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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Leader: Trump and an age of disorder

Mr Trump’s disregard for domestic and international norms represents an unprecedented challenge to established institutions.

The US presidency has not always been held by men of distinction and honour, but Donald Trump is by some distance its least qualified occupant. The leader of the world’s sole superpower has no record of political or military service and is ignorant of foreign affairs. Throughout his campaign, he repeatedly showed himself to be a racist, a misogynist, a braggart and a narcissist.

The naive hope that Mr Trump’s victory would herald a great moderation was dispelled by his conduct during the transition. He compared his country’s intelligence services to those of Nazi Germany and repeatedly denied Russian interference in the election. He derided Nato as “obsolete” and predicted the demise of the European Union. He reaffirmed his commitment to dismantling Obamacare and to overturning Roe v Wade. He doled out jobs to white nationalists, protectionists and family members. He denounced US citizens for demonstrating against him. Asked whether he regretted any part of his vulgar campaign, he replied: “No, I won.”

Of all his predilections, Mr Trump’s affection for Vladimir Putin is perhaps the most troubling. When the 2012 Republican presidential nominee, Mitt Romney, warned that Russia was the “number one geopolitical foe” of the US, he was mocked by Barack Obama. Yet his remark proved prescient. Rather than regarding Mr Putin as a foe, however, Mr Trump fetes him as a friend. The Russian president aims to use the US president’s goodwill to secure the removal of American sanctions, recognition of Russia’s annexation of Crimea and respect for the murderous reign of the Syrian president, Bashar al-Assad. He has a worryingly high chance of success.

Whether or not Mr Trump has personal motives for his fealty (as a lurid security dossier alleges), he and Mr Putin share a political outlook. Both men desire a world in which “strongmen” are free to abuse their citizens’ human rights without fear of external rebuke. Mr Trump’s refusal to commit to Nato’s principle of collective defence provides Mr Putin with every incentive to pursue his expansionist desires. The historic achievement of peace and stability in eastern Europe is in danger.

As he seeks reconciliation with Russia, Mr Trump is simultaneously pursuing conflict with China. He broke with precedent by speaking on the telephone with the Taiwanese president, Tsai Ing-wen, and used Twitter to berate the Chinese government. Rex Tillerson, Mr Trump’s secretary of state nominee, has threatened an American blockade of the South China Sea islands.

Mr Trump’s disregard for domestic and international norms represents an unprecedented challenge to established institutions. The US constitution, with its separation of powers, was designed to restrain autocrats such as the new president. Yet, in addition to the White House, the Republicans also control Congress and two-thirds of governorships and state houses. Mr Trump’s first Supreme Court appointment will ensure a conservative judicial majority. The decline of established print titles and the growth of “fake news” weaken another source of accountability.

In these circumstances, there is a heightened responsibility on the US’s allies to challenge, rather than to indulge, Mr Trump. Angela Merkel’s warning that co-operation was conditional on his respect for liberal and democratic values was a model of the former. Michael Gove’s obsequious interview with Mr Trump was a dismal example of the latter.

Theresa May has rightly rebuked the president for his treatment of women and has toughened Britain’s stance against Russian revanchism. Yet, although the UK must maintain working relations with the US, she should not allow the prospect of a future trade deal to skew her attitude towards Mr Trump. Any agreement is years away and the president’s protectionist proclivities could yet thwart British hopes of a beneficial outcome.

The diplomatic and political conventions embodied by the “special relationship” have endured for more than seven decades. However, Mr Trump’s election may necessitate their demise. It was the belief that the UK must stand “shoulder to shoulder” with the US that led Tony Blair into the ruinous Iraq War. In this new age of disorder, Western leaders must avoid being willing accomplices to Mr Trump’s agenda. Intense scepticism, rather than sycophancy, should define their response.

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era