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.

Photo: Getty
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What Jeremy Corbyn gets right about the single market

Technically, you can be outside the EU but inside the single market. Philosophically, you're still in the EU. 

I’ve been trying to work out what bothers me about the response to Jeremy Corbyn’s interview on the Andrew Marr programme.

What bothers me about Corbyn’s interview is obvious: the use of the phrase “wholesale importation” to describe people coming from Eastern Europe to the United Kingdom makes them sound like boxes of sugar rather than people. Adding to that, by suggesting that this “importation” had “destroy[ed] conditions”, rather than laying the blame on Britain’s under-enforced and under-regulated labour market, his words were more appropriate to a politician who believes that immigrants are objects to be scapegoated, not people to be served. (Though perhaps that is appropriate for the leader of the Labour Party if recent history is any guide.)

But I’m bothered, too, by the reaction to another part of his interview, in which the Labour leader said that Britain must leave the single market as it leaves the European Union. The response to this, which is technically correct, has been to attack Corbyn as Liechtenstein, Switzerland, Norway and Iceland are members of the single market but not the European Union.

In my view, leaving the single market will make Britain poorer in the short and long term, will immediately render much of Labour’s 2017 manifesto moot and will, in the long run, be a far bigger victory for right-wing politics than any mere election. Corbyn’s view, that the benefits of freeing a British government from the rules of the single market will outweigh the costs, doesn’t seem very likely to me. So why do I feel so uneasy about the claim that you can be a member of the single market and not the European Union?

I think it’s because the difficult truth is that these countries are, de facto, in the European Union in any meaningful sense. By any estimation, the three pillars of Britain’s “Out” vote were, firstly, control over Britain’s borders, aka the end of the free movement of people, secondly, more money for the public realm aka £350m a week for the NHS, and thirdly control over Britain’s own laws. It’s hard to see how, if the United Kingdom continues to be subject to the free movement of people, continues to pay large sums towards the European Union, and continues to have its laws set elsewhere, we have “honoured the referendum result”.

None of which changes my view that leaving the single market would be a catastrophe for the United Kingdom. But retaining Britain’s single market membership starts with making the argument for single market membership, not hiding behind rhetorical tricks about whether or not single market membership was on the ballot last June, when it quite clearly was. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.