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: HANNAH MCKAY/REUTERS
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The lure of Lexit must be resisted – socialism in one country is a fantasy

Much of the left still must learn that the existing British state is the prison of their hopes.

Lexit, the left-wing case for leaving the EU, is rising from the dead. Its hopes were best captured in 1975. In the run up to the first referendum on EU membership, E P Thompson, the historian of the early English working class, published his clarion call to leave what was then called the Common Market. Doing so would see “Money toppled from power” as Britain moves “from a market to a society”.

“As British capitalism dies above and about us”, Thompson asserted, in a revealing passage worth quoting at length, “one can glimpse, as an outside chance, the possibility that we could effect here a peaceful transition – for the first time in the world – to a democratic socialist society. It would be an odd, illogical socialism, quite unacceptable to any grand theorist…  But the opportunity is there, within the logic of our past itinerary. 

"The lines of British culture still run vigorously to that point of change where our traditions and organizations cease to be defensive and become affirmative forces: the country becomes our own. To make that leap, from a market to a society, requires that our people maintain, for a little longer, their own sense of identity, and understanding of the democratic procedures available to them…”

Thompson spoke for the majority of the British political left at the time, from the then numerous Communists and Trotskyists through to the conservative-wing of the Labour Party and trade unions via the Bennites. All were hostile to sharing sovereignty with the capitalists running the rest of our continent. All believed that just as Britain was the birth-land of the industrial revolution so it could create a unique socialism across its land by going it alone.

I expected a resurgence of a similar left anti-Europeanism in last year’s referendum, and a renewed advocacy of a British road to world progressive leadership. Instead, with few exceptions, the inherently right-wing nature of Brexit bore down on advocates of left-wing politics. Owen Jones, with his family roots in that past history, flirted with Lexit. He has described how his comrades across Europe, such as those in Podemos in Spain, were appalled at the prospect and he wisely backed away.

Labour Leave was mainly business-oriented in its call for UK democracy. The decisively working class vote for Brexit was neither socialist nor social democratic. It simply and understandably rejected the all-party consensus that things should carry as hitherto. Given a chance to say what they thought of ‘the whole lot of them’, millions of Labour voters displaced their disgust with Westminster onto the EU.

The event that resuscitated the Anglo-Lexiteers was not the referendum result but this year’s UK general election. On the summer solstice, two weeks after its astounding outcome, the Lexit-Network posted its first blog entry. It’s aim to help steer a future Corbyn government. In parallel, the New Socialist website, with its strapline for “robust debate and intransigent rabble rousing”, launched a week before the election, also gives voice to Lexiteers.

Prominent among them are sirens from across the Atlantic: Joe Guinan and Thomas M. Hanna and Harvard’s Richard Tuck. They draw on the outstanding work of Danny Nicol who has shown how the EU’s constitutional structures embed neoliberalism. Their arguments – often published in the New Statesman and openDemocracy – pre-existed the referendum. But only as opinions. Now they are gathering energy with the prospect of a Corbyn-transformed Labour Party taking power.

The underlying dream of ‘socialism in one country’ may be potty. But it is essential to recognise the core issue that could give legitimacy a left-wing call for Brexit, a democratic argument anchored on the moment that changed British politics, the launch of Labour’s 2017 election manifesto.

The June 2017 general election was a political watershed. The outcome was due to combination of the 5 “M”s. The man, the movement, the manifesto, May and McDonnell. Of the five, the keystone was the manifesto, whose architect was John McDonnell. In the first place, however, it was “the man” who was crucial.  

Jeremy Corbyn was the personal embodiment of unbroken resistance to the military and financial priorities of Blairism. His personal vision, however, is mostly limited to opposition to tangible injustices and he is not a natural leader. But the outrageous presumption of his unsuitability by a failed New Labour establishment and the torrid injustice of the media contempt unleashed a surge of support. The blowback to the ruthlessness of the assault upon him generated the credibility of the call for a halt that he personified. With poetic justice, the elite aura of entitlement provoked a wave of solidarity that crystallised around Jeremy. A movement was born that took a new form suitable to the age of the platform capitalism of Google, Facebook and Amazon.

Thanks to Momentum, Corbynism became a social-media driven ‘social movement’ independent of Labour officials and MPs. The confinement of politics to parliamentary routines permits the corporate acquisition of policy. The hysteria around Momentum signalled the pain of a genuine threat to its domination.

Even so, the combination of the man and the movement was incapable of moving public opinion. Especially when it seemed that the Tories under May, with the Brexit breeze filing their sails, were now a party of ‘change’. The local election results on 4 May this year saw Labour crash to 27% support, with the Tories establishing an 11 per cent lead and making gains after seven years in office. The general election had already been called. What turned things around was Labour’s Manifesto. It was leaked shortly after the local elections (probably to ensure it was not filleted by the party’s executive) then published. It turned the tables on a Tory party whose leader had foolishly decided to present herself as the allegory of ‘stability’.

After two decades of the wealthy stealing from the rest of us, Labour set out how it proposed to take a little from the rich to help the poor. After decades of rip-off privatisation, it proposed nationalising railways and water to remove them from what are in effect a publically subsided form of taxation by profiteering monopoly suppliers. In the face of an acute rise of indebtedness among the young, it proposed free university education. A neat contrast of the winners and losers was posted by the New Statesman’s Julia Rampen.

The key to its success was that Labour’s manifesto was not an opportunist response of unfunded promises concocted in response to the surprise challenge of a general election that the government had repeatedly pledged it would not call. McDonnell told Robert Peston on the Sunday following: “We geared up last November. As soon as the Prime Minister said there would not be a snap election we thought there would be”. The result was a fully-costed, professional challenge to the outrageous inequity of the neoliberal consensus. By contrast it was Theresa May’s manifesto that was composed in secret, bounced on the Cabinet, contained amateurishly formulated commitments and had to be promptly disowned by the Prime Minister herself.

The outcome was the most dramatic upset in the history of general election campaigns and, more important, a reversal of the terms of Britain’s domestic politics, grounded on Labour’s well-judged pledges. As Jeremy Gilbert argues, “The June 2017 UK General Election was a historic turning point not just because it marked the full emergence of the Platform Era. It also marked the final end of neoliberal hegemony in Britain” – although not he emphases, neoliberalism itself.

It follows that quite exceptionally for the platform of a losing party, Labour’s manifesto has an afterlife. This poses a fundamental question with respect to Brexit. If the UK were to remain in the EU would a Labour government be allowed to carry out the nationalisations and redistribution that its manifesto promises? If the answer is ‘No’ then the democratic case against continued membership is immeasurably strengthened. Whatever the immediate costs, it would be essential to leave the trap of an EU in order even to start to build fairer and more just 21st century society. 

The Lexiteers claim exactly this. That the EU would prevent Labour from renationalising, under its rules favouring the private sector. The argument quickly becomes technical and clearly there are ways that EU membership restricts a government’s freedom of action. But it does not prevent the exercise of all self-interested national economic measures.

In July, to take the most immediate example, the still fresh President Macron nationalised shipyards about to be taken over by an Italian bidder. In the same month, in his barbaric speech in on how Europe should belong to Europeans, Hungary’s Prime Minister Orban claimed he had achieved, “clear majority national ownership in the energy sector, the banking sector and the media sector. If I had to quantify this, I would say that in recent years the Hungarian state has spent around one thousand billion forints on repurchasing ownership in strategic sectors and companies which had previously been foolishly privatised."

Both the French and Hungarian measures are right-wing forms of national takeover to which the Commission will be naturally less opposed than a Corbyn one. But the Lexiteer argument is not that there will be resistance, there will be plenty of that here in the UK as well, but that EU membership makes nationalisation illegal and therefore impossible as beyond politics. The only response to the EU, therefore, is Leave!

The tragic reality is that the UK political-media class, especially the Tories, made the EU a scapegoat for their domestic policies. They hid behind the EU to claim they were powerless to prevent unpopular policies they were in fact themselves pursuing. The most egregious example was immigration. But the UK is not powerless within the EU. Brussels would not be able to prevent Labour from implementing a social-democratic reorientation of the economy to ameliorate the gung-ho marketisation that is the legacy of Cameron and Osborne’s six disastrous years.

But what about red-bloodied socialism? Could this be allowed by the corporatist constitution of the European elite? Of course not. But, however much this might be McDonnell’s and my own dream, it is hardly on the immediate agenda. The stated priority for Labour is securing jobs, preserving the benefits of the EU’s single market and reversing the acute regional inequalities that have made the UK the most territorially unbalanced society in the whole of the EU (mapped by Tom Hazeldine in New Left Review).

Absurd as it may seem, however, the lure of Lexit is a belief that a Corbyn majority can unleash British socialism while the EU groans under the austere regimentation of the Eurozone.

For example, Guinan and Hanna writing in New Socialist assert that Labour can “seize upon the historically unique opportunity afforded by Brexit to throw the City under the bus”. Apparently the ‘opportunity’ of a Commons majority created by first-past-the-post means a Labour government can snap its fingers at the House of Lords and the monarchy not to speak of the media and the banks, to use the imperial British state to “assert public control over finance, and rebalance the UK economy”. No consideration is given the fact that the ‘opportunity’ is likely to be based on considerably less than 50 per cent support amongst the voters. Meanwhile, the country’s largest export market will, apparently, despite its ineradicable neoliberal character, sit idly by as the path to socialism is pioneered on its largest island.

Perhaps we should be grateful to brazen Lexiteers for being carried away when others, such as the Guardian’s Larry Elliot are less candid about the logic of their views.

It hardly needs the genius of a Varoufakis to grasp that the UK is made up of European nations and when it comes to the dominant economic system this will be changed only through a shared European process that defies EU corporatism, or not at all. Much of the left still must learn that the existing British state is the prison of their hopes and will never be the instrument for their delivery.

Back in 1975 when E. P. Thompson hurled his diatribe against the ‘grand theorists’ of socialism he had Tom Nairn in his sights, whose fine polemic, The Left Against Europe had recently scorched every corner of anti-European prejudice. Against the fantasy of socialism in one Britain, Nairn had argued:

“The Common Market—Europe’s newest ‘constitutional regime’—represents a new phase in the development of bourgeois society in Europe. To vote in favour of that regime ‘in a revolutionary sense alone’ does not imply surrender to or alliance with the left’s enemies. It means exactly the opposite. It signifies recognizing and meeting them as enemies, for what they are, upon the terrain of reality and the future. It implies a stronger and more direct opposition to them, because an opposition unfettered by the archaic delusions of Europe’s anciens regimes”.

Nearly 50 years later the terrain of reality and the future is still shunned by the Lexiteers as they cling to the fetters of the old regime. 

Anthony Barnett’s “The Lure of Greatness: England’s Brexit and America’s Trump” is published by Unbound

This article first appeared in the 21 September 2017 issue of the New Statesman, The revenge of the left