Five years after abolition of IPP – why are so many still serving this discredited sentence?

This article was recently published in the Criminal Bar Quarterly but as its on an important topic I hope you will agree it deserves to be more widely read than just amongst barristers


The announcement last week that James Ward was about to be released from prison was met with more than the usual delight by many who heard of it. Ward was sentenced in 2006 to imprisonment for public protection [IPP] with a minimum term of ten months. More than eleven years later his release was finally about to become reality.   This sounds like a story from Alexander Solzhenitsyn’s account of the Stalinist prison camps of the 1930s, The Gulag Archipelago. Instead all this happened in this country in the 21st century. And James Ward’s terrible experience of wasted life and despair at a sentence that seemed like it would never end is far from unique


Nothing better illustrates the profoundly authoritarian nature of criminal justice policy under Tony Blair’s Labour government than the new indefinite prison sentence contained in s.226 of the Criminal Justice Act 2003.   Many will recall the pre-1997 mantra that Labour planned to be “tough on crime and tough on the causes of crime” which sounded to many as if Labour was concerned to investigate what actually causes people to commit offences. However, once in government this catch phrase rapidly morphed into being “tough on those accused of crime.”


The 2003 Act [like many other provisions in the Act, IPP only came into force in April 2005] was the overseen by David Blunkett, a Home Secretary who seemed more interested in ensuring that his criminal justice policies met with the approval of the editors of the Daily Mail and Sun newspapers than whether they were likely to serve the interests of justice. Indeed Blunkett was such a fan of the newspaper that had vilified Liverpool fans in the wake of the Hillsborough disaster that he later had his own column in the paper!


Some years later during judicial review proceedings involving sentencing policy an affidavit was lodged which affirmed that at the time the 2003 Act was being drafted the government had been advised that IPP sentences would be “cost neutral!” How any halfwit can ever have come to that conclusion defies belief. It certainly shows a profound ignorance of how the prison system and particularly the part dealing with indefinitely detained prisoners actually works. The reality was that judges took to their new power with relish. And who can blame them? It was easy to see the potential benefits of such sentences in the case of serious and often repeat offenders. In theory it meant a short sharp shock for the inmate with many such sentences imposed for a year or less followed by an indefinite period on licence. This was profoundly useful from an administrative point of view. It meant that instead of having to charge an offender with a further offence followed by a lengthy court process the offender could simply be recalled to continue serving the original sentence.


The sentence of IPP was imposed with such regularity that there was soon a crisis brewing. Within the prison system IPP prisoners were treated like life sentenced prisoners except that the lifer regime wasn’t designed for prisoners serving sentences of a few months or even a few years.   And worse was to come. Offenders only got IPP sentences after a court had found them “dangerous” because the court had reached the opinion that there was a significant risk of serious harm to the public from the commission by them of further offences.   And those sentenced to indefinite detention can only be released once the Parole Board is satisfied that the risk they present to the public is no more than minimal. That is a tough ask for any prisoner but it simply could not begin to be addressed by those with minimum terms as low as two or three years.


The currency the Parole Board works in are offender behavioural programmes with course work designed to challenge the behaviour that leads to offending and which aim to equip a prisoner with the tools to be able to avoid re-offending in future. Such courses are in high demand and short supply. They are usually only available in a few prisons. As a result a prisoner, even once assessed as suitable for the course, needs to obtain a transfer to an appropriate prison and then get on and successfully complete the course.   After that the prisoner will endure a further wait often of a number of months to have a psychological assessment to monitor progress. In most cases further course work would be required. All this normally takes years.  That is fine for ordinary lifers, those with minimum terms of fifteen years or more, for whom the time scale is more than sufficient to enable them to complete any required course work well before the end of their minimum term. But in the case of those sentenced to short minimum terms this was disastrous.


A Kafkaesque, Catch 22 nightmare rapidly developed. A prisoner couldn’t get released until the Parole Board said it was safe to do so and he could only prove his risk was reduced by completing the required course work. But the course work wasn’t available to someone serving such a short minimum term, at least not until long after their minimum term had expired. And there is a further difficulty. Many of those who commit offences have cognitive behavioural problems or learning difficulties which make it impossible for them to complete the required course work. That in turn means such prisoners can never satisfy the Parole Board’s test for release.


As a result IPP prisoners were left in limbo. Sentenced as if lifers but unable to access the sort of courses that such prisoners would normally be expected to complete.   When the crisis started to gain public attention, in true fashion Blunkett blamed the judges, claiming that he had never intended them to use the sentence as often as they had.   But even then the Labour party took no steps to end this injustice. It wasn’t until 2012 that the coalition government final put an end to what must be the most disgraceful criminal sanction since the abolition of the death penalty.


Abolition of IPP sentences was of course very good news for the future but the abolition of the sentence was not made retrospective.  Between 2005 and 2012 more than 8,700 prisoners had been sentenced to IPP. The majority of those had received minimum terms of four years or less and the majority of those had served well beyond their tariffs before they were released. This much is clear from the fact that in 2012 when the sentence was formally abolish significantly more than half of all those sentenced to IPP remained in custody. Even today more than 3,000 prisoners remain in prison serving a sentence that was abolished almost five years ago.


The obvious solution, so you might have thought, is to change the test for release so that prisoners still serving these sentences will be released unless the state is able to establish that it is not safe to do so. It seems extraordinary that years after this problem was first recognised and five years after the sentences were abolished this step has still not been taken. Nick Hardwick, the Chairman of the Parole Board only since last year is apparently very concerned. He has suggested the test should be changed along the lines I have suggested for all those with a minimum term of two years or less.   Whilst that would be better than nothing surely we are long past the time when the MoJ should accept that all those sentenced to IPP should be released unless there are very strong and cogent reasons why not.




Defending legal aid is like defending the NHS. Read this fabulous book and fight “flexible” hours

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I know many people use this phrase but really if there is one book you read this year make it Dr Rachel Clarke’s “Your Life in My Hands.” Almost everyone in this country is glad we have the NHS. For almost all of us the idea of getting the best health care we can without the need to show your credit card or latest bank statement is something we cherish. People only need to look at the United States for a sight of the terror faced by those who might lose their “Obamacare” entitlements if the fraudulent idiot currently in the White House can stop arguing with everyone for long enough to get his act together.


We are lucky beyond compare to have the likes of Dr Clarke looking after us when we are at our most vulnerable. Apart from evidently being a fantastic doctor she is also a former journalist and her skills in that department show through in every paragraph. She writes with tender care and compassion about an institution to which she is passionately committed and to which she remains dedicated despite the toll taken on her by her years as a front line hospital doctor as well as dealing with all the spite, spin, mistruths and downright lies told about her and her colleagues by the Hunt in charge of the Department of Health and his Departmental Office for Alternative Facts in the run up to and during the junior doctors’ strike last year.


I am sure there have been lots of admiring reviews of this book and very well deserved they are. I am delighted to see that the book is currently at No. 3 in the best-seller charts and very much hope it makes the top spot very soon.   I read it in three days with a mixture of awe and humility that such brilliant people continue to work in the seriously under-funded NHS. I also read it with a growing sense of anger that the health service is being deliberately and very consciously run down under the current Tory government so that it reaches a stage where the government can hold it hands up, declare the NHS officially bankrupt and invite offers from health care companies the boards of which are stuffed with the friends and fellow travellers of this present government.   They can’t wait to sell the NHS off and anyone who loves the NHS and still believes the fake claims that the Health Service is safe in Tory hands is deluding themselves.


But the reason I am writing this piece is that this book is an absolute “must read” for lawyers who do legal aid work. I have often described legal aid work as providing for people’s legal needs what the NHS provides for our bodily needs. Both are important public services provided by dedicated practitioners.  As I read Dr Clarke’s book I realised at various stages as the author was detailing the destruction of her beloved NHS that if I simply removed the medical references and inserted legal ones Dr Clarke could just as well have been writing about legal aid provision as health care.   The uneasy truce that has prevailed since Michael Gove, during his short spell in the hot seat at the Ministry of Justice decided in the autumn of 2015 not to proceed with the existential threat then posed to criminal legal aid lawyers by the prospect of so-called dual contracts, is about to come to an end.


Earlier this year without a word of consultation the HMCTS, an executive agency of the MoJ, announced its plans to pilot what they euphemistically call “flexible operating hours”. The word “flexible” should always set alarm bells ringing. Whilst this may in some circumstances be a progressive way to arrange working hours for say a working mother with small children it is also a word much favoured of the management of rubbish employers like Sports Direct. It sounds nice at first. “You can work hours that suit you, that make your childcare arrangements so much easier to sort out”. But the reality is that flexible working is often used as a way of benefitting the bosses and in the case of legal aid lawyers that means the MoJ.  In any event working in courts with their arcane listing systems is not remotely like working in a factory. The pilot scheme involves Magistrates Court sitting from 8am until 8.30 pm and Crown Courts in two sessions, one starting from 9.30 am and the other running until 6pm.  Civil courts seem likely to operate between 8am and 7pm.


Unusually therefore this is a battle that will involve not just the criminal side of the professions but our civil colleagues as well.   As you will probably know six courts have been identified to run the pilot scheme, two Crown Courts, Newcastle and Blackfriars, two Magistrates Court, Sheffield and Highbury Corner and it’s a warm welcome to the fray to our civil colleagues who work at Brentford County Court and the Manchester Civil Justice Centre just around the corner from my Chambers.


There has been a veritable deluge of official warnings from amongst others the Bar Council, the Criminal Bar Association, the Criminal Law Solicitors Association, the Law Society and the London Criminal Courts Solicitors Association that this scheme is unnecessary and unworkable. They have warned that the scheme will inevitably lead to lawyers working even longer hours than they currently do and will have a devastating impact on the family life of lawyers. Perhaps most importantly of all HMCTS has been told in no uncertain terms that the scheme will involve serious discrimination against women upon whom, regrettably the burden of arranging childcare still falls most heavily and therefore will have serious consequences for the retention of women lawyers who are being haemorrhaged from the profession by already unsocial hours and poor pay. Despite all this HM Courts Service remains determined to roll out a pilot scheme this autumn.


A couple of weeks ago Lord Justice Fulford, who probably won’t thank me for reminding readers was once a member of what were then called “radical chambers” was pushed out into no mans land by his minders at the MoJ with a plea to the lawyers who have been rattling their sabres. His letter really amounted to saying ”look we all know this stupid scheme won’t work but I’ve been asked to ask you to please be nice to me and give this scheme a go and when it collapses as I am sure it will we can all go home. Thank you.”   The degree of condemnation of the scheme by our professional bodies at this early stage is unique. It reflects I believe a real feeling within both sides of the profession that we have had enough of idiotic scheme emanating from the MoJ which variously threaten to wipe out large sections of the profession or would if implemented make our lives at work not worth continuing with.  This is where the parallel with what has been happening in the Health Service is so obvious.


Of course there are some people who say, “Well in my job we now have to work all the hours there are, what makes lawyers so special that you shouldn’t have to do the same?” The answer is that there is nothing “special” about lawyers but why do we have to compete in this race to the bottom? Just because other less well-organised groups of workers have been exploited even beyond that which they previously experienced why should we allow that to happen to us? Maybe if one group of workers stand up to this nonsense and win others in the future will be emboldened to say “You weren’t able to do this to the legal aid lawyers so why the hell should we let you do it to us?”   It’s called solidarity. You should try it sometime, it often works wonders.


This attempt to open some courts from as early as 8am until 8.30pm is the legal aid lawyers equivalent of the attempt by Jeremy Hunt at the Health Department to force 7 days a week working onto the junior doctors. That is why Dr Clarke’s book is so instructive to lawyers. I know there are also those who think we can just stand by and watch this pilot collapse under the weight of its own contradictions.   After all in order for this pilot to work it requires a series of things to happen that every lawyers knows usually do not happen even under current conditions. Prisoners will need to be brought to courts hours earlier than at present. Currently it is not remotely unusual for even high profile trials to be held up due to the inability of the firms who are contracted to deliver prisoners to courts to get them there on time. If they can’t get prisoners to court before 11am what chance is there of doing so by 7am?  And how are prisons which currently usually don’t accept new prisoners after 5pm going to react to be being told they have to be ready to accept prisoners arriving after 10pm in some instances.


Again, as any criminal practitioner can confirm, currently on any given day of the week most Crown Court centres have courts standing empty. This is not for the want of cases to deal with but because the MoJ doesn’t want to pay for the extra judges who would be needed to deal with the cases. As you can imagine judges are quite important to the running of courts. How then does the Courts Service plan to cover two separate sessions one in the mornings and the other in the afternoons and early evenings? The MoJ has made clear the judges won’t be expected to work extra hours and frankly I’d like to see them try to make most of the judges I know start cases at 8am and still expect them to be sitting in court at 8.30pm.


Is the MoJ planning a massive recruitment drive to obtain the extra judges and how will that be financed in the current climate of relentless cuts? Then there are the police who need to prepare the files, the CPS who need to review those files, make charging decisions, decide on disclosure of material to the defence as well as being in court. Again unless CPS lawyers are going to be expected to work double shifts there would seem to be a problem. Then there is the probation service whose staff have to be available at courts to assist judges with sentencing decisions by providing written reports dealing with sentencing options. And I haven’t even included witnesses and defendants or jurors in this already lengthy assessment.


For the benefit of any non-lawyers who have got this far let me explain that lawyers who work in courts that generally start at say 10 am and finish around 4.30 pm do not just work that 6.5 hour period. Before court starts for the day there are clients to be seen, either already at court or in the cells, discussions to be had with opponents and further papers to be read. This all means that the lawyers will routinely need to be at court up to an hour before the court itself begins. After court finishes there are again clients to be seen and discussions to be had. Then there is the preparation of cases. Hundreds, sometimes thousands of pages of witness statements, documentary exhibits, interviews with suspects or witnesses all have to be read, considered and cross-examination prepared. Legal arguments and other formal applications also have to be prepared and these days judges require these in writing in advance.


At any one time barristers and solicitors will have clients in other cases who are on bail or in custody and who have to be seen in conference to enable the lawyers to prepare their cases. If the lawyer is in the Crown Court until the currently proposed 6.00pm what provisions are going to be made for that lawyer then to have a conference at a prison which may be 30 or more miles away?   A conference starting at say 7.30pm and lasting 1.5 hours means that lawyer may not get home until 10.30pm.   And then they may have an early start the following day. This is ridiculous. And before you say it let me say that just because junior doctors are expected to work such hours is no reason why lawyers should allow such working conditions to be foisted upon us, especially when it has been done without any consultation. Hospital admission may often be a matter of urgent necessity.   That does not arise with legal cases of any sort that cannot already be catered for within the current working hours.


All the lawyer’s work has to be fitted around time spent in court. This means that every lawyer I know already works every evening often until late, some get up early to work before the kids get up and much though we long for the weekend this is always tinged with regret that by lunchtime on Sunday if not sooner we will have to return to the study to prepare for the next day’s cases.   So perhaps now the reader can see why the idea that lawyers may now be expected to be at court until 8.30pm, then have to see their clients and write up reports of the day’s proceedings before heading home for something to eat [no chance of seeing the kids that evening] before starting work all over again for the next day is not very attractive.  Oh, and did I tell you about the pay on offer for this scheme involving extra hours and unsocial hours at that? No?  Well that’s because there isn’t any.   The lawyers who do this important public work will be expected to work within this scheme for no extra money. The MoJ must think we are mugs.   Not only have there been no increases in fees paid to lawyers under legal aid for twenty years both solicitors and barristers have had to put up with a relentless cycle of cuts by both New Labour and Conservative governments.   And now this.


But although there are many reasons this rotten scheme will not work we need to be careful not to be complacent.   I accept this scheme may turn out to be the damp squib we all expect. But rather than standing by and waiting for it to collapse under the weight of all these contradictions it would in my view be far better if the lawyers affected refused to co-operate with the scheme. After all it’s not just judges who are important to running the courts. The one thing that can guarantee the collapse of this pilot is the lack of any lawyers to assist it.   I have previously written about an instructive meeting I attended in April at Sheffield Magistrates’ Court at which the HMCTS staff vainly attempted to explain the scheme. One thing they made clear was that without the co-operation of the “defence community” as they put it, the pilot would not go ahead. That may have been a bit naïve of them since it elicited an entirely predicable reaction.  The entire court full with up to fifty lawyers announced to a man and a woman that they would not be co-operating. I am please to report that attitude remains the same today.   Meanwhile HMCTS seemingly intend on ploughing on with the pilot scheme regardless although they haven’t yet said how they propose to run the pilot without the lawyers. It will be interesting to see how that works out.


Meanwhile I hope lawyers at the other courts involved will take a leaf our of the junior doctor’s book, especially Dr Clarke’s and with their confidence boosted by the defiant attitude of the Sheffield lawyers will, in whatever way they can ensure there is the maximum non co-operation with this pilot.  That way we can make sure this rotten discriminatory scheme never sees the light of day.

Why Lawyers Should Reject HMCTS Early Start/Late Finish Court Scheme


If you’re a criminal legal aid lawyer these days the chances are you are pretty fed up with your lot.    We’ve had consultations about new methods of working that threaten the very existence of many firms and Chambers, that cost solicitors firms thousands of pounds before being abandoned, we’ve had cuts to our pay over many years, and every day we face a court system that struggles to keep going due to the chronic lack of funding.


So it was no surprise that the announcement by HM Courts and Tribunals service [HMCTS] that they wanted to pilot the idea of courts starting much earlier and finishing much later than at present was met by immediate and universal condemnation by the Chairman of the Bar, the CBA, the CLSA and the LCCSA.


A variety of criminal and civil courts have been chosen as potential pilot courts. In the Magistrates’ Courts the plan is that courts should begin sittings from as early as 8.00am and not finish until 8.30pm.  Along with Highbury Corner Magistrates’ Court in London, Sheffield Magistrates’ Court was selected by the Courts Service to participate in a pilot scheme.


Along with about thirty others I attended a lunchtime meeting today of South Yorkshire criminal lawyers and civil servants from HM Courts Service. We were told that it was the desire of the Lord Chancellor and the LCJ that this pilot should be run.   I will leave the LCJ to one side for now but that would be the same Lord Chancellor who has previously demonstrated her ignorance of what her job entails when she failed to defend the judges in the Brexit case at the end of last year and then announced the roll out of cross-examination in advance in sex cases when no such roll out had been agreed.    If this latest scheme really was her idea she should be ashamed of herself.


We were told at the start of the meeting that the civil servants wanted to hear our views on the practicalities of this proposed scheme and that the scheme was definitely “not a done deal”. I know many of you cynics will immediately equate that phrase with the phrase “oh yes it is” especially when uttered by an MoJ employee.


Although we had been invited to consider “the opportunities” as well as “the challenges” of early and late court sittings, during the presentation the officials from HMCTS did not put forward a single suggested benefit to anyone from such a scheme.   The reasons for that are also obvious.  There aren’t any.   Having asked for our views, over the course of the next 55 minutes or so the civil servants were bombarded with all the many good reasons this scheme not only won’t work but should never have been thought up in the first place.


Top amongst the obvious objections from the assembled lawyers was childcare and the extent to which this scheme would discriminate against women who still bear the major responsibility for childcare. Nurseries and creches don’t open early enough or stay open late enough to allow parents to leave their children with others from 6am and collect them again at 10pm even if such nonsense was remotely desirable. One female solicitor pointed out that her firm would be guilty of discrimination if they required her to undertake work under this scheme and that if she took them to the tribunal where she would likely win her case the firm would not get their LAA contract renewed if there was a discrimination finding against the firm. That alone should be quite enough to ensure this pilot never sees the light of day.


Then there was the issue about where lawyers would find the time to prepare for the next day’s cases if they were in court until 8.30 in the evening, how to deal with overnight remands likely to be listed at 8am if a lawyer also has a trial that doesn’t get on until 5 in the afternoon – an entirely plausible scenario, the unlikely co-operation of client’s on bail, the lack of any new remuneration for lawyers working unsocial hours, and the danger to lawyers working in city centres late at night and having to walk back to cars in almost empty car parks.


One interesting point that was conceded by the officials was that this scheme turns out to be a natural consequence of previous court closures. In South Yorkshire for example Rotherham Magistrates’ Courts has closed recently and all the work and the clients affected is now heard in Sheffield. So having closed various local courts the MoJ is now wondering how to cram as much work as possible into a single court centre with little or no care for the consequences to those directly affected by such changes.


Well the MoJ came and whether they were listening to what we said or not the message was resoundingly clear. This is a rotten scheme, that won’t work and it won’t work in particular because the defence community want nothing to do with it and do not intend to co-operate with it.   Since we were told that if the defence lawyers were not prepared to co-operate there would be no pilot scheme that would seem to be the death knell for this idea.   I hope our colleagues at Highbury Corner send the same message to the MoJ. It is however not just Magistrates Courts that are affected by the proposed pilot. Newcastle Crown Court has been ear-marked for a pilot in the Crown Court. In Manchester the Civil Justice Centre is due to be involved. So this is not just an issue affecting Magistrates’ Court lawyers. This will adversely affect most criminal and many civil lawyers.


If you get a chance to respond to this scheme please do so. If you are in an area where the pilots are proposed please attend any meeting on this issue and make sure the MoJ gets the message. This scheme is rotten, it is discriminatory, it will have massively adverse effects on the family lives of the lawyers and court staff and it should be binned.

“Extra, Extra, Read All About It” – or maybe not.

I know there are some fantastic court reporters around. I’ve met a number of them over the years. It’s a pleasure to read their articles.   Unfortunately however trial advocates in the Crown Court will be wearily familiar with the type of lazy press reporting that frequently passes for journalism these days.   This involves a couple of usually local journalists sitting in court during the prosecution opening of the case to the jury and faithfully recording all the salient and salacious details after which they are usually not seen again until the end of the case when they report the verdicts and any sentences. Invariably not a word of the actual evidence in the case gets reported at all. It’s as if nothing much matters apart from what the prosecution’s allegations are. The reader is then just left to try to work out the basis of any verdicts for themselves.


I witnessed a particular egregious example of this practice in a trial last year. After eight days the trial of seven men had to be halted and the jury discharged after it was discovered that a national newspaper had run a story based on the original copy of a local new agency reporter which included passages from the opening note of the prosecutor’s address that had not in the end been included in what the prosecutor actually told the jury. It turned out that the reporter, who along with others had been supplied in advance with erroneous copies of the prosecution opening which had not been properly edited, had written up her story and filed her copy with her agency long before the prosecutor finished what he had to say. If the reporter had bothered to stay and actually listen to what was said she would have been able to report this accurately. As it was her story contained material that the jury never heard and which was very prejudicial to at least one defendant.


I came across yet another example only today. It was a report of a case that I have just finished. The report, which claimed that it had been “updated”, was based almost entirely on the contents of the prosecution’s opening delivered a few days earlier.  Almost the only “updating” I could find was of the verdict and sentence.   It would have been almost impossible from reading this report to have worked out how on earth a man already convicted of a section 18 wounding with intent to cause really serious harm in respect of the same incident had now not been convicted of murder but only of manslaughter.


A large fracas took place early one morning in the course of which a single stab would to the chest left one man seriously injured. After he collapsed his heart stopped and during the time it took to get it going again he had suffered a catastrophic brain injury. The defendant was prosecuted for attempted murder and the s.18 offence. He was acquitted of the attempted murder charge, always very hard to prove since it requires proof of an actual intent to kill but was convicted of the s.18 offence.   A few months after the trial the victim died.


At the first trial the defence was a complete denial of involvement and by implication at least the finger of suspicion was pointed at another individual. The Crown case was that the defendant had made admissions to the killing to a number of people, had tried to arrange false alibis with others, arranged for a female witness who had been heavily involved in the fracas to dye her hair another colour and arranged to have CCTV footage at his premises deleted.   No great surprise then when the jury rejected the defence and convicted of the s.18 offence.


Once the defendant faced a murder charge he realised that he could not continue to maintain his stance of lack of involvement. He therefore admitted that he had indeed been the stabber, admitted that he had made some admissions, admitted he had lied to the first jury and sought to explain that he had acted as he did because he was in denial and could not face his responsibility for the death of the victim. Following the victim’s death he felt he had to own up and come clean.  He explained all this to the jury in the second trial.


After more than a day of deliberation in a trial that had taken only two days before the jury retired, the jury evidently accepted the reasons for the defendant’s lies and accepted also that when he flashed the knife he had only intended that to be warning to others and had not intended to cause the serious injury that was in fact caused. No doubt the fact there was only a single stab would was highly relevant to the jury’s consideration.


A fair assessment might also have concluded that the quality of some of the evidence from the prosecution witnesses was less than impressive. One had initially refused to come into court, another tried to leave part way through his evidence and two others who were called turned out not to be able to help very much with any of the facts of the incident.


Had anyone bothered to report any of the actual evidence as opposed to what is always going to be an almost entirely one-sided version of events that a prosecution opening invariably is, it is just possible that the readers of the newspaper in question might have understood how it was that the jury had been able to reach the verdicts they did.


Ignorance of what happens in our criminal courts seems to be fairly widespread. When the public is left to figure it out from poor quality reporting it is no wonder they do it understand what happens in court. Whatever the parlous state of newspapers finances may be if they can’t be bothered to report criminal cases properly it would be better if they stuck to reporting about garden parties and the village fete and didn’t report on court proceedings at all.

“Guilty Until Proved Innocent”

In October of this year I was invited to address the annual conference of the Criminal Law Solicitors Association (CLSA) in Birmingham.  Below is an extract from my speech with my thoughts and observations of life at the coal-face of the criminal justice system.

Guilty until Proved Innocent

When I was first asked to speak to the annual conference of the CLSA and was told that this was the title it struck me that this represents a collective sigh of despair on the part of those who defend people accused of crime and who find so regularly that the odds seem unfairly stacked against our clients.

The Magistrates’ Court

I remain in awe of those of you who do criminal work in the Magistrates’ Court which remains in my view “the bear-pit of British Justice”.  My earliest experience in the late 1970s was gained in the Magistrates’ Court as that is where young barristers in London learned their trade.

My eternal dread was of an early finish in my morning case only to be told by my clerks when I rang in that there was a 2pm fight at Tower Bridge MC – no papers, the client will meet you at court at 1.30pm.  If you were lucky the Sergeant prosecuting would give you a brief outline of the case against your client – there was no such thing as witness statements – and taking instructions on the allegations consisted of doing so over the rail of the dock with the increasingly impatient bench looking on.

The recent case of Hottak v DPP suggests that not much had really changed in the last 40 years.

So I thought I would review a few of the things that have happened that seem to me to have brought us to the present state. This is not an exhaustive review and I am sure to miss things out that you could add to the charge sheet but for now these will do.

Starting Out

The 1970s were certainly an interesting time to embark on a legal career especially one where I knew from the start I wanted to be on the side of the under-dog. I had barely started at law school before the IRA bombings in Guildford in October 1974 killing five people and leaving sixty-five others inured many of them seriously. This was then followed some six weeks later with the Birmingham pub bombings leaving a further twenty-one dead and one hundred and eighty-two injured.

We are all shaped by the times in which we develop and what is happening around us. For a young lawyer starting out those cases and the conduct of the police involved in them were significant features.

Incompetent Coppers 

Two of the worst crimes ever committed in this country were then turned from tragedy into outrages by the conduct of the police. In all, 26 dead and nearly 250 injured and entitled to justice. And what happened?

Ten innocent people arrested, six in Birmingham, four in Guildford, beaten up, tortured, denied access to solicitors who could have protected their interests, making false, worthless confessions and between them spending around 162 years in prison for offences there were entirely innocent off.

Meanwhile those who had actually committed these atrocities remained free and unpunished. What sort of justice was that to those ten innocent people and how exactly did that provide justice to the families of all those killed and injured?

Biased Judges

And just to prove that gross incompetence was not the sole preserve of the police the British judiciary hardly did themselves proud. At the trial of the Guildford 4 the trial judge then Donaldson J, later to be elevated to Master of the Rolls, bemoaned the fact these four entirely innocent defendants had not been charged with treason which even then still carried the death penalty.

Lord Denning’s “appalling vista”

And many of you will recall that when the Birmingham 6 commenced civil proceedings for the injuries they had received at the hands of the police, Lord Denning considered the prospects that the men might be right, and speaking without the slightest sense of irony he pondered:

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.”

And just to add the final insult to injury Denning concluded his judgment by declaring that this case showed what a civilised country we are because the men had been given legal aid to pursue their claims.

Meanwhile the conviction, also in 1974 of a troubled young woman named Judith Ward, who seems to have been a fantasist with a penchant for claiming to be a member of an IRA active service unit, for killing twelve people on a coach on the M62 in February 1974 rather slipped under the radar at the time. It was not until her successful appeal, 18 years later in June 1992 that the extent of the failure on the part of the prosecution to make proper disclosure of unused material was revealed.

I start with those cases not just because they did to some extent frame the milieu in which I was schooled as young lawyer but also because they led to some significant developments in English law.

Change is needed

Shock and outrage at the treatment of the Birmingham 6 and Guildford 4 together with the wider behaviour of the infamous West Midlands Police Serious Crime Squad was undoubtedly instrumental in forcing government to accept that a radical overhaul of the way the police treated suspects in custody was long overdue. The case of Judith Ward was one of a number of such cases that put pressure on government to change the law on disclosure about which more later.

One good deed – PACE 1984

The Police & Criminal Evidence Act [PACE] 1984 came as a terrible shock to many police officers.   It came into force in 1986 and it took several years and a number of seminal decisions in the Court of Appeal before the police finally got the message. Access to a solicitor meant exactly that. It meant an end to the practice known as “verballing” at least in formal taped interviews. And there can be no doubt that PACE revolutionised practice in police stations.

Goodbye pocketbook verbals

I started my career just before the end of notebook interviews. Some of you may also remember them. In those cases a police officer would claim that his note, covering a whole two pages of a small pocket notebook and which had taken him all of five minutes to read out, accurately represented every word that had been said in the course of an interview that had apparently taken two hours.

And goodbye contemporaneous notes

Before PACE was enacted there was a change in the practice of recording interviews with suspects and the old pocket books were replaced by what were called “contemporaneous notes”. Like the old pocket book entries these purported to record every word spoken in the course of the interview. Invariably the notes were beautifully written giving every indication that the author had had plenty of time to write them down.

Invariably the interview consisted of about ten pages. The police version was always the same. After a long period of stout resistance to police interrogation during which the Defendant had stoically denied the offence suddenly on about page 8 he had been overcome with his wickedness, had broken down and confessed all. His confession was expressed in one of the various terms available in the Hendon Police College Book of Verbals containing such gems as “It’s a fair cop guv” or “I can’t tell I lie, it was me what done it.”

The defence too was always the same. I remember many cases in which the suggestion was put along the following lines: “Officer I suggest that at the end of the interview you showed my client the notes for him to sign. But when you did so only the first page was visible. Of the other pages, only the foot of the page where he was to sign was visible to him. Page 8 was blank at the time he signed it. After he had signed you filled in the relevant page and made up the alleged confession.”

Juries became more and more cynical about the evidence of police officers and I remember prosecutors in London where I worked at the time who would despair of getting a conviction if the only evidence came from police officers claiming they had obtained a confesison.

So PACE changed a huge amount and very much for the better.

What have the Romans ever done for us?

But that was 1984, now 32 years ago and at the risk of provoking a response rather like that in the film “The Life of Brain” when Reg ask the question “what have the Romans ever done for us?” it is very hard to think of a single provision in an Act of Parliament much less an entire Act which was designed to help the plight of those who face the full might of the state when they are arrested and charged with a crime.

A litany of attempts to bump up conviction rates

In the meantime we have had measure after measure clearly designed to make life more difficult for those accused of crime – in short designed to bump up the conviction rates. Whilst that might be a laudable aim, it is a sad fact evidently lost on government ministers that you can’t increase conviction rates just of the guilty, it means sacrificing the innocent as well and bit by bit the old adage that it is better that a hundred guilty men go free than that one innocent man should be condemned gets turned on its head.

And so we have had


  • the end of the requirement for a warning about the dangers of convicting in the absence of evidence to corroborate a complaint of a sexual offence, Criminal Justice & Public Order Act [CJ&POA] 1994, s.32. This may not have been greatly mourned at the time but at that time there were few if any prosecutions for sexual offences going back decades. Now we are in the grip of a moral panic about the extent of sexual offending with no limit on the age of allegations being prosecuted the decision to abolish the requirement for at least a warning about the lack of any corroboration for the evidence of the complainant looks more short-sighted than ever.

Adverse inferences

  • adverse inferences from exercising what is still called the “right to silence”, CJ&POA 1994, S.34 [interviews] and s.35 [evidence]. I don’t want to overegg this because I am personally in some doubt as to whether juries take much notice of invitations to draw adverse inferences although I suspect the impact in the Magistrates’ Court is almost certainly greater. On the other hand I am sure there are cases in which the jury will have been influenced by the fact that the defendant was silent in interview or didn’t give evidence and will have held their silence against them and that should worry us all.

The right to silence

The right of silence, the right not to incriminate yourself remains in my view, a key pillar of any society that purports to have fair trials and to follow the rule of law. If the prosecution cannot prove a case against someone without getting a confession then my view is the prosecution should not go ahead. I don’t believe that way leads to the end of civilisation. The Americans thought the right not to incriminate yourself was so important it is enshrined in their Constitution, drafted in the 1780s, and I do not think there is any evidence their criminal justice system functions any less well on that account. All this courtesy of one Michael Howard, universally regarded, for a time at least, as one of the worst Home Secretaries of modern times.

Defence statements

  • Defence statements also attracting adverse inferences, Criminal Procedure & Investigations Act [CPIA] 1996, whether you don’t give one or more likely, give one which doesn’t contain some details later relied on by the defendant in court.


Those of you who were in practice when this provision came into force will no doubt recall the visceral objection this provoked amongst the defence community.   It seemed then and to me still does to fly in the face of an adversarial system. Although of course therein lies another issue. There are those, particularly amongst the higher judiciary, who think we ought to move more towards an inquisitorial system in which there is greater openness between the parties. There are obviously senior judges who think you can run criminal cases on pretty much the same lines as a High Court civil action, forgetting of course that one party to criminal cases has no interest in helping things to run smoothly, exemplified most obviously in the Criminal Procedure Rules.

The reality in criminal trials is that it is very rare for the Crown to be taken by surprise by the defence that is run at trial. For all the judicial fulminations there is still no actual duty to serve a defence statement if your client declines to do so and frankly more often than not all that serving a Defence Statement achieves is to provide the Crown with a document on which to cross-examine your client, especially where the Defence Statement varies from what if anything was said in interview.

The Defence Statement and the requirement to serve one was sold to us as a sort of quid pro quo for greater disclosure, the idea being that if the defence set out their case the disclosure of relevant material will follow.

Disclosing unused material – or not

Disclosure remains a serious problem. At the time the CPIA became law the argument was that there had been serious miscarriages of justice because of a failure on the part of the prosecution to disclose material that might help the defence. Many of us thought the whole point of the CPIA was to try to deal with this problem.

But what the CPIA did was to replace a system in which it was the police who decided what should be disclosed to the defence with a system in which it was for the police to decide what should be disclosed to the defence. In other words no real change at all.

For all that we get lengthy schedules of disclosure there remain too many cases in which information is not disclosed that the prosecution should know full well ought to be disclosed because it easily meets any test for disclosure. Leaving disclosure in the hand of one party to the proceedings is obviously not the right solution. There were concerns raised by the police at the time about “handing the keys to the warehouse” to the defence but frankly it is the defence and only the defence who are in a position to know what material the prosecution has which might assist the defence case. Until that concern is addressed the problems will persist

Restrictions on proper cross-examination 

  • s.41 Youth Justice & Criminal Evidence Act 1998 limitations on legitimate questioning in sex cases.

You don’t have to be a fan of Donald Trump’s approach to sexual behaviour to realise what problems this was likely to throw up. In fact as you will no doubt recall from R v. A (No.2) s. 41 was initially interpreted so strictly that it prevented a man who claimed he had been in a relationship with a woman for some time from referring to the occasions when they had undoubtedly had consensual sex in order to explain his belief that she was consenting at the time of the alleged offence. The House of Lords declared the section incompatible with the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights and said the section would have to be “read down” in order to avoid gross unfairness. That section of course has caused plenty of controversy as the recent re-trial of Ched Evans shows.

I am not for one second suggesting we should return to the days when apparently some defence advocates thought a good way of winning the case was to humiliate the woman complainant with questions about what underwear she was wearing at the time. Equally however we cannot allow what has to be a careful compromise between the rights of both parties to become so one-sided that properly admissible evidence is excluded on the specious grounds that this only adds to the suffering of the complainant and merely compounds the suffering caused by the alleged offence. Allegations cannot and should not be accepted at face value. They must be tested in court by thorough and appropriate questioning.

Bad character

  • Bad character, Criminal Justice Act [CJA] 2003. For as long as any of us can remember the bad character of a defendant had always been kept out save for certain exceptions because everyone accepted that the prejudicial effect of a jury trying a case knowing that the defendant had form for the offence charged made his chances of acquitted disappearingly small.   So when David Blunkett got his chance to put Tony Blair’s famous claim that Labour was going to be “tough on crime and tough on the causes of crime” into effect what better way to bump up the conviction rate that allow the prosecution to tell the jury “he’s done it before”? That New Labour mantra when first touted suggested the Labour party was actively interested in seeking out the causes of crime and criminality but it rapidly morphed into being “tough on crime and tough on those accused of crime” and could just as well have been a policy Michael Howard would have been proud to call his own.


  • Hearsay, CJA 2003 – the same rationale applies. For centuries it was one of the corner stones of English law that hearsay evidence with all the risks about unreliability was not allowed save for a very few exceptional circumstances. Again hearsay evidence is something the Americans prohibited in their Constitution. Now, in this country, the law allows the police to tell the witnesses they don’t have to come to court if they claim they are scared of the defendant or his mates. Hearsay evidence may be very convenient to the police and prosecution but it’s widespread use is not compatible with an adversarial system. Its increased use however is all part of the drift towards a more inquisitorial system in which everything vaguely relevant gets thrown in, the judges think it best to leave it to the and the jury are then asked to sort it out.

Cross-examining in a vacuum

  • Section 28 YJ&CEA 1999 allows for cross-examination of complainants in certain cases, most usually those involving sexual allegations to be conducted in advance of the trial and after your homework has been “marked” by the judge.
  • This is not something I have personally be required to do but as I am sure you will know some judges see this as a chance to emasculate a half decent cross-examination in the full knowledge the Court of Appeal will back them up.   This is a provision that only someone with no experience of trials could have dreamed up. Trials are dynamic processes. How the evidence finishes up at the end of the case is often quite different to how it looked at the start. Questioning a witness in an evidential vacuum in advance of the trial is a travesty that our forebears would have regarded with horror. It is all part of the new cuddly idea that witnesses in sexual allegations can’t be making it up and have to be believed for fear of doing them even more damage. It has no place in an adversarial system where allegations must be challenged robustly.

No advocate who wants to win the case can risk turning the jury against him or her. Of course questioning has to be sensitive. You can’t cross-examine a five year old making an allegation against her step-Dad like you can an armed robber. On the other hand we don’t need witnesses being molly-coddled in the way envisaged by s.28.

  • And all designed to bump up conviction rates with never a care as to whether this means bumping up the rate of wrongful convictions.

Police officers on juries

  • Police officers on juries – what is that all about?   How can that possibly be fair?

It may be summary but there’s not much justice

  • Hottak v DPP – Divisional Court upholding the finest traditions of British justice – no wonder they call it summary justice. Well it may be summary but there is precious little justice involved. Such judgments bring the criminal justice system into disrepute.

The threat to jury trial

  • The threat to the existence of jury trial. Under attack at the moment as part of a periodic assault by some radical feminists who argue that sexual offences are unsuitable to be tried by ordinary members of the public with their prejudices and pre-conceived ideas and that they should be tried by a panel of so-called “experts”. And whilst we’re at it, lets reduce that pesky burden of proof to the civil standard.
  • On the other hand there are those who would love to do away with jury trials in all cases and who use every instance of jury misconduct particularly in relation to the internet or social media to say “oh well look its perfectly clear we cant have jury trials in the internet age because you can’t stop juries from going on the net.”

Dealing with the internet like grown-ups – a proposal

  • There is a solution beyond blindly hoping for the best on the one hand or threatening jurors on the other hand. In the USA because of the First Amendment right to free speech, pre-trial publicity is far more extensive than in the UK. So they ask potential jurors what they know about a case and what they have heard and they then ask them whether, given what they already know about the case do they feel able to comply with the juror’s oath to try the case according to what they heard in court? Of course their answer isn’t the end of the matter. The judge and counsel have to assess the answers given and either side can challenge the juror.
  • I have no doubt such a suggestion would be met with incredulity by the Ministry of Justice. It will mean that jury selection takes a little longer. It will require a few more jurors to attend court.   But not in most cases where there has been little publicity anyway. And what are we doing here? We are selecting an impartial jury and surely that is sufficiently important to make it worth any extra time and expense.   It would mean we are approaching this 21st century problem like mature adults. It would finally put to bed the fiction so beloved of the senior judiciary that jurors always follow the directions of the judge and this includes warnings not to do research on the internet, when we all know from experience that such warnings do not always work.

Changing the law on loss of control

Amendment to the rules on loss of control (the old defence of provocation) in the 2009 Coroners & Justice Act 2009 taking sexual infidelity out of the equation.   No one condones domestic violence. When it results in the death of a woman it is particularly shocking. But equally every one knows than that nothing is more likely to provoke a spontaneous outbreak of anger and violence than suggestions of sexual infidelity. Denying an accused a defence based on that simple fact of life is unjust.

I have been pretty rude about some politicians on the right like Michael Howard and David Blunkett so to equal things up let me remind you that amendment was the parting shot of the government career of one Harriet Harman who was once a legal officer at the National Council for Civil Liberties NCCL, the forerunner of Liberty.

Criminal Legal aid
You have already heard from Lord Bach.  Now in charge of a review into how LASPO is working. That would be the same Lord Bach who as a Labour minister under Blair/Brown was the architect of BVT would it?  The man who set us on the way to competitive tendering, Eddie Stobart Law and helped push through previous cuts to the paltry rates of pay for criminal solicitors and advocates including an entirely spiteful 13.5% cut to criminal legal aid rates just as they departed office in 2010. Hmm.

A modern parable about legal aid and those fat cats

The £194 case

Four of my colleagues in chambers were recently involved in a case in the crown court. The accused was charged with theft from his employer to the value of over £1,500, not an insignificant sum if he had been convicted.   As was his right he had elected trial by jury.   The first hearing was in July 2014. In September that year a PCMH was held. The case was then listed for a three-day trial in December 2014.

The barrister prepared the case for the trial. On the day of trial there was no court available to deal with the case so it was adjourned. After defence representations that the prosecution case was hopeless and that there was no realistic prospect of a conviction the judge, who seems to have been sympathetic to this submission, told the CPS to review the case. It appears that they did not do so. That is not uncommon.

In April 2015 the case was listed for a mention and a new trial date was identified in May 2015. Since the original advocate was not available the case was passed to a second barrister. He prepared the case fully for trial. On the afternoon before the trial was due to begin the court pulled the case from the list and it was adjourned. Six months later in November the case was again listed for trial. The second barrister prepared the case again for trial and this time it was adjourned on the day of trial.

A third barrister was briefed for another mention hearing and the case was listed again for trial in January 2016. As none of the previous barristers was available a fourth barrister was brought in to take over the case. That barrister had a conference with the client and prepared the case for trial, the fourth occasion on which it had been prepared for trial. On the afternoon before the trial was due to begin the court decided the trial could not go ahead and the hearing became a mention instead of a trial.

Finally the case came on in June 2016, nearly two years after it had first been listed. This was the fifth time the case had been listed for trial and the fifth time counsel had prepared the case for a trial. Remarkably after all this time it seems that finally the CPS had got the measure of the case and the prospects of a conviction and they offered no evidence and the defendant was formally acquitted.

So after many hours of hard work by four different barristers preparing the case for trial on five separate occasions how much money do you think was wasted in paying the defence barristers on this utterly pointless venture?   The answer? £194! Yes one hundred and ninety four pounds all in, to cover the fees of all four barristers.     Out of that the four barristers had to pay their travel costs, in this case typically more than £20 on each occasion and 20% of their share of the £194 fees to Chambers to cover the costs of the staff and general administration of Chambers.  If you work out the hours of work done, the days in court and the time for travelling to court it means the lawyers were working for a few pounds an hour.   Once travel costs are taken into consideration the barristers were actually losing money by doing this case at all.   If Mike Ashley paid these rates there would be an outcry.

Punishing lawyers for doing legal aid

The justification for such derisory fees is said to be to ensure that defence lawyers don’t allow their clients to “play the system” by electing trial in the crown court to spin things out only to plead guilty at the last moment.   It is suggested that threatening to pay so little will act as an incentive to the lawyers to ensure the case is dealt with “expeditiously” and that those who are guilty own up at the earliest stage. Except that this man was innocent, a fact finally recognised by the CPS only after two years and five listings for trial. The CPS lawyers don’t care. They are employed and their wages, poor though they, are not dependent on the result of the case. So what has happened is that the defence lawyers get penalised because the prosecution case was so weak that the defendant rightly decided he would fight the case until the prosecution saw sense and gave in.

I’m not suggesting that such fees are representative of the scheme as a whole. Thankfully that is not the case but there is no justification for such pathetically low fees in any circumstances. Nor is it likely that any one barrister will find themselves in this situation every other week but I suspect most junior barristers will have had to put up with this at some point in the last few years.

I can’t imagine any other profession putting up with this. This is little short of scandalous. It shows how pathetic the leadership of the Bar who purport to represent barristers has been over the years that they have been prepared to tolerate this state of affairs.   But it is the Ministry of Justice that is principally to blame.   The current fees scheme has not been revised for almost ten years and all we have had in that time have been further rounds of cuts to already low rates of pay.

As long ago as October 2015 the Bar Council submitted proposals to the Ministry of Justice [MoJ] which involves no new money but claims to have achieved a greater degree of fairness in the fees structure but shuffling various sums of money from one place to another. Very laudable I am sure but a poor substitute for a proper revision including a decent pay rise. Nonetheless the MoJ are now sitting on a revised RAGFS scheme and there has been no indication of any progress.

The ongoing scandal that it LASPO

Of course the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) is a scandal. Whole areas of law including parts of housing, debt, employment, immigration, and welfare benefits taken out of scope of the LA scheme. At least eleven law centres have had to close, making it even more difficult for the poorest to get justice, and providers of social welfare law have declined in numbers as without legal aid both law centres and solicitors firms have been deprived of a large amount of income.   Tens of thousands of citizens, including many of the most vulnerable denied access to justice on that account. Lord Back’s review shouldn’t take long to work that out and what needs to be done to remedy the problem. But as we all know giving the public access to justice is all fine and well but not much good if they can’t find lawyers prepared to do the work because the rates of pay are scandalously low.


Hearsay evidence – is the ECtHR now in full retreat?


Two recent cases from the United Kingdom in which the UK courts had admitted hearsay evidence in the absence of the witness have provoked comment by the authors of the usually excellent UK Human Rights Blog – 30th September 2016.  Many observers would argue that the UK courts had the better of the ferocious exchanges that occurred after a Chamber of the European Court  of Human Rights [ECtHR] reached its decision in Al-Khawaja v. UK; Tahery v. U.K. (2009) E.H.R.R. 1 and that this was proved in the diplomatic climbdown in the decision of the Grand Chamber almost three years later [2011] E.C.H.R. 2127.  On the other hand it might be argued that the careful way in which the UK Court of Appeal considered another hearsay case in R.v. Ibrahim [2012] 2 Cr. App. R. just a few months after the GC decision in Al-Khawaja would not have happened had it not been for the stand taken by the ECtHR [and it should not be forgotten that Mr Tahery’s conviction was ultimately overturned by the UK Court of Appeal] and that it was really a case of the UK winning that particular battle but Europe winning the war by forcing the UK courts to take a much more cautious approach towards the admission of hearsay evidence.  Whatever your view it has been interesting to watch the two sets of courts eying each other up ever since.


Before turning to the two UK cases it is necessary to start with the case of Schatschaschwili v Germany (GC) Application No. 9154/10, 15 December 2015.  In that case the Grand Chamber had reiterated the three-step process required to be gone through in considering the admissibility of hearsay evidence of an absent witness, namely

  1. whether good reason existed for the absence of the witness;
  2. whether the impeached evidence was the “sole and decisive” evidence against the accused;
  3. whether there were sufficient counterbalancing factors and strong procedural safeguards which allowed the reliability of the evidence to be fairly and properly tested – para 107.

The Grand Chamber stated that in the light of previous decisions of the court since Al-Khawaja v UK [2011] ECHR 2127, it should make it clear that the lack of good reason for the failure of the witness to attend was not sufficient in itself to result in a violation of Article 6 but it was a strong factor to be considered when assessing the overall fairness of the proceedings (para 113). Furthermore, the necessary extent of the counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (para 116.)


In Seton v UK (Application No. 55287/10, 31 March 2016) a decision of the First Section rather than the GC, Mr Seton was charged with murder. His defence involved accusing another man P of the murder. The impeached evidence relied on by the prosecution was the transcript of a phone call made by P from prison (which he would have known would be monitored and recorded) to his family in which he had denied the murder. Unsurprisingly P had declined any invitation to make a formal witness statement much less attend court to give evidence.


The ECtHR held that whilst there was, in their view, no good reason for the non-attendance of the witness, the evidence could not be considered to be “sole or decisive” because of what had been described in the UK Court of Appeal as “overwhelming evidence” against the applicant, and in any event there were sufficient procedural safeguards in place, courtesy of the hearsay provisions of the Criminal Justice Act 2003, to ensure the overall fairness of the proceedings and accordingly there was no breach of Article 6.


The author of the influential UK Human Rights Blog commented on this decision to suggest that this represented a watering down of the procedural safeguards contained in Article 6 (3) citing previous decisions of the ECtHR where a strict approach had been taken to the lack of good reason for not calling the witness and pointing out that the three factors identified in Al-Khawaja seem now to be little more than matters that need to be considered by the court but which are no longer determinative.   He also suggests the ECtHR “may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.”


Then in the case of Simon Price v UK (Application No. 15602/15, 15 September 2016) the same First Section of the Court, declined to decide whether there had been good reason for the failure to call the absent witness but held, in view of the wealth of other evidence that in any event, the evidence was not “sole and decisive”. This was another case involving the hearsay provisions of the CJA 2003 and the Court held that there were sufficient safeguards to ensure the overall fairness of the proceedings. Accordingly the Court held that there had been no breach of Article 6 (3) in admitting the evidence of the absent witness.


In this case Mr Price had been tried for drug trafficking, the not inconsiderable amount of £35 million worth of cocaine which had been intercepted in Holland. The impeached evidence here was from a customs broker for the shipping agents that supported the prosecution case that the final destination of the drugs was the UK. The witness declined to give evidence including offers of special measure such as giving evidence via a video-link.


Again the author of the UK Human Rights Blog commented along much the same lines as in Seton. He suggests that the three step test set out in Al-Khawaja has “almost morphed into a single step test – was there other supporting evidence securing the conviction other than the evidence of the absent witness?” The author concludes that “it appears that the stronger the case against the applicant, the less likely it is that the right under Article 6 (3) (d) will need to be respected.


For my part I think the author may be over-stating the case. I do not think these decisions indicate that the ECtHR has been cowed into submission by the battle with the UK courts culminating in Al-Khawaja and R.v. Horncastle [2010] 2 A.C. 373 or that it has given up on defending fundamental human rights under Article 6 (3). The reality in both cases is that there was an overwhelming case against the Applicants quite apart from the evidence of the absent witness and since the ECtHR’s primary concern under Article 6 (1) is to “evaluate the overall fairness of the criminal proceedings” [Al-Khawaja, para 118] there had been no breach of Article 6 (1) read in conjunction with Article 6 (3) (d) of the Convention.   To have held otherwise risked bringing the reputation of the ECtHR into further disrepute and would have provoked accusations from the UK that the ECtHR had lost any sense of proportion in considering cases from this jurisdiction.  I think  we need to await a case with much better facts before reaching the conclusions drawn by the author of the UK HR Blog.


Whingeing about legal aid cuts – a reply to Lord McNally


Lord McNally, who as justice minister in the coalition government helped steer the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [LASPO] through the House of Lords, wants lawyers to stop whingeing about cuts to legal aid. He thinks that lawyers “bandying about access to justice, it’s really quite fraudulent.”   I’m sure Lord McNally is well versed in access to justice. After all no single measure has cut access to justice to so many people in one go as LASPO which took whole areas of law outside the scope of the legal aid scheme. At a single stroke thousands of citizens were denied access to justice simply because they cannot afford to pay themselves.


At the same time as denying legal aid to thousands, the government of which Lord McNally was a member, presided over further cuts to the fees paid under the criminal legal aid scheme to solicitors and barristers who represent those unable to afford a lawyer from their own means. This matters because the more that fees paid under legal aid are cut the more good lawyers are put off from doing such work.   If the good lawyers desert legal aid we will be left with a rump of dedicated but mainly incompetent lawyers who would only do the work because they are not good enough to work in more lucrative areas. That would be a disaster for the millions of people who cannot afford a lawyer even when they need one. And people accused of crime need a good lawyer.   Lord McNally talks about opposition to cuts being fraudulent. Well, read on Lord McNally and let’s see where the fraudulent behaviour arises shall we?


Four of my colleagues in chambers were recently involved in a case in the crown court. The accused was charged with theft from his employer to the value of over £1,500, not an insignificant sum if he had been convicted.  As was his right he had elected trial by jury.   The first hearing was in July 2014. In September that year a PCMH was held. This is a substantial hearing for which the advocate has to prepare to deal with all matters relating to the preparation and readiness of the case for trial, such as which witnesses will be required, how long the case will last, what the defence will be and a number of other matters. The case was then listed for a three-day trial in December 2014.


The barrister prepared the case for the trial. On the day of trial there was no court available to deal with the case so it was adjourned. After defence representations that the prosecution case was hopeless and that there was no realistic prospect of a conviction the judge, who seems to have been sympathetic to this submission, told the CPS to review the case. It appears that they did not do so. That is not uncommon.


In April 2015 the case was listed for a mention and a new trial date was identified in May 2015. Since the original advocate was not available the case was passed to a second barrister. He prepared the case fully for trial. On the afternoon before the trial was due to begin the court pulled the case from the list and it was adjourned. Six months later in November the case was again listed for trial. The second barrister prepared the case again for trial and this time it was adjourned on the day of trial.


A third barrister was briefed for another mention hearing and the case was listed again for trial in January 2016. As none of the previous barristers was available a fourth barrister was brought in to take over the case. That barrister had a conference with the client and prepared the case for trial, the fourth occasion on which it had been prepared for trial. On the afternoon before the trial was due to begin the court decided the trial could not go ahead and the hearing became a mention instead of a trial.


Finally the case came on in June 2016, nearly two years after it had first been listed. This was the fifth time the case had been listed for trial and the fifth time counsel had prepared the case for a trial. Remarkably after all this time it seems that finally the CPS had got the measure of the case and the prospects of a conviction and they offered no evidence and the defendant was formally acquitted.


So after many hours of hard work by four different barristers preparing the case for trial on five separate occasions how many thousands of pounds of tax payers money do you think was wasted in paying the defence barristers on this utterly pointless venture? Don’t forget that the government love to quote how expensive the legal aid scheme is and newspapers love to talk about “fat cat lawyers” getting rich at public expense. So what do you think?  Remember that the trial had to be prepared five times. The barristers had to attend the hearings on numerous occasions.   Do you suspect the figure will be at least say, five thousand pounds, maybe more? The answer? £194! Yes one hundred and ninety four pounds all in, to cover the fees of all four barristers.    Out of that the four barristers had to pay their travel costs, in this case typically more than £20 on each occasion and 20% of their share of the £194 fees to Chambers to cover the costs of the staff and general administration of Chambers.   If you work out the hours of work done, the days in court and the time for travelling to court it means the lawyers were working for a few pounds an hour. Once travel costs are taken into consideration the barristers were actually losing money by doing this case at all. If Mike Ashley paid these rates there would be an outcry.


The justification for such derisory fees is said to be to ensure that defence lawyers don’t allow their clients to “play the system” by electing trial in the crown court to spin things out only to plead guilty at the last moment.   It is suggested that threatening to pay so little will act as an incentive to the lawyers to ensure the case is dealt with “expeditiously” and that those who are guilty own up at the earliest stage. Except that this man was innocent, a fact finally recognised by the CPS only after two years and five listings for trial. The CPS lawyers don’t care. They are employed and their wages, poor though they, are not dependent on the result of the case. So what has happened is that the defence lawyers get penalised because the prosecution case was so weak that the defendant rightly decided he would fight the case until the prosecution saw sense and gave in.


I’m not suggesting that such fees are representative of the scheme as a whole. Thankfully that is not the case but there is no justification for such pathetically low fees in any circumstances. Nor is it likely that any one barrister will find themselves in this situation every other week but I suspect most junior barristers will have had to put up with this at some point in the last few years.


I can’t imagine any other profession putting up with this. This is little short of scandalous. It shows how pathetic the leadership of the Bar who purport to represent barristers has been over the years that they have been prepared to tolerate this state of affairs.    But the Ministry of Justice is also to blame. The current fees scheme has not been revised for almost ten years and all we have had in that time have been further rounds of cuts to already low rates of pay.


Last October the Bar Council did in fact put to the government a revised scheme for payment of fees in criminal cases. As devised this scheme would apparently involve no new money but by revising various fees within the scheme it was said that the fees would more readily reflect the actual work done and as a result would be fairer all round.   To my mind this scheme is inadequate because we should be demanding that fees are increased rather than reshuffling the current “envelope” but in the absence of a grassroots demand by the criminal Bar for a rise in fees this scheme is the only show in town. However since October last year the government has sat on the Bar Council’s proposals. Various excuses about being engaged in other things such as the EU Referendum have been offered. Meanwhile, barristers and solicitor-advocates continue to have to put up with fees of this sort.


Lord McNally adds insult to injury by suggesting there is anything fraudulent about trying to protect access to justice. Lawyers are entitled to speak out about the denial of access to justice to the public. They are also entitled to speak out about continual cuts to their rates of pay. And when Lord McNally urges lawyers to shut up and stop whingeing he would do well to bear in mind that our patience is not infinite. The criminal Bar flexed its muscles in 2014 by taking direct action in an ultimately successful bid to prevent further cuts.   The government should not think they can simply fob us off with continual reference to the need for austerity.   It is high time the MoJ stopped prevaricating and implemented a scheme for the proper payment of criminal advocates including a mechanism for regular review to ensure fees at least retain their value.

Why History matters – who we are and how we got here

In the highly unlikely event that I should ever think it worthwhile writing my memoirs I think they would be called “The Accidental Advocate”.   Accidental because before ever I wanted to be a barrister I had already fallen I love with history. If things had worked out differently I might have ended up in some ivory tower surrounded by old books full of Norse sagas, ancient chronicles like the Anglo-Saxon Chronicles and other accounts by the likes of Bede.   Over the years many different events from different centuries and different continents have grabbed my attention but in the end I always seem to return to my first love, the history of England between the arrival of the Romans and the coming of the Normans in 1066.


Quite why it is this period that so attracts me I am not entirely sure of but there is something about wanting to know where I come from, who were my ancestors, how a group of disparate Iron Age tribes became a series of kingdoms and eventually by the 10th century had evolved into a genuine kingdom of all the English.   One powerful factor in all this for me is that the perfect answer to racist and nationalist bigots who bang on about racial purity and “England for the English” is that to study the development of these island over this thousand year period is to realise how complete a collection of mongrels the inhabitants of these islands really are. Even identifying ourselves as the “English” is only to have seized on the name of one of many cultural and linguistic groups who settled in this country from whom we might just as easily have taken our name.


For a start the Romans weren’t really Romans at all or at least lots of them weren’t. One very successful concept developed by the Romans as they extended their empire was to raise legions consisting of peoples who they had already conquered as a way presumably of convincing them of the benefits of being ruled by Rome.   Whether a Belgian or Spaniard being stationed in Britain on the wild north-west frontier of the empire in the first century AD would necessarily have seen it that way is perhaps open to question. Nonetheless that is what happened. The IX legion Hispana which set up camp in Lincoln before moving north across the Humber in about AD 70 to establish a home in what later became the ancient city of York, were as their name suggests mainly recruited from Spain.   Units who were later stationed on Hadrian’s wall in modern Northumberland and Cumbria in the second century included cohorts from the modern Netherlands and Belgium, early examples of the free movement of peoples perhaps. Other units came from Germany, Croatia, North Africa and shock-horror even Syria! So much for immigrants being the fault of the EU or the 21st century civil war in Syria!


I like to imagine a group of first century AD Yorkshiremen from the British tribe from around the York area known as the Brigantes sitting around a fire on a Friday night drinking the local ale.   I imagine them complaining about the bloody foreigners coming over here and ruining the lovely unspoilt countryside with building a huge wall of stone, laying roads across previously open land with aquaducts and viaducts and vineyards and all the other things Reg’s group in Life of Brian complain about the Romans bringing with them. And then of course there will have been the inter-breeding and before long those foreigners will have been settling down with British women and before you know it you would have had an even more multi-cultural population that we have in Britain today.


And after the Romans we had the Angles, Saxons and Jutes of whom the fabled “English”, the Angles were just one part. They came from the areas of modern north Germany and Holland. Other groups came from the south of modern Denmark.   From the late 8th century the Danes made their appearance in England and were here in large numbers until the Normans arrived in 1066. Before that though we also “welcomed” the Vikings from Norway although some of these had spent a century or so in Ireland before they took the short trip across to Lancashire. And those Normans were sort of French but their very name contains an important clue to their origins. These were the dreaded “Northmen”, cousins of those who attacked and then settled in England in the 9th and 10th centuries, who in the space of about four generations had become native Frenchmen. So pick the bones out of that lot before you start all this “England for the English” nonsense. When we speak of “the English”, we aren’t actually speaking of a tribe of thoroughbreds, but a collection of mongrels with all the fabulous diversity that mixing together and interbreeding has brought.


For me the study of history has to be about much more than merely reading books and ancient documents even if they include the works of writers like Bede or the Anglo-Saxon Chronicles, contemporaneous as they were from about the late 9th century or the study of fabulous creations like the Lindisfarne Gospels. Museums can also play an important part in helping to bring history to life but for me what really sets the sparks flying is to go to places were great things or maybe even rather mundane things happened and just stand there and soak in the atmosphere, close your eyes and imagine how this scene was at some much earlier time in history.


So it was that in mid-July I set off on the first leg of my Magical History Tour 2016. First stop was Lincoln. Lincoln is full of fantastic stuff starting of course with its magnificent cathedral.



One of the things I like about driving to Lincoln on the A57 is that you can first see the cathedral from many miles away stuck up on top of a raised plateau as it is. You don’t need to believe in a deity to acknowledge this as one of the greatest and most beautiful buildings in Europe, if not the world. Built and re-built over several hundred years following a previous major collapse you can see the progress of the work in the building itself from the west face of the cathedral. From the crude round arches of the Normans who didn’t really understand load-bearing to the far more elegant and sophisticated structures the higher up you go. For years I have always enjoyed a visit to see the Lincoln copy of Magna Carta which until recently was housed in an unprepossessing council building in the grounds of the castle and Crown Court. In time for the 800th anniversary of this most celebrated document in English history a new room was built to house Magna Carta. Unfortunately the heating doesn’t work properly and was in danger of damaging the document so it has been closed and as a result Magna Carta is currently not on display.


Undeterred by this I set about investigating the Roman origins of Lincoln. Because they built in stone rather than wood a surprising amount of Roman Lincoln survives despite the fact the city had been in constant occupation since Roman times and modern development has undoubtedly destroyed a significant amount of the physical evidence. However the base of the eastern gateway to the city is clearly visible in the grounds of a modern hotel, including the base of a stone staircase.


On the other side of the Roman city, part of the western gate remains on view beside the later gate in the castle walls. In between part of a wall called the Mint Wall survives and is particularly significant because this was part of the civil forum buildings rather than the military part of the city. The columns on one side of the forum were uncovered in the late nineteenth century and their location today is marked by a series of circles set in the roadway and pavement.


My favourite part of the Roman remains of Lincoln however is the Newport gate. This would have been the northern gate of the Roman settlement. It was built on Ermine Street which begins in London. This section marked the start of the length of more than thirty miles of Ermine Street that runs from Lincoln to Winteringham on the south banks of the Humber. What is most remarkable about Newport Gate is that it is still in use to this day as a gateway to the city and traffic can enter the city through its arch as it has done for more than 1700 years.


It is the sole remaining Roman arch in this country that is still in working order for vehicular traffic.


When you approach it is seems to be rather low for a working archway. The explanation for this lies nearby. On the west side of the arch you see the foundations of one of the pillars of the arch. It is set about two metres below the modern ground level. In other words back in the 3rd century the ground level through the arch itself would have been about two metres lower thus leaving plenty of height for the largest of wagons using it.



Lincoln remains a bustling city to this day albeit on a modest scale compared to many other modern cities. But it was easy to stand by the Newport gate and imagine how it must all have looked and sounded back in bustling Roman times.

From Lincoln I drove north on Ermine Street.   It is surprising how faithful to the original routes laid down by the Romans over nineteen hundred years ago some of our major roads remain. The A5 for example which runs from London to near Shrewsbury pretty much follows the original route of Watling Street north of London. The same can be said for parts of the A1, the Great North Road although modern requirements have increasingly meant that the modern road has ploughed new furrows not necessary to cope with traffic demands in Roman times. But from Lincoln the present road, the A15 is pretty much a straight road for thirty odd miles until the road nears the Humber river. In Roman times there was a ferry terminal near the modern village of Winteringham, just a few miles west of the modern bridge over the Humber, which linked up with the Roman fort at Brough on Humber (Petuaria) on the north side of the river.


Today there is little trace of either site but on a cloudy morning in July of this year I stood roughly where the Roman fort would have been from around 71 AD and imagined the traffic being ferried to and fro along that important Roman artery from York to the south.


In my next blog I will turn to events at the other end of my favourite period of English history, namely 1066, a very significant year in English history and visit Riccall, York and Stamford Bridge.


Taking a horse to water – why hooligans did not cause the Hillsborough Disaster

There are some people who apparently still believe that the world is only about 6,000 years old. They base this crackpot idea on their reading of various parts of the Bible.   This creates a number of problems not the least of which is that dinosaurs must have co-existed with humans.   On the other hand the evidence, namely the science tells us that the earth is about 4.5 billion years old, that dinosaurs died out about 65 million years ago and that humans’ ancestors go back only a few million years, making the scary thought of co-existence with dinosaurs, one worry we needn’t bother about.  It just goes to show however that there is no accounting for the weird ideas people can come up up even when confronted with evidence directly to the contrary.

On an entirely different topic, namely Hillsborough, my attention was drawn a few days ago to a post on Youtube in which someone by the name of Thomas Baden-Riess sets out in somewhat rambling form his view that despite arguments, not to mention evidence to the contrary the cause of the death of 96 Liverpool fans in the Hillsborough disaster was the bad behaviour of a substantial minority of Liverpool fans.    Those familiar with the Inquests will have a horrible sense of deja-vu.

In the video posted earlier in August 2016 the author refers to having read the interim Taylor report published in the summer of 1989 and the findings of the Hillsborough Independent Panel published in the summer of 2012.   It isn’t clear however from the video that he has read any of the evidence from the recently concluded Inquests or alternatively that he kept up with what was happening during the Inquests by reading the reports of newspapers such as the Liverpool Echo which covered the entirety of the proceedings and which provided very useful and easily digested summaries of the evidence.

The author begins his piece by suggesting that the police teams ran the wrong arguments at the Inquests by trying to suggest the Liverpool fans were drunk, late and ticketless, describing these as “straw arguments” that it was easy for the family lawyers to demolish. He suggests that the police should have argued instead that the deaths were caused by the bad behaviour of the fans. This seems to be based on  pure supposition by the author and not by reference to any of the evidence heard by the jury in the course of two years of evidence.

The author might have paused to ask himself why, if his theory held any water, and despite the considerable array of legal talent at the Inquests representing numerous police teams, there was hardly any attempt to raise this particular argument.   I lost count of the number of times during the Inquests when the Coroner reminded the jury that no one was arguing that the disaster was caused by hooliganism.  It is true that counsel on behalf of the Match Commanders, who left no stone unturned in his desperate attempt to blame the fans, made a brief attempt to suggest that fans entering Pens 3 and 4 of the Leppings Lane terrace around 2.50pm were pushing in a malevolent way but even he gave up on this when the CCTV footage was played and showed no such behaviour.  There simply was no evidence of the hooliganism or bad behaviour to which Mr Baden-Riess refers either from CCTV footage or evidence from dozens of police officers at the ground on the day.  Without evidence Mr Baden-Riess is left with pure conjecture which is of course no rational basis for making serious allegations.

Nowhere in his video does the author acknowledge the very important fact that many of those who died in the crush were not in the ground before about 2.55pm.  I have dealt with this issue in a previous blog here  but as this is important it is worth repeating that between a quarter and one-third of those who died only entered the pens after being admitted into the ground by the police through the open exit gate C at 2.52pm.  In other words they were part of the mass of people who were allowed to enter the already grossly overcrowded pens.  I don’t understand even this author to be suggesting any of the Liverpool fans were intent on suicide.

The football authorities as well as the police were well aware at the time that many fans prefer to watch the game from as near as possible to one of the goals.  Fans entering the Leppings Lane end would have seen a large sign immediately above the tunnel with the word “Standing” on it.  No alternative entry point to the terraces was obvious.  It was in fact possible to enter the Leppings Lane terrace from both ends but the signage to this effect to the right hand side was so small you needed to be right underneath it to read it and to get to the terrace from the left hand side required fans to go through a small gateway in a wall which had no signs on it at all.  In addition many fans who gave evidence said that they would have expected, from their experience at other grounds, that once they had gone down the tunnel they would have been able to spread out along the terrace so that if they found the area immediately behind the goal was already uncomfortably full they could have moved towards the sides. However it was only once they had entered the central pens that they realised there was no way to move to the sides short of scaling 5 foot fences.  There was nothing remotely irresponsible, much less evidence of hooliganism in deciding to go down the tunnel that afternoon.  None of those entering could have known in advance what was happening inside those pens.

The evidence at the Inquests showed, as had the Taylor report and the HIP report that the South Yorkshire Police [SYP] had decided to leave it entirely to the fans to sort out where they stood on the terrace. This farcical policy was known as “find your own level”.  It amounted to an abdication of responsibility on the part of the SYP.  To this end there were no police officers behind the turnstiles to direct fans as to where to go. In particular and despite clear evidence that this had been done on many occasions before including at the corresponding match the previous year, no attempt was made to close the gates to the tunnel or to post a few police officers who could easily have prevented anyone else going down the tunnel and directed the fans as to how else they could get onto the terrace.  It was that abject failure by the SYP that lead to the deaths of the 96 not any supposed acts of hooliganism by them or their mates.  That much was clear from the jury’s conclusions at the Inquests.

In the end just as you can take a horse to water but you can’t make it drink, there is no way of persuading everyone of the truth about Hillsborough even if it is staring them in the face.  Mr Baden-Riess is entitled to his opinions but the rest of the world should know there is no evidence for what he says.  His musings are baseless.




“And the Sun Shines Now” – a review


The title is a quote from the BBC’s Peter Jones at the end of his commentary on the day of the Hillsborough disaster. The author was in pen 3 on the Leppings Lane terrace that day. His experience was that of those who died except that by some twist of fate he didn’t die. So you might expect that this book published shortly after the conclusion of the recent Inquests would be about the Hillsborough disaster. But as the subtitle “How Hillsborough and the Premier League Changed Britain” suggests it is about a lot more than Hillsborough alone.


Having said that, the book both starts and finishes with Hillsborough. In the first chapter the author relates in terrible detail the experience of those caught in that deadly crush, how it felt and how it smelled when you think you are going to die. Then there was the indifference of the watching police officers to the plight of those thousands packed into a space that should have held about half the actual number present. In the final chapter the author deals with the recent Inquests themselves. He explains the impact of the Coroner’s controversial decision, [entirely unnecessary in light of the strong words of Judge LCJ when quashing the original verdicts, about not allowing the new Inquests to descend into an adversarial quagmire] to allow the police teams led by the Match Commanders yet again to raise the tired old theme that drunken, late, ticketless fans were to blame for the disaster. He explains how he and other survivors faced the dawning realisation that the Inquests could end up officially laying part of the blame for the disaster at the feet of the fans who themselves only just survived the crush. This was a dangerous game played by the Coroner which, no thanks to his judgment, ended with formal verdicts from the jury which entirely exonerated the survivors of the disaster. So Hillsborough bookends both the start and end of this story and provides the backdrop against which the author considers the impact that the Hillsborough disaster had on football.


Adrian Tempany considers how Lord Taylor’s report on the disaster provided the impetus for all-seater stadia in England’s top two divisions. Three years later the top clubs broke away from the Football League to form the Premier League. Adrian charts in detail the resistible rise of Rupert Murdoch and Sky TV when football decided to sell its soul to the highest bidder. Rising ticket prices, allegedly to pay for better stadia, led to the commodification and gentrification of football. It’s a tale many football fans will easily recognise.


There is an excellent chapter on the football magazines and fanzines that became so popular in the 1980s.   One of my favourite passages explored how the role of football and terrace culture in the passage between childhood and manhood should not to be overlooked. In one interview, a Sunderland fan explained the importance of kids seeing how grown men could behave in a completely different way when released from the constraints of normal life and experienced the unconfined joy of seeing their team score a goal and watching men who didn’t know each other “shouting and screaming and hugging one another”.   As the author says “there is terrace culture but there is no such thing as seat culture.”


The book also explores the extent to which clubs both in England and abroad have attempted to re-engage with the communities within which their grounds are located and the author has considered at some length the German model of fan ownership and participation in the running of their clubs.


Overall this is a fine book, obviously the result of a lot of detailed research and full of thought provoking arguments and it is absolutely no reflection on it that I remain pessimistic about so called top-flight football.  Those of us who regularly attend Premier League games are addicts who can’t kick the habit. I readily include myself in this as a season ticket holder at my club.   We’ve seen our clubs high-jacked by an assortment of crooks, spivs, tyrants, fraudsters and Mafiosi. Ticket prices make a trip with the kids to a Premier League game about as costly as a week’s holiday on the Med. Kick-off times are arranged not for the supporters attending the game, many of whom have to travel a hundred miles or more to get there but for the world wide audience [customers not supporters] mainly in the Far East. This season’s latest indignity is Friday evening kick-offs requiring major adjustments to work and family life just to attend. A game that is supposed to be about escapism from the rigours of work and the druggery of much of life now requires planning not unlike an expedition to the South Pole.


But if we are addicts we are also cowards. For all my dislike of Manchester United I am in awe of the several thousand Stretford Enders who decided that they had had enough when their club became the victim of a takeover by an American family who probably didn’t even know the shape of a football before they bought it. They spoke of buying not the football club but the franchise, as if Manchester United was a car dealership or a fast food outlet. It takes courage to walk away from the club you love especially when it happens to be the most successful club in the Premier League era and start all over again. The tale of FC United of Manchester and the fight by true fans to ensure that they keep their club because it is theirs and not some businessman’s toy is an inspiration and I hope that a future edition of this book will look in more detail at how the club was set up and has achieved what it has so far in the few years since its formation.


After almost three years of working solidly on the Hillsborough Inquests you might think this book would have been a bit of busman’s holiday for me. Not a bit of it. I got so into it that I had to slow down so as to allow the various arguments more time to take hold in my head. Even so I read it in three days and loved it. If you love football, if you hate the direction of much of modern game and if you still have a feel for injustice then this book has it all. Do yourself a favour and get a copy.