Why legal aid reforms must be stopped, Exhibit A: the "child pornographer"

Innocent people could be in jail if proposed changes to the legal system are implemented. Here is one of them.

This blog seeks to expose some of the myths about our present criminal justice system, myths that have risen to prominence again following publication of the Ministry of Justice (MOJ) consultation paper Transforming legal aid. Myths that have been fed to the media, and the public, by the MOJ.

First, I covered the myth of  the “fat cat” lawyer. Then I went onto the myth of the “scumbag criminals” and I promised to tell you about a few of my husband’s clients. Not the proper scumbag criminals that you read about in the press, but the ones whose stories don’t often get told. The ones who are victims of police and Crown Prosecution Service (CPS) blunders and this finger pointing, blame gaming society that we now live in. These are the people who, under the proposed changes to our criminal justice system, would probably be advised to plead guilty and end up with a criminal record and possibly serving time.

NB this is a true story. Certain details that don’t relate to the factual and legal process have been changed to protect those who were involved.

In the beginning

Exhibit A was a retired man, in his early 70s. Married for over 40 years. Never been in trouble with the police in his life. He’d kept up with technological developments was something of a “silver surfer”. He had a laptop and enjoyed using the internet for pursuing his hobbies and keeping in touch with his family and friends.

One day his laptop wasn’t functioning as it should do. He took it to his local computer repair shop. The geeks there went to work. In the course of their work they found a number of images of naked children. As all law abiding, paedophile paranoid citizens would do, they called the police. Let’s face it, who isn’t paranoid these days, when we read so much about paedophiles on every street corner? The police came and had a look at the images. They took the laptop away and made written descriptions of the content of each of the images.  Exhibit A, a bewildered old man, was arrested and taken away for questioning.

Interviewed & charged

The interview transcript shows that the police kept saying to him “you’ve got child porn on your laptop” and he kept saying “no, I haven’t!”.  “You’ve got pictures of naked children, posing provocatively with each other” “no, I haven’t, I don’t know what you are talking about”.  The written descriptions of the images were passed to the CPS. On the basis of these written descriptions, Exhibit A was charged with possession of level 1 child pornography. Level 1 is the lowest level, it does not involve sexual activity but must involve provocative and sexual poses. Because he had never been in trouble in his life and wasn’t thought to be dangerous he was bailed on condition that he wasn’t alone with any children. He went home.

Exhibit A knew he was innocent. But he also knew that, despite what they say, most people believe people are “guilty until proven innocent”, particularly in this age of paedophile paranoia and hysteria. He didn’t want his friends and neighbours to find out and ostracise him, or worse. Because he couldn’t see his beloved grandchildren alone he made up a lot of cock and bull stories over the next few months, to avoid having to tell people what has going on.

A provocative bucket

One evening, a few months later, I was at home with my husband. He was quietly working at the kitchen table, surrounded by piles of paper. I was pottering. The radio was on in the background. I didn’t know what he was working on, often he doesn’t tell me until or unless it starts kicking off.

Suddenly, he shouted “a bucket! What is “provocative” about a f*&$ing bucket?”. I didn’t know either and asked him to explain. It turned out that he was working on yet another child pornography case, that of Exhibit A. He was reading from the police description of one the pictures, the descriptions that had been passed to the CPS, the descriptions on which the CPS had made the decision to charge. The pictures themselves weren’t in the file. The descriptions were certainly sinister, but the bucket was incongruous. Something wasn’t quite right. My husband said “I need to see these pictures”. He emailed the solicitor and asked him to request access to them. Over the next few weeks the request was repeated. My husband became angrier as time passed.

His day in court

The day of the trial came round. As is customary, my husband linked up with his opposite number, the in house CPS barrister. The prosecutor asked if Exhibit A was going to change his plea to “guilty”. “Not till I’ve seen the pictures!” said my husband.  Eventually the police produced the pictures and the two barristers went off to have a look at them. Until this point the CPS barrister hadn’t seen them either. The two barristers looked at each other. They didn’t need to say a word.

My husband went to find his client. He gave a reasonable, measured, description of the photos, omitting the sinister overtones that the police had given them. The pictures were of young children in a garden on a hot summer’s day, playing with water pistols, hoses, buckets, paddling pools, balls etc. It looked like they are having a whale of a time, running about, splashing, laughing, smiling and shrieking. The children are all naked. He asked Exhibit A if he knew anything about them. “Oh yes” he replied “they are my grandchildren!”. The police written description was so far away from reality that Exhibit A had not been able to recognise his own photos. It transpired that the grandchildren had all come over to visit him and his wife one day. It had turned out very hot and the children had all ended up playing with water outside. As we all know, you can’t predict the British weather so they’d not brought their swimmers. That was why they were naked.

In court the Crown offered no evidence. The case was closed. Exhibit A went home a free man.

Why this story should matter to you

  1. Finger pointing – Exhibit A’s nightmare began because someone pointed the finger. This happens ALL THE TIME these days. We could all fall victim to it. For anything. From child pornography to giving someone a bop on the nose.
  2. Police & CPS inadequacies – these don’t have to be deliberate. We can all be a bit overzealous, or have a bad day, forget to double check something, suffer a lapse in judgement etc. and often it won’t have serious consequences. In Exhibit A’s case these factors combined to mean that all that stood between him and a prison cell was his lawyer.
  3. Cost to the public purse – much has been made of the MOJ plans to save £200m from the legal aid budget, never mind that these calculations are based on out of date figures and fundamentally flawed. How much do you think that Exhibit A’s case cost the taxpayer? Not just in legal aid, but in police time, CPS time, court time. Multiply that by the number of spurious and nonsensical prosecutions that happen every year.
  4. Other costs – what about the costs that can’t be measured? The costs to Exhibit A’s emotional and physical health. The costs to his family relationships.
  5. What if this happened to you? Or to your grandson, son, brother, father, uncle, grandfather? Would you want them to be able to choose the lawyer who is going to give the best quality service and act in his best interests? Or, as per the MOJ plans, be allocated the services of a lawyer who just happened to be the cheapest?

Help save our justice system

As things stand the proposed changes to the criminal justice system are going to be brought in under secondary legislation, without any debate. The minister responsible has refused to meet with Michael Turner QC, Chairman of the Criminal Bar Association to discuss the proposals. The media appear to be keeping the story very quiet, or conflating it with other MOJ proposals.

The Save UK Justice e-petition needs 100 000 people to sign it in order for there to be a debate in parliament. If you have not already signed the petition please do so, and ask your friends and family to do the same.

This piece is part of a series of posts exhibiting people at risk due to legal aid changes. It is cross-posted with permission from the A Barrister's Wife blog.

Photograph: Getty Images

Barrister's Wife is a barrister's wife. She writes a pseudonymous blog which offers a behind closed doors view of the justice system.

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Keir Starmer MP: Choosing ideological purity before power is a dereliction of duty

The former director of public prosecutions believes getting involved with Brexit negotiations is crucial. 

 

Three weeks after Brexit, Keir Starmer held a public meeting in his London constituency of Holborn and St Pancras. “We had hundreds turning up,” he remembered. “The town hall was absolutely packed - it was standing room only and we had to turn people away. We haven’t had a public meeting of that size for some time.”

When it comes to Brexit, Starmer is an obvious Labour asset. Director of public prosecutions from 2008 to 2013, he has the legal background to properly scrutinise an EU deal. His time spent as a shadow immigration minister means he understands some of the thorniest problems facing negotiators.

But instead, the MP finds himself on the shadow back benches.

“My decision to resign was driven by Jeremy’s decision on the referendum,” he told The Staggers. “I was particularly troubled by his suggestion that we should invoke Article 50 straight away, and start the exit process [Corbyn has since backtracked on this suggestion]. 

“That is not for me a question of left-right politics. When he said that, I felt he was in fundamentally a different place from me in terms of how we fight for the future of our country.”

Starmer is not a man to enjoy life in opposition, and he has little time for airy promises. “Jeremy talks of dealing with inequality and housing projects, and a fairer society - all of which I would agree,” he said. “What I haven’t seen is the emergence of detailed policy that would get us to these places.”

He also gives purists in the party short shrift. “I would reject wholeheartedly any notion of a Labour Party that is not committed to returning to power at the first opportunity,” he said. “Of course that needs to be principled power. But standing on the sidelines looking for the purest ideology is a dereliction of the duty for any Labour member.”

Starmer believes Labour should be joining Scottish and Northern Irish leaders in trying to influence Brexit negotiations. He sees the time before invoking Article 50, the EU exit button, as crucial. 

Nevertheless, the man named after the Scottish founder of Labour, Keir Hardie, is pessimistic about the future of the UK. 

“It is going to be increasingly difficult to resist a further referendum in Scotland,” he said. “It will be increasingly difficult to keep Scotland as a part of the UK. I hope that doesn’t happen, but everyone knows David Cameron has put that at risk.”

Starmer may be a London MP, but he follows events in the rest of the country closely. While still in his shadow cabinet post, he embarked on a countrywide tour to learn more about attitudes to immigration.  

He condemns the increase in racist attacks post-Brexit as “despicable”, but insists there is “a world of difference” between these and genuine concerns about resources. “If you lose your job because there has been an influx of labour from another country, that is a legitimate cause for concern.”

He is equally scathing about the Government’s net migration cap. “If immigration is simply seen as a numbers game, nobody will ever win that debate,” he said. “The question should be: what is it we want to achieve?

“What do we expect of those who are arriving? What is the basic deal?”

In January, Starmer visited the informal camps in Calais and Dunkirk. “What I saw in Calais was appalling,” he said. “It is an hour from London. 

“To see families and children in freezing, squalid conditions without any real hope of a positive outcome was enough to make anybody think: ‘This is not the way to solve the refugee crisis.’”

The new PM, Theresa May, built her reputation on a rigid asylum policy, but Starmer believes a strong opposition can still force change. “If you take the Syrian resettlement scheme, that started life as a scheme for victims of sexual violence,” he said. “When pushed, it became a scheme for 20,000 Syrians but not if they reached Europe. When pushed, the Government accepted the case for some unaccompanied children in Europe to come to this country. 

“Labour needs to keep pushing.”

For now, though, Labour is divided. Starmer has been tipped as a future leader before, in 2015, but declined to run because of a lack of political experience. One year and a Brexit on, he certainly has some of that under his belt. But he rules himself out of the current leadership challenge: “I am 100 per cent behind Owen.” What will he do if Jeremy Corbyn wins? “Let’s cross each bridge when we come to it.”

Starmer is clear, though, that Labour can only win an election if it comes up with a more ambitious project, an economy with purpose. And the Brexit negotiations provide an opportunity. “We have to ask ourselves,” he said. “Do we simply want a series of trade agreements, the more the merrier? Or do we want deals that achieve certain ends? It is a moment to recast the future.”