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Overheard in open court today. D produced on video link before Crown Court Judge. Unrepresented because no barrister was prepared to accept the case on the new fee scheme.

Defendant identified over the link [hereafter X / defendant]

Defendant: Your Honour, I’d like to put a plea in to two of the charges.

Judge: Your solicitor has discussed the charges with you?

D: Yeah.

J: And he has also discussed what sort of pleas you should enter?

D: Yeah, yeah. [Pause] Can I speak to my solicitor? Is there a plea deal I can get now?

J: Dealing with this when you’ve got no paperwork is quite difficult?

D: I want to plead guilty, I did [commit offence 1], but I had nothing to do with [offence 2].. (Overtalking, Judge and defendant) Do you get me, your Honour?

J: Don’t say any more, X. If the charges are put to you, would you be in a position to say if you are Guilty or Not Guilty?

D: I’d say Guilty to two of the charges but that’s it. Not the first charge of which they’ve got no evidence. I’d do a plea bargain. But not [offence 2]. They’ve got no CCTV or anything.

J: I’ll ask for the charges to be put to you. If you don’t understand, will you say so. Listen very carefully.

Clerk: X, on count 1, between x-date and y-date, [committed offence 1], are you Guilty or Not Guilty?

D: Are you saying between those dates? I did it on one day only (Exasperated) Guilty, guilty!

Judge: I’m going to stop this process now.

D (Gabbling):  I’m not a prolific offender.

J: Don’t say any more to me. (To prosecutor) I’m going to adjourn this for seven days so that X can be produced at court. X’s credit is preserved.

D (To prison officer sitting next to him, off camera): What does that mean?

J: (To prosecutor) I cannot refer X to the evidence. It would be quite unfair to X to proceed, as it were, half-cock. Out of fairness, the case will be adjourned for seven days. (To prosecutor) Can you point me to the evidence for [offence 2]?

Prosecutor: X won’t be able to see it see, but two witnesses say he [committed offence 2] (gives names, also page numbers where their statement appear on the court digital case system, “DCS”).

D: Hey! Your Honour ..

J: (To X) This is between me and the prosecutor. Nothing is going to happen to your prejudice, just listen. (To prosecutor) can you point me to the evidence? (Pause. Reading.) The police summary says he did it, but neither witness reports seeing it.

Prosecutor: Yes. The statements were only uploaded to the system today. They are different than the summary.

J: Over the next seven days, can someone address their mind to this count on the indictment.

D: Can I ask you a question, your Honour? I’m willing to come to a plea deal. They’re trying to say I [committed offence 2] and I didn’t. I’m going to go Not Guilty to everything.

J: I will adjourn the case for seven days so that you can be produced at court, not over the videolink.

D: (To prison officer, off camera) Can you explain it to me now what is happening. (To Judge) Can I see my solicitor for bail, then.

J: There will be a hearing next week, you will come, I trust you will be able to speak to your solicitor between now and then.

D: Alright then.

 

Case adjourned. Link turned off.

 

No barrister likes to sit by and watch this sort of thing happen. But barristers cannot accept a new fee structure that is fundamentally unfair.

 

 

‘Gaslighting’: a disturbing phenomenon that many people still have never even heard of

“Like other types of abuse, gaslighting can happen in all sorts of relationships, including personal, romantic, and professional … [Gaslighting] is like someone saying the sky is green over and over again, and at first you’ll be like ‘no, no’ … Then over time the person starts to manipulate you into saying ‘I guess I can’t really see what color the sky is.’ It’s just this sense of unreality.”

From an excellent article back in June 2017 in Time magazine. Read it here.

Nowadays a specific law under the Serious Crime Act 2015 aims to combat behaviour that often begins at this simpler end of gas lighting but which very quickly becomes controlling and coercive. Make no mistake, this can be a severe mental form of domestic abuse which is sadly so effective often because sufferers are slow to spot the signs in themselves and, indeed, sometimes even blame themselves – this is in the very nature of the criminal offending against them.

Gaslighting hit the news a couple of years ago when it was a main storyline in the Archers. Read a good feature on it from the Guardian here.

The website of the Crown Prosecution Service has a good section on it here. I quote from the CPS website below, to give you an idea about the law:

An offence is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive; and
  • At time of the behaviour, A and B are personally connected; and
  • The behaviour has a serious effect on B; and
  • A knows or ought to know that the behaviour will have a serious effect on B.

A and B are ‘personally connected’ if:

  • they are in an intimate personal relationship; or
  • they live together and are either members of the same family; or
  • they live together have previously been in an intimate personal relationship with each other.

There are two ways in which it can be proved that A’s behaviour has a ‘serious effect’ on B:

  • If it causes B to fear, on at least two occasions, that violence will be used against them – s.76 (4)(a); or
  • If it causes B serious alarm or distress which has a substantial adverse effect on their day-to-day activities – s.76 (4) (b).

For the purposes of this offence, behaviour must be engaged in ‘repeatedly’ or ‘continuously’. Another, separate, element of the offence is that it must have a ‘serious effect’ on someone and one way of proving this is that it causes someone to fear, on at least two occasions, that violence will be used against them. There is no specific requirement in the Act that the activity should be of the same nature. The prosecution should be able to show that there was intent to control or coerce someone.

The CPS have done an excellent job of summarising what is quite an extensive and detailed criminal offence.

The Government Tried To Conceal This Testimony From Judges On Defendants With No Lawyer

Excellent reporting from BuzzFeed’s @EmilyDugan.

“The MoJ repeatedly insisted, including in two on-the-record statements, that the six pages were the report in its entirety, despite it being labelled a summary and containing no direct testimony or data. After BuzzFeed News expressed scepticism, an MoJ press officer said that any edits from the original draft were minor corrections to spelling or grammar. They also insisted that there was no transcript of the judges’ testimony. But now the original report has been leaked in full to BuzzFeed News. Dated February 2016 and titled “Unrepresented Defendants: Perceived effects on the Crown Court in England and Wales and indicative volumes in magistrates’ courts” it is marked “Internal Ministry of Justice Report Do not quote publicly”

Are you shocked? You should be.

Read the full report on BuzzFeed News here.

Rape Cases and Juries: The Evidence Base Suggests That Jolyon Maugham Is Right To Be Concerned

In a recent New Statesman article Jolyon Maugham QC describes it as an ‘epidemic’ that only 1.1 to 1.8% of rape victims see their rapist convicted [see FN1, below]. He says that a criminal justice system that produces these results is failing and he questions whether jury trial serves the public interest in rape cases. In reply, Francis Fitzgibbon QC argues that the research does not suggest there is anything “peculiar about rape trials that sets them apart from others” and he resists the temptation to change the rules of rape trials [see FN2]. Neither article considers recent groundbreaking research in the field of psychology on these very issues which suggests very strongly that Jolyan Maugham is right to be concerned.

In the most extensive project to date, Dr Dominic Willmott [see FN3] of Huddersfield University used modern psychological methods to examine the question of rape cases and juror misconceptions and prejudices in realistic mock ‘acquaintance rape’ trials.

In the absence of the lead researcher, Dr Dominic Willmott, who is presently on an overseas research trip, this is my attempt to introduce the research findings into the debate.

Research before the Huddersfield Project

Previously, the role of inherent bias emerging from individual juror characteristics and psychological constructs themselves was less well documented. Such inherent biases included in the main the extent to which individuals held inaccurate and negative assumptions surrounding the crime of rape widely known as ‘rape myth acceptance’.

Finkel (1995) found that there were two types of “law” when it comes to jury deliberations: first there is the “black letter law” enacted by legislators; secondly there is the “law” that “reflects what ordinary people think is just and fair. It is embedded in the intuitive notions jurors bring with them .. when judging both a defendant and the law. It is what ordinary people think the law ought to be”.

Groscrup and Tallon (2006) summarise it in this way: “the two concepts come into conflict when jurors are asked to base their decisions on black letter law as against what they themselves understand as fair and just”.

Further, Vidmar (1997; 2003) characterized the concept of “generic prejudice” as existing where “the nature of the crime or the type of parties involved cause the juror to classify the case as having certain characteristics, thereby invoking stereotyped prejudices about anydefendant accused of the crime”; that it involves “the transfer of pre-existing prejudicial attitudes, beliefs, or stereotypes about categories of persons, entities or events to the trial setting in a legally appropriate manner”.

Hitherto there had been significantly less empirical work on the issue of generic prejudice of jurors in a criminal trial. That is a gap that the Huddersfield research aimed to fill.

The Huddersfield Project in 2017

The research aim was to investigate whether there was evidence of a relationship between psychological traits, juror attitudes and individual verdict decisions within rape trials, specifically in an ‘acquaintance rape’ case.

The Project did something new. Selecting people at random from the electoral roll, researchers sent out mock summonses to members of the public inviting them to come and sit on a jury and hear a criminal trial. Nine mock juries were assembled, and nine verdicts ultimately taken. The jurors were told that the trial was based on a real case. The trial was conducted, and presided over, by criminal barristers of many years’ standing. It proceeded exactly as a criminal trial would, with exhibits produced appropriately.

I declare straightaway that I had a role in the research. I am not a psychologist, I’m a criminal barrister mainly prosecuting and defending rape cases. My role was to convert a factual scenario into a mini-trial, creating realistic procedure and ensuring compliance with the law and with the rules of evidence, in particular with regard to the content of the summing up. The application of psychological profiling to mock-jurors, and the interpretation of the resulting data, was way outside my remit: that, I leave to the experts.

The findings in summary

The interesting part comes in the advanced analytical scrutiny of the decision-making process. There was substantial evidence found of high levels of rape bias, strongly suggesting that preconceived prejudices surrounding the issue of rape tend to have a significantly greater influence on the fairness of the trial than had previously been thought.

The research project found that among all those individuals with the identified existing biases, 13% of them changed their mind after deliberation. Deliberation, being shown to change the minds of little more than one in 10 jurors, makes the impact of these preconceptions especially significant. While it is difficult to draw a direct link between the findings of this research and miscarriages of justice when it comes to rape cases, these results would suggest that as a result of a biased panel of jurors, there is a greater risk of a verdict being arrived at that is not in accordance with the evidence.

The research in a bit more detail

The research deployed advanced methods of analysis including:

  • Pre-trial psychosocial assessment of every juror
  • Pre-deliberation verdict decision of every juror
  • Group deliberation
  • Post-deliberation individual verdict decisions of jurors

The pre-trial psychosocial assessments of every juror consisted of a demographics questionnaire and of questions designed to elicit individual juror scores on the following psychological traits considered important:

  • Affective Responsiveness: the ability to respond to emotions and the feelings of others, similar in nature to the concept of affective empathy (Boduszek, Debowska, Dhingra, & DeLisi, 2016);
  • Cognitive Responsiveness: differing from the concept of affective empathy, cognitive responsiveness pertains to one’s ability to cognitively understand the emotional state of others, while not necessarily feeling those emotions personally (Boduszek, Debowska, & Willmott, In Press);
  • Egocentricity: the failure to pay any or, any sufficient, regard for the interests, beliefs, or attitudes others with focus directed largely onto one’s own beliefs and self-interests (Boduszek et al, 2016);
  • Interpersonal Manipulation: reflective of the individual’s expression of grandiosity, superficial charm and intentional deceptiveness in their day-to-day interpersonal interactions with others. A personality trait involving such tendencies to manipulate others appears particularly important within the content of jury deliberations (Willmott, Boduszek, & Booth, 2017);
  • Place on theAcceptance of Modern Myths About Sexual Aggression Scale(AMMSA Scale): (Greger et al (2007))eg “If a woman invites a man to her home for a cup of coffee after a night out this means that she wants to have sex”

Measures completed post-trial included assessments of:

  • The individual juror’s pre-deliberation verdict decision followed by completing the Juror Decision Scale (Willmott et al, 2018)
  • A post-deliberation assessment of collective and individual juror verdict decisions, again asking jurors to complete the Juror Decision Scale which seeks to assess the extent to which defendant and complainant accounts are deemed believable (Willmott et al, 2018)

 

Results – psychopathic traits of jurors

Evidence was found of three distinct psychological trait profiles whereby those who scored high in egocentricity and interpersonal manipulation, but low in both affective and cognitive responsiveness/empathy, were significantly more likely than low and moderate scoring jurors (on such traits) to return a not guilty verdict within the sample tested. Importantly the result was consistent both pre- and post-deliberation.

To reiterate, analysis revealed jurors with high scores in particular psychological traits were significantly more likely to return a Not Guilty verdict than jurors who scored low in psychopathic traits, scientific evidence in itself of how juror characteristics appear to predispose jurors towards particular verdict outcomes at trial.

Crucially however, and pertinent to current on-going debate in the UK, rape myths (as measured using the established and scientifically valid AMMSA scale) were directly indicative of verdict outcomes. What does this mean? Well, the results suggest that those jurors high in rape myth acceptance (or, alternatively put, those who hold the greater number of inaccurate assumptions surrounding what occurs in a typical rape) are significantly more likely to :

The research showed clear evidence of a relationship between psychological constructs and verdict outcome. It asks some very difficult questions about how impartial jurors really are in rape cases.

Footnotes

[FN1] Quoting 2013 research from the Home Office

[FN2] Pointing to research by Professor Cheryl Thomas, retained by the Ministry Justice, who “spoke to hundreds of jurors about their deliberations”. (Professor Thomas, D.Phil, Politics with Law, 1989; M.Phil, Politics, 1984; BA, Political Science, 1980; Professor of Judicial Studies, UCL.)

[FN3] The full research report can be accessed via email request to Dr Dominic Willmott at d.willmott@hud.ac.uk

This is the real GDPR nightmare for sole traders and small businesses

Don’t worry about the Russians hacking you. Whilst no one can rule that out, it’s maybe low down the list of probabilities.

The Information Commissioner’s Office is armed with the power to inflict whopping fines if you don’t take sensible steps to protect the data that you hold about others.

Far more serious than a determined hack from Russia would be the risk from small-time chancers who scout round the internet and spot and exploit easy loopholes. The Times covers the issue well today – read more here: “Off-the-shelf hacking kits let amateurs target schools”.

http://www.thetimes.co.uk/article/827cc1a8-516f-11e8-9795-08ef69e784e8

It works like this:

1. You think, ‘this GDPR thing is just too much’,

2 You ignore it or don’t give it sufficient thought,

3. You take the chance that you will not be caught up in a hacker’s sweep,

4. Maybe you’re right,

5. Maybe you’re not …. (how much would you pay a blackmailer for them not to publish your client’s confidential data all over the internet?)

6. Either way, what if the ICO says to you, ‘Show us your data protection review .. show us what steps you have taken in response to GDPR?’

7. Either way, what if you just lose stuff? No hacking needed.

Don’t put off tackling the GDPR until you’re in trouble. Take some time now to plan your compliance. It’s not hard. It’s not time-consuming. It could save you massive headaches later, and very possibly it will avoid a fine that could finish you off.

Judges to get counselling to help them deal with sex crime cases

‘Judges are to get mental health help to deal with sex crime cases, the new Lord Chief Justice has announced, as he said we must recognise that “judges are human” too. Sir Ian Burnett, who took on the role in October, said a new scheme will offer professional help to judges who deal with the most traumatic issues in their courtrooms.’

Read the story in the Telegraph here.