College, Good Practice for Remote Hearings (2020), https://www.judiciary. uk/wp-content/uploads/2020/03/Good-Practice-for-Remote-Hearings-Ma y-2020-1.pdf. See further, Hough, M., Good Policing: Trust, Legitimacy and Authority (Policy Press, 2021), and Tyler, T. and Jackson, J., ‘Popular legitimacy and the exercise of legal authority: Motivating compliance, cooperation, and engagement’ (2014) 20(1) Psychology, Public Policy, and Law 78–95. 57 See generally, Hough, M., Good Policing: Trust, Legitimacy and Authority (Policy Press, 2021), and Tyler, T. and Fagan, J., ‘Legitimacy and cooperation: Why do people help the police fight crime in their communities?’ (2008) 6 Ohio State Journal of Criminal Law 231–275. 58 Lammy, D., The Lammy Review: An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System (September 2017), https://assets.publishing.service.gov.uk/government/up loads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf. 59 See Not Remotely Fair? 16, where some appropriate adults expressed concern about such practices. 60 Not Remotely Fair? 23–24.

18 Johnston and Cape would not be the case if they attended in person.61 Although the evidence is minimal, it is consistent with evidence from studies of virtual court hearings.62 Combined with the loss of cues which is inherent in remote communication, it raises questions about whether the lawyer is able make appropriate judgements as to whether their client is vulnerable, is able to provide them with relevant information, and whether the advice that they give is sufficiently understood. Many of these issues are even more significant in respect of legal advice and assistance during police interviews, particularly if ‘attendance’ by the lawyer is by telephone, but also if it is by video link. Will the client feel able to follow legal advice as to interview strategy, particularly if that advice is to remain silent, and sufficiently confident to tell their lawyer that they want to interrupt the interview for a private consultation? Will the lawyer be able to pick up on non-verbal cues (exhibited by both their client and the police interviewer(s)), and intervene appropriately? Will the lawyer be able to help a client draft a prepared statement in advance of the police interview, and how will they be able to introduce it at an appropriate time? How will a solicitor deal with a situation where they believe that their client is reacting badly or inappropriately to a line of questioning, especially if the client is acting in an emotional or irrational way? If there is a series of police interviews, especially if the police are using a ‘phased-disclosure’ strategy,63 will the solicitor be able to effectively deal with post-interview de-briefing of their client, discuss disclosure with them, and prepare them for the next interview? These, and many other important questions, are unanswered by the limited research that is available, although the research does provide some insights. A number of appropriate adults who responded to the Not Remotely Fair? survey were concerned about the adverse impact of remote attendance on vulnerable suspects (eg, ‘Detained person with ADHD was unable to tolerate phone/voice and terminated interview’), and whilst some thought that attendance by video at police interviews worked well, others found that solicitors who attended interviews remotely were less likely to intervene or ask for private consultations with their clients.64 The Transform Justice research on virtual court hearings found that document sharing between lawyer and client was ‘nigh on impossible’, with lawyers resorting to putting their own tablet/computer up to the video screen to

61 Fair Trials, Beyond the Emergency of the COVID-19 Pandemic: Lessons for Defence Rights in Europe (Fair Trials, 2020), 24. 62 Gibbs, P., Defendants on Video – Conveyor Belt Justice or a Revolution in Access? (Transform Justice, 2017) 11, and Terry, M., Johnson, S. and Thompson, P., Virtual Court Pilot: Outcome Evaluation (Ministry of Justice, December 2010) 22. 63 College of Policing Approved Professional Practice, Investigation: Investigative Interviewing: Pre-interview Briefings, https://www.app.college.police.uk/app-content/ investigations/investigative-interviewing/?highlight=managed%20disclosure?s=mana ged+disclosure#disclosure-strategy. 64 See Not Remotely Fair? 22. There is also some evidence from research on video hearings which suggests that suspects may be less likely to seek advice from their lawyer during a police interview; see Gibbs, P., Defendants on Video – Conveyor Belt Justice or a Revolution in Access? (Transform Justice, 2017) 12.

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show the document to their client (which, of course, would be impossible where a solicitor attends only by telephone).65 Whilst the evidence regarding the impact of remote legal advice and assistance at police stations is very limited, questions about the efficacy of remote attendance are both numerous and significant. It has been suggested that remote attendance could encourage a greater proportion of suspects to request legal advice, in particular because it could change the perception of many suspects that requesting a lawyer will lead to delay.66 However, overall, the coerced position of the suspect, the objectives of the police and the role of lawyers in relation to the investigative stage of the criminal process all suggest that, other than in a limited category of cases, remote attendance by lawyers is a poor substitute for attendance in person, and may even put suspects in a worse position than if they did not receive legal advice and assistance at all.67

Pre-Charge Engagement In December 2020, the revised Attorney General’s Guidelines on Disclosure (the Guidelines) introduced a new procedure known as Pre-Charge Engagement (PCE).68 PCE was introduced following a review of disclosure in the criminal justice system initiated by the then Attorney General69 which was, in large part, prompted by a series of cases in which prosecutions had collapsed as a result of prosecution disclosure failings, and a highly critical investigation into the reasons for the collapse of a trial of eight police officers accused of conspiracy to pervert the course of justice.70 Specifically, with regard to PCE, the Attorney General’s review (which preceded the revised Guidelines) concluded that ‘there must be a new emphasis on compliance with the duty of disclosure much earlier in the process than is currently the practice’.71 However, despite the fact that it was accepted that pre-interview disclosure by the police was often very limited – there being 65 Gibbs, P., Defendants on Video – Conveyor Belt Justice or a Revolution in Access? (Transform Justice, 2017) 12. 66 Kemp, V., ‘Digital legal rights: Exploring detainees’ understanding of the right to a lawyer and potential barriers to access legal advice’ (2020) Criminal Law Review 124, at 137 and 139; and Not Remotely Fair? 23. 67 Most obviously, inferences under CJPOA 1994 may be drawn provided that an accused has been ‘allowed an opportunity to consult a solicitor prior to being questioned’ (s34(2A)), which would include a remote consultation; but also because the courts may well regard remote legal advice and assistance as a sufficient safeguard against unreliable confessions or unfair evidence. 68 Attorney General’s Guidelines on Disclosure: For Investigators, Prosecutors and Defence Practitioners (2020), https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/946082/Attorney_General_s_Guidelines_ 2020_FINAL_Effective_31Dec2020.pdf, Annex B. 69 Attorney General’s Office, Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System, Cm 9735, November 2018. 70 Horwell, R., Mouncher Investigation Report (2017), HC 292. 71 Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System, Cm 9735, November 2018, 3.

20 Johnston and Cape no general obligation on the police to disclose case-related information to a suspect prior to interview other than the fact of and grounds for an arrest,72 and any documents or materials that are essential to challenging the lawfulness of an arrest and detention73 – it is clear (as spelt out more particularly below) that PCE was conceived as a mechanism for persuading suspects to disclose more information to the police rather than vice versa. The Guidelines describe PCE as the ‘voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspect has been formally charged’.74 To engage with the process, a defence solicitor (or an unrepresented suspect) and the police have to agree that PCE is in the interests of progressing the case. If the police offer PCE to a suspect, the suspect has the right to reject the offer of engagement. If the offer is rejected, and the suspect is eventually charged, the Guidelines explicitly provide that no inference can be drawn from the suspect’s failure to participate in PCE.75 The Guidelines provide a non-exhaustive list of what PCE might involve: a b c d e f g h

Giving the suspect the opportunity to comment on any proposed further lines of enquiry. Ascertaining whether the suspect can identify any other lines of enquiry. Asking whether the suspect is aware of, or can provide access to, digital material that has a bearing on the allegation. Discussing ways to overcome evidential barriers to obtaining potential evidence such as revealing encryption keys. Agreeing any keyword searches of digital material that the suspect would like carried out. Obtaining a suspect’s consent to access medical records. The suspect identifying and providing contact details of any potential witnesses. Clarifying whether any expert or forensic evidence is agreed and, if not, whether the suspect’s representative intend to instruct their own timescales for this.

The Guidelines further state that a ‘no comment’ interview by a suspect does not preclude them from being offered PCE.76 This means the scope of who can be offered the opportunity to participate is wide, although the official assumption is that only between 1 and 3 per cent of police station attendance cases will result in PCE being offered.77 72 73 74 75 76 77

PACE 1984 s28. PACE Code C para 3.4(b). The Guidelines 34. The Guidelines 35. The Guidelines 36. Ministry of Justice, Government Response: Criminal Legal Aid Review: Remuneration for Pre-Charge Engagement (2021), https://assets.publishing.service.gov.uk/gov ernment/uploads/system/uploads/attachment_data/file/976301/pre-charge-enga gement-consultation-response.pdf, para 41.

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The Attorney General’s Review rationalised PCE on the basis that information disclosed by the suspect may lead to further lines of enquiry which might result in the discovery of exculpatory evidence.78 This is expanded upon in the Guidelines, which proclaim a number of advantages to participating in PCE. Firstly, suspects who maintain their innocence will be aided by the early identification of lines of enquiry which may lead to evidence or material that points away from the suspects or towards another suspect. Secondly, PCE can help inform a prosecutor’s charging decision; it might avoid a case being charged that would otherwise be stopped later in proceedings, when further information becomes available. The issues in dispute might be narrowed down, thereby saving resources by not carrying out inquiries that would otherwise be undertaken. Early resolution of cases can, it is suggested, reduce anxiety for both suspects and complainants. Finally, the cost of the matter to the criminal justice system may be reduced.79 The PCE scheme was not piloted, and it is too early for there to be any research or other robust evidence about how it is working in practice. However, the stated ‘advantages’ of PCE do require examination. One concern centres on what lies beneath the terminology. The procedure is termed ‘engagement’, which paints a picture of two parties working together towards a common goal. However, the list of what PCE might involve suggests a one-way flow of information – from the suspect to the police. There is no requirement for the police to disclose information to the suspect. Whilst the suspect can suggest various lines of enquiry to pursue, the Guidelines explicitly state that the police are not obliged to follow any line of inquiry that has been suggested by the suspect. Furthermore, since PCE takes place before the commencement of any formal proceedings, the statutory disclosure rules do not apply. This illustrates the fact that a one-way flow of information is envisaged. The perceived advantage to a suspect that they may not be charged if they engage with PCE is reminiscent of the original arguments for the regime of defence disclosure under the CPIA 1996. In respect of that obligation, it was argued that by requiring an accused to disclose a defence case statement, the prosecution would weed out inherently weak cases. However, arguably the converse was true. Instead of weeding out weak cases, there is a danger that the prosecution’s case could be made stronger by receiving defence disclosure, as the prosecution can see the core arguments of the defence case. It would seem that this danger exists with PCE. There is nothing in the Guidelines that would prevent the prosecution from using any information disclosed by a suspect during PCE which provides evidence relevant to guilt at any subsequent trial. Whilst a refusal to engage with PCE cannot be used to draw any form of inference if criminal proceedings are instigated, the same was said for the case management forms introduced under the CrimPR. Nevertheless, those forms were used as a prosecution weapon to assist in their pursuit of a conviction.80 Although this 78 Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System, Cm 9735, November 2018, 32. 79 The Guidelines 36. 80 See Firth v Epping Magistrates’ Court [2011] EWHC 388 (Admin).

22 Johnston and Cape approach was subsequently overturned by the courts,81 the potential dangers to the accused of non-compliance with PCE are stark. Disclosure by a suspect during the PCE procedure may, as the Review suggests, benefit them. Equally, however, unless carefully considered, it may have the opposite effect. Unsurprisingly, as with the CPIA 1996 disclosure regime, economic savings also underpin the rationale for PCE, although it is questionable how much will be saved if it is only used to be employed in a limited number of cases. The quest for economic savings is something that has pervaded criminal justice policy for over two decades. The CrimPR, first introduced in 2003, explicitly stated that economic and efficiency savings for the justice system were component parts of the overriding objective of ‘dealing with cases justly’.82 Writing in 1995, Roger Leng suggested that the changes to the silence and disclosure provisions introduced in the mid-1990s meant the system was ‘losing sight of the defendant’.83 It appears that the efficiency drivers infiltrating the police station stage mean that the system is also losing sight of the suspect as the culture of co-operation and economic savings has now spread there. A further concern relates to the potential inequality between publicly and privately funded suspects. The Government Response to the consultation on PCE suggested that those suspects who pay privately for a lawyer might more readily instigate PCE than their publicly funded counterparts.84 Furthermore, the rates of renumeration for publicly funded PCE work are low.85 The Government suggested that PCE would take between one and two hours of work. However, this assumption was largely rejected by respondents to the consultation. There was a common theme that one or two hours of work was largely unrealistic as ‘this does not reflect the level of work that will be required in terms of taking instructions from the client and considering reasonable lines of enquiry’.86 The prospect of completing PCE in this timeframe becomes more unrealistic for work that requires the intervention of other personnel such as interpreters, mental health professionals or an appropriate adult. One consultee commented that defence practitioners were less likely to ‘take a punt’ [on engaging with PCE] as they might not get paid for it.87 The consultation also raised the possibility of a danger concerning localised variation in the implementation of 81 R v Newell [2012] EWCA Crim 650 offered some opaque guidance toward the use of case management forms. The court decided the Crown could not use a statement made in a PCMH to prove the defendant’s evidence at trial was inconsistent with the completed form. The prosecution could not use the statement to the detriment of the appellant. This would be unfair. However, if the spirit of the Rules is not complied with the court may allow such evidence to be admitted at trial (per Sir Anthony May P at para 37). 82 CrimPR 2015 Rule 1.1(e). 83 Leng, R., ‘Losing sight of the defendant: The Government’s proposals on pre-trial disclosure’ (1995) Criminal Law Review 704 at 711. 84 Government Response para 45. 85 £51.28 per hour in London, £47.45 per hour outside London. See Criminal Legal Aid (Remuneration)(Amendment)(No 2) Regulations 2020 SI No 497. 86 Government Response para 35. 87 Government Response para 44.

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PCE. One respondent suggested that a risk exists that the police or CPS may adopt a discriminatory approach to certain suspects or for certain offences.88 The Government countered this concern, rather unconvincingly, by stating that there is a clear obligation on the police and prosecution to adopt PCE where ‘it is appropriate to do so’.89 It is unknown whether these concerns are justified; robust empirical work needs to be done to test their validity, but as far as is known, no such research has been instituted or encouraged by the Government.

Conclusions We have concentrated here on two major recent developments concerning the investigative stage of the criminal process – remote attendance by solicitors and Pre-Charge Engagement – and sought to place them in context. The former, which we have argued may not be temporary in terms of its effects, risks reducing the effectiveness of what is probably the most significant procedural safeguard – the right to legal advice and assistance. The latter, however, is predicated, if it is not to disadvantage the accused, on the availability of effective legal assistance. The two developments described reflect, and give further impetus to, two major longer-term trends in the criminal justice process in England and Wales – a shift in focus from the courtroom to the police station, and a weakening of due process safeguards at the investigative stage. Other developments further reinforce these trends. The Government has made a commitment to recruit an additional 20,000 police officers which, if realised, will result in more people being arrested and detained at police stations, and more suspects being proceeded against. The courts, as we have described, are overwhelmed, and there are serious doubts that sufficient resources and personnel are being devoted to clear the backlog and ensure the timely hearing of cases.90 It has been argued that greater use must be made of out-of-court disposals if the backlog is to be reduced,91 and the Government has responded by introducing statutory disposals that enhance both the punitive elements of such disposals and their enforcement.92 As a result, the likelihood is that more cases will be disposed of at the police station, with more significant consequences for suspects, and with limited opportunities for judicial scrutiny. Changes to police bail without charge93 will mean that more suspects will be subjected to legal restraints for longer periods of time whilst investigations and charge decisions are made. Remote attendance during the Covid-19 pandemic has been facilitated by a change to the rules regarding legal aid remuneration which, as noted earlier, mean 88 Government Response para 46. 89 Government Response para 51. 90 The scale of the challenges is clearly set out in Crest, Impact and Legacy of Covid-19 on the Criminal Justice System: Modelling Overview (Crest Advisory, October 2020). 91 ibid. 25. 92 Police, Crime, Sentencing and Courts Bill 2021–22 cls77–100. 93 Police, Crime, Sentencing and Courts Bill 2021–22 cl43 and Sch 4.

24 Johnston and Cape that law firms can earn the same from remote attendance as from attendance in person; and they may even be better off because they can deal with more cases from a wider range of police stations. This may well change if the legal aid remuneration rules revert to the pre-Covid position. However, law firms and solicitors have made adjustments to their conduct over a lengthy period of time, and this is likely to have affected their business models and also their professional cultural attitudes. Some solicitors have welcomed remote attendance because it has eased some of the tensions of providing legal advice at police stations, and it has potentially encouraged a more limited understanding of the extent of their role. The police are likely to have got used to conducting interviews with suspects without solicitors being physically present. This suggests that action is needed to reinforce the importance of legal advice and assistance at police stations and, in particular, of personal attendance. Reinstating the previous rules regarding remuneration, together with a long-overdue uplift in remuneration rates, would assist the latter. Introducing a rule that the right to consult a solicitor cannot be waived unless and until a suspect has spoken to a solicitor (by telephone, at least) could deal with suspects’ perceptions of delay and mean that their decisions whether to waive their right to legal advice is fully informed.94 However, more needs to be done if the longer-term trends are to be reversed. It remains to be seen whether the Government-established Independent Review of Criminal Legal Aid,95 which was published in November 2021,96 and the Government’s response to it,97 will meet these challenges. In yet another repeat of a common narrative, the Government claims it will ‘crack down on crime’ and give ‘the police and courts the powers they need to keep our streets safe’.98 Missing from this narrative is a commitment to ensure that due process safeguards for those suspected or accused of crime are preserved or enhanced. The danger is that trial processes designed to ensure that determination of guilt or innocence is fair will be further eroded, and 94 EU Directive 2013/48/EU on the right of access to a lawyer requires that suspects and accused must be fully informed of the right of access, and of the possible consequences of waiving it (Art 9). In some EU jurisdictions legal advice at the investigative stage is mandatory (eg, Italy and Spain), and in others the right cannot be waived unless a suspect has first spoken to a lawyer (eg, Belgium). 95 See https://www.gov.uk/government/groups/independent-review-of-criminal-lega l-aid#progress-update. 96 Sir Christopher Bellamy, Independent Review of Criminal Legal Aid (2021), http s://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm ent_data/file/1041117/clar-independent-review-report-2021.pdf. 97 Ministry of Justice, Government’s Response to the Criminal Legal Aid Independent Review and Consultation on Policy Proposals (March 2022), https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 1060944/clair-government-response-conultation.pdf. 98 Press Release, ‘Justice overhaul to better protect the public and back our police’ (9 March 2021), https://www.gov.uk/government/news/justice-overhaul-to-better-protect-the-p ublic-and-back-our-police. See also the UK Government, Beating Crime Plan (July 2021), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm ent_data/file/1006825/Crime-Plan-accessible-version_2.pdf.

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opportunities for those suspected or accused of crime to effectively participate in the process will be further reduced. If there is an overall Government strategy regarding the criminal justice process, it does not pay sufficient regard to the fundamental principles of due process and fair trial.

3

Jury decision making in the criminal trial Rebecca K. Helm and Madeleine Millar

Introduction: The role of the jury in criminal trials In many legal systems across the world, lay juries determine whether defendants accused of crime are legally guilty or not guilty. Making these determinations may involve a number of complex judgments, for example judgments as to whether certain events took place, judgments of the reliability of witnesses, and/or judgments of the mindset of a defendant when performing an action. Many of these judgments involve making decisions akin to scientific judgments of whether a particular fact is true. In the past, the use of juries to make these judgments was based on the idea that juries were a fair and democratic way to make such determinations. In the early United States, for example, it was seen as fairer by early colonials that a jury of their peers would make legal judgments about a person than for an imported English judge to do so.1 In this way, convictions could be viewed as a statement that someone had been convicted in line with legal rules, rather than a statement of objective fact or truth. However, this conception of convictions has become less relevant due to the increasing influence of a concept of justice based on objective truth. As Richard Nobles and David Schiff stated in 1995: The history of the reform of criminal procedure since the last century is one in which practices which have been justified by reference to ideas of fairness and rights have been progressively eroded in favoured of practices justified by reference to ideas associated with claims of truth.2 In the context of the modern criminal justice system, truth (or accuracy) is seen as central to the legitimisation of criminal convictions. Objective truth is important due to the harms of a criminal conviction that should not be imposed on a person who is not factually guilty. For example, criminal convictions result in the 1 Hans, V., ‘Trial by jury: Story of a legal transplant’ (2017) 51(3) Law & Society Review 471, 481. 2 Nobles, R. and Schiff, D., ‘Miscarriages of justice: A systems approach’ (1995) 58(3) Modern Law Review 299, 304.

DOI: 10.4324/9781003143321-3

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3

imposition of community condemnation and stigma, and can lead to the curtailment of fundamental rights such as the right to respect for private and family life, and the right to liberty under the European Convention on Human Rights. Convictions of the innocent are seen as morally harmful and unjust.4 In addition, consequentialist goals of the criminal justice system are not well served when the innocent are convicted. Most obviously, when the innocent are convicted, real offenders often escape justice. Some work in economics has even suggested that inaccurate convictions can incentivise criminal activity by reducing the value of not committing crime.5 Today, convictions are typically seen as being legitimised on the basis of being accurate, as well as reached in a fair and rights respecting way.6 The role of the jury in the current system is therefore to determine objective truth in a fair way. But, as Nobles and Schiff point out, the search for objective truth typically falls within the realm of science.7 Methods of determining fact in science are subject to extensive scrutiny and testing, and are designed based on scientific theory. Juries have not been designed and tested in this way, but rather have evolved in their role as democratic fact finders. To ensure that the innocent are not convicted and that the trial process is fair, legal systems have introduced specific procedure governing trial by jury. However, jurisdictions vary widely in terms of this procedure. Increasingly, research in cognitive science is allowing us to understand how juries work, to identify the vulnerabilities of juries to inaccurate and unfair decision making, and to design evidence-based procedure with the potential to optimise the accuracy and fairness of the criminal law jury. This chapter explores two key characteristics of juries as lay decision making bodies that have the potential to make them vulnerable to inaccurate or unfair decision making – a lack of in-depth knowledge and understanding, and susceptibility to biases in decision making. It considers legal procedures that have been adopted to address vulnerabilities in each of these areas in two prominent jurisdictions utilising the criminal law jury – England and Wales, and the USA – and suggests that these procedures may fail to provide sufficient protection. The final part of the chapter 3 Choo, A., Abuse of Process and Judicial Stays of Criminal Proceedings (Oxford University Press, 1993) 13. 4 Ashworth, A., ‘Four threats to the presumption of innocence’ (2006) 10 International Journal of Evidence and Proof 241; Dworkin, R.M., ‘Principle, policy, and procedure’ in C. Tapper (ed.), Crime, Proof, and Punishment (Butterworths, 1981). 5 Png, I.P.L., ‘Optimal subsidies and damages in the presence of judicial error’ (1986) 6 International Review of Law and Economics 101; Garoupa, N. and Rizzolli, M., ‘Wrongful convictions do lower deterrence’ 168(2) Journal of Institutional and Theoretical Economics 224. Although note that other research suggests that this may not always be the case, see Lando, H., ‘Does wrongful conviction lower deterrence?’ (2006) 35(2) Legal Studies 327. 6 See, for example, the criminal procedure rules in England and Wales which state that ‘the overriding objective of this procedural code is that criminal cases be dealt with justly’ and that dealing with criminal cases justly includes, among other things ‘acquitting the innocent and convicting the guilty’, Criminal Procedure Rules 2015 s1(1). 7 Nobles and Schiff (n 2).

28 Helm and Millar develops empirically-supported suggestions for reform to address these vulnerabilities, and concludes by calling for further research into how knowledge from cognitive science might be incorporated into legal procedure to improve the decision making of criminal law juries.

Part I: Knowledge and understanding As lay decision making bodies, juries are well-placed to reflect the opinions and perspectives of the community when making legal determinations. However, their status as lay decision making bodies also means they lack expert knowledge relating to the evidence they are being asked to consider. In their early form in medieval England, juries were self-informing, meaning they gathered information about the parties to a case and evidence prior to trial.8 Juries then relied, at least in part, on their own knowledge of the parties and evidence to reach verdicts. As juries evolved, juror’s own knowledge became less central to cases as juries assumed a more passive role in the adversarial trial – considering arguments and evidence presented to them by lawyers. However, jurors can still be vulnerable to inaccurate or unfair decision making based on insufficient knowledge and understanding. This vulnerability is particularly important in two circumstances. First, where jurors do not understand the evidence presented by lawyers sufficiently well to critique it and make informed decisions based upon it and second, where jurors bring misconceptions into the trial that influence their evaluation of evidence. Understanding and critiquing evidence presented Jury systems require jurors to consider evidence, including expert evidence, and to assess its reasonableness and probative value in the context of the case as a whole. However, this task is likely to be difficult where jurors lack understanding of the evidence presented to them. Psychological research confirms the difficulties juries are likely to face in scrutinising complex evidence. First, research shows that while laypeople are good at using inferential reasoning skills (skills in drawing conclusions based on data) in reacting to everyday problems, they struggle to apply these skills in unfamiliar domains.9 Research specific to law, discussed below, has confirmed such difficulties in the jury system. First, as non-experts, jurors cannot necessarily be expected to fully understand all of the evidence that is presented to them, particularly in cases involving complex statistical or forensic evidence.10 They may therefore make mistakes when interpreting such evidence. For example, in the context of DNA evidence, research has shown a tendency for jurors to equate (i) the chance that a suspect would match a DNA trace 8 Klerman, D., ‘Was the jury ever self-informing?’ (2003) 77 Southern California Law Review 123. 9 See, for example, Nisbett, R. (ed.), Rules for Reasoning (Taylor & Francis, 1993). 10 See Helm, R., Hans, V. and Reyna, V., ‘Trial by numbers’ (2017) 27 Cornell Journal of Law and Public Policy 107.

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if (s)he was not the source of that trace with (ii) the probability that the suspect is not the source of the DNA trace.11 These statistics are not the same since DNA evidence cannot distinguish a defendant from other potential sources and so cannot say how likely it is that the suspect is not the source of the DNA trace. Imagine a population of 65 million and within that population a one in a thousand chance that a suspect would match a DNA trace if (s)he was not the source. Around 65,000 people in that population would be expected to match the DNA, meaning that the probability of the defendant being the source of the DNA could be as low as 1 in 65,000. Because jurors themselves lack expertise in the evidence that they are considering, they rely on evidence presented to them by lawyers and experts. However, the fact that they are relying on expertise of lawyers and experts without background knowledge of their own can make it difficult for them to adequately critique the information provided to them. Consequently, where unreliable or unclear expert evidence is presented to juries, they may be misled by it. This result occurred in England and Wales in a number of high-profile cases involving a now discredited paediatrician, Dr Roy Meadow.12 In cases involving mothers accused of murdering their infant children, Dr Meadow made incorrect claims about the likelihood that two children in one family would die as a result of sudden infant death syndrome. For example, Dr Meadow described the chances of two children in a family dying as a result of sudden infant death syndrome as being around 1 in 73 million, and compared these chances to the chance of backing a long-odds outsider at the Grand National four years in a row and winning each time.13 When scientists and statisticians reviewed these claims following one conviction, they identified them as being misleading.14 In overturning resulting convictions, the Court of Appeal noted significant problems with this statistical evidence, and also that the evidence was likely to have influenced juries.15 Experimental work in the United States context has confirmed the difficulties that jurors are likely to face when critiquing complex evidence. In a 2016 mock jury study, Jonathan Koehler, Nick Schweitzer, Michael Saks, and Dawn McQuiston found that jurors were influenced in their assessments of forensic science by examiner background experience, but were not influenced by the sophistication of forensic technology used and were only influenced by relevant scientific 11 Koehler, J., ‘Error and exaggeration in the presentation of DNA evidence at trial’ (1993) 34 Jurimetrics 21, 27. 12 See, for example, R v Clark [2003] EWCA Crim 1020; R v Anthony [2005] EWCA Crim 952; R v Cannings [2004] EWCA Crim 1. 13 R v Clark [2003] EWCA Crim 1020. 14 Royal Statistical Society, Letter from the President to the Lord Chancellor Regarding the use of Statistical Evidence in Court Cases (Royal Statistical Society London, 2002); Watkins, S., ‘Conviction by mathematical error?’ (2000) 320 British Medical Journal 2. See also Nobles, R. and Schiff, D., ‘Misleading statistics within criminal trials’ (2005) 2(1) Significance 2. 15 R v Clark (n 13).

30 Helm and Millar testing to a limited and inconsistent extent.16 This effect has also been demonstrated in other work.17 Thus, there is a risk that evidence presented by an experienced expert may be convincing to a jury even when the evidence is based on unsophisticated techniques and poor scientific testing. This risk was demonstrated to some extent in a survey in New Zealand in which jurors who had sat in criminal trials involving expert testimony were interviewed. Although jurors in some trials reported no difficulty with the technical nature of the evidence, jurors in other trials reported difficulties. In one of the nineteen cases studied, jurors discussed the impact of expert credentials in evaluating evidence. For example, one juror stated that: ‘When the defence read out his qualifications, you accept that he’s very experienced and that he should have a reasonable grasp of what he’s talking about’.18 This potential ineffectiveness in appropriately assessing and critiquing scientific evidence is likely to have contributed to both wrongful convictions and acquittals, particularly in jurisdictions such as the USA where evidence based on a large range of forensic techniques is admissible in court. In 2006, a National Academy of Sciences Report in the USA (the NAS report) concluded that ‘some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques’.19 A number of widely used techniques were placed into this category, including fingerprint examinations, handwriting examinations, microscopic hair analyses, and bite mark comparisons. Placing these types of evidence before a jury is particularly dangerous given the evidence described above showing that jurors cannot necessarily accurately assess methodological sophistication and scientific testing. Despite this, weak forensic science evidence continues to be presented to jurors. For example, although research has established significant flaws with using bite mark comparisons for the purposes of suspect identification,20 and the US President’s Council of Advisors on Science and Technology stating that ‘bitemark analysis does not meet the scientific standards for foundational validity, and is far from meeting such standards’,21 bitemark evidence continues to be presented to juries in multiple jurisdictions.22 16 Koehler, J., Schweitzer, N., Saks, M. and McQuiston, D., ‘Science, technology, or the expert witness: What influences jurors’ judgments about forensic science testimony?’ (2016) 22(4) Psychology, Public Policy, and Law 401. 17 See, for example, Cooper, J., Bennett, E. and Sukel, H., ‘Complex scientific testimony: How do jurors make decisions’ (1996) 20(4) Law and Human Behavior 379 (although note that this work is in the context of the US civil law jury). 18 Young, W. et al., Juries Survey – Report of Findings (New Zealand Law Commission, 1999) 98. 19 Commission on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009) 22, https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf. 20 See Saks, M.J. et al., ‘Forensic bitemark identification: Weak foundations, exaggerated claims’ (2016) 3(3) Journal of Law and the Biosciences 538. 21 US President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Court: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, 2016) 87. 22 See, for example, Chin, J. and White, D., ‘Forensic bitemark identification in Canada’ (2019) 52 University of British Columbia Law Review 57; Oliva, J. and Beety, V.,

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Bringing misconceptions into the courtroom There is the potential for jurors to bring incorrect information into the courtroom and to decide cases based on flawed assumptions or misunderstandings. One area where this has been clearly demonstrated is in the case of assessing the accuracy and reliability of the testimony of others. Research in this area demonstrates that the opinions of lay people, as to which cues indicate the accuracy and reliability of testimony, differ significantly from those of experts.23 These discrepancies are important, as some have the potential to lead jurors to believe or discredit evidence for reasons that have been shown empirically to be unreliable. A good example of such a discrepancy involves a memory error known as unconscious transference. Unconscious transference occurs when an eyewitness identifies a culprit as someone that they have seen in another situation or context. The potential for unconscious transference to occur has been demonstrated in the literature24 and is accepted by the majority of experts (81 per cent of experts in a survey reported by Tanja Benton and colleagues).25 However, research suggests that only a minority of laypeople (30 per cent of laypeople in the survey reported by Tanja Benton and colleagues) believe unconscious transference occurs.26 The failure of laypeople to recognise and account for unconscious transference has the potential to directly contribute to miscarriages of justice; memories, that evidence suggests have a real possibility of being false, are interpreted as reliable. An example of a case in which such a miscarriage of justice occurred in England and Wales is the case of Sam Hallam. Sam Hallam was convicted of the murder of Essayas Kassahun during a street brawl. A number of eyewitnesses gave evidence. One of the key eyewitnesses in the case (W1) identified Mr Hallam as having been involved in the brawl, but only after she had seen him in the street the following day and after she had heard a rumour that he had been involved. The other key witness (W2) only identified Mr Hallam after being told by W1 that Mr Hallam was responsible. The jury convicted Mr Hallam. In quashing the conviction on appeal, the Court of Appeal noted that ‘the identification evidence in the case was never very satisfactory’.27

23

24

25 26 27

‘Regulating bite mark evidence: Lesbian vampires and other myths of forensic odontology’ (2019) 94 Washington Law Review 1769. See, for example, Benton, T., Ross, D., Bradshaw, E., Thomas, W. and Bradshaw, G., ‘Eyewitness memory is still not common sense: Comparing jurors, judges and law enforcement to eyewitness experts’ (2006) 20(1) Applied Cognitive Psychology 115; Patihis, L., Ho, Y., Tingen, I., Lilienfeld, S. and Loftus, E., ‘Are the “Memory Wars” over? A scientist–practitioner gap in beliefs about repressed memory’ (2014) 25(2) Psychological Science 519. See, for example, Ross, D., Ceci, S., Dunning, D. and Toglia, M., ‘Unconscious transference and mistaken identity: When a witness misidentifies a familiar but innocent person’ (1994) 79(6) Journal of Applied Psychology 918; Loftus, E., ‘Unconscious transference in eyewitness identification’ (1976) 2 Law and Psychology Review 93; David, D., Loftus, E., Vanous, S. and Cucciare, M., ‘Unconscious transference can be an instance of change blindness’ (2008) 22(5) Applied Cognitive Psychology 605. Benton et al. (n 23) ibid. R v Hallam (2012) No. 2011/04293/C5, para 76.

32 Helm and Millar Research also suggests that likely misconceptions among laypeople have the potential to lead to systematic failures of juries to convict defendants, for example in cases involving victims of sexual assault. Research conducted in Australia has demonstrated a number of misperceptions that laypeople tend to have relating to child sexual assault, including incorrect beliefs about children’s memory, suggestibility, and responses to sexual assault.28 For example, this research suggests that laypeople commonly endorse misconceptions that victims of sexual assault will avoid their abusers, and that children who are assaulted display strong emotional reactions.29 Such beliefs may lead laypeople to be unduly sceptical of victims of sexual assault who do not display such characteristics. Relatedly, research suggests that jurors may endorse rape ‘myths’, defined as false beliefs about rape and other forms of sexual violence. A recent review described ‘overwhelming evidence that prejudicial and false beliefs held by jurors about rape affect their evaluation of evidence and their decision making in rape cases’.30 Based on a range of experimental work, the review concludes that problematic views about how ‘real’ rape victims would behave (such as the belief that if a complainant did not scream, fight, or get injured then it is not rape) and what ‘real’ rape looks like (such as the belief that rape only occurs between strangers in public places) predict legal judgments. In this way, juror misperceptions may be contributing to the systematic failure to effectively prosecute sexual assault cases in the current system, with reports suggesting low conviction rates particularly of young men prosecuted for rape.31 Compensating for deficits in knowledge and understanding Legal systems have recognised the risks that deficits in juror knowledge and understanding might have for the accuracy and fairness of their decisions and have 28 Cossins, A., ‘Children, sexual abuse and suggestibility: What laypeople think they know and what the literature tells us’ (2008) 15(1) Psychiatry, Psychology, and Law 153; Goodman-Delahunty, J., Martschuk, N. and Cossins, A., ‘What Australian jurors know and do not know about evidence in child sexual abuse’ (2007) 41 Criminal Law Journal 86. 29 Cossins, A., Goodman-Delahunty, J. and O’Brien, K., ‘Uncertainty and misconceptions about child sexual abuse: Implications for the Criminal Justice System’ (2009) 16(3) Psychiatry, Psychology and Law 435, 440. 30 Leverick, F., ‘What do we know about rape myths and juror decision making?’ (2020) 24(3) The International Journal of Evidence & Proof 255. See also Ellison, L. and Munro, V., ‘Reacting to rape’ (2009) 49 British Journal of Criminology 202; Ståhl, T., Eek, D. and Kazemi, A., ‘Rape victim blaming as system justification: The role of gender and activation of complementary stereotypes’ (2010) 23 Social Justice Research 239; Masser, B., Lee, K. and McKimmie, B.M., ‘Bad woman, bad victim? Disentangling the effects of victim stereotypicality, gender stereotypicality and benevolent sexism on acquaintance rape and victim blame’ (2010) 62 Sex Roles 494; Chapleau, K.M. and Oswald, D.L., ‘Status, threat, and stereotypes: Understanding the function of rape myth acceptance’ (2013) 26 Social Justice Research 18. 31 See, for example, Topping, A. and Barr, C., ‘Revealed: Less than a third of young men prosecuted for rape are convicted’, The Guardian, 23 September 2018, https://www. theguardian.com/society/2018/sep/23/revealed-less-than-a-third-of-young-men-p rosecuted-for-are-convicted, accessed 9 March 2021.

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adopted a variety of strategies to address these risks. These strategies can be grouped into two primary categories – restricting and monitoring the information that is provided to jurors, and providing important information to jurors. Restricting evidence put to jurors First, legal systems do restrict the evidence that can be presented to jurors, in order to reduce the extent to which they can be misled by inaccurate or unreliable information. This approach is used in restricting the forensic science evidence that is presented to juries. Different jurisdictions adopt different tests in this regard. In the majority of jurisdictions in the USA, the admission of any expert evidence at trial is governed by the decision in Daubert. 32 In Daubert, the United States Supreme Court held that ‘proposed testimony must be supported by appropriate validation … based on what is known’.33 This standard was intended to establish a requirement of evidentiary reliability, to avoid unreliable and potentially misleading evidence being presented in court, including to juries. However, evidence suggests that the Daubert standard is applied lightly in criminal cases and has had very little impact in reducing unreliable evidence put before juries.34 For example, as noted above, unreliable bitemark evidence continues to be admitted in criminal cases.35 The NAS report described above acknowledged that: ‘In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions and the courts have been utterly ineffective in addressing this problem’.36 One issue that has been commented on by academics is the unsuitability of judges to make determinations of scientific reliability, particularly without more guidance.37 In England and Wales, the Daubert standard was deemed insufficient by the Law Commission.38 The current law in England and Wales requires that expert evidence be sufficiently reliable to be put before a jury, but also provides guidance as to how reliability should be assessed (based on Law Commission proposals integrated into the common law).39 These standards have the potential to provide more robust protection for juries against misleading expert evidence, although evidence has not yet established their effectiveness. Restricting material put to the jury clearly has the potential to protect them from unreliable and misleading information. However, current standards do not 32 509 U.S. 579 (1993). 33 ibid. 590. 34 See, for example, Neufeld, P., ‘The (near) irrelevance of Daubert to criminal justice and some suggestions for reform’ (2005) 95 American Journal of Public Health S107; Giannelli, P., ‘Forensic science: Daubert’s failure’ (2018) 68 Case Western Reserve Law Review 869. 35 Oliva and Beety (n 22). 36 National Research Council (n 19) 53. 37 Giannelli (n 34). 38 Law Commission, Expert Evidence in Criminal Proceedings in England and Wales (Law Com. No. 325, 2011), paras 5.89–115. 39 R v Dlugosz, R v Pickering, R v MDS [2013] EWCA Crim 2.

34 Helm and Millar necessarily assist jurors in scrutinising two conflicting expert reports considered sufficiently reliable to be admissible by the courts, or where expert evidence is admitted unopposed and another side to the story is never presented to jurors. While expert reports are often required to contain details on expert credentials and the methodology used to reach conclusions,40 jurors remain vulnerable to prioritising experience over sophistication and testing when comparing conflicting accounts. Similarly, jurors remain susceptible to accepting expert evidence where it is the only evidence available to explain events that have taken place, particularly where this evidence is given by an experienced expert. However, high-profile miscarriages of justice show that just because an expert is experienced, it does not mean their conclusions can be relied upon without extensive scrutiny. Finally, the ability of jurors to effectively scrutinise expert evidence may be compromised by the biases described below, particularly when faced with a lack of understandable criteria to use in assessments. Providing information Another approach that has been taken to address deficits in the knowledge and understanding of jurors is the provision of information to jurors either through experts, or through judicial directions or instructions. In cases where evidence interpretation requires special knowledge or competence, expert evidence is typically admitted in court to assist jurors. Subject to the problems described above, such evidence can be useful for jurors in making their determinations. However, in an adversarial system where lawyers will present evidence from experts favouring their case, this evidence may not be a good source of neutral information (despite rules governing the integrity of experts giving evidence in court). Systems typically allow expert evidence to be admitted on subjects requiring expertise or special knowledge.41 However, determinations of which areas require expertise or special knowledge may limit the availability of expert opinions to jurors. For example, in England and Wales, the courts have shown a reluctance to admit expert evidence to help jurors assess the likely reliability of eyewitness testimony.42 This approach is taken despite the research described above showing important misperceptions that laypeople have about memory, and research in the context of children’s memory specifically, empirically showing that laypeople struggle to differentiate between true and false memory.43

40 See, in England and Wales, Crim PD 33A.4. 41 See, for example, Glover, R., Murphy on Evidence 15th edn (Oxford University Press, 2017) 612. 42 For example, JH and TG case numbers 04/5576/D3 and 04/5577/D3 (‘A witness’s ability to remember events, absent special considerations arising from the period of early childhood amnesia, will ordinarily be well within the experience of jurors’). 43 Poole, D. and Laimon, R., ‘Adults usually believe young children: The influence of eliciting questions and suggestibility presentations on perceptions of children’s disclosures’ (2008) 32 Law and Human Behaviour 489; Leichtman, M. and Ceci, S.,

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Another approach to providing information to jurors is to use judicial directions, instructions, and warnings. This approach has been widely utilised in the context of eyewitness identifications. In England and Wales, in cases where the prosecution relies on contested identification evidence, the court is required to deliver a Turnbull direction, which underlines the dangers inherent in identification evidence, directs the jury to closely examine the circumstances in which the identification was made, and reminds the jury of specific weaknesses of the evidence.44 In the US, similar information is provided in many states through a Telfaire instruction which tells jurors what they should consider in appraising identification testimony.45 Some states have gone further and developed more detailed instructions, such as Henderson instructions in New Jersey.46 However, empirical research conducted in the US suggests that such directions or instructions may be ineffective in helping jurors scrutinise evidence. A range of experimental work has shown that these types of intervention do not increase the ability of jurors to differentiate between good and bad quality identifications,47 with this being attributed in part to juror expectations and beliefs, as well as ‘commonsense’ justice. Researchers have argued that there is a ‘ceiling effect’ in juror instructions, whereby there is a limit to how much juror comprehension and subsequent verdict accuracy can be improved with interventions.48 A judge’s instructions alone have been shown to be inadequate for overcoming the obstacle that prior knowledge imposes on a juror’s ability to understand and follow the law.49 Whilst rewriting instructions to improve clarity and comprehension has been suggested to overcome lack of understanding as an obstruction, such rewriting has not been enough to ensure predictability and consistency in juror decision making. Jurors’ biases have such a powerful effect that rational and

44 45 46 47

48

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‘The effects of stereotypes and suggestions on preschoolers’ reports’ (1995) 31 Developmental Psychology 568. R v Turnbull [1977] QB 224. States v Telfaire 469 R.2d 552, (D.C. Cir. 1972). State v Henderson 27 A.3d 872, 915 (N.J.S.C. 2011). See, for example, Jones, A., Bergold, A., Dillon, M. and Penrod, S., ‘Comparing the effectiveness of Henderson Instructions and expert testimony’ 13(1) Journal of Experimental Criminology 29; Cutler, B. and Penrod, S., Mistaken Identification: The Eyewitness, Psychology and the Law (Cambridge University Press, 1995) 264; Roach, K., ‘Unreliable evidence and wrongful convictions: The case for excluding tainted identification evidence and jailhouse coerced confessions’ (2007) 52 Criminal Law Quarterly 210, 213–214. English, P. and Sales, B., ‘A ceiling or consistency effect for the comprehension of jury instructions’ (1997) 3 Psychology, Public Policy, and Law 381, 381; Finkel, N.J., Commonsense Justice: Jurors’ Notions of the Law (Harvard University Press, 1995). Commonsense justice refers to an intuitive notion of what is fair and just, with such a notion not always being found in the black-letter law. Smith, V.L., ‘Prototypes in the courtroom: Lay representations of legal concepts’ (1991) 61 Journal of Personality and Social Psychology 857; Smith, V., ‘When prior knowledge and law collide: Helping jurors use the law’ (1993) 17 Law and Human Behavior 507.

36 Helm and Millar consistent decision making, even in death penalty decisions, may not be achieved through instructions.50 Although this work is not universally accepted to have undermined the case for judicial directions or instructions in this area,51 this body of experimental work raises significant questions about their effectiveness, especially when considering the additional influence of juror bias. More empirical work, with methodologically rigorous techniques, is needed to fully understand how judicial instruction and juror biases interact.52

Part II: Susceptibility to bias Research in cognitive psychology shows that human decision making is influenced by a range of biases and heuristics with the potential to compromise rational judgment.53 In the context of jury decision making, a wide range of biases have been shown to influence judgments. These biases can arise as a result of existing viewpoints and experience, or more general decision making heuristics that have been demonstrated in evidence evaluation. In some ways, the influence of these existing viewpoints is desirable and positive in a democratic system. However, in other ways the influence of biases can compromise the accuracy and fairness of juries. Existing viewpoints and attitudes The most widely-accepted model of the psychology of juror decision making is Nancy Pennington and Reid Hastie’s ‘Story Model’ (the Story Model). According to the model, jurors evaluate case evidence through combining that evidence with existing knowledge and forming potential narratives to explain the evidence.54 Narratives are then evaluated based on their consistency, coherence, and uniqueness. The best fitting story is matched with a verdict category in order to reach a verdict.55 Thus, jurors do not approach trial evidence as ‘blank slates,’ but draw on their own experiences and opinions to filter and understand evidence in the context of the case. As a result, juror evaluations of each piece of evidence are likely to be biased by existing opinions and by other case evidence. This influence of juror opinions is one of the advantages of jurors as lay decision-makers. However, this influence also has the potential to be problematic.

50 Diamond, S., ‘Instructing on death: Psychologists, juries, and judges’ (1993) 48 American Psychologist 423. 51 See Leverick, F., ‘Jury instructions on eyewitness identification evidence: A re-evaluation’ (2016) 49 Creighton Law Review 556. 52 English and Sales (n 48). 53 Colwell, L., ‘Cognitive heuristics in the context of legal decision making’ (2005) 23 American Journal of Forensic Psychology 17. 54 Pennington, N. and Hastie, R., ‘Explaining the evidence: Tests of the Story Model for juror decision making’ (1992) 62(2) Journal of Personality and Social Psychology 189. 55 ibid.

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Existing juror attitudes have the potential to influence juror judgments both implicitly and explicitly. Psychological research shows that existing attitudes can colour the way that jurors view evidence through a phenomenon known as motivated cognition. Motivated cognition refers to the inclination of people to seek out and credit information supportive of self-defining values and attitudes.56 In the context of jury decision making, this has been shown to lead to interpreting ambiguous facts in a way that is protective of values and attitudes. For example, in a case involving the defence of selfdefence after the shooting of an alleged aggressor, groups supportive of gun rights are more likely to interpret an alleged aggressor as having presented a threat to justify a finding of self-defence.57 Relatedly, where jurors view defendants in a positive way, they are less likely to find them to have caused negative outcomes. For example, one study showed that a driver who got into a road traffic accident when speeding was less likely to be found to be the cause of the accident when he had been speeding to hide his parents’ anniversary gift than when he had been speeding to hide drugs.58 The halo effect (see Table 3.1) is a similar heuristic which can also influence verdicts; ‘unattractive’ defendants have been shown to be 2.5 times more likely than ‘attractive’ defendants to be found guilty by individual mock jurors.59 Importantly, psychological research on evidence-evaluation outside the legal context has shown that people are more likely to rate an expert with academic credentials as ‘trustworthy and knowledgeable’ when the expert adopts a position that accords with their existing viewpoints.60 This impact of existing attitudes has the potential to impede accuracy and fairness in a number of ways, perhaps most importantly where jurors have existing implicit or explicit biases against minority groups. Even where bias is not conscious, it can drive judgments. Experimental research from the United States suggests that in the context of race, juries may demonstrate a small out-group bias, being more likely to find a defendant guilty where that defendant is from a different racial group to them.61 The 56 Gollust, S.E. et al., ‘Controversy undermines support for State mandates on the Human Papillomavirus Vaccine’ (2010) 29 Health Affairs 2014; Kahan, D.M. et al., ‘Who fears the HPV Vaccine, who doesn’t, and why? An experimental study of the mechanisms of cultural cognition’ (2010) 34 Law and Human Behavior 501; Kahan, D., Jenkins-Smith, H. and Braman, D., ‘Cultural cognition of scientific consensus’ (2011) 14 Journal of Risk Research 147. For a review of motivated cognition in the context of legal judgments, see Sood, A., ‘Motivated cognition in legal judgments – An analytic review’ (2013) 9 Annual Review of Law and Social Science 307. 57 Kahan, D. and Braman, D., ‘The self-defensive cognition of self-defence’ (2008) 45 (1) American Criminal Law Review 1. 58 Alicke, M., ‘Culpable causation’ (1992) 63(3) Journal of Personality and Social Psychology 368. 59 Wuensch, K. and Moore, C., ‘Effects of physical attractiveness on evaluations of a male employee’s allegation of sexual harassment by his female employer’ (2004) 144 The Journal of Social Psychology 207, 208; Castellow, W., Wuensch, K. and Moore, C., ‘Effects of physical attractiveness of the plaintiff and defendant in sexual harassment judgments’ (1990) 5 Journal of Social Behavior and Personality 547. 60 Kahan, Jenkins-Smith and Braman (n 56). 61 Mitchell, T., Haw, R., Pfeifer, J. and Meissner, C., ‘Racial bias in mock juror decision making: A meta-analytic review of defendant treatment’ (2005) 29(6) Law and Human Behavior 621; Sommers S. and Ellsworth, P., ‘White juror bias: An

38 Helm and Millar potential for such effects is possible in any system utilising lay juries and has the ability to lead to inaccurate or at least unfair outcomes for defendants from minority groups. The impact of existing attitudes, including through motivated cognition, may also contribute to jurors failing to effectively scrutinise evidence from sources that they respect. For example, jurors with strong beliefs in crime control and law enforcement may accept evidence given by the police without necessary scrutiny. Such an effect would be consistent with System Justification Theory, where individuals are motivated to view their social system as good, fair, and legitimate when they trust it, and engage in biased, selective information processing to reach system-supporting conclusions.62 Several mechanisms are used in order to justify one’s social system, which include believing that the world is a just place and that people typically get what they deserve.63 These cognitive mechanisms can lead to unequivocal support towards law enforcement.64 A range of juror biases based on pre-existing viewpoints and attitudes that have the potential to influence juror judgments have been captured by the Juror Bias Scale created by Saul Kassin and Lawrence Wrightsman.65 This scale seeks to capture and measure the range of biases that can influence juror determinations and includes six subscales that measure conviction proneness, cynicism towards the defence, beliefs relating to social justice, racial bias, system confidence, and beliefs relating to innate criminality. In the US, studies have shown that approximately 10 per cent of verdict preference disparities can be predicted using statistical models based on individual juror attitudes, characteristics, and personality traits.66 General decision making heuristics As human decision-makers, juror decisions can also be influenced by a wide range of decision making heuristics demonstrated in the psychological literature, that have the potential to compromise accuracy and fairness. A summary of some of the biases that have been demonstrated in the literature on the psychology of juries is presented in Table 3.1. Three of the biases outlined – confirmatory bias, mortality salience bias, and hindsight bias – are discussed in more detail below.

62

63 64 65 66

investigation of prejudice against Black defendants in the American courtroom’ (2001) 7(1) Psychology, Public Policy, and Law 201. Jost, J., Banaji, M. and Nosek, B., ‘A decade of system justification theory: Accumulated evidence of conscious and unconscious bolstering of the status quo’ (2004) 25 Political Psychology 881; Jost, J. and Andrews, R., ‘System Justification Theory’ in D. J. Christie (ed.), Encyclopedia of Peace Psychology, Vol II (Wiley, 2011). For a summary, see Jost, J. and Hunyady, O., ‘Antecedents and consequences of systemjustifying ideologies’ (2005) 14 Current Directions in Psychological Science 260. Rubin, Z. and Peplau, L., ‘Who believes in a just world?’ (1975) 31 Journal of Social Issues 65, 73. Kassin, S. and Wrightsman, L., ‘The construction and validation of a Juror Bias Scale’ (1983) 17(4) Journal of Research in Personality 423. Hastie, R., ‘Is Attorney-conducted voir dire an effective procedure for the selection of impartial juries?’ (1991) 40 American University Law Review 703, 712.

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Table 3.1 Demonstrated biases in jury decision making Bias

Descriptive content

Illustrative reference

Confirmatory bias

New information is interpreted and evaluated in a biased manner to support existing beliefs; supporting information is sought and contradictory information is avoided.

K. Carlson and J. Russo, ‘Biased interpretation of evidence by mock jurors’ (2001) 7(2) Journal of Experimental Psychology: Applied 91.

Halo effect

The overall impression of a person is influenced by evaluations of individual traits or characteristics (for example, physical attractiveness being associated with sincerity, kindness, and trustworthiness).

M. Patry, ‘Attractive but guilty’ (2008) 102(3) Psychological Reports 727.

Hindsight bias

Misperception of the foreseeability and predictability of events, leading to the perception that we ‘knew it all along’.

E. Harley, ‘Hindsight bias in legal decision making’ (2007) 25(1) Social Cognition 48.

Mortality salience bias

The increased inclination to defend your own worldview, favouring individuals who support it and derogating those who oppose it, triggered by thoughts of mortality.

L. Nelson, D. Moore, J. Olivetti and T. Scott, ‘General and personal mortality salience and nationalistic bias’ (1997) 23(8) Personality and Social Psychology Bulletin 884.

Primacy and recency effects

Increased importance is given to information heard first and last.

J. Kerstholt and J. Jackson, ‘Judicial decision making: Order of evidence presentation and availability of background information’ (1998) 12 Applied Cognitive Psychology 445.

Confirmatory bias Confirmatory bias refers to the tendency to seek out and favour information that is consistent with existing beliefs, expectations, and hypotheses.67 Changing beliefs takes time and effort, and it is often easier to disregard alternative perspectives rather than to adapt existing beliefs.68 Confirmatory bias has the potential to influence juror decisions in a number of ways. First, through 67 Fischer, P., Schulz-Hardt, S. and Frey, D., ‘Selective exposure and information quantity: How different information quantities moderate decision makers’ preference for consistent and inconsistent information’ (2008) 94 Journal of Personality and Social Psychology 231. 68 Hernandez, I. and Preston, J., ‘Disfluency disrupts the confirmation bias’ (2013) 49 Journal of Experimental Social Psychology 178; Wason, P.C., ‘On the failure to eliminate hypotheses in a conceptual task’ (1960) 12 Quarterly Journal of Experimental Psychology 129.

40 Helm and Millar ‘positive testing strategies’,69 leading jurors to focus on evidence supporting their initial impressions in a case (for example incriminating evidence against a defendant if they initially suspect the defendant is guilty). Second, through biased interpretation of available information, causing jurors to interpret ambiguous evidence as perspective-supporting. Biased interpretation may also involve assimilation, leading jurors to assess decision-consistent information as more credible and important than decision-inconsistent information.70 These effects can be referred to as predecisional distortion of information. The potential for confirmatory bias to influence the decisions of jurors has been confirmed in experimental jury research. For example, across two studies, Kurt Carlson and Edward Russo examined the effects of confirmatory bias in both civil and criminal contexts, demonstrating the bias in response to case evidence.71 The study showed that jurors engaged in biased interpretation of new evidence to support the verdict that they tentatively favoured, and that this effect persisted despite judicial instructions (‘jurors should refrain from reaching hasty opinions or conclusions until all the evidence has been presented’). Further research assessing the mediational role of predecisional distortion in the relationship between pretrial publicity against a defendant and juror verdicts reached similar conclusions; pretrial publicity against a defendant led to elevated rates of guilty verdicts, which were also associated with higher predecisional distortion scores and a pro-prosecution bias.72 Mortality salience bias Mortality salience bias is based upon the principles of Terror Management Theory,73 which states that humans are uniquely aware of the inevitability of their 69 Ask, K. and Granhag, P., ‘Motivational sources of confirmation bias in criminal investigations: The need for cognitive closure’ (2005) 2 Journal of Investigative Psychology and Offender Profiling 43, 45. 70 Greitemeyer, T. and Schulz-Hardt, S., ‘Preference-consistent evaluation of information in the hidden profile paradigm: Beyond group-level explanations for the dominance of shared information in group decisions’ (2003) 84 Journal of Personality and Social Psychology 322. 71 Carlson, K. and Russo, J., ‘Biased interpretation of evidence by mock jurors’ (2001) 7 (2) Journal of Experimental Psychology: Applied 91. Interestingly, the authors examined the differences between students and prospective jurors in terms of their predecisional distortion. Prospective jurors were found to be influenced more by bias than students, with their judgments showing twice as much distortion on average. Prior beliefs (either proplaintiff or pro-defendant attitudes) affected prospective jurors more than students in terms of their use of bias. 72 Hope, L., Memon, A. and McGeorge, P., ‘Understanding pretrial publicity: Predecisional distortion of evidence by mock jurors’ (2004) 10 Journal of Experimental Psychology: Applied 111. 73 Greenberg, J., Solomon, S. and Pyszczynski, T., ‘Terror management theory of selfesteem and cultural worldviews: Empirical assessments and conceptual refinements’ in M. Zanna (ed.), Advances in Experimental Social Psychology, vol 29 (Academic Press 1997), https://www.sciencedirect.com/science/article/pii/S0065260108600167, accessed 25 February 2021.

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death which, combined with a natural proclivity for self-preservation, induces anxiety and fear.74 To counteract such negative emotions, individuals adhere to beliefs and standards which constitute their cultural worldview, to instil their lives with meaning, order, and permanence.75 Terror Management research has demonstrated that mortality salience engenders more punitive reactions towards violators of cultural standards in legal settings. This effect is important because in a courtroom, death-related associations can be elicited in a variety of ways, including through information contained in a criminal charge, the presentation of graphic exhibits, case facts reported by witnesses, and statements by lawyers for the prosecution and defence.76 Thoughts of mortality may also be particularly salient during the sentencing phase of capital punishment trial.77 The effect of mortality salience bias has been demonstrated in the civil context. Specifically, exposure to stimuli where mortality is salient has been found to increase individual’s ratings of the severity of alleged conduct and the punishment ascribed – for example, participants who were exposed to graphic footage of a fatal car accident exhibited nationalistic bias, assigning greater blame to a Japanese over an American car manufacturer.78 In criminal cases, it is likely that mortality salience bias will lead to a pro-prosecution bias and greater likelihood of a guilty verdict. Hindsight bias After an event occurs, people attempt to generate a plausible account of how the event could have been predicted; however, such automatic cognitive assimilation of old and new information can result in retrospective distortion.79 Retrospective distortion refers to an exaggeration of the likelihood of a given outcome, compared to its foresight predictability;80 the perception of the inevitability of an outcome is changed once the outcome occurs.81 This distortion is known as 74 Arndt, J., Lieberman, J., Cook, A. and Solomon, S., ‘Terror management in the courtroom: Exploring the effects of mortality salience on legal decision making’ (2005) 11 Psychology, Public Policy, and Law 407. 75 Greenberg, J., Schimel, J., Martens, A., Solomon, S. and Pyszcznyski, T., ‘Sympathy for the devil: Evidence that reminding Whites of their mortality promotes more favorable reactions to White racists’ (2001) 25 Motivation and Emotion 113, 114. 76 Goodman-Delahunty, J., Martschuk, N. and Ockenden, E., ‘Effects of terrorist charges and threatening conduct on mock jurors’ decisions’ (2016) 23 Psychiatry, Psychology and Law 696, 3. 77 Arndt, Lieberman, Cook, and Solomon (n 74) 412. 78 Nelson, L., Moore, D., Olivetti, J. and Scott, T., ‘General and personal mortality salience and nationalistic bias’ (1997) 23(8) Personality and Social Psychology Bulletin 884. 79 Fischhoff, B., ‘Hindsight is not equal to foresight: The effect of outcome knowledge on judgment under uncertainty’ (1975) 1 Journal of Experimental Psychology: Human Perception and Performance 288, 304. 80 ibid.; Harley, E., ‘Hindsight bias in legal decision making’ (2007) 25 Social Cognition 48, 48. 81 Christensen-Szalanski, J. and Willham, C., ‘The hindsight bias: A meta-analysis’ (1991) 48 Organizational Behavior and Human Decision Processes 147, 147.

42 Helm and Millar hindsight bias,82 or the ‘knew-it-all-along’ effect.83 With the benefit of hindsight, evidence evaluation can change substantially throughout legal proceedings; evidence may be minimised, discounted, or forgotten when it incongruent with the known outcome, and as blame is attributed in legal proceedings once the outcome is known, the prospect of hindsight bias may be high.84 In the criminal law context, this bias is likely to be particularly important when making judgments about whether a defendant foresaw or should have foreseen a negative outcome which has in fact occurred (for example in the context of judgments of recklessness or negligence). Hindsight bias in juror negligence judgments has been demonstrated in the civil context across a range of studies.85 Compensating for bias As noted above, some impact of each juror’s own experiences and opinions is beneficial to the jury process, which expects fact finders to represent the community and community values. The only way to completely eliminate this impact would be to abolish the jury system all together. This action was taken in South Africa, where the jury system was abolished largely as a result of racist verdicts by all-white, all-male juries.86 In jurisdictions seeking to retain citizen participation, the primary approach that has been taken to combat the potential for juror bias is utilising juror selection processes. This approach is used in the USA (but not in England and Wales). The US process of jury selection is called voir dire. This process allows lawyers to explore characteristics of potential jurors and ‘strike’ (prevent from sitting on the jury) jurors who may be biased. Lawyers are able to exercise an unlimited number of challenges for cause (where they suggest a potential juror should be prevented from sitting on the jury on the basis that they cannot be fair, unbiased, or capable of serving as a juror) and a limited number of peremptory challenges (where they can prevent a juror from sitting on the jury without having to give a reason). The aim of voir dire is to ensure that an impartial jury is selected, and to reduce the influence of bias. The precise nature of voir dire varies by state – with some states adopting more expansive voir dire (for example allowing use of a pretrial juror questionnaire and / or allowing a combination of general closed- and open-ended questions to be asked to jurors) and other states adopting more limited voir dire (for example not allowing a pretrial juror questionnaire and / or restricting 82 For a summary see Harley (n 80). 83 Wood, G., ‘The knew-it-all-along effect’ (1978) 4 Journal of Experimental Psychology: Human Perception and Performance 345. 84 Harley (n 80) 49. 85 See, for example, LaBine, S. and LaBine, G., ‘Determinations of negligence and the hindsight bias’ (1996) 20(5) Law and Human Behavior 501; Greene, E., Johns, M. and Bowman, J., ‘The effects of injury severity on jury negligence decisions’ (1999) 23 Law and Human Behavior 675. 86 See Abolition of Juries Act No. 34; Huebner, M., ‘Who decides – Restructuring criminal justice for a democratic South Africa’ 102 Yale Law Journal 961, 971.

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87

questions to closed-ended questions specific to trial). Commentators have identified problems with limited voir dire in sufficiently identifying biased jurors and suggested that more expansive questioning is necessary to maximise the impartiality of the jury.88 The relatively limited research available on whether the voir dire process influences the quality of jury decisions suggests that it may be relatively ineffective in eliminating prejudicial bias, although it does not rule out the possibility that voir dire may have a positive effect by removing extremely biased jurors.89 Importantly, whilst voir dire may eliminate one form of bias, it may introduce another in its place, resulting in a backfire effect.90 For example, research has found that voir dire can increase the effects of biases as a result of pretrial publicity. Jonathan Freedman, Christiane Martin, and Victor Mota found that after being questioned about their pretrial exposure, jurors were less likely to vote guilty, regardless of the publicity received, indicating that they were ‘bending over backwards’91 to avoid bias – resulting in a greater proportion pro-defence judgments. Therefore, voir dire should be approached with caution as a bias-reducing mechanism, with the beneficial and prejudicial effects of pretrial questioning being adduced prior to its use. Other approaches to reducing bias are limited to reducing the effects of specific information that could be biasing on jurors. For example, in the USA Rule 403 of the Federal Rules of Evidence, the court is given the power to ‘exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice’. This may lead to the exclusion of, for example, evidence that is highly emotional but not particularly probative.

Part II: Evidence-based procedure to address vulnerabilities Research in cognitive science has the potential to inform procedure that might be adopted to minimise the vulnerabilities of juries described above, while allowing juries to continue to perform their democratic function. Below are some suggestions based on existing empirical work. These suggestions are intended as a starting point for further discussion and research. First, research suggests ways that experts and lawyers might present complex information so that it can be more easily understood in court. For example, experts should be encouraged to use visual aids such as bar graphs and Venn diagrams to help jurors effectively understand magnitudes and probabilities.92 87 Hans, V. and Jehle, A., ‘Avoid bald men and people with green socks? Other ways to improve the voir dire process in jury selection’ (2003) 78(3) Chicago-Kent Law Review 1179, 1183. 88 Bush, N., ‘The case for expansive voir dire’ (1976) 2 Law & Psychology Review 9. 89 Kovera, M., ‘Voir dire and jury selection’ in B. Weiner and R.K. Otto (eds), Handbook of Psychology, Second Edition (Wiley, 2012) 171–172. 90 Daftary‐Kapur, T., Dumas, R. and Penrod, S.D., ‘Jury decision making biases and methods to counter them’ (2010) 15 Legal and Criminological Psychology 133, 147. 91 Freedman, J.L., Martin, C.K. and Mota, V.L., ‘Pretrial publicity: Effects of admonition and expressing pretrial opinions’ (1998) 3 Legal and Criminological Psychology 255, 267. 92 See Helm, Hans, and Reyna (n 10).

44 Helm and Millar As discussed above, evidence suggests that jurors may struggle to scrutinise competing expert accounts and may end up being guided in their decisions by unreliable proxies for reliability (for example believing the expert with the best credentials) or by biases (for example believing the expert whose evidence most closely adheres to pre-existing viewpoints). This type of decision making is not conducive to accurate or fair juror decisions, and consequently other options for presenting expert evidence to jurors must be explored. One approach could be to present expert evidence to jurors in the form of a statement agreed by experts from both the prosecution and the defence, acknowledging opposing positions and their strengths and limitations, and making clear areas of consensus in their field. Such an approach would have the advantage of having input from both the defence and the prosecution, but also of being integrated in a way that might be more easily digested by jurors. Existing evidence provides some support for this approach by suggesting that evidence comprehension might be improved by requiring that opposing evidence on difficult scientific or technical issues be offered back-to-back, comparing the views of expert witnesses with differing views on a topic.93 Second, judicial instructions and directions might be replaced by more comprehensive training materials that could be provided to jurors prior to trial.94 Such materials would need to be carefully designed to avoid biasing jurors, but could potentially be key to helping jurors evaluate evidence in a more scientifically valid way. Importantly, such materials should focus on conveying gist or meaning rather than just facts, to help jurors interpret and understand facts more fully. This approach might involve giving examples of other cases to place the information given in context. Research suggests that this type of gist-based communication is likely to be more effective in influencing decision making than the presentation of facts alone.95 There are several areas in which it has been noted that training would be an asset to juror decision making; for example, training jurors in the law and in reasoning, to understand issues of conjunction and base rates, as well as identifying the relative relevance and strength of evidence.96 For example, in the case of juror reasoning surrounding thinking logically about evidence, Richard Nisbett and colleagues argued for a form a training, which took less than 30 minutes, to enhance reasoning about statistics involved in everyday life events.97 However, 93 Munsterman, G.T., Hannaford-Agor, P. and Whitehead, G.M., Jury Trial Innovations 2nd edn, (National Center for State Courts, 2006). 94 Carlson and Russo (n 71). 95 See Helm, R., ‘Evaluating witness testimony: Juror knowledge, false memory, and the utility of evidence-based directions’ (2021) 25(4) The International Journal of Evidence & Proof 264. For examples in another context, see Blalock, S. and Reyna, V., ‘Using Fuzzy-Trace Theory to understand and improve health judgments, decisions, and behaviors: A literature review’ (2016) 35(8) Health Psychology 781. 96 Koehler, J., ‘Train our jurors’, in G. Gigerenzer and C. Engel (eds), Heuristics and the Law (Dahlem University Press, 2006). 97 Nisbett, R., Fong, G., Lehman, D. and Cheng, P., ‘Teaching reasoning’ (1987) 238 Science 625.

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whilst empirical research suggests that jurors who are exposed to carefully constructed training modules may improve their ability to reason about legal matters when evidence is probabilistic, this has not been tested on mock jurors empirically and requires further work.98 In the absence of such training programmes, it is important for courts to admit expert evidence in cases in which expert consensus is likely to depart from public opinion, such as in the area of eyewitness testimony. In the area of biases, some research suggests that instructions informing jurors of their biases may be effective in helping to reduce the influence of bias. Wegener and Petty’s Flexible Correction model suggests that biases can be corrected for when individuals are aware of them, and motivated to correct them.99 Research in the context of racial biases specifically suggests that a new procedure which warns jurors of their biases may be effective in reducing those biases. A series of mock jury research has shown that juror bias against other racial groups is less prevalent in trials in which race is specifically brought up.100 Research specifically testing debiasing instructions has shown that instructions which make race salient in the courtroom and prime egalitarian views may have the potential to reduce racial biases, at least when such biases arise as a result of aversive racism.101 This research also suggests that instructions are most effective when presented pre-evidence, so that they can influence the organisational framework used by jurors when evaluating evidence.102 However, some research has considered that informing individuals of their biases performs only a temporary function; in the case of rape myths, presenting factual information about sexual assault which contradicts such myths does not appear to be enough to incite lasting change.103 In addition, some experimental research utilising instructions to correct biases more generally has found such instructions to be ineffective.104 Robust testing of instructions seeking to reduce bias is necessary to ensure effectiveness.

98 Koehler (n 96) 314. 99 Wegener, D. and Petty, R., ‘Flexible correction processes in social judgment: The role of naive theories in corrections for perceived bias’ (1995) 68 Journal of Personality and Social Psychology 36. 100 Sommers, S. and Ellsworth, P., ‘White juror bias: An investigation of prejudice against Black defendants in the American courtroom’ (2001) 7(1) Psychology, Public Policy, and Law 201; Cohn, E., Bucolo, D., Pride, M. and Sommers, S., ‘Reducing white juror bias: The role of race salience and racial attitudes’ (2009) 39 Journal of Applied Social Psychology 1995. 101 Ingriselli, E., ‘Mitigating jurors’ racial biases: The effects of content and timing of jury instructions’ (2015) 124(5) Yale Law Journal 1346. 102 ibid.; see also Chalmers, J. and Leverick, F., Methods of Conveying Information to Jurors: An Evidence Review (2018), https://eprints.gla.ac.uk/161562/1/161562. pdf, accessed 28 July 2021. 103 Joseph, J., Gray, M. and Mayer, J., ‘Addressing sexual assault within social systems: System justification as a barrier to college prevention efforts’ (2013) 22 Journal of Aggression, Maltreatment & Trauma 493, 500. 104 See, for example, Edwards, K. and Bryan, T.S., ‘Judgmental biases produced by instructions to disregard: The (paradoxical) case of emotional information’ (1997) 23 Personality and Social Psychology Bulletin 849

46 Helm and Millar Another procedural change that might have the potential to reduce juror bias is requiring jurors to give reasons for their verdicts. Traditionally, jurors have not had to justify or explain their verdicts. However, recently, there have been efforts to increase the transparency of jury decision making. In the case of Taxquet v Belgium, the European Court of Human Rights found that although juries do not have to give reasons, the defendant must be able to understand the basis for their verdict. This judgment has been described as having the potential to make juries more accountable for their verdicts.105 There are jurisdictions that currently require jurors to give explanations for their verdicts. In Spain, jurors indicate which charges and factual assertions they believe to be proved and provide a written description of the evidence that they relied upon and why it proved or did not prove certain facts.106 Requiring jurors to give reasons has been described as important in ensuring transparency, however a review of relevant psychological literature concluded that such a requirement may have little to no positive impact on the quality of decision making.107 Empirical research is therefore needed to explore any potential positive impact of such an intervention.

Conclusion Jurors perform an important function in criminal justice systems across the world. However, research examining juries and jurors highlights ways in which their judgments may be irrational and influenced by systematic mistakes and biases. As a result, the jury remains limited in the extent to which it can be seen as an accurate tool for making determinations of objective truth. Empirical research drawing on knowledge of human decision making has the potential to be used to design legal procedure that can maximise the effectiveness of juries (meaning their ability to deliver accurate and fair verdicts) and as a result protect both defendants and complainants in the criminal justice system. This chapter has made several suggestions of procedures that might be explored further in designing such procedure. However, none of these suggestions is likely to solve all of the problems identified, and future research might also consider whether our knowledge of lay decision making should influence the division of labour in criminal cases between juries, judges, and experts. Such research has the potential to provide insight into the desirability of current trends both towards and away from the use of juries.108

105 Thaman, S., ‘Should criminal juries give reasons for their verdicts? The Spanish experience and the implications of the European Court of Human Rights decision in Taxquet v. Belgium’ (2011) 86 Chicago Kent Law Review 613. 106 ibid., 628–630. 107 Burd, K. and Hans, V., ‘Reasoned verdicts: Oversold?’ (2018) 51(2) Cornell International Law Journal 319. 108 For a review of such trends see Helm, R. and Hans, V., ‘Procedural roles: Professional judges, lay judges, and lay jurors’ in D. Brown, J. Turner and B. Weißer (eds), The Oxford Handbook of Criminal Process (Oxford University Press, 2019).

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The jury on trial Guilty or not guilty? Investigating jury trial issues through a comparative approach Cristina d’Aniello

Introduction The jury, in the famous words of Devlin, ‘the lamp that shows that freedom lives’,1 has been conceived and introduced in different jurisdictions around the world as a means of democratic guarantee. The principle whereby the decision of certain judicial cases has to be referred to a panel of impartial peers finds its roots in the idea that placing decisional power in the hands of the citizens would inject community values into the legal process and therefore counteract the arbitrary exercise of the state’s authority.2 This principle has been at the heart of the iconic status that the jury as an institution has acquired and still retains, notwithstanding the strong criticisms and doubts3 that have frequently arisen around its nature and often flawed functioning. Juries have long been blamed for the malfunctioning of a system that has not always been successful at granting the fairness promised.4 However, a cautious critical observer would undoubtedly avoid scapegoating the juries, and rather reflect on whether it is sensible to expect from randomly selected laypeople the accurate completion of a task entailing the complexity that the jury task actually involves. That task would be – and in fact is – difficult even for professionals working in the legal field, and it is therefore unsurprising that the main criticisms proposed against the use of the jury system have been based on the idea that it is unreasonable to expect laypeople to perform to the standards required to grant fair verdicts.5 Nevertheless, those standards of fairness must be met, if for nothing else, in deference to the very same 1 Devlin, P., Trial by Jury (Stevens & Sons, 1966) 164. 2 Myers, R.D., Reinstein, R.S. and Griller, G.M., ‘Complex scientific evidence and the jury’ (1999) 83(3) Judicature 150. 3 Critiques have regarded a number of issues: the argued inability of juries to remember, understand and correctly evaluate complex evidential material, judicial instructions, legal principles, etc. See the section on ‘Jury decision-making’ in this chapter for a more extended account of these issues. 4 Hans, V.P., ‘Jury systems around the world’ (2008) 4 Annual Review of Law and Social Science 275; Kassin, S. and Wrightsman, L.S., The American Jury on Trial: Psychological Perspectives (Routledge, 2012). 5 Vidmar, N., World Jury Systems (Oxford University Press, 2000).

DOI: 10.4324/9781003143321-4

48 d’Aniello democratic needs6 that the jury trial was created to fulfil. After all, observing the disturbingly high occurrence of miscarriages of justice in criminal cases,7 one may well wonder why Delvin’s famous ‘lamp’ has not shown that freedom lives when the freedom in question was that of those innocents who have been wrongfully convicted and incarcerated for decades. However, even in light of these considerations, debating the abolition or retention of the jury would not lead far. Whether it be for its antient roots, its symbolic value, or its actual power to give voice to the people, the jury system appears to be ineradicably rooted in those jurisdictions that have chosen to introduce it. Thus, the most reasonable and optimistic achievement that one can strive for is an improvement of the system in order to overcome the malfunctioning and its consequences. With this aim in mind, taking a broader look at jury systems in different countries may offer interesting and potentially fruitful perspectives. In limited space, this chapter does not intend to provide a detailed and exhaustive description of all different types of jury systems used worldwide; it will rather focus on some of the most problematic issues that jurors (as individuals) and juries (as groups) encounter in their decision-making processes, with the ultimate goal to show how different systems’ procedures may affect deliberation dynamics. To this scope, the first part of the chapter will describe the jury task in general terms, focusing on some of the most relevant (and problematic) psychological dynamics that come into play when jurors/juries operate. The second part will then focus on showing how these psychological dynamics can be altered, in one way or another, by the different jury trial procedures that jurisdictions adopt. Accordingly, without neglecting the existence of numerous differences among jury systems worldwide, this chapter will focus particularly on the peculiarities of two jury systems: Italy and England and Wales. The two jurisdictions will be used as comparative examples, considering that they adopt very different procedures to carry out jury trials. On that basis, the chapter will conclude with the idea that the use of comparisons at an international level is useful, in so far as it is a source of interesting and novel perspectives, which could lead to potential reform.

Jury decision-making – a complex and unique task Jurors are faced with an incredibly daunting task. These laypeople enter court, an environment that may be new and intimidating to them, and are immersed in a reality that is full of complex technicalities and legal dynamics. They attend trials that may be distressful for multiple reasons; they have to consider and evaluate evidence that is often intricate, ambiguous, and difficult to understand; they have to comprehend legal principles and judicial instructions; they have to listen to and 6 Beginning with the ‘classic image of the jury that stands tall ‘for the people’ as a bulwark against government oppression’ (Kassin and Wrightsman n 4 ix), the jury trial is still perceived as a fundamental instrument to ‘represent the community in the courtroom, helping to ensure that legal outcomes are consistent with local ideas about justice and fairness’ (Hans n 4 276). 7 Innocence Project (2020).

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remember complex facts or – perhaps even worse – disregard (as if it were possible to forget on command) statements or evidence when deemed inadmissible. After that, they have to enter the deliberation room as a group of strangers and discuss the disputed facts to eventually reach a unanimous decision that will determine another person’s fate. When considering how hard it is for most people to make an important decision in daily life, it becomes clear how the position in which jurors find themselves will make their choice, and the entire process to reach it, overwhelmingly difficult. However, to even better comprehend this, a description of the main socio-psychological mechanisms that come into play when juries operate is necessary, especially because understanding such dynamics will be fundamental in evaluating the impact that procedural differences may have on juries’ decisional processes. Individual (jurors) decision-making ‘The decision of a group is a weighted sum of the decisions of its constituent members’.8 The complexity of jury decision-making starts from its double dimension: both individual (each juror votes) and collective (the verdict is the result of all the votes), which co-exist and interact with one another, adding extra layers of difficulty and intricacy to the jury task. Thus, preliminary and fundamental to understanding jury decision-making as a whole is understanding jurors’ decision-making. Extensive theoretical and empirical literature has identified the occurrence of certain cognitive processes that jurors undergo when making their choices, as well as a range of errors that they tend to commit throughout the completion of their task. Following, the discussion will focus on some of the most widely recognised aspects of the matter. Narrative construction Several theoretical models describe the processes of acquisition and use of trial information that lead jurors towards their decision. The most widely accepted amongst cognitive approaches is the Story Model of jury decision-making.9 Purposely designed to explain the decision-making activities that jurors undertake, this model posits that the crucial cognitive process at play in jurors’ decision-making is narrative construction: jurors make sense of the trial information by constructing a 8 Marshall, J.A., Brown, G. and Radford, A.N., ‘Individual confidence-weighting and group decision-making’ (2017) 32(9) Trends in Ecology & Evolution 637. 9 Pennington, N. and Hastie, R., ‘Evidence evaluation in complex decision making’ (1986) 51(2) Journal of Personality and Social Psychology 242; Pennington and Hastie, ‘Explanation-based decision making: Effects of memory structure on judgment’ (1988) 14(3) Journal of Experimental Psychology: Learning, Memory, and Cognition 521; Pennington and Hastie, ‘A cognitive theory of juror decision making: The Story Model’ (1991) 13(2–3) Cardozo Law Review 519; Pennington and Hastie, ‘The Story Model for juror decision making’ in R. Hastie (ed.), Inside the Juror (Cambridge University Press, 1994).

50 d’Aniello story of what has happened, and, once a narrative has been created, they evaluate the evidence, and its strength and reliability, depending on whether or not it fits that narrative. Moreover, since jurors do not enter court tabulae rasae, but instead with their own knowledge and expectations arising from personal experiences and beliefs, the assessment of the evidence comes also as a result of the application of their background knowledge, bias, and expectations to the interpretation of the case facts. The dangerousness of the described process is intuitively understandable; in prioritising the evidence that best fits their own developed story and in letting their prior knowledge, experiences and bias affect the evaluation of the case facts, jurors will make the interpretation of evidence serve the story and their own previous beliefs, so that the evidence that does not fit will be disregarded or incorrectly interpreted.10 The entire mechanism of narrative construction and the influential effect of individual jurors’ prior knowledge, bias, and expectations can then account for the possibility that different jurors, even starting from the same trial evidence, create different stories, which in turn may lead to different verdict preferences.11 This process clearly does not start from fairly evaluated evidence, considering that evidence presented at trial should be assessed on the basis of its actual probative value, rather than on its correspondence to personal bias or individually developed reconstructions of what may have happened. Doubts arise on whether unfairly evaluated evidence could ever lead to fair verdicts. The Story Model and further developments of this theory (e.g., the Anchored Narratives Theory)12 have found empirical support in studies that evidenced jurors’ inclination towards a narrative construction approach, highlighting the effects of the influence exerted by jurors’ prior knowledge, bias, and expectations and, most importantly, how this may create errors and distortions in the assessment of evidence and in jurors’ decision-making as a whole.13 Yet, this is not the only problem. Confirmation bias Evidence may be given different weight and interpretation also due to people’s tendency to selectively choose information that matches and confirms their impressions and convictions. The widely researched phenomenon of confirmation 10 Pennington and Hastie (n 9). 11 Glöckner, A. and Engel, C., ‘Can we trust intuitive jurors? Standards of proof and the probative value of evidence in coherence‐based reasoning’ (2013) 10(2) Journal of Empirical Legal Studies 230; Winter, R. and Greene, E., ‘Juror decision‐making’ in F. T. Durso and others (eds), Handbook of Applied Cognition (Wiley & Sons Ltd, 2007). 12 Wagenaar, W.A., van Koppen, P.J. and Crombag, H.F., Anchored Narratives: The Psychology of Criminal Evidence (St Martin’s Press, 1993). 13 See, for example, Pennington and Hastie (n 9); Smith, V.L., ‘Prototypes in the courtroom: Lay representations of legal concepts’ (1991) 61(6) Journal of Personality and Social Psychology 857; Carlson, K.A. and Russo, J.E., ‘Biased interpretation of evidence by mock jurors’ (2001) 7(2) Journal of Experimental Psychology: Applied 91; Ellison, L. and Munro, V.E., ‘“Telling tales”: Exploring narratives of life and law within the (mock) jury room’ (2015) 35(2) Legal Studies 201.

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bias has been clearly defined by Kassin, who explains that ‘once people form an impression, they unwittingly seek, interpret, and create behavioral data that verify it’.14 In the context of a criminal trial, this would translate into jurors not constructing their interpretation of the trial facts starting from the evidence, but instead proceeding backwards, from their hypothesised interpretations of the facts to their evaluation of the evidence.15 This way of reasoning is the opposite of what should happen inside the deliberation room, because, through this cognitive process, the original information is systematically distorted.16 This information distortion is liable to increase people’s confidence in their (possibly inaccurate) ideas and decisions, which would most likely happen because the very information that could destabilise confidence – i.e., the conflicting evidence – is detracted in value and discarded.17 Even hoping that the discussion of different opinions may lead group reasoning to outperform individual reasoning (and, therefore, counteract this phenomenon), remains vain. Previous research has demonstrated that confirmation bias prompts individuals, when they reason alone or with peers, to potentially strengthen their original beliefs.18 Jurors’ errors Another problematic aspect concerns the commission of errors on the part of the jurors. Some of the most common errors committed by jurors stem from easily recognisable causes. They may be due to: the fallibility of human memory, inadequate understanding of evidence, ignorance/misunderstanding of the law. MEMORY ERRORS

In complex and often lengthy criminal trials, there is a significant amount of material to be remembered. Due to the fallible and selective nature of human memory, jurors are very likely to not remember all trial facts. This can happen not only because people naturally tend to forget, but also because part of the information might not be acquired or adequately processed. Since humans are not information-processing machines, they naturally activate a filtering system through which information is selectively processed, so that they only attend to what they consider most important and filter out less important or irrelevant facts.19 Perhaps 14 Kassin, S.M., ‘On the psychology of confessions: Does innocence put innocents at risk?’ (2005) 60(3) American Psychologist 219. 15 Simon, D., Snow, C.J. and Read, S.J., ‘The redux of cognitive consistency theories: Evidence judgments by constraint satisfaction’ (2004) 86(6) Journal of Personality and Social Psychology 814. 16 ibid. 17 ibid. 18 Mercier, H. and Landemore, H., ‘Reasoning is for arguing: Understanding the successes and failures of deliberation’ (2012) 33(2) Political Psychology 243. 19 Ainsworth, P.B., Psychology, Law, and Eyewitness Testimony (Wiley, 1998).

52 d’Aniello unsurprisingly, it has been demonstrated that, in this selective process, jurors’ memory for evidence is strongly affected by their bias.20 Moreover, even if the jurors’ memory filtering system allows them to remember fundamental aspects on which they should base their decision, there is no guarantee that they will remember everything correctly. This, considering the malleable nature of human memory, may be due to the influence of post-event information that may contaminate the original memory of the event (e.g., the trial).21 INADEQUATE UNDERSTANDING OF EVIDENCE

It is possible that, even when evidence is correctly remembered, its assessment is influenced by jurors’ lack of adequate comprehension of it. Issues of this sort regard almost any type of evidence, direct and/or circumstantial, which jurors tend to under-/overvalue.22 Particularly difficult to correctly understand for lay jurors (and in fact, for judges as well)23 is scientific/forensic evidence, and its actual reliability and probative value. In the last decades, people’s lack of forensic/scientific knowledge has started to be gradually filled by television depictions of it [(so-called ‘CSI effect’), which, while somewhat increasing public awareness,24 has also contributed to misunderstandings and unrealistic views of the characteristics, role, and probative value of scientific/forensic evidence.25 Science, portrayed as infallible in fiction, is therefore attributed inaccurate meanings and value by laypeople who enter the courtroom with high expectations regarding this presumed infallibility. IGNORANCE/MISUNDERSTANDING OF THE LAW

When not concerning forensic/scientific evidence, jurors’ errors may regard other areas of the legal proceedings, giving rise to law-related errors, such as misunderstanding of essence and application of legal principles, e.g., the judge’s instructions and/or the ‘beyond reasonable doubt’ threshold. As it has been argued, a group of laypeople ‘lack the capacity to comprehend highly technical evidence and apply legal standards so as to render decisions in accordance with the law’.26 Indeed, jurors’ comprehension of legal directions is a fundamental element in the proper functioning of the decision-making process, and yet the instructions that juries are given are characterised by a linguistic complexity that may represent 20 Pennington and Hastie (n 9). 21 Loftus, E.F., Eyewitness Testimony (Harvard University Press, 1996). 22 Heller, K.J., ‘The cognitive psychology of circumstantial evidence’ (2006) Michigan Law Review 241. 23 Saks, M.J. and Faigman, D.L., ‘Failed forensics: How forensic science lost its way and how it might yet find it’ (2008) 4 Annual Review of Law and Social Science 149. 24 Cooley, C.M., ‘The CSI effect: Its impact and potential concerns’ (2007) 41(3) New England Law Review 471. 25 Cole, S.A. and Dioso-Villa, R., ‘Investigating the “CSI effect” effect: Media and litigation crisis in criminal law’ (2009) 61(6) Stanford Law Review 1335. 26 Tarr, G.A., Judicial Process and Judicial Policymaking (Cengage Learning, 2013) 153.

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a further obstacle. Extensive research has shown that jurors’ actual understanding of judges’ instructions is disturbingly low.28 It goes without saying that, if jurors do not understand judicial instructions (and even more so if they believe they understood them), they will enter the deliberation room convinced that they know what to do, when in fact the converse is true. A similar conviction accompanies jurors in the deliberation room regarding their alleged understanding of the expression ‘beyond a reasonable doubt’. This standard of proof has been described as the ‘golden thread of criminal procedure’29 in England and Wales. It is (or should be) one of the strongest bulwarks of a fair criminal justice system. However, this fundamental legal principle has always been source of contention regarding its correct interpretation, leading Laudan to compellingly conclude that ‘the only accepted, explicit yardstick for reaching a just verdict in a criminal trial is obscure, incoherent, and muddled’.30 The great conceptual confusion around the principle has led to debates of difficult resolution even for those (often not jurors) who ask themselves, first and foremost, ‘what is “reasonable”?’. Yet, thinking critically about reasonable doubt does not appear to be an activity to which jurors are generally prone. Interestingly, while jurors know very well that they have to be convinced ‘beyond reasonable doubt’, ‘not one person on any jury raised the question of the definition of reasonable doubt’.31 As a consequence of this acritical approach, the reasonable doubt threshold is very often misinterpreted by jurors as corresponding to an unattainable 100 per cent certainty.32 Obviously, this belief in a 100 per cent certainty standard is inherently incorrect, since it would not leave room for any ‘reasonability’ of the doubt in question; it would rather equate to having ‘no doubts whatsoever’. Therefore, as confirmed by more recent research,33 the reasonable doubt standard, which is a fundamental guarantee of fairness, is often left to be invoked by jurors who should use it as a threshold, and in fact do not fully understand it and do not even question the intrinsic meaning of the concept. The phenomena described so far show how, given the numerous possibilities of errors and incorrect reasoning, jurors – in any jurisdiction – move within a minefield once they enter court to decide on a criminal case. As anticipated, however, the difficulties do not end at the individual level, since they rather converge and interact with the group activity as well, creating extra layers of complexity. 27 Severance, L.J. and Loftus, E.F., ‘Improving the ability of jurors to comprehend and apply criminal jury instructions’ (1999) 17(1) Law & Society Review 153. 28 Daftary-Kapur, T., Dumas, R. and Penrod, S.D., ‘Jury decision‐making biases and methods to counter them’ (2010) 15(1) Legal and Criminological Psychology 133. 29 Woolmington v DPP [1935] UKHL 1. 30 Laudan, L., ‘Is reasonable doubt reasonable?’ (2003) 9(4) Legal Theory 295. 31 Ellsworth, P.C., ‘Are twelve heads better than one?’ (1989) 52(4) Law and Contemporary Problems 221. 32 ibid. 33 Ellison, L. and Munro, V.E., ‘Getting to (not) guilty: Examining jurors’ deliberative processes in, and beyond, the context of a mock rape trial’ (2010) 30(1) Legal Studies 74.

54 d’Aniello Group (jury) decision-making Different theoretical approaches explain group decision-making dynamics from various perspectives. Of particular interest to jury decision-making is Group Decision-Making Theory (GDMT), which identifies characteristics that groups should have in order to be successful in decision-making: small size, a common purpose, sense of belonging and membership, oral interaction, behavioural norms, and procedures accepted by all members.34 In an attempt to apply by extension GDMT’s postulates to juries, besides size and common purpose, juries appear to lack all the other features that theoretically create a successful decision-making group. Juries are composed of randomly selected strangers (no sense of belonging and membership should be expected, especially at the outset), with different personalities and backgrounds (no guarantee can be given that there is always space for oral interaction for everyone), and who are gathered into the deliberation room without receiving specific directions on how they should manage the discussion (no specific behavioural rules or procedures are expected to be followed). Besides these brief theoretical reflections, there are some practical dynamics that come into play when groups interact and make decisions, and those contribute to increase the complexity of the jury activity. As well as in other collective contexts, dynamics of leadership and conformity are to be expected, to the point that jury deliberation has been defined as ‘a study in persuasion and social influence’.35 Leadership and conformity Social groups are natural generators of leadership dynamics, and juries, more specifically, represent a unique type of social group, wherein bidirectional influences come into play, with the individual influencing the group and vice versa. 36 Leadership has been defined as ‘a power-laden, value-based and ethically driven relationship between leaders and followers […]’.37 One part of the group is defined as leader/s and another part as follower/s, and the latter’s activities and choices are initiated, stimulated, and at times even determined by the former’s. The very nature of the jury task contributes significantly to the emergence and development of leadership dynamics, and it is clear that these dynamics will impact upon the final decision. Moreover, since it is rare that a certain number of people agree on a decision at the outset of their discussion, jury deliberations become also an obvious scenario for the insurgence of contrasting opinions, whether whole-heartedly expressed or silently retained. Socio-psychological research has demonstrated that group 34 Shelton, S.T., ‘Jury decision making: Using Group Theory to improve deliberation’ (2006) 34(4) Politics & Policy 706. 35 Kassin, S.M. and Wrightsman, L.S., The American Jury on Trial: Psychological Perspectives (Hemisphere Publishing, 1988) 174. 36 Pigott, M.A. and Foley, L.A., ‘Social influence in jury decision making’ (1995) 18 Trial Diplomacy Journal 101. 37 Gini, A. and Green, R.M., What is Leadership? (Wiley‐Blackwell, 2013) 5.

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members tend to adjust their opinions in order to conform to the predominant and/ or most socially acceptable views.38 Conformity can be broadly defined as ‘the convergence of individuals’ thoughts, feelings, and behavior toward a group norm’.39 The individual’s tendency to let others’ opinions guide and influence their own can be prompted by two different, opposite needs or beliefs.40 When the group’s opinion is perceived as correct, it acquires the power to intimately change the individual’s opinion; in such cases private conformity occurs, and individuals are actually persuaded that the group’s opinion, despite being in contrast with their initial one, is correct. By contrast, changes of mind may be merely externally shown, while not internally occurring. This – public conformity – may happen in response to a need for social acceptance and the connected fear of resulting ridicule or being rejected by the group,41 or it may be prompted by other circumstantial factors, such as having no choice but to ‘agree’ with the group because it is part of the task – as in the case of jury verdicts – to reach a final collective agreement.42 Consequently, individuals in this case react to actual or imagined pressure and behave in accordance with opinions/norms that they do not intimately perceive as correct. The occurrence of conformity dynamics has been confirmed throughout time by a number of empirical studies.43 More specifically, as observed by Peoples and others, a place where dynamics of conformity find room to occur is certainly small groups. It is easy to understand that the tendency of individuals to adjust their opinions to comply with a (small) group’s preference is expected to happen even more so among jurors, whose principal task as decision-makers constantly gravitates around the expression of opinions, the proposition of arguments and attempts of persuasion, all in an effort to reach a unanimous outcome.44

World jury systems’ differences: Not only procedural distinctions The discussion conducted so far was not intended to offer an exhaustive overview of all the potential problems that juries may encounter in the completion of their 38 Peoples, C.D., Sigillo, A.E., Green, M. and Miller, M.K., ‘Friendship and conformity in group opinions: Juror verdict change in mock juries’ (2012) 32(2) Sociological Spectrum 178. 39 Smith, E.R., Mackie, D.M. and Claypool, H.M., Social Psychology (Psychology Press, 2014) 315. 40 ibid. 41 ibid. 42 Foss, R.D., ‘Group decision processes in the simulated trial jury’ (1976) 39(4) Sociometry 305. 43 Jenness, A., ‘The role of discussion in changing opinion regarding a matter of fact’ (1932) 27(3) The Journal of Abnormal and Social Psychology 279; Sherif, M., The Psychology of Social Norms (Octagon Books, 1936); Asch, S.E., ‘Effects of group pressure upon the modification and distortion of judgment’ in H. Guetzkow (ed.), Groups, Leadership and Men (Carnegie Press, 1951); Kassin, S.M. and Kiechel, K.L., ‘The social psychology of false confessions: Compliance, internalization, and confabulation’ (1996) 7(3) Psychological Science 125. 44 Peoples and others (n 38).

56 d’Aniello daunting task. The aim was different and much more specific in scope: The overview has served the function of highlighting, albeit summarily, those problematic areas that most frequently affect jury decision-making (in its individual and collective dimensions), with the most important ultimate intent to show how the emergence and management of these problems may be affected by the different ways in which different jury systems operate. Clearly, it is reasonable to expect that trial procedures – and jury trial procedures – vary across different countries and cultures.45 However, these differences have often gone unnoticed, and awareness about them is still not widespread because a great deal of research on the jury trial has mainly focused on the Anglo-American juries. Yet, it is only by expanding the observation and looking at other systems that it is possible to appreciate the importance of these differences. While it is sensible to believe that the described individual and group dynamics will occur in any types of juries (the presence of laypeople is a shared fundamental characteristic of the jury trial worldwide), it needs to be recognised that different procedures may well alter these dynamics in quite significant ways. Broadly speaking, common law and civil law nations have developed distinct ways to observe the democratic principle: ‘justice by the people and for the people’. European juries differ from Anglo-American juries and from one another in several aspects, including composition, jurors’ discretion, rules for rendering decisions, etc.46 When looking at the trial by jury from an international standpoint, these differences are easily identifiable; however, they may, prima facie, appear as mere procedural distinctions. At closer inspection, it is clear that these procedural differences, by impacting on decisional mechanisms, exceed their formal dimension and enter the realm of those complex socio-psychological dynamics inherently embedded in decision-making processes, causing a series of substantial consequences. One of the most significant distinctive criteria that can be used to differentiate types of juries is the requirement, imposed by only some jurisdictions, for juries to provide motivated verdicts. Indeed, some nations have introduced the duty for their juries to provide an explanation for their decisions as an essential and compulsory requisite for the validity of the verdicts.47 The rationale behind the introduction of this requirement can be found in two main aspects: the verdict’s motivation will create – if faulty – the grounds on which future appeals can be based, and it will also serve the function of ensuring that jurors are deciding on the basis of legally acceptable reasons. 45 Kaplan, M.F. and Martín, A.M., Understanding World Jury Systems Through Social Psychological Research (Psychology Press, 2006). 46 Kaplan, M.F., Martín, A.M. and Hertel, J., ‘Issues and prospects in European juries: An overview’ in Kaplan and Martín (eds) (n 45). 47 For example, Italian juries are required to motivate their verdicts, as the Italian Constitution provides that ‘reasons must be given for all judicial decisions’ Art. 111, para 6 Costituzione Italiana; similarly, Spanish juries are subject to the requirement to give reasons for their verdicts, on the basis of the Spanish Constitution disposition: ‘reasons shall always be given for judgments which shall be pronounced in public session’ Art 120, Constitución Española – see Thaman, S.C., ‘Should criminal juries give reasons for their verdicts?’ (2011) 86(2) Chicago-Kent Law Review 613.

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The alternative motivated/non-motivated verdicts, however, is not the only element of differentiation among juries worldwide. Juries can be differentiated also according to another crucial distinctive criterion: the variation in their composition. Following a proposed dual classification, it is possible to distinguish juries in which members of the panel are all laypeople (‘pure’ juries) from juries that require the concurrent presence of both laypeople and professionals (‘mixed’ juries).48 Generally, it may be said that the former are mostly used in AngloAmerican systems, whereas the latter are the rule in some European systems. However, this is not a fixed rule: there are indeed European systems that use ‘pure’ juries (Spain and Russia, for example).49 In some nations, the presence of both requirements (i.e., requirement for motivated verdicts and presence of professionals) appears to be connected and inextricably intertwined. Unlike systems wherein jurors are fact-finders and render the verdict, whilst the judge deals with sentencing (e.g., England and Wales), in other systems, these procedures are all accomplished by the (‘mixed’) jury (e.g., Italy). To be more precise, in Italy, where juries are ‘mixed’ and have to render written motivated verdicts and sentences,50 the two requirements are inevitably linked: the lay component of the panel, the Italian jurors alone, would not be capable/competent to render a written motivated verdict and sentence, and this, in turn, formally justifies the presence of judges on the panel. It is important to note, however, that the binomials ‘pure juries – nonmotivated verdicts’ and ‘mixed juries – motivated verdicts’ do not correspond to a fixed rule either. There are indeed nations that, despite using ‘pure’ juries, require the panel to provide reasons for the verdicts. Spain and Russia, partially deviating from the general European trend, have fairly recently (respectively, in 1995 and 1993) introduced a ‘pure’ jury system, in which the panels are composed of only laypeople. However, in response to controversies arising due to distrust of ‘pure’ juries, both nations have also included the requirement for ‘formal verdicts’ justifications.51 What makes the coexistence of the motivation requisite and the absence of professional judges possible in this case is the different way in which verdicts have to be justified. In Spanish and Russian ‘pure’ juries, the motivation for verdicts is obtained through a procedure that does not require the formulation of written legal documents. More specifically, jurors’ motivations are acquired through requiring them to provide answers to a list of propositions about the facts of the case. Therefore, it is by answering the question list that Spanish and Russian jurors give the motivation for their guilty/not guilty verdicts. Subsequently, taking into consideration the juries’ verdicts and answers to the questions lists, the trial judge imposes a sentence. 48 Kaplan and Martín (n 45). 49 Martín, A.M. and Kaplan, M.F., ‘Psychological perspectives on Spanish and Russian juries’ in Kaplan and Martín (eds) (n 45). 50 Italian Code of Criminal Procedure (CPP) (2020). 51 Kaplan and Martín (n 45).

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English and Welsh and Italian juries: Same issues, different approaches While offering a detailed description of all existing elements of distinction among jury systems worldwide would exceed the scope of this chapter, it seems worth placing attention on two specific jury systems, the English and Welsh and the Italian, that, by adopting opposite procedures, offer valuable elements for comparison. The two jury systems function in very different ways, posing themselves in fact at the two opposite ends of the spectrum with respect to the two abovementioned procedural aspects – requirement for motivated verdicts and presence of professionals (judges) on the jury panel. Indeed, juries are not required to motivate their verdicts and there are no judges on the panels in England and Wales, whereas, as mentioned, juries are required to motivate their verdicts and there are judges on the panels in Italy. To briefly summarise, here some of the main structural differences between the two types of juries. It is worth noting that juries in England and Wales are composed of twelve lay members, between the ages of 18 and 76, who are randomly selected among registered electors.52 Differently, Italian juries are composed of eight members – six lay jurors (‘giudici popolari’),53 and two professional judges (‘giudici togati’)54: the president and the a latere judge.55 Eligibility criteria are also different. In Italy, jurors need to be Italian citizens, aged between 30 and 65 years, and be in full possession of their civil and political rights, and hold at least a secondary school diploma for the first trial and a high school diploma for the appeal. In contrast, as noted above, England and Wales jurors can be between 18 and 76 years and there is no education requirement.56 Regardless, the shared intention in both systems is to guarantee laypeople’s participation in the decision of the most serious cases. Unfortunately, in both systems, there are issues connected to this intention. Accordingly, it is interesting to observe how the two jurisdictions, with their own rules and procedures, respond to (and/or contribute to creating) these issues. It is to be expected that lay jurors in both systems would go through the abovedescribed decision-making dynamics. They should all show similar tendencies in an individual decision-making dimension: to create narratives, to proceed in their reasoning through confirmation bias, to commit certain types of errors. Similarly, in a collective decision-making dimension, they should all experience the occurrence of leadership and conformity dynamics. Since these are all phenomena widely recognised within the realm of psycho-sociological disciplines, and the occurrence of which has been confirmed by theoretical and empirical research conducted with regard to jurors/juries in common law systems, it would be arbitrary to presume that laypeople in civil law systems do not go through the same 52 53 54 55 56

Jury Service, www.commonslibrary.parliament.uk/jury-service. Literally translated: ‘Popular judges’. Literally translated: ‘Judges wearing a toga’. Law 10th April 1951, no 287. Italian Ministry of Justice.

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processes. On the other hand, when considering the two specific aspects of differentiation between the two compared jury systems, the presence/absence of the requirement for motivated verdicts and the presence/absence of judges cannot be disregarded, as it would be equally arbitrary to assume that the required conduction of explanation-based reasoning as well as the professionals’ input in the discussion will not generate consequences. Requirement for motivated verdicts The need to motivate legal decisions is deep-rooted in the Italian legal system, according to which, any judicial decision taken by any magistrate or judging panel has to be accompanied by a motivation.57 In Italy, therefore, this is a general, fundamental rule that applies within each Italian court and to which all judges (whether professional or ‘popular’) are subjected, in order to grant transparency to decisional processes. Contrariwise, in England and Wales, the jurors cannot be asked about the deliberation, since prohibitions under the Contempt of Court Act 198158 obstruct research into the content of jury deliberations.59 Here, the secrecy of jury deliberation has been granted for most of the jury trial history60 and it is justifiable – indeed, also somewhat understandable – when considering the potential negative impact on the freeness of the decision-making process if jurors did not feel at liberty to unreservedly express their opinions. In the impossibility of drawing definite and empirically supported conclusions on which approach may be more effective, and recognising that both present benefits and limitations, further reflections can be made at a theoretical level. When discussing decision-making, it should be remembered that choices, regardless of their seriousness or implications, are always based on (conscious or unconscious) reasons, and that individuals are influenced by those reasons when making decisions (Theory of Rational Choice).61 The provided description of the individual (jurors) decision-making dimension has shed light, throughout this chapter, on some fundamental areas wherein jurors’ reasoning appears to be flawed or inaccurately conducted. What clearly emerges from these recurring problems (i.e., narrative construction, confirmation bias, jurors’ errors), is that jurors frequently ground their decisions on the ‘wrong’ (i.e., non-legally-oriented) reasons, such as their own reconstruction of the events, their own previous beliefs/ bias, what they think they remember/understand, rather than the only truly legally-relevant element they should adequately consider: the evidence. Thus, while 57 Italian Constitution, art 111. 58 Contempt of Court Act 1981, s8. 59 Ellison, L. and Munro, V.E., ‘Better the devil you know? “Real rape” stereotypes and the relevance of a previous relationship in (mock) juror deliberations’ (2013) 17(4) The International Journal of Evidence & Proof 299. 60 Goldstein, A.S., ‘Jury secrecy and the media: The problem of postverdict interviews’ (1993) 2 University of Illinois Law Review 295. 61 Shafir, E., Simonson, I. and Tversky, A., ‘Reason-based choice’ (1993) 49(1) Cognition 11.

60 d’Aniello one may believe that the problem with jury decision-making is jurors’ decisions, in fact, the actual issue is most likely emerging from jurors’ reasons. In other words, the problem is not that jurors are making wrong choices but that they are often choosing on the basis of the wrong reasons. This suggests that, to improve the quality of jurors’ decisions, jurisdictions would need to ensure, first, that these decisions emerge from the ‘right’ reasons – i.e., legally-oriented motivations that are based on the evidence and conform with the legal principles informing criminal trials. Consequently, the next point to understand is whether asking jurors to expressly indicate and explain their reasons may lead them towards a more rigorous legal decision-making process and, ultimately, fairer outcomes. Clearly, all jurors will have their own reasons, with the difference that in a ‘no motivation required’ scenario jurors will be reasoning and deciding on the basis of their inner justifications, whereas in a ‘motivation required’ scenario they will be doing the same on the basis of external justifications. A set of significant differences between inner and external justifications has been identified and ascribed to the different needs that underlie the former and the latter. ‘Our inner deliberations are silent arguments conducted within a single self’,62 and as such they might stem from the need to increase self-esteem, to perceive ourselves as coherent rational thinkers, to avoid future regret, etc.63 Differently, external justifications have been found to be driven by individuals’ needs to make choices that are conceived to be justifiable by others ‘such as superiors […] or groups to which the decision-makers belong’.64 In addition, with regard to external justifications, previous research has shown how the need for accountability to an audience enhances decision-makers’ pre-emptive self-criticism, encouraging more coherent and thorough reasoning. This, in turn, will generate a decrease in the occurrence of the primacy effect, fundamental attribution error, overconfidence in judgment, etc.65 Applying these concepts to the matter under analysis, it is reasonable to believe that jurors, when required to publicly express their reasons, will be inclined to look for the most (legally) justifiable ones, i.e., those based on the actual probative value of the evidence. They would then, almost certainly, still experience the abovementioned influence of personal beliefs, bias, and first impressions; yet, choices based on those aspects would be more likely to be discarded since they would not be perceived as externally justifiable. Additionally, jurors’ self-awareness, acquired through explaining verdict preferences to other jurors, would enhance internal consistency66 and, most importantly, prompt them to reflect on motivating factors from the outset of deliberation, increasing their willingness to find legally acceptable reasons. This might be true even more so where professionals (judges) are present, since they might be seen as ‘superiors’ in those 62 Billig, M., Thinking and Arguing (Loughborough University of Technology, 1986) 5. 63 Simonson, I., ‘Choice based on reasons: The case of attraction and compromise effects’ (1989) 16(2) Journal of Consumer Research 158. 64 ibid. 159. 65 Tetlock, P.E., ‘Accountability: The neglected social context of judgment and choice’ (1985) 7(1) Research in Organizational Behavior 297. 66 Pigott and Foley (n 36).

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contexts, so that jurors would look for explanations that they think can be perceived as justifiable from them. However, if asking jurors to express their motivations for their verdicts presents the benefit of most likely prompting them to think about their reasons from the outset of the deliberation and to increase the chances that those are legally valid, this cannot be accepted without a caveat. Attention should be paid to the ways in which the requirement for motivated verdicts is used within the various jurisdictions; in Italy, for example, the writing of the legal document containing the verdict, the sentence, and the motivation emerging from the jury discussion is (necessarily) left, as seen, in the hands of the professional judges. This, at least in theory, does not guarantee that the jurors’ choices and motivations are adequately taken into account, especially if they are in contrast to the judges’ opinions. Such a possibility would undermine the importance of the exercise of the popular sovereignty that is at the very basis of the jury trial, and that should then be taken into careful consideration. Presence of professional judges The presence of judges on juries is the fundamental aspect of differentiation between ‘pure’ and ‘mixed’ juries, and another important element of distinction between the two jury systems used as comparative examples in this chapter. This element also presents the potential to generate significant differences at procedural and substantial level, with the judges’ presence possibly altering – as it is easily intuitable – deliberation dynamics in multiple ways. Similar to the requirement for motivated verdicts, this element too is likely to give rise to both advantages and disadvantages, which need to be explored. A first aspect that deserves consideration is the impact that the presence of judges may have on the already discussed area of jurors’ reasoning. In a study where Castellani compared expert and novice judges’ reasoning processes, it was found that, as opposed to novices, expert judges show greater control over their reasoning, accurately evaluating the relevant elements of the case, and discarding – at least at a conscious level – those elements emerging from extra-legal norms.67 As convincingly suggested, ‘if expert and novice judges appear to reason differently, the difference between expert judges and lay jurors is likely to be even more marked’.68 The perceived imbalance in the reasoning ability of judges and jurors69 may even produce positive outcomes if the judges’ ability is used correctly to improve jurors’ accuracy by inviting them to also focus and reason on legally relevant aspects. However, even if this happened, this asymmetry between professionals and lay members may create other types of issues. 67 Catellani, P., Il giudice esperto. Psicologia cognitiva e ragionamento giudiziario (Il Mulino, 1992). 68 Catellani, P. and Milesi, P., ‘Juries in Italy: Legal and extra-legal norms in sentencing’ in Kaplan and Martín (eds) (n 45) 69 Martín, A.M., Kaplan, M.F. and Álamo, J.M., ‘Discussion content and perception of deliberation in western European versus American juries’ (2003) 9 Psychology, Crime & Law 247.

62 d’Aniello Besides the allegedly different degree of reasoning ability, judges and jurors’ positions necessarily differ at least from another perspective, that is, judges are professionals in the legal field and, as such, they will be perceived as ‘experts’ by the jurors. Research that has investigated the influence of experts’ opinions on laypeople in other areas of the criminal trial can help to show, by analogy, how such influence may also be exerted inside the deliberation room (of ‘mixed’ juries), affecting the entire deliberation process. Broadly speaking, expert evidence, in trial contexts, is provided because it is recognised that the court, as a whole, should have an adequate knowledge of the evidentiary material presented. This is especially true where the required knowledge exceeds the realm of general/lay understanding. Accordingly, since jurors are laypeople who may well lack that knowledge and understanding, reliance is placed on the parties to provide aid – i.e., experts’ opinions – for them to understand complex, technical matters.70 Jurors rely on those opinions and see them as valuable sources of information to which they should conform.71 Previous literature has, quite reasonably and perhaps unsurprisingly, explained this in view of the fact that the perception of competence plays a key role in human interactions.72 In particular, Parrot and others exposed mock jurors to the opinions of experts who showed different degrees of knowledge; the authors found that the lower/higher knowledge level displayed by the experts did not influence their credibility in the eyes of the mock jurors.73 This suggests that, in terms of credibility, jurors may not be able to distinguish more/less knowledgeable experts, in that they assume their competence on the basis of their status. By analogy, the fact that jurors tend to uncritically accept experts’ opinions, leads plausibly to believe that they reserve the same blind faith to experts/judges working on their panel in ‘mixed’ juries. Moreover, and with specific reference to group decision-making tasks, existing research has demonstrated that, when certain group members are identified as the experts, they are more influential than the other group members.74 Therefore, mechanisms of leadership, influence, pressure, and related compliant responses are very likely to be observed in the context of ‘mixed’ juries, with regard to the effects of experts’ (judges) opinions on lay jurors.75 In those contexts, the judges are the experts who should support the lay members, by clarifying matters that are not easily understandable for them, and ensuring that the lay jurors are in the best conditions to make the important choice they are required to make.76 However, it 70 Kirgis, P.F., ‘The problem of the expert juror’ (2002) 75(3) Temple Law Review 493. 71 Smith, Mackie and Claypool (n 39). 72 Parrott, C. and others, ‘Differences in expert witness knowledge: Do mock jurors notice and does it matter?’ (2015) 43(1) Journal of the American Academy of Psychiatry and the Law 69. 73 ibid. 74 Catellani and Milesi (n 68). 75 Hosch, H.M., Beck, E. and McIntyre, P., ‘Influence of expert testimony regarding eyewitness accuracy on jury decisions’ (1980) 4(4) Law and Human Behavior 287. 76 Zambuto, F., ‘L’ombra della “sentencing disparity”: casi giudiziari analoghi e conclusioni differenti’ (2016) 2 Cammino Diritto – Rivista di informazione giuridica 1.

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cannot be neglected that, due to the ‘power’ that judges (being experts) inevitably hold, the decision-making process of mixed juries ‘may be characterised by a strong asymmetry in the influence of professional judges and lay jurors’.77

Are some jury systems ‘better’ than others? When considering that the use of the trial by jury has always, and consistently worldwide, been guided by the intention to counteract the arbitrariness of the state power by referring the administration of justice to citizens,78 the use of lay jurors appears to be the most sensible response to such democratic instances. It might be argued that the involvement of judges – ‘perceived as […] part of the state legal machinery’79 – would thwart the original intentions at the basis of the jury trial introduction. Along similar lines, with reference to the requirement for motivated verdicts, it could be objected that asking jurors to expressly state the reasons underlying their choices would compromise their freedom of judgment, which is at the heart of their very involvement in the justice system. Nonetheless, those jurisdictions that have introduced the two requisites justify this choice with their distrust towards a purely lay jury trial.80 They concur on the crucial importance of the presence of non-professionals within juries,81 yet they seem to conceive the presence of professionals and the motivation requirement as necessary further guarantees against another kind of arbitrariness, which would be inherent in judicial decisions made by individuals who lack any legal competence and accountability for their choices. Taking the discussion further, it can be observed that jurisdictions that choose ‘pure’ juries and non-motivated verdicts appear to take for granted that jurors are naturally capable to navigate through the wealth of intricate information and reach reasonable, informed, and fair conclusions. Unfortunately, as the reality demonstrates, this assumption turns out not to be always correct. On the other hand, jurisdictions that opt for ‘mixed’ juries and motivated verdicts have attempted, through these procedural instruments, to solve issues related to jurors’ incompetence, while perhaps disregarding that exposing lay jurors to the influence of experts may almost totally deprive them of their decisional power, and, with that, deprive the jury trial itself of its actual democratic component, hence, of its most essential function. The proposed arguments in favour and against one or the other system appear to all start from reasonable assumptions and to come to understandable procedural choices. However, in the absence of research that specifically addresses these points, definite conclusions in favour of one or the other cannot be drawn. As 77 Catellani and Milesi (n 68) 78 Vidmar (n 5). 79 Ivkovic´, S.K., ‘An inside view: Professional judges’ and lay judges’ support for mixed tribunals’ (2003) 25(2) Law & Policy 95. 80 Kaplan and Martín (n 45). 81 Langbein, J.H., ‘Mixed court and jury court: Could the continental alternative fill the American need?’ (1981) 6(1) American Bar Foundation Research Journal 195.

64 d’Aniello mentioned, a great deal of research on the jury system has focused on the AngloAmerican model, while it was mainly in the past decade that the need for further investigation of these issues elsewhere has started being recognised. Nevertheless, although ‘as yet no direct research on these questions has been attempted […] these are fertile grounds for social-psychological analysis’.82

Conclusion Considering the harsh criticism to which the jury trial has been exposed since initial investigations in the field, it appears as though the jury itself has been ‘on trial’ for decades. Most will probably agree that juries themselves cannot be found ‘guilty’ of the system malfunctioning. Nonetheless, the critiques posed are wellgrounded and certainly call for improvement. Far from intending to provide a comprehensive overview of all the problematic aspects that years of research have unearthed with respect to the trial by jury, this chapter aimed to offer further and novel points of reflection. In particular, the chapter described some of the most worrying issues that occur in the context of jury decision-making dynamics, and employed the instrument of comparison to widen the scope of the analysis, showing how different procedural aspects may have a substantial impact on decisional processes. By using the English and Welsh and the Italian systems as examples of two jurisdictions that adopt very different procedures, it has been possible to shed light on some of these differences and on their implications. With no intention to draw conclusions on whether one of the two systems is more successful or effective than the other, the discussion endeavoured to propose a critical analysis of both systems to use as a basis for further reflection. Indeed, as Vidmar suggests ‘an examination of other systems … can help to illuminate each system, cause us to reflect on how it deals with problems, and hopefully generate ideas about how it can be made better’.83 Accordingly, the use of a comparative approach appears to be a method through which it would be advisable to continue conducting research on the topic. In the search for solutions, comparisons at international level can offer interesting perspectives to promote improvement and reform of the jury trial worldwide.

82 Kaplan, Martín and Hertel (n 46) 120. 83 Vidmar (n 5) 52.

5

Contemporary issues in criminal court procedure Jenni Ward

Introduction The criminal courts of England and Wales are undergoing radical transformation that can be argued is producing a different side to courts justice. A great deal of the change occurring is discussed within discourses of ‘modernisation’ and bringing the court system up-to-date so that it is fit for functioning and competes with the expectations of modern life.1 Many of the reforms take advantage of developments in technology and digitised methods so the pace at which cases progress through the system is quickened, making the courts more efficient in their day to day business. For example, the move from the paper-based case file system to an integrated digitised one (ejudiciary) where court files and linked documentation are shared across police and prosecution teams, defence lawyers and bench magistrates and judges, has greatly enhanced the administration of courtroom justice.2 Indeed, many of the changes are time saving and beneficial for courts work, and for crime victims and accused defendants, but some require scrutiny for the impact they have on notions of ‘fair’ justice. Serious considerations are required on how those who experience forms of disadvantage and vulnerability and people who are ‘digitally excluded’ might be affected by the increasing use of digitised courts methods. These raise important questions of procedural ‘due process’ that need to be emphasised in light of the accelerating changes we are seeing. This chapter discusses various alterations occurring within the criminal courts in the current day period. Three specific topics are focused on for the surrounding debates they attract and for the new innovations they introduce. These are trial by judge and jury and the role of ‘lay’ jurors in the trial justice system; the lower courts and the changing nature of magistrates’ justice under ‘streamlining’ and efficiency priorities, and the growth of digital ‘live link’ methods in courtroom proceedings. This is an area of criminal court business that has been advancing for some time, but has hastened under the revised online working practices brought 1 Ministry of Justice, Transforming our Justice System: Assisted Digital Strategy, Automatic Online Conviction and Statutory Standard Penalty and Panel Composition in Tribunals Government Response (Her Majesty’s Stationery Office, 2017). 2 House of Commons Justice Committee, The Role of the Magistracy: Follow-up. Eighteenth Report of Session 2017–19 (House of Commons, 2019).

DOI: 10.4324/9781003143321-5

66 Ward about through the Covid-19 health pandemic. These may be courtroom experiments that are here to stay. Intermittently and over many years, the jury trial system has faced criticism broadly linked to notions of ‘trial fairness’. This has been taken from the viewpoint of whether there is adequate ethnic representation on jury trials and the experiences of people from minority backgrounds as they go through the trial system.3 ‘Juror competence’ is also raised in debates on jury trial in the way complex legal decisions are trusted to members of the public as ‘lay’ jurors and whether they hold sufficient levels of expertise to perform these legal decision-making tasks.4 In the lower magistrates’ courts, attention is paid to the increasing number of cases that are heard in ‘single justice’ formats, where cases are adjudicated by one magistrate rather than the traditional bench of three and the growing shift towards online automated systems.5 The third issue discussed is the growth of digital and virtual methods in criminal court proceedings with reference to the deployment of artificial intelligence (AI) techniques in criminal justice. Virtual ‘live link’ methods have been used for some time in courtroom proceedings, specifically in bail hearings for those remanded in prison custody while awaiting trial.6 Yet, more recently police custody suites have been equipped with sophisticated technology so that arrested people held in custody can appear in court remotely over ‘live link’.7 Virtual justice is an area of criminal court procedure that has been under development for some time aligned to the government’s commitment to capitalise on the advantages digital technology brings to courts business. Three main analytical questions align to these topics. Are the criticisms levelled at trial by jury and the role of jurors reasonable to the extent that this form of justice will continue to face questions of legitimacy? Are the streamlining changes occurring in the lower courts that have moved in the direction of ‘single justice’ and online procedures sufficiently protective so that procedural due process is not undermined. And are the existing research findings on virtual court methods and the experience of defendants using ‘live link’ technology adequately robust 3 Hood, R., Race and Sentencing: A Study in the Crown Court (Clarendon Press, 1992); Lammy, D., The Lammy Review: An Independent Review into Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System. (Her Majesty’s Government, 2017); Shute, S., Hood, R. and Seemungal, F., A Fair Hearing? Ethnic Minorities in the Criminal Court (Willan, 2005); Thomas, C., ‘Ethnicity and the fairness of jury trials in England and Wales 2006–2014’ (2017) 11 Criminal Law Review 860–876. 4 Findlay, M., ‘Juror comprehension and complexity: Strategies to enhance understanding’ (2001) 41 British Journal of Criminology 56–76. 5 Ministry of Justice, Transforming our Justice System: Assisted Digital Strategy, Automatic Online Conviction and Statutory Standard Penalty and Panel Composition in Tribunals Government Response (Her Majesty’s Stationery Office, 2017). 6 Plotnikoff, J. and Woolfson, R., Preliminary Hearing: Video Link Evaluation of Pilot Projects: Final Report (1999), https://www.researchgate.net/publication/ 344220066_Preliminary_Hearings_Video_Links_Evaluation_of_Pilot_Projects_Final_ Report_Video_Link_Pilot_Evaluation_Contents. 7 Fielding, N., Braun, S., Hieke, G. and Mainwaring, C., Video-enabled Justice Evaluation (University of Surrey, 2020).

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enough to authenticate an expansion in this style of virtual justice? The foundations for extending the use of virtual live link methods in courtroom proceedings are being set in place and important due process and human rights questions are likely to arise. This chapter draws on UK government reports, consultation documents, and official statistics associated with transformations in criminal court practice and procedure. Research findings that illuminate current and contentious issues within criminal court procedure are also drawn upon. The author’s own empirical research using courtroom observation and interviews with serving magistrates, District Judges, police, and prosecution staff and defence lawyers is also referred to highlight their experiences with modernising transformations in the lower courts.8 Before proceeding to these critical discussions, it is useful to set out the hierarchical court structure of the English and Welsh justice system and the underpinning justice principles to provide context to the points raised. Three separate justice systems operate across the UK differentiated by the jurisdictions of Northern Ireland, Scotland, and England and Wales. These operate on similar models of ‘adversarial justice’ supported by ‘rule of law’ principles,9 though there are some differences in the trial systems. This chapter is focused on the English and Welsh court system.

The criminal courts The criminal courts of England and Wales include the higher tier Crown Court where the most serious criminal offences are tried in a judge and 12-member jury format. The lower magistrates’ courts hear less serious criminal offences administered by a bench of three magistrates or one legally qualified District Judge (DJ). Motoring offences fall within the jurisdiction of the lower magistrates’ courts making up over half of the total caseload volume. The youth courts involving ten to 17 year olds also fall within the authority of the lower magistrates’ courts. The youth courts are presided over by a bench of specially trained magistrates or one District Judge. An additional tier of the court structure can be identified with the growing number of cases processed outside of courtroom settings through out-ofcourt penalties online and through automated systems. The English and Welsh justice system is unique in its reliance on ‘lay’ justices both with jurors in Crown Court jury trial and with members of the magistracy in the lower courts. Occasional criticisms are directed at the lay justice system, typically when compared to continental European styles. This is for the oddity that complex legal decisions are left to people untrained in the criminal law. European justice systems rely on professional judges to perform this legal decision-making role.10 8 Ward, J., Transforming Summary Justice: Modernisation in the Lower Criminal Courts (Routledge, 2016). 9 Welsh, L., Skinns, L. and Sanders, A., Sander’s and Young’s Criminal Justice (Oxford University Press, 2021). 10 Malsch, M., Democracy in the Courts: Lay Participation in European Criminal Justice Systems (Ashgate Publishing, 2009).

68 Ward Criminal court justice in England and Wales is generally framed from a position of high legal regard based on a history of ‘fair’ justice enshrined in democratic governance and ‘rule of law’ principles. This highlights the early established system of ‘trial by one’s peers’.11 The lay justice system involving jurors and magistrates is presented as an example of ‘participatory democracy’. This holds great value in ordinary members of the public contributing to the administration of justice; in turn introducing a sense of legitimacy.12

Criminal court caseloads Turning now to the work of the criminal courts, the number of people prosecuted in the criminal courts has been decreasing year on year for the last decade.13 Through the years 2016 to 201914 the overall numbers declined from nearly 1.48 million to 1.37 million (as shown in Table 5.1). Indictable-only offences in the Crown Court fell by 19 per cent between 2016 and 2019 from 299,722 to 243,333 and ‘summary offences’ in the magistrates’ court by 4 per cent from 1.18 million to 1.13 million during these same years. Table 5.1. also illustrates the difference in case volumes between the Crown Court and the magistrates’ courts. The bulk of court cases are heard in the lower tier magistrates’ courts. Of the overall 1.37 million court cases in 2019, 1.13 million were the jurisdiction of the magistrates’ courts and over half of these were motoring offences. Table 5.1 Defendants proceeded against – England and Wales15 Year

2016

2017

2018

2019

2020

Total

1,480,220

1,424,851

1,381,202

1,374,722

1,026,373

Indictable

299,722

280,726

245,897

243,333

204,173

Summary

1,180,498

1,144,125

1,135,305

1,131,389

822,200

Summary nonmotoring

600,087

556,507

548,738

531,677

329,549

Summary motoring

580,411

587,618

586,567

599,712

492,651

11 Bingham, T., The Rule of Law (Penguin Books, 2010). 12 Donoghue, J., ‘The rise of digital justice: Courtroom technology, public participation and access to justice’ (2017) 80(6) Modern Law Review 995–1025. 13 Ministry of Justice, Criminal Justice Statistics-Quarterly Update Year Ending September 2020 (Ministry of Justice, 2020), https://www.gov.uk/government/statistics/ criminal-justice-system-statistics-quarterly-september-2020, accessed October 2021. 14 The Covid-19 pandemic and ‘lockdown’ regulations had a radical impact on crime patterns during 2020 (Office for National Statistics, 2020) in turn affecting police arrest rates and criminal court prosecutions. The percentage decrease calculations in this chapter therefore excludes the 2020 period for the likely skewed results. Office for National Statistics, Coronavirus and Crime in England and Wales: August 2020 (ONS, 2020). 15 Data taken from Criminal Justice Statistics Quarterly update year ending September (Ministry of Justice, 2020).

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Some commentators link the declining number of court cases to overall lower rates of offending, but others connect the drop to the substantial reduction in police numbers under swingeing public sector budget cuts since 2010.16 Police workforce numbers reported by the Home Office17 showed that at March 2020 there were 129,110 full-time officers, yet 14,659 fewer than at the peak in 2009 when there were 143,769. With a smaller number of front-line officers to detect crime across cities and communities, the total number of police arrests reduce. This in turn has a bearing on the volume of criminal prosecutions taken forward in the courts. Despite the decline in case numbers, there are still significant numbers of people passing through the courts who experience the power of the ‘state’ exercised through decisions of the courts. The far reaching impact of trial verdicts and sentencing making the criminal courts an integral site of critical analysis. Plea entry is also an important point of consideration when discussing contemporary issues in criminal court justice. Over the years different streamlining and efficiency savings have been made in efforts to limit lengthy, time consuming and costly contested trials.18 Encouraging early ‘guilty pleas’ in cases that warrant them, is one approach. The ‘sentence discount’ principle is built into the system with a structure of accrual where the earlier the guilty plea is entered in the process, the greater the sentence reduction. The final point of reward offered is for guilty pleas entered on the day of trial. Sanders et al. (2010)19 argued the system encourages defendants to plead guilty even when there is defence in mitigation. On average each year the rate of guilty pleas is 70 per cent in the Crown Court and 78 per cent in the lower courts.20 Magistrates in my earlier research (Ward, 2016) raised problems with this, noting those who are vulnerable are more likely to plead guilty without full knowledge of the implications. Dynamics such as these have led to some scholars writing on the ‘disappearing trial’, raising issues of contention with the ‘protection of rights, due process and the rule of law’.21 This section has provided some background context to the operation of the criminal courts in the English and Welsh justice system and the current landscape 16 House of Commons Home Affairs Committee, Policing for the Future. Tenth Report of Session 2017–19 (House of Commons, 2018). 17 Home Office, Police Workforce England and Wales as at 31 March 2020 2nd edn (Home Office, 2021). 18 Various campaigns have been implemented within the English court system aligned to the concept of speedy justice. The ‘Criminal Justice: Simple, Speedy, Summary’ initiative was launched in 2007. In 2012 the ‘Stop Delaying Justice’ initiative was introduced, and further activity came in 2014 with alterations made to the ‘Criminal Procedure Rules’ that introduced active case management into court case processing (see Ward, 2016). 19 Sanders, A., Young, R. and Burton, M., Criminal Justice 4th edn (Oxford University Press, 2010). 20 Gormley, J., Roberts, J.V., Bild, J. and Harris, L., Sentence Reductions for Guilty Pleas (Sentencing Academy, 2020). 21 Russell, J. and Hollander, N., ‘The disappearing trial: The global spread of incentives to encourage suspects the waive the right to a trial and plead guilty’ (2017) 8(3) New Journal of European Criminal Law 309–322.

70 Ward within which court justice is being administered. The chapter now moves to discuss the three topics mentioned.

Trial by judge and jury The first points discussed within notions of contemporary issues in criminal procedure, is trial by judge and jury and the role of jurors. The jury trial system has faced recurring critical questions over the decades. These have centred on aspects of trial fairness particularly raised in relation to ethnic representation, with arguments on occasion leading to calls for the selection of racially balanced juries, especially in trials where ‘race’ may be deemed central to the case. This was a point argued by Lord Justice Auld in his wide-ranging review of the criminal courts.22 He concluded that juries were fair, but that ‘the ethnic composition of jurors should be considered where race is an important issue in the case’. Other criticisms of jury trial focus on ‘juror competence’ and whether members of the public as lay jurors are sufficiently qualified to interpret complex criminal evidence delivered under cross-examination in court.23 These reservations specifically emerge in complex cases of rape, joint enterprise prosecutions, and high level financial crime. Questions on ethnic representation and trial fairness are vitally important in the context of proportionality in criminal convictions. Reporting from official statistics in 2020 over a quarter of people in prison (27 per cent) were from a minority ethnic group24 and ‘black’ children made up 28 per cent of the youth custody population.25 This shows disproportionate levels of imprisonment in contrast to the presence of people from minority ethnic backgrounds in the general population. The overall number of young people in custody has declined by 68 per cent over the last ten years alongside a deliberate policy to use diversionary methods, but at the same time, a 15 per cent increase of ‘black children’ in custody has been recorded. These are figures that together raise questions of racial bias within the criminal justice system. There are different factors at issue in individual criminal cases which impact on conviction rates, but Lammy,26 in his review of black, Asian, and minority ethnic people in the criminal justice system, highlighted ethnic disparity in police arrest and prison sentencing. Lammy contended that unconscious prejudicial attitudes engendering discrimination can become embedded within decisions made in the criminal justice system. 22 Auld, L.J., Review of the Criminal Courts of England and Wales: Report (The Stationery Office, 2001). 23 Findlay, M., ‘Juror comprehension and complexity: Strategies to enhance understanding’ (2001) 41 British Journal of Criminology 56–76; Findlay, M. and Duff, P. (eds), The Jury Under Attack (Butterworths, 1988). 24 Prison Reform Trust, Bromley Briefings Prison Factfile Winter 2021 (Prison Reform Trust, 2021). 25 Youth Justice Board/Ministry of Justice, Youth Justice Statistics 2019/20 England and Wales (Ministry of Justice, 2021). 26 Lammy, D., The Lammy Review: An Independent Review into Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System (Her Majesty’s Government, 2017).

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27

In her research on trial by jury, Thomas refutes criticism of trial fairness on grounds of ethnicity. Through a large-scale verdict analysis study, Thomas’ research Are Juries Fair? analysed whether defendants from black and minority ethnic backgrounds were more likely to be found guilty in a trial by jury than white defendants. From a dataset of over half a million cases drawn from real criminal trial verdicts with sitting juries, Thomas looked at conviction outcomes and found similar proportions of people from black and minority ethnic backgrounds to those from white backgrounds were convicted at trial. The study found 63 per cent of Asian and white defendants were convicted and 67 per cent of black. In addition to the verdict analysis, Thomas carried out a series of simulated jury trial experiments (n = 41) to test whether ‘all white’ juries were more likely to convict minority ethnic defendants than white. This aspect of the research was based on the way some geographical regions across England and Wales have a mainly white catchment area in the selection of trial jurors which results in all white juries in many cases. However, Thomas found that ‘all white’ juries were no more likely to convict black or Asian defendants than they were to convict white defendants. Though, she did raise concern about the appearance of ‘all white’ juries and noted the frequency of all white juries in trials of black, Asian, and minority ethnic defendants. Also commented on was the frequency of all white juries in trials where white defendants were accused of racially motivated offences against people from ethnic backgrounds. From a statistical perspective, therefore Thomas argued that jury trial was one stage of the criminal justice system in which black and minority ethnic defendants did not ‘face persistent disproportionality’. She concluded with a strong endorsement of the role of jurors arguing racially balanced juries were not necessary. However, Thomas’ research was not able to cast light on the dynamics and processes of jury deliberation. There is a paucity of research illuminating juror decision-making and how verdicts are arrived at. Research seeking information from serving jurors is banned under the 1981 Contempt of Court Act, leaving few insights into the nature of jury deliberation and whether subtleties of racial prejudice affecting jury trial outcomes are present. Certainly, when looking at trial by jury and the role of jurors, particular offences have been emphasised for problems with juror performance amidst case complexity. This occasionally leads to suggestions that ‘specialist juries’ should be used instead and has been argued for in rape trials28 and in complex financial crime trials. We can therefore see in these discussions of trial by judge and jury that attention can be drawn to some problematic aspects that leaves the question open, are alternate forms of judging necessary for some offence types? Are there viable alternatives? Despite some suggestions for mixed tribunals as with European continental systems, no resounding alternative has emerged in the English and Welsh context. 27 Thomas, C., Are Juries Fair? Ministry of Justice Research Series 1/10 (Ministry of Justice, 2010), www.justice.gov.uk/publications/are-juries-fair.htm. 28 See Bindel, J., ‘Juries have no place in rape trials. They simply cannot be trusted’, The Guardian, 21 November 2018, https://www.theguardian.com/commentisfree/ 2018/nov/21/juries-rape-trials-myths-justice, accessed October 2021.

72 Ward

The lower criminal courts and the magistracy The second point of discussion in this chapter is the work of the lower criminal courts and the role of the magistracy. Critical discussions have emerged in the context of modernisation and transformations and how efficiency savings can be maximised in lower court case processing.29 The introduction of the Single Justice Procedure (SJP) in 2015 is discussed in these efficiency aims. Despite a number of challenges and expectations facing the magistracy, government endorsements generally rule that they form a fundamental part of the wider judiciary and make a valuable contribution to lower court justice with confirmation the justice system will continue to be administered through the involvement of lay magistrates. Discussions on the way lower court magistrates are deployed have taken a form of urgency in the last few years alongside the rapid and significant decline in serving magistrates. Magistrate numbers have decreased by nearly half since 2012 dropping from 25,155 to 15,003 in 2018 as illustrated in Figure 5.1.30 A further drop to 13,177 was recorded at the end of April 2020. The fall in magistrate numbers is connected to natural age retirement, but is compounded by the older age of many magistrates (see Table 5.2). Judicial Office statistics recorded in 2020 show that over three quarters of all magistrates were aged 50 and above (82 per cent) and nearly half were 60 and over (49 per cent). Magistrate Numbers in England and Wales, 1 April 2012 to 1 April 2018 30000 25155 23244

25000

21626 19634

20000

17552

16129

15003

15000 10000 5000 0 2012

Figure 5.1

2013

2014

2015

2016

2017

2018

31

29 House of Commons Justice Committee, The Role of the Magistracy: Follow-up. Eighteenth Report of Session 2017–19 (House of Commons, 2019); House of Commons Justice Committee, The Role of the Magistracy. Sixth Report of Session 2016–17 (House of Commons, 2016); Ministry of Justice, Transforming our Justice System (Ministry of Justice, 2016); Ministry of Justice, Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System (The Stationery Office, 2012). 30 Figure 5.1 is taken from the 2019 House of Commons Justice Committee report The Role of the Magistracy (ibid. 12). 31 The figure is taken from ibid. at section 3, available here https://publications.parliament. uk/pa/cm201719/cmselect/cmjust/1654/165405.htm, accessed November 2021.

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The aging profile of magistrates is acknowledged as a situation that will place continuing pressure on the justice system. A 2020 Economist magazine article32 highlighted that, due to staff shortages, 15 per cent of cases were now heard by two rather than three magistrates, which can be argued as undermining the strengths attributed to the collective bench decision-making style as in magistrates’ justice. To help alleviate the impacts from the large loss of judging staff to lower court functioning, the retirement age for magistrates was extended from age 70 to 75 years in March 2021. The older age profile is a consistent feature of the magistracy and is for the most part linked to the difficulties recruiting a broader and younger cohort of people to this voluntary position. Table 5.2. Shows the small number of magistrates in their 20s and 30s. Just 1 per cent of magistrates are under 30 years.33 Magistrates in Ward’s research34 said it was only on retirement from their main professional career that they were able to take up community work such as with the magistracy. The voluntary nature of the role raises significant recruitment challenges, which is considered difficult to resolve unless employers are provided with some form of incentive to release staff to perform this civic duty. Other innovative ideas on how to recruit to a wider range of talent and greater numbers from minority ethnic backgrounds is also necessary.

Diversity in ‘local justice’ A lack of diversity is a persistent question levelled at the magistracy, as well as the mainly narrow social-class background they are from.35 This is presented as Table 5.2 Age profile of serving magistrates end of April 2020 Age

Number

Under 30

153

% of total

30 and over

617

40 and over

1,569

12

50 and over

4,341

33

60 and over

6,497

49

Total

13,177

100

1 5

Source: Diversity of Judiciary statistics 2020 (Courts and Tribunals Judiciary, 2020).

32 The Economist, ‘Magistrates are in a funk: The time is right for reform’, The Economist, 22 June 2019. 33 Ministry of Justice, Primary Appointment of Serving Magistrates in England and Wales (2020), https://www.gov.uk/government/statistics/diversity-of-the-judiciary-2020statistics 34 Ward, J., Transforming Summary Justice: Modernisation in the Lower Criminal Courts (Routledge, 2016). 35 Gibbs, P. and Kirby, A., Judged by Peers? The Diversity of Lay Magistrates in England and Wales. Howard League What is Justice? Working papers 6/2014 (20140, www. howardleague.org.

74 Ward undermining notions of ‘local justice’; a central principle of magistrates’ justice. One of the promises of this form of justice is that magistrates are drawn from their local communities and are therefore connected to the everyday lives and experiences of people they sit in judgment over. Gibbs and Kirby argued magistrates should reflect the varied gender, age, ethnicities, sexual orientation, social-class backgrounds, and religious beliefs that make up modern UK society. This takes the view that justice is better served when dispensed by people who mirror the profile of the community – bringing a better understanding of local and cultural issues faced from within. The 2020 magistrate diversity figures36 illustrate that women are well represented. Over half (56 per cent) of serving magistrates in 2020 were women. Ethnic diversity within the magistracy however, is not well represented. Just 13 per cent of the 2020 cohort identified as belonging to an ethnic minority group, though this was better reflected in metropolitan city areas such as London with 30 per cent of magistrates being from a black, Asian, or minority ethnic background. The lack of ethnic diversity is a point directed at the wider judicial profession and across international jurisdictions with some commentators recommending recruitment ‘targets’ are set for judicial appointments so that a greater balance and representation is achieved. Lammy highlighted in his review37 that just 7 per cent of professional judges were from black and minority ethnic backgrounds. In other analysis examining changes that could improve judicial diversity, Bindman and Monaghan38 argued the limited cross-sectional representation is a situation that undermines ‘democratic legitimacy’.

District Judges in the lower courts Judging in the lower criminal courts is also performed by salaried professional judges who decide cases on their own as single sitting justices along with the support of a legal clerk. They are much fewer in number than serving magistrates. A total of 217 (131 District Judges and 86 Deputy District Judges) were employed across the courts system at the end of September 2020.39 Limited research is directed at District Judges, but some professional culture and collegiality issues are reported.40 These align to notions of ‘professional versus lay justice’ 36 Ministry of Justice, Diversity of the Judiciary, Legal Professions, Judicial Appointments and Judicial Office Holders (2020), https://www.gov.uk/government/statistics/ diversity-of-the-judiciary-2020-statistics. 37 Lammy, D., The Lammy Review: An Independent Review into Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System (Her Majesty’s Government, 2017). 38 Bindman, G. and Monaghan, K., Judicial Diversity: Accelerating Change (Judicial Appointments Commission, 2014), www.jac.judiciary.gov.uk. 39 Ministry of Justice, Primary Appointment of Judges and Non-Legal Members in Courts and Tribunals in England and Wales (2020), https://www.gov.uk/government/sta tistics/diversity-of-the-judiciary-2020-statistics. 40 Ward, J., Transforming Summary Justice: Modernisation in the Lower Criminal Courts (Routledge, 2016); House of Commons Justice Committee, The Role of the Magistracy: Follow-up. Eighteenth Report of Session 2017–19 (House of Commons, 2019).

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on which these two judicial domains divide. Further, comparisons in performance between District Judges and lay magistrates has been the focus of some research. An Ipsos/MORI study41 examined the strength, skills, and working practice of District Judges when compared with a bench of three magistrates. The quicker pace at which single sitting District Judges processed cases was reported. This was due to their single-handed working and not having to confer with others when reaching verdict and sentencing decisions. However, the research did conclude that magistrates’ benches were a fairer form of justice with a greater ‘degree of democracy’.42 Differential allocation of workload between District Judges and magistrates has been found with Judges apportioned the more complex and serious offences when compared to magistrates. The Ipsos/MORI study noted that three in ten cases allotted to District Judges were the more serious ‘Triable Either Way’ cases, contrasted with 18 per cent for magistrates. Findings of this type have informed planning efforts to ensure work role satisfaction for magistrates and importantly to assist with retention in the profession in light of the declining numbers. According to the House of Commons report, a working group comprising senior members of the judiciary, the Magistrates’ Association, and the courts service was established to agree a protocol on judicial positioning within the magistrates’ court. This ruled that serious cases be deployed to District Judges such as terrorism, extradition, and lengthier cases, but the mix of work allocated to magistrates should continue so the breadth of courts work is experienced and that magistrates are not saddled with the simple, more mundane aspects. To improve the culture of collegiality, suggestions were made for magistrates and District Judges to sit in a mixed bench format.

The Single Justice Procedure Shifting attention to focus on specific efficiency transformations in the lower courts, the introduction of the Single Justice Procedure is discussed. The SJP was enacted through the 2015 Criminal Justice and Courts Act43 and is a revised format for judging low-level criminal offending (‘summary non-imprisonable offences’), such as a range of motoring offences including, driving without insurance, driving while using a mobile phone, speeding, non-payment of television license fees, fare evasion on public transport, and other so called ‘straight forward cases’. Single Justice Procedure Notices (SJPN) are issued with admissions of guilt or rebuttal submitted online via email or letter response within 28 days. SJP cases are ‘decided on the papers’ by one magistrate assisted by a legal advisor, instead of the usual bench of three and is the result of longstanding discussions on removing time and resource burdens from the courts. For instance, limiting in-person 41 Ipsos/MORI, The Strength and Skills of the Judiciary in the Magistrates’ Courts, Ministry of Justice Research Series 9/11 (Ministry of Justice, 2011). 42 ibid. 1. 43 H.M. Government (2015) Criminal Justice and Courts Act 2015, Part 3 Sec. 48.

76 Ward appearances so that magistrate time is freed up for more complex cases.44 This is a fundamental alteration to the way court judging is conducted, with a large swathe of lower-level criminal offences moving into this online format. Indeed, criticisms are being made. So far, there is little public information that enables close scrutiny of the SJPN and importantly, the experience of ‘courts users’ with this form of online ‘speedy justice’. Ministry of Justice statistics revealed between the nine month period January and September 2020 that 398,427 SJPN were imposed for the list of eligible offences. One of the concerns arising is the high number of people who enter no plea or do not respond to the notice.45 Of the 398,427, 71 per cent entered no plea or did not respond, 27 per cent entered a ‘guilty’ plea, and 2 per cent entered a ‘not guilty’ plea.46 Those who do not enter a plea or do not respond are found guilty in their absence. ‘Not guilty’ pleas are granted a physical court appearance, as are cases that carry greater stakes, such as driving infringements that could lead to license disqualification. Information on how to submit mitigating evidence is apparently included with issuance of the SJPN, but legal aid is not available. The 71 per cent ‘no plea’ has raised questions of ‘access to justice’ with concerns the high rate of non-response might be connected to English language and literacy competence and/or inadequate understandings of legal processes, including the implications of a criminal record that results from not entering a plea.47 There is a gap in research on the experiences of people going through these online conviction processes and insights into the reasons for the high rate of non-response/no plea. A document produced by the Revolving Doors charity and Centre for Mental Health48 addressed issues relating to ‘access to justice’ for people with mental illhealth, learning disabilities, developmental disorders, and neuro-diverse conditions in the criminal justice system. The report highlighted issues with the planned virtual ‘live link’ court appearances in the roll out of the government’s ‘Transforming Justice’ digitalisation programme.49 It notes how the digitisation of courts risks making the identification of vulnerabilities more difficult and that the ‘magistrates’ courts present an important early opportunity to identify vulnerabilities before people proceed through the criminal justice system. A ‘lived experience panel’ 44 Ministry of Justice, Transforming our Justice System: Assisted Digital Strategy, Automatic Online Conviction and Statutory Standard Penalty and Panel Composition in Tribunals Government Response (Her Majesty’s Stationery Office, 2017). 45 Gibbs, P., Does it Matter if those Accused of Crime Plead Guilty or Not Guilty (Transform Justice, 2021), www.transformjustice.org.uk. 46 These data have been drawn from, Ministry of Justice, Criminal Court Statistics, Data and Evidence as Service (PQ 143756) available here: https://qna.files.parliament.uk/ qna-attachments/1280803/original/Copy of PQ 143756.xlsx, accessed March 2022. 47 Gibbs, P., The Right to Know you are Accused of a Crime, blog post (Transform Justice, 2019), www.transformjustice.org.uk. 48 Revolving Doors and Centre for Mental Health, In Ten Years Time: Improving Outcomes for People with Mental Ill-health, Learning Disability, Developmental Disorders or Neuro-diverse Conditions in the CJS (Revolving Doors, 2020). 49 Ministry of Justice, Transforming our Justice System (Ministry of Justice, 2016).

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took part in the research. They reported problems with ‘understanding court proceedings and legal language, as well as having difficulties expressing themselves’.50 The report was centred on virtual ‘live link’ court appearances, but certainly has relevance to the online SJP processes. The questions asked on whether robust evidence is available on the impact of the advancing use of digitised and virtual methods on people with mental ill-health, learning disabilities, or other vulnerabilities51 spans these domains. There is also unease with how this style of online justice opens the way for other so-called minor offences to be added to the list that can be heard through SJP methods. The ‘creep’ of the extended range of cases has been reported as a worry by magistrates52 and links to important discussions on the extent to which court legal decisions should be left in the hands of one person even though supported by a legal advisor. Concerns arose with the use of the SJP in alleged breaches of the Coronavirus regulations implemented under the 2020 Coronavirus Act. It is difficult to gain information on the number of cases that were prosecuted in this way, but a Standard newspaper article53 highlighted the lack of transparency with this style of justice under the ‘open justice’ principle. Lists of SJPNs are published online, but more nuanced case information is not available for full scrutiny. The discussion on SJPN overlaps with the following section on the UK government’s plans to further develop and transform the justice system through a digital strategy. This set in place a process of consultation inviting responses on the advances being made including ‘automatic online convictions’ and the ‘statutory standard penalty’.54 The ‘statutory standard penalty’ is unique for the uniform Artificial Intelligence (AI) semi-automated sentencing decisions it would use. Responses to the consultation were approving of streamlined online methods for certain straight-forward cases such as those mentioned, since it enables court users who accept guilt to access a simple procedure that is concluded swiftly. However, questions were asked about the shift to ‘sentencing by algorithm’ that would be ushered in with the statutory standard penalty. Concerns referred to the lack of judicial involvement this style of judging would introduce, particularly in cases where there are mitigating circumstances that should be taken into account to arrive at appropriate sentences. Further reservations centred on the need to retain the right for defendants to defend themselves in ‘open court’ and that online procedures essentially remove that, with it claimed this could be in ‘contravention of Article 6 of the European Convention on Human Rights and the Right to a Fair Trial’.55 50 ibid. 15. 51 ibid. 25. 52 House of Commons Justice Committee, The Role of the Magistracy: Follow-up. Eighteenth Report of Session 2017–19 (House of Commons, 2019). 53 Kirk, T., ‘Covid rule breakers targeted in secret London prosecutions’, The Standard, 16 October 2020. 54 Ministry of Justice, Transforming our Justice System: Assisted Digital Strategy, Automatic Online Conviction and Statutory Standard Penalty and Panel Composition in Tribunals Government Response (Her Majesty’s Stationery Office, 2017). 55 ibid. 9.

78 Ward The government’s intention to move forward and expand the use of virtual online justice is illustrated in the 2021 Police, Crime, Sentencing and Courts Bill.56 The Bill makes it clear that online and virtual justice methods are the future direction for courts business. Susskind argues ‘in a digital society it makes sense for much of the work of the courts to be conducted online’57 and that accelerating the take up of online methods will ‘greatly achieve access to justice around the world’. Susskind refers to first and second generation online courts; the first being human judging that is conducted through online methods and the second the advancement of AI techniques in which the directions and decisions are made by automated systems rather than by people. Susskind says ‘as we see greater machine capabilities it is important to confront the ethical and social questions that will arise’.58 This is a vital point, as it can be argued that to date, not enough attention has been paid to the ethical issues and social implications on people faced with these methods, or information on how people, particularly those deemed ‘vulnerable’, with learning difficulties, literacy problems, and the ‘digitally excluded’, experience this from of justice administration and to what extent we are creating inequities in ‘access to justice’?

Virtual trials and AI in criminal justice settings The final issue this chapter will address is the use of virtual live link methods in courtroom proceedings with specific attention to virtual court trials. Advances in virtual court hearings have been progressing for some time amid the government’s commitment to the efficiency capabilities of technology within the criminal justice system, but to date this has not extended to contested criminal trials. Aspects of virtual courts justice have been in place for some time, specifically bail hearings that take place over video ‘live link’ from within prisons. More recent developments in the way vulnerable witnesses and victims can give evidence in court to protect them from fear and intimidation when coming face to face with people they are giving evidence against have been introduced. Methods for the police to give evidence over ‘live link’ in court have also been put in place, so that time lost to police business with physical court appearances is reduced. Moreover, certain police force areas have installed sophisticated technology in police custody suites so that people can appear in court from police stations for plea entry, bail, and remand requests and sentencing in ‘straightforward cases’. An evaluation of the pilot UK virtual courts project in 2010 focused on those appearing in court from police custody59 and raised concerns with the lower numbers of people who obtained legal advice within these virtual hearings when compared to physical court appearances and the higher numbers that pleaded guilty. This was linked to 56 57 58 59

H.M. Government (2021) Police, Crime, Sentencing and Courts Bill Sec 169. Susskind, R., Online Courts and the Future of Justice (Oxford University Press, 2019). ibid. 8. Terry, M., Johnson, S. and Thompson, P., Virtual Court Pilot: Outcome Evaluation, Ministry of Justice Research Series 21/10 (Ministry of Justice, 2010).

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the environment in which the hearing is taking place, appraising that police stations are not neutral spaces in the same style as courts. There were similar findings in the evaluation of the Video-enabled Justice Programme,60 concluding defence advocates were less able to communicate and build rapport with their clients, among other issues of remoteness and being detached from proceedings.

Virtual trials Alongside the ongoing operational challenges experienced within the courts due to the severe underfunding over the last decade, interruptions to court trials during the Covid-19 pandemic set in place some new discussions about online virtual court trials. Indeed, the potential of virtual trials was tested in a series of experimental studies.61 These were set up to test if criminal trials were to be rolled out in virtual formats in the future, would ‘access to justice’ principles and fair adjudication be maintained? The question the researchers posed was ‘whether, in these times of crisis, it is possible to hold “dispersed” or virtual trials in which the principles of fairness, accuracy of evidence and certainty can be met’? The study conducted four experiments that involved court trial participants, for instance a judge, jurors, criminal defence barrister, prosecution barrister, and a clerk. Problematically for a study of this nature, few defendants were included. The studies found positive aspects in these mock virtual trials, reporting that the technology worked well, the judges were able to establish the correct sense of ‘gravitas and civic occasion’ required in a court trial, and the lay participants that emulated jurors were comfortable using the technology once trained. There were suggestions the approach was less stress inducing for the jurors than going to a physical courtroom where they can come face-to-face with defendants in communal court space, such as in the corridors and lifts. Clear sightlines of all the participants were reported, which was highlighted as not always the case in a courtroom. It was also claimed the defendant was treated with more dignity than when in an enclosed dock in a real courtroom and that the right for the defendant to consult with their legal counsel was enhanced. However, none of these studies sufficiently examined the experience of court defendants, thereby not informing on the benefits and disadvantages of a criminal court trial through these methods. Urgent research is therefore needed into how defendants experience trials conducted in this way and whether 60 Fielding, N., Braun, S., Hieke, G. and Mainwaring, C., Video-enabled Justice Evaluation (University of Surrey, 2020). 61 Rossner, M., Tait, D. and McCurdy, M., ‘Justice reimagined: Challenges and opportunities with implementing virtual courts’ (2021) 33(1) Current Issues in Criminal Justice 110; Rowden, E. and Teeder, W., Exploring the Case for Virtual Jury Trials During the COVID-19 Crisis (JUSTICE, 2020); Mulcahy, L., Rowden, E. and Teeder, W., Testing the Case for a Virtual Courtroom with a Physical Jury Hub (JUSTICE, 2020); Teeder, W., Mulcahy, L. and Rowden, E., Virtual Courtroom Experiment: Data Report 3rd Evaluation of a Virtual Trial Pilot Study Conducted by Justice (JUSTICE, 2020).

80 Ward they carry sufficient procedural due process safeguards and that the technology is ‘glitch’ free so not to hinder communication. Additional context to the study experiments was the awareness that digital divides exist within society and that effective access to video technology differs according to age, income, education, and location. It is deemed a sector of the population can be defined as ‘digitally excluded’. These are important issues when considering courts’ process and procedure because of the over-representation of disadvantaged and vulnerable groups in the criminal court and prison systems and who face trial justice through these methods. These are significant issues if we are to consider people’s digital access and technological competence as victims and witnesses, but equally when we consider the potential disadvantages for people appearing as court defendants from prison custody. Given the virtual jury trial experiments reported positive results and that the administration of justice operated smoothly from the perspective of jurors, it can be assumed there will be interests to advance digital trial methods as a matter of regular practice. Yet, important protections are needed. McKay’s study from Australia62 is one of the few that has explored audio-visual ‘live link’ experiences with people in prison. Her research involved 31 men and women from two ‘correctional facilities’ and explored questions on how appearing in court over video link affects people in prison and their experience of legal proceedings in this format. The interviews gave opportunities for respondents to express what they appreciated and what they did not like about this form of communication, thus contributing to a human perspective of understanding. McKay refers to her research as giving a ‘largely disempowered vulnerable population a voice’ noting the lack of research that engages directly with prisoners in face-to-face interviews. She suggested that ‘impartial and open justice is compromised as the courtroom space is conflated with the prison so the custodial space becomes a site for enacting justice’. She stated that ‘the soundtrack of incarceration, video-conferencing conceptual extension of the courtroom custody dock impacts the presumption of innocence’.63 There are important questions to be asked about the ideas to facilitate criminal court trials over virtual live link, due to the fundamental principle of open justice and the importance of ‘the day in court’ being lost.64 This is also because of the way technology and remote appearance means nuance in dialogue and verbal exchange is lost, that can have far-reaching impacts. There are compelling arguments for straightforward bail hearings to be held over virtual live link, but there are others such as virtual criminal court trials that require serious scrutiny and questioning. 62 McKay, C., The Pixelated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix (Routledge, 2018). McKay, C., ‘Video links from prison: Permeability and the carceral world’ (2016) 5(1) International Journal for Crime, Justice and Social Democracy 21–37. 63 ibid. 61. 64 Mulcahy, L., Legal Architecture: Justice, Due Process and the Place of Law (Routledge, 2011).

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This future planning is neatly summed up in the statement by Bandes and Feigenson65 in their article on virtual trials in the pandemic: The sudden prevalence of virtual legal proceedings offers a kind of forced natural experiment and hence an unprecedented opportunity to revisit what we value about adjudication in public courtrooms, and to think about how best to ensure that court proceedings, whatever form they may take, reflect and reaffirm those values.66 While significant advances have been made with the implementation of virtual courts, developments in AI and automated decision-making in the English and Welsh criminal justice system are not showing signs of appearance. AI type approaches are present in the risk behaviour assessment tools used among prison populations with the OASYS (Offender Assessment System) and with young offenders managed by Youth Offending Teams using the AssetPlustool. However, the extensive use of AI as seen in the USA with computer generated bail decisions67 and the use of the COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) tool in sentencing decisions have not extended to the UK. There is limited research available that informs on the accuracy of AI decision-making in criminal justice. An exception is the research by Angwin et al. (2016)68 of the Propublica investigative journalism group which highlighted a significant problem with the use of the COMPAS prediction tool. COMPAS is used across several states of the USA to predict future offending of defendants from which judges use the results to aid sentencing decisions. According to Propublica, the previous US Attorney Eric Holder voiced concern when he was in office with the use of the COMPAS tool, arguing it ‘undermined individualised and equal justice and exacerbated the already disparate effects of the criminal justice system on people of colour’. Propublica conducted an enquiry using 7,000 case records from Florida and found the expectations of future violent offending at a two year follow-up were widely off mark. ‘Only 20% of the people who were predicted to recidivate did so’. This highlights the inaccuracies that can result from prediction assessments and the injustices that can occur when used in the calculation of further offending scenarios and especially if these sentencing decisions lead to the denial of liberty and imprisonment. AI criminal justice decision-making is in its infancy in the English and Welsh court system, but it is an area worth paying attention to for the time saving 65 Bandes, S.A. and Feigenson, N., ‘Virtual trials: Necessity, invention and the evolution of the courtroom’ (2020) 68(5) Buffalo Law Review 1275–1352. 66 ibid. 1352. 67 Zavrsnik, A., ‘Algorithms and big data in criminal justice settings’ (2019) European Journal of Criminology, https://doi.org/10.1177/1477370819876762. 68 Angwin, J., Larson, J., Matta, S. and Kirchner, L., Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks (Propublica, 2016), https://www.propublica.org/article/machine-bias-risk-assessmentsin-criminal-sentencing, accessed October 2021.

82 Ward ‘efficiency’ potential that could be presented in its favour in a period that prioritises ‘speedy swift justice.’ This chapter contends, this is a worrying development. It removes important principles of ‘individual justice’ and essential judicial involvement in ‘fair’ and appropriate sentencing.

Conclusion This chapter has drawn attention to different criminal justice developments in which we see alteration to process and procedure mainly with the intention for business to be conducted more efficiently and in ways that removes delay in case processing as experienced by crime victims and defendants. The chapter argues these alterations have been edging forward in significant ways, but have accelerated through the revised working practice brought about the COVID-19 health pandemic, and they may well become courtroom experiments that are here to stay. Three main topics have been explored under the common theme of contemporary issues in criminal procedure. Trial by judge and jury and the recurring issue of ‘trial fairness’ specifically in relation to ethnic representation and ‘juror competence’ in regard to criminal case complexity. The question presented, ‘Are the criticisms levelled at trial by jury and the role of jurors reasonable to the extent that this form of justice will continue to face questions of legitimacy?’ The answer to which is yes, in light of no viable alternative having emerged. Though the potential of ‘specialist juries’ in certain offence cases is a debate we will see advance further in the future. The second topic explored was the lower courts and magistrate justice, asking the question ‘Are the streamlining changes occurring in the lower courts that have moved in the direction of ‘single justice’ and online procedures, sufficiently protective so that procedural due process is not undermined?’ This linked closely to the final section examining virtual court methods and the use of ‘live link’ technology, with the question ‘Have the experiences of “court users” been adequately and robustly evaluated to legitimate an expansion in this style of virtual justice?’ However, what we see is a move to digital online methods which have rarely been informed by court users themselves. Justice is subjective. It is only legitimate if is perceived as such by those experiencing it.69 As with many organisations, the courts executive will be considering what aspects of virtual justice have produced benefits and opportunities that should remain in place in the post pandemic world. However, there are procedural due process protections that will be undermined with this style of judging, and the legal and human rights challenges that will arise need to be taken seriously.

69 Cavadino, M., Dignan, J. Mair, G. and Bennett, J., The Penal System: An Introduction (Sage Publications, 2020).

6

Vulnerability in the criminal trial Samantha Fairclough

Introduction There are many different forms of vulnerability prevalent in society. It is estimated that over one-million people have learning disabilities in England;1 that 1 in 6 people have symptoms of a common mental disorder;2 and that almost 1 in 5 people aged 16 and over in the UK show symptoms of anxiety or depression.3 Moreover, in 2004, 10 per cent of children had a clinically diagnosed mental disorder,4 and it is estimated that 10 per cent of children and young people have a speech, language, or communication need which is likely to be long term or persistent.5 These figures illustrate that many of those involved in criminal trials as witnesses are vulnerable. This is particularly apparent in light of a Victim Support study that showed that people with learning disabilities are almost 3.5 times more likely to suffer serious violence, and 1.5 times more likely to be a victim of theft.6 Where defendants are concerned, the available evidence suggests that vulnerability may also be disproportionately common among those accused, and convicted, of criminal offences. For example, a Children’s Commissioner Report highlights that the prevalence of neurodisability in young people who offend is often significantly higher than it is among young people in the general population.7 1 Emerson, E. and others, ‘People with learning disabilities in England 2011’ (Department of Health, 2012) 2. 2 McManus, S. and others (eds), Mental Health and Wellbeing in England: Adult Psychiatric Morbidity Survey 2014 (NHS Digital, 2016) 44. 3 Office for National Statistics, Personal Well-being in the UK: 2015–2016 (Statistical Bulletin, ONS, 2016) 14. 4 Green, H. and others, Mental Health of Children and Young People in Great Britain, 2004: Summary Report (National Statistics, 2005) 8. 5 I CAN, Speech, Language and Communication in Secondary Aged Pupils (I CAN Talk Series, Issue 10, 2011) 7. 6 See Rossetti, P., Dinisman, T. and Moroz, A., Insight Report: An Easy Target? Risk Factors Affecting Victimisation Rates for Violent Crime and Theft (Victim Support, 2016) 4. 7 For example, 5–7 per cent of the general population suffer from communication disorders versus 60–90 per cent of the offending population and 0.6–1.2 per cent of the general population suffer from autism, compared to 12 per cent of the offending population. See Hughes, N. and others, Nobody Made the Connection: The Prevalence of Neurodisability in Young People who Offend (Children’s Commissioner Report,

DOI: 10.4324/9781003143321-6

84 Fairclough Furthermore, Brooker et al. found that the percentage of the probation population in Lincolnshire with a current mental illness is 39 per cent.8 In addition, a survey conducted in 2012 found that 36 per cent of surveyed prisoners had a disability and/or mental health problem.9 Jacobson et al. observed that ‘defendants … struggle on those occasions when they give evidence’ due to the ‘obvious educational and intellectual disparity between prosecution counsel and the defendant’.10 Louck’s review of the literature surrounding defendant vulnerability highlighted that many suspects/defendants/offenders suffer from learning disabilities and/or difficulties, although there is no consensus as to the exact numbers.11 This may, in part, be due to the fact that the issues facing defendants can be multiple and complex. For example, Jacobson and Talbot identified that many individuals appearing before the courts ‘do not have a single or clearly delineated form of intellectual or psychological difficulty’ and instead that ‘mental illness and learning disability (or learning difficulty) may co-exist’.12 Furthermore, Lord Bradley noted that some have a ‘dual diagnosis’ where mental health problems combine with drug and/or alcohol problems.13 Often, child defendants are also ‘doubly vulnerable’14 due to a combination of their young age and other mental, intellectual, and emotional problems from which they may suffer.15

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2012) 23. See also Hughes, N., ‘Understanding the influence of neurodevelopmental disorders on offending: Utilizing developmental psychology in biosocial criminology’ (2015) 28(1) A Critical Journal of Crime, Law and Society 39. Brooker et al. also found that almost 50 per cent had past/lifetime mental illnesses, see Brooker, B. and others, An Investigation into the Prevalence of Mental Health Disorder and Patterns of Health Service Access in a Probation Area (Criminal Justice and Health Research Group, 2011) 39–41. Cunliffe, C. and others, Estimating the Prevalence of Disability Amongst Prisoners: Results from the Surveying Prisoner Crime Reduction (SPCR) Survey (Ministry of Justice, 2012) 141. For a summary of findings see Thomson, T., ‘Disability among prisoners’ (2012) 59(3) Probation Journal 282. Jacobson, J., Hunter, G. and Kirby, A., Structured Mayhem: Personal Experiences of the Crown Court (Criminal Justice Alliance, 2015) 19. See Loucks, N., No One Knows: Offenders with Learning Difficulties and Learning Disabilities – a Review of Prevalence and Associated Needs (Prison Reform Trust, 2007). See also Talbot, T., Fair Access to Justice? Support for Vulnerable Defendants in the Criminal Courts (Prison Reform Trust, 2012). Jacobson, J. and Talbot, J., Vulnerable Defendants and the Criminal Courts: A Review of Provision for Adults and Children (Prison Reform Trust, 2009) 7. Lord Bradley, The Bradley Report: Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System (Department of Health, 2009) 21. According to Offender Health Network Research, 78 per cent of the sample with a severe enduring mental illness had a dual diagnosis, see Shaw, J. and others, A National Evaluation of Prison Mental Health In-Reach Services (Offender Health Network Research, 2009) 120. Jacobson and Talbot (n 12) 37. See also Wigzell, A., Kirby, A. and Jacobson, J., The Youth Proceedings Advocacy Review: Final Report (Institute for Criminal Policy Research, 2015) 4–5 for a summary of research findings on the prevalence of mental health issues/learning disabilities in children in custody.

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The treatment of the vulnerable in court matters. Honourable Justice Green stated that ‘how the courts treat those who are exposed and weak is a barometer of our moral worth as a society’.16 This chapter explores the adaptations that are made for vulnerable witnesses and defendants – in the form of special measures – and considers the adequacy of this criminal justice response to vulnerability. In other words, it asks whether the current provision of special measures sufficiently protects the vulnerable within the adversarial system and ensures that it is evidence of the best quality that forms the basis of criminal verdicts. The chapter also reflects on the delivery of justice in the Covid-19 context, and the specific issues that may arise in virtual and otherwise altered trials with regard to the vulnerable. The focus is on trials in the Crown Court in England and Wales, though much of the discussion is equally applicable in the magistrates’ court setting. Many of the issues are also applicable in Northern Ireland where a near identical special measures regime operates.17

Special measures: The what, who, and why Typically, witnesses give evidence orally, in person in the courtroom, in the presence of the accused at the trial. Similarly, if a defendant chooses to testify, they too will do so in the courtroom in front of the jury, advocates, judge, and members of public and press in the public gallery. This is in line with the adversarial tradition in England and Wales, which places significant importance on oral evidence. We refer to this as the principle of orality. Adversarilism subscribes to the view that evidence given in these conditions, and that is subject to testing through cross-examination, is likely to reveal inconsistencies, inaccuracies, and deliberate mistruths from witnesses, and thus help to deliver factually accurate verdicts.18 Special measures are adaptations to this traditional way in which witnesses testify in criminal trials. The adjustments they can provide include giving evidence from behind a screen out of the sight of the dock and public gallery, the closure of the court to the public while a witness testifies, and/or the removal of official court dress (wigs and gowns). They can also enable testimony to be given by live link from a different room in the court building (but outside of the courtroom itself), for evidence to be pre-recorded and played at trial in lieu of examination-in-chief and/ or cross-examination, and for the assistance of a communication specialist called an intermediary or other suitable communication aids. This range of special measures is contained in the Youth Justice and Criminal Evidence Act (YJCEA) 1999.19 16 Quoted in Wheatcroft, J., ‘Witness assistance and familiarisation in England and Wales: The right to challenge’ (2017) 21(1/2) International Journal of Evidence and Proof 158, 158. 17 See Criminal Evidence (Northern Ireland) Order 1999. The provision in Scotland differs more significantly, see Criminal Procedure (Scotland) Act 2004 and discussion in Fairclough, S., Special Measures Literature Review (Office for Victims’ Commissioner, 2020) 8–10. 18 Roberts, P. and Zuckerman, A., Criminal Evidence, 2nd edn (Oxford University Press, 2010) 51. 19 YJCEA s 23–30.

86 Fairclough The YJCEA makes these special measures available to witnesses who are ‘vulnerable’ or ‘intimidated’. Child witnesses (under 18) are automatically vulnerable and thus eligible for special measures support.20 Vulnerable adult witnesses are those who have a mental or physical disability or disorder, or ‘a significant impairment of intelligence or social functioning’21 that is likely to diminish the quality of their evidence.22 The Act defines evidence quality in terms of its ‘completeness, coherence and accuracy’.23 Intimidated witnesses are those whose ‘fear or distress … in connection with testifying in the proceedings’ risks diminishing the quality of their evidence.24 Possible reasons for this include the nature of the proceedings and the alleged offence, the age of the witness, the ethnic origins of the witness, their religious beliefs or political views, or any behaviour towards the witness on part of the accused or their supporters.25 Intimidated witnesses also include complainants of sexual offences, who are automatically eligible for support with no additional consideration of the likely effects of this status on the quality of their evidence.26 The introduction of these measures followed growing concern for the treatment of vulnerable witnesses, and particularly children. Psychological research and the anecdotal experiences of advocates, vulnerable witnesses, and their supporters combined to make a compelling case for the adaptation of criminal trial proceedings to support the vulnerable to give evidence.27 The traditional procedures for securing witness testimony were not conducive to accuracy. This was due to a combination of the delays between the alleged incident and the eventual testimony and the stressful and intimidating courtroom environment in which evidence is usually given.28 This rendered many vulnerable people incompetent as witnesses, due to concerns about the reliability of their evidence, and thus saw them excluded from the process entirely. For those who were able to testify, the courts often treated their evidence with scepticism, warning the jury of the dangers of convicting on the basis of uncorroborated and unsworn evidence from a vulnerable individual.29 This posed significant barriers to securing convictions of those who had allegedly victimised vulnerable individuals. In addition to this desire to facilitate evidence of good quality from more witnesses, there were concerns about the humaneness of the criminal justice process for vulnerable individuals. The Pigot and Speaking Up for Justice Reports, which preceded the enactment of special measures legislation, voiced concerns about the 20 21 22 23 24 25 26 27

YJCEA, s 16(1)(a). YJCEA, s 16(2). YJCEA, s 16(1)(b). YJCEA, s 16(5). YJCEA, s 17(1). YJCEA, s 17(2). YJCEA, s 17(4). See, for example Spencer, J. and Lamb, M. (eds), Children and Cross-Examination: Time to Change the Rules? (Hart, 2012). 28 Ellison, L., The Adversarial Trial and The Vulnerable Witness (Oxford University Press, 2002) 12–27. 29 See Spencer and Lamb (n 27).

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treatment of children and other vulnerable adults in the system. Parliamentarians echoed these concerns in the debates around special measures, which centred largely on the ordeal of testifying for children and other vulnerable individuals, the emotional trauma the court process inflicted, and resulting concerns for their welfare.31 Under the YJCEA, ‘vulnerable and intimidated witnesses’ include witnesses for the prosecution, including the complainant and witnesses for the defence, but not the accused. The Act thus excludes defendants who choose to testify in their defence from eligibility for the full special measures scheme. The working group responsible for the Speaking Up for Justice Report outlined the threefold basis for this exclusion.32 First, pre-trial procedure (such as the provision of appropriate adults in the police station) already protects vulnerable suspects. Second, safeguards already exist for defendants at trial such as their right to legal representation and non-compellability as witnesses. Third, they argued that special measures are designed to protect alleged victims and witnesses from the accused and so would not be beneficial to the accused themselves.33 These reasons, neither individually nor collectively, amount to a convincing justification for the exclusion of the accused from the full statutory scheme.34 In short, reason one – that recognises the existence of pre-trial safeguards for vulnerable suspects – instead provides good reason to continue to support these vulnerable individuals at the trial stage. Reason two – the existence of safeguards such as legal representation and non-compellability for the accused at trial – does not address issues of vulnerability that may require a change to the environment in which a vulnerable defendant gives evidence or a need for additional and specialist communication support. Nor does it acknowledge the fact that a defendant who does not testify is vulnerable to the jury drawing adverse inferences from their silence35 and, in these circumstances, is denied the opportunity to effectively participate in their trial as a witness. Reason three – that special measures are designed to protect witnesses – overlooks the benefits of communication support and a reduced-stimuli environment such as the live link room from which to testify for vulnerable defendants.36 30 See Lord Thomas Pigot, Report of the Advisory Group on Video Evidence (Home Office, 1989) and Home Office, Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, 1998). See also Fairclough, S., ‘The lost leg of the Youth Justice and Criminal Evidence Act (1999): Special measures and humane treatment’ (2021) Oxford Journal of Legal Studies (online first). 31 See Fairclough (n 30). 32 Home Office (n 30) 3.28. 33 ibid. 34 However, the use of pre-recorded evidence for the accused is unlikely to work in practice, since if they testify it is often in response to the prosecution case. Exclusion from the provisions for pre-recording (s 27 and s 28) is thus justified. This is discussed in R v SH [2003] EWCA Crim 1208 and R v Camberwell Green Youth Court [2005] UKHL 4. 35 Criminal Justice and Public Order Act 1994, s 35(3). 36 See Fairclough, S., ‘Speaking up for injustice: Reconsidering the provision of special measures through the lens of equality’ (2018) Criminal Law Review 4, 9–16 for a full discussion and critique of each of these reasons.

88 Fairclough The exclusion of vulnerable defendants from the YJCEA scheme sparked concern among academics and the legal profession about its effect on their Article 6 rights to a fair trial. Burton et al. ‘anticipated that the exclusion of defendants from a special measures regime might contravene the guarantees of a fair trial in Article 6’.37 Doak suggested that the exclusion of the accused from special measures was, and would remain ‘a contentious issue, having already been subject to an array of criticism’.38 Lord Justice Auld highlighted, in his Review of the Criminal Courts, that the ‘lack of corresponding provision … [of special measures to defendants was] a disparity that concerns many judges’.39 Evidence of this became apparent in the appellate courts, with concerns about equality of arms between vulnerable complainants (using special measures) and vulnerable defendants (denied special measures) coming to the fore.40 Further concerns centred on the ability of vulnerable defendants to participate effectively in the proceedings in the absence of special measures support.41 What followed was a gradual and ad hoc expansion of some special measures provisions to vulnerable defendants in both legislation and common law.42 Vulnerable defendants can now give evidence by live link,43 from behind a screen,44 or with the assistance of an intermediary.45 They can also use communication aids,46 and the court can remove wigs and gowns and close the public gallery for a defendant’s testimony.47 The key difference where the accused is concerned relates to the eligibility criteria. The definition of vulnerability – and the availability of special measures as a result – is notably more restrictive for the accused when compared to that for all other witnesses in the trial. Taking the live link provision as an example, child defendants are not automatically eligible for its use in the way 37 Burton, B., Evans, R. and Sanders, A., ‘Protecting children in criminal proceedings: Parity for child witnesses and child defendants’ (2006) 18(3) Child and Family Law Quarterly 397, 397. 38 Doak, J., ‘Child witnesses: Do special measures directions prejudice the accused’s right to a fair hearing? – R v Camberwell Green Youth Court, ex p. D; R v Camberwell Youth Court, ex p. G’ (2005) 9 International Journal of Evidence and Proof 291, 295. 39 Sir Robin Auld, Review of the Criminal Courts of England and Wales (Ministry of Justice, 2001) [126]. 40 See R (on the application of DPP) v Redbridge Youth Court [2001] EWHC Admin 209; R v C (2001) EWCA Crim 1054; R v Camberwell Green Youth Court [2005] UKHL 4. See also Burton et al. (n 37) 398. 41 T v United Kingdom (1999) 30 EHHR 121; SC v UK (2005) 40 EHHR 10. 42 For a full discussion of the nature of these developments see Fairclough, S., ‘The consequences of unenthusiastic criminal justice reform: A special measures case study’ (2021) 21(2) Criminology and Criminal Justice 151. 43 YJCEA s 33A, inserted by Police and Justice Act 2006, s 47. 44 R v Waltham Forest Youth Court [2004] EWHC 715 (Admin). 45 YJCEA, s 33BA enacted via Coroners and Justice Act 2009, s 104 but still not in force. Common law authority from C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin). 46 As per Criminal Procedure (Amendment No 2) Rules 2017, Part 3: Case Management, CPR 3.9(3)(b). 47 Criminal Practice Direction 3G Vulnerable Defendants

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child witnesses are. Instead, their level of intellectual ability or social functioning must compromise their ability to participate in the proceedings as a witness.48 Adult defendants with physical disabilities or disorders are not catered for in the YJCEA, and nor is there any provision for defendants in fear or distress in connection with testifying in the proceedings. Furthermore, adult defendants who have a mental disorder or significant impairment of intelligence and social function must be unable to participate effectively in the proceedings as a witness in order to secure live link support.49 This is a much more onerous hurdle to that for adult witnesses, for whom there need only be a risk that their evidence quality will diminish.50 Having now established what special measures are, to whom they are available, and the reasons for their introduction (and eventual expansion to defendants) this chapter turns to consider whether the current provision goes far enough in protecting the vulnerable and securing evidence of the best quality.

Do special measures go far enough? Outstanding concerns The introduction of special measures to vulnerable and intimidated witnesses is largely cause for celebration. The perceptions of those working within the criminal justice system and from witnesses themselves are that special measures are effective at assisting vulnerable complainants and witnesses to give their best evidence.51 This said, some issues with the provision, both in law and practice, remain. This section explores some of these, including the conceptualisation of vulnerability within the YJCEA, the still inferior provision of special measures to the accused, and the use of special measures in practice. The final section of this chapter then considers the current issues that vulnerable witnesses and defendants face in light of the increase in virtual justice that Covid-19 has propelled, and how well (if at all) special measures equip us to deal with them. (Instrumental) conceptualisation of vulnerability For a witness or defendant to be eligible for special measures support, they must first meet the statutory definition of vulnerable or intimidated. This means that they should fit into one of the categories contained within the Act; for example have a mental health disorder, learning disability, be under 18, have a physical disorder, or be in fear or distress in connection with testifying in the proceedings. Aside from for child witnesses and complainants of sexual offences, the judge must then decide that the quality of the witness’ evidence is at risk (or that the accused is unable or has compromised ability to participate effectively) as a result of their 48 YJCEA, s 33A(4). 49 YJCEA, s 33A(5). 50 This is discussed in Fairclough, S., ‘“It doesn’t happen … and I’ve never thought it was necessary for it to happen”: Barriers to vulnerable defendants giving evidence by live link in Crown Court trials’ (2017) 21(3) International Journal of Evidence and Proof 209, 211. 51 For a full discussion of the evidence here, see Fairclough (n 17) 22–26.

90 Fairclough vulnerable or intimidated status. Finally, the judge must view special measures use as a viable solution to this that will improve the quality of the witness or defendant’s evidence. This three-stage test contained in the YJCEA can be criticised on two grounds: first for its potential over- and under-inclusivity and second for its instrumental basis. Fineman criticises fixed vulnerability categories as ‘both over- and under-inclusive’.52 In the special measures’ context, this means that the set categories of vulnerable or intimidated groups in the YJCEA may exclude some individuals who do not meet the specific thresholds or definitions – and thus be under-inclusive – or may include individuals who are not in fact vulnerable in this context – and so are over-inclusive. The fact that the ‘belonging’ to a vulnerable group is only the first of a three-stage test for special measures eligibility offers a degree of protection from over-inclusiveness. This is because the judge must then decide whether the evidence quality is at risk,53 which can mean that someone is ‘vulnerable’ as per the categories listed but still not eligible for special measures because their vulnerability is not thought to affect their ability to give evidence that is complete, coherent, and accurate. This should safeguard against broadly construed categories of vulnerability capturing individuals who, in the context of giving evidence in the criminal trial, do not need additional assistance. The issue for consideration here, then, is the potential under-inclusiveness of the vulnerability groups and the overall definition of vulnerability in the Act. We can see several quick examples that provide evidence of this fact. The pending introduction of an automatic entitlement of special measures for complainants in domestic abuse cases suggests that the current categories of vulnerable and intimidated witnesses are not sufficient to protect these particular individuals.54 Ellison and Munro criticise the current provision of special measures for inadequately protecting and assisting witnesses with PTSD.55 As we know, the Act excludes the accused from the general definition of vulnerable and intimidated witnesses, despite their ability (and legal right) to give evidence as a witness in their defence. Even now, the late insertions into the Act for defendants and the developments in the case law still provide a definition of vulnerability that is much more limited in scope.56 The available empirical research on the conceptualisation of vulnerability also suggests that the YJCEA is under-inclusive. Burton et al found that 45 per cent of witnesses surveyed, who fell outside of witness categories with automatic entitlement to special measures (i.e. children and complainants of sexual offences), self-identified as vulnerable or intimidated, but only 24 per cent actually met the statutory criteria for 52 Fineman, F., ‘The vulnerable subject: Anchoring equality in the human condition’ (2008) 20 Yale Journal of Law and Feminism 1, 4. 53 Apart from children and complainants in sexual offence trials. However, they can still opt-out of special measures if the quality of their evidence is not at risk. I discuss this aspect further in Fairclough, S., ‘A more inclusive approach to vulnerability in criminal trials’ (under review). 54 Domestic Abuse Bill 2020. 55 Ellison, L. and Munro, V., ‘Taking trauma seriously: Critical reflections on the Criminal Justice process’ (2017) 21(3) International Journal of Evidence and Proof 183. 56 As discussed in the previous section there is no eligibility for defendants with physical disabilities or disorders, or recognition of intimidated defendants.

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such. This strongly suggests that the lay and legal understanding of vulnerability in this context do not marry up, and instead that individuals who would self-identify as vulnerable are not legally entitled to special measures support. The other issue with the YJCEA definition of vulnerability relates to its instrumental construction. The second-limb of the test requires the judge to consider that the quality of the witness’ evidence, or the defendant’s ability to give it at all, is at risk. This means that a witness or defendant who is vulnerable or intimidated – because they ‘fit into’ one of the categories listed – can only secure special measures support to testify if there are instrumental concerns about their ability to do so. While this captures one of the concerns that led to the introduction of the YJCEA – to improve evidence quality – it omits eligibility on the basis that to testify in adversarial proceedings, as a vulnerable individual, is potentially highly distressing, traumatic, and sometimes even inhumane. Inhumane treatment is treatment that causes heightened suffering to that which is necessary or legitimate to pursue the legitimate aim of accurate fact-finding.58 The absence of this reflected in the eligibility criteria for special measures thus leaves a raft of individuals potentially without protection from the difficulties associated with giving oral evidence in the adversarial trial if there are no concerns about the quality of their evidence. This paints a concerning picture. We know that the enactment of special measures came in recognition of the fact that the adversarial process was very difficult for vulnerable individuals to navigate, and resulting concerns for the inhumane treatment that such witnesses suffered.59 The principle of humane treatment requires that individuals in the system are treated as: [T]hinking, feeling, human subjects of official concern and respect, who are entitled to be given the opportunity to play an active part in procedures with a direct and possibly catastrophic impact on their welfare, rather than as objects of state control to be manipulated for the greater good… .60 There is undoubtedly a relationship between the goals of humane treatment and improving evidence quality. Improving a witness or defendant’s ability to give evidence automatically enhances the humaneness of their treatment, and, indeed, improving a witness or defendant’s treatment is a method through which evidence quality is improved.61 However, the failure to include humane treatment as a distinct criterion for eligibility risks undermining the legitimacy of the process. Instead, procedures ought to aspire to treat individuals fairly irrespective of any instrumental advantage that might ensue.62 57 Burton, M. et al., ‘Vulnerable and intimidated witnesses and the adversarial process in England and Wales’ (2007) 11(1) International Journal of Evidence and Proof 1. 58 Fairclough (n 30). 59 ibid. 60 See Roberts and Zuckerman (n 18) 21. 61 Fairclough (n 30). 62 See Meyerson, D. and Mackenzie, C., ‘Procedural justice and the law’ (2018) 13 Philosophy Compass 1.

92 Fairclough Inferior provision to the accused The still inferior provision of special measures to the accused presents several issues. As noted above, it is evidence of the under-inclusive nature of the vulnerability definitions in operation for the accused in the criminal trial. This means that the vulnerable defendant is especially at risk of inhumane treatment in the trial process, should they choose to give evidence. It also undermines the factual accuracy of the trial as a whole. This is for several reasons. First, some vulnerable defendants may give evidence unaided, but do so badly. This risks them making a bad impression on the jury, which may unduly affect their decision as to the defendant’s culpability. It may also risk them making a bad impression on the judge, which could affect sentencing in the event of a guilty verdict. The inferior provision of special measures to defendants also means that some defendants will not give evidence at all, because they do not feel capable to do so unassisted. Jurors may then draw adverse inferences from their silence that can legitimately contribute to a finding of guilt.63 This, again, can undermine the factual accuracy of the verdict, both because we have lost access to important information the accused may have, and because the jury may draw adverse inferences as a result. Finally, and perhaps most significantly, some vulnerable defendants may even plead guilty because of the lack of support available at trial. This is problematic in terms of factual accuracy if the defendant is not, in fact, guilty. However, it remains an issue irrespective of the defendant’s factual guilt. A defendant, whether vulnerable or not, guilty or not, should have a real opportunity to have the State prove their guilt beyond reasonable doubt.64 The inferior provision of special measures to vulnerable defendants also presents real dangers of violating equality legislation, such as the Equalities Act 2010. The Act protects a range of characteristics, including age65 and disability,66 and requires that ‘reasonable adjustments’ are made to existing processes to accommodate those who would otherwise be put ‘at a substantial disadvantage … in comparison with persons who are not disabled’.67The Judicial College Equal Treatment Bench Book cites the Equalities Act 2010 when noting the need to adapt normal trial procedures to facilitate the effective participation of all involved.68 Similar adjustments are also required under the UN Convention on the Rights of Persons with Disabilities 2006, which states that we should ensure ‘effective access to justice for persons with disabilities … through the provision of procedural and age-appropriate accommodations, in order to facilitate their role as … witnesses’.69 The more limited provision of special 63 Criminal Justice and Public Order Act 1994, s 35(3), unless the judge rules it would be undesirable to hear from the defendant directly as per s 35(1)(b). See discussion in Fairclough (n 36) for the restrictive interpretation and rare use of this provision p. 13–15. 64 This is also discussed in Fairclough (n 36) 5. 65 Equalities Act 2010, s 5. 66 Equalities Act 2010, s 6. 67 Equalities Act 2010, s 20(5). 68 Hallet, L.J., Equal Treatment Bench Book, Children and Vulnerable Adults (Judicial College, 2013, with 2015 amendments) 5–2, [35]. 69 UN Convention on the Rights of Persons with Disabilities 2006, art 13(1).

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measures to defendants, therefore, risks non-compliance with the UN Convention and the Equalities Act when vulnerable defendants are left disadvantaged vis-à-vis their non-vulnerable counterparts.70 Other issues arise with the inferior provision of special measures to the accused that relate to compliance with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). The two of particular relevance here fall within the remit of Article 6(1): the right to participate effectively in the proceedings and the principle of equality of arms. The Criminal Procedure Rules tell us that the court is required to take ‘every reasonable step’ to facilitate the participation of all people, including the defendant.71 The Criminal Practice Directions expand on this to include ‘enabling a … defendant to give their best evidence’.72 If the defendant wants to give evidence, therefore, they should be able to do so, regardless of the absence of a legal requirement to do so. The European Court of Human Rights (ECtHR) has rules that the principle of equality of arms requires that ‘each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent’.73 This means that ‘both parties should be treated in a manner ensuring that they have a procedurally equal position to make their case’.74 Adversarial safeguards such as the provision of a legal representative to the accused and the right to silence are important ways in which we redress the structural imbalance between the State and defendant.75 However, this chapter argues that a concern for equality of arms should additionally encompass measures that enable witnesses for both parties to give evidence effectively. Indeed, this very point formed the basis of multiple cases heard in the appellate courts that led to the eventual expansion of special measures to the accused.76 While the situation has improved, the continued disparate provision of special measures to vulnerable defendants vis-à-vis vulnerable witnesses continues to arouse concern among the judiciary and academics.77 Special measures in practice The conceptualisation of vulnerability and the inferior provision of special measures to the accused mean that there is more limited availability of special measures 70 71 72 73 74

See further Fairclough (n 36) 8–9. Criminal Procedure (Amendment No 2) Rules 2017 CrimPR 3.9(3)(b). Criminal Practice Directions (October 2015 edition, amended April 2016) CPD 3D.2. Salov v Ukraine App no 65518/01 (ECHR 9 September 2005) [87]. Negri, S., ‘The principle of “Equality of Arms” and the evolving law of international criminal procedure’ (2005) 5 International Criminal Law Review 513, 513. 75 See Roberts and Zuckerman (n 18) 58–62. 76 R (on the application of DPP) v Redbridge Youth Court [2001] EWHC Admin 209; R v C (2001) EWCA Crim 1054; R v Waltham Forest Youth Court [2004] EWHC 715 (Admin); R v Camberwell Green Youth Court [2005] UKHL 4. 77 R (on the application of OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin); Fairclough (n 36); Hoyano, L. and Rafferty, A., ‘Rationing defence intermediaries under the April 2016 Criminal Practice Direction’ (2017) Criminal Law Review 93.

94 Fairclough in law than is always desirable. The scope of the legal provision has an obvious effect on the availability of special measures in practice. This section leaves aside the deficiencies in the legal provision of special measures, to turn our attention to the use of special measures in practice by witnesses who are eligible under the current legal regime. At times, the discussion separates defendant witnesses from non-defendant witnesses, and prosecution witnesses from defence witnesses, for reasons that will become apparent. A common issue across each of these groups centres on the ability of those working within the system to identify a witness or defendant’s vulnerability in the first instance. The initial identification of vulnerability or intimidation is the first step to setting the special measures process in motion, considering the available support, and making applications to the judge for their use. The available (albeit limited) evidence suggests that, while the police, CPS, and advocates are improving in this regard, they often still lack the specific expertise, training, and information about witnesses that they would need to identify vulnerability more effectively.78 This is particularly apparent with regard to witnesses for the defence, including the accused.79 For defendant witnesses, an additional barrier to the more frequent use of the already limited legal provision of special measures centres on the awareness of advocates as to its existence. The available evidence suggests that some defence lawyers are not aware of a vulnerable defendant’s legal entitlement to special measures.80 Further, even where they are aware of the legal provision, some defence advocates display a lack of awareness as to how provisions such as the live link or screens would be beneficial to a defendant who has sat in the courtroom throughout the proceedings. This may be a product of the way in which special measures were essentially ‘marketed’ as tools for the prosecution and enacted with the aims of improving the experience and quality of evidence from prosecution witnesses in particular.81 As a result, advocates (and judges) may routinely overlook the potential benefits for the accused. The same is true of defence witnesses, who also appear to use special measures far less frequently than prosecution witnesses, despite their identical entitlement in law.82 When we view special measures such as screens and live link as there to shield the witness from the accused, their utility for defence witnesses seems futile. This omits consideration of the broader benefits of these measures, which reduce the stress associated with testifying through, among other things, a reduction in the number of people visible to the witness. Another factor that plays into the use of live link is the tactical concern about the impact of the resulting evidence on the jury. Multiple studies suggest that 78 See Fairclough (n 17) 30–34. 79 Fairclough, S., ‘Using Hawkins’ surround, field and frames concepts to understand the complexities of special measures decision-making in Crown Court trials’ (2018) 45(3) Journal of Law and Society 457. 80 ibid. 476. 81 ibid. 483–484. 82 ibid. 466.

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barristers prefer that oral evidence is given directly, in court, in the presence of the jury, where it is typically more raw, emotive, and memorable.83 In some cases, this has led to an avoidance of the use of live link in favour of screens or the use of no special measure at all. With regard to the provision of intermediaries, resource issues arguably limit their availability for witnesses,84 but particularly for the accused who is not eligible via the statutory Witness Intermediary Scheme.85 Further issues relate to the quality of the facilities and technology available to support the use of special measures. Technology-related problems appear to plague the use of live link and cause significant delay in many cases.86 The quality of pre-recorded evidence and live link feeds sometimes affects the ability of the court to see and hear the witness clearly throughout their evidence.87 Furthermore, the size of the live link room is often not sufficient to accommodate the other support a witness might need (for example an intermediary) 88 and the placement of screens or live link cameras does not always shield the witness from the dock and public gallery.89 While this section gives a flavour of the issues that affect the use and effectiveness of special measures outside of the legal provision itself, it should still be set against the backdrop of broad support for special measures. The use of special measures has undoubtedly enabled us to collect evidence – and evidence of much better quality – from witnesses who would otherwise have been unable to testify in the traditional adversarial trial absent adaptation. This is the unanimous view of those working within the system including advocates, court staff, and intermediaries, as well as witnesses themselves.

83 ibid. 471; Temkin, J., ‘Prosecuting and defending rape: Perspectives from the Bar’ (2000) 27 Journal of Law and Society 219, 237; Roberts, P. et al., ‘Monitoring success, accounting for failure: The outcome of prosecutors’ applications for special measures directions under the Youth Justice and Criminal Evidence Act 1999’ (2005) 9 International Journal of Evidence and Proof 269, 285–6; Burton, M. et al., ‘Protecting children in criminal proceedings: Parity for child witnesses and defendants’ (2006) 18 Child and Family Law Quarterly 397, 404. 84 Victims’ Commissioner, A Voice for the Voiceless: The Victims’ Commissioner’s Review into the Provision of Registered Intermediaries for Children and Vulnerable Victims and Witnesses (Ministry of Justice, 2018). 85 See Hoyano, L. and Rafferty, A., ‘Rationing defence intermediaries under the April 2016 Criminal Practice Direction’ (2017) Criminal Law Review 93. 86 Plotnikoff, J. and Woolfson, R., Falling Short? A Snapshot of Young Witness Policy and Practice (NSPCC, 2019) 35; Smith, O., ‘The practicalities of English and Welsh rape trials: Observations and avenues for improvement’ (2018) 18(3) Criminology and Criminal Justice 332, 388. 87 Plotnikoff and Woolfson (n 86) 114 88 Majeed-Ariss, R. et al., ‘“Could do better”: Report on the use of special measures in sexual offence cases’ (2019) Criminology and Criminal Justice (online first) 14; Smith (n 86) 339. 89 Plotnikoff and Woolfson (n 86) 53. All of these issues are discussed further in Fairclough (n 17).

96 Fairclough

The impact of Covid-19 on criminal trials The Covid-19 pandemic has added a new dimension to catering for the vulnerable. At the time of writing, it is 12 months since we entered the first national lockdown in March 2020. Between March and late-May 2020, all Crown Court trials were suspended entirely, adding to the (already significant) backlog of cases awaiting trial.90 Since then, some Crown Courts have gradually reopened with measures introduced such as Perspex screens between jurors to stop the spread of Coronavirus. This came with the eventual opening of Nightingale Courts – venues such as theatres and hotels adapted to aid social distancing in Crown Court trials. In addition to this, we have seen a pivot to the use of remote hearings for first appearances in the court and for meetings between defendants and their solicitor/ barrister. The pausing of criminal trials – and resulting increase in delays – has real life effects on those involved.91 The timely conclusion of criminal trials enables victims (and witnesses) to seek therapy and to move on with their lives. Delays prolong the time in which all lay participants, including the accused, are in limbo. For defendants, the prospect of a criminal conviction hanging over them affects their job and life prospects. This is especially so for those who are remanded in custody, and where custody time limits have been extended in response to the delays to hearings.92 Reports indicate that during the pandemic inmates are confined to their cells for 23 hours a day and denied visitation rights to stop the spread of Covid-19.93 It is commendable, therefore, that the criminal justice system has sought to adapt to new ways of working throughout the pandemic. However, there are several points of concern that arise from the adaptations that we have seen that bear particular relation to ‘the vulnerable’. The first area of concern relates to whether virtual justice inhibits defendants’ abilities to participate effectively in the hearings, whether they are able to communicate properly and confidentially with their lawyer before and throughout such hearings, and how well potentially vulnerable defendants are identified and supported. The second is whether the social distancing measures introduced in traditional Crown Court centres affect the assistance of vulnerable individuals on trial. The third is whether and how well equipped Nightingale Courts are to accommodate for vulnerable defendants. Victims’ Commissioner research indicates that magistrates, District Judges, Crown Court Judges, and members of the Witness Service all have concerns about how well vulnerable and intimidated witnesses are looked after in court in the Covid-19 context.94 90 See https://data.justice.gov.uk/courts and https://www.bbc.co.uk/news/ uk-56847285. 91 See for example https://www.bbc.co.uk/news/uk-56092372. 92 Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020. 93 HM Inspectorate of Prisons, What Happens to Prisoners in a Pandemic? (HM Inspectorate of Prisons, 2021). 94 Victims’ Commissioner, Next Steps for Special Measures: A Review of the Provision of Special Measures to Vulnerable and Intimidated Witnesses (OVC, 2021) 44.

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On the issue of virtual hearings, we should first acknowledge that this phenomenon did not solely emerge in response to the pandemic. The court digitisation programme expanded in 2016 with £1.2 billion injection of funds.95 Concerns with its expansion in the pre-pandemic context were already mounting among academics and the legal profession. These related to its impact on access to justice,96 the impact on the perceived legitimacy of the process,97 the defendant’s ability to participate effectively in the proceedings,98 and the adequacy of the support for vulnerable court users.99 The Ministry of Justice’s own pilot study of remote first hearings between the police station and magistrates’ court highlighted several further areas of concern. These related to the physical separation of defendants and their solicitors from the courtroom (and its impact on the CPS and defence advocates’ ability to communicate before and during hearings); the reduced solemnity of the occasion for defendants appearing remotely; the increased rate of guilty pleas and custodial sentences in the pilot compared to traditional courts; and the lower rate of defence representation in the virtual courts.100 Findings from the Equality and Human Rights Commission (EHRC) show that almost all of 100 criminal justice professionals interviewed in England and Wales felt that ‘the use of video hearings does not enable defendants to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and/or neuro-diverse condition’.101 Notwithstanding these concerns, the use of virtual hearings increased significantly in the midst of the unprecedented Coronavirus pandemic.102 A Fair 95 Ministry of Justice, Transforming Our Justice System (Ministry of Justice, 2016). 96 Donoghue, J., ‘The rise of digital justice: Courtroom technology, public participation and access to justice’ (2017) 80(6) Modern Law Review 995. 97 Mulcahy, L. and Rowden, E., The Democratic Courthouse: A Modern History of Design, Due Process, and Dignity (Routledge, 2019); Rowden, E., ‘Distributed courts and legitimacy: What do we lose when we lose the courthouse?’ (2015) 15 Law Culture and the Humanities 263; Rowden, E. and Wallace, A., ‘Remote judging: The impact of video links on the image and role of the judge’ (2018) International Journal of Law in Context 504, 511; Mulcahy, L., Legal Architecture: Justice, Due Process and the Place of Law (Routledge, 2011) 174–178. 98 McKay, C., ‘Video links from prison: Court “Appearance” within carceral space’ (2018) 14(2) Law, Culture and the Humanities 242; Gibbs, P., Defendants on Video – Conveyor Belt Justice or a Revolution in Access? (Transform Justice, 2017). 99 Justice Committee, Second Report of Session 2019, Court and Tribunal reforms, HC 190, para 38. 100 Terry, M., Johnson, S. and Thompson, P., Virtual Court Pilot Outcome Evaluation, Ministry of Justice Research Series 21/10 (Ministry of Justice, 2010) vi. Many of these findings are echoed in Fielding, N., Braun, S., Hieke, G. and Mainwaring, C., Video Enabled Justice Evaluation (Sussex Police and Crime Commissioner, 2020, Final Report Version 12). 101 Equality and Human Rights Commission, Findings and Recommendations. Inclusive Justice: A System Designed for All (EHRC, 2020) 9. 102 https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavir us-outbreak#the-decision-to-use-telephone-and-video-hearings; https://www.gov.uk/ guidance/courts-and-tribunals-data-on-audio-and-video-technology-use-during-corona virus-outbreak.

98 Fairclough Trials report is damning in its appraisal of the impact of the use of virtual hearings in this context. It found that ‘remote hearings are having an adverse effect on defendants’ right to access effective legal assistance, to participate effectively at their own hearing, and to review and challenge information and evidence being presented’.103 The Justice Select Committee Report on the impact of Coronavirus on the courts states that the interests of vulnerable court users must be protected and noted that ‘even the most high-tech kit and strongest wi-fi are no proof against the engagement, comfort and comprehension of those whose computer skills and knowledge of legal process may require a physical hearing if justice is to be delivered to them fairly’.104 Taken together, the pre- and during-pandemic research indicates that the use of remote/virtual hearings is problematic, and particularly so where vulnerable individuals are involved. The use of technology inhibits the initial identification of vulnerable defendants, and negatively affects their ability to communicate effectively and privately with their legal representatives. These are very serious concerns, particularly given that the rules around social distancing, and the pressures the criminal justice system is under, are not likely to disappear overnight. On the effects that social distancing has had on the provision of support to witnesses and defendants appearing in traditional (albeit socially distanced) Crown Court centres, there is very little available research. Victims’ Commissioner research highlights that social distancing requirements have decreased the effectiveness and availability of screens due to changes in courtroom layouts and reflections visible on newly installed Perspex screens.105 It remains unclear how social distancing requirements have affected the provision of intermediaries and other support bodies such as Victim Support, Independent Sexual/Domestic Victims Advisors (ISVAs/IDVAs), etc. It is also unknown as to how the use of live link for vulnerable witnesses/defendants has continued, particularly given what we know about the very small and unventilated rooms from which live-linked evidence is often given. What we do know, is that the provision allowing for video-linked evidence from outside of the court building has been well utilised;106 that pre-recorded cross-examination has been implemented nationally for all vulnerable witnesses;107 and that the Victims’ Commissioner has recommended this go yet further in light of the additional delays to trials resulting from the Covid-19 context.108

103 Fair Trials, Justice under Lockdown: A Survey of the Criminal Justice System in England and Wales between March and May 2020 (Fair Trials, 2020). 104 House of Commons Justice Committee, Coronavirus (COVID-19): The Impact on Courts. Sixth Report of Session 2019–21, HC 519 (July 2020) para 53. 105 ibid. (n 94) 47. 106 ibid. 48. 107 https://www.gov.uk/government/news/new-courtroom-protections-for-vulnerablevictims-available-nationwide. 108 https://www.theguardian.com/law/2021/mar/05/call-vulnerable-victims-give-vi deo-evidence-courts-backlog.

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There is a general absence of research providing any insight into how well Nightingale Courts are able to adapt for vulnerable court users. It seems that special measures are available109 but their effectiveness in this setting and other ‘on the ground’ insights are currently missing.110 We are in desperate need of further research in these areas.

Conclusion This chapter outlines the importance of special measures provisions for vulnerable witnesses and defendants to secure their best quality evidence at trial and protect them from undue harm in the process. This feeds into important principles of criminal evidence and justice such as accurate fact-finding and humane treatment. The chapter shows that the provision and use of special measures is generally something to be celebrated, and has enabled many individuals to give evidence who would have otherwise been unable to do so or would have done so badly. However, this chapter also highlights remaining issues with the current provision of special measures in law and practice, relating to the conceptualisation of vulnerability, the inferior provision to the accused, and the resources and quality of the facilities that are available for use in trials. The chapter concludes with some musings about the unknowns surrounding protecting vulnerability and facilitating participation in criminal trials in the context of the Covid-19 pandemic. There is much that we do not know about how well catered for, if at all, vulnerable individuals are in virtual hearings, socially distanced Crown court centres, and Nightingale venues. It is vital that we undertake research in these areas, sooner rather than later, before ‘emergency’ measures such as those we have seen (including the rapid expansion of virtual hearings) are permanently embedded in the system absent sufficient scrutiny.

109 https://www.judiciary.uk/announcements/the-nightingale-court-at-the-lowry-theatre/. 110 Interestingly, it may be the case that for some vulnerable witnesses and defendants, the move to more neutral buildings such as theatres and hotels, rather than courtrooms that were designed to be intimidating, has actually improved their ability to give good quality evidence in the proceedings. Absent research, however, we have no real idea of the impacts in practice.

7

Caught in the net Police powers of investigation and the risks for autistic individuals Tom Smith

Introduction Recent years have seen a growth in interest in the extent and impact of neurodivergent conditions – such as Autism, Attention Deficit Hyperactivity Disorder (ADHD) and Dyslexia – on the criminal justice system (hereafter, CJS). Whilst practitioners and scholars have been emphasising the importance of managing the needs of neurodivergent individuals1 in the CJS for decades, it is only recently that policy makers have begun to consider this area in a focused manner. In late 2020, the Government announced two significant developments in relation to neurodivergence within the CJS. First, the inclusion in its white paper, ‘A Smarter Approach to Sentencing’,2 of a number of policy objectives focused on neurodivergence in the context of sentencing. Second, acting on one of the objectives of the white paper, the three CJS inspectorates announced a call for evidence regarding neurodivergence at all stages of the CJS – with a report reviewing this published in summer 2021.3 This form of evidence gathering exercise, and the increased attention now being paid to this area, is to be welcomed but is long overdue. Until now, policy makers have undertaken limited exploration of neurodivergence and the CJS – including how police, courts and prisons manage the needs of neurodivergent individuals. This might be partly explained by the size of the topic. Neurodivergence embraces a range of broadly related (and often co-morbid) but distinct conditions of varying complexity; and the CJS is an extensive, overlapping and unwieldy set of institutions and processes. Criminal justice processes can and often do start with the first contact of an individual with a police officer, through to their release into the care of probation post-sentence. This involves various stages of complex and 1 Broadly, individuals whose neurological development is divergent from the typical – though it should be noted there is no universally accepted definition of the term. 2 Ministry of Justice, ‘A smarter approach to sentencing’, CP 292 (2020), https:// www.gov.uk/government/publications/a-smarter-approach-to-sentencing, accessed 16 July 2021. 3 Criminal Justice Joint Inspection, ‘Neurodiversity in the Criminal Justice System: A review of the evidence’ (July 2021), https://www.justiceinspectorates.gov.uk/hmicfrs/p ublications/neurodiversity-in-the-criminal-justice-system/, accessed 21 July 2021.

DOI: 10.4324/9781003143321-7

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challenging processes, multiple agencies, thousands of professionals, and millions of members of the public. In this context, an evidence gathering process is challenging, but also vital. This chapter seeks to provide a focused approach to reviewing current knowledge in this area. It will examine one facet of neurodivergence (autism); in relation to one group of individuals (those suspected, as opposed to formally accused or convicted, of criminal behaviour).4 There has been a considerable amount written about autism, generally, in the criminal justice process, primarily in the disciplines of developmental and forensic psychology. Much of this is empirically based, but there still remains significant scope for further research in this area in the context of England and Wales (hereafter, E&W), specifically with direct consideration of the various powers and procedures that comprise the CJS from a socio-legal perspective. Notwithstanding that a number of academics and practitioners have examined this issue, there has been piecemeal and limited integration of evidence-based change in criminal justice, leading to ‘patchy and inconsistent provision’ for neurodivergent individuals.5 Generally, the CJS remains largely unaffected by many of the academic insights and recommendations that can be identified in the literature; it appears that there continues to be insufficient recognition of the significance of the challenges faced by autistic suspects, defendants and offenders, with ‘serious gaps, failings, and missed opportunities at every stage of the system’ for neurodivergent individuals generally.6 Indeed, whilst it recognises signs of progress, the Government’s 2021 national strategy for autistic individuals implies that much remains to be done to provide autistic individuals with fair and effective access to the CJS.7 This chapter will summarise some of the main themes emerging from the literature in the context of autistic suspects subject to police investigation, and try to connect them directly to some key procedures and powers of the CJS. In doing so, it will consider the significant negative impact on autistic persons drawn into the CJS. This chapter uses the term ‘autism’, which can be understood interchangeably with Autism Spectrum Disorder (ASD) and Autism Spectrum Condition (ASC).8 Autism is a neurodevelopmental disorder (or, from a social model perspective, difference),9 which is typically characterised by impairments in social reciprocal interactions and communication, and restricted, repetitive patterns of interests and 4 5 6 7

In short, individuals at the pre-charge stage. Criminal Justice Joint Inspection (n 3), 10. ibid. HM Government, ‘The national strategy for autistic children, young people and adults: 2021 to 2026’ (July 2021), Chapter 8, https://www.gov.uk/publications/na tional-strategy-for-autistic-children-young-people-and-adults-2021-to-2026, accessed 21 July 2021. 8 It is also noted that different terminology is used by different people, including ‘person with autism’ (the ‘person-first’ construction). 9 For more on the social model of disability, see its originator: Oliver, M., Social Work with Disabled People (Macmillan, 1983). See also Woods, R., ‘Exploring how the social model of disability can be re-invigorated for autism: In response to Jonathan Levitt’ (2017) 32(7) Disability & Society.

102 Smith behaviour.10 It also commonly involves a variety of sensory processing differences, such as hyper-reactivity (increased sensitivity) and hypo-reactivity (reduced sensitivity) to particular sensory stimuli.11 Autistic individuals are no more likely to offend than non-autistic individuals, and are in fact more likely to become victims of crime.12 However, the nature of the CJS in E&W creates significant challenges – and possible disadvantages – for autistic individuals suspected, accused or convicted of crime. Various features of the different stages of the CJS present problems – for example, the general emphasis on orality and personal interaction; the use of physical restraint; the importance of judgment of individuals based on behaviour and communication (often understood from a neurotypical perspective); and restrictive, alien environments and routines which can place significant sensory demands on individuals. This chapter explores the challenges autistic individuals face at the investigation stage – that is, when the police can and do exercise their power to gather and examine evidence of alleged criminal behaviour. There are a number of aspects of police investigation of crime which can cause difficulties for autistic suspects. This chapter will broadly focus on two areas – specifically, the use of ‘street’ police powers and the use of police custody. What emerges are two main issues: first, the increased potential for investigatory powers being used against autistic individuals, both due to the flawed framework governing police powers and a general failure to appreciate that behaviour and communication of autistic individuals may not be suspicious or criminal at all; and second, the increased likelihood that when interactions are initiated between an officer and an autistic individual, such interactions may cause the latter to experience distress and confusion, and that further use of investigatory power (and even criminalisation) may become more likely. This can ultimately lead to autistic individuals becoming ‘entrenched as a suspect’.13

‘Street’ policing and autistic individuals Whilst there are a variety of powers the police can exercise in ‘street’ policing – that is, policing in public spaces – two important ones in the current context are Stop and Search (hereafter, S&S) and arrest. The primary versions of these powers are discretionary and are granted to officers under the Police and Criminal Evidence Act (PACE) 1984.14 Whilst they differ in scope and purpose, S&S and arrest are, in 10 Allely, C. and Cooper, P., ‘Jurors’ and judges’ evaluation of defendants with autism and the impact on sentencing: A systematic Preferred Reporting Items for Systematic Reviews and Meta-analyses (PRISMA) review of Autism Spectrum Disorder in the courtroom’ (2017) 25(1) Journal of Law and Medicine 105. 11 Crane, L., Goddard, L. and Pring, L., ‘Sensory processing in adults with autism spectrum disorders’ (2009) 13(3) Autism. 12 National Autistic Society, ‘Criminal justice’ (2020), https://www.autism.org.uk/a dvice-and-guidance/topics/criminal-justice/criminal-justice, accessed 16 July 2021. 13 Young, R. and Brewer, N., ‘Brief report: Perspective taking deficits, Autism Spectrum Disorder, and allaying police officers’ suspicions about criminal involvement’ (2020) 50(6) Journal of Autism and Developmental Disorders 2234. 14 Sections 1 and 24, respectively.

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essence, a restraint on an individual’s liberty for the purposes of investigating possible criminal activity, restricting (to some extent) the freedom of a suspect to proceed unhindered. S&S must take place in a publicly accessible space,15 and both powers will inevitably involve some level of personal, direct oral dialogue between officer and suspect. Equally, depending on the circumstances, the exercise of either power (particularly arrest) may involve the use of reasonable force by an officer in order to restrain a suspect whilst a search or arrest is conducted.16 The primary legislation includes various safeguards, designed to protect against misuse of these powers. In determining whether to exercise these discretionary powers, officers must generally establish that reasonable grounds for suspicion exist (for arrest, in relation to a criminal offence;17 and for S&S, in relation to possession of a stolen or prohibited item).18 Additionally, for arrest, an officer will need to determine whether it is ‘necessary’ to arrest a suspect. Reasonable suspicion S&S allows an officer to prevent a person or vehicle from preceding, and to require that they surrender to a search (of said vehicle or, generally, an individual’s outer clothing).19 Section 1(3) stipulates that, to exercise this power, an officer must have reasonable grounds for suspecting that they will find one of several items/articles in a vehicle or in the suspect’s possession, connected to criminal behaviour.20 Whilst the power under PACE 1984 is used to execute the vast majority of stops,21 other significant powers exist. Individual police officers do not need to have reasonable suspicion in order to stop a vehicle or person under either Section 60 of the Criminal Justice and Public Order (CJPOA) Act 1994, or Section 47A of the Terrorism Act 2000.22 The power of arrest (under Section 24 of PACE 1984) is wide; generally, an officer may arrest anyone; without a warrant; for any offence.23 Section 24 covers situations where an offence has been 15 16 17 18 19

20 21

22

23

PACE 1984, s.1(1); also see s.1(4). ibid. s.117. ibid. s.24(1) – (3). ibid. s.1(3). Home Office, ‘Code A (Revised): Code of Practice for the exercise by: Police Officers of Statutory Powers of stop and search; Police Officers and Police Staff of requirements to record public encounters’ (2015, TSO), [3.5] – [3.7]. These include stolen property, ‘prohibited articles’ (offensive weapons; articles ‘made or adapted’ and intended for specified criminal behaviour), and blades. In fact, more than half are conducted under the Misuse of Drugs Act 1971, s.23; for counting purposes these are classified as PACE 1984 stops and ‘associated legislation’ (Ministry of Justice, ‘Stop and search statistics data tables: Police powers and procedures year ending 31 March 2020 second edition’ (November 2020), SS.01, https:// www.gov.uk/government/statistics/police-powers-and-procedures-england-and-wa les-year-ending-31-march-2020, accessed 16 July 2021). This effectively allows individual officers to exercise their discretion without objectively justifiable reasons, though both powers must first be generally authorised for use – in a particular geographical area for a defined period – by a senior officer. S.24(1).

104 Smith committed in the past, is being committed in the present, or will be committed in the future; or there is reasonable suspicion of the above.24 Normally, an arrest requires reasonable suspicion of an offence to be lawful, but also covers situations where an officer knows that an offence has been, is being or will be committed and the suspect is guilty, as well as situations where they are not certain but have reasonable grounds for suspicion. Where it is required,25 reasonable suspicion is designed to act as a restraint on police discretion, aiming to prevent arbitrary and unjustified use of their powers, and thereby reduce the risk of misuse. The police cannot (in theory) simply search or arrest someone because they ‘do not like the look of them’ (although evidence suggests that this does happen in practice).26 Reasonable suspicion is a term that is open to interpretation. Officers must have grounds (that is, reasons or justifications) for their suspicion; and those grounds must be reasonable. PACE 1984 itself does not expand on this, but further information is provided by Codes of Practice A and G (hereafter, Codes A and G) in respect of both powers; and, to a lesser extent, case law. For example, paragraph 2.2 of Code A (applicable to S&S) provides a two-part test for reasonable suspicion, requiring that officers form ‘a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search’; and that the suspicion must be reasonable. In short, the subjective suspicion must be have some objective basis, which can be explained ‘by reference to intelligence or information’.27 Importantly, Code A states that ‘personal factors’ can never justify S&S (such as dislike for a particular person or group of people) and Code G states that arrest must be exercised in a ‘non-discriminatory and proportionate manner’, including on the grounds of protected characteristics.28 This is an important restriction which is designed to limit (as far as is possible) the ability for personal prejudice, bias, generalisation, and stereotyping to inform an officer’s decision to exercise their power. 24 The police can arrest an individual in four circumstances: when someone is about to commit an offence, or when the police have reasonable grounds for suspecting that someone is about to commit an offence; when someone is committing an offence or when the police have reasonable grounds for suspecting that someone is committing an offence; when the police have reasonable grounds for suspecting that an offence has been committed, the police can arrest someone who is guilty or whom they have reasonable grounds for suspecting is guilty; and when someone has committed an offence, the police can arrest someone who is guilty or whom they have reasonable grounds for suspecting is guilty (s.24(1) – (3)). 25 Clearly, the lack of a reasonable suspicion requirement for use of the powers under Sections 60 and 47A creates scope for searches to be based on subjective and/or poorly justified grounds. 26 For example, looking ‘shifty’ (see Open Society Justice Initiative and StopWatch, ‘Viewed with suspicion: The human cost of stop and search in England and Wales’ (2013), www. opensocietyfoundations.org/sites/default/files/viewed-with-suspicion-human-cost-stop -and-search-in-england-and-wales-20130419.pdf, accessed 16 July 2021). 27 Code A, [2.2]. 28 Code A, [2.2B] and Code G, [1.3]. Factors include physical appearance (including the protected characteristics under Equality Act 2010, s 149 – including, crucially, disability); as well as generalisations or stereotypical images that certain groups are criminals.

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The courts have provided additional, though limited, guidance on reasonable suspicion. What is clear is that ‘the threshold for the existence of reasonable grounds for suspicion is low’,29 and certainly of ‘a lower standard than that which would be required to establish a prima facie case’.30 This therefore suggests that any number of less than robust factors could satisfy reasonable suspicion, as it ‘allows police officers to take into account matters that would not be admissible as evidence’.31 In relation to arrest specifically, the case of Castorina v Chief Constable of Surrey provides a test to determine whether reasonable suspicion exists, with subjective and objective limbs.32 The subjective limb asks whether the officer did ‘suspect that the person who was arrested was guilty of the offence’, which will depend ‘entirely on the findings of fact as to the officer’s state of mind’; whilst the purely objective limb asks whether there was ‘reasonable cause for that suspicion’.33 The flexibility and breadth of this concept allows officers significant discretion in satisfying themselves that reasons to search or arrest exist, which can lead to unfair and inconsistent approaches to the exercise of these powers.34 This renders reasonable suspicion a somewhat ineffective safeguard against abuse of the power, a conclusion supported by research. For example, in 2013, it was found that 27 per cent of stops lacked sufficient grounds to justify the use of the power, with the conclusion that this was due to poor understanding of what reasonable suspicion means.35 More recently, in 2021, nearly 20 per cent of searches were found to lack reasonable suspicion, with a quarter of grounds assessed as ‘weak’.36 This suggests reasonable suspicion is limited in its ability to restrain unreasonable use of police power and thereby protect individuals from searches based on stereotyping and prejudice.37 29 Howarth v Commissioner of Police of the Metropolis [2011] EWHC 2818 (QB), [31]. 30 Ormerod, D. and Perry, D., Blackstone’s Criminal Practice 2021, 31st edn (Oxford University Press, 2020), Section D1.4. Also see, Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942. It should be noted that this case pre-dates PACE 1984, but the principle has continued to be valid for post-PACE stops. 31 ibid. 32 [1988] NLJR 180. 33 ibid. It must also be determined whether the decision to arrest was Wednesbury reasonable – that is, a decision that is not ‘so unreasonable that no reasonable authority could ever have come to it’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation) [1948] 1 KB 223. 34 For an example of this, see the cases of Francis and Slade, detailed in Welsh, L., Skinns, L. and Sanders, A., Sanders & Young’s Criminal Justice (Oxford University Press, 2021) 64. 35 HMICFRS, ‘Stop and search powers: Are the police using them effectively and fairly?’ (2013) 8. 36 HMICFRS, ‘Disproportionate use of police powers A spotlight on stop and search and the use of force’ (February 2021) 7, https://www.justiceinspectorates.gov.uk/ hmicfrs/wp-content/uploads/disproportionate-use-of-police-powers-spotlight-onstop-search-and-use-of-force.pdf, accessed 16 July 2021. 37 For more, see Quinton, P., ‘The formation of suspicions: Police stop and search practices in England and Wales’ (2011) 21(4) Policing and Society.

106 Smith Necessity An officer can only exercise the power of arrest when they have ‘reasonable grounds for believing that for any of the reasons mentioned in [Section 24(5)] it is necessary to arrest the person in question’.38 The necessity of an arrest must flow from one of these reasons specified in the legislation, outlined in an exhaustive list. An officer can therefore only arrest in order to establish a suspect’s identity or address; to prevent harm, loss, indecency or obstruction of a highway; to protect a child or vulnerable person from a suspect; to further an investigation; and to prevent flight.39 All of the statutory reasons represent a type of risk; as such, the decision to arrest involves a form of risk assessment. If an officer believes one of these risks exists, they must assess whether arrest is the necessary response to manage that risk. If an officer has objectively based grounds for both believing there is a risk and that arrest is necessary, then this condition will be satisfied. The general implication of this provision is that use of the power of arrest should be thoughtfully considered, and reserved for when an officer needs to use it, with the word ‘needs’ being used specifically in Code G.40 Whilst this suggests that arrest is a last resort, the courts have refrained from defining necessity too restrictively, generally concluding that necessity is ‘an ordinary English word which can be applied without paraphrase’.41 An officer must ‘make some evaluation of the feasibility of achieving the object of the arrest by some alternative means’,42 a requirement reflected in Paragraph 1.3 of Code G, which suggests examining ‘other, less intrusive means’. However, officers do not need to be satisfied that there is no viable alternative to arrest, only that it is the ‘practical and sensible option’.43 This suggests that arrest is not reserved as a last resort, allowing a fairly flexible interpretation of when it will be deemed reasonably necessary. Code G emphasises that an officer must ‘examine and justify the reason or reasons why a person needs to be arrested’.44 This underlines the importance of carefully assessing risk and whether an arrest is the necessary response, as opposed to merely convenient or desirable.45 The belief that a risk exists and that arrest is necessary must be objective and based on solid rather than theoretical grounds.46 Notwithstanding this, interpretation of reasons remains ‘a matter of operational discretion of individual officers’,47 providing significant latitude.

38 PACE 1984, Section 24(4). An officer must have reasonable grounds for ‘believing’ (a higher level of certainty than ‘suspecting’) that it is necessary to arrest; in short, they must have some objective basis for belief as opposed to mere suspicion. 39 ibid., s.24(5). 40 At [2.6]. 41 Richardson v Chief Constable of West Midlands Police [2011] 2 Cr App R 1, 62. 42 Graham v Chief Constable of West Mercia Constabulary and Others [2011] EWHC 4 (QB), [16]. 43 Hayes v Merseyside Police [2012] 1 WLR 517. 44 [2.4] – [2.9]. 45 R (on the application of L) v Chief Constable of Surrey Police [2017] 1 WLR 2047, [40]. 46 Lord Hanningfield of Chelmsford v Chief Constable of Essex [2013] EWHC 243 (QB). 47 Code G, [2.4].

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Among the possible factors which might lead an officer to perceive a risk and consider an arrest necessary are ‘the circumstances of the suspect’.48 This is pertinent to this chapter since it could of course include the behaviour and communication of an individual. If an officer considers the behaviour of a suspect to be threatening, evasive, or indicating a likelihood of flight, they may conclude that a risk exists and that arrest is necessary. This will depend on both how the officer interprets any behaviour or communication, whether they understand the reasons for it, and whether this is deemed reasonable in the circumstances. Even if there is, in fact, no risk and arrest is not actually necessary, this might be deemed reasonable as officers are not expected to be in possession of all facts, consider all possible interpretations of a situation, or explore all alternative responses. Whilst this makes sense from a practical perspective, it has scope for error when the behaviour or communication of a suspect deviates from the norm or resembles stereotypically ‘suspicious’ behaviour (such as gaze aversion and fidgeting).49 This is particularly problematic because of ‘the marked similarity between perceived indicators of deception and common autistic behaviors’, which can therefore lead autistic individuals being ‘judged as more deceptive than their neurotypical peers when telling the truth’.50 Indeed, the recent work of Lim et al. – one of the first studies of its kind – appears to confirm that autistic individuals are perceived as more deceptive and less credible than neurotypical peers in direct, two-way interactions.51 Alongside evidence that ‘pervasive stereotypes’ of deception are commonly held by officers (and other CJS professionals), this presents significant potential for misinterpretation.52 In relation to both reasonable suspicion and necessity, knowledge and understanding of autism is vital in ensuring that officers accurately interpret communication and behaviour, and do not incorrectly attribute it to suspicious, threatening or obstructive intentions on the part of an individual. Otherwise, officers may not recognise such behaviour as ‘a manifestation of their condition … which could make them more likely to be arrested, and diversion away from custody and the CJS may not be considered’.53 It is particularly important that the onus is on officers to be able to distinguish between presentational behaviour and genuinely suspicious behaviour; evidence suggests that autistic individuals ‘sometimes have trouble allaying police suspicions and extricating themselves from the focus of investigations’ due to issues in understanding how their behaviour might be interpreted by officers and others.54 48 ibid., [2.8] 49 Lim, A., Young, R. and Brewer, N., ‘Autistic adults may be erroneously perceived as deceptive and lacking credibility’ (2021) Journal of Autism and Developmental Disorders, https://link.springer.com/article/10.1007/s10803-021-04963-4, accessed 21 July 2021. 50 ibid. 51 ibid. 52 ibid. 53 Criminal Justice Joint Inspection (n 3) 13. 54 Young and Brewer (n 13) 2238. This relates particularly to issues with ‘theory of mind’ – see more below.

108 Smith Assessing suspects The use of S&S or arrest should be intelligence-led;55 however, it is evident that other, sometimes illegitimate, reasons can drive the use of these powers. For example, there is a long-standing problem of inadequately justified and disproportionate use of S&S against BAME communities, with specific explanations for this including the reliance of officers on stereotypes, and working practices based on instincts and assumptions about the look and behaviour of BAME individuals.56 Powers of S&S and arrest can seemingly be used in a ‘wide spectrum of circumstances’ due to ‘imprecision’ in the legal framework.57 As such, the powers described in PACE 1984 operate as a set of ‘enabling rules’, allowing officers to act in a broad range of circumstances and exercise discretion relatively freely.58 In this context, extra-legal factors can and do creep into decision making. For example, research has suggested that a factor influencing the exercise of power is the need to enforce respect for the police. This causes officers to focus on the attitude and demeanour of individual suspects, with arguments that arrests for ‘contempt of cop’ (such as swearing, perceived lack of cooperation or respect, or apparent hostility) are common.59 The result is targeting of and disproportionately negative outcomes for individuals who are perceived to dislike, disrespect or distrust the police (for example, young, socially marginalised males); or who do not actively express normative indicators of ‘respect’ through compliant or deferential behaviour.60 The exercise of police power that does result from intelligence can potentially be more fair and effective, but this of course depends on its quality. A great deal of police intelligence is derived from public reports or information;61 if a member of the public considers a person’s behaviour to be strange, odd or suspicious, they might report this to the police for further investigation. However, if the public also subscribe to inaccurate and unfair stereotypes and prejudices, this raises questions about the credibility of such intelligence in some circumstances. Whilst intelligence is not necessarily determinative as to the use of police power, its 55 Inferred by much of the Codes of Practice, and used in general discourse about police powers in recent years – see National Police Chief’s Council, ‘Police service committed to intelligence-led approach in stop and search’ (2015), https://news.npcc.police.uk/relea ses/police-service-committed-to-intelligence-led-approach-in-stop-and-search, accessed 16 July 2021. 56 See Lammy, D., ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority individuals in the Criminal Justice System’ (2017); MacPherson, W., ‘The Stephen Lawrence Inquiry’ (Cm 4262-I, 1999); Bowling, B. and Phillips, C., ‘Disproportionate and discriminatory: Reviewing the evidence on police stop and search’ (2007) 70(6) Modern Law Review. 57 Criminal Justice (n 34) 133 and 76. 58 ibid., 133. 59 ibid., 136. 60 See Pearson, G., Rowe, M. and Turner, L., ‘Policy, practicalities, and PACE s. 24: The subsuming of the necessity criteria in arrest decision making by frontline police officers’ (2018) 45(2) Journal of Law & Society. 61 Criminal Justice (n 34) Chapter 2.

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existence will certainly strengthen the rationale for S&S or arrest, as it allows an officer to point to a seemingly objective basis. In the context of this chapter, if the public judges behaviour and communication through a predominantly neurotypical lens, this seriously undermines claims that such intelligence is reliable, as it will inherently disadvantage neurodivergent individuals. Such intelligence can therefore lend false legitimacy to the potentially inappropriate use of power. Assessing autistic suspects With or without intelligence, officers will nearly always undertake some interpretation of the immediate demeanour, behaviour and communication of possible suspects in assessing whether or not they are ‘suspicious’ or whether arrest is necessary. Visible differences in the way a suspect moves or speaks which are not immediately explicable by reference to social norms or common knowledge may generate suspicion and concern, and lead to the inappropriate exercise of power.62 In such circumstances, both suspicion and the belief in necessity must be reasonable; but this merely raises questions about how ostensibly unusual, evasive or erratic behaviour might be judged against the standards of ‘a reasonable person’. Traditional conceptualisations, amongst both the public and legal professionals, of criminality (and what it ‘looks’ like) are often grounded in othering, distinguishing the law abiding from the law breaking based on difference.63 There is also is a long-standing linkage between conceptions of criminality and those with cognitive differences and/or mental health issues.64 Foucault characterised archetypes of the ‘mad’ criminal – a sort of folk devil – as the modern equivalent of medieval ‘monsters’,65 distinguished by ‘an internal rather than external monstrosity, a monstrosity which is invisible to the naked eye unless and until it manifests in that person’s words or behaviour’.66 If such misconceptions permeate society and, by extension, policing, we must wonder how heavily they influence the assessment of behavioural and communication differences. Education and awareness can do much to dispel fears about ‘others’; but without this, such misconceptions will inevitably shape judgments. This has the potential to (unconsciously or not) influence assessments of suspicion and risk, particularly in the absence of clear, 62 See Lim, Young and Brewer (n 49) for more on this; and Quinton (n 37) on formation of suspicion more generally. 63 For more generally, see Eriksson, A., Punishing the Other: The Social Production of Immorality Revisited (Routledge, 2016); Whitehead, P., Demonising the Other: The Criminalisation of Morality (Policy Press, 2018); and Stabile, S., ‘Othering and the law’ (2016) 12(2) University of St Thomas Law Journal. 64 See Long, C. and Midgely, M., ‘On the closeness of the concepts of the criminal and the mentally ill in the nineteenth century: Yesterday’s opinion reflected today’ (1992) 3(1) Journal of Forensic Psychiatry. 65 Foucault, M., Abnormal: Lectures at the College de France 1974–1975 (trans. by G. Burchell) (Verso, 2003). 66 Bartlett, P. and Sandland, R., ‘Policing mental disorder’ in P. Bartlett and R. Sandland (eds), Mental Health Law: Policy and Practice, 4th edn (Oxford University Press, 2013) 280.

110 Smith legal definitions. In short, if someone looks like a ‘monster’, they might be one – and that will generally be enough to satisfy the low thresholds described above. The amorphous space left by the law is readily filled by assumptions, stereotypes and prejudices, which in turn generate unjustified unease about individuals who appear to be different. An example of the role of misinterpretation and the potential for inappropriate use of power is treatment of ‘stimming’. Stimming (or self-stimulatory behaviour) is ‘stereotyped or repetitive motor movements’, common amongst autistic individuals, which are generally used as a coping mechanism when faced with overwhelming emotions or experiences.67 Whilst most people – neurodivergent or not – engage in some form of bodily stimulation (for example, nail biting, tapping), stimming is distinguished by the type, quantity, and visibility of stimulatory behaviours, such as hand flapping, spinning, rocking or repetition of words or phrases. Such behaviour – without knowledge and context – can be judged as odd or even threatening, particularly in a public context as it does not comply with social or cultural norms. The following example illustrates the significant issues that can arise: AB has profound anxiety about traveling on public transport that sometimes results in sensory overload and psychological meltdown. One of the ways that AB tries to control his anxiety is by ‘stimming’, in his case, fiddling with any material within his reach, as this has a calming effect. This may include unconsciously touching other people’s (men’s or women’s) clothing, bags, etc. When challenged, AB doesn’t have the language to explain or apologise. These features of AB’s ASD are compounded by poor ‘proprioception’ and ‘theory of mind’.68 Contact that AB would perceive as harmless can be misperceived by others who do not understand stimming, sensory overload, theory of mind and poor proprioception.69 67 Kapp, S., Steward, R., Crane, L., Elliott, D., Elphick, C., Pellicano, E. and Russell, G., ‘“People should be allowed to do what they like”: Autistic adults’ views and experiences of stimming’ (2019) 23(7) Autism 1782; see also Leekam, S., Prior, M. and Uljarevic, M., ‘Restricted and repetitive behaviours in autism spectrum disorders: A review of research in the last decade’ (2011) 137(4) Psychological Bulletin. 68 ‘Proprioception’ broadly describes the ability to perceive body movements and the position of the body in space, affecting motor control (for more, see Han, J., Waddington, G., Adams, R., Anson, J. and Liu, Y., ‘Assessing proprioception: A critical review of methods’ (2016) Journal of Sport and Health Science 5 (1); and Blanche, E., Reinoso, G., Chang, M. and Bodison, S., ‘Proprioceptive processing difficulties among children with Autism Spectrum Disorders and developmental disabilities’ (2012) 66(5) American Journal of Occupational Therapy). ‘Theory of mind’ is the ‘ability to interpret the beliefs, intentions and emotions of others’ (Brewer, N., Young, R. and Barnett, E., ‘Measuring theory of mind in adults with Autism Spectrum Disorder’ (2017) 47 Journal of Autism and Developmental Disorders 1927). 69 Bubb, S., ‘Building rights: A report to the Keeping Bristol Safe Partnership Board. Review of Bristol’s policies and actions for people with learning disabilities and autism’ (May 2021), https://www.bristol.gov.uk/documents/20182/5395291/Building_ Rights.pdf/f8b0fe05-bdf0-de44-e14a-0f684e0a6f95?t=1623649850966, accessed 16 July 2021.

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In this case, AB travelled to university and work successfully for a number of years before being arrested on two occasions after accusations of unwanted touching of female passengers. On both occasions, AB was not ultimately charged and his treatment by the police involved both procedural irregularities and a failure to recognise his condition adequately (including not recognising his need for an appropriate adult).70 Without an adequate understanding of stimming, the communication issues of AB, or of autism generally, one can see a clear path to misinterpretation by officers or the public, resulting in unfounded suspicion of an offence and inappropriate use of power. The limitations of both reasonable suspicion and necessity as safeguards arguably provide insufficient protection for vulnerable people when coupled with a deficit of understanding. Broader research on police interactions with autistic suspects validates many of the concerns expressed in this chapter, with common themes surrounding ‘communication, identification, signposting and referral, autism-specific training and guidance’.71 Communication between autistic suspects and legal professionals can be a problem at multiple stages – for example, in response to questions during S&S or in police interview – and for various reasons. Autistic individuals may engage in ‘social echolalia’, where they respond ‘in a way that could appear as if they have accurately understood a question when in fact this might not be the case’.72 This form of ‘camouflaging’ – which operates by either ‘hiding behaviour that might be viewed as socially unacceptable or artificially “performing” social behaviour deemed to be more neurotypical’ – can present significant problems in identifying and protecting vulnerable autistic suspects,73 because ‘they [may] appear to be in possession of a greater level of awareness about their current situation context than is the case’.74 Whilst there is significant debate as to the cause of echolalic and camouflaging responses, they may in part be explained by issues with executive function, which can make it difficult to ‘to plan and organise information, including respoding to open or ambiguous questions’;75 the ‘distinct 70 ibid. Issues relating to appropriate adults will be discussed in section on ‘Police custody and autistic suspects’ below. 71 Dickie, I., Reveley, S. and Dorrity, A., ‘The criminal justice system and people on the autism spectrum: Perspectives on awareness and identification’ (2018) 4(1) Journal of Applied Psychology and Social Science 17. 72 ibid., 9; see Attwood, T., The Complete Guide to Asperger’s Syndrome (Jessica Kingsley Publishers, 2007); for further discussion of the function of echolalia in communication of autistic individuals, see Sterponi, L. and Shankey, J., ‘Rethinking echolalia: Repetition as interactional resource in the communication of a child with autism’ (2014) 41 (2) Journal of Child Language. 73 Lai, M.C., Lombardo, M.V., Ruigrok, A.N.V., Chakrabarti, B., Auyeng, B., Szartmari, P., Happe, F. and Baron-Cohen, S., ‘Quantifying and exploring camouflaging with men and women with Autism’ (2017) 21(6) Autism 690. 74 Dickie, I., Reveley, S. and Dorrity, A., ‘Adults with a diagnosis of autism: Personal experiences of engaging with regional criminal justice services’ (2019) 4(2) Journal of Applied Psychology and Social Science 56. 75 ibid., 57; though recent empirical evidence challenges the alleged role of executive function issues in such behaviours – see Jones, C., Simonoff, E., Baird, G., Pickles, A., Marsden, A., Tregay, J., Happe, F. and Charman, T., ‘The association between theory

112 Smith memory profile’ of autistic individuals, which is incompatible with typical questioning styles;76 and ‘difficulty in their ability to construct and relate a coherent narrative’.77 Such responses arguably represent a coping mechanism to compensate for such challenges in social communication. Additionally, autistic individuals can have difficulty identifying the relevance of providing (or not providing) information to another as part of dialogue in a particular situation – described by Vermuelan as ‘context blindness’.78 This can include failing to disclose that they are autistic: something which could help an officer or other professional understand the suspect’s responses.79 Otherwise, officers or others may misunderstand the suspect, leading to inappropriate outcomes such as unfairly assigning culpability or failing to provide support to cope with such encounters because the individual’s ‘needs might go unrecognised or be ignored’.80 This could be particularly problematic if an autistic individual is compliant and suggestible, and inaccurately accepts the truth of accusations presented to them.81 Communication is, of course, also non-verbal, through general behaviours and demeanour. In terms of autistic individuals, ‘certain behaviours could be labelled as violent or disruptive, whereas the lived reality of an individual on the spectrum is that these behaviours are expressions of feelings of anxiety and distress in a particularly challenging situation’.82 Considering the potential for anxiety in the context of S&S and arrest (and other police interactions), there is a significant risk of misunderstanding, unnecessary or inappropriate use of power by officers, and negative experiences for autistic individuals.83 In ZH v Commissioner of Police of the Metropolis, an autistic 19-year-old with epilepsy, significant learning difficulties, and communication problems was removed from a swimming pool by officers; forcibly restrained and arrested; and handcuffed alone in the back of a police

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77 78 79 80 81

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of mind, executive function, and the symptoms of autism spectrum disorder’ (2018) 11(1) Autism Research. Maras, K., Dando, C., Stephenson, H., Lambrechts, A., Anns, S. and Gaigg, S., ‘The Witness-Aimed First Account (WAFA): A new technique for interviewing autistic witnesses and victims’ (2020) 24(6) Autism 1450. ibid. Vermuelan, P., Autism as Context Blindness (AAPC Publishing, 2012). Though not necessarily – see the case of ZH, below. Dickie et al. (n 74) 65. Criminal Justice Joint Inspection (n 3) 26. Though evidence suggests that autistic individuals are not necessarily more suggestible or compliant than neurotypical individuals – see Maras, K. and Bowler, D., ‘Brief report: Suggestibility, compliance and psychological traits in high-functioning adults with autism spectrum disorder’ (2012) 6(3) Research in Autism Spectrum Disorders. Dickie et al. (n 74) 53. See Haas, K. and Gibbs, V., ‘Does a person’s autism play a role in their interactions with police: The perceptions of autistic adults and parent/carers’ (2021) 51(5) Journal of Autism and Developmental Disorders; and Wallace, D., Herbert, J., Tyler, D. and McGee-Hassrick, E., ‘Interactions between individuals on the Autism Spectrum and the police: The fears of parents, caregivers, and professionals’ (2020) Policing: A Journal of Policy and Practice, https://doi.org/10.1093/police/paaa059, accessed 19 July 2021.

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84

van. The High Court found that the police used unnecessary force and were ordered to pay damages. Even more troublingly, on arrival at the scene the officers were informed that ZH was autistic, particularly sensitive to touch, and that ‘time and patience would have been sufficient’ to resolve the situation (which had in fact not involved any particularly problematic or threatening behaviour until the arrival of the police).85 This demonstrates the substantial risk that autistic suspects will not only be subjected to police powers unnecessarily, but may suffer from longterm harm as a result (as ZH did).86 Moreover, the presentation of autistic individuals – that is, the external display of behaviours associated with autism – can be highly variable.87 This can cause two problems. First, knowledge that a suspect is autistic can lead officers to engage in responses reliant on stereotypical but often inaccurate and simplified understandings of autism (for example, that an individual will avoid eye contact, be nonverbal, or have prodigious memory skills).88 This can lead to unreasonable expectations of an encounter with an autistic individual, which may inadvertently disadvantage them. For example, if an autistic individual does not demonstrate excellent recall of facts they might be judged as evasive, and therefore suspicious. Second, if an autistic individual appears to be socially communicative, for example through ‘effusive use of language … and keen grasp of grammar’, this can ‘distract service professionals from accurately recognising the distress and potential vulnerability of this person’.89 In both situations, there is a mismatch between the expectation of an officer (based on a generalised understanding of autism) and the specific presentation of the individual. This demonstrates the potential complexity of such interactions, even when an officer has knowledge and awareness of an individual’s autism.

Police custody and autistic suspects If a suspect is arrested and not immediately bailed, PACE 1984 requires that they be taken to a police station as soon as is practicable.90 Research suggests that suspects brought to a police station are generally detained in custody,91 normally 84 85 86 87 88

89 90 91

[2012] EWHC 604 (QB) ibid., [31]. ibid., see [147] – [154]. Yates, K. and Le Couteur, A., ‘Diagnosing autism/autism spectrum disorders’ (2016) 26(12) Paediatrics and Child Health 513; Lai et al. (n 73) 690. Crane, L., Wilcock, R., Maras, K., Chui, W., Marti-Sanchez, C. and Henry, L., ‘Mock juror perceptions of child witnesses on the Autism Spectrum: the impact of providing diagnostic labels and information about autism’ (2020) 50 Journal of Autism and Developmental Disorders 1515. Dickie et al. (n 74) 60. PACE 1984, s.30A. Dehaghani, R., ‘Automatic authorisation: An exploration of the decision to detain in police custody’ (2017) 3 Criminal Law Review; McKenzie, I., ‘Helping the police with their inquiries: The necessity principle and voluntary attendance at the police station’ (1990) Criminal Law Review 22.

114 Smith for a period of up to 24 hours before charge.92 At some point, they will be interviewed by the police regarding the suspected offence, and – as part of the package of protections built into PACE 1984 – all suspects are entitled to access legal representation,93 and if they are a minor or vulnerable, an appropriate adult.94 A number of safeguards, alongside the two mentioned above, are built into the custody process with the aim of ensuring suspects’ rights are protected and that officers do not misuse their significant powers in the police station.95 Notwithstanding this, the custody process poses a number of potential challenges for all detainees, and arguably these challenges are more acute for autistic suspects. Aside from the new and unknown procedures,96 people and environments being faced (shortly after the potentially traumatic experience of arrest), custody will involve significant limits on freedom and privacy, with very little contact with the outside world. Autistic suspects may find the process of being booked in, searched, locked up, and questioned to be confusing, stressful, and very demanding in sensory terms, with difficulty communicating this to others.97 Moreover, officers may not fully understand and appreciate the behaviour or responses of an autistic suspect during these processes. They may perceive answers to questions and general behaviours as odd, disruptive, or even threatening. Such misinterpretation can influence decisions to use powers to further detain autistic suspects; to use force to restrain them; to charge them with an offence; or (if a suspect does not ‘present’ stereotypical traits or appear to be obviously struggling) to opt not to provide access to support, such as an appropriate adult.98 Equally, in safeguarding the interests of suspects, lawyers and appropriate adults (or other professionals like healthcare professionals) may also struggle to fully understand autistic suspects without appropriate knowledge and training.99 Like officers, this can lead to misinterpretation of the suspect’s needs and failure to appropriately facilitate their engagement with an investigation (or indeed challenge its continuation).100 92 PACE 1984, s.41(1). 93 ibid., s.58. 94 Home Office, ‘Code C (Revised) Code of Practice for the detention, treatment and questioning of persons by Police Officers’ (2019), [3.5(c)(ii)]. 95 Many are contained within PACE 1984, and are extensively explained in the longrunning ‘bible’ of police station practice: Cape, E., Hardcastle, M. and Paul, S., Defending Suspects at Police Stations (Legal Action Group, 2020). 96 Though not necessarily if the individual has previous experience of the CJS. Nevertheless, the experience will not necessarily be identical (or even similar). 97 Criminal Justice Joint Inspection (n 3) 43. 98 See Dehaghani, R. and Bath, C. ‘Vulnerability and the appropriate adult safeguard: Examining the definitional and threshold changes within PACE Code C’ (2019) Criminal Law Review 3; Dehaghani R, Vulnerability in Police Custody: Police Decisionmaking and the Appropriate Adult Safeguard (Routledge, 2020). 99 The recent evidence review identified the importance of securing the ‘right’ appropriate adult, who understood neurodivergent conditions (Criminal Justice Joint Inspection (n 3) 42). 100 Bath, C. and Dehaghani, R., ‘There to help 3: The identification of vulnerable adult suspects and application of the appropriate adult safeguard in police investigations in 2018/19’ (National Appropriate Adult Network, 2020) 15.

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Process, environment, and interviews Existing evidence suggests that the experiences of autistic suspects in custody are generally negative.101 As part of the process described above, officers and others (such as defence lawyers) must provide a variety of information and explanations to suspects as to what is happening and why. Some of these are required by law (for example, in PACE 1984 and its Codes of Practice);102 others simply represent good practice in all custody situations.103 In the context of an autistic suspect, Holloway et al. have argued that ‘if important legal information is not conveyed in an accessible way, this could lead to autistic detainees making ill-informed decisions in custody’, whether in relation to their immediate circumstances or longterm wellbeing.104 A slightly different but related example is illustrative of this danger: an autistic suspect might experience an overwhelming desire to leave the custody environment as quickly as possible due to its particularly oppressive nature;105 this can lead them to agree to anything that would facilitate that – such as declining a lawyer,106 accepting a caution, or confessing to an offence.107 In short, if a suspect misunderstands information provided to them about what is happening or experiences custody as overwhelmingly oppressive, they become ‘more vulnerable to adverse outcomes’.108 Holloway et al. have suggested that whilst adjustments could be made to make custody a more accessible experience for autistic suspects, this may be hampered by ‘barriers to communication between 101 Holloway, C., Munro, N., Jackson, J., Phillips, S. and Ropar, D., ‘Exploring the autistic and police perspectives of the custody process through a participative walkthrough’ (2020) 97 Research in Developmental Disabilities. 102 For example, if a custody officer opts to detain a suspect in custody, they must explain the grounds for doing so (PACE 1984, s.37(5)); a suspect must be informed of their right to a lawyer and their right to have someone informed of their arrest (Code C, [3.5]). 103 For more on this, see sources like Defending Suspects (n 95); College of Policing, ‘Authorised professional practice: Detention and custody’ (December 2020), https:// www.app.college.police.uk/app-content/detention-and-custody-2/?s=, accessed 19 July 2021; and multiple reports by HMICFRS, which provide guidance on best practice. 104 Holloway et al. (n 101) 2. 105 More on this below. Also, see generally Skinns, L. and Wooff, A., ‘Pain in police detention: A critical point in the “penal painscape”?’ (2021) 31(3) Policing and Society. 106 Skinns, L., ‘“I’m a detainee; Get me out of here”: Predictors of access to custodial legal advice in public and privatized police custody areas in England and Wales’ (2009) 49(3) British Journal of Criminology. 107 See Dehaghani, R., ‘Interrogating vulnerability: Reframing the vulnerable suspect in police custody’ (2021) 30(2) Social & Legal Studies 254; Woodbury-Smith, R. and Dein, K., ‘Autism Spectrum Disorder (ASD) and unlawful behaviour: Where do we go from here?’ (2014) 44 Journal of Autism and Developmental Disorders 2738; and Pearse, J., Gudjonsson, G., Clare, I.C.H. and Rutter, C., ‘Police interviewing and psychological vulnerabilities: Predicting the likelihood of a confession’ (1998) 8(1) Journal of Community & Applied Social Science, which highlights that confessions are the result of ‘the interaction of a number of variables’ including ‘custodial pressure’ (at 3). 108 Holloway et al. (n 101) 2.

116 Smith neurotypical and autistic individuals’.109 In this sense, achieving a fair and accessible experience for suspects requires not only knowledge regarding autism generally, but also the suspect’s autistic profile specifically and the ability (and willingness) to effectively adjust communication, processes, and environments. Without doing so, the likelihood of unfair and inaccurate outcomes is heightened. Unfortunately, research suggests that training on and knowledge of autism amongst officers in E&W has been historically inadequate for these purposes (though appears to be better than for other neurodivergent conditions).110 Considering the generally alien nature of custody suites and the highly restrictive regimes in place, cells and surrounding environments can create significant ‘sensory stress’ for autistic suspects, as they are ‘often noisy, brightly lit and busy’.111 The risk of overload for individuals with sensory sensitivities is acute; there is limited space, little privacy, and limited ability to meet and control personal needs (such as food, toileting, and feminine hygiene). Individuals may be highly sensitive to noise, light, and temperature, all of which are more intense and outside of the control of the suspect. Such issues are compounded when officers lack knowledge, training, time, and resources to recognise and manage these needs appropriately.112 As such, it has been argued that there is a ‘need to implement a range of additional support in police custody and to make changes to the custody environment, police procedures and current policies’.113 Evidence suggests a variety of, largely, local and low-cost adjustments are being utilised for neurodivergent individuals in custody, with examples including eye masks, ear defenders, and fidget toys for sensory needs;114 and verbal explanations, ‘walk throughs’ of scenarios, and picture guides for communication needs.115 However, these are by no means guaranteed, are risk-assessed before use, and not consistently or universally deployed.116 In terms of adjusting physical environments, it has been highlighted that custody suites, like much of the criminal justice estate, may be ‘old and difficult to adapt’.117 If they can be, such adjustment requires time, planning, and financial investment. A direct example of such an adaptation is a new ‘autism-friendly’ police custody suite constructed in 109 ibid. 110 Chown, N., ‘“Do you have any difficulties that I may not be aware of?” a study of autism awareness and understanding in the UK Police Service’ (2010) 12(2) International Journal of Police Science & Management; Holloway et al. (n 101); Hepworth, D., ‘A critical review of current police training and policy for autism spectrum disorder’ (2017) 8(4) Journal of Intellectual Disabilities and Offending Behaviour; Chown, N., Debbaudt, D., Beardon, L., Scott, J. and Cossburn, K., ‘Autism and operational policing accepted version with version of record statement’ in F. Volkmar, R. Loftin, A. Westphal and M. Woodbury-Smith (eds), Handbook of Autism Spectrum Disorder and the Law (Springer, 2021); Criminal Justice Joint Inspection (n 3). 111 Criminal Justice Joint Inspection (n 3) 44. See also Holloway et al. (n 101) 7. 112 ibid., 10. 113 ibid. 114 Criminal Justice Joint Inspection (n 3) 45. 115 ibid. 116 ibid., 44. 117 ibid.

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Nottinghamshire, which has been spearheaded by the Nottinghamshire Autism Police Partnership (NAPP) – an organisation focused on making existing custody facilities and processes more appropriate for autistic detainees.119 More broadly, the Criminal Justice Inspectorates have recommended that consideration of neurodivergence ‘should also inform the building of new custodial establishments and the refurbishment of existing sites’.120 Interviews in police custody can be particularly challenging for autistic suspects, as well as being one of the most difficult aspects of custody for officers to manage in this context.121 Aside from police interviews being oral, pressured, intrusive, and personal, traditional styles of questioning are arguably structured in a manner appropriate for neurotypical individuals, by being more open or ‘free’; and by limiting the supply of information and explanation to suspects in order to elicit an account and avoid influencing that account.122 Such questioning may lead to autistic suspects simply agreeing with officers’ assertions or suggestions in interview, which can potentially lead to an unfair and inaccurate outcome (such as a false confession);123 or to shutting down, evading, or misinterpreting questions, which can generate suspicion, selfincriminate, or lead to adverse inferences.124 Moreover, the manner in which the interview is conducted – such as the environment and its length – may be inappropriate for an autistic suspect. Crane et al. found that adults and carers for autistic suspects were ‘largely dissatisfied’ with interviews, highlighting a lack of breaks and inappropriate interview rooms which create sensory stress.125 They did identify ‘pockets of good practice’, including ‘avoiding particular question types and allowing extra time for interviewees to process questions during interview’;126 additionally, the involvement of appropriate adults and well-informed lawyers was thought to be beneficial for reducing ‘interrogative pressure in interviews’.127 However, research suggests that identification of the need for appropriate adults in custody is currently 118 Jarram, M., ‘New cells for autistic prisoners to be built in £17m Radford Road custody suite’ (Nottinghamshire Live, 10 January 2020), https://www.nottinghampost. com/news/nottingham-news/new-cells-autistic-prisoners-built-3725279, accessed 19 July 2021. 119 University of Nottingham, ‘Nottinghamshire Autism Police Partnership’, https:// www.nottingham.ac.uk/research/groups/autismandpolicing/index.aspx, accessed 19 July 2021. 120 Criminal Justice Joint Inspection (n 3) 10. 121 Crane, L., Maras, K., Hawken, T., Mulcahy, S. and Memon, A., ‘Experiences of Autism Spectrum Disorder and policing in England and Wales: Surveying police and the autism community’ (2016) 46(6) Journal of Autism and Developmental Disorders 2035. 122 Maras, K., Dando, C., Stephenson, H., Lambrechts, A., Anns, S. and Gaigg, S., ‘The Witness-Aimed First Account (WAFA): A new technique for interviewing autistic witnesses and victims’ (2020) 24(6) Autism. 123 See Gudjonsson, G., Gonzalez, R. and Young, S., ‘The risk of making false confessions: The role of developmental disorders, conduct disorder, psychiatric symptoms, and compliance’ (2021) 25(5) Journal of Attention Disorders. 124 Under s.34 Criminal Justice and Public Order Act 1994. 125 Crane et al. (n 121). 126 ibid., 2038. 127 ibid.

118 Smith poor.128 There are low rates of provision generally, and at least 550 suspects identified as being autistic by Liaison & Diversion services were detained without access to an appropriate adult in 2018/2019.129 Equally, access to lawyers in custody is variable, with approximately half of suspects not requesting legal advice, and even fewer receiving it.130 For those that do, research suggests that lawyers may have similar problems to police officers in terms of knowledge and capacity to appropriately support autistic suspects.131 The ‘snowball effect’ of the custodial experience Put together, the detention and interrogation of an autistic individual by police officers in an oppressive environment with little or no support suggests significant scope for miscarriages of justice. Indeed, the various potential issues identified above can, in combination, have a ‘snowball effect’, building on and aggravating each other to result in severe and swift escalation. This can be demonstrated by a recent example from the Independent Office for Police Conduct (IOPC) publication Learning the Lessons, which provides case studies designed to improve police practice in various areas of work. Issue 35, focused on custody, includes the case of an autistic detainee arrested for failing to pay for a taxi fare.132 The account of the case illustrates a number of the difficulties an autistic individual can have in custody as well as the risks of officers failing to understand or accommodate the needs of an individual. Whilst waiting to be booked in, the detainee repeatedly tried to touch a panic strip in the custody suite and asked for handcuffs to be removed multiple times, but was refused. In response, an officer suggested he ‘did not take things in quickly’ – demonstrative of a failure to understand potential processing issues or coping strategies. The detainee informed this officer that he was autistic; yet the officer failed to share this with the custody sergeant: a crucial omission. The detainee was subsequently strip searched (without an appropriate adult); thereafter declined to have an appropriate adult and lawyer, despite his evident difficulties; and was forcibly placed in two different cells when he repeatedly tried to leave them, including being pinned to the wall and to a mattress on 128 Dehaghani and Bath (n 98) 129 Dehaghani and Bath (n 98) 9. 130 Kemp, V., ‘Digital legal rights for suspects: Users’ perspectives and PACE safeguards’ (University of Nottingham, 2018) 7, https://nottingham-repository.worktribe.com/ output/946048, accessed 19 July 2021. 131 Cooper, P. and Allely, C., ‘You can’t judge a book by its cover: Evolving professional responsibilities, liabilities and “judgecraft” when a party has Asperger’s Syndrome’ (2017) 68(1) Northern Ireland Law Quarterly; Helverschou, S.B., Steindal, K., Nøttestad, J.A. and Howlin, P., ‘Personal experiences of the Criminal Justice System by individuals with autism spectrum disorders’ (2018) 22(4) Autism; Criminal Justice Joint Inspection (n 3) 32. 132 Independent Office for Police Conduct, ‘Learning the lessons: Custody’ (Issue 35, July 2019), 4–8, https://www.policeconduct.gov.uk/sites/default/files/Documents/Lea rningthelessons/35/LearningtheLessons_Bulletin35_July_2019_single_column.pdf, accessed 20 July 2021.

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the floor. The account provides no evidence that the detainee was violent or threatening towards officers at any point. In contrast, he asked if detention in a cell was necessary and could be avoided, stated he was claustrophobic, wished to proceed to interview quickly, and had disclosed he was autistic. If one adds to this that he was evidently struggling to cope with detention (for a minor, non-violent alleged offence), serious questions arise regarding the appropriate use of power (including handcuffing, detention, a strip search, and use of force); and the failure to account for and accommodate evident processing and sensory issues. One of the officers was subsequently disciplined for failing to share the disclosure of the detainee – information that could (though not necessarily) have changed the entire scenario.

Conclusion This chapter has sought to demonstrate, through analysis of the legal framework relating to police powers and existing evidence in the area, that there are good reasons to be concerned about the experience of autistic individuals subject to police investigation. The legal framework regulating police powers to search and arrest has long been criticised for its vagueness and low thresholds, and the consequent potential for misuse of power – particularly due to reliance on stereotyping and generalisation. In the context of autistic individuals, this represents a particular issue because of the potential for communication issues and misinterpretation of an individual’s behaviour as suspicious, evasive, or threatening. Reliance on stereotypical ideas about such behaviour, coupled with a lack of understanding and awareness of autism generally (or an individual’s presentation specifically), create scope for unnecessary use of power. This can lead to distress for an autistic individual, draw them further into the investigative process, and cause them short- and long-term harm. In custody, evidence suggests that sensory demands can add to these difficulties, leading to escalating situations of distress for autistic individuals. As such, it is crucial that officers can not only identify possible markers of autism, but also understand variable presentation. As recommended by the Criminal Justice Inspectorates, this requires a common screening tool for neurodivergent individuals, effective information sharing, and better awareness and specialised training.133 Officers should also engage with an individual to understand their specific needs and support them, utilising common ‘soft skills’ of listening, empathy, and compassion.134 This is not incompatible with the pursuit of a robust investigation – it is, in fact, crucial to a cooperative and engaged dialogue with a suspect, which helps rather than hinders effective police work. Regardless of an autistic individual’s culpability, the experience of the process itself is vital in ensuring their engagement with the CJS is not unnecessarily negative. It is recognised that ‘the most important determinant of a positive experience with the CJS … [is] not whether the individual was found guilty by the court but 133 Criminal Justice Joint Inspection (n 3) 6. 134 ibid. 9.

120 Smith that they were treated with understanding and respect’.135 Currently, the breadth of police powers and the weakness of the relevant safeguards can lead to the inappropriate use of power on autistic individuals – regardless of whether or not officers are aware that an individual is autistic. This would suggest the need for the legal framework to be clarified and the safeguards strengthened. Considering that longstanding concerns about discriminatory use of power (particularly in relation to BAME individuals) have failed to lead to effective reform of the legal framework and use such powers, this is perhaps wishful thinking. If this is the case, then it becomes even more vital to ensure that all officers have robust knowledge and understanding of autism in order to effectively assess suspicion and necessity, and awareness of the potential difficulties an autistic suspect might face when engaging officers in this context. Otherwise, autistic individuals may simply be caught in the net of investigation, with a very real risk of harm and unfair criminalisation. The ongoing failure of the CJS to consistently and adequately accommodate the needs of autistic individuals has considerable implications for fair and accessible procedures; criminal liability; and effective outcomes for autistic persons and society generally. The Government’s aim to ensure all autistic people ‘get the support they need to live full and happy lives’ will undoubtedly be undermined without sustained, evidence-led effort to address such issues.136

135 Dickie et al. (n 74) 66. 136 HM Government (n 7) 3.

8

Diversity in the criminal justice system James Pickles

Introduction Legislative and judicial state power has been the preserve of rich, elite, White men over centuries of patriarchal leadership. Consequently, the criminal justice system has a long history of recruiting and empowering a monochromatic section of society to deliver and implement justice, resulting in a system that is culturally and operationally both White and male. Such a lack of diversity within the criminal justice system has maintained institutional inequalities within its foundations and enforced and reinforced social and structural inequalities more generally. According to McLaughlin and Muncie,1 due process is a criminal justice model that emphasises the need to administer justice according to legal rules and procedures which are publicly known, fair, and seen to be just … Such procedures do not weight the process against the accused or in favour of those in power, but rather seek to guarantee a measure of judicial equality to all parties. Whilst this model underpins legal practice within England and Wales, there is a wealth of criminological evidence to suggest that the criminal justice system rarely delivers in its principles of equality and fairness. Indeed, members of minoritized racial communities,2 young people, individuals who are economically deprived, women and girls, and LGBT+ people3 experience disadvantage and discrimination within the criminal justice system. Institutional bias in favour of those with high social and economic status can be of benefit by shielding them from the consequences of justice. For example, Conservative Home Secretary Priti Patel received little accountability for the workplace harassment she perpetrated against her co-workers, despite an 1 McLaughlin, E. and Muncie, J., The Sage Dictionary of Criminology, 4th edn (Sage Publications Ltd., 2019) 185. 2 Minoritized is used to acknowledge that Black and Asian people hold the global majority in their demographics and are not a minority but are minoritized in everyday Western contexts. 3 Lesbian, gay, bisexual, and trans people.

DOI: 10.4324/9781003143321-8

122 Pickles admission of guilt and a six-figure government pay-out as compensation for her victims.4 Contrastingly, members of minoritized racial communities, LGBT+ individuals, and individuals who are economically disadvantaged have seen historic over-policing and persecution from police forces. Issues of marginalisation in relation to race, gender, and sexuality have led to lasting tensions and mistrust between diverse groups and criminal justice agencies. Such tensions have raised questions over the validity and legitimacy of the criminal justice system’s treatment of these groups. Key landmark events, such as the Wolfenden Report,5 the Stephen Lawrence Inquiry,6 and the Brixton Riots,7 have therefore led to changes in how justice is delivered to diverse groups. In response to these events, calls for diverse groups to be included in criminal justice agencies, practices, and policies have been made, in order to implement wider social change, build bridges with those who are marginalised, and improve the delivery of justice. Contemporary criminological evidence demonstrates that diversity within criminal justice agencies helps to implement appropriate organisational change and agility.8 Previous work on diversity and policing emphasises an exploration of social class in determining police practice, specifically in persecuting working class groups. Thus, there is a large body of work already available for readers interested in these topics. There has been less said on how sexuality is responded to by the criminal justice system, or how this intersects with gendered and racial dynamics. This chapter therefore examines how gender, race, and sexuality have been historically represented in the criminal justice system and explores contemporary modern mechanisms of diversity inclusion. By way of introduction, this chapter emphasises the criminal justice as a socially responsive matrix of institutions which reflects the social inequalities and arrangements present within wider society. The criminal justice system should therefore not be seen as separate from the power structures that arrange society and advantage specific social groups over others. Thus, diversity within the criminal justice system cannot be examined in isolation, and hence in this chapter the criminal justice system is viewed as being reflective of wider social systems of power. Finally, in calling for greater diversity within its various agencies, the criminal justice systems must recognise its own role in reinforcing and replicating oppressive, violent, and unequal power structures. 4 Syal, R., ‘Priti Patel reaches £340,000 settlement with ex-Home Office chief Philip Rutnam’, The Guardian (online, 4 March 2021), https://www.theguardian.com/p olitics/2021/mar/04/priti-patel-reaches-six-figure-settlement-with-ex-home-offi ce-chief-philip-rutnam, accessed 10 March 2021. 5 Scottish Home Department, Report on the Committee on Homosexual Offences and Prostitution (Home Office, 1957). 6 Sir William Macpherson, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (Cm 4262, 1999). 7 BBC Newsround ‘Brixton riots 1981: What happened 40 years ago in London?’ (BBC, 21 April 2021), https://www.bbc.co.uk/newsround/50035769, accessed 27 July 2021. 8 Schuck, A., ‘Female officers and community policing: Examining the connection between gender diversity and organizational change’ (2017) 27 Women & Criminal Justice 341.

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Diversity, equality, and representation The social landscape of contemporary British society has changed significantly due to decades of activism, protest, and resistance against hegemonic social orders. Attitudinal changes towards minority groups – although there is still a need for significant improvement – have put pressure on the State to remove legislation that reinforces inequality. The decriminalisation of homosexuality, protection from violence in the form of hate crime legislation, and anti-discrimination laws have led to significant changes to how minority groups are policed and to how justice is delivered. For instance, The Equality Act 2010 combined and replaced numerous individualised equality legislation and streamlined these into a single Act, with the aim to protect minority groups and those who may suffer discrimination. The Act established nine protected characteristics – age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, marriage and civil partnership, and pregnancy and maternity – criminalising discrimination against them. Seven types of discrimination are currently outlawed through this Act – direct, associative, indirect, harassment, harassment by a third party, victimisation, and discrimination by perception – placing a duty on the public sector to challenge and eliminate discrimination.9 In addition, patterns of immigration, changing family dynamics and structures, and growing inequality brought about by austerity policies have influenced the economic and demographic positions of British society. Thus, major cultural and politics shifts have occurred within the public consciousness. Calls for increasing tolerance, diversity in workplace practice, institutional accountability, equality, acceptance, fairness, and individual autonomy has placed greater responsibility on the criminal justice system to adopt and adapt its role within society to accommodate a greater level of diversity and representation. The ideals of equality in law and order through due process are paramount, in that we expect all individuals to have their human rights maintained and that equal treatment is sustained when standing before the law or when navigating the criminal justice system, regardless of group affiliation or identity. In this respect, principles of due process are expected to be followed, so that our criminal justice system is above bias and prejudice. Increasing focus has been paid to this aspect of equality in relation to social and economic class. In England and Wales, several mechanisms have been put in place to ensure that people without the financial means to afford private legal representation are able to obtain appropriate recourse for defending themselves when accused of a crime. For example, The Police and Criminal Evidence Act 1984 made the right of advice and assistance from a qualified solicitor a statutory right. In addition, Legal Aid provisions, now provided by the Legal Aid Agency, sponsored by the Ministry of Justice, due to the 2012 Legal Aid, Punishment and Sentencing of Offenders Act, provide financial help for individuals who lack the means to attain legal support, family mediation, or representation in court. Despite these measures, negative biases and inequalities 9 The Equality Act 2010 c 15.

124 Pickles still occur when navigating the criminal justice process. As this chapter will demonstrate, as a social institution, criminal justice very much reflects and reinforces the biases and prejudices within society. When speaking of bias in this context, we are speaking of negative differential treatment based on individual characteristics, such as whether someone is Black, a woman, or gay, rather than the mitigating or specific circumstances of a crime. One argument to combat this negative bias is to diversify the representation of those within the criminal justice system, such as increasing the quota of women within the court systems, encouraging LGBT+ people to work in the police force, and recruiting more Black and Brown prison staff members. As a social institution, the criminal justice system, arguably, should reflect the diversity present within society and increase the visibility of communities that are underrepresented in order to mirror the various demographics that experience criminal justice. If the criminal justice system remains unrepresentative, equal levels of justice may fail to deliver.

Gender and criminal justice For decades, feminist criminologists have researched the gendered patterns of crime and affirmed the differential ways women are treated by and within the criminal justice process.10 Historically, the purveyors, gatekeepers, and enforcers of law, order, and justice have been the preserve of men who have been in charge of making legislation and laws, policing public spaces, and delivering judgments to those guilty of crimes. Thus, men have had significant political and legal power to determine what behaviours and activities are legal and illegal by way of maintaining authority over how and when justice is delivered. The criminal justice system is therefore a site of ‘gendered action’11 whereby the perceptions, interactions, and micro-political activities proscribe specific criminal justice pursuits as either masculine or feminine. This section will therefore explore the gendered nature of the workforce within the police and the judiciary – focusing specifically on the treatment of women who work in key criminal justice agencies and examine how gendered crimes such as sexual violence are treated and processed within the criminal justice system. The latest workforce data for the police forces of England and Wales show that as of 31 March 2020, 31 per cent of police officers are women. As Figure 8.1 demonstrates, this statistic has been increasing year-on-year, demonstrating slight 10 For further reading see: Davies, D., ‘Gender, victims and crime’ in P. Davies, P. Francis and C. Greer (eds), Victims, Crime and Society: An Introduction (SAGE, 2017); Heidensohn, F. and Silvestri, M., ‘Gender and crime’ in A. Liebling, S. Maruna and L. McAra (eds), The Oxford Handbook of Criminology, 6th edn (Oxford University Press, 2017); Walklate, S., Gender, Crime and Criminal Justice (Routledge, 2013). 11 Miller, S.L. and Bonistall, E., ‘Gender and policing: Critical issues and analyses’ in W. S. DeKeseredy and M. Dragiewicz (eds), Routledge Handbook of Critical Criminology (Routledge, 2012).

0.00%

5.00%

10.00%

15.00%

20.00%

25.00%

30.00%

2010

2011

2012

2013

2014

Year

2015

28.30% 26.80% 27.30% 27.90% 25.70% 26.30%

2016

2017

2018

2019

2020

30.40% 31.20% 28.60% 29.10% 29.80%

Figure 8.1 Proportion of female police officers. Source: ‘Police workforce, England and Wales, as at 31 March 2020’ (Home Office, 2020).

Proporon of Female Officers

35.00%

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126 Pickles improvements in the recruitment of women into the police force. Longitudinally however, there has only been a 5 per cent increase in women joining the police force between 2010–2020, suggesting that overall, minimal progress has been made in the past decade. Further, there is significant disparity in the levels of women who comprise police staff – who are civilians and often work as receptionists, HR, analysts, and custody nurses – of whom 61 per cent are women and police officers. Interestingly, unpaid police support volunteers are a cohort of police staff where equal numbers of men and women work, as the latest statistics show 51 per cent are women.12 Although women seemingly dominate police staff civilian occupations, police officer roles are very much disproportionately male. Thus, as concluded by Prenzler and Sinclair, ‘despite a strong case for much greater female participation in policing, basic data on women’s progress are often lacking, and there is an apparent large gap in many departments between positive gender policies and less-than-optimal integration strategies’.13 When scrutinizing the gendered disparity in the level of police officers in comparison to the level of police staff who are women, much of this can be put down to the perception of police work, where both the public and the police officers themselves view policing as a masculine pursuit, exemplified by a machismo, aggressive crime fighting ethos.14 The very iconography – the uniform – of policing embodies large, threatening statures and presents a masculinised ‘hard’ image to the public. The tradition of police work being equated with male physicality implicitly establishes femininity and female bodies as a threat to this image. Several studies theorise that there is a perception in policing that women may be too emotional for the daily activities of police work, that they may show unfair leniency on criminals, or that offenders will not observe women’s authority due to the lack of male presence and physicality.15 The staff workforce data seemingly reflect this, as women dominate staff roles that are traditionally seen as feminine: receptionists, admin workers, secretaries, and support staff. Similar patterns of gender division can be found within the judiciary. Despite large increases in women joining the legal profession and holding practicing certificates, there exists many gendered inequalities within the profession, particularly at senior level. For instance, as of 2019, 32 per cent of court judges were women,16 reflecting a similar ratio of women to men as is found in the police system. Further, although the proportion of women solicitors working in private practice increased to 49 per cent in 2019, the proportion of private practice 12 Home Office, ‘Police workforce, England and Wales, as at 31 March 2020’ (Police workforce bulletin, Home Office, 2020). 13 Prenzler, T. and Sinclair, G., ‘The status of women police officers: An international review’ (2013) 44 International Journal of Law, Crime and Justice 115, 129. 14 Miller, S.L. and Bonistall, E., ‘Gender and policing: Critical issues and analyses’ in W. S. DeKeseredy and M. Dragiewicz (eds), Routledge Handbook of Critical Criminology (Routledge, 2012). 15 Chan, J., Doran, S. and Marel, C., ‘Doing and undoing gender in policing’ (2010) 14 Theoretical Criminology 425. 16 Courts and Tribunals Judiciary, ‘Judicial Diversity Statistics’, bulletin (2019).

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partners that are women was 31 per cent. In addition, it is often the case that women tend to be part-time workers or be concentrated in specific areas of the law, such as family work, employment, and personal injury law – ‘feminising’ these professions and effectively making them ‘female specialisms’.17 The criminal justice system, as a site of gendered action, therefore goes beyond male and female identity per se, but speaks of the structural and institutional disproportionality, culture, and micro-politics that disadvantage women both within and external to the criminal justice system. For decades, the treatment of women within the criminal justice has been inexcusably disappointing. In the early 1990s, a Bar Council survey found evidence of sexual harassment and discrimination against women barristers, as well as disadvantageous treatment towards women through allocation of work, promotions, pay increases, and pupillage applications.18 Despite numerous legislations towards equality, including the Equality Act 2010, women remain under-represented in senior and higher ranks of both the police matrix and the judicial system. Further, studies have confirmed that discriminatory practices toward senior female police officers is still a significant issue. The Browne et al. study in 2018, for instance, highlighted that 34 per cent of senior women in the police experienced sexual harassment through unwanted jokes or comments, 41 per cent had witnessed this behaviour, 11 per cent had been subjected to unwanted sexual propositions, 56 per cent had been bullied by someone more senior, 63 per cent were subject to gender stereotypic work allocation, and 93 per cent of senior women knew of men applying for promotion to other senior positions without being fully qualified.19 Feminist criminologists have long argued that this internal discrimination of women is reflective of wider patriarchal powers that work to violently disadvantage women. The response to women victims by the criminal justice system is arguably even more disturbing than the treatment of women internally. For many years, the police did not take male violence against women seriously, viewing domestic abuse crimes as minor disputes that were often provoked by women and required little escalation. The Equality Act 2010, the Sexual Offences Act 2003, and the Domestic Violence, Crime and Victims Act 2004, recognised the problem of prejudicial biases held by police officers and the sceptical and lenient attitudes held by the courts and judiciary when faced with sexual violence cases20 and outlawed discriminatory behaviour towards women in these cases. Updating the law to extend anti-discrimination protections, unfortunately, does not necessarily change 17 Bolton, S.C. and Muzio, D., ‘Can’t live with ‘em; can’t live without ‘em: Gendered segmentation in the legal profession’ (2007) 41 Sociology 47. 18 Bar Council and Lord Chancellor’s Department, Without Prejudice? Sex Equality at the Bar and in the Judiciary (Bar Council of England and Lord Chancellor’s Department, 1992). 19 Brown, J. and others, ‘Implications of police occupational culture in discriminatory experiences of senior women in police forces in England and Wales’ (2018) 29 Policing & Society 121. 20 Joyce, J., Criminal Justice: An Introduction, 3rd edn (Routledge, 2017).

128 Pickles practice or alter the attitudes and values per se of those delivering justice. Recent attitudinal surveys of police officers demonstrate that police officers significantly lack an understanding of the nature of sexual violence, including rape, sexual assault, and revenge porn,21 as many believe the common myths surrounding violence against women, which have always been a long-standing historical issue within the police.22 Further, despite false rape allegations remaining very low – indeed there is no evidence that false allegations of rape or sexual violence are made more frequently than any other false crime allegation – research suggests that police believe they encounter high numbers of false rape allegations.23 Police officers report that due to their training, they believe that they have the skill or ‘coppers’ nose’ to tell if a case is true or not and sniff out a false allegation instinctively, despite also, contradictorily, acknowledging they must remain free from pre-judgments.24 The reliance on suspicion that is embedded in police training can cause significant negative bias towards victims of sexual abuse, specifically women, and can cause secondary victimisation due to intrusive questioning, speaking to victims in an unsympathetic manner, appearing suspicious and verbalising doubt in the credibility of the victim, and disbelieving the victim’s testimony before due process has occurred. In fact, police officers may use persuasive questioning techniques to facilitate the withdrawal of an accusation; withdrawal of accusations in and of themselves are often viewed erroneously by officers as equating to a false allegation.25 Such attitudes and behaviours support and reproduce gender inequality, especially in its manifestation as sexual violence and maintain the masculinised manner in which sexual violence is policed. Importantly, Javaid argues this hegemonic masculinity reinforces persistent rape myths that deny even men their justice, as he has found that male victims of sexual violence prefer speaking to women police officers, and experience insensitivity from officers who stereotype male rape victims as weaker, effeminate, gay, or as false due to the myth that men cannot get raped.26 Thus, in order to change police culture and wider policing practice, arguably a greater level of diversity is required to embrace the role of women in policing and of prioritising violence against women. As argued by Brown et al.: An understanding of identity dynamics has the potential for remedial measures focusing on reducing the sense of threat, experienced by some male police 21 Bond, E. and Tyrell, K., ‘Understanding revenge pornography: A national survey of police officers and staff in England and Wales’ (2018) 36 Journal of Interpersonal Violence 2166. 22 ibid.; Parratt, K. and Pina, A., ‘From “real rape” to real justice: A systematic review of police officers’ rape myth beliefs’ (2017) 34 Aggression and Violence Behavior 68. 23 Macmillan, L., ‘Police officers’ perceptions of false allegations of rape’ (2018) 27 Journal of Gender Studies 9, 13. 24 ibid. 25 ibid. 26 Javaid, A., ‘The unheard victims: gender, policing and sexual violence’ (2020) 30 Policing & Society 412.

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officers. This is especially the case under conditions where men hold onto and accentuate notions of traditional ‘cop’ culture in the face of the challenge of change. It is also imperative that remedial measures involve strengthening the occupational identity of women under conditions of a new professionalism.27

Race and criminal justice It would be remiss for any work that explores diversity in the criminal justice system to overlook the importance of racial diversity and inequality. This section will explore the disparities in the recruitment of Black and Asian people working internally within the criminal justice system and of Black and Asian members of the public who are profiled and processed by both the police and the judiciary. Decades of criminological research has confirmed, in what was highlighted originally by Sir William Macpherson, that the criminal justice system is ‘institutionally racist’ in its practices.28 However, the most recent review on race controversially found ‘no evidence of systemic or institutional racism’ in society,29 contradicting decades of evidence suggesting the contrary.30 This section will therefore briefly highlight the history of work looking into race disparities in the criminal justice system. Many studies on the criminal justice system organise data on race and ethnicity using acronyms such as BAME for Black, Asian and Minority Ethnic or BME for Black and Minority Ethnic. These acronyms are problematic in that they blanketise people who are ‘not White’ and invisibilise individual differences between diverse racial and ethnic groups. These acronyms will be utilised in this chapter only when referring to reports and scholarship that have categorised their data with these acronyms. The term ‘minoritized ethnicity’ will be used in replacement of minority ethnic to acknowledge that Black and Asian people belong to global majorities but are minoritized i.e., made to be the minority in Western contexts. A brief history of race and criminal justice Policing relations with minoritised ethnic communities have a long history of prejudicial police methods, resulting in a hostile police–public relationship. Moral panics over Black people ‘mugging’ White people in the 70s and 80s31 mainstreamed the myth that Black individuals were inherently criminogenic, feeding 27 Brown, J. and others, ‘Implications of police occupational culture in discriminatory experiences of senior women in police forces in England and Wales’ (2018) 29 Policing & Society 121, 133. 28 Sir William Macpherson, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (Cm 4262, 1999). 29 Sewell, T. and others, Commission on Race and Ethnic Disparities: The Report (Commission on Race and Ethnic Disparities, 2021) 77. 30 Patel, T., Race & Society (SAGE, 2016). 31 Hall, S. and others, Policing the Crisis: Mugging, The State, and Law and Order (Macmillan, 1978).

130 Pickles into a wider public panic of how to deal with ‘the Black problem’. Police treatment of Black people was incredibly prejudicial, with empirical evidence showing cases of the police instigating ‘nigger hunting’ sprees,32 fostering a culture endemic with racism and discrimination. No formal investigation or acknowledgement of police racism had taken place however until the Scarman report. After a period of disorder in Brixton, London which was experiencing disproportionate levels of stop-and-search towards Black young people, high levels of unemployment and poverty, and overzealous policing, Lord Scarman published his investigation33 in 1981 that exposed the rationale behind many of the disorders that occurred after a police intervention and highlighted the tensions between Black people and the police in Brixton and elsewhere in the country. Although Scarman’s report scrutinised the police force specifically, it generated public debate as to the effectiveness of the criminal justice system generally in alienating certain groups in society.34 Despite many of his recommendations, relations with the police barely improved in the decade following the Scarman Report; the public psyche continued to witness and observe racist police behaviour. Analyses in 1999 on stop and search practices continued to find that Black people were 7.5 times more likely to be stopped and searched by the police than White people,35 whilst being rarely justified under the legal grounds of ‘reasonable’ suspicion. Furthermore, Black people were 4.4 times more likely to be arrested than White people,36 and out of 1.3 million arrests, 7 per cent were Black and 4 per cent were Asian despite making up 2 per cent and 3 per cent of the population, respectively.37 Following publication of the Scarman Report, concerns were made about the police’s ineffectiveness and ambivalence towards racially motivated violence. Arguably, ‘the acceptance of the relationship between crime and the colour of a person’s skin by the police service made it difficult for officers to view Black youths as the victims of crime’.38 The murder of Stephen Lawrence became a landmark case to exemplify police attitudes toward racial violence again young Black men. 32 Bowling, B. and Phillips, C., Racism, Crime and Justice (Pearson Education, 2002). 33 Lord Scarman, The Brixton Disorders, Report of an Inquiry by the Rt. Hon. The Lord Scarman, OBE, Cmnd 8427 (London, 1981). 34 Scarman found that the police were ill-equipped to adapt to the needs of policing a multi-racial society and that training was needed to give police officers an awareness of issues faced by Black and other minoritised racial groups in order to promote positive community relations. Importantly, he emphasised that the police force itself should be more reflective of the wider society they served and encourage a greater level of diversity in its recruitment; although he rejected the idea of a quota system to do so. A key recommendation made was to establish specific offences for discriminatory behaviour based on race, holding police officers to greater accountability if found to be racially prejudiced or discriminatory. 35 Statewatch, The Cycle of UK Racism – Stop, Search, Arrest and Imprisonment (Statewatch, 1999). 36 Statewatch, UK: Stop and Search and Arrest and Racism (Statewatch, 1998). 37 Howard League for Penal Reform, Ethnic Minorities in the Criminal Justice System (Howard League for Penal Reform, 2000). 38 Joyce, P., Criminal Justice: An Introduction, 3rd edn (Routledge, 2017) 524.

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Lawrence was an 18-year-old Black student who was murdered in 1993, in what would now be called a racist hate crime. The Metropolitan Police Service were reluctant to secure a conviction for his perpetrators, leading Lawrence’s family to seek a private prosecutorial team. The Labour Home Secretary at the time, Jack Straw, commissioned Sir William Macpherson to investigate the Metropolitan Police’s handling of the case. The Macpherson Report,39 published in 1999, found the police to be institutionally racist and accused them of failing to implement the recommendations of Scarman. Macpherson fiercely critiqued the Metropolitan Police Service and accused them of gross negligence, rooted in institutional racism and racist attitudes held by police officers. The Report concluded with 70 recommendations in total that were intended to engineer the criminal justice system into being fairer for Black and other minoritized ethnic groups. Contemporary issues In order to overcome these historic issues with minoritized ethnic communities, significant image management strategies have been employed to change the public image of the police as a racist institution. Endorsing positive police practice and increasing the representation of Black and Brown police officers has been one mechanism to increase confidence in the police. However, Bradford et al. argue that confidence in the police is often shaped by the quality of personal encounters and good effective communication between officers and the public40 rather than the image work being performed. Since 2010, there has been a year-on-year increase in the recruitment of ‘BAME’ police officers and members of the judiciary. For example, the ethnic diversity of the police workforce has seen an annual increase over the past decade, which some may argue is commendable when seeking to address the past harms caused. However, when examining official data, the number of BAME officers in the past decade has only marginally increased by 2.6 per cent, moving from 4.7 per cent in 2010 to 7.3 per cent in 2020. In addition, whilst figures as high as 15 per cent BAME officers are found in the Metropolitan Police Service, these are still significantly and disproportionately low when compared to the BAME population (40 per cent) in London.41 Similar figures are found in the Judiciary, where 7.4 per cent of court judges are BAME, with only 1.1 per cent being Black,42 well below their demographics in the general population. However, improvements have been made at the Bar, where 13.2 per cent of barristers are found to be BAME, with 7.2 per cent Asian and 3.2 per cent being Black,43 which are on par with the general population demographic. 39 Sir William Macpherson, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny (Cm 4262, 1999). 40 Bradford, B., Stanko, E. and Jackson, J., ‘Using research to inform policy: The role of public attitude surveys in understanding public confidence and police contact’ (2009) 3 Policing 139. 41 Home Office, ‘Police workforce, England and Wales, as at 31 March 2020’ (Police workforce bulletin, Home Office, 2020) 28. 42 Courts and Tribunals Judiciary, ‘Judicial Diversity Statistics’, bulletin (2019). 43 Bar Standards Board, Diversity at the Bar, 2019, Research Report (2020).

132 Pickles Due to the history of racist, persecutory, and neglectful encounters by the criminal justice system, contemporary relations with the police amongst minoritized communities are still strained and conflicting. Indeed, despite calls for greater diversity and accountability in the criminal justice system, the police still arguably police race in their daily practices. The most recent statistics (see Figure 8.2) show that between March 2019 to March 2020, there were 6 stop and searches for every 1000 White people compared to 15 stop and searches for Asian people, the highest being Bangladeshi, Pakistani, and Asian ‘other’, and 54 stop and searches for Black people (the highest proportion seen towards Black ‘other’). Collectively, BAME individuals were stopped at a rate 4.1 times higher than White people.44 Arguably, this targeted policing of race communicates messages of difference, hostility, and discrimination to communities of colour, and in particular Black communities. Consequently, low levels of confidence in the police are found amongst young BME people, who are the most likely to experience negative stop and search behaviours, and who have a common awareness that they are disproportionately targeted by the criminal justice system.45 In contrast, White people are disproportionately underrepresented in stop and search procedures in comparison to the general population. From first making contact with the police, moving through every single process of the criminal justice system – arrests, cautions, court involvement, convictions, custodial sentences, and the prison populations – Black and Brown people are starkly over-represented than compared with the general population (see Figure 8.3). When scrutinising data from the Ministry of Justice,46 lamentably, this is even more pronounced in minoritized ethnic children. Data from 2018 show that Black children make up 20 per cent of all child victims, with a higher proportion of homicides being committed against Black children than any other ethnicity. In comparison to Figure 8.3, which shows the disproportionality of Black and Asian adults within the criminal justice system, Ministry of Justice data show that Black children are even more over-represented than their adult counterparts, with 21 per cent of Black under 17-year-old’s being prosecuted and convicted, 30 per cent being remanded in custody, eventually showing that 29 per cent of children in prison settings are Black. Further, in 2018/19 67 per cent of under 17s arrested in London were from a minoritized ethnic background – 52 per cent were BAME adults – with Asian males receiving the longest custodial sentences (10 months longer on average than White males), and a higher proportion of prosecutions being given to Black and Mixed ethnicity children (13 per cent and 14 per cent respectively compared to 5 per cent of White children).47 Although police officers 44 Home Office, Police Powers and Procedures, England and Wales, 2nd edn (Home Office, 2020). 45 Barrett, G.A., Fletcher, S.M.G. and Patel, T., ‘Black minority ethnic communities and levels of satisfaction with policing: Findings from a study in the north of England’ (2014) 14 Criminology & Criminal Justice 196. 46 Ministry of Justice, Statistics on Race and the Criminal Justice System, 2018 (Ministry of Justice, 2019). 47 ibid.

34 39 16 5

13 16

29 7

5

6 White

Mixed Other Mixed White/Black Caribbean

Mixed White/Black African

Black other

Mixed

Black Caribbean

Black African

Black

Asian other

Pakistani

Chinese

Bangladeshi

Asian

All

Stop and Search rate per 1000 people, by ethnicity. Locaon: England and Wales. Time Period: Between April 2019 to March 2020

3

19 18 1

29 0

Figure 8.2 Stop and search rate per 1000 people, by ethnicity. Source: Police powers and procedures, England and Wales, year ending 31 March 2020 second edition. Ethnicity Facts and Figures. https://www. ethnicity-facts-figures.service.gov.uk/crime-justice-and-the-law/policing/stop-and-search/latest#:~:text=Main%20facts%20and%20figures%201% 20between%20April%202019,for%20every%201%

0

5 Indian

2

16

30

Mixed White/Asian

20

11 15

29

White Brish

40

54

White Irish

60

White Gypsy/Traveller

80

White other

100

Other

120

Arab

140

157

Any other

160

Unkown

180

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4% 2%

13%

22%

59%

10% 7% 3% 2%

78%

ARRESTS

6% 3% 1%

10%

80% PROSECUTIONS

Mixed

6% 3% 1%

10%

81% CONVICTIONS

Chinese or Other

14%

73% CUSTODIAL REMANDS

8%

Asian

6% 3% 1%

10% CUSTODIAL SENTENCES

79%

Figure 8.3 The proportion of adults throughout the criminal justice system in each ethnic group, 2018. Source: Ministry of Justice, Statistics on Race and the Criminal Justice System (Ministry of Justice, 2019).

STOP AND SEARCH

Black

3% 2%

White

1%

8% 5%

13%

73% PRISON POPULATION

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must have ‘reasonable grounds’ of suspicion – in other words officers must be of the belief that the individual or group stopped may be, or may have been, or may be about to commit a crime – the problem seems to be the discretionary nature of stop-and-search, whereby police officers utilise their unconscious biases to derive ‘suspicion’ based on race and ethnicity. Increasing the level of diversity within the criminal justice system does not necessarily change how race is policed and attempts to do so can appear as tokenism if done without a full commitment to changing institutional practice. Rather, cultural and institutional change within the criminal justice system is required, by unlearning racist biases and rethinking the purpose of criminal justice when trying to protect diverse communities. The racial disparities within the criminal justice system that are outlined so far have largely been in the consciousness of those communities who are most affected. In May 2020, George Floyd, a Black American man was killed by police officer Derek Chauvin, who knelt on his neck for over nine minutes, despite pleas from Floyd that he could not breathe, in an improper use of restraint methods. Floyd’s murder was captured and recorded on video, which went viral, igniting #BlackLivesMatter (BLM) protests across the world and mainstreaming racialised policing into the global public consciousness. Originating as an American movement to challenge police officers shooting and killing Black Americans at a disproportionate rate, it has since evolved into a global movement: #BlackLivesMatter was founded in 2013 in response to the acquittal of Trayvon Martin’s murderer. Black Lives Matter Global Network Foundation, Inc. is a global organization in the US, UK, and Canada, whose mission is to eradicate white supremacy and build local power to intervene in violence inflicted on Black communities by the state and vigilantes. By combating and countering acts of violence, creating space for Black imagination and innovation, and centering Black joy, we are winning immediate improvements in our lives.48 A key change in discourse pertaining to the criminal justice system arising from the BLM movements has been the recognition of social institutions not only being institutionally racist, as evidenced by nearly every metric indicating poorer outcomes for people of colour, but of being founded upon White supremacy. According to Dorothy Roberts, it is nigh-impossible to construct a criminal justice system free from racial bias, as in her view, it has always functioned to disenfranchise and subordinate Black people whilst maintaining racial social hierarchies and orders. She argues that ‘racial bias does not rest only or even primarily in the minds of those who implement the system; racism is engrained in the very construction of the system and implicated in its every aspect – how crimes are defined, how suspects are identified, how charging decisions are made, how trials are conducted, and how punishments are imposed’.49 48 BlackLivesMatter, ‘About’, https://blacklivesmatter.com/about/, accessed 07 April 2021. 49 Roberts, D.E., ‘Constructing a Criminal Justice System free of racial bias: An abolitionist framework’ (2008) 39 Columbia Human Rights Law Review 261, 262.

136 Pickles Thus, it is not necessarily that criminal justice operations are imposed in a discriminatory fashion but that the very core of criminal ‘justice’ is to directly impose the maintenance of White supremacist structures, which seek to ‘other’ and oppress people of colour. At witnessing such systemic injustices, arguments calling for diversity have moved to more radical heights – in line with movements such as BlackLivesMatter and DefundThePolice – to call for the potential abolition of the criminal justice system as we know it. Penal abolitionism has a long history within criminological discourse, with scholars such as Roberts arguing that this should occur through the redirection of funds to rebuild the neighbourhoods that have been overpoliced and decimated by the criminal justice system, and to infuse high poverty and low-income areas with resources. Such a framework seeks to envisage new alternatives to viewing criminal justice as the dominant way to address social inequalities and inequities.50

LGBT+ people and criminal justice The role of how sexuality, queer, and trans identity is embodied within the criminal justice system often goes neglected in diversity work. Academic, media, and political interest in this area is growing, however, particularly in relation to trans women’s experiences of incarceration. This being said, criminological and criminal justice literature in the UK in relation to LGBT+ people is limited. LGBT+ experiences of the criminal justice system – as victims, offenders, or working within – is shaped by the historic realities of persecution. For centuries, the criminal justice system has systematically persecuted and criminalised LGBT+ people51 to protect heteronormative ideals and values. It is therefore important for this chapter to include this history and examine the experiences and treatment of LGBT+ people by the criminal justice system. The first formal (legal) prohibition used to target same-sex activity came in the form of the Buggery Act 1533, outlawing anal and oral sex, and bestiality. Without a formal police presence – which was not created until the early 1800s – it is likely homosexuality was ‘policed’ and regulated through social opprobrium rather than any criminal justice intervention. The offence of gross indecency was introduced in 1885, however, specifically outlawing male sexual relationships with other men. This Act led to decades of police persecution and saw police officers entrap, abuse, blackmail, and degrade men engaging in same-sex relations for decades. This was exemplified more notably during a police raid on Stonewall Inn – an LGBT+ bar – which resulted in riots between the police and LGBT+ locals. After growing public concern over the incarceration of men who had sex with men, the Wolfenden Report52 was published in 1957, recommending the 50 ibid. 51 It should be noted here that legislation and legal structures have been used to directly target men who have sex with men rather than women who have sex with women. However, criminal justice agencies have no doubt persecuted other groups. 52 Scottish Home Department, Report on the Committee on Homosexual Offences and Prostitution (Home Office, 1957).

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decriminalisation of homosexuality. The Sexual Offences Act 1967 subsequently decriminalised sex between men over the age of 21 when engaged in privately. However, despite this decriminalisation, the law continued to carry its centuries long legacy of actively discriminating against non-heterosexuals. Most notably, Conservative Prime Minister Margaret Thatcher introduced ‘Section 28’ of the Local Government Act 1988, outlawing local authorities and education establishments from ‘promoting’ homosexuality or teaching acceptability of homosexuality. Encouragingly, this was repealed in 2000 in Scotland, and in 2003 in Northern Ireland, England, and Wales. The millennium marked a shift in the legal sphere where legal prohibitions were lifted, and protective legislation was created to benefit gender and sexual minorities. The age of consent was lowered and equalised to 16 for same-sex sexual relations. Same-sex couples were granted adopted rights in 200253 and were allowed to engage in civil partnerships in 200454 and civil marriages in 2013.55 Section 146 of the Criminal Justice Act 2003 included sexuality, disability, and transgender identity within hate crime protections, allowing for an increase in sentences for crimes aggravated by these three categories. Since 2012, men who were historically prosecuted of same-sex relations have been able to remove this from their criminal record.56 It was not until 2017, however, that thousands of men – estimated at 50,000 – who were cautioned and convicted under historic legislation outlawing homosexuality received a formal pardon from the Government, through what is informally known as the Alan Turing Law.57 Many who were pardoned, including Alan Turing, had already died whilst criminalised by the State, resulting in posthumous pardons. This marked shift in treating LGBT+ people as victims has accumulated an extensive body of hate crime literature, including relations with the criminal justice system, especially with the police. However, LGBT+ representation within the criminal justice system, and the experiences of LGBT+ offenders has received minimal attention. According to the Diversity and the Bar report,58 sexual orientation ‘is the monitoring category with the second lowest response rate, with 47.4% providing some information’ pertaining to their sexuality. From these data, it was found that 0.8%, 0.5%, and 1.8% of respondents were bisexual, lesbian, or a gay man, respectively. It is difficult to discern the reasons why 52.6% of the Bar did not provide any details about their sexual orientation, but based on these data, it can be inferred that very few LGB people are working at the bar. Likewise, no demographic data are collected on police officer’s sexuality or the number of trans people in the police. Thus, the picture of how diverse and representative the criminal justice system is in terms of LGBT+ people is very unclear, with understandings of the experiences of LGBT+ people working within the system being 53 54 55 56 57 58

Adoption and Children Act 2002. Civil Partnership Act 2004. Marriage Equality (Same Sex) Act 2013. Protection of Freedoms Act 2012. Policing and Crime Act 2017. Bar Standards Board, Diversity at the Bar, 2019 (Research Report, 2020) 22.

138 Pickles sketchy at best. However, in 2013 Jones and Williams carried out a survey on 836 LGB police officers – one of the largest to be conducted – and found that 20 per cent experienced discrimination from fellow officers, with BME gay men experiencing the highest levels of discrimination.59 Although an incredibly high number (one fifth) experienced discrimination, this is a marked shift from earlier studies conducted in the early 1990s, which found police occupational cultures significantly hostile to LGB police officers, who often suffered professional humiliation, with cases of straight officers refusing to work with them.60 However, spurred on by equality workforce agendas prompted by Macpherson, significant improvements have been made to policing practice, such as the establishment of LGBT liaison officers to better engage with local LGBT communities. Although these measures have been put in place to reframe LGBT+ people from criminals that needed to be prosecuted in order to keep traditional social values safe, towards victims that require criminal justice projection from violence, it is contestable that shifts in moral organisation efforts have had a substantial impact. For instance, from a survey of 242 LGBT people, Pickles found that 60 per cent of respondents believed that the police did not take anti-LGBT hate crime seriously, and only 4 per cent would report to the police if they were a victim of hate crime.61 Other studies similarly suggest that whilst small attitudinal shifts have occurred, in that younger generations of LGBT+ people view the police more favourably than older generations, in part due to the history of persecution directly experienced by older LGBT+ people, they generally still view the police with lower levels of legitimacy than nonLGBT+ people.62 Further, according to a recent survey of 593 LGBT people, trans people specifically, despite being ‘more likely to experience heightened levels of threat, vulnerability, and anxiety compared with non-trans LGB people’, have a profoundly negative view of the criminal justice system and feel that the police are ineffective in tackling anti-LGBT+ hate crime and are not respectful to them as victims.63 Consequentially, at present, there are significant issues in LGBT+ people achieving criminal justice within the current system. The prison system is also ill-equipped to support and appropriately house LGBT+ offenders who are incarcerated. Mia Harris’ thesis64 explored this topic in 59 Jones, M. and Williams, M.L., ‘Twenty years on: lesbian, gay and bisexual officers’ experiences of workplace discrimination in England and Wales’ (2013) 25 Policing & Society 188. 60 Burke, M., Coming out of the Blue (Continuum, 1993); Burke, M., ‘Homosexuality as deviance: The case of the gay police officer’ (1994) 34 British Journal of Criminology 192. 61 Pickles, P., ‘Policing hate and bridging communities: A qualitative evaluation of relations between LGBT+ people and the police within the North East of England’ (2020) 30 Policing & Society 741. 62 Daria, L.M. and others, ‘Assessing LGBT people’s perceptions of police legitimacy’ (2020) 67 Journal of Homosexuality 885. 63 Walters, M.A. and others, ‘Hate crimes against trans people: Assessing emotions, behaviors, and attitudes toward criminal justice agencies’ (2020) 35 Journal of Interpersonal Violence 4583. 64 Harris, M., Queer in the Prison? What Does it Mean to Be ‘Out’ Inside? (Doctoral Thesis, University of Oxford, 2019).

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comprehensive detail, finding that prisons were heteronormative and cisnormative institutions, resulting in LGBT+ prisoners facing significant issues when forming relationships, being accepted by other inmates, and being able to receive the adequate support required for their personal needs. Indeed, most prison establishments directly ban sexual relationships between inmates allowing officers to homophobically police contact between inmates by punishing them for physical forms of affection such as hugging.65 Non-heterosexual men are at higher risk of experiencing sexual violence within the prison setting but are less likely to be believed due to the myth that gay and bi men are hypersexual and would consent to any sexual proposition.66 Meanwhile, trans prisoners are often placed in greater risk of violence and exploitation due to housing them in inappropriate gender prisons. For instance, trans women being held in men’s prisons are more likely to experience violence due to their gender non-conformity in such a highly masculinised setting, whilst trans men are highly vulnerable to physical and sexual abuse from other men, especially if they have vaginas. Trans prisoners are therefore segregated for their own protection, increasing the experience of isolation during incarceration. There are also cases of trans people being forced to adopt gender conforming clothes and to behave in gender normative ways, such as getting their hair cut and nails shortened. As such, there are serious equality and diversity issues facing the criminal justice system in terms of the representation and treatment of LGBT+ people. At the time of writing, few prisons have the adequate means to provide and continue hormonal treatment for trans people, with many prisons requiring receipt of hormones obtained in the community.67 Whilst facing these personal risks, trans prisoners – especially trans women – are perceived to be inherently of risk to other inmates due to the belief that they are more likely to rape or retraumatise other inmates, despite little evidence to support this.68 What is interesting is the lack of research on LGBT+ people within prisons, and even more scarce, data on the number of LGBT+ people working within the prison service. No official data are collected on sexuality and gender, reinforcing the idea that heterosexuality is the presumed standard default within prison settings, and emblematic of the heteronormative and cisnormative culture that exists in all of the agencies comprising the criminal justice system.

65 Mogul, J.L., Ritchie, A.J. and Whitlock, K., Queer (In)Justice: The Criminalization of LGBT People in the United States (Beacon Press, 2011). 66 Wakefield, C. and Spivak, A.L., ‘Lesbian, Gay, Bisexual, Transgender, and Queer offenders: Sexual orientation, gender identity, and incarceration’ in K.D. Dodson (ed.), Routledge Handbook on Offenders with Special Needs (Routledge, 2018). 67 Mogul, J.L., Ritchie, A.J. and Whitlock, K., Queer (In)Justice: The Criminalization of LGBT People in the United States (Beacon Press, 2011). 68 Karen White is a trans prisoner who, despite having previous rape convictions, was placed in a woman’s prison and subsequently sexually assaulted several inmates. This case arguably is emblematic of prison allocations overlooking appropriate safeguarding and risk assessment measures rather than being indicative of any inherent risk that trans people pose. Many prisons are reviewing their policies in light of this case.

140 Pickles

Conclusion As a consequence of growing public scrutiny on the unethical maltreatment of minority groups at the hands of the criminal justice system, greater emphasis is placed on diversity measures and representation to ensure equitable and respectful treatment of those working within and standing before criminal justice. As a social institution, the criminal justice system and its agencies are reflective of wider social power dynamics, being premised upon the patriarchal, White-centric, and heteronormative structures that organise society. In this context, pressure to reform criminal justice practice and adapt its legal measures by adopting higher levels of diversity have been seen in the contemporary system. This chapter has questioned the extent to which this has been achieved and has highlighted the historic contexts from which issues facing minoritized and diverse groups emerged. Improvements in the treatment of women, representation of Black and Asian people, and attitudes towards LGBT+ communities have been made in the past decade. In particular, there is at least an awareness by criminal justice agencies of the role diversity has to play in better policing and processing minoritized communities. However, it would be erroneous to assert that the criminal justice system is truly representative of the general population or that the improvements made have been radical. Many of the positive changes pertaining to recruitment have only seen marginal improvement and minoritized groups still continue to face prejudicial treatment and over-zealous policing from the criminal justice system. Contemporaneously, legitimacy of the current system is in serious question globally, as modern-day movements seek to address the prejudicial and sometime lethal treatment of minoritized social groups.

9

Listening to ‘Leading Voices’ Using expert insight to identify challenges to, and suggestions for the improvement of, rape investigation and prosecution in England and Wales Benjamin A. Hine, Anthony D. Murphy, Emma Williams and Bimsara Kennath Widanaralalage Don

Introduction Despite a plethora of reviews and reforms aimed at improving the conviction rate in cases of rape across the criminal justice system, the long-standing problem of attrition remains significant in England and Wales.1 National figures place the conviction rate at only 1.5 per cent,2 with just 14 per cent of all cases in London submitted to the Crown Prosecution Service (CPS) for a charging decision, and 3 per cent convicted.3 This persistent pattern of attrition occurs in cases which often involve some of the most complex and vulnerable victims that the police and wider criminal justice system have contact 1 See generally, Angiolini, E., ‘Report of the independent review into the investigation and prosecution of rape in London’ (Crown Prosecution Service, 2015), available here: https://www.cps.gov.uk/publication/report-independent-reviewinvestigation-and-prosecution-rape-london-rt-hon-dame-elish, accessed October 2021. Hohl, K. and Stanko, E., ‘Complaints of rape and the criminal justice system: Fresh evidence on the attrition problem in England and Wales’ (2015) 12 (3) European Journal of Criminology 324. Murphy, A. and others, ‘Lessons from London: A contemporary examination of the factors affecting attrition among rape complaints’ (2021) 28(1) Psychology, Crime and Law, https://www.ta ndfonline.com/doi/abs/10.1080/1068316X.2021.1880584, accessed October 2021. Stern, V., ‘The Stern review: A report by Baroness Vivien Stern CBE of an independent review into how rape complaints are handled by public authorities in England and Wales’ (Government Equalities Office, 2010), https://webarchive.na tionalarchives.gov.uk/ukgwa/20110608162919/http:/www.equalities.gov.uk/pdf/ Stern_Review_acc_FINAL.pdf. Williams, E., ‘Police decision making in rape investigations: Exploring the barriers to reform’ (2019), PhD Thesis, London South Bank University School of Law and Social Sciences. 2 Home Office, ‘Crime outcomes in England and Wales, year to December 2018: Data tables’ (2019), https://www.gov.uk/government/statistics/crime-outcomes-in-engla nd-and-wales-year-to-december-2018-data-tables, accessed October 2021. 3 Mayor’s Office for Policing and Crime, ‘The London Rape Review: A review of cases from 2016’ (2019), https://www.london.gov.uk/sites/default/files/london_rape_ review_final_report_31.7.19.pdf, accessed October 2021.

DOI: 10.4324/9781003143321-9

142 Hine, Murphy, Williams and Widanaralalage Don with,4 and is further problematised by the increasing number of rape allegations made to the police at a time when austerity measures have impacted on the capacity to deal with these cases effectively.5 Due to the scale of the issue, attrition in rape cases has been subject to academic scrutiny for several decades, beginning in the 1970s when feminist scholars began challenging the response to rape by the criminal justice agencies.6 As such, issues such as the impact of rape myths7 the ‘real rape’ stereotype,8 police sub-culture,9 attitudinal factors,10 the presence of drugs and alcohol in rape allegations,11 plus a lack of physical evidence,12 have all been examined. However, despite some improvement resultant of recommendations aimed at addressing these factors, fair access to justice remains rare for many victims of rape.13

4 See generally, Mann, N. and others, ‘Policing in a time of austerity: Understanding the public protection paradox through qualitative interviews with police monitoring officers’ (2021) 14(3) Policing: A Journal of Policy and Practice, 630. Millie, A., ‘What are the police for? Re-thinking policing post-austerity’ in J. Brown (ed.), The Future of Policing (Routledge, 2014). 5 ibid. 6 Brownmiller, S., Against Our Will: Men, Women and Rape (Simon & Schuster, 1975) and Kelly, L., Surviving Sexual Violence (University of Minnesota Press, 1988). 7 Home Office, ‘Crime outcomes in England and Wales, year to December 2018: Data tables’ (2019), https://www.gov.uk/government/statistics/crime-outcomes-in-engla nd-and-wales-year-to-december-2018-data-tables, accessed October 2021; Mayor’s Office for Policing and Crime, ‘The London Rape Review: A review of cases from 2016’ (2019), https://www.london.gov.uk/sites/default/files/london_rape_review_ final_report_31.7.19.pdf, accessed October 2021]; Hine, B. and Murphy, A, ‘The impact of victim–perpetrator relationship, reputation and initial point of resistance on officers’ responsibility and authenticity ratings towards hypothetical rape cases’ (2017) 49 Journal of Criminal Justice 1. Hine, B. and Murphy, A., ‘The influence of ‘High’ vs. ‘Low’ rape myth acceptance on police officers’ judgements of victim and perpetrator responsibility, and rape authenticity’ (2019) 60 Journal of Criminal Justice 100. Hine, B. and others, ‘Mapping the landscape of male-on-male rape in London: An analysis of cases involving male victims reported between 2005 and 2012’ (2021) 22 (1) Police Practice and Research, 109. 8 Estrich, S., Real Rape (Harvard University Press, 1988). 9 Javaid, A., ‘Police responses to, and attitudes towards, male rape: Issues and concerns’ (2015) 17(2) Police Science & Management 81. 10 Murphy, A. and Hine, B., ‘Investigating the demographic and attitudinal predictors of rape myth acceptance in U.K. Police officers: Developing an evidence-base for training and professional development’ (2019) 25(1) Psychology, Crime and Law 69. 11 Sims, C. and others, ‘Rape blame as a function of alcohol presence and resistance type’ (2007) 32(12) Addictive Behaviors 2766. 12 Mayor’s Office for Policing and Crime, ‘The London Rape Review: A review of cases from 2016’ (2019), https://www.london.gov.uk/sites/default/files/london_rape_ review_final_report_31.7.19.pdf, accessed October 2021. 13 Horvath, M. and others, ‘Critical issues in rape investigation: An overview of reform in England and Wales’ (2011) 1(2) The Journal of Criminal Justice Research; and Williams, E. and others, ‘Policing and mental health: Do we really get it?’ in J. McDaniel, K. Moss and K. Pease (eds), Policing and Mental Health: Theory, Policy and Practice (CRC Press, 2020).

Listening to ‘Leading Voices’ 143 The drive to more formally embed such academic evidence within policing14 as part of the current professionalisation agenda15 has also had limited success in influencing police practice in rape investigation, despite rape being one of the most widely researched areas across disciplines. For example, in a recent study, Williams16 identified that officers’ understanding and knowledge of the academic work available in this field was limited and rarely featured in training narratives for officers involved in the investigation of rape. Instead, officers frequently drew on their own experiential knowledge when making decisions about cases for which they had responsibility, a finding supported by a wealth of previous research.17 Decisions were also influenced by performance requirements representative of a policing environment which predominantly focuses on the achievement of judicial disposals, whilst ignoring other markers of success (e.g., victim satisfaction). There exists, therefore, an apparent disconnect between academic theory and professional practice in relation to rape investigation and prosecution. This is perhaps the result of two principal issues: a lack of practitioner voices within research about rape case attrition, and the absence of effective knowledge transfer between academic and professional bodies. This manuscript seeks to provide an example of how to begin to address both. The current piece brings together a range of experts or ‘Leading Voices’ to provide their unique perspectives on the current landscape of rape investigation in England and Wales, with specific reference to what they believe the principal challenges to effective support and prosecution in rape cases to be. Crucially, contributors have also provided their assessment of the actions that need to be taken to resolve these challenges, and thus improve the experiences and justice outcomes for rape victims. It is hoped that this chapter thus provides a direct transfer of practitioner knowledge into the hands of interested academics, for use in producing effective, impactful research to begin to bridge the gap between evidence-based practice and practice-based evidence.

Method The recruitment of participants for this piece was achieved through two avenues. We either contacted individuals with whom we had pre-existing relationships, or organisations were contacted requesting the participation of an individual deemed 14 See, Lum, C. and Koper, C., ‘Evidence-based policing’ in R. Dunham and G. Alpert (eds), Critical Issues in Policing (Waveland Press, 2013) and Lum, C. and Koper, C., ‘Evidencebased policing: Translating research into practice’ (Oxford University Press, 2017). 15 Holdaway, S., ‘The re-professionalization of the police in England and Wales’ (2017) 17(5) Criminology & Criminal Justice 588. 16 Williams, E., ‘Police decision making in rape investigations: Exploring the barriers to reform’ (2019), PhD Thesis, London South Bank University School of Law and Social Sciences. 17 Hine, B. and Murphy, A., ‘The impact of victim–perpetrator relationship, reputation and initial point of resistance on officers’ responsibility and authenticity ratings towards hypothetical rape cases’ (2017) 49 Journal of Criminal Justice, 1.

144 Hine, Murphy, Williams and Widanaralalage Don appropriate. Prospective organisations and individuals were approached based on their membership to one of four core areas: third sector organisations (i.e., charities providing support to rape victims), police forces, prosecutorial services, and government and/or oversight bodies. The only criterion for contribution was that the individual in question had a significant leadership role within their organisation, contributing to the national discourse on rape. Preliminary inquiries were accompanied by a brief overview, describing the nature of the project, the type and length of submission required, routes to dissemination, and approximate timeline. Once individuals had expressed an initial interest, a more detailed information sheet was sent, and, if willing, participants signed and returned a consent form. Importantly, this outlined that participants waived the right to anonymity, and would have their name published alongside their submission. It also outlined that participants had the right to withdraw their participation at any point up until the point of submission of a completed manuscript. The information sheet also outlined rights concerning draft review and editing processes ahead of final submission (i.e., participants would have multiple chances to review submissions, would have ten working days to submit changes at each review point, and would provide formal authorisation on a final draft before submission). Upon final submission, contributors were provided with a debrief sheet, outlining the importance of the project and anticipated timelines for dissemination. Contributors were asked to provide a written piece between 500 and 1,000 words in length, which answered three questions. First, their assessment of the current landscape of rape investigation on a national scale. Second, what they viewed the principal challenges to effective rape investigation and prosecution to be. Third, what they viewed as the priority areas/actions that should be investigated/taken to resolve the challenges they identify. Contributors were principally focused on pre-COVID-19 related challenges but were free to address these where appropriate.

Submissions Service providers Amelia Handy – Policy Officer – Rape Crisis The criminal justice system has failed to meet the increased demand in victims of rape and sexual abuse attempting to access it. This is due to multiple interconnected factors; all major issues with rape investigations are related to other problems within the criminal justice system. Aside from resourcing specialist Rape Crisis Services, the police, and CPS adequately, the underlying cause of most of these issues eventually relates to sexist myths and stereotypes, and preconceptions around who can be deemed a credible witness. Frontline Rape Crisis workers testify to the attitudinal issues of individuals within certain forces or certain prosecutors; the national picture clearly shows that these issues are a by-product of

Listening to ‘Leading Voices’ 145 systemic problems in the criminal justice system, from the very start of a police investigation, to CPS case building, and Courts. Disclosure of data, mainly in terms of mobile phone extraction, has caused investigations to be protracted, resulting in a significant backlog of cases in the system, which is now being scrutinised following the Information Commissioner’s Office (ICO) report on Disclosure. Frontline Rape Crisis workers saw these invasive disclosure practices increase significantly following the collapse of a number of cases before trial that pointed away from the defendant. This reactionary policy change post-Liam Allen has disproportionately affected rape and sexual abuse victims, as for no other crime is so much information required to be disclosed before a decision to prosecute a case is made. Longer investigations risk further worsening attrition rates, as timeframes leave victims without closure for an extended period. In some police force areas, it is typical for investigations to last over two years. Despite the invasion of privacy due to the disclosure process, victims consistently give up their personal data in order to pursue justice. However, in too many of these cases, peripheral and irrelevant information that could, in some or any way discredit the witness, is used as an excuse to close the case. Conversely, there are also issues with No Further Action (NFA) decisions being taken very quickly by police, with little or virtually no investigation. Yet police disclosure practices are symptomatic of a larger problem, related to demands from the CPS. Rape Crisis Independent Sexual Violence Advisors (ISVAs) have shared that when challenged on the need to disclose large quantities of data, police cite the CPS’ high investigative threshold. CPS letters outlining why they are dropping cases frequently indicate that they are pre-empting jury decisions. Rather than pre-empt jury decisions and biases, we maintain that prosecutors are responsible for robust case-building. The above clearly demonstrates a negative and systemic feedback loop where the CPS are pre-empting a (biased) jury, and the police are pre-empting CPS requirements for vast amounts of additional material. Presumption of jury disbelief by RASSO prosecutors and the removal of a merits-based approach has resulted in the large slump in cases being prosecuted. An honest and transparent reckoning is paramount to establishing what happened to CPS charging decisions in the last few years. Evidence collected for a legal case against the CPS contains the most compelling of evidence; most damning of all is the dossier of rape cases that were dropped by the CPS. The rationale for dropping these cases was consistently based on myths and stereotypes, as evidenced in the No Further Action letters received by victims. Whether it can be proven to be an official change of approach or not, the outcome of CPS practice has been disastrous for rape victims, denying them even the slightest semblance of justice. The joint HMCPSI-HMICFRS inspection may go some way to explaining the fault-lines between the police and CPS practice, where both agencies apportion responsibility for errors onto the other. However, new mechanisms for scrutinising the nature of liaison between police and CPS are required, as it is entirely opaque and untraceable to anyone outside of the two agencies. All Early Investigative

146 Hine, Murphy, Williams and Widanaralalage Don Advice (EIA) interactions need to be recorded with clear outcomes, and this should help to enable understanding of how, when and why a case is dropped. This scrutiny needs to be supported by a clear equalities analysis, looking into dropped cases by sex, gender, race and age. Police and CPS should be required to undergo advanced trauma-informed training and guidance for rape investigation and case building. Both agencies also need to undergo thorough training in order to confidently challenge rape myths and stereotypes. There is also a need for transparency and fairness around victim appeals processes; there are currently no obtainable data around the proportion of Victim’s Right to Review (VRR) decisions that are overturned by the CPS. In both the police and CPS, there needs to be a more rewarding career route in rape specialism in order to attract those with commitment, and both agencies need to be resourced appropriately to meet the increased volumes of cases in recent years. Finally, specialist Rape Crisis Centres need sustainable resourcing also. There is some research that evidences that Rape Crisis ISVAs significantly improve a victim’s experience of the criminal justice system. The benefit of the Rape Crisis ISVA is that they work closely with other specialist sexual violence and abuse workers in their staff teams. Pre-trial therapy needs to be available to victims, and police forces need to make victims aware of their right to access counselling and therapy from specialist sexual violence and abuse services such as Rape Crisis services, regardless of whether there is an open police case. Rape Crisis counsellors offer confidential, free, wraparound services for victims. For victims of rape and sexual abuse, recovery is not a linear process, and the need for therapy far extends the length and duration of the criminal justice system. It is key that with such a punishing criminal justice system, that these specialist services are resourced in order to support the victim in efforts to cope and recover. It is also key to resource Rape Crisis Centres as they will support the many more victims who will never access the criminal justice system. Alex Feis-Bryce – CEO – Survivors UK CURRENT LANDSCAPE AND CHALLENGES

Only a very small proportion of incidents are reported to the police and, of those that are, the majority do not result in a guilty verdict. With a process that is invasive, retraumatising and unlikely to achieve a satisfactory outcome, it is no wonder that so few survivors report to the police. There are a whole range of barriers to reporting, which are widely acknowledged by experts and practitioners alike. There are also additional barriers to reporting for people from structurally oppressed communities including people of colour, migrants, LGBTQ+ people and sex workers. Underpinning these is the knowledge that engaging with the process is ultimately unlikely to result in a positive outcome. Another factor, which discourages male victims in particular, is the notion that sexual violence is something only perpetrated by men, against women. This gendered view of sexual violence serves to silence male victims and can exacerbate the

Listening to ‘Leading Voices’ 147 feeling experienced by many of our clients at SurvivorsUK that what happened to them brings into question or undermines their masculinity. For example, the fact that policy frameworks for sexual violence are titled as ‘Violence Against Women and Girls (VAWG)’ strategies, and the term ‘sexual violence’ is often interchangeable with ‘violence against women and girls’ can perpetuate the silencing of male and nonbinary survivors. Indeed, whilst the #MeToo movement has increased public awareness about sexual violence, and empowered many people to come forward, it hasn’t significantly magnified the voices of male, trans and non-binary survivors. The criminal justice system is also chronically and terminally underfunded, and the lack of resources at the disposal of the police and the CPS has in part contributed to a growing conservatism in prosecuting decisions and the notion that someone needs to be perceived as a ‘good witness’ for their case to get to court. For the tiny proportion of SurvivorsUK clients whose cases get to trial, the experience is often traumatising or retraumatising. The time cases take from report to court, linked to the scarcity of resources, also means that many survivors are living with oftenunmanageable levels of uncertainty and stress for a sustained period of time. The court process itself is at the heart of the issue. Our adversarial system, which pits prosecution against defence in a tactical joust, usually creates an environment that is particularly distressing for survivors. For example, prosecutors typically employ tactics which second-guess jurors’ emotional responses rather than focusing on the evidence. In turn, defence tactics typically focus on fostering doubt amongst the jury, which is often achieved by presenting survivors and witnesses as unreliable or of ‘questionable character’. Survivors also frequently have their phones and other devices taken away from them, with all correspondence submitted as evidence; an intrusive process which can exacerbate anxieties when giving evidence in court. I have heard frequently that the knowledge that the contents of their phone had been viewed filled survivors with a very real fear that irrelevant information would be ‘used against them’. This process creates an environment where rape myths then prevail. For male survivors, this means facing inferences by the defence that, due to them being male, there is an expectation that they should have physically fought off their perpetrator(s). Moreover, survivors identifying as gay or bisexual face the homophobic stereotype that queer men are inherently promiscuous, and that consent is thus assumed. Another significant aspect in some sexual violence trials, particularly ones where a defendant is someone of perceived higher social status than victim, is to focus on ‘character’. It is not uncommon for alleged perpetrators, particularly those in positions of power, to line-up a number of well-respected people to give character references prior to the verdict. In contrast, this is not allowed for victims or witnesses even if bringing their character into question is the foundation of the defence. The “Seeing is Believing” Report commissioned by Dame Vera Baird QC, found that previous sexual history was used in 11 of the 30 cases observed and in 7 of those 11 cases the proper procedure – to apply for the judge’s consent well ahead of trial notifying the prosecution – was simply ignored which is another illustration of the prevalence of tactics to undermine survivors irrespective of the impact.

148 Hine, Murphy, Williams and Widanaralalage Don WHAT CAN BE DONE?

Whilst the fundamental issues are increasingly acknowledged, the scale of the reforms which are routinely proposed and/or enacted rarely come close to matching the scale of the problem. In terms of reducing attrition rates, the greater the specialist knowledge and training of police officers, and the earlier specialist officers are involved in the process, the better. In London, the use of Sexual Offences Investigation Trained (SOIT) officers and specialist units working closely with partners like SurvivorsUK makes a significant difference, and diminishing resources for this work is a cause for genuine concern. Independent Sexual Violence Advisor (ISVA) services are also crucial and must be protected on a long-term basis. Significant and sustained funding for such services in desperately needed UK-wide. More broadly, we must adopt a national narrative that is more open and inclusive, and which acknowledges that sexual violence is underpinned by power dynamics and privilege, regardless of the characteristics of the perpetrator or victim. We must also fundamentally challenge the myths and/or gender stereotypes which come into play at every stage of the process. The language utilised in both policy and general discourse also needs careful consideration, as at present some survivors (e.g., men) feel silenced. Finally, the knock-on effect of courtroom processes for the whole system is clear. The CPS base their prosecution decisions on whether there is a reasonable hope of conviction; the police, in turn, base their charging decisions on whether there is a reasonable hope that they will be prosecuted. Reforms must take steps to address this kind of forward-planning, perhaps by improving communications between the different elements of the system. In the absence of reform which reflects the scale of the problem, the criminal justice system is likely to continue failing a significant proportion of survivors of sexual violence and the wider public. Police forces Detective Chief Superintendent Helen Lyons – Senior Responsible Officer for Rape – Metropolitan Police Service Locally and nationally, rape prosecutions and convictions have more than halved in the last three years and yet allegations have risen. What does this mean? That we have raised awareness within society, that such violence is not acceptable, is illegal, but that we struggle to build an effective case file to a national standard wherever we are in the UK? I welcome the increased and continuing sense of concern and scrutiny, and I firmly believe that we need to fully identify the underlying reasons why we are failing to get more cases to charge and trial. If we don’t identify and recognise the detailed reasons why a victim does not feel able to continue to support a

Listening to ‘Leading Voices’ 149 prosecution or why a rape investigation has taken so long to investigate, then we will continue to fail victims. We know that we need to change how we investigate rape because we know that recommendations, action plans and existing policy, are not driving an increase in victim reassurance nor numbers of successful prosecutions. In the Metropolitan Police we are currently developing a new public protection plan, which includes significant focus in areas of concern. For example, we struggle to recruit and retain officers and detectives in public protection. We are striving to make it an aspirational role and that means pushing for sufficient officers (capacity) to be both trained in specialist investigation and prosecution of RASSO (capability) and also be supported from a health and wellbeing point of view. The volume of cases individual officers are expected to investigate far exceeds their ability to deliver a consistently excellent service. The pressure on officers, dealing with secondary trauma on a daily basis will have an impact upon their psychological wellbeing and if they struggle, so too will the relationship between the officer and the victim; the two go hand in hand. In London, we have been working really hard with both the CPS and victim support networks to increase communications. This may sound at odds with the fast pace of social media but actually this is about talking to each other at the very earliest opportunity. Evidence led policing in London, shows us that the use of early investigative advice (EIA) has hugely impacted upon the quality and timeliness of cases and the greater understanding between officer and prosecutor. For example, I believe that there is a more suitable way of working with ISVAs, I think they should be included more in the investigations, because if they are suitably informed, and have the right information, they can bring their expertise to the case more effectively and the quality of victim engagement will improve. It must be recognised that the challenges to effective rape investigation go far beyond statutory relationships. For example, surveys have shown that many people and therefore potential jurors are unclear about what the term rape means. I therefore think that more work is required to raise awareness in society as to the legal meaning of consent, what it means, and how campaigners could work closer with both statutory and third sector organisations. More work is also required to encourage LGBT+ reporting. Statistically, more females report rape allegations than men, but we know that there is much under reporting for the latter group of victims. There also needs to be a greater focus required on suspect behaviour. Technological downloads take too long, and lab submissions are currently held for a minimum of four months. More trained officers are required, and a timelier response is required from lab submissions. Moreover, third party disclosure takes far too long and is inconsistent across agencies. To improve the above, several important steps must be taken. First, to have suitable experienced resources in rape investigation departments and ensure volume of cases is matched to capacity and capability. Second, to encourage early communication with both prosecution and defence to consider reasonable lines of

150 Hine, Murphy, Williams and Widanaralalage Don enquiry. Third, to implement improved training for officers and prosecutors and society as to what sexual trauma actually means and the sensitive response and understanding it requires. Detective Chief Inspector Judith Holmes – Head of Rape and Serious Sexual Offences Strategy – Greater Manchester Police Greater Manchester has a population of around 2.9 million people and a diverse range of communities that reside within it, including the largest student population in Europe. GMP recorded 3674 rapes in the fiscal year 2018–19 which is an increase of 392 per cent from 2011–12, when there were 771 rape crimes recorded. The number of rape cases which are charged annually has remained static, although the percentage has decreased significantly, perhaps partly due to the increase in number of reports. There is an improved societal understanding of child sexual abuse and exploitation, with the national media attention on those who commit such crimes being reported in the media. This, coupled with Operation Yewtree and Operation Hydrant,18 has had an impact on victims’ confidence to report nonrecent events. The police have also worked hard to establish better recording when victims report rape and sexual assault, but as Home Office Counting Rules change annually, comparing annual demand data is difficult. The increase in reporting coincided with a decrease in police officer numbers of 2000 and the austerity measures we are all familiar with. This has brought significant challenges for us in Greater Manchester but also on a national scale, with training often being reduced as part of cost savings. The current criminal justice system is not always victim-focused, and victims are often further traumatised by the process. In my experience, not all victims of sexual violence contact the police wanting a criminal justice outcome, however there are no alternatives available within the confines of the current system. Domestic Abuse, Stalking and Harassment and Honour-based violence risk identification, assessment and management model (DASH) can lead a victim to disclose that they have been raped or sexually assaulted, but the victim may not wish this to be brought up in a prosecution. This can be challenging and complex for a police investigator and indeed the CPS. For some victims, being able to tell someone in authority about what happened to them can be enough for them to find relief and they can move on. Other victims come to the police wanting a prosecution and to have the offender placed on trial. Rape is one of the only crime types where it comes down to one person’s word against another and the understanding of consent. Although there may be forensic evidence, CCTV or other supporting evidence, the statement of the victim and their testimony at trial is crucial in securing a conviction. There needs to be 18 Operation Yewtree and Operation Hydrant are both police investigations into historic sexual abuse allegations, predominantly the abuse of children, by various individuals of public prominence.

Listening to ‘Leading Voices’ 151 enhanced training to ensure that the police have a trauma-informed approach to victims of sexual violence, but whilst under financial constraints this has been challenging to deliver. The majority of people live their lives online and digital evidence has been under the microscope recently in both the media and in the legal system. This is one of our greatest challenges; to balance the needs of the victim and their right to privacy, with the requirement to investigate. The role of the police is to gather the evidence and lay it before the CPS who ultimately make the decision on charge. A recent Court of Appeal judgement (Bater-James and Mohammed [2020] EWCA Crim 790)19 has provided much needed clarity around this and I anticipate that this will greatly improve the police response. Another key challenge for policing is developing a whole system approach with partners to prevention communications campaigns, which have historically been perceived as victim blaming instead of focusing on consent and the offender. There is still an element of personal safety messaging which needs to be incorporated, with the numbers of accidental deaths and injury due to alcohol related incidents in our cities and towns. Greater Manchester is developing a sexual violence harm reduction strategy which will incorporate the offender centric approach and focus on this during the communication campaign. Last year my colleague DCI Paddy Goodrich worked with the University of Manchester to commission a theatre company who delivered interactive workshops to students to gain a better understanding of consent. Greater Manchester are fortunate to have St Mary’s Sexual Assault Referral Centre which was the first of its kind in the country and I work closely with the team, as well as our other partner agencies such as Survivors Manchester and GM Rape Crisis. I am always open to challenge from our partners as they represent the voice of the victim and any learning or improvements that can be made from this. We are beginning to have a better understanding of trauma and how victims may or may not present during their interactions with the criminal justice system. A recent study showed that nearly 41 per cent of victims of rape had mental health needs and previously this may have been a barrier to prosecution.20 One area where we are improving is our capacity and quality of the staff that are trained to conduct video interviews by ensuring they have regular continuing professional development (CPD) and monitoring of their work. All our student officers are going to be trained to deal with sexual violence during their two-year probationary period, rather than having specially trained officers which is the current model. Although the Specially Trained Officer (STO) model does have some benefits, with the increase in reporting of sexual violence, all officers should be able to deal 19 For commentary, see https://www.parksquarebarristers.co.uk/news/obligations-rela tion-electronic-records-devices-fresh-guidance-court-appeal-criminal-division/. 20 Mayor’s Office for Policing and Crime, ‘The London Rape Review: A review of cases from 2016’ (2019), https://www.london.gov.uk/sites/default/files/london_rape_ review_final_report_31.7.19.pdf, accessed October 2021.

152 Hine, Murphy, Williams and Widanaralalage Don with a victim and understand PTSD and trauma. I am working closely with our partners to trial the use of crisis workers attending with police investigators to visit victims, so that their emotional needs are being met by trained professionals at the earliest opportunity. Greater Manchester has a joint rape action plan with CPS, GMCA and GMP which focuses on being trial ready. In simple terms we are focusing on improving timeliness and file quality, as the longer a victim has to wait for an outcome, the more likely they are to withdraw from supporting a prosecution. Detective Inspector Richard Palmer – Rape Investigation Team Manager – Kent Police My assessment of the current landscape is as follows: National – There is no doubt that Rape investigation nationally is a source of media and related public interest. The media headlines would suggest increased crime reporting, with falling convictions and collapsed high profile trials. Technology, disclosure and general investigative standards have all recently come to the fore and as such the police and CPS have received criticism in this area. Regional – Commenting on my own region (East Kent) Rape investigation is very much a subject of significant improvement. This area has received recent investment culminating in the setup of ‘Sexual Offences Liaison officers’ (SOLOS) and a dedicated specialist rape team (Phoenix Team). This investment and improved focus have brought with it tangible improvement. The SOLOS now provide a single point of contact and support for all rape victims, they remain focussed on their victim from the time the crime is reported until any resulting court case. They are also committed to agreed contact levels whilst ensuring the victim is referred to all suitable support services. Of course, not all rape reports end with a court case but regardless of this every rape victim is offered the services of a SOLO. The dedicated investigation team has added focus and specialism to this crime type which has resulted in more rape charges when considered against a comparable time span prior to the team’s creation. What is also vital to success in this area is the improved relationship between investigators and prosecutors. There is now far more contact and dialogue between key stakeholders in the investigation process and regular contact occurs through the management and supervisory ranks. Regionally there now appears to be a real willingness for all stakeholders to examine what they do and how they do it and seek improvement. In terms of current challenges, the following are most pertinent: Technology – which has brought with it many investigative opportunities but with these come the ability to greatly and unintentionally undermine investigations. As a society we are more dependent than ever on our personal technology therefore investigators have come to expect full access to any victim’s technology within a rape investigation and should the victim not wish to expose themselves to this level of scrutiny there is a good chance this will hinder the investigation possibly to a point the investigation will be concluded with no further action. Social media & related internet activity – People’s lives and relationships can often be documented within their social media records and what may appear harmless

Listening to ‘Leading Voices’ 153 posts, searches or contacts may have a significant impact on rape investigations. For example, within a domestic abuse relationship apparently happy/loving contacts between victim and suspect after the alleged offence may well be seized upon as undermining material despite the multitude of reasons these posts may exist. Victim scrutiny – The level of scrutiny a victim goes through to be deemed credible is significant. It is routine to examine records relating to the victim held by partner agencies (known as third party material) and as previously mentioned there is an expectation personal devices such as phones / tablets will be scrutinised. Currently, the victim’s honesty & good character must be proved involving intrusive checks. Staffing experience – After a period of austerity policy and related public sector funding cuts police numbers dropped and therefore experienced rape investigators were not replaced when they left policing. Now recruitment has restarted it will take a number of years to replace the lost experience. In response to these challenges, we need to reconsider at what point it might be appropriate to charge an offender – a rape investigation, in the vast majority of cases, will need to fully investigated prior to a charging authority being sought. This is not the case in other crime types therefore I ask is there an argument that a charging authority could be sought sooner leaving some background works for completion post charge and expediting justice for the victim. Reinvigorate a ‘prosecution team approach’ – I am of the belief that the RASSO/CPS should not essentially be ‘marking the homework’ of the investigators once an investigation is complete. I believe that lawyers should be active participants in the investigations from an early stage and assisting in the supervision of quality investigations. My force is trialling mandatory RASSO/CPS early advice whereby a prosecutor will review and assist in directing all relevant rape investigations within the first 6 weeks of the crime being reported, this has been welcomed by investigators and in my opinion can only lead to higher quality investigations. Prosecutorial services Ruth Bowskill and Lynette Woodrow – Deputy Chief Crown Prosecutors at CPS London North and South A key challenge facing current rape investigations is a lack of understanding across Criminal Justice as to why so few RASSO cases reported translate into convicted criminals and the points at which attrition occurs. This is a major concern for both CPS London North and South. In addition, there is an increasing volume of digital data and sophistication in evidence gathering techniques which may contribute to delay and lead to a right concern about personal privacy. From the London Rape Review, the vast majority of attrition appears to be before referral to CPS for a charging decision, for a multiplicity of reasons. This needs closer enquiry to ascertain how victims may be supported to remain engaged throughout the criminal justice process. The cross-Government Review

154 Hine, Murphy, Williams and Widanaralalage Don may assist with the reasons for this, and to provide better support for victims of this devastating crime and bring more offenders to Justice. The CPS currently engages with a variety of stakeholders across the criminal justice system including ISVAs and other professionals involved in the support of complainants. There is a scrutiny panel where real cases are reviewed, by a variety of support agencies, to identify lessons to learn. Collaboration with all stakeholders is crucial to improving confidence in the investigation and prosecution of rape offences. One of the challenges that Prosecutors face is a lack of understanding by the public and several other professionals of the role of the CPS and the application of the Code for Crown Prosecutors. In particular, that we do not act on behalf of the complainant and it is not part of our role to decide whether a suspect/defendant is guilty of an offence or not, that is the role of the Court. This can be a difficult concept to understand, particularly where a complainant has given their account, and they are being asked to provide additional personal or sensitive information such as third party or digital material (phone), which they may not feel has a bearing on the case. The police investigate crime. The CPS considers evidence presented by the police to take a decision whether to proceed or not to charge taking account of the Code. As part of that review, the CPS can advise the police on further reasonable lines of enquiry they should consider. Investigations can take a long time to complete. There are a variety of factors that may increase delay such as digital devices or forensic testing, family court proceedings, enquiries to be made of overseas jurisdictions or third parties or the volume and complexity of reasonable lines of enquiry that need to be carried out. In London this is a challenge due to the sheer number of local authorities and transient nature of the population which may add to the complexity of an already difficult scenario. Prosecutors can and do assist with this to ensure that lines of enquiry are proportionate and reasonable. It is important that complainants are provided with adequate information to understand why a request has been made, and the circumstances in which any information may be used in evidence, or otherwise disclosed to the defence. It may not however always be possible to disclose to the complainant the full details of why a request is being made, as it may reveal information that could jeopardise a future trial and prevent the prosecutor from being able to prosecute the case. The priority areas that should be focused upon are ensuring that the overall time for criminal justice proceedings is reduced, from first complaint, to prosecution decision and then to trial. This would require early engagement with a prosecutor to clearly focus any reasonable lines of enquiry, a reduction in time of investigation, including forensic, digital and obtaining third-party material and ability to list trials at an earlier stage. The other challenge is ensuring that complainants are supported throughout the CJ process, from complaint through to conclusion of the case, and afterwards if necessary. There is no one agency in London that is responsible for the support of victims of sexual offences, and there are varying degrees of support dependent upon the nature of the offence and location. Support is variable and access to services very much dependent upon location.

Listening to ‘Leading Voices’ 155 Critical to the engagement of complainants is their understanding, and those supporting them, of the role of the prosecutor and how decisions are made. In particular, complainants should be equipped with the knowledge of what to expect about the level of contact likely to occur between a prosecutor and complainant throughout the case and why. Long term planning is necessary to address the issues faced within the investigation of these serious offences, and long concerted effort is required, as there are no quick fixes. We need to understand what we do well and reflect on what we can do better. The Government’s ongoing cross-sector, end-to-end review into how rape and serious sexual offences cases (RASSO) are handled across the criminal justice system is considering why the number of rape and sexual offences prosecutions going to court has fallen at a time when allegations have increased significantly. The review will make recommendations for actions that can be taken to support victims and bring more offenders to justice. While the CPS will not pre-empt the findings of this review, the CPS has commenced work with the police at a national level on the development of a Joint Action Plan on RASSO. A commitment has been made to a wide-ranging, joint programme of work to develop new ways of working and pilot innovative practices to improve performance on RASSO cases, including case progression, digital capability and disclosure, specialist expertise, supporting victims, and stakeholder engagement. In July 2020, the CPS published the RASSO (Rape and Serious Sexual Offences) 2025 strategic plan.21 The overarching aim of RASSO 2025 reflects our commitment to do what we can to narrow the disparity between RASSO reports and criminal justice outcomes, as well as restoring public confidence within the CJS. We will do this by delivering a significant programme of work to take forward the following strategic themes:     

Our People: Support for the success and well-being of our people enables everyone at the CPS to thrive. Digital Capability: Our investment in digital capability helps us adapt to the rapidly changing nature of crime and improve the way justice is done. Strategic Partnerships: The CPS is a leading voice in cross-government strategies and international cooperation to transform the criminal justice system. Casework Quality: CPS legal expertise, casework quality and collaboration across the criminal justice system keep the public safer. Public Confidence: We work with partners to serve victims and witnesses and uphold the rights of defendants in a way that is fair and understood by all communities.

In developing these plans, the CPS is consulting extensively with stakeholders and, as part of that consultation, the DPP has personally met with service providers from across the UK, including in London.

21 https://www.cps.gov.uk/publication/rape-and-serious-sexual-offences-rasso-2025.

156 Hine, Murphy, Williams and Widanaralalage Don Governmental and oversight bodies Julia Mulligan – North Yorkshire Police, Fire & Crime Commissioner and the Association for Police, Fire and Crime Commissioners Joint Portfolio Lead for Victims Despite a huge amount of work and a genuine desire to improve, the criminal justice statistics on rape are not getting much better. As a victim myself, this is very important to me. I understand some of the complexities that victims face, including the agony, self-blame and confusion that often characterise the aftermath of a serious sexual assault. You only have to consider the debacle over Digital Processing Notices to see that the ‘system’ is not naturally structured around the needs of victims, as the impact of the forms on victims was clearly not understood nor appreciated. This a problem for the justice ‘system’, because without a start-to-finish victim-centric approach, the chances of a successful prosecution are slim. Whilst some people take crumbs of comfort from initial reports of rape increasing, I question whether this is real, or whether it is down to other factors, such as the focus on improving crime recording. In our area, one of the best in the country for charging and prosecuting rape, the number of victims coming forward has remained flat. When only 1.4 per cent of police-recorded rape offences nationally result in a charge or summons, only a very, very tiny proportion of victims are getting any sort of criminal justice result. Moreover, with 41 per cent of victims not supporting prosecutions when they do go ahead, one has to ask, what is the best outcome for the victim? Which leaves us with the very uncomfortable conclusion that failures in the system to support victims mean most rapists are getting away with their crimes. In North Yorkshire, we have worked hard to support victims and improve rape investigations, yet still only 3.4 per cent of cases result in a charge, demonstrating the distance left to travel. All officers are trained as First Responders to maximise evidence recovery at the earliest stage to improve credibility, and expert RASSO ‘gatekeeper’ detectives review the quality of case files before we submit them to the CPS. Early advice from the CPS helps develop the evidence, and where there is insufficient evidence the team try to conclude the case quickly to help bring closure, ensuring the victim still receives appropriate support. The gatekeepers also urgently review every case not taken forward by the CPS to ensure appeals are processed promptly for victims where appropriate. A close relationship with CPS lawyers to understand why cases fail to reach the evidential threshold means learning can be applied to future investigations. This is all good work, upon which we can build, and there is much more being considered by the National Rape Working Group and the sub-group reporting to the National Criminal Justice Board, of which I am part. However, one big issue for victims, upon which no progress has been made, is the time taken for cases to actually get to court. Unfortunately, as we stare the consequences of COVID in the face, this has become even more challenging.

Listening to ‘Leading Voices’ 157 During the pandemic, as chair of our Local Criminal Justice Partnership, I developed a local risk register and impact assessment, in which the implications of delays to justice are writ large. The stress of waiting for a charging decision, and then to give evidence, only for the case to be delayed sometimes repeatedly, is soul-destroying. This very often prevents victims from coping and recovering from their ordeal, to the point where they say enough is enough and withdraw. The solution is a timely criminal justice process that puts the needs of victims at its heart. In the absence of that, right now a more co-ordinated approach is needed between national and local structures. This approach must put the support in place that victims need to get them through the certain delays and keep them invested and give clear expectations and timelines to make sure the light at the end of the tunnel keeps shining. At a local level, Police and Crime Commissioners are responsible for providing support to victims, funded predominantly by the Ministry of Justice. However, at a national level, we do not have an accurate picture of the strains on the support system for RASSO victims, in particular on Independent Sexual Violence Advisors (ISVAs). So, whilst additional funding for ISVAs is welcome, we cannot assess the efficiency and effectiveness of that funding. We have evidence that caseloads vary significantly from place to place, and more funding is needed, but we do not have reliable data to tell us what is needed where or what the quality of that care is like. I am concerned that there is an underlying message in the data to suggest something of a postcode lottery as to the quantity and quality of the care which is offered. The charitable sector has an important role to play, alongside PCCs and the Victims’ Commissioner, in pooling data to get a clear and accurate evidence base, especially as we approach the Comprehensive Spending Review. This work is not as coordinated as it could be across government, nor between the sector and commissioners, and it is urgently needed. Finally, in the context of the COVID court backlog, it is welcome that RASSO cases with vulnerable victims and witnesses are being prioritised, although one wonders what victim of rape would not be vulnerable. However, the potential effectiveness of the courts’ recovery plan is hard to pin down. I understand that COVID is entirely unprecedented and many people are working enormously hard to mitigate its impact, but we have a duty to victims to provide them with the best possible information about their cases, and at present, that is nigh on impossible to do. Clear data and timescales at a very local level are urgently required so we can provide reassurance and appropriate support. In the meantime, we press on providing support as best we can, with increasingly stretched and complex services. It is little wonder the statistics on rape remain stubbornly poor. Claire Waxman – London Victims’ Commissioner There is simply no two ways about it: as a country we are failing rape victims. The statistics tell an unacceptable story of justice being denied to the overwhelming majority, with national conviction rates currently standing at 1.4 per cent. Charging decisions by the CPS have fallen from 17.2 per cent of cases in 2015/16, to

158 Hine, Murphy, Williams and Widanaralalage Don 4.6 per cent in 2018/19. It is not hyperbole to state, as campaigners do, that rape has been ‘effectively decriminalised’ in this country. In such a context, those of us working with rape victims are presented with a genuine dilemma as to what responsible advice looks like. Can we, in good faith, recommend that victims should report to the police and try to pursue justice in a system that hardly ever delivers it? In my role as London Victims’ Commissioner, I am tasked with identifying systemic issues and campaigning for improvements to the justice system and the support available to victims. Rape convictions remain a key priority for me because victims of this devastating crime remain one of the most failed cohorts. My contribution to our understanding of this justice crisis was the London Rape Review, published in 2019. Based on evidence from the Mayor’s Office for Policing and Crime (MOPAC) and the University of West London, the review looked at 501 allegations of rape made across London in April 2016, providing the clearest picture to date of reported rape in the capital and the reasons why so few cases result in conviction. The review found that only 6 per cent of allegations reached trial, with 3 per cent resulting in a conviction. Almost a third of cases ended in ‘No Further Action’ by police. The average length of time from the date of reporting to the trial outcome was 18 months. Which perhaps has a direct impact on the largest finding of the review: that 58 per cent of cases ended in victims withdrawing from the process. More than anything, the evidence from the Rape Review reinforced the fact that so much more needs to be done to support victims when they report and to keep them engaged in the justice process. The length of time cases take is particularly relevant as access to counselling is restricted for victims during an investigation and ahead of trial. Therapist notes may be disclosed to the police, therapy may be paused if new details of the crime come to light and victims are barred from discussing the actual rape itself with a therapist, for fear of ‘coaching’. As such, many victims forgo therapy altogether choosing to prioritise their privacy over their well-being and recovery. In an ideal world, victims would be able to access psychological support free from any restriction and I have sympathy with campaigners who want to change the law to keep therapy notes private. But this would require significant changes to the legislation that governs police investigations and is a longer-term goal. In the meantime, I would like to see government fund many more Independent Sexual Violence Advocate roles and provide resources for them to be trained in and provide a level of therapeutic support. Emotional resilience is absolutely crucial for victims to remain engaged in the arduous and retraumatising justice process and therapy has a vital role to play. Another key issue relating to victim withdrawal identified by the London Rape Review was the disclosure of personal data, particularly from digital devices. Those and I working with rape victims have heard that police requests for mobile phones have become routine, regardless of the facts of the individual case. More worryingly, the requests are often disproportionate, meaning police are unnecessarily requesting and downloading highly sensitive personal data without sufficient safety

Listening to ‘Leading Voices’ 159 parameters. This was affirmed by a recent investigation of rape cases by the Inspectorate for the Crown Prosecution Service found that requests for personal data were disproportionate in 40 per cent of cases. The prospect of having their entire private life downloaded to be combed through by complete strangers can have a huge impact on an already traumatised victim. As a victim explained “[The police] then requested an entire download of my mobile phone. I could not cooperate on this point. A mobile phone is just too personal and there is just way too much information on it which is irrelevant to the crime committed but will nonetheless be used to humiliate and discredit me”. I will be conducting further research on the impact of police seizures of victims’ mobile phones. The hope is that the lessons from this research could ultimately help to tackle high rates of victim withdrawal and delays in case progression caused by digital disclosure requests and therefore improve justice outcomes. The issues I’ve outlined in this essay would be a step in the right direction but are only the start of the changes necessary to bring around a significant shift in rape investigations and prosecutions. As Victims’ Commissioner for London, my priority will always be the wellbeing of the victim and I will focus on changes that will help to make the process more trauma informed, supportive and empowering.

Discussion The current piece brought together a variety of ‘Leading Voices’ from several areas relating to the support of rape victims and the investigation and prosecution of rape cases within the criminal justice system. This is the first time that such a diverse range of opinions has been collated in the same place, and for academic dissemination. The unedited, written expertise above provides a wealth of information relating to two principal areas: the current landscape of rape investigation and its associated challenges, and suggested improvements. Challenges In relation to the national landscape and current challenges, several core themes were evident. The increasing role of technology in rape cases was highlighted from two angles; the impact of technology requests on victims, and the impact this has on the investigation itself. Service providers were quick to highlight that victims were reluctant to provide their devices for a variety of reasons, including concerns about privacy, data protection, and the impact this has on their day-to-day functioning. They also highlighted how many victims, despite their reservations, still yielded their devices, only to be met with suspicion and indifference. They, alongside officers and prosecutors, also drew attention to the way that technology and personal information was used, and the concerns that victims had about it being used ‘in the wrong way’ or ‘against them’ (i.e., to undermine their credibility). Those in the justice system spoke of the difficulties this produced, as they sought to balance the need for this information, and the level of intrusion in victims’ personal lives. Such observations support preliminary studies demonstrating

160 Hine, Murphy, Williams and Widanaralalage Don the increasing use of technology in cases, and the impact of digital data on the ability to progress through the system.22 Negative attitudes and beliefs about rape and those involved, identified as ‘rape myths’ by some contributors, were also frequently mentioned. Both support services and oversight bodies spoke of the pervasiveness of such myths across all stages of the justice process and commented on the detrimental impact of these attitudes on both the mental health of victims, their faith in the system, and the attainment of a positive outcome. These attitudes were also mentioned by police forces, as they acknowledged how the processes utilised to establish victim credibility often led to victims feeling heavily scrutinised and judged. Again, this supports a wealth of research on the impact of myths on the investigative and prosecutorial process.23 The employment of myths was also identified by service providers and oversight bodies as representative of over-reach by police officers and going ‘beyond their investigative duties’. Specifically, several contributors highlighted that officers were too fixated on what they believed the CPS would be willing to take forward to prosecution and were thus making decisions on which cases to pursue based on the likelihood of case progression, rather than an objective evaluation of the information. Prosecutorial services were also accused of anticipatory decision making, as they ‘second-guessed’ the behaviour of those in court and the jury. Academic support for this co-called downstream orientation24 is pervasive.25 These challenges may represent the ‘lack of understanding’ outlined in the CPS submission as to the role of prosecutors and their decision-making processes, and the necessary steps the CPS must take in evaluating cases. On the other hand, both police and prosecutorial forces may in fact be taking a ‘book-makers’ approach to cases, attempting to identify the ‘odds’ of a particular case proceeding, based, at least partially, on erroneous or irrelevant information. Either way, it could be argued that greater transparency, as suggested strongly in the submission from Rape Crisis, would help in aiding understanding and improvements. Perhaps most pervasive were issues and concerns regarding resourcing, which exacerbated and underpinned most of the other challenges outlined. A chronic 22 Rumney, P. and McPhee, D., ‘The evidential value of electronic communications data in rape and sexual offence cases’ (2021) (1) Criminal Law Review 20–33. 23 Angiolini, E., ‘Report of the independent review into the investigation and prosecution of rape in London’ (2015) and Hohl, K. and Stanko, E., ‘Complaints of rape and the criminal justice system: Fresh evidence on the attrition problem in England’ (2015). 24 Murphy, A. and others, ‘Lessons from London: A contemporary examination of the factors affecting attrition among rape complaints’ (2021). 25 See generally, Munro, V. and Kelly, L., ‘A vicious cycle? Attrition and conviction patterns in contemporary rape cases in England and Wales’ in M. Horvath and J. Brown (eds), Rape: Challenging Contemporary Thinking (Willan Publishing, 2009); Murphy, A. and others, ‘Lessons from London: A contemporary examination of the factors affecting attrition among rape complaints’ (2021); and Spohn, C. and others, ‘Unfounding sexual assault: Examining the decision to unfound and identifying false reports’ (2014) 48(1) Law & Society Review 161.

Listening to ‘Leading Voices’ 161 and severe lack of funding for most of the services represented by contributors was held as the principal reason for the substantial delay faced by rape cases, the current backlog of rape cases awaiting prosecution, and the decisions taken by police officers and prosecutors as to which cases to pursue. Moreover, the lack of resourcing for support services and roles, such as ISVAs and specialist officers, was blamed for greatly exacerbating the trauma of rape reporting, and the lack of care victims experience within the system. This supports previous examinations which have highlighted the devastating impact of austerity measures, particularly on the policing of sexual crimes.26 Recommendations for improvement Naturally, most contributors subsequently voiced that adequate resourcing of the criminal justice system and other support services was the most crucial improvement required. This is unsurprising, as over a decade of austerity measures within England and Wales have taken an inevitable toll on critical infrastructure.27 As the underlying source of most issues, several of the other recommendations (i.e., the provision of more specialist support, the quicker processing of cases) were associated with increased fiscal provision. As such, there should be no doubt that increased, appropriate funding of the criminal justice system and associated support services is of paramount importance moving forward. Several contributors representing criminal justice bodies actually detailed some of the changes and improvements they had already implemented or were formulating. These included an increase in specialist training, the creation of specialist units or officers to respond to rape cases, and the strategies to increase public confidence. Whilst a positive start, there is still good evidence available to suggest that training to address negative myths is still required within multiple levels of the justice system28 and the continuing professional development of those within the 26 Mann, N. and others, ‘Policing in a time of austerity: Understanding the public protection paradox through qualitative interviews with police monitoring officers’ (2021). 27 ibid.; Millie, A., ‘What are the police for? Re-thinking policing post-austerity’ in J. Brown (ed.), The Future of Policing (Routledge, 2014). 28 Hine, B. and Murphy, A., ‘The impact of victim–perpetrator relationship, reputation and initial point of resistance on officers’ responsibility and authenticity ratings towards hypothetical rape cases’ (2017); Hine, B. and Murphy, A., ‘The influence of ‘High’ vs. ‘Low’ rape myth acceptance on police officers’ judgements of victim and perpetrator responsibility, and rape authenticity’ (2019); Hine, H. and others, ‘Mapping the landscape of male-on-male rape in London: An analysis of cases involving male victims reported between 2005 and 2012’ (2021); Hohl, K. and Stanko, E., ‘Complaints of rape and the criminal justice system: Fresh evidence on the attrition problem in England and Wales’ (2015); Murphy, A. and Hine, B., ‘Investigating the demographic and attitudinal predictors of rape myth acceptance in U.K. Police officers: Developing an evidence-base for training and professional development’ (2019); Murphy, A. and others, ‘Lessons from London: A contemporary examination of the factors affecting attrition among rape complaints’ (2021); Willmott, D. and others, ‘Introduction and validation of the Juror Decision Scale (JDS): An empirical investigation of the Story Model’ (2018) 57 Journal of Criminal Justice 26.

162 Hine, Murphy, Williams and Widanaralalage Don CJS is absolutely crucial (as highlighted by many contributors). Moreover, a suggestion for greater cohesiveness and communication within the justice system, particularly between officers and prosecutors was also outlined, so that prosecutors weren’t simply ‘marking the homework’ of officers. Other proposals came from specific projects or findings. For example, the London Rape Review29 overseen by the Victims’ Commissioner which led to specific practice recommendations concerning victim needs and vulnerabilities. Indeed, literature in support of a traumainformed approach to rape investigation further supports such recommendations.30 However, many of the proposals outlined by justice contributors did not, at present, meet the expectations outlined by service providers of wholesale overhaul and reform of the justice system. This disconnect could perhaps be one of the reasons that victims and service providers are still deeply unsatisfied with how rape cases are handled. As such, whilst there is no doubt that the recommendations/improvements outlined by contributors are beneficial, and should be pursued, those supporting victims outside of the criminal justice system do not believe these to be sufficient on their own. This lack of scale is highlighted, for example, by the fact that the forces contributing to this piece have all outlined isolated approaches, which are not scaled to a national level. Rape case attrition is arguably a national (indeed international) problem, which requires a national (/international) solution. Perhaps one of the most important considerations is the potential re-conceptualisation of ‘success’ within the criminal justice system. The contributor representing Greater Manchester Police outlined how many victims coming to the criminal justice system are not necessarily seeking a prosecutorial outcome, but that current measures of ‘success’ are conceptualised around just that. There is perhaps then a broader, philosophical conversation, which requires attention from academics and professionals alike, to increase understanding as to why individuals do and do not approach the justice system after incidences of rape, and what their differential needs may be. Indeed, perhaps mapping resourcing and service provision to the needs of victims (which may, for example, be more strongly centred around trauma-informed support, rather than investigation with a view to prosecution) may be beneficial, for both parties involved. This could provide a more nuanced approach to achieving best outcomes for victims and centring their wellbeing in justice processes.

Conclusion This chapter collated the experiences of key experts within the area of rape policing and prosecution within the UK; the aim of which was to act as a catalyst for 29 Mayor’s Office for Policing and Crime, ‘The London Rape Review: A review of cases from 2016’ (2019), https://www.london.gov.uk/sites/default/files/london_rape_ review_final_report_31.7.19.pdf, accessed 19 July 2021. 30 Lathan, E. and others, ‘The promise initiative: Promoting a trauma-informed police response to sexual assault in a mid-size Southern community’ (2019) 47(7) Journal of Community Psychology 1733; Rich, K., ‘Trauma-informed police responses to rape victims’ (2019) 28(4) Journal of Aggression, Maltreatment & Trauma 463.

Listening to ‘Leading Voices’ 163 the bridging of evidence-based practice with practice-based evidence. Of key interest to researchers and academics who read this chapter is the desire from these leading voices to improve services and victim experience; to develop understanding; and to enhance working practices. It is thus the duty of the academic sector to respond to these desires, and to utilise practitioner expertise in the creation and delivery of evidence to support and facilitate the scale of change clearly needed. There appears to be a genuine desire for systemic and process-based improvement among many criminal justice parties. An objective understanding of the issues, coupled with an evidence-based approach to improvement and evaluation of the success and utility of any change, could help to bring much needed, highly impactful change for victims and those who support them.

10 Paedophile hunters and the road to injustice Karen Walton and Rebecca Penfold

Introduction With the introduction of digital evidence, the prosecution of sexual offences has become more complex, raising issues of admissibility. The changing sands of the criminal justice system has also seen a shift in the place of the victim. Our focus will consider how the rise of vigilante justice in the forum of online child abuse has been accepted into our criminal justice system: ‘paedophile hunters’ have become the third arm in the law. We question why and how this has come about. The prosecution of sexual offences continues to be considered in the light of the number of cases that are charged and brought to court. In recent decades the landscape has changed: the Jimmy Savile allegations and ensuing Operation Yewtree investigation have resulted in a large increase in historical sexual abuse allegations being investigated and prosecuted. Concurrent to the surge in historic cases came an ease of accessibility and use of the internet. This has uncovered a scale of abuse that seems to increase year on year. However, during the Covid-19 pandemic there have been suggestions that the numbers of prosecutions, and convictions, for sexual offences has declined.1 The picture that emerges from these asserted statistics is that victims of sexual crimes are not being heard or dealt with fairly in the criminal justice system. When the victims are children and the allegation is that the criminal justice system is failing the victims, the environment is ripe for the rise in vigilantism. Is it the case that in an age with a greater ease of online communication, when our families and friends across counties, countries and continents are able to zoom in to our living rooms at the click of a button, more online child abuse is being facilitated? As McPherson states, criminal offences are now increasingly carried out online; the landscape in which sexual offences are committed is radically different to the one which existed 10 years ago. Such changes place new and increased demands on the criminal justice system and on police in particular.2 1 BBC Reality Check Team, ‘Why are rape prosecutions falling?’, https://www.bbc.co. uk/news/uk-48095118, accessed 25 March 2021. 2 McPherson, R., ‘Sutherland v HM Advocate: The right to privacy, evidence gathering and the integrity of justice in a digital age’ (2020) 2 Juridical Review 104–109, 109.

DOI: 10.4324/9781003143321-10

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Such demands include lack of resources and rising costs. Without a doubt, vigilantes have assisted in bringing child sex offenders to court, helping to catch those who would otherwise continue to offend with impunity.3 However, legitimate concerns stem from the approach taken by vigilantes and the impact this has on our ideals of justice and due process. Purshouse details the activities as ‘antithetical to numerous core values and functions of the criminal justice system’.4 Mason has described why it is that so many are troubled by the evidence derived from the work of paedophile hunters: ‘their stated motive to assist the police in child sex cases is undermined by the macho triumphalism which accompanies their unregulated activity’.5 The State has an obligation to run an effective criminal justice system. The integrity of ours under attack. Rather than relying upon the unsavoury evidence from paedophile hunters, the State must now play catch up in order to properly protect those most vulnerable from abuse. This chapter will consider the ease in which vigilante evidence has come to our courts and the impact this now has on some of the fundamental concepts of criminal justice.

The concept of a paedophile hunter ‘Paedophile hunter’ is a term used to describe private individuals (i.e. not officers of the law or other government agencies or NGOs) who set out to deliberately find those online who are looking for children in order to commit sexual offences.6 The paedophile hunter (also referred to as an ‘online decoy’) poses online as a child. It often involves the use of known online chat-rooms, which provides a level of secrecy and distance from reality. The messaging is via text as opposed to voice, and files such as images and videos are often shared. Paedophile hunters are involved in highly emotive offences, which serves to highlight starkly the imbalance in the protection of the victim being central to a prosecution to the rights of the defendant. In these cases there is no real-life victim. The approach by the courts, nevertheless, is that the accused has acted towards ‘a child’ in an abusive and controlling way, as the accused must have believed the person s/he was communicating with was a real child. This form of prosecuting ‘thought crimes’ as the actus reus of the offence denotes a shift in political will in this area of criminal law. The fact that an accused can be convicted of the impossible has always been a difficult concept to consider.7 3 See generally, Purshouse, J., ‘“Paedophile hunters”, criminal procedure, and fundamental human rights’ (2020) 47(3) Journal of Law and Society 384, at 384. 4 ibid. 5 Mason, P., ‘The vigilante, the chat room and entrapment’ (Doughty Street Chambers, 6 August 2018), https://insights.doughtystreet.co.uk/post/102f04u/the-vigilante-thechat-room-and-entrapment#:~:text=Last%20week%2C%20the%20Court%20of,to%20an %20abuse%20of%20process.&text=As%20the%20CPS%20notes%20in,legitimate% 20covert%20law%20enforcement%20activities%20%E2%80%A6, accessed October 2021. 6 Purshouse describes the work as ‘online citizen-led policing’ with private citizens ‘filling the gap’, n 3 at p. 388. 7 Practitioners often deal with charges alleging attempted sexual communication with a child (contrary to section 1 Criminal Attempts Act 1981 and section 15A Sexual

166 Walton and Penfold In order to pose as a child, the paedophile hunter often uses a picture of a child as a profile photo. This invites a question over the legality of that photo being used on a social media platform without the consent of the child or knowledge of the child. As Purshouse explains, by adopting the false persona of a child, paedophile hunters facilitate the conduct they so desperately seek to suppress.8 Paedophile hunters are not paid by the State to do this work. Some work informally, others are part of wider organisations that have many people ‘working’ in the chatrooms. Once a paedophile is ‘caught’ the communications move to setting up a meet. At the point of meeting, the paedophile hunter often conducts a citizen’s arrest before passing over material, such as the online chats, to the police. It is for this reason, that the phrase ‘vigilante justice’ is coined when considering these actions. The clear concern of methods used by paedophile hunters when effecting arrests is that they are usually filmed and sometimes that footage is uploaded onto social media sites. In contrast, the police Body Worn Video footage is confidential and usually only used in public campaigns when authority has been given for the purpose of the investigation: the risk to a member of the public being self-evident if such material is put into the public domain.

The role of the police The police also engage in undercover operations,9 posing as children on online forums and then arranging meets in order to arrest. However, these operations are subject to various regimes which work to control and protect both the public and the police.10 There is nothing out of the ordinary about that – the police are subject to statutory control in all aspects of their investigatory work. Despite investigative police work being conducted into these crimes, there remains a wealth of paedophile hunter-fuelled prosecutions. The relationship between the police and a known paedophile hunter group is monitored rather than regulated. Each police force may have specific guidance on online vigilante groups. One example, Humberside Police Force, states that the police would Offences Act 2003), for which the statutory maximum sentence is 2 years’ imprisonment. Shivpuri [1987] AC 1 saw the House of Lords find the impossibility of committing a full offence as irrelevant, holding that the belief in one’s wrongdoing and acts which were more than merely preparatory were sufficient for criminal liability. 8 Supra n 3 at p. 388. 9 In early 2021, Channel 4 Television Corporation broadcast a series made by BBC Studios Production’s The Documentary Unit on undercover police operations revealing how covert police teams work online to find child sex offenders. In 2017, the Home Office invested £20 million for police to act as decoys to catch online child abusers, see further ‘Home Office invests £20 million in more paedophile chat room stings’, https://www.policeprofessional.com/news/home-office-invests-20-millio n-in-more-paedophile-chat-room-stings/, accessed 23 March 2021. However, four years on, the level of online abuse has not decreased as result of this investment. 10 Statutory regimes include Police and Criminal Evidence Act 1984 and Regulation of Investigatory Powers Act 2000. Further, there are non-statutory guidelines to promote good practice including those from the National Police Chiefs’ Council.

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require the group to fully disclose the evidence they obtain. This would require an interrogation of devices. In practice the police have little control over the devices and the evidence that the group chooses to disclose. This allows the State to publicise the success of prosecuting these offences without the cost and restrictions the police would usually bear. This has a striking and uncomfortable similarity to the State using material obtained by other unlawful methods.12 So long as the State has clean hands, does it matter how ‘dirty’ the material obtained is? This begs the question, how is justice being properly served?

Prosecuting sexual offences In order to explore the place paedophile hunters now have within our criminal justice system, it helps to consider the current landscape of prosecuting sexual offences. The general principle of the ‘Code for Crown Prosecutors’ is that the independence of the prosecutor is central to the criminal justice system of a democratic society.13 The test requiring a reasonable prospect of conviction demands the Crown Prosecution Service (‘CPS’) to scrutinise the admissibility and strength of evidence pre-charge. The relationship between the concept of independence and the victim of a sexual crime is complex. For example, a rape complainant can feel that they have to submit to being investigated themselves before they can be considered to qualify for the chance of a prosecution.14 The CPS’ own Inspectorate criticised the organisation for the ‘disproportionate’ demands of an over intrusive nature of complainants’ phones and personal records.15 When this is compared to the ‘victim’ in a paedophile hunter ‘sting’ it becomes even more complex. Although there is no actual child complainant, the paedophile hunters are not subject to the same scrutiny or investigation as a real-life victim.16 It could be argued that where the complainant is in fact a paedophile hunter, the principle of equality of arms should be engaged more rigorously. The principle of equality of arms is to ensure that there are no procedural irregularities that may affect the trial and that the witness is available to be challenged. The voice of the ‘decoy’ in such cases is a construct to represent the increasing numbers of children abused on the internet. A paedophile hunter is a private citizen bringing the complaint to the police. In such cases the usual inquiry of the witness (namely the paedophile hunter); background, credibility and the provenance of their evidence is at worst, omitted or at best, limited. In contrast, a parent who discovers their 11 See https://www.humberside.police.uk/online-vigilante-groups, accessed 5 August 2021. 12 Rendition and torture being prime examples. 13 The Code for Crown Prosecutors, 8th edition, October 2018. 14 2019/20 Annual Report Dame Vera Baird QC Victims’ Commissioner for England and Wales, 14 July 2020, page 16. 15 ibid. 16 As detailed in the section above ‘The role of the police’.

168 Walton and Penfold child has been groomed would likely report the matter to the police. The police duly request the parent hand over any devices in order for them to be interrogated so that a prosecution can commence. What is of interest and concern, is the issue of the admissibility of the evidence obtained by the hunter. Acting as a decoy in playing a child, the paedophile hunter appears to have an evidential benefit with fewer procedural safeguards and restrictions on the admissibility of the evidence they obtain, compared to other sexual offence cases involving a real-life victim. This is explored further when we consider the judgment of Sutherland v Her Majesty’s Advocate 17 later in this chapter. It appears easier to convict based on a decoy victim compared to cases involving a real-life victim. Once the evidence has been collected by the paedophile hunter, the offence is complete. As will be considered later, to challenge the evidence as an abuse of process is made out only in exceptional circumstances. In effect, the offences are committed pursuant to the Criminal Attempts Act 1981 and therefore arguably akin to a strict liability offence. We question whether that result can be justified on the rationale of cost, expediency, and society’s fear of the wave of online child abuse. This development becomes more complex when considering a recent surge in online child abuse appearing to be perpetrated by children themselves. Access to digital devices, whether it be for home-schooling, gaming, or keeping in touch with friends and family, puts children at risk. There is one school of thought that suggests the recent avalanche of online sexual offending is as a result of child on child ‘sexting’18 and arguably the risk will only increase as the world becomes more technocratic. At a time in England and Wales when there is a growing trust deficit in the police, the use of paedophile hunter evidence is more questionable. The disproportionate use of force against black men, to the women being ignored and the passage of the Police, Crime, Sentencing and Courts Bill, have all contributed to a broad distrust of the police in the current times. The rise in phone recordings by private citizens in stop and search, protests and within the domestic arena is a practical reality for the criminal justice system. Vigilantism appears in areas in which the public view the police as failing. The criminal justice system must foster the faith of the public, yet we are now seeing the State using evidence from vigilantes to protect the most vulnerable, our children, to bolster support through statistics on conviction rates. There is a floodgates argument that by holding paedophile hunter obtained evidence as admissible, vigilante evidence could well creep in to other areas of criminal law. It would therefore seem more pressing than ever that the Rule of Law is, as stated by Lord Bingham, that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.19 17 [2020] UKSC 32. 18 Simply, ‘sex texting’, the sending and receiving of sexually explicit messages. 19 The Rt. Hon Lord Bingham of Cornhill KG, House of Lords, 16th November 2006. Sir David Williams Lectures/2006: The Rule of Law.

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The exigencies of a proactive approach, in a world of fake news, with technology changing at such a pace, does not sit comfortably with the foundations of the criminal justice system. Evidence is now more capable than ever of being manipulated, what impact does that have upon the safety of a prosecution? The methods used by paedophile hunters to gather their evidence offends our basic principles of evidence. Contrast the investigation of a real-life complainant where the evidence of the complainant’s digital and medical history is easily accessed and routinely disclosed to the CPS and defence, to that of the decoy. The decoy is rarely required to hand over the devices used to collect the material. The decoy is able to impersonate a child with impunity. This element of the investigation is arguably fraudulent; a person who makes deceitful pretences or a sham. The moot point here is whether the decoy’s action gains a ‘dishonest’ advantage. We would suggest that in the case involving a paedophile hunter their actions can be dishonest or illegitimate; however, the advantage is that society as a whole is said to benefit. Proactive prosecution can be encouraged and applauded, but not if so flawed that the intended end result is not reached. Convicting someone of a sexual offence, on material so prone to manipulation, is highly sensitive and brings to the fore questions over the Rule of Law and burden of proof. As suggested by Purshouse ‘paedophile hunters, as citizens using proactive policing methods, can pose a unique threat to the fundamental rights of those whom they target, which lawmakers and practitioners have not adequately managed’.20 The rise of vigilante justice is undoubtedly linked to the exponential rise in accessibility to the digital world coupled with the funding cuts felt by the criminal justice system. This allows for shortcuts in the process. As stated in his Sir David Williams Lecture21 Lord Bingham reminds us of the fundamental truth propounded by John Locke, 1690 ‘where-ever law ends, tyranny begins’. Lord Bingham suggested eight sub-rules to assist with understanding the Rule of Law. The seventh rule being that all adjudicative procedures should be fair. Lord Bingham proposed the approach to an impartial adjudicative process, as far as humanly possible, as being open-minded and unbiased by any personal interest or pressure. Furthermore, all the principles of fair trial should be available. The use of vigilantes, by their inception, is not impartial and without the will of the executive to legislate, the criminal adjudicative process will continue to inadequately manage such methods. The fundamental issue with relying upon the evidence obtained from vigilantes is that the safeguards for ordinary State funded investigations simply do not exist. Whereas police officers have codes of conduct and a statutory structure22 to support their investigations, vigilantes have free rein. Flowing from that is a risk of unsafe convictions and thus a risk to the public. The focus of and the resources for an investigation should derive from the State. The process of reaching a 20 Supra n 3 page 383. 21 Supra n 19. 22 See sections 71 and 72 RIPA 2000, Investigatory Powers Act 2016 Codes of Practice and the Home Office Codes of Practice under schedule 2 RIPA 2000 ‘Covert Surveillance and property interference’ and ‘Covert human intelligence sources.’

170 Walton and Penfold safe conviction, based on reliable and credible evidence, ensures that the guilty are convicted. It is accepted that the police arrest and investigate in a subjective and prejudicial way. These issues came to the fore during the Covid-19 pandemic with high-profile examples such as the Black Lives Matter protests (July 2020) and Sarah Everard’s vigil (March 2021). The Rule of Law, nevertheless, enables the accused to challenge that bias and the evidence that flows from such an arrest or investigation. We question why the evidence from a paedophile hunter cannot be brought into the current legal framework of the procedural law on evidence gathering?

Prosecuting in a paedophile hunter ‘sting’ The position of the Crown, by way of published guidance, policy, and even public speeches,23 is that paedophile hunters and other vigilantes are discouraged. ‘Discouraged’ does not accord with the reality on the ground. Courts up and down the land deal daily with cases involving the use of paedophile hunter derived evidence. The CPS legal guidance entitled ‘Online Child Abuse Activist Groups on the Internet’24 deals with the evidence obtained as a result of the activities of Online Child Abuse Activist Groups ‘OCAG’ (paedophile hunter groups). The guidance is essential reading for all practitioners dealing with these cases. The fact that the CPS have published guidance on how to deal with evidence from paedophile hunters indicates an acceptance25 of this third arm of the criminal justice system in seeking out sexual offenders. The guidance also states that the term ‘vigilante’ is not encouraged, preferring ‘activist’. This re-definition is a misdescription of what these groups are doing; an activist is seeking political or social change and takes part in activities to make this happen such as protests. Vigilantism is an unofficial way to prevent crime or catch and punish someone who has committed a crime. The renaming, by the CPS, symbolises a tacit acceptance of the work of a paedophile hunter, attempting to signify a shift to such activities being acceptable conduct. Renaming them as ‘activists’ gives a ring of credibility. The reality, however, is that a name-change in fact highlights the concern the CPS 23 Max Hill QC as DPP gave a speech entitled ‘Emerging areas of child abuse and exploitation’ at the Heads of Prosecuting Agencies Conference in Uganda on 17 April 2019. In relation to vigilantes he stated ‘however well-intentioned, vigilantes do not observe the same safeguards and as prosecutors we are clear they should leave this work to the police, and have said so in our published legal guidance. We must continue to watch out for this sort of activity’, https://www.cps.gov.uk/cps/news/em erging-areas-child-abuse-and-exploitation, accessed October 2021. 24 Crown Prosecution Service, ‘Online Child Abuse Activist Groups on the internet’, 23 July 2020 https://www.cps.gov.uk/legal-guidance/online-child-abuse-activist-group s-internet, accessed October 2021. 25 One argument to consider is whether there is any real option but to accept this ‘third arm’ when considering the current climate in which the authorities are seen to be failing to act, particularly so in sexual offences. Does this park any principled, legal approach in favour of a politically attractive approach?

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must have in using such evidence. The CPS guidance accepts that there are disadvantages to activist activity, citing the protection that a police investigation can offer by way of greater protection against violence (whether against a suspect or self-harm), and the possibility of legitimate law enforcement activities being disrupted. The police action then required to intervene takes resources away from other necessary work. According to the guidance, criminal activity engaged in by the paedophile hunter should be considered for prosecution. ‘Activists’ are not afforded the protection of s.46 Sexual Offences Act 2003.27 If the vigilante was also involved in criminal conduct and duly prosecuted, this would certainly enhance the integrity of the case taken against the person targeted by the vigilante. However, do the hunters ever become the hunted? In the authors’ experience, rarely.28 There could be many reasons for this. Vigilantes may not have committed any offences, or the Full Code test29 is not met in continuing any prosecution. Furthermore, however unsavoury, consideration should also be paid to whether the paedophile hunters are wrongly being afforded a level of respect and deference. If they have engaged in like conduct to that of those being ‘hunted’, a priority appears to be given to prosecuting the ‘primary’ offending. Has a position been adopted that hunting predatory sex offenders is more important than preserving the ‘status quo’? Further support for the State appearing to distance itself from the work of vigilantes, can be found in the general principles of the ‘Memorandum of Understanding between Crown Prosecution Service (CPS) and the National Police Chiefs’ Council (NPCC) concerning s.46 Sexual Offences Act 2003’.30 Firstly, it 26 Although outside the scope of this chapter, it is interesting to consider how other areas of activism have been treated. Certain activism has been monitored and policed more overtly than some of the more militant paedophile hunter groups. In January 2020, counterterrorism police placed the non-violent climate emergency campaign group Extinction Rebellion (XR) on a list of extremist ideologies that should be reported to the authorities. The guide states that XR are a threat as: ‘an anti-establishment philosophy that seeks system change underlies its activism; the group attracts to its events school-age children and adults unlikely to be aware of this. While non-violent against persons, the campaign encourages other law-breaking activities’. Without knowing that description related to XR, one can easily see the similarities in the work of paedophile hunter groups. See http s://www.theguardian.com/uk-news/2020/jan/10/xr-extinction-rebellion-listed-ex tremist-ideology-police-prevent-scheme-guidance. 27 s.46 inserted a defence at s.1B Protection of Children Act 1978 to a charge of making an indecent photograph of a child if it was necessary for the purposes of prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world. 28 Purshouse also asserts that paedophile hunters are ‘very rarely’ prosecuted, and when they are it tends to be ‘only in cases where paedophile hunters resort to violence’, Supra n 3 at p. 384. 29 This requires consideration of whether there is a realistic prospect of conviction based on reliable, credible and sufficient evidence, and, whether the prosecution is in the public interest. 30 Crown Prosecution Service publication ‘Memorandum of understanding between Crown Prosecution Service (CPS) and the National Police Chiefs’ Council (NPCC) concerning Section 46 Sexual Offences Act 2003’, dated 7 January 2021, https://

172 Walton and Penfold states that law enforcement retains primary responsibility for investigation in this area.31 Secondly, that ‘vigilantism is not merely unnecessary it is unhelpful: anyone taking it upon themselves to seek out or investigate this kind of material where there is no legitimate duty to do so will be liable to prosecution’.32 Despite the wealth of material suggesting a distancing between the State and paedophile hunters, cases continue to be brought to court.

Privacy and disclosure In 2020, there were two key judgments: R v CB 33 and Sutherland 34 that, we suggest, should be considered in tandem when assessing the evidence obtained by paedophile hunters. R v CB The judgment of the Court of Appeal in CB considered the issues relating to the retention, inspection, copying, disclosure, and deletion of electronic records held by prosecution witnesses. It was noted that these issues frequently arise in sexual offences cases. The judgment specifically used the term ‘complainant’ nevertheless stated that the principles were equally relevant to other prosecution witnesses.35 The appeal considered the exponential changes in how individuals gather and exchange information and the issues that arise thereof in investigating crimes where such evidence is the main evidence in the trial. The current approach being taken by the CPS is to put the complainant first in the criminal process. For this to have any semblance of fairness, resources need to exist to ensure this approach is possible. There has been much public discourse about whether it is proportionate and fair to have access to, and then to download, a complainant’s device(s) when a sexual complaint is made. The Court of Appeal in CB considered four separate issues of principle on how digitally stored communications should be handed to the police, how they should be reviewed and disclosed, what reassurance should be given to the complainant about the disclosure of the material and the consequence if the witness refuses. The authors consider that all of these issues of principle are relevant to the material obtained by a paedophile hunter. The case of CB is a clear example of the real-life complainant being at a greater disadvantage in the criminal justice system than a vigilante, who is not subject to the equivalent level of scrutiny or invasion of privacy.

31 32 33 34 35

www.cps.gov.uk/publication/memorandum-understanding-between-crown-prosecu tion-service-cps-and-national-police, accessed October 2021. Supra n 30 paragraph 9, page 2. ibid. paragraph 9, page 3. R v CB [2020] EWCA Crim 790, [2021] 1 WLR 725. Sutherland v Her Majesty’s Advocate [2020] UKSC 32. CB, para 1.

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In order to invite the evidence collected by paedophile hunters into the protective framework of disclosure, the four issues of principle considered in CB should be included in the CPS OCAG guidance. This would seem to be a fair approach under the principle of the Rule of Law where the adverse consequences on the defendant are self-evident both in the procedures of the court and the punishment on conviction.

Sutherland The judgment of the Supreme Court in Sutherland was a pivotal moment in the development of the legitimation of paedophile hunters. It is worthwhile setting out a brief precis of the facts of the case, taken from paragraph 3 of the judgment: an adult member of a paedophile hunter group, acting as a decoy, created a fake profile on the Grindr dating application. The decoy used a photograph of a boy, aged about 13, as a lure to attract communications from persons with a sexual interest in children. The appellant entered into communication with the decoy, who stated in the course of exchanges that he was 13 years old. The appellant sent the decoy (believing it to be a child) a picture of his erect penis and messages to arrange a meeting. When the appellant arrived for the meeting, he was confronted by members of the paedophile hunter group and he was subsequently arrested. Of note, the appeal was limited to the compatibility of the conduct of paedophile hunters and the evidence derived from that conduct to Article 8 of the European Convention on Human Rights. The issue in the appeal therefore focussed upon the accused person’s right to a private life, primarily their right to private correspondence. The confined issue keeps the door open for practitioners when assessing if there are grounds to apply to exclude evidence obtained by paedophile hunters and when considering the broader questions evoked by this conduct. The judgment has specifically highlighted this point for practitioners, setting out that the trial process would allow arguments as to admission of evidence based on common law rules of fairness and Article 6.36 Currently, the Courts have not fully addressed the concerns of the admissibility of the evidence obtained by ‘paedophile hunters’; this is prone to further consideration. Ultimately, the Court found no breach of Article 8. The reasoning included that as the evidence was provided to the State after it had been obtained, there was no reasonable expectation that the communications should be treated as confidential so as to prohibit such communications being used as evidence.37 The Court relied upon the broader responsibilities of the State to safeguard children and deter criminal activity, in reaching this aspect of the judgment.38 The Court referred to the ‘margin of appreciation’ that a State holds when required to balance competing Convention rights. The balance was held to tip in 36 Supra n 34 at 24. 37 ibid. at 59. 38 ibid.

174 Walton and Penfold favour of the State fulfilling its ‘positive obligation to operate an effective criminal law regime’.39 Further, the Court did not consider the nature of the communications as being worthy of the Article 8 protection:40 ‘it is necessary that the activity of the individual should be capable of respect within the scheme of values which the ECHR exists to protect and promote’.41 The Court had to consider the competing rights of an accused to that of a decoy. In finding that the decoy was entitled to provide the material to the State,42 the question then arises as to how or when the State should be prevented from using the material. The result of these two cases in 2020 is that the privacy rights of paedophile hunters remain more protected than those accused in cases of child sexual abuse. Moreover, the freedom to initiate and investigate child abuse by a decoy is wider than the prosecuting authority, who are bound by statutory safeguards of the Police and Criminal Evidence Act 1984 and Regulation of Investigatory Powers Act 2000 (‘RIPA’). We look at this in more detail when considering what approach can be taken when presenting or defending a case reliant upon vigilante evidence.

Cases reliant upon vigilante evidence The usual principle of Article 6 right to a fair trial applies and practitioners must be alive to applications to stay proceedings for abuse of process and/or exclusion or evidence. Entrapment is not a substantive defence (R v Smurthwaite [1994] 1 All ER 898). It is worthwhile taking heed of the basic principles as to how the courts deal with evidence obtained during State entrapment,43 in order to assess the quality of the evidence obtained by vigilantes. The questions the court must consider are: whether the vigilante was enticing or inducing the criminality; whether an innocent was lured into the offence; was the vigilante passively engaged; are there such fundamental issues with the evidence that the trial process itself cannot act as a remedy? Vigilantes are sometimes unwilling to hand over devices and provide a full record of communications between themselves and the accused.44 Ordinarily the police would require full access in order to verify the communications relied upon, to support the credibility and reliability of the vigilante, but also in order to rebut any defence argument to exclude the evidence further to Loosely. 45 39 40 41 42 43

ibid. at 67. ibid. at 31. ibid. at 46. ibid. at 50. See R v Loosely [2001] 1 W.L.R. 2060. Entrapment arises where a law enforcement agent induces a person to commit an offence that otherwise they would have had no intention of committing. Furthermore, the purpose of the entrapment is to cause a person to commit the act with the intention of prosecution for that offence. 44 See the CPS OCAG guidance as to these evidential considerations, n 24. 45 [2001] 1 W.L.R. 2060.

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The issue of abuse of process in paedophile hunter cases was considered by the Court of Appeal in R v TL [2018] EWCA Crim 1821, [2018] 1 WLR 6037. As was factually so in the case of TL, the Court found that paedophile hunters are private citizens and thus ‘non-State actors’. Overturning the first instance decision to stay proceedings as an abuse of process based on entrapment, the Court of Appeal rejected the argument that the principles of State entrapment as set out in Loosely should apply to the actions of paedophile hunters as non-State actors. The Court did not rule out entrapment by non-State actors entirely but has severely limited the applicability to rare cases.46 The judgment has muddied the waters somewhat: A starting point in considering whether the conduct of a private citizen should result in a stay of proceedings is to ask whether the same, or similar, conduct by a police officer would do so. A precise comparison may be difficult because when the police or other state investigators or prosecutors act in this way, they do so subject to codes of conduct and strict hierarchical oversight.47 TL clearly sets out the balance to be considered when protecting children and the rights of a private citizen being targeted by one of these groups. Understandably, it errs on the side of protecting children. Nevertheless, the concern remains as the assessment of how the evidence was obtained is set at such a low threshold, compared to the arguments of abuse of process and entrapment, set at such a high benchmark. One example of the hurdles in defending such cases is when the full record of communication between the parties is important. A defendant may seek to argue that any material limited in form does not accurately reflect the communication. We are seeing the rise in the factual defence of ‘role-play’ which highlights how and why the entirety of a communication could be relevant. It is in these factual scenarios, when the accused states the person they were messaging was an adult role-playing a child and therefore they had no intention to communicate with a child, that simply having access to a sample of the communications can risk injustice. Perversely, the fact that vigilantes are more common-place may see a rise in such a factual defence. However, when the undercover operation is conducted by the police, the method of evidence collecting is regulated, evidence monitored and recorded in full and the assertion that the chat room is a role play can easily be rebutted by the evidence of a trained officer. A further complication arises if it transpires that the vigilante was somehow ‘induced, asked or assisted’48 by the police to engage in the online conduct. In that sense, practitioners must be alive to the statutory protections provided by RIPA 2000. As stated in the guidance, this Act provides safeguards in relation to covert policing. Should a defence practictioner wish to rely upon a breach of RIPA 46 Supra n 5. 47 Paragraph 35 of judgment. 48 s.26(7)(b) RIPA 2000.

176 Walton and Penfold 2000 in order to apply to stay proceedings or to exclude vigilante-obtained evidence, the vigilante would have to fall to be considered a Covert Human Intelligence Source (‘CHIS’) according to s.26(8) RIPA 2000. The activist would have to be found to have established or maintained a personal or other relationship with ‘the accused’ for the covert purpose of facilitating the doing of, i) covertly using the relationship to obtain information or to provide access to any information to another person; or ii) covertly disclosing information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.This is particularly interesting. The reality of vigilante related work is that known groups supply the police with evidence on a regular basis. So how is it that they do not fall to be considered as a Covert Human Intelligence Source (CHIS) according to the legislation more often? The guidance gives a quasi-nod to such ‘relationships’, but fails to bring them into RIPA 2000 family. The case of Walters, Ali 49 a first instance decision on application to dismiss or stay as an abuse of process, that pre-dates Sutherland, is an important judgment in demonstrating the level of deference given to evidence obtained from paedophile hunters. The defence (unsuccessfully) argued that the paedophile hunters in question would fall to be considered as CHIS’s, and as they had not complied with RIPA 2000, consequently their evidence was inadmissible. The facts are rather typical: individuals acting on their own initiative pretending to be someone else online, with the purpose of catching an online sex offender. The individuals were involved with a known paedophile hunter group. The undisputed evidence of Northumbria Police included that the known group were discouraged from their activities by the police; the group’s activities were not endorsed or assisted in any way by the force. The argument presented by the defence centred on the notoriety of the known group and the repeated nature of the success by assisting in many prosecutions, submitting that this created the relationship such that regulatory safeguards as found in ss.26–30 RIPA 2000 would have to apply. Finding against the defence, Mr Justice Langstaff held that RIPA 2000 has no application on an individual private citizen. In any event, activities of a CHIS are not unlawful even without authorisation required by RIPA 2000 and on the facts of the case, when the police accepted the evidence of the hunters, they were not using or conducting a CHIS. Further, ‘a police force has an obligation to act upon credible information received’.50 As per Sutherland, the State has a ‘positive obligation to operate an effective criminal law regime’51 such that a balance was struck favouring the evidence obtained from paedophile hunters irrespective of methods. All of this leads to the inescapable view that the Courts have undertaken a skilful deception. Although the judgments are at pains to suggest the fundamental rights of an accused are being upheld, the reality is far from it: such rights are, in fact, being circumvented. 49 R v Walters, R v Ali, Newcastle Crown Court, (6 April 2017, unreported). 50 Walters, Ali para 49. 51 Supra n 34 para 67.

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Sentence or prevention? The area of sentencing in cases involving paedophile hunter evidence has added a layer of complexity to an existing sentencing quagmire. Cases in which evidence is obtained from a paedophile hunter continue to be brought to court. To arrest our way out of this situation is impossible.52 The prison population is stretched to the limit with little or no rehabilitation programmes available during the Covid-19 period. The result of sentencing a sex offender in the present climate merely arrests the activity rather than reducing the risk to children in the future. A recent JUSTICE report urges prevention programmes in education, preventing online offending through design and teaching risk management skills to those who have inappropriate sexual thoughts.53 The report commends education programmes to ensure children under 18 are educated on the law of child internet abuse. A further area of prevention would be increased regulation of internet providers. With the ever-changing nature of online offending JUSTICE recommends a ‘quality mark, similar to Kitemark for safe online spaces’.54 One of the facilities that such a quality mark would have is the use of an algorithm ‘to identify adults trying to engage in grooming offences with children’.55 As the nature of child internet abuse is a global phenomenon, there will always be constraints on a national police force in prosecuting these offences. If an international approach to the research and implementation of a quality mark for safe online spaces were to be adopted, the need for local police forces to rely upon paedophile hunters may be obviated. Throughout this chapter, we have posited that the lack of resources and rising costs of policing online crime has created the space for unregulated evidence to be admissible in the criminal justice system of England and Wales. If the resources were to be directed at prevention, the negative issues of delay, disclosure and trust in the police may begin to fall away as the numbers of cases of online abuse drop.

Conclusion If our ‘effective criminal law regime’ is so strapped whereby in order to obtain material to prosecute the most serious of offences it is relying upon private individuals to obtain the necessary evidence, where will that principle take us? Will the relative success of the use of paedophile hunters provide the foundation to an argument that other areas of criminality could benefit from vigilante justice? In recent years we have seen a trend in the rise of private prosecutions.56 Is this the 52 Chief Constable Simon Bailey, National Police Chiefs’ Council, Home Affairs Select Committee, Oral Evidence; Policing for the Future, 13 March 2018. 53 JUSTICE, Prosecuting Sexual Offences (2019) para 2.4, https://files.justice.org.uk/ wp-content/uploads/2019/06/06170149/Prosecuting-Sexual-Offences-Report.pdf. 54 ibid., para 2.34. 55 ibid. para 2.35. 56 See report dated 2 October 2020 of the Justice Committee, Private Prosecutions: Safeguards, https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/497/ 49705.htm#_idTextAnchor009.

178 Walton and Penfold sign of a fundamental shift in how crimes are investigated and prosecuted? The future of the criminal justice system is certainly one that is unlikely to be familiar to the present practitioners working in this field. In Sutherland the Supreme Court has placed criminal activity involving the abuse of children in a different category. By reaching the conclusions that it has, the Supreme Court has moved sexual child abuse out of the arena of protection of private life – the rights of the child trumps the rights of the accused’s private life. Arguably this has now influenced other areas of protection of the accused as the arguments available to exclude evidence, raise abuse of process or challenge compatibility with Article 6 are now so heavily influenced. The judgment of the Supreme Court, although silent on these points, has said that even the right to private life cannot take precedence. When considering the case from this angle, it is perhaps easier for practitioners to understand why it has become near impossible to argue against the admissibility of evidence derived from paedophile hunter conduct, however legally uncomfortable it appears to be. The motivation of the decoy to reach the end goal and ensnare the person they are communicating with as a child sex offender surpasses their consideration of their criminality. Finding a potential child abuser takes precedence over the risk of exchanging indecent images or engaging in a malicious communication. Sutherland has taken the responsibility away from the State in investigating this type of offending. By finding that the conduct of paedophile hunters does not fall foul of a convention right, allows a crippled criminal justice system to continue to prosecute, without the need for time or labour intensive investigations. Clearly, child sex offences need to be properly investigated and prosecuted. Evidently those who abuse children are a danger and the public should be afforded the protection that the State should be offering by way of an ‘effective criminal law regime’. As the public become more aware of paedophile hunters, assisted by media reports and TV programmes, they are being perceived as an agreed part of policing and thereby accepted by society. That positive public perception, no doubt ameliorated by the success of their work, makes any State action to deter their activities that much harder.57 McPherson makes valid criticism of the current approach: There exists growing professional and academic unease about the multi-faceted dangers associated with the use of such evidence. Given the numbers of convictions based on evidence gathered by paedophile hunter groups, it is clear that significant financial resources would need to be provided to police services in order to replicate those investigations being undertaken by members of these groups …[u]rgent regulation of this landscape is required to ensure that the correct balance is struck between deterrence/punishment of crime and upholding the integrity of evidence used to secure criminal convictions.58 57 Supra n 3 at p. 389. 58 Supra n 2 at p. 109.

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We recognise that the protection of children is paramount and that safeguarding of children should remain within the domain of law enforcement agencies. The published guidance detailed in this chapter serves to acknowledge the scale and prevalence of vigilantes. Police guidance recognises that the involvement of vigilante groups can create more problems than they solve. The current unregulated position is dangerous and does not sit comfortably with basic principles of justice and morality. The State is in an inequitable position of prosecuting highly emotive cases whilst still using evidence obtained from unsavoury, undesirable, and unjust vigilante methods. Considering the exponential growth of online child abuse, prompt change and strict regulation is needed to protect our most vulnerable.

11 Prisoners’ human rights in England & Wales Zigzags, flatlines and missed opportunities Anastasia Karamalidou

Introduction Covid-19 has highlighted and further widened long standing structural inequalities, leaving vulnerable social groups in despair and the professionals who work with them in a state of perpetual anxiety.1 Prisoners are such a group whose vulnerability extended to their families and impacted prison staff well before the pandemic.2 Covid-19 has only increased the effect and impact of these vulnerabilities.3 Relevant to the purposes of this chapter, the virus has exposed the human rights implications of a bloated UK prison system which has been chronically afflicted by ailments, such as overcrowding and poor regimes4 brought about by the politicisation of law and order in England and

1 Griffin, S., ‘Covid-19: Failure to control the pandemic and inequalities made England worst affected in Europe, says report’ (2020) 371 British Medical Journal; Myers, J., ‘5 things COVID-19 has taught us about inequality’ (World Economic Forum, 2020), https://www.weforum.org/agenda/2020/08/5-things-covid-19-has-taughtus-about-inequality/. 2 Beresford, S., ‘What about me? The impact on children when mothers are involved in the criminal justice system’ (Prison Reform Trust, 2018), http://www.prisonreform trust.org.uk/portals/0/documents/what%20about%20me.pdf, accessed 5 April 2021; Prison Reform Trust, ‘Bromley Briefings Prison Factfile Winter 2021’ (2021), http:// www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Winter %202021%20Factfile%20final.pdf, accessed 18 April 2021. 3 Hewson, T., Shepherd, A., Hard, J. and Shaw, J., ‘Effects of the COVID-19 pandemic on the mental health of prisoners’ (2020) 7(7) The Lancet Psychiatry 568–570; Minson, S., ‘The impact of COVID-19 prison lockdowns on children with a parent in prison’ (2021), https://www.law.ox.ac.uk/sites/files/oxlaw/the_impact_of_covid-19_prison_ lockdowns_on_children_with_a_parent_in_prison.pdf, accessed 30 April 2021. 4 CPT, ‘Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 30 March to 12 April 2016’ (2017), https://www.coe.int/en/web/cpt/united-kingdom, accessed 10 March 2021. CPT, ‘Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 23 May 2019’ (2020), https://www.coe.int/en/web/cpt/united-kingdom, accessed 10 March 2021.

DOI: 10.4324/9781003143321-11

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Wales, and in the last decade by austerity. Such conditions put at stake the HM Prison and Probation Service’s (HMPPS) duty of care to those in their custody and in their employment. As we shall see, this runs contrary to strong pronouncements of prioritising public safety and victims of crime as per official prison policy. The virus has highlighted that unless there is a long lasting political commitment to a reductionist approach to imprisonment, a prison policy that aims at rehabilitating has a greater success at failing than ever before. Additionally, it draws our attention that even at the best of times what happens in prisons in terms of the quality of the regimes and prisoner treatment is not enough to prepare them for a law abiding life. Prison based initiatives need to link up with community based support in order to enable the newly released prisoner to find their feet along of course with a wider societal shift in our attitudes to state punishment and offender reintegration. In what follows, I provide a critical account of the prison policy in England and Wales from 2013 to the present day, focusing on its human rights implications with reference to prisoners’ right to life and humane treatment. Contrary to the grand promises of Transforming Rehabilitation and a Rehabilitation Revolution in prisons that would usher in a new generation of Reform Prisons with an emphasis on safety, reform, transparency and accountability, in 2021 the prison system in England and Wales is in crisis; a victim to a chronically obsessive and overly optimistic belief in its ability to rehabilitate and deter, as well as to half-baked attempts to re-energise whatever potential it has to rehabilitate without financial support. The chapter is divided into the following sections. ‘Human Rights and Prisons in England and Wales’ presents some key developments in the legalisation of prisoners’ human rights. Particular reference is made to the impact of the 1998 Human Rights Act on the prison service’s duty of care and its implications for the rights to life, to an effective remedy, and to freedom from torture and inhuman or degrading treatment or punishment. The section highlights that a humane prisoner treatment requires a culture of respect for and protection of prisoners’ human rights. ‘The Rehabilitation Revolution in Prisons in England and Wales’ presents key prison policy developments since 2013, drawing upon official policy documents. ‘From Revolutionary Reform to a State of Emergency’ discusses the prison reality on the ground in the aftermath of the different reformative initiatives that have been taken. The ‘Conclusion’ highlights that unless a sentencing policy is implemented that is genuinely committed to a significant reduction of the prison population in England and Wales, embedding human rights in prisons and reaping the benefits will fail. 5 Downes, D. and Morgan, R., ‘No turning back: The politics of law and order into the millennium’ in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology, 4th edn (OUP, 2007); McNulty, D., Watson, N. and Philo, G., ‘Human rights and prisoners’ rights: The British press and the shaping of public debate’ (2014) 53(4) Howard Journal of Criminal Justice 360. 6 Ismail, N., ‘The politics of austerity, imprisonment and ignorance: A case study of English prisons’ (2020) 60(2) Medicine, Science and the Law 89.

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Human rights and prisons in England and Wales The legalisation of prisoners’ human rights The UK has long signed and ratified international and regional human rights law that is directly and indirectly applicable to prisoners. At international level, the UK has ratified inter alia the United Nations Convention against Torture and the Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules. At regional level, it ratified the ECHR in 1951, recognising the individual right to petition in 1966. The individual right to petition recognises to ‘any person, non-governmental organisation or group of individuals’ who feel that their human rights have been infringed by the UK the right to bring a case before the European Court of Human Rights (ECtHR) in Strasbourg, established under the ECHR, after they exhaust all domestic remedies.7 The UK also ratified the European Convention for the Prevention of Torture (ECPT) in 1988 which established its respective monitoring committee; the CPT visits places of detention and inspects detainees’ living conditions and treatment with the aim to prevent torture and ill-treatment. Prisoners and their families in England and Wales have a long history in bringing claims before the ECtHR. Although the ECtHR was not receptive to the idea of the prisoner as a human rights claimant in the first years of its operation, in the 1970s Golder v UK set to change this when the ECtHR found a violation of the prisoner’s right to a fair trial and respect for private and family life. The case was important as the Court opposed the hitherto held idea that imprisonment imposed inherent limitations on prisoners’ enjoyment of their human rights.8 In the wake of Golder v UK many more UK prisoner cases were successful that strengthened prisoners’ procedural rights in disciplinary adjudications and reviews of release procedures for life sentences, as well as substantive rights, such as prisoners’ right to vote and to found a family.9 The incorporation10 of the ECHR into domestic law through the 1998 Human Rights Act (HRA) put prisoners’ human rights inescapably on the prison policy agenda. The 1998 HRA has immense symbolic, legal and practical value. Starting with the symbolic value, the state recognises that prisoners have human rights irrespective of their imprisoned status. Legally, it entrenches those rights domestically, and practically it affords prisoners less expensive and time consuming means by which they can bring a human rights claim before the courts. 7 ECHR, 1950, Article 34. 8 Van Zyl Smit, D. and Snacken, S., Principles of European Prison Law and Policy: Penology and Human Rights (Oxford University Press, 2009). 9 ibid.; Karamalidou, A., Embedding Human Rights in Prison (Palgrave Macmillan, 2017). Johnston, N., ‘Briefing Paper No 07461: Prisoners’ voting rights: Developments since May 2015’ (House of Commons Library, 2020), https://researchbriefings.files.parliam ent.uk/documents/CBP-7461/CBP-7461.pdf, accessed 30 March 2021. 10 The 1998 HRA incorporates the ECHR partially into domestic law which impacts on the realisation of a full human rights protection at domestic level. Articles 1 and 13 of the ECHR do not feature in the HRA. Article 1 re-affirms the state’s obligation to respect human rights, and Article 13 guarantees the right to an effective remedy.

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The 1998 HRA places upon the state and its (quasi) public authorities the statutory obligation to comply with the ECHR. A Bill must be accompanied by a public ministerial statement on its compatibility with the ECHR, as well as the grounds on which an exemption is sought.11 Moreover, domestic courts must ‘read primary and subordinate legislation, so far as it is possible to do so, in a way which is compatible with convention rights’ and consider ECtHR case law when the matter before them directly concerns a Convention right or freedom.12 This entails that domestic courts must consider the substance of the ECHR and apply the Court’s interpretive principles of the Convention; these are the positive duty of care, proportionality, legality, legitimate aims and the margin of appreciation.13 Prisoners can now bring directly a human rights claim before the domestic courts. If the case is successful, this saves them time and money to initiate a claim before the ECtHR. Duty of care: The rights to life, effective remedy and freedom from torture Amongst the ECtHR interpretive principles, the principle of the duty of care is constantly pressing in prisons because prisoners are hidden from immediate public scrutiny, and thus are at greater risk to be subjected to the whims of the staff. Despite the politicisation of crime and punishment in the UK, and a politically manufactured animosity towards regional human rights instruments, conflating them intentionally with the EU for political purposes,14 the Prison Service’s conceptualisation of its duty of care cannot afford to ignore human rights without eventually risking legal action and reputational damage; what Whitty calls legal risk and legal risk+ respectively.15 The 1998 HRA, the domestic courts, relevant domestic monitoring bodies (e.g. HM Inspectorate of Prisons and the Prisons and Probation Ombudsman), the ECtHR and the CPT have all joined forces in creating a legal, policy and operational environment that is conducive to a more humane prisoner treatment as it is required by a human rights informed duty of care. The third sector16 also has thrown its weight behind such efforts through campaigns, research and legal actions, being fully committed to raising public awareness of the futility of incarceration as punishment, and promoting the idea of prisoners being entitled to human rights protection like any other human being. 11 HRA 1998, s 19. 12 HRA 1998, s 2, 3(1). 13 Wadham, J. and Mountfield, H., Blackstone’s Guide to Human Rights Act 1998, 2nd edn (Blackstone Press, 2000). 14 McNulty and others (n 5). 15 Whitty, N., ‘Human rights as risk: UK prisons and the management of risk and rights’ (2011) 13(2) Punishment & Society 123. 16 The Howard League for Penal Reform has successfully challenged legal aid cuts for prisoners, introduced in 2013, and that the provisions of the 1989 Children Act do not apply to young people in custody in 2017 and 2002, respectively. https://howa rdleague.org/news/legalaidreinstated/. The Prison Reform Trust also has a rich research record, and important campaigns have been led by Women In Prison and Children Heard and Seen, to mention a few. http://www.prisonreformtrust.org.uk/p ortals/0/documents/seenandheardfinal%20.pdf.

184 Karamalidou In this respect, worthy of note are the following five tragic cases, involving unnatural prisoner deaths. These are Keenan v UK, Edwards v UK, McGlinchey & Others v UK, Middleton, and Amin.17Keenan was a mentally ill male who committed suicide in segregation where he was placed as a disciplinary punishment. Similarly Middleton who had a history of depression also committed suicide. McGlinchey, a mother of an underage child, was a prolific petty offender and chronic heroin addict who died from the side effects of detoxification whilst serving a four month prison sentence. Edwards and Amin involved prisoner on prisoner homicides where prisoners were murdered by their mentally disordered cellmates. In Amin’s case, the aggravating factor of hate was also present as a British Asian male was killed by his white supremacist cellmate. The cases are noteworthy for a number of reasons. First, they invoked the rights to life and to freedom from torture or inhuman or degrading treatment or punishment (Articles 2 and 3 of the ECHR), and the right to an effective remedy (Article 13 of the ECHR). The scrutiny that the right to life came under has led to a clearer understanding of the procedural requirements inherent in Article 2. Article 2 requires an independent and public investigation into a prisoner death. Since 2004 the PPO fulfills this by investigating and publishing a Fatal Incident Report on its investigation at the end of the inquest, which is inclusive of recommendations on prevention applicable to the affected institution.18 The family can participate now in the PPO investigation by accessing relevant documents and commenting on the PPO’s draft Report. All this renders the process of the investigation more transparent and accountable. Similarly, since 2013 the remit of Coroners’ Inquests is inclusive of both how the deceased died and of the circumstances that led to the death when Article 2 is involved. Additionally, Coroners have the statutory duty to share a report on the inquest with the affected institution, detailing the necessary steps to prevent future deaths. The institution is required to respond within 56 days with an action plan.19 Second, Article 13 brought to the foreground the vicarious impact of unnatural prisoner deaths on their families who need to be informed and consulted about their relatives’ health and interventions in prison, as well as to participate in proceedings regarding their treatment in prison. In doing so, the cases demonstrated how significant the human right to an effective remedy is, rendering its absence from the 1998 HRA even more conspicuous. Moreover, the traumatic experiences of prisoners’ families served then and continue to serve now20 a strong reminder of the humanity of the prisoner who is someone’s beloved friend and/or relative. 17 Keenan v United Kingdom 3 April 2001; Edwards v United Kingdom 14 March 2002; R (Middleton) v West Somerset Coroner [2004] 2 AC 192; R (Amin and Middleton) v Home Secretary [2003] QB 581; McGlinchey and others v United Kingdom 29 April 2003. 18 Aitken, D., ‘Investigating prison suicides: The politics of independent oversight’ (2021) Punishment & Society, https://doi.org/10.1177/1462474521993002, accessed 30 April 2021. 19 Karamalidou (n 9) 67–68. 20 Current accounts by prisoner families are illuminating of their heartache as they are unable to visit mums and dads in prison due to Covid-19 and of their stigmatisation

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From a human rights law point, the Article 13 violations found in some of these cases have shed light on what constitutes an effective remedy. For the purposes of Article 13, the remedy must be effective both in practice and in law, and bereaved relatives should have access to ‘compensation for the nonpecuniary damage flowing from breaches of Articles 2 and 3’21. At that time, compensation to the bereaved relatives was not available since neither the internal prison investigation nor the Coroner’s Inquest could reach a finding of negligence which was needed in a civil law action or judicial review. The parents whose children were adults at the time of their death (see Keenan and Middleton) could not pursue a civil action for negligence; this was only available to spouses, dependent children and parents of children under 18.22 Notably, since 2011 bereaved relatives can bring a case against a prison under the 2007 Corporate Manslaughter and Corporate Murder Act for a gross breach of duty of care that falls under the law of negligence. There are, however, reservations about its relevance to the carceral context and usefulness to prisoners’ families because of its more narrow focus on risks emerging from health and safety organisational arrangements, and its exclusion of the element of the foreseeability of risk.23 The element of the foreseeability of risk of death is important as Keenan and McGlinchey & Others show in which the ECtHR found that the prisons did not protect the prisoners from inhuman or degrading treatment (Article 3). This was because despite the knowledge of Keenan being mentally ill and suicidal and McGlinchey’s health concerns, their treatment was not appropriately risk assessed and thus did not reflect the likely risk of death their personal histories gave rise to. Both prisoners were treated far too little and too late, with the authorities ignoring their difficulties in expressing clearly their troubles. This was particularly acute for Keenan on account of his mental illness, with the ECtHR ruling that ‘proof of the actual effect’ of an intervention on one’s physical and mental state may not be always necessary for a finding of an Article 3 violation.24 Humane treatment equals a culture of respect The aforementioned cases are highly instructive for ensuring prisoners are treated humanely when we consider the high prevalence of mental distress in the prisoner population, which usually worsens in prison due to lack of support and the inherent pains of incarceration. For example, 71 per cent of women and 47 per cent of men sampled by HMCIP in 2019–20 said that they had mental health issues, half of those

21 22 23 24

due to lack of education issues surrounding incarceration and its vicarious impact on families by social services and institutions (see Beresford (n 2); Minson (n 3)). Karamalidou (n 9) 57. Karamalidou (n 9) 56–57. Genders, E. and Player, E., ‘Rehabilitation, risk management and prisoners’ rights’ (2014) 14(4) Criminology & Criminal Justice. Keenan (n 17) para 113, 116.

186 Karamalidou had accessed mental health support in prison, and the PPO found that in 29 per cent of suicides there had been no mental health referral.25 As we shall see, prisoners’ safety is also endangered by overcrowding and insufficient staff numbers that leave very little opportunity for constructive activities; all this is highly pertinent to a humane prisoner treatment. In recognition of the inextricable link between humane prisoner treatment and a culture of respect for prisoners’ human rights, HMCIP has developed Expectations for different prison types based on prisoners’ gender, age, and category status. The Expectations lay out detailed criteria for the living conditions and treatment of different prisoner groups, informed by international and regional human rights frameworks.26 The HMCIP also has developed the concept of a Healthy Prison that is assessed on the basis of the four tests of safety, respect, purposeful activity, rehabilitation and release planning. The Healthy Prison is in effect the Inspectorate’s methodology in its assessment of whether its Expectations are met.27 Such developments are significant because they formally recognise that prisoners’ human rights can only be effectively protected if they are embedded in everyday prison practices, setting key parameters for this. They highlight starkly that the true potential of prisoners’ legal successes is left untapped unless prison practices reflect and comply with minimum human rights standards, and prison staff on the ground actually treat prisoners respectfully. To treat prisoners respectfully is not to be confused with being the prisoner’s best friend but to actively listen, show some elemental sympathy, and to exercise self-restraint.

From revolutionary reform to a state of emergency In response to the recession of 2007–2009, in 2010 the Coalition Government introduced an austerity programme that subsequent governments followed until 2017. The austerity programme, which has been quite extensive by the admission of its own supporters, brought in substantial cuts in public expenditure. Since 2010 the Prison Service has experienced a series of staggered actions relating to its finances, structure, and priorities that have impacted the management and operation of prisons. These actions have had a domino effect on the quality of prison regimes and working conditions, with Covid-19 being an added strain and source of stress for prisoners, their families and staff alike. Increased prisoner numbers and reduced prison budgets The austerity cuts resulted in a 22 per cent reduction in the allocated budget for HMPPS between 2010/11 and 2016/2017. This reduction was carried through a 30 per cent cut in the numbers of experienced frontline staff (since their seniority 25 Prison Reform Trust (n 2) 46. 26 HMCIP, ‘Our expectations’ (2021), https://www.justiceinspectorates.gov.uk/hmip risons/our-expectations/, accessed 10 April 2021. 27 Ibid.

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entailed a higher remuneration) and the closure of 23 prisons in an effort to modernise the prison estate during the same period.28 These cuts were not matched with a reduction in the prison population considering that imprisonment and its effects are particularly costly. The following figures illustrate this paradox well. Between 2011 and 2021, the prison population has been on the increase, with recorded peaks in 2011 and 2017 at 88,000 and 86, 327, respectively.29 These increases have taken place against a 30 per cent rise in the prison population in the previous decade30 and are accompanied by lengthier prison terms; for example, in 2020 48 per cent of sentences were over 4 years compared to 33 per cent in 2019 and half of the 47,000 who were sent to prison in 2020 were serving less than 12 months.31 In the last three years, prisoner numbers have stabilised, standing at 77,976 in January 2021. This unshaken faith in prison as punishment persists despite evidence that prison sentences and, especially, short ones of less than 12 months lead to high reoffending rates, costing the economy annually £18.1 bn. When we factor in that the average cost per prisoner increased from £33,576 in 2011–2012 to £42,670 in 2019–20,32 it is difficult to understand how such a heavy use of imprisonment remains fiscally prudent when structural deficits need to be reduced; and this is only the economic argument to the exclusion of human rights arguments that one can make. Prison policy and outcomes in the last decade 2010–2021: A series of dead end zigzags Transforming rehabilitation The 2013 policy paper Transforming Rehabilitation presented the roadmap to the Rehabilitation Revolution in prisons. This was later revised by the 2016 White Paper Prison Safety and Reform. The 2013 policy paper reinforced the primacy of public protection as the objective of imprisonment, with deterrence and rehabilitation as the prison aims the strategic deployment of which would enhance public safety. Specific measures were introduced to achieve this. Amongst the most controversial measures were Payment by Results (PbR) and Through the Gate (TTG) which aimed to diversify 28 Ismail (n 6); Chamberlen, A., ‘Building up to today’s prison crisis: An interview with the former Chief Inspector of Prisons, Nick Hardwick’ (2019b) The Prison Service Journal 243. 29 Sturge, G., ‘Briefing Paper: UK Prison Population Statistics’ (House of Commons, 2020) https://commonslibrary.parliament.uk/research-briefings/sn04334/, accessed 18 April 2021. 30 Prison Reform Trust, ‘Bromley Briefings Prison Factfile November 2012’ (2012), http s://www.bl.uk/collection-items/bromley-briefings-prison-factfile-november-2012#, accessed 18 April 2021. 31 Sturge (n 29) 4; Prison Reform Trust (n 2) 10. 32 Prison Reform Trust (n 2) 10, 50.

188 Karamalidou and bolster rehabilitation structures and services. PbR, a private commissioning model fashioned in the tradition of the Private Finance Initiative (PFI), is proven to be the more controversial of the two on account of its objective to reduce reoffending rates among released prisoners. Based on the PbR model, the Ministry of Justice (MoJ) invites Community Rehabilitation Companies (CRCs) to bid to offer rehabilitation services, with the latter receiving payments based on demonstrated reductions in re-offending amongst the population they supervise.33 Reductions in re-offending are measured in terms of the proportion of service users who re-offend in a 12-month period (known as the binary rate) and the average number of offences committed per offender irrespective of the seriousness of the offence (known as the frequency rate).34 Introduced in 2015, TTG was conceived as one of the engines of the Prison Rehabilitation Revolution. Based on TTG the same CRC is contracted to deliver rehabilitation and resettlement support (covering accommodation, employment, finance, mental health and substance misuse) to offenders both inside and outside the prison. Maintaining the same CRC was credited with the potential of better supporting the offender since the latter would be able to build a more personal relationship with the CRC workers and know whom to contact and how once they are released. Like in the case of PbR, much was promised in terms of procuring innovative services, with the most publicised aspect being the TTG mentors who would wait outside the prison gates in order to offer newly released prisoners help with any pressing needs they may have. In its Progress Review of Transforming Rehabilitation the National Audit Office (NAO) concluded that the PbR did not offer value for money for the taxpayer. While there was some reduction in the binary rate of the re-offending measure, not only was this lower than the MoJ target but also there was not a reduction in the frequency rate of re-offending. For example, there was a 2.5 per cent reduction in the proportion of offenders between 2011 and 2017 against a 22 per cent increase in the average number of offences committed per offender.35 The PbR model was not fit for purpose because ‘it takes two years for data on proven re-offending to become available, and changes in re-offending cannot be directly attributed to intervention, as they are also influenced by services such as support housing, employment and substance misuse’.36 We can also add that desistance from crime is a dynamic non-linear process where the seriousness of re33 Garton Grimwood, G. and Bardens, J., ‘Introducing “Payment by Results” in offender rehabilitation and other reforms’ (2013), https://researchbriefings.files.parliam ent.uk/documents/SN06665/SN06665.pdf, accessed 20 March 2021. 34 Ministry of Justice, ‘Final proven reoffending statistics for Community Rehabilitation Companies and the National Probation Service: July to September 2018 and October to December 2018’ (2020), https://www.gov.uk/government/statistics/provenreoffending-statistics-october-to-december-2018, accessed 15 April 2021. 35 National Audit Office, ‘Transforming rehabilitation: Progress review’ (2019), https:// www.nao.org.uk/wp-content/uploads/2019/02/Transforming-Rehabilitation-Pro gress-review.pdf, accessed 20 March 2021. 36 ibid. 9.

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offending can be seen as relative to that of previous offences. In some arguable cases, a comparatively much less serious crime against one’s much more serious background offence history along with actual steps taken to address specific criminogenic needs is tangible improvement in that person’s offending behaviour. The NAO reached a similar conclusion on the effectiveness of the TTG scheme. It described it as ‘ineffective to support transition from prison to the community’ with substandard services and staff lacking in training and knowledge of how the scheme worked, and noted its patchy provision in relation to sex offenders and foreign national prisoners.37 Two Joint Thematic Reviews of TTG by HM Inspectors of Prison and Probation (HMIPP) further confirmed that the scheme failed to deliver. For those serving less than 12 months, HMIPP found that resettlement plans were drafted hastily without being quality assured, and prisoners were released into the community without their urgent needs, such as accommodation, being addressed, or without being supported in terms of employment and education.38 For those serving sentences longer than 12 months, HMIPP offered a damning evaluation, stating that ‘the impact of TTG services on education, training and employment was minimal. No prisoners were helped … to enter education, training or employment after release”.39 Equally worrying was its finding that TTG staff were not familiar with public protection procedures and thus prisoners’ risk was inadequately assessed. All in all, PbR and the TTG scheme have failed to meet the objective of public protection by supporting prisoners’ rehabilitation and thus enhancing their desistance prospects. From transforming to reforming rehabilitation The White Paper Prison Safety and Reform was published in 2016. It re-affirmed the objective of public protection by way of reducing re-offending through rehabilitation and set to reform prisons in order to achieve this. Reform was urgent. The prison system was plagued with the epidemic of the New Psychoactive Substances (NPS). NPS impacted on prisoners’ mental health and prison safety more broadly, causing alarmingly deteriorating levels of prison violence in overcrowded living conditions with much fewer staff in place to supervise, support and discipline

37 ibid. 7, 20. 38 Criminal Justice Joint Inspectorate, ‘An inspection of Through the Gate Resettlement Services for short-term prisoners. A joint inspection by HM Inspectorate of Probation and HM Inspectorate of Prisons’ (2016), https://www.justiceinspectorates.gov.uk/ cjii/wp-content/uploads/sites/2/2016/09/Through-the-Gate.pdf, accessed 30 April 2021. 39 Criminal Justice Joint Inspectorate, ‘An inspection of Through the Gate Resettlement Services for prisoners serving 12 months or more. A joint inspection by HM Inspectorate of Probation and HM Inspectorate of Prisons’ (2017) 8, https://www.justi ceinspectorates.gov.uk/cjii/wp-content/uploads/sites/2/2017/06/Through-the-Ga te-phase-2-report.pdf, accessed 30 April 2021.

190 Karamalidou prisoners. Against this background the reform strategy focused on investment on people, leadership, accountability, and relationships. This saw a partial reversal of cuts, which the same government had ordered six years ago and saw thousands of experienced frontline prison staff leaving. A recruitment drive was announced, seeking to employ 2500 prison officers and attract candidates from the armed forces on account of their developed skillset to ‘discipline and support’. This was complemented by a graduate and an apprentice scheme that would look out for ‘the brightest and the best’40. In recognition of the contribution of prisoner and staff safety to prisoner rehabilitation, attention was paid to relationship building and consistency in sentence planning, which the roles of the personal officer (one per prisoner, with a caseload of 6 prisoners per officer) and prison offender supervision manager would aim to nurture and achieve. Personal officers are cast as mentors, expected to be ‘listening to out for problems, supporting changes in attitudes and behaviour, and defusing tension and frustration’.41 Prison (based) offender supervision managers assume responsibility for the sentence planning of prisoners on sentences from 12 months or more, transferred to them from community offender managers. This was due to evidence on community offender managers’ difficulties in following the prisoner at the different stages of their prison journey which disrupted sentence planning and thus ill-prepared them for release. This transfer of responsibility is not extended to those serving sentences of less than a year who remain under the supervision of community offender managers.42 Part of the investment on people and relationships was the emphasis on nurturing leadership, trusting people and cultivating accountability. Prison League Tables and Reform Prisons are key vehicles for this aspirational reform of the prison professional culture. Comprising indicators such as escapes, purposeful activity, and overall prison safety Prison League Tables will shed light on individual prison performance and help inform action plans for improvements. They will additionally be an important measure of the success of Reform Prisons. The concept of Reform Prisons, which had been piloted in six prisons before the publication of the White Paper, was extended to another four in April 2017. Reform Prisons’ governors are empowered by entrusting them with operational and financial autonomy to decide, based on their establishment’s needs, what requires resources and where to draw the resources from. The belief is that this will drive innovation and incentivise staff, creating better rehabilitative outcomes for prisoners held in those establishments.43 The White Paper also added in the mix to increase prison places by up to 10,000 and to build five new community prisons for women44 that45 run contrary 40 Ministry of Justice, ‘Prison safety and reform’ (2016) 55, https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 565014/cm-9350-prison-safety-and-reform-_web_.pdf, accessed 5 April 2021. 41 ibid. 42. 42 ibid. 42–43. 43 ibid. 26–29. 44 ibid. 11. 45 As early as the late 1990s in its reports to the UK, the CPT noted that building more prison spaces will never solve the problem of prison overcrowding. See also Corston,

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to penological wisdom regarding sustainable solutions to prison overcrowding and female offending, as well as subsequent government commissioned reports. The following three publications further added to the spirit of the White Paper that focuses now on reforming what it set to transform in 2013.The 2017 and 2019 Lord Farmer Reviews recognised the instrumental contribution of family relationships to prisoner desistance from crime, calling for them to be treated as important as employment and education. Lord Farmer recommended the inclusion of adverse childhood experiences (ACEs) as a criminogenic factor in English social and penal policy and advised a reflexive interpretation of the word family considering the negative impact family relationships can demonstrably have on a person’s likelihood of offending in the first place, with women offenders being a pertinent example. Following the lead of the 2007 Corston Report, the 2018 Female Offender Strategy reaffirmed the gender-specific challenges facing female offenders and recognised the ineffectiveness of the prison in rehabilitating the overwhelming majority of female prisoners. It committed to diverting women from short prison sentences and investing on women’s residential centres and peer-led trauma informed prison environments. Three years after the publication of the Female Offender Strategy, in January 2021 the Government announced an increase of up to 500 single occupancy cells in the female prison estate along with £2 million funding for charities working with women offenders. In doing so, in the same breath it renewed its commitment to reducing the female prison population and forecast a possible increase in the number of female prisoners following the recruitment of 2000 police officers.46 In the words of the digital campaign #StopThe500prison places for women, ‘this flies in the face of the Government’s own strategy which says that most women in prison do not need to be there’.47 Rehabilitating and protecting the public at a cost As earlier references to the PbR and the TTG indicate, the Prison Rehabilitation Revolution failed well before Covid-19 emerged; the pandemic has exposed the bare bones of prison life for both prisoners and staff, and especially the wider structural disadvantages afflicting prisoners as a social group.48 We do not have to search long to discover evidence on the failed Rehabilitation Revolution. For example, widely available online reports by the HMCIP and the CPT paint a rather bleak picture. Both inspection bodies raise the alarm for prisoners’ right to

J., ‘The Corston Report’ (2007), https://webarchive.nationalarchives.gov.uk/ ukgwa/20130206102659/http:/www.justice.gov.uk/publications/docs/corston-rep ort-march-2007.pdf, accessed 20 April 2021. 46 BBC News, ‘Up to 500 new cells to be built in women’s prisons’ (2021), https:// www.bbc.co.uk/news/uk-55774379, accessed 2 May 2021. 47 Women In Prison, ‘#StopThe500’ (BBC, 2021), https://www.womeninprison.org. uk/news/stopthe500, accessed 28 April 2021. 48 O’Moore, E., ‘Public health in English prisons’ (2021) The Prison Service Journal 253.

192 Karamalidou life and humane treatment – two fundamental aspects of any person’s existence whether they are detained or not. HMCIP Annual Reports from 2014–2015 to date describe prisons as ‘unacceptably violent and dangerous places’,49 which are failing in all 4 Healthy Prison Tests employed by the Inspectorate.50 The CPT observations based on its 2016 periodic and 2019 follow-up visit did not deviate from this assessment, finding ‘lack of safety for inmates and staff, prison violence spiraling out of control, poor regimes and chronic overcrowding’.51 According to Prof. Hardwick, a former HMCIP, ‘the deterioration of prisons was a result of political and policy decisions’.52 In his experience, the strain of reduced financial and staff resources began to be felt in prisons as soon as 2012, reversing some good progress that hitherto had been achieved. The lack of experienced prison staff in sufficiently safe numbers has enabled the deterioration of prison regimes and has engendered unsafe living and working conditions for prisoners and staff alike. Not only were there not enough officers to supervise increasing numbers of prisoners and escort them to activities and visits, but also prison reforms were rushed, a view also shared by the NAO.53 This has left the prison system without the necessary resources in place to respond timely and fairly when things do not go as planned and security issues, such as the influx of the NPS, persist. Despite the fact that the target of 2500 new recruits announced in the 2016 White Paper was achieved in 2018, this has not been able to make a significant impact on important aspects of prison life, such as safety and respect for a number of reasons: Prison staff are still 12 per cent less compared to 2010, with a 26 per cent reduction in frontline operational staff between 2010–2017 whose retention is proven difficult due to their unsafe working conditions, with almost half leaving after a two year service.54 This entails inexperienced staff are responsible for a volatile prison population who are detained in overcrowded conditions. As research by Crewe, Liebling and Hulley55 on the performance of private and public prisons has already shown, inexperienced staff does not yet have the necessary skills to exercise authority firmly and fairly, which can aggravate rather than diffuse conflict. In this context, there has been a significant rise in prison suicides and selfharming amongst men and women, and in violence between prisoners and prisoners against staff. Prisoners’ worsening mental well-being is exacerbated by the 49 HMCIP, ‘Annual Report 2015–2016’ (2016) 8, https://www.justiceinspectorates. gov.uk/hmiprisons/inspections/annual-report-2015-2016/, accessed 10 April 2021. 50 Chamberlen, A., ‘Building up to today’s prison crisis: An interview with the former Chief Inspector of Prisons, Nick Hardwick’ (2019b) The Prison Service Journal 243. 51 CPT (n 4) 1. 52 Chamberlen (n 50) 15. 53 NAO (n 35). 54 Kinman, G. and Clements, A., ‘POA Survey of Work-Related Wellbeing’ (POA, 2020), https://www.poauk.org.uk/media/1888/poa-survey-of-work-related-well being-1.pdf, accessed 13 April 2021; Prison Reform Trust (n 2). 55 Crewe, B., Liebling, A. and Hulley, S., ‘Staff culture, use of authority and prisoner quality of life in public and private sector prisons’ (2011) 44(1) Australian and New Zealand Journal of Criminology.

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use of NPS to relieve boredom, the long delays in transfers to psychiatric hospitals56 and an institutional culture that privileges security and control at the expense of the Healthy Prisons Agenda.57 Prisoners in England and Wales are almost 10 times more likely to die of suicide, and prisoner suicides are the leading cause of death in custody.58 Across a South East NHS Trust over a 6-year period, Woods, Craster and Forrester59 found stubbornly high delays in prisoner transfers to psychiatric hospitals of all levels of security and that the 2009 Bradley Report recommendation of a transfer to take place within 14 days had not been met. More specifically, while transfers to adult psychiatric intensive care units were relatively quick (the mean was 16 days), transfers to High Security Units were the slowest (the mean was 159 days). This was noted recently by the CPT, along with the inappropriate use of segregation for prisoners with severe mental health disorders due to the lack of bed availability in psychiatric units.60 Alarming rates of violence have been a yearly preoccupation for the prison authorities for the past eight years.61 In its 2019 visit, the CPT noted, ‘record highs in all three forms of violence, inter-prisoner violence, prisoner on staff violence, and staff on prisoner violence’.62 The violence is linked to a series of other important deteriorating issues, such as the widespread poor performance in purposeful activity that leaves prisoners idle for most part of the day without constructive stimuli, poor living conditions exacerbated by overcrowding, and the influx of the NPS.63 The NPS have proven to be a difficult beast to tame, not only due to their being non-detectable by mandatory drug testing but also due to the lack of a coordinated national drug strategy, institutional failures on the ground, and lack of support by the MoJ.64 The NPS have been affecting predominantly but not exclusively male local and category B and C prisons since 2012. They have been associated with deaths, anxiety attacks, and self-harming and have predictably engendered bullying, debts, and violence.65 The MoJ and HMPPS have been slow 56 Woods, L., Craster, L. and Forrester, A., ‘Mental Health Act transfers from prison to psychiatric hospital over a six-year period in a region of England’ (2020) 10(3) Criminal Psychology. 57 Ismail, N. and de Viggiani, N., ‘Challenges for prison governors and staff in implementing the Healthy Prisons Agenda in English Prisons’ (2018) Public Health 162. 58 Antunes, S., Wainwright, V. and Gredeci, N., ‘Suicide prevention across the UK criminal justice system: An overview of current provision and future directions’ (2020) 23(1) The Journal of Forensic Practice. 59 Woods, Craster and Forrester (n 56). 60 CPT (n 4). 61 Prison Reform Trust (n 2) 13. 62 CPT (n 4) 1. 63 HMCIP, ‘Annual Report 2018–19’ (2019), https://www.gov.uk/government/publica tions/hm-chief-inspector-of-prisons-annual-report-2018-to-2019, 10 April 2021. 64 In 2020 HMCIP reported that prisons were left without drug detection equipment despite requesting such support from HMPPS and that being part of HMIP recommendations. 65 HMCIP, ‘Annual Report 2019–2020’ (2020), https://www.gov.uk/government/p ublications/hm-chief-inspector-of-prisons-annual-report-2019-to-2020; Prison Reform Trust (n 2).

194 Karamalidou to act. It was not until 2019 that they designed a Prisons Drug Strategy; until then each individual establishment was left to develop its own response without guidance and strategic direction.66 Equally illuminating are the 2015 and 2016 Reviews on Preventing Deaths in Detention of Adults with Mental Health Conditions by the Equality and Human Rights Commission (EHRC). The EHRC noted that prisoner deaths ‘could have been prevented if prisons got the basics right’,67 It identified as urgent aspects for reform: a) non-collaborative professional cultures, leading to vital information on prisoners’ health being missed, b) the lack of family involvement in a prisoner’s mental health care interventions, c) inadequate risk assessment due to poor record keeping and mental health training for staff, and d) the lack of beds in psychiatric hospitals. Among its key recommendations were: a) the creation of a statutory duty on the prison service to make publicly available its performance on monitoring bodies’ recommendations, b) greater investment in partnership working and staff training for an effective implementation of the said recommendations, c) the application of the duty of candour to the prison service, and d) the adoption of the EHRC Human Rights Framework for Adults in Detention by the prison service.68 Directly relevant to prisoners’ right to life and humane treatment, the Human Rights Framework for Adults in Detention offers a blueprint of action for compliance with Articles 2 and 14 of the ECHR (the right to life and the right to freedom from discrimination). It sets out two overarching obligations: to protect people’s life and to investigate non-natural deaths without discriminating against the affected parties. In its response to the consultation on the 2016 White Paper Prison Safety and Reform, the EHRC69 renewed its call for the adoption of the Human Rights Framework and highlighted the importance of the principle of equivalence in healthcare when it came to the governors’ new proposed powers to commission services. As of 2021, there has not been any real, long lasting change in many of these concerning issues, rendering them missed opportunities. We can effectively break down what is in recent years referred to as the prison crisis into different component themes – the safety crisis, the mental health crisis, and the indecent conditions crisis.70 The list can be expanded to include the rehabilitation crisis and a crisis in respect of human dignity. Notwithstanding increases in prisoners in higher education and in (prison) work, performance in purposeful activity, which is inclusive of education, work, 66 HMPPS, ‘Prisons drug strategy’ (2019) https://www.gov.uk/government/publica tions/national-prison-drugs-strategy, accessed 15 April 2021. Chamberlen (n 28). 67 Equality and Human Rights Commission, ‘Preventing deaths in detention of adults with mental health conditions’ (2015a) 6, https://www.equalityhumanrights.com/en/p reventing-deaths-detention-adults-mental-health-conditions, accessed 18 March 2021. 68 ibid. 69 Equality and Human Rights Commission, ‘Preventing deaths in detention of adults with mental health conditions’ (2016a), https://www.equalityhumanrights.com/en/preven ting-deaths-detention-adults-mental-health-conditions, accessed 18 March 2021 70 Chamberlen (n 28).

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training and other related rehabilitative activities, has been poor and deteriorating since 2016–17 across the board. For example, in 2019–20 Ofsted rated nearly three-quarters of men’s prisons in education, skills and work as ‘inadequate’ or in need of improvement. Prisoners spend most of their days in their cell; 32 per cent in local prisons, and 16 per cent and 12 per cent in Category B and C training prisons, respectively, report spending less than 2 hours out of their cells.71 All these militate against transforming prisons into rehabilitative spaces for a successful social reintegration. Prisons’ record in treating prisoners respectfully and fairly has substantially improved since the days that led to the widespread prison disturbances in the early 1990s and the Woolf Inquiry, which highlighted inter alia the importance of procedural justice for prisoners’ sense of a fair treatment.72 However, as the Lammy Review illustrates, BAME Prisoners are less likely to report positive relationships with staff. BAME male prisoners also are more likely to report feeling victimised and unfairly treated, as well as more likely to face disciplinary adjudications but get acquitted.73 Last but not least, the elephant in the room – overcrowding – is steadfastly ignored, and answers are sought in already tried and failed solutions. It is forecast that the prison population will increase by more 15,500 people in the next 6 years and the Government announced funding for additional prison capacity at numerous occasions. In doing so, it effectively erases the findings of consecutive government backed reports and undermines its own prison policy. The CPT’s diplomatic reminder that the UK cannot ‘build its way out’ of overcrowding seems to fall on deaf ears to the detriment of prisoners, staff and their families.74

Conclusion The legalisation of prisoners’ human rights has been a hugely progressive development. The impact of the incorporation of the ECHR into domestic law on the HMPPS interpretation of the duty of care cannot be ignored. Prisons need to design their procedures and practices with forethought and foresight so as to be able to foresee human rights considerations and complications. Foreseeability and restraint are integral to an effective human rights protection. This is even more important in the prison context with its inescapable pains of imprisonment and 71 HMCIP, ‘Annual Report 2019–2020’ (2020), https://www.gov.uk/government/p ublications/hm-chief-inspector-of-prisons-annual-report-2019-to-2020; Prison Reform Trust (n 2). 72 Woolf, H., ‘The Woolf Report: A summary of the main findings and recommendations of the Inquiry into Prison Disturbances’ (1991), http://www.prisonreformtrust. org.uk/Portals/0/Documents/Woolf%20report.pdf, accessed 28 April 2021. 73 Lammy, D., ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’ (2017), https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf, accessed 20 February 2021. 74 CPT (n 4); Prison Reform Trust (n 2).

196 Karamalidou volatility75 where, arguably, to be able to judge when one needs to act can be a grey area of all sorts of gradations. In order to maintain and build on the legalisation of prisoners’ human rights, we need, however, pragmatism, leadership and courage. Our prison policy approach in the last decade has proven calamitous. Not only have we not revolutionised prison rehabilitation but we have actually rendered it worse on all possible measures. Self-harm, suicides, violence and drug taking have been on the increase; re-offending rates have only slightly declined whilst offending has become more serious. The politicisation of crime and human rights does not allow space for a rational sentencing policy. Instead, our sentencing policy has been anything else but rational when for close to three decades now it feeds the beast that prison overcrowding is. Embedding human rights in prisons in England and Wales is on the road to perdition for as long as prisons remain overcrowded. Pragmatism and courage are needed more than ever to salvage the human rights gains of the last two decades and to start implementing a rich body of research on a sustainable penal reform.

75 Sykes, G., The Society of Captives: A Study of a Maximum Security Prison (Princeton University Press, 1958).

12 ‘Regulated from a spirit of hostility’ Independence and the Criminal Cases Review Commission Jon Robins

This chapter will argue that the miscarriage of justice watchdog is in ‘crisis’ not only as a result of well-documented concerns over its long term underfunding and an unmanageable caseload but also because of the undermining of its independence supposedly protected by statute. In 2021, a report commissioned by the All Party Parliamentary Group on Miscarriages of Justice called upon the Criminal Cases Review Commission (CCRC) to ‘demonstrate its independence’.1 It noted that the Commission, which this year marks its 25th anniversary, has suffered the ‘biggest cut’ of any part of the criminal justice system since 2010 and its caseload has more than doubled over the same period. This chapter will set out why the CCRC’s independence was fundamental to those who made the case for the establishment of what was then considered to be a unique innovation in a criminal justice system; how the original proposals for the CCRC attempted to secure its independence; and, finally, account for recent developments which suggest there are threats to CCRC independence which surfaced in relation to a 2018 BBC investigation that formed the basis of a High Court legal challenge (R (Warner) v Secretary of State for Justice)2 and were highlighted by a recent cross-party parliamentary report.3 The CCRC, established under the Criminal Appeal Act 1995, has the power to refer a case where there are concerns about the safety of a conviction back to the Court of Appeal if it considers that there is a ‘real possibility’ the court will quash the conviction as a result of an argument or evidence not raised at trial or appeal (section 13).4 1 The Westminster Commission on Miscarriages of Justice, In the Interests of Justice: An Inquiry into the Criminal Cases Review Commission (2021), https://appgmiscarria gesofjustice.files.wordpress.com/2021/03/westminster-commission-on-miscarria ges-of-justice-in-the-interests-of-justice.pdf, accessed October 2021. 2 R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin). 3 The Westminster Commission on Miscarriages of Justice, In the Interests of Justice: An Inquiry into the Criminal Cases Review Commission (2021), https://appgmiscarria gesofjustice.files.wordpress.com/2021/03/westminster-commission-on-miscarria ges-of-justice-in-the-interests-of-justice.pdf, accessed October 2021. 4 These requirements may be by-passed if it appears to the CCRC that there are exceptional circumstances justifying a referral.

DOI: 10.4324/9781003143321-12

198 Robins Before the CCRC, the only way for a victim of a miscarriage of justice to progress their case post-appeal was as a result of a direct appeal to the Home Secretary. A Home Office department known as C3 investigated alleged wrongful convictions. As Wadham5 noted, ‘nearly everyone’ agreed that a new review body was necessary and its performance was ‘inadequate’. The CCRC was set up in response to recommendations of the 1993 Royal Commission on Criminal Justice, chaired by Viscount Runciman of Doxford. The so-called Runciman Commission was established on the day of the release of the Birmingham Six, six Irish men wrongly convicted following the 1974 pub bombings in the city. Runciman6 identified miscarriage cases which created ‘a need to restore public confidence’: the ‘Irish’ cases (the Guildford Four,7 Maguire Seven,8 Judith Ward9 as well as the Birmingham Six)10 plus,11 Stefan Kiszko12 and the Cardiff Three.13 The main structural change to our criminal justice system as a result of the Runciman Commission was the first state-funded miscarriage of justice watchdog which was ‘a remarkable innovation’.14 The Runciman Commission called for a new body to ‘consider allegations put to it that a miscarriage of justice may have occurred … and, where there are reasons for supposing that a miscarriage of justice might have occurred, to refer the case to the Court of Appeal’.15 Independence was integral to this proposed new body. The report recommended a ‘Criminal Cases Review Authority’ (as it was then called) which would be ‘based on the proposition’ that the role of the Home Office in referring appeals to the Court of Appeal was ‘incompatible with the constitutional separation of powers as between courts and the executive’. Legislation ‘should give it operational independence’ and should be ‘independent of the court structure’, the report said. Section 8 of The Criminal Appeal Act 1995 set out the independent structure of the CCRC: (1) There shall be a body corporate to be known as the Criminal Cases Review Commission. (2) The Commission shall not be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and Wadham, J., ‘A free hand to end injustice’, The Times, 27 July 1993, 29. Runciman, G., The Royal Commission on Criminal Justice (HMSO, 1993). R v Richardson; R v Conlon; R v Armstrong; R v Hill (1989) The Times, 20 October. R v Maguire (1992) 94 Cr App R 133. R v Ward [1993] 1 WLR 619. R v McIlkenny and Others [1992] 2 All ER 417. R v Raghip, Silcott and Braithwaite (1991) The Times, 9 December 1991. R v Kiszko (unreported) 18 February 1992, CA. R v Paris, Miller and Abdullahi (1993) Cr App R 99 (CA). Quirk, H., ‘Governing in prose’ in J. Robins (ed.), Wrongly Accused: Who is Responsible for Investigating Miscarriages of Justice? (Wilmington, 2012) 30–33. 15 Runciman, G., The Royal Commission on Criminal Justice (HMSO, 1993) 217.

5 6 7 8 9 10 11 12 13 14

‘Regulated from a spirit of hostility’ 199

(3) (4) (5)

(6)

the Commission’s property shall not be regarded as property of, or held on behalf of, the Crown. The Commission shall consist of not fewer than eleven members. The members of the Commission shall be appointed by Her Majesty on the recommendation of the Prime Minister. At least one third of the members of the Commission shall be persons who are legally qualified; and for this purpose a person is legally qualified if— (a) he has a ten year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, or (b) he is a member of the Bar of Northern Ireland, or solicitor of the Court of Judicature of Northern Ireland, of at least ten years’ standing. At least two thirds of the members of the Commission shall be persons who appear to the Prime Minister to have knowledge or experience of any aspect of the criminal justice system and of them at least one shall be a person who appears to him to have knowledge or experience of any aspect of the criminal justice system in Northern Ireland; and for the purposes of this subsection the criminal justice system includes, in particular, the investigation of offences and the treatment of offenders.

In 2010, the then Lord Chief Justice, Sir Igor Judge explained the importance of the independence of the watchdog in terms of its part in our constitutional arrangements. He said that the CCRC and its commissioners was ‘part and parcel of the weft of an independent judiciary’.16 The independence of the commissioners, and their ability to properly review cases, is critical to the watchdog because, under statute, it takes the agreement of

16 Sir Igor was giving evidence to the Select Committee on the Constitution on the Public Bodies Bill over concerns that more than 177 quangos would be scrapped as part of the coalition government’s efforts to cut costs (the so-called ‘bonfire of the quangos’). ‘Schedule 7 to the Public Bodies Bill includes a large number of institutions which are of importance in themselves, which are important to the public and whose independence is part and parcel of the independence which we attach to the entire way in which the judiciary works…. The CCRC is set up by legislation as an independent body. The same goes for the Parole Board, the Sentencing Council – there are a whole series of them. The object is to ensure that they will remain independent of whichever Government of the day we happen to have. If you put all those into Schedule 7, you make them amenable pretty rapidly to disposal by the Government of the day. That seems to me to be extraordinary. I have made my views entirely clear in the way in which it is appropriate for the Lord Chief Justice to do so, and I very much hope that, as a result of a whole lot of people making their views entirely clear, very careful reconsideration will be given to the whole series of bodies in Schedule 7 which currently perform a quasi-judicial function but whose independence is all part and parcel of the weft of an independent judiciary. The independent judiciary standing entirely alone is rather a small body, but if all those other bodies which exercise quasi-judicial functions are independent of Parliament then it strengthens the independence of the judiciary’. https://www.lawgazette.co.uk/commentary-and-op inion/a-watchdog-that-has-lost-its-teeth/5107761.article.

200 Robins three of the eleven commissioners to refer a case back to the Court of Appeal where there are concerns about the safety of a conviction. The creation of the CCRC was largely down to the dogged determination of campaigners. This was noted by journalist and former CCRC commissioner, David Jessel, who called its creation ‘the nationalisation of zeal, the taking of fervour into public ownership’.17 However, the CCRC was not the body that those campaigners fought for. For example, the law reform group JUSTICE in the year of the release of the Guildford Four, proposed a body that would have ‘the powers of a tribunal inquiry’ which would bypass the Appeal judges entirely. The business of the criminal Court of Appeal would be restricted to ‘matters of law and procedure’.18 Colvin noted that the CCRC could not succeed if it was ‘merely transposed’ onto ‘a system which itself requires reform’ and that meant ‘a reformed Court of Appeal’.19 Similarly, Taylor and Mansfield20 argued that the success of the Commission was ‘wholly dependent’ upon how the Court of Appeal chose to exercise its powers which, in effect, represented ‘little change’ from the days of its predecessor body (C3). Commentators predicted that the new body and its success or failure would be largely a matter of ‘political will’ (to quote Colvin, 1994) and was likely to be both underfunded and overwhelmed by applications. Lacey suggests that the Runciman Commission had been co-opted by ‘governmental managerial concerns’ which were distinct from the ‘civil libertarian concerns’ of preventing wrongful convictions; which had provided the impetus for the Commission’s creation.21 She cited the Royal Commission’s terms of reference to ‘examine the effectiveness of the criminal justice system in England and Wales in securing conviction of those guilty of criminal offences and the acquittal of those who are innocent, having regard to the efficient use of resources’ (emphasis added).22 The Royal Commission’s terms of reference adopted a definition of a ‘miscarriage of justice’ that embraced both the innocent wrongly convicted and the guilty person who escaped punishment. We recognise that there is no way of finding out, or even plausibly estimating, the frequency with which miscarriages of justice in either sense occur. It is 17 Jessel, D., ‘Time to reconnect’ in J. Robins (ed.), Wrongly Accused: Who is Responsible for Investigating Miscarriages of Justice? (Wilmington, 2012) 17–19. 18 JUSTICE, Miscarriages of Justice (JUSTICE, 1989) 72. 19 Colvin, M., ‘Miscarriages of justice: The appeal process’ in M. McConville and L. Bridges (eds), Criminal Justice in Crisis (Edward Elgar, 1994) 287–293. 20 Taylor, N. and Mansfield, M., ‘Post conviction procedures’ in C. Walker and C. Starmer (eds), Miscarriages of Justice: A Review of Justice in Error (Blackstone, 1998) 229–246. 21 See generally Lacey, N., ‘Missing the wood … pragmatism versus theory in the Royal Commission’ in M. McConville and L. Bridges (eds), Criminal Justice in Crisis (Edward Elgar, 1994) 30–41. 22 Runciman, G., The Royal Commission on Criminal Justice (HMSO, 1993) 5, https://a ssets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_da ta/file/271971/2263.pdf.

‘Regulated from a spirit of hostility’ 201 widely assumed – and we are in no position to contradict it – that the guilty are more often acquitted than the innocence convicted. (Runciman 1993:2)23 Scraton called Runciman’s evidence-free assumption ‘a crude attempt at “balancing” the scales, uncorroborated and without empirical reference’, and one that reflected ‘a political agenda’.24 Commentators in the press were sceptical about the prospects of the new born watchdog. Their concerns related to the CCRC’s independence and, in particular, its ability to stand up to the police and the courts on the behalf the wrongly convicted who might themselves be the victims of failures on the part of the police, the legal profession and the judiciary. The new body could quickly turn out to be, in Private Eye’s satirical assessment, ‘a toothless commission whose inquiries will be conducted by the police (who made the mistakes which led to the injustices) and whose only power is to refer a case to the Court of Appeal (which made the mistake in the first place)’.25 Those fears were fuelled over its first choice of commissioners which overlooked obvious candidates such as fellow journalists who had done so much to reveal the miscarriages of justice that provided the catalyst for its creation (notably Chris Mullin and Private Eye’s Paul Foot) as well as defence lawyers who represented their clients. For reasons it has kept entirely to itself, the Government failed to respond to offers of assistance from lawyers who represented them,’ noted one broadsheet editorial. ‘It seems perverse of the Government to concentrate appointments among those whose experience has been on the prosecution benches. Two members of the new Commission actually worked on the preparation of some of the prosecutions of the 1970s and 1980s now declared “unsafe,” as senior officials in the government prosecution service. They are joined by a former chief constable. (Independent on Sunday, 1997)26 Here is the opportunity for an independent body to effectively challenge the deep resistance of the system to admitting it may have been wrong. And since the passing of its mirror image, the 1996 Act, never has there been such a clear need to do so. Has this commission got what it takes?27 The appointment of Sir Frederick Crawford as the first chairman – ‘a prominent freemason’, according to Berlins28 – did little to reassure. Sir Frederick had ‘no 23 ibid. 24 McConville, M. and Bridges, L. (eds), Criminal Justice in Crisis (Edward Elgar, 1994). 25 See Robins, J., The First Miscarriage of Justice (Waterside Press, 2014). 26 Editorial, ‘A credibility gap too far’, The Independent, 27 February 1997, page 22. 27 Wynn Davies, P., ‘New crime law, old police culture’, The Independent, 1 April 1997, page 15. 28 Berlins, M., ‘Writ large’, The Guardian, 14 January 1997, T21.

202 Robins track record in the area of miscarriages of justice’, observed Jim Nichol, the solicitor in the Bridgewater Four case.29 Nichol suggested that ‘unless there is independent investigation of miscarriages of justice – other than by the police – the situation will not improve’.30 Twin related concerns that the CCRC would be (a) underfunded; and (b) overwhelmed by its caseload were predicted ahead of the new watchdog investigating its first case; and they were realised within weeks of the CCRC beginning work. The Home Office transferred 251 files to the new group including 210 ‘old cases’ that were passed on from C3. ‘I don’t know if we can cope’, Sir Frederick Crawford, chair of the newly born Criminal Cases Review Commission (CCRC), told journalists at its launch press conference in 1997.31 In its first year, the watchdog wrote in a memoranda to the Home Affairs Committee: ‘For the CCRC to remain genuinely independent, and it do its job to the satisfaction of its stakeholders, it must remain free of inhibiting external managerial and financial constraints’.32 I first wrote about the CCRC more than 20 years ago in an article about the case of Eddie Gilfoyle.33 Even then, with the watchdog in its relative infancy, the twin concerns (inadequate funding and an unmanageable caseload) were hindering the ability of the watchdog to effectively do its job. Gilfoyle’s application was one of 2,500 that the CCRC had received in its then two-year life and, at the time of the article, the watchdog had just referred his case back to the Court of Appeal. ‘He is one of the lucky few and only the 42nd to be referred’, I wrote. ‘To date only nine convictions have been quashed. Underfunded and understaffed, the commission has been swamped’. I have been reporting on miscarriages of justice over the intervening years and concerns over those two issues have persisted and become increasingly obvious. For example, I interviewed the Commission’s outgoing chair Professor Graham Zellick in 2008.34 He then reported staff were ‘angry’ and ‘dispirited’ as a result of a funding crisis. ‘If you compared the CCRC’s then £8 million budget with the amount of money spent on the other side by the police and Crown Prosecution 29 Sir Frederick had previously worked as a scientist at the French Atomic Energy Commission, served on various committees on the Space Shuttle at Nasa and had been a director of Legal & General (as reported in Robins, 2018). 30 Donovan, P., ‘Cold comfort for victims of injustice’, The Independent, 6 August 1996. 31 See Robins, J., ‘Unmanageable workloads and substandard investigations’, 31 May 2018, https://www.thejusticegap.com/unmanageable-workloads-and-substandard-in vestigations-that-fail-to-put-right-miscarriages-of-justice/. 32 Criminal Cases Review Commission, A Memorandum for the Home Affairs Committee (CCRC, 1998). 33 Eddie Gilfoyle was convicted of the murder of his eight-and-a-half month pregnant wife, Paula Gilfoyle. He has always protested his innocence. In 2017 the CCRC rejected a second application on behalf of Gilfoyle after having had the application six years previously. For the original source, see Robins, J., ‘The waiting game’ (The Big Issue, 1999). 34 Robins, J., ‘Are the bad old days returning?’, The Times, 28 October 2008, page 55.

‘Regulated from a spirit of hostility’ 203 Service, it was “not even a crumb off the table”’, he said. The same article featured an interview with former CCRC commissioner, Laurie Elks, who said that the group was regarded ‘as an unnecessary evil’ by the government department responsible (then the Home Office) and had been regulated ‘from a spirit of underlying hostility’. I also reported on the case of Tony Stock which in 2008 had become the first case to have been referred a second time to the Court of Appeal by the CCRC.35 Stock’s lawyer, Glyn Maddocks QC described that case as ‘a virility test’ for the watchdog and to this day it remains one of just two cases to have been sent back a second time by the Commission. Maddocks argued then that the judges’ emphatic rejection of Stock’s 2004 appeal had been a blow to the CCRC which had been accused of being overly deferential to the Court of Appeal. ‘The Court of Appeal has frightened – one could even say terrified – the CCRC in the past. Often they have been overcautious and want 100 per cent certainties before they send them back It shows enormous courage on the CCRC’s part’, Maddocks said. I went on to write a book about the case with the support of Maddocks and Ralph Barrington, a former head of investigations at the CCRC. ‘It was the most outrageous miscarriage I saw in my time at CCRC’.36 The Stock case was rejected by the Court of Appeal in 2008 and a fresh application was made to the CCRC in 2019 which is presently being considered by the group. In my 2018 book Guilty until proven Innocent: The crisis in our justice system, I argued that the CCRC was ‘oversubscribed and understaffed’ and ‘another symptom of a failing criminal justice system’.37 ‘It is no coincidence that the system’s so-called safety net mechanism has suffered more under austerity than any other agency’, I wrote. In 2016, the CCRC’s chair, Richard Foster, told MPs that for every £10 that his predecessor had to spend on a case a decade ago, he now had just £4. That represented the deepest cut that had taken place anywhere in the justice budget. Almost as soon as the CCRC was set up, it was undermined: first by politicians and then by the Court of Appeal. Many lawyers and academics would say that the Court of Appeal has changed little since those bad old days.38 The CCRC has come under heavy fire from its critics over the years. For example, Naughton argued that the CCRC was not doing ‘what it is widely believed to have been set up to do: help alleged innocent victims of wrongful 35 Robins, J., ‘Miscarriage case is a “virility test”’, The Times, 16 October 2008. 36 Robins, J., The First Miscarriage of Justice (Waterside Press, 2014) 237. 37 Robins, J., Guilty Until Proven Innocent: The Crisis in our Justice System (Biteback Publishing, 2018). The book examined eleven cases of alleged wrongful conviction. Its launch in June 2018 at the House of Commons was hosted by the then new All Party Parliamentary Group on Miscarriages of Justice (APPG). The APPG was established by Barry Sheerman MP, who campaigned for more than 20 years on behalf of Tony Stock, and his lawyer Glyn Maddocks QC who is the group’s special adviser. 38 ibid. at xx.

204 Robins convictions in the interests of justice’.39 Woffinden claimed that the CCRC was ‘an experiment that failed’. Naughton argued that the Commission was hamstrung by the ‘statutory straightjacket’ of the Criminal Appeal Act 1995 which, as explained above, required cases only with the ‘real possibility’ of the conviction being overturned to be referred to the Court of Appeal.40 In 2018 Professors Carolyn Hoyle and Mai Sato published Reasons to doubt: Wrongful Convictions and the CCRC, the most comprehensive research into the CCRC to date. The authors concluded that the CCRC was ‘not a perfect organisation. It has more variability than most applicants would be happy with, it remains a little more cautious in its referrals than it may need to be, it is sometimes too slow and ponderous’. However, they argued ‘it is a whole lot better than its predecessor’ (C3). It would be nothing short of an own goal for critics to fight to remove the commission from our struggling criminal justice system or for the government to fail fund it adequately for the task at hand’.41 Their work followed the Justice Committee (2015) report which concluded that the CCRC was performing its functions ‘reasonably well’. The MPs urged the watchdog to be ‘less cautious’ and refer more cases back to the Court of Appeal. If a bolder approach leads to five more failed appeals but one additional miscarriage being corrected, then that is of clear benefit.42 On funding, Hoyle and Sato noted that the CCRC had ‘for a long time claimed to be inadequately resourced’. The CCRC for a number of years received about a 1,000 applications a year on average but, according to the CCRC, changes to make the form easier for prisoners to complete led to a 50 per cent increase in the number of applications. A case review manager told the researchers: We simply didn’t have enough commissioner resources to deal with the upsurge in applications we got when we introduced the easy-read application form. We went from 900 cases a year to 1,500 cases a year, roughly. And, at the same time, we were getting less and less commissioner resource than we had’.43 39 Naughton, M. (ed.), Hope for the Innocent (Palgrave, 2010) 4. 40 Woffinden, B., ‘The CCRC has failed’, The Guardian, November 2010, https:// www.theguardian.com/commentisfree/libertycentral/2010/nov/30/criminal-casesreview-commission-failed. 41 Hoyle, C. and Sato, M., Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (OUP, 2019) 338. 42 House of Commons’ Justice Committee, Criminal Cases Review Commission, HC 850 (HMSO, 2015) 12. 43 Hoyle, C. and Sato, M., Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (OUP, 2019) 19.

‘Regulated from a spirit of hostility’ 205 A dramatic collapse in the number of referrals from an average of 33 referrals a year to just a dozen in 2017 prompted fresh scrutiny in the performance of the CCRC.44 For the first time in the CCRC’s life, less than 1 per cent of the people who applied to the body had had their cases referred45; and, again for the first time, the watchdog referred fewer cases in percentage terms than the discredited C3 in its final years.46 It was in the context of this renewed interest that concerns about the CCRC’s independence from the Ministry of Justice arose. In 2018 BBC broadcast a Panorama investigation into the CCRC. The programme examined the watchdog’s conduct in the context of its treatment of two murder convictions (Eddie Gilfoyle and Kevin Lane).47 Lawyers specialising in criminal appeals told the Panorama reporter Mark Daly that the CCRC had become increasingly timid in the face of criticism from the court over the cases it referred. Eddie Gilfoyle’s solicitor Matt Foot called the six year wait for a decision in the case ‘almost inhumane’. ‘The CCRC has failed to see a single witness’, he said. They failed to go to the scene. They have not really left the building to investigate this case. There are so many of these cases that have been prepared by people doing these appeals that are just getting knocked back and that can only be explained by cowardice and a lack of investigation. it has become a cultural thing. The programme drew on the CCRC’s own board minutes going back three years which had been accessed through freedom of information legislation.48 The minutes offered an insight into the relationship between the watchdog and its sponsoring department, the Ministry of Justice (MoJ) – for example, the minutes revealed that MoJ raised the prospect of charging CCRC applicants a fee.49 44 Over the last five years, the CCRC has referred 19 cases a year. In 2021 the CCRC has referred 70 cases – including 51 referrals relating to the Post Office Horizon debacle and a further six to the ‘Shrewsbury 24’ cases. The CCRC has insisted that it should not be judged on its referrals. For example, the CCRC chair Helen Pitcher has said that referrals were ‘not the be-all and end-all’ – see Robins, J., ‘It is important after 25 years the CCRC should be re-examined. If things can be improved, why not?’, The Justice Gap, 5 March 2021, https://www.thejusticegap.com/garnierit-is-important-after-25-years-the-work-of-the-ccrc-should-be-re-examined-if-things-ca n-be-improved-why-not/. 45 Criminal Cases Review Commission, Annual Report, HC 246 (HMSO, 2017). 46 In its last year, C3 received about 900 applications and referred nine cases to the Court of Appeal (as reported in Robins, 2018). 47 Kevin Lane spent 20 years in prison for the murder of Robert Magill. His case had been turned down twice by the CCRC. 48 The minutes have been seen by the author. They were originally obtained by the charity APPEAL which investigates miscarriages of justice by its investigator James Burley. 49 It remains free to apply to the CCRC and there is no limit as to how many times someone can apply.

206 Robins Extracts from CCRC board minutes, include: ‘There was a concern amongst some CRMs [case review managers] that when they found a referral point it meant more work and we need to guard against a culture where referral points are seen as something trouble to deal with because of overall work pressures’ (January 27, 2015) CRMs were struggling to cope with ‘large, sometimes unworkable portfolios’ (April 25, 2017). One commissioner ‘said she had recently been involved in two referral cases where material non-disclosure was the reason for referral, but she doubted whether the enquiries that led to the discovery of that non-disclosure would be made if the applications had been made today’ (September 13, 2017). After the Panorama programme was broadcast, the presenter and the investigative journalist Mark Daly told me that there was ‘some evidence to suggest that the CCRC itself accepts that it’s under extreme pressure financially and in other ways’. ‘They have had to fight off, or at least warn against, a culture developing in the organisation where finding new evidence in cases was seen as “troublesome” because of the work it would involve’.50 There was also criticism of a new hardening of the approach on the part of Court of Appeal to appeals and how that impacted upon the CCRC’s referrals. The former appeal judge Sir Anthony Hooper said that the watchdog had become more cautious because the court had set the bar higher than it had been in living memory. ‘It’s become much more difficult for an appellant to succeed … and, therefore that will no doubt influence [the CCRC] on what cases that they send through’, he said. Sir Anthony was asked if ‘the bar’ currently set by the Court of Appeal was ‘wrong’, he replied: ‘I’m saying that’.51 In July 2020 lawyers acting on behalf of a prisoner challenged a decision by the watchdog to reject his application by arguing that the CCRC was not sufficiently free from government control (R v Warner).52 The judicial review drew upon the same CCRC board minutes revealed through FOI requests which informed the Panorama programme. The challenge cited two cases: firstly, that of a British prisoner (Paul Wakenshaw) who in June 2018 sought a judicial review on the basis he did not have a fair chance of parole following the furore over the decision to release the serial sex attacked John Worboys (R (DSD & Anor) v The Parole Board of England and Wales;53 and R (Wakenshaw) v Secretary of State for Justice).54 50 Robins, J., ‘Unmanageable workloads and substandard investigations’, The Justice Gap, 31 May 2018, https://www.thejusticegap.com/unmanageable-workloads-a nd-substandard-investigations-that-fail-to-put-right-miscarriages-of-justice/. 51 The CCRC was invited to participate in the programme but declined. 52 Gary Warner had been sentenced to 16 years in prison for his role in an armed robbery. R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin). 53 R (DSD & Anor) v The Parole Board of England and Wales [2018] EWHC 694. 54 R (Wakenshaw) v Secretary of State for Justice [2018] EWHC 2089.

‘Regulated from a spirit of hostility’ 207 In the Worboys case, the high court ruled that the Parole Board’s decision to release the ‘black cab rapist’ should be quashed after public outcry which prompted other women claiming to be victims making allegations stepping forward. As a result, the Justice Secretary, David Gauke, called the position of the Parole Board chair Nick Hardwick ‘untenable’ and Hardwick subsequently resigned. Lawyers acting for Wakenshaw argued that Hardwick’s removal demonstrated that the Parole Board lacked independence and as such failed to meet the requirements of the European Convention on Human Rights.55 A similar line of reasoning was deployed in the Warner case. At the heart of the challenges were changes that his lawyers argued had been unilaterally imposed by the MoJ to CCRC and, in particular, the tenure and pay of the eleven CCRC commissioners whose independence was supposedly guaranteed under the Criminal Appeals Act 1995. Warner’s legal team argued that the relationship between the MoJ and the CCRC was ‘dysfunctional’ and accused the ministry of ‘misusing its sponsorship role’ by ‘placing pressure’ on the Commission to ‘reconstitute its board so as to reduce the influence of commissioners’. They also contended that the CCRC introduced its own internal reforms with the effect of downplaying the power of commissioners out of a ‘fear of displeasing its sponsor’. The Warner case highlighted the importance of the role of the CCRC commissioners. From the start of the CCRC in 1997 until 2012, commissioners were employed on a full-time or near full-time basis on generous salaries (£93,796 in 2013) and a pension. At the time of writing, almost all commissioners are now employed on minimum one-day-a-week contracts and paid on a £358 daily rate which is significantly less than a basic judicial rate (for example, £502 a day for a judge in the first tier tribunal). The CCRC board minutes revealed that the changes over the commissioners’ terms and conditions had been resisted by a number of commissioners. Warner’s lawyers quoted from CCRC board minutes from April 2016 which recorded that the board was ‘extremely concerned’ about a draft candidate information pack moving to the new packages. ‘In the event the Secretary of State overruled the CCRC and proceeded with a competition, concluded in 2017, based on a fee paid model and a tenure of three years’, Warner’s lawyers claimed. Five new commissioners were appointed as a consequence of that recruitment round. Minutes from February 2017 revealed that the then CCRC chief executive Richard Foster told the board that the MoJ were to change past policy and no longer approve re-appointments ‘as a matter of course’. That decision appears to have prompted a disagreement between commissioners and non-executive 55 Both Wakenshaw and Warner cited a 2008 case (R (Brooke) v Parole Board [2008] EWCA Civ 29) in which four prisoners successfully challenged the Parole Board’s perceived lack of independence. ‘Neither the secretary of state nor his department has adequately addressed the need for the Parole Board to be and to be seen to be free of influence in relation to the performance of its judicial functions’, the court said. ‘Both by directions and by the use of his control over the appointment of members of the board, the secretary of state has sought to influence the manner in which the board carries out its risk assessment’.

208 Robins directors who complained that board time spent on the subject appeared ‘selfserving’. ‘Commissioners commented that it was not self-serving to try to preserve the commission’s core decision-making capacity on the lines Parliament intended’, the minutes recorded. According to the CCRC minutes,56 the issue came to a head in February 2018 in the form of an intervention by a senior civil servant, Alison Wedge, deputy director at the MoJ and head of arms’ length business. She addressed the board to discuss recommendations following a MoJ review and a commissioner asked whether the board was required to comply with the ministry’s recommendations. Wedge informed the board if the Secretary of State (David Gauke) approved the report ‘it would then become government policy’. She was reported to have then warned the watchdog that it ‘would be in conflict with Government policy if it did not accept and did not implement the recommendations’. The minutes went on to say: ‘AW said the SofS recommends the appointment of Commissioners to HMQ and that similarly he could recommend removal. However, AW hoped that there would be no need for such a situation to arise’.57 In court, Warner’s barrister Matthew Stanbury called her comments ‘a thinly veiled threat, if the threat was veiled at all’.58 ‘Her words are going to have a chilling effect on anyone who might be a commissioner who might be minded not toe the line’, the barrister told the court. He acknowledged that she had since ‘disavowed the remarks’; although, he pointed out, she had not disavowed the MoJ’s position on reappointment. ‘This was not a one off’, Stanbury said. ‘This is a theme – there has been no particular secret about this theme. This was not just about a lack of consultation but an active attempt to clip the commissioners’ wings’.59 Stanbury called the relationship between the CCRC and the MoJ ‘dysfunctional’ and argued that the relationship had not changed followed the appointment of Foster’s successor, Helen Pitcher (the new CCRC chair) rather it was ‘the Commission’s acceptance of the relationship’ that had changed. The CCRC, in its skeleton arguments supplied to the court as an interested party, stated that it ‘does not consider that any of its casework decision-making’ was ‘under any threat of independence or that the independence of its members in the performance of their functions is in any way absent as a consequence of appointment duration’. Instead the CCRC argued that the introduction of ‘the fee-paid model requiring a minimum of 52 days each year’ had delivered ‘benefits to recruitment’ such as ‘improving the diversity of the age, ethnicity and professional background’ of Commissioners. It was argued that the new CCRC chair (Helen Pitcher) regarded the new arrangements to have been ‘beneficial, both operationally and financially, and that performance has not deteriorated but improved’. The newly appointed 56 The minutes have been seen by the author (see footnote 44 for explanation). 57 ibid. 58 Robins, J., ‘MoJ accused of undermining independence of miscarriage watchdog and “clipping its wings”’, The Justice Gap, 1 July 2020, https://www.thejusticegap. com/moj-accused-of-undermining-independence-of-miscarriage-watchdog. 59 ibid.

‘Regulated from a spirit of hostility’ 209 commissioners were able to work more than the minimum number of days (‘to flex up’) as required ‘to meet business needs and to match Commissioner days to the flow of cases’. Judges Fulford and Whipple rejected Warner’s challenge but they agreed with his lawyers’ analysis, at least for a two-year period (2016 to 2018). ‘The relationship between the CCRC and the MoJ was very poor during this period, even dysfunctional’, they said. ‘The poverty of this relationship undoubtedly tested the CCRC’s ability to remain independent of MoJ, and to be seen to be so’.60 The episode that most concerned the court was the treatment of ‘Commissioner X’. An MoJ briefing for a justice minister suggesting his re-appointment be refused, noting: ‘We are also aware that [X] has been amongst the cadre of commissioners seeking to resist further changes to governance/working arrangements’.61 It was ‘not appropriate’ for the minister to be advised in this way, the court said. The case of Commissioner X was ‘an isolated incident’, Fulford and Whipple said; adding that the ‘the problem is not systematic’ and that this episode (i.e., the events of 2016 to 2018) ‘must now recede into history’. Alison Wedge filed a witness statement to the court in which she asserted that the CCRC was ‘operationally independent’ of the MoJ. In what was to become a disputed section of the judgment, the court said: ‘That same phrase was used by Mr Pobjoy, counsel for MoJ, during the course of his submissions’, the court noted. Certainly, the CCRC is operationally independent of Government. But in our judgment, following our review of the statute and the framework document and based on our understanding of the role occupied by the CCRC within the wider criminal justice system, the CCRC is much more than merely ‘operationally’ independent; it is constitutionally independent from Government too, and must be seen to be so, if the public is to have confidence in its decisions.62 In the wake of the Warner judgment, a number of former commissioners spoke out about their concerns about the undermining of the CCRC’s independence.63 For example, a former commissioner, Ewen Smith, who stepped down in October 2016 after serving 10 years, spoke out about his concerns. ‘It is my view that appointing fee-paid Commissioners on a daily rate with fewer days available could undermine their ability to discharge their responsibilities under the Criminal Appeal Act 1995 in respect case work and governance’, he said. ‘I believe there is the potential to weaken the decision making process thereby interfering with the Commissions independence’.64 R (Warner) v Secretary of State for Justice [2020] EWHC 1894 (Admin) [81]. ibid. ibid. at 18. Robins, J., ‘The looming shadow: The “dysfunctional” relationship between the CCRC and the Ministry of Justice’, The Justice Gap, 20 September 2020, https://www.thejus ticegap.com/the-looming-shadow-the-dysfunctional-relationship-between-the-ccrc-andthe-ministry-of-justice/. 64 ibid. 60 61 62 63

210 Robins Former commissioner David Jessel, said the approach of the original commission chairman, Sir Frederick Crawford to the government was ‘give us the money and leave us alone’. However, the appointment of the immediate past chair Richard Foster, ‘led to a closer relationship with the ministry, who saw the CCRC as a somewhat maverick organisation in terms of its governance’. ‘The CCRC, and its dedicated staff, have lost some of the sense of mission which full-time Commissioners brought to the organisation’s founding vision’, said Jessel. ‘The paltry number of successful investigations is the result – although, laughably, the MoJ takes it as proof that the criminal justice system is working well’.65 The former chief prosecutor Nazir Afzal, who applied for the job as CCRC chair, said commissioners had been feeling increasingly marginalised. ‘The impact of funding can’t be exaggerated. It’s having a conscious or unconscious impact on decision making’.66 The CCRC vigorously defended their position and insisted that the judgment in Warner represented a clean bill of health as far as their independence was concerned. For example, the Commission wrote to The Times complaining about its coverage of the Warner judgment.67 The Commission wrote to the newspaper twice, the second letter a ‘toned down’ version of the first. Neither letter was published and the watchdog felt sufficiently aggrieved that it took its complaint to the press regulator the Independent Press Standards Organisation. The CCRC complained, inter alia, that the court ‘emphatically dismissed the claims that the CCRC’s independence from Government had been compromised and went so far as to say that the CCRC is not only operationally independent, but is also “constitutionally” independent’.68 When I interviewed the CCRC chair Helen Pitcher, I put it to her that there was another reading of the Warner judgment: that the court was saying that the CCRC should be constitutionally and operationally independent, and that was not being recognised by the MoJ. In other words, the court was striking a cautionary note and not offering an endorsement of the Commission’s independence. ‘Our view is we are independent,’ Pitcher replied. ‘I personally will fight like tooth and nail if I have to. I do not have to do so because it is not happening.’69 65 Jessel, D., ‘Time to reconnect’ in J. Robins (ed.), Wrongly Accused: Who is Responsible for Investigating Miscarriages of Justice? (Wilmington, 2012) 17–19. 66 Ames, J. and Robins, J., ‘Ministers bullied justice watchdog, lawyers claim’, The Times, 29 July 2019, https://www.thetimes.co.uk/article/ministers-bullied-justice-watchdo g-lawyers-claim-5rb7tbxs0, accessed October 2021. 67 Baksi, C., ‘CCRC had dysfunctional relationship with MoJ, court rules’, The Times, 20 July 2020, https://www.thetimes.co.uk/article/ccrc-had-dysfunctional-relationship -with-moj-court-rules-c5r39fl9r, accessed October 2021. 68 IPSO ruled ‘that the publicly available court judgment had found that the complainant was both constitutionally and operationally independent’. IPSO said that The Times’ headline (‘Watchdog’s work was not independent, court rules’) was ‘inaccurate’ and ‘represented a failure to take care over the accuracy of the article’. One former commissioner told me that CCRC’s letters to The Times were ‘an even worse misrepresentation of the High Court decision than the Times’ original article’ (see Robins, 2020). 69 Robins, J., ‘We are independent. I will fight like tooth and nail if I have to’, The Justice Gap, 14 May 2021, https://www.thejusticegap.com/helen-pitcher-interview-we-are-in dependent-i-will-fight-like-tooth-and-nail-if-i-have-to/, accessed October 2021.

‘Regulated from a spirit of hostility’ 211 In early 2021 the APPG’s inquiry (Westminster Commission) finally published its report. As well as calling for more funding, the Westminster Commission, cochaired by the conservative peer Lord Garnier QC and cross-bencher Baroness Stern, urged the watchdog to ‘demonstrate its independence from government’.70 The CCRC needs to demonstrate its independence from government. It was set up because the previous system lacked independence … many of our witnesses were critical of the way these sensitive relationships had been managed, and what they considered to be incursions by the Ministry of Justice into the CCRC’s independence.71 The report quoted submissions from the law reform group JUSTICE who said that ‘recent events have suggested the independence of the Commission has been undermined’. Furthermore, Quirk, Reader in criminal law at Kings’ College London and a former CCRC case review manager, detected ‘recent signs that the Ministry of Justice is pulling the CCRC too close. This must be resisted and reversed’.72 The inquiry highlighted the Warner case, the CCRC board minutes and quoted the foreword of an MoJ review noting that the minister would be taking ‘a keen interest’ in the ‘timely implementation’ of the reforms. In its submission to the Westminster Commission JUSTICE said this ‘suggests an unlawful interference by Government with the independence of the CCRC’. As mentioned earlier, the Westminster Commission report confirmed that the miscarriage of justice watchdog had suffered the ‘biggest cut’ of any part of the criminal justice system since 2010. The watchdog received just £5.93m in 2019 compared to £9.24m in 2004. The average workload for case review managers climbed from 12.5 in 2010 to 27 in 2017. The CCRC’s chair told the Westminster Commission that the Birmingham-based group ‘ideally’ needed 45 case review managers but had just 31. The Westminster Commission heard that the overall level of commissioner resource fell from 8.8 full time equivalent posts in 2014 to just two and a half by 2019. These changes were implemented following a review by the MoJ and, according to the inquiry, faced ‘strong opposition within the CCRC’. Three former commissioners told the Westminster Commission about their concerns. ‘I cannot see how one-day a week commissioners could ever fulfil the duties for which they were appointed … they would find it almost impossible to be anything other than “rubber-stamping” decisions’, said one.73 David James Smith, a commissioner who left the organisation in 2018, set out his concerns in an interview with the online magazine the Justice Gap: 70 The Westminster Commission on Miscarriages of Justice, In the Interests of Justice: An Inquiry into the Criminal Cases Review Commission (2021), https://appgmiscarria gesofjustice.files.wordpress.com/2021/03/westminster-commission-on-miscarria ges-of-justice-in-the-interests-of-justice.pdf, accessed October 2021. 71 ibid. at 22. 72 ibid. 73 ibid. at 24.

212 Robins No-one should be under any illusion about the CCRC’s importance to society and especially to the criminal justice system. It is the backstop when things go wrong in criminal trials, the place of last resort when all else has failed. Those considerations weighed heavily as a Commissioner.74 There was a strong sense among Commissioners, during my time there that the MoJ was trying to change the Commission by stealth. The CCRC is a statutory body. We used to say at board meetings, if the MoJ wants to change the CCRC it should go back to parliament, and let MPs decide.75 The switch from salaried to fee paid commissioner terms had ‘the effect of pushing Commissioners to the edges of the very organisation they are supposed to lead and defend against the government and the courts’. Those new arrangements ‘shifted the balance of power’ to the executive who were ‘civil servants in the employ of the state’ as opposed to commissioners ‘appointed on Royal Warrant precisely to preserve the CCRC’s independence’.76 He also questioned the commissioners’ ability to do their core job (‘overseeing investigations as well as meeting in committees of three to decide on referrals back to the court of appeal’). ‘But on one or two days a week how will they ever find the time or acquire the expertise and understanding the role demands?’ he asked. The Westminster Commission pointed out that the CCRC was ‘operating in a completely different way’ to that envisaged when it was set up in 1997: If Ministers consider that the statutory structure is not an effective mechanism, they should bring legislation before Parliament and make the case for changing the structure, rather than seeking to do this through departmental reviews or internal CCRC decisions.77 Both the CCRC and the MoJ have insisted that the watchdog’s independence had not been compromised.78 At the start of the chapter, I set out two issues that have threatened the CCRC’s ability to perform its role as an effective watchdog: long term underfunding and an 74 Robins, J., ‘It is important after 25 years the CCRC should be re-examined. If things can be improved, why not?’, The Justice Gap, 5 March 2021, https://www.thejusticegap. com/garnier-it-is-important-after-25-years-the-work-of-the-ccrc-should-be-re-examinedif-things-can-be-improved-why-not/, accessed October 2021. 75 ibid. 76 ibid. 77 The Westminster Commission on Miscarriages of Justice, In the Interests of Justice: An Inquiry into the Criminal Cases Review Commission (2021) 25, https://appgmiscarria gesofjustice.files.wordpress.com/2021/03/westminster-commission-on-miscarriagesof-justice-in-the-interests-of-justice.pdf, accessed October 2021. 78 A CCRC spokesman insisted that there was ‘a strong culture of independence’ in the organisation. ‘[There] has never been any interference from Government in CCRC casework, and the CCRC would not tolerate it if there were’, he added. A Ministry of Justice spokesperson. ‘The CCRC always has and continues to work independently and to suggest otherwise is completely untrue’ (Robins, 2020).

‘Regulated from a spirit of hostility’ 213 unmanageable caseload. It is striking the extent to which such an important part of our justice system has been so degraded over its 25 year life. But it is no surprise to the small constituency of concern around miscarriages of justice that have been highlighting the damaging impact of those issues for years. That undermining of the CCRC has taken place in plain sight. As I record above, the ‘crisis’ was recognised by the CCRC itself 14 years ago (see Robins, 2008), as well as by the Justice Committee 2015 and the APPG 2021. There are other factors at play which have undermined the CCRC which are beyond this chapter: most notably, its problematic relationship with the Court of Appeal. The consequences that flow from the erosion of the CCRC’s independence over the last five years are not widely appreciated. The reforms described above have irreversibly changed the justice watchdog despite its statutory protections and have taken place without public scrutiny and parliamentary oversight to the detriment of the wrongly convicted and to our justice system.

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Index

A Abdullahi 198 abolitionism 136 accountability 60, 63, 121, 119, 130, 132, 181, 190, 134 acquittal 135, 200 adversarial 28, 34, 67, 85, 86, 91, 93, 95, 147, 216, 220 Advocacy 84, 240 advocate 158, 164, 168, 172, 231 aggravating 118, 184 Ainsworth, P.B. 51, 214 Aitken, D. 184, 214 Albright, T. 136 algorithm 77, 177 allegation 20, 37, 128, 164, 241 allegations 128, 142, 148–66, 155, 158, 154, 198, 207, 230 appeals 56, 148, 156, 198, 204–27 arrest 9, 13, 20, 68, 70, 112, 114, 119, 130, 166, 170, 177, 222, 234 artificial 66, 77 Ashworth, A. 37, 214 Asian 27, 66, 70, 72, 74, 108, 121, 129–32, 134, 136, 184, 195, 229 Asperger’s 111, 118, 215, 218 austerity 4, 123, 142, 150, 153, 161, 171, 186, 203, 226, 230 autism 183, 100–02, 107, 110–113, 115–20, 227–30, 233, 234–41 autonomy 123, 190 B bail 23, 68, 78, 80–81 Bailey, S. 177 Baksi, C. 210 BAME 108, 120, 129, 131, 150 Baron-Cohen, S. 111 barrister 79, 96

Bennett, E. 30, 82 Benton, T. 31 Beresford, S. 180, 185 Bergold, A. 35 Berlins, M. 201 bias 45, 50–62, 58–60, 70, 81, 104, 121, 123, 124, 128, 170, 232, 235 Black Lives Matter 125 Blackstock, J. 24 Bowling, B. 108, 120 Bradford, B. 121 Bradley Report 84, 194 Braman, D. 27 Brooker, C. 84 Bucke, T. 8 Burd, K. 46 Burton, M. 69, 88, 90–91, 95 C Canada 30, 135 Cape, E. 7–8, 12 Carlson, K.A. 39–40, 44, 50 caution 43, 105 Criminal Cases Review Commission 197, 201–203, 205, 211 Chakrabarti, S. 111 Chamberlen, A. 187, 192, 194 charging 10, 21, 135, 141, 145, 148, 153, 156–157 Criminal Justice and Public Order Act 1994 8, 19, 103 Claypool, H.M. 55, 62 coalition 186, 199 Cohn, E. 45, 217 Colvin, M. 200, 208 Colwell, L. 36, 218 confessions 19, 25, 41, 55, 105, 127, 241, 246, 253 Cook, A. 41

Index 243 Cooley, C.M. 52 Cooper, P. 30, 102, 118 Covid-19 77, 156, 157 cross-examination 70, 85–86, 98 Custodial sentence 80, 97, 115, 117, 122 custody 10, 12–14, 66, 70, 78, 80, 84, 96, 102, 107, 111, 113–119, 126, 132, 181, 183, 193 D damages 27, 113 Dehaghani, R. 113,117 disclosure 8, 15, 18, 21–22, 119, 145, 149, 152, 158, 161, 172, 193, 208, 218 diversity 73–74 111–23, 125, 130–140, 208, 215, 218, 222 Doran, S. 126 drugs 27, 103, 142 Duff, A. 70 Dumas, R. 43, 53, 219 Dunham, R. 143, 230 Dunning, D. 31 E ECHR 93, 174, 192–194, 196 Ellison, L. 32, 50, 53, 59, 86, 90, 220 Ellsworth, P. 27, 45, 53, 2115 entrapment 165, 174–175 Equality and Human Rights Commission 194 F Fairclough 83, 96, 98 Feminism 90 feminist 124, 127, 142 Fischer, P. 39 Fischhoff, B. 41 Fletcher, S.M.G. 122 Floyd, George 135 Foley, L.A. 54, 60 Fong, G. 44 Forrester, A. 193 Frederick 201 G Gaigg, S. 112, 117 Gauke, D. 205–206 Gibbs, P. 10, 15–16, 18–19, 73–74, 76, 97, 112 Gilfoyle, E. 202, 205 Greenberg, J. 40–41 Greene, E. 42, 50 Gudjonsson, G. 115, 117 Guildford Four 198, 200

H harassment 37, 121, 123, 127, 150, 217 Hardcastle, M 6, 12, 214, 227 homosexuality 123, 136–138, 216 Horvath, M. 142, 160, 225 Hoyano, L. 93, 95 Hoyle, C. 204 J Jackson, J. 7–8, 17, 115, 141, 216 juries 26–30, 32, 36–38, 42, 46–49, 52, 54–58, 61–64, 70, 82, 205, 217, 220, 224 K Kaplan, M.F. 56, 57, 61, 63, 64, 217 Kemp, V. 10, 13, 15, 19, 118, 228 Kirby, A. 73–74, 84, 222 Koehler, J. 29–30, 44 L Lammy, D. 17, 68, 70, 74, 108, 195 Langbein, J. 63 Law Society Gazette 199 Leng, R. 22 lesbian 31, 121, 137–139, 227 Leverick, F. 32, 36, 45 LGBT+ 111, 122, 124, 136–40, 149, 220 M Macpherson Report 108, 122, 129, 131, 138 Maddocks 203 magistracy 65, 67, 72–74, 77 Marsh, L 7 McConville, M. 7, 200–201, 218 McKay, R. 80, 97 Metropolitan Police 131, 148 Miscarriage of justice 31, 197–198, 200–201, 203 Monaghan, N. 74 Morgan 181 Mouncher 19 N Naughton, M. 203–204 necessity 81, 106–109, 111, 113, 120 neurodisability 83 neurodivergence 100 neurodiversity 100 non-binary 147 NPCC 108, 171, 219 NSPCC 95

244 Index O OCAG 170, 173 Oliva, J. 30, 33 Olivetti, J. 39, 41 oppressive 115, 118, 122 Ormerod, D. 105 Owusu-Bempah, A. 16 P PACE 6–12, 12–15, 20, 56, 75, 102–106, 108, 118, 138, 169 paedophile 164–79 pandemic 6–7, 11–16, 18, 23, 66, 68, 79, 81–82, 96–97, 99, 157, 164, 170, 180, 189 Panorama 205, 206 parole 199, 206–7 patriarchal 111, 137, 140 Plotnikoff, J. 66, 95 pornography 128 post-austerity 142, 161 pre-charge engagement 3, 7, 9, 20, 23 pre-trial detention 8, 10, 14–15, 20, 24, 105, 108–109, 182, 194, 218, 221 Presumption of innocence 27, 80, 145, 214 proportionality 70, 83

rape 32, 45, 53, 59–60, 71, 95, 128, 139, 164, 167, 214–217, 220, 221, 224, 225, 227, 229–230 RASSO 145, 149, 153, 155–1575 re-offending 187–189, 196 Rubin 38 Rumney, P. 160 Runciman Commission 198, 200–201 S Sanders, A. 67, 70, 98, 105, 216 Scarman Report 130–131 self-defence 37 self-harming 192 sexuality 122, 136–137, 139 Sinclair 126 T torture 167, 180–194 V vigilante 164–68, 174–177, 179 vulnerability 65, 83–85, 97–105, 113–115, 138, 170, 220

Q Quinton, P. 105, 109 Quirk, H. 198, 201

W Wainwright, T. 193 Wakefield, C. 139 watchdog 197–199, 201–206, 210–214 wednesbury reasonableness 105 Woffinden, B. 204 Woolfson, R. 66, 95

R racism 63, 129–131, 135, 226

Z Zuckerman, A. 85, 91, 93