Sexual Risk Orders: Making Justice Ridiculous?

January 2016 has been a busy month for examples of idiocy in the justice system. Several times daily I find new examples on my timeline. The current shambles of a Government, it’s the gift that just keeps on giving.

As a result, I’ve accumulated enough potential blog topics to keep me occupied for the next few weeks, and to give me a headache as I feel compelled to turn the punk rock soundtrack up to 11 and bang my forehead repeatedly against the wall to try to forget that Lady Justice has now become a figure of fun in this country. A matter of ridicule.1340961-clipart-of-a-cartoon-blindfolded-lady-justice-cow-holding-a-sword-and-scales---royalty-free-vector-illustration-by-dennis-cox-at-wackystock

(You can see some more of Dennis Cox’s excellent cartoons via the link here.)

Sticking in a pin into the list of Preposterous Propositions to Ponder, the first choice is the story which emerged last week about sexual risk orders (see the link to an early report on the case here and then there’s Dan Bunting’s take at the UK Criminal Law Blog page here), in which magistrates in North Yorkshire apparently saw fit to issue an interim order under ss122A to 122K of the Sexual Offences Act 2003, as amended from 8.3.15, against a man in their area who hadn’t, it appears, been convicted of an offence. (It was reported that he’d been acquitted of a rape allegation at trial, though we obviously don’t know the full details of the case or the man’s background.)

Extrapolating what info is available from the various media reports, it appears that after the unnamed man’s acquittal, the police took umbrage and toddled off to the local magistrates’ court to suggest that the man had “done an act of a sexual nature as a result of which there is reasonable cause to believe that such an order is necessary”. Or at least, that’s what they must have suggested (hopefully with some sort of evidence, though we are talking about the magistrates’ court here), since that is what would be required for an SRO or interim SRO to be made (see Archbold 20-337). And the prohibitions which a sexual risk order permits must be “necessary for the purpose of protecting the public or any particular members of the public from harm from the Defendant”, or they shouldn’t be imposed.

One would also think that any such prohibitions would have to be capable of being enforced. Which would appear to be the major fly in the ointment with this case. Because what the bench granted – at least until the full hearing in May – was a term which told the unfortunate recipient that he must “disclose the details of any female, including her name, address and date of birth. You must do this at least 24 hours prior to any sexual activity taking place”.

Now, if worded exactly as quoted by the BBC, in any given case such a term would suggest that before, for example, masturbating, Mr X would need to ring the police and give them the details of “any female” (who? Sue Lawley? Theresa May? Some random woman he saw on a reality TV show? Can he choose anyone?). So even though we’re dealing with plod and magistrates here, we’d have to assume that the details an individual subject to a term like this is meant to disclose are those of some female with whom he believes there’s a reasonable prospect of actual legover taking place.

The astute among you, which is probably all of you, will immediately have spotted the problem. How can you predict you’re going to engage in sexual activity with Another Person at least 24 hours in advance of doing so? Do you diarise your love life? Do you call the local constabulary on the off-chance that you’re going to a club/gig/party and might find yourself engaged in a mild flirtation with a member of the opposite sex? If you’re about to get to first base, do you interrupt to say, “Hold on, love, I’ve just got to call Knacker of the Yard with an update. When’s your birthday?”

Bearing in mind that police resources and numbers have been decimated over the term of this Government and that the standard of investigation and case preparation for offences where people have actually been charged is now in many cases lamentably low, you’d think PC Knacker of the Yard might have better things to do. 3512_1_screenshot

Might actually be, well, you know, a bit busy doing Proper Police Work. But hey, no matter when some jobsworth at HQ or the Ministry who’s been on a College of Policing course thinks a Sexual Risk Order might be A Good Idea. FFS!

Bearing in mind this legislation is relatively new, we can all look forward to more examples of applications for ludicrously disproportionate, and frankly unworkable, orders. (I’ll be interested to see what happens at the application for the full order in May. Hopefully, by then someone in the court system will surely seen some sense and Lady Justice won’t appear quite so ridiculous.)

In the meantime, it’s back to banging my head against the wall and turning the music up louder. Today, some tunes by another Figure of Fun: Danzig. When I worked at Kerrang! Towers, we regularly mocked the man, mainly because he took himself incredibly seriously. And looked a little like, well, Boss Hog in a black suit. The Evil Elvis. The Satanic Fonzie.

But no matter how much a Figure of Fun he became, you can’t forget that Danzig made some of the most seminal US punk rock out there, with Misfits. Even his goth metal outfit Samhain weren’t too shabby.

Danzig cat 2

And he likes cats. Which is always A Good Thing.

Unfortunately, thereafter Mr D often descended into self-parody. (There are apparently plans to release an LP entitled Danzig Sings Elvis. Oh dear me…) But despite that, you know, I’m still kind of fond of him.

So I’m off to listen to a spot of Fonzig (which you can also do here) as I bang my head against that wall. It’ll help me remember that Lady Justice won’t always be a Figure of Fun in this country.

Hopefully.

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Forewarned is forearmed

I wondered exactly how long it would be before I felt compelled to rant about one of the user-unfriendly ways in which the criminal justice system operates. It’s not like there aren’t plenty to choose from.

Yup, 2016 has had a plethora of potential choices thus far, and it’s not even a month old: there’s the revelation that the number of A-G references for allegedly unduly lenient sentences has positively exploded in recent times (probably thanks to the rabid Daily Fail contingent); the continuing car crash of the litigation between the MOJ and practically all the criminal solicitors in England and Wales; and the unedifying spectacle of the CPS’s frankly laughable attempts to persuade itself that it could actually continue proceedings against someone who was, well, rather dead.

(Actually, that last I’d really rather like to have seen. mr dead

I imagine it a bit like an episode of the Harry Enfield sketch where Paul Whitehouse plays Mr Dead, the rotting corpse who goes fishing or finds himself attending family events, all while stiff in his coffin.)

But a chance remark from a former colleague I bumped into at court yesterday had me reaching for the smelling salts. Exchanging war stories about recent cases, he mentioned off hand that he’d recently been dealing with an attempted murder case, which had been listed for trial. Only trouble was, the trial had been listed in a warned list.

I posted a few tweets about this yesterday, and my timeline exploded with other lawyers detailing their own miserable experiences about being held hostage by the whims of court list officers nationwide.

The tyranny of the warned list is a phenomenon known and loathed by all criminal barristers. If you were trying to make up a useless operating system for some sort of TV comedy drama, you still wouldn’t be able to come up with the warned list.

In the Crown Court, lower end trials are routinely shoved into the warned list, a device designed to cause maximum inconvenience to just about every court user apart from court list officers. So, you’re facing a trial – either as a defendant or perhaps as a witness, even the alleged victim. It’s going to take over your mind for the months while you wait (possibly for over a year, if you’re unlucky enough to be due for trial at, say, Snaresbrook).

If you’re the defendant, you’ll be spending time meeting your legal team, and if you’re lucky that will include having a conference or two with the barrister who’s been instructed to conduct your trial. (Even though we actually don’t get paid any fee for attending a conference, but that’s Another Story.) If you’re the complainant or a witness, you’ll probably be stressing about going into the witness box and whether you’ll be able to remember the events after all this time and stand up to cross-examination… Hey, but at least you’ve got a firm date to work towards, right?

Er, not usually. It’s a warned list case, you see.

For the uninitiated, that means your trial doesn’t have a fixed start date. If you’ve been given a date, it will just be the first date on which the trial might be listed to start. If you’re lucky. If you’re on bail and/or your case is expected to last less than a week, your trial almost certainly won’t start on the date you’ve been given. Instead, it could start on any day of the week of your given date, and you won’t know which day until, say, about 4pm the previous day. Which doesn’t give you an awful lot of time to make plans if you have a job, or child care arrangements, or transport issues, or any of the other things that normal people (but not list officers, apparently) have to juggle in their everyday lives.

Or, worse still, you might book the week (or fortnight, or three weeks – there seems to be no rhyme or reason to why the warned list at one court should be a different length to the one at the court down the road) off work in order to make yourself available, only to find your case doesn’t get called on in the list at all, and has to be re-listed months down the line. Possibly still with no fixed start date. No wonder that the BBC were reporting yesterday that thousands of trials had to be abandoned last year because witnesses didn’t turn up (see the article here).

You have to wonder how many of those examples were because witnesses had been messed about so much by the listing system that they simply couldn’t be arsed.

But if complainants/witnesses/defendants do actually all manage to show up at the right place at the right time, what about the lawyers?

Well, we are obliged to turn up. Or at least, someone is obliged to turn up. Whether this will actually be the person who was initially briefed, has done the conference(s), prepared the case, possibly spending numerous hours on paperwork (all of which will be unpaid as it’s ‘included’ in the brief fee, which only becomes due when you start the trial), well, that’s a lottery. You see, contrary to the expectations of courts, judges, clients and solicitors, barristers can’t afford to keep themselves free for a particular warned list case by taking on no other trials for the whole duration of a warned list. We can’t afford to be out of court for what could be three weeks waiting on the off chance that your warned list trial may or may not be called on. Earning nothing from that case while we wait for it.

(Of course, knowing you’re unlikely to be conducting a particular trial due to there not being a cat in hell’s chance of it being called on when you’re available isn’t conducive to encouraging you to pull out all the stops in preparing the case either, if you won’t ever get paid for doing so. But that’s Another Story.)

If I don’t work, I don’t eat. It’s as simple as that. So if I get offered another trial which HAS come into its warned list, which may or may not clash with your warned list case, depending on the whims of different list officers at different courts, I’m going to take it. And so if you find that your trial is called on, on the second Wednesday of the warned list fortnight, and a barrister you’ve never clapped eyes on before turns up and says they’ve had to take over the case at 6pm last night because the original barrister is still engaged in another trial at another court, now you know why.

And thinking back to that attempted murder put into the warned list for my colleague at a certain court centre not far from London, you may think that there could not possibly be a more unsuitable case to left to the vagaries of the warned list system. Emotions will be running high, certainly for the alleged victim who – by virtue of the charge – possibly almost died and was almost certainly seriously injured. There’s potentially expert evidence. The stakes for the defendant are huge. The charge itself is not uncomplicated.

So when I think of that attempted murder case casually dumped into that nebulous how-long-is-a-piece-of-string space time continuum by a court probably intent on ticking a couple of boxes for the MOJ rather than considering what was right for all the parties involved, I start getting, well, a bit ranty.

Which means it’s time to summon up the Ranting Genie. henry_rollins_007

He looks how we all feel when one of our cases gets put into a warned list.

(If you want to hear Henry get properly ranty, there’s a link here.)