Category: Video Blog

Commons Sense 06 – the State of Innocence?

In July 2016, in her first address as Prime Minister, Theresa May stood on the steps of Downing Street and promised to address racial and social inequalities in Britain. “If you’re Black” she said “you’re treated more harshly by the criminal justice system than if you’re white.” She vowed to make Britain a country that “worked for everyone”.

Shortly afterwards, May extended plans, initially begun by David Cameron’s coalition government, to create a “hostile environment” for illegal immigrants to Britain. As part of that drive, some of the harshest immigration policies in British history were introduced, including the controversial “right to rent” scheme – which was blamed for a wave of discrimination in the housing sector against Black and minority ethnic groups, and whose legality is now being battled out in the Supreme Court. Such policies were also blamed for creating the Windrush scandal.

A lesser-known part of the hostile environment drive came into effect in November 2017, just a few months after Theresa May had lamented racial inequality in the justice system. The clause, which attracted almost no public or Parliamentary attention at the time, made it mandatory for criminal defendants to state their nationality in open court at the start of their case. The stated intention of this law, (breach of which could result in up to 51 weeks in prison) was to remove “foreign national offenders as quickly as possible”. The government had been successfully deporting people for years and, in any case, can only do so when someone is given a custodial sentence of a year or more. It was not clear why this additional requirement, that applied to everyone regardless of guilt or innocence, was necessary.

We had an inkling – from our experience in court and from talking to peers in the criminal justice system – that the nationality requirement was not as innocuous as it might, to some, have appeared. We set out to dive deeper and find out what impact it was having on the criminal justice system. In May 2020 we published our report The State of Innocence which found that – far from making Britain a country that “worked for everyone” – the policy was entrenching racial inequalities by undermining the perception of fairness in the justice system.  

Nationality and race may be distinct concepts but they are intrinsically bound up together. We found that 22% of defendants thought they were being asked for their race or ethnicity rather than their nationality. Almost 80% of the lawyers surveyed had their client provide the Court with their ethnicity and/or race instead of their nationality and almost 60% of those practitioners said this happened at least once a week.

It is impossible to know whether answers given by defendants had an impact on the outcome of their case – i.e. whether there was actual discrimination as a result of the policy – but it is clear that it introduced an element of doubt into the fairness of proceedings, particularly for those from Black and minority ethnic backgrounds. Our client Ravina (not her real name) revealed to us that “the question made me feel uncomfortable. Growing up in the UK I have faced a lot of discrimination in my life and that question just felt like a continuation of that.” Trust in the justice system is key and the nationality requirement eroded that trust further.

Thankfully, our research reached decision makers on the Criminal Procedure Rules. In August 2020, courts were advised to stop asking the nationality question and in February 20201 the Rules were finally changed to abolish the question being asked at the beginning of every case.

This is a good result, however we are only too aware of how much further the British justice system has to go. Few of the Lammy Report recommendations have been implemented and the situation has, according to Lammy, in fact deteriorated.

There is still too much fear of ‘immigrants’ and ‘foreigners’, we need to fight even harder to call out policies that impact on the fairness of the justice system towards Black and minority ethnic groups.

Read More

Commons Sense 05 – after ITV’s Quiz, what is next for Charles & Diana Ingram?

In 2001 Major Charles Ingram, a contestant on ‘Who Wants to be a Millionaire?’, was said to have cheated his way to the top prize of £1m by relying on coughs from an accomplice in the audience indicating the correct answers. This alleged accomplice was Tecwen Whittock. Charles’ wife Diana, sitting in the audience, was supposedly also in on the ruse. The trio were convicted at Southwark Crown Court in 2003.

For the last 17 years, Charles and Diana have steadfastly maintained their innocence. Rhona Friedman of Commons is representing the couple in their upcoming appeal (read more here – you can also watch a dramatized version of events in ITV’s Quiz). Here we explain what the legal process looks like for the Ingrams.

What crime were the Ingram’s supposed to have committed?

Many people do not realise that cheating on a gameshow can be a criminal offence. The specific crime that Charles, Diana and Tecwen were convicted of is “procuring the execution of a valuable security by deception”. 

  • A valuable security can be a document which transfers one person’s right in property to another – e.g. a cheque for a million pounds. 

  • A cheque is executed when the property owner – say, the show’s host Chris Tarrant – signs it. Charles and the others are said to have “procured” the signing of the cheque because it was alleged that they did something which caused Chris to sign it, like giving 15 correct answers.

  • Finally, they were said to have achieved all of this by deception – in this case, it was the apparent cheating which was the false representation. If, whilst slowly working his way through the answers, talking Chris through his thought process, Charles was really just buying time whilst waiting for Tecwen to cough to indicate a correct answer, then he was falsely representing to the host that he was playing by the game’s rules. 


How can the Ingram’s get their conviction overturned? 

Charles and Diana were convicted by a jury sitting in the Crown Court. That means only the Court of Appeal can overturn their conviction. In 2004 Charles unsuccessfully tried to appeal. Diana has so far not applied for permission to appeal and so we are preparing Grounds of Appeal for her alone at present. This will be based on advances in scientific evidence which were not available in 2003, the year of the original trial.  

Diana needs to apply to the Court of Appeal for permission to appeal. This is a written application, in which the defendant (now called the appellant) attempts to convince a single Court of Appeal judge that it is “reasonably arguable” that their appeal could succeed. 

If the single judge gives permission then at a later date the defendant’s arguments are heard, in person, before the full court of three Appeal judges  These judges decide whether the conviction should be overturned or not. 

If the single judge does not think that the written application has revealed any reasonable chance of success, the appellant can still present their case to the full court, by “renewing” their application for permission. Not everyone does this, however: partly because legal aid (public funding for lawyers) won’t automatically be granted, and partly because if the appellant is in prison it can sometimes result in extra prison time if the Court of Appeal think an application with no merit has been continued. 

An appellant only gets one shot at going directly to the Court of Appeal. If Charles wanted to appeal again he would need to go through a separate legal process, via the Criminal Cases Review Commission. However, 

Because of the interconnected nature of the evidence in this case if Diana gets leave to appeal the Court should then go on to reconsider the safety of the conviction of Charles and Tecwen Whittock at the same time. 

Sign up here to receive further updates on the Ingrams’ case:

Read More

Commons Sense 04 – ‘under the radar’ injustices

An allegation of fare evasion is one of the most common interactions many people have with the criminal justice system. With the advent of technologies that allow people to ‘tap in’ with debit or credit cards, as opposed to buying a paper ticket or using a pre-paid card (such as the Oyster card in London) – it has probably never been easier, on certain modes of transport, to buy a ticket to travel.

Alongside this, the government has shifted the process for people who are accused of fare evasion so that it has never been easier for them to enter Guilty pleas online and in some areas of the country, via a new scheme called the Single Justice Procedure. The Single Justice Procedure is where a single magistrate deals with adult summary-only, non-imprisonable offences for “guilty” pleas and “proof in absence” cases. The magistrate sits with a legal advisor outside of a court room without the defendant or prosecutor being present, for cases such as speeding, vehicle excise duty and fare evasion. According to HM Courts and Tribunals Service, these cases account for about 850,000 of the total cases per annum.

There are, however, a multitude of circumstances in which someone may not have had a valid ticket for travel on a particular occasion but the wider reasons for this may mean that it is not in the public interest to prosecute them for a criminal offence. It is very difficult for people to know, without legal advice, whether their individual circumstances mean that such issues should be raised on their behalf instead of them being criminalised. Unfortunately, as things stand, it is unlikely to be viewed as being ‘in the interests of justice’ for such people to be granted Legal Aid, in order to support them to receive that advice.

In addition, many fare evasion cases are not brought by the state prosecutor, the Crown Prosecution Service, but by private prosecutors such as rail companies or transport bodies like Transport for London. These private prosecutors often seek their legal costs from the individual they are prosecuting. This can mean £225.00 legal fees being claimed from the accused person for a failure to purchase a £1.50 bus ticket.

In the drive for efficiency, the triple combo of the Single Justice Procedure, a lack of legal aid for individuals, and high legal fees being claimed by private prosecutors have meant that people are being penalised disproportionately and unnecessarily. These ‘under the radar’ injustices do not attract a lot of scrutiny or attention given the low level nature of the offences involved. However, in our view, the criminal justice system itself risks being undermined in the eyes of the public where people feel they are being are criminalised with a lack of substantial and significant scrutiny.

Read More

Commons Sense 03 – How to help your vulnerable service users in the criminal justice system

Our first community criminal justice training event took place on 22nd November, and it turned out to be a thought provoking and inspiring morning. Members of a diverse range of organisations – from youth work foundations, to disability rights organisations and homelessness charities – came to Lambeth to find out about how the criminal justice system works in relation to their vulnerable service users, and to share their own experiences and objectives. 

Over tea, coffee and pastries, we heard from three speakers with special experience in the field: first on was our own co-founding solicitor Rhona Friedman, who gave an account of the state of criminal justice today. We then heard from Dr Penny Cooper, who gave expert insight into how intermediaries can help vulnerable defendants engage with the investigation and trial process. Finally, barrister Zeenat Islam gave a rousing call to arms on giving young people the knowledge and support they need to face the youth justice system with confidence – only through understanding their rights, she argued, can young people begin to feel empowered enough to engage properly with the process.

Inspiring the confidence to engage was also a key factor for the attendees themselves.  A clear take-away point from the event was that one of the most powerful ways to help vulnerable people is for service providers to engage with the police, prosecutors and courts. Whether that be attending police interviews as the appropriate adult, providing written character witness statements or simply attending court to provide support on the day of trial.

Discussions between attendees after the presentations proved to be just as valuable as the training itself. Sharing stories, contacts and strategies is essential if we are to build the networks and coalitions necessary to help bridge the gap between ‘the law’ and the community.

With future events and projects like this one, the work to forge closer relationships, and share vital knowledge, will continue. We envisage that creating a criminal justice hub of useful contacts, easily accessible legal representation and increased resources for understanding the system, will help vulnerable people – indeed everyone – get the justice that they are entitled to.

You can access our Short Guide to the Criminal Process, listen again to the speakers’ talks, and download the slides from Zeenat’s presentation here:

Read More

Commons Sense 02 – Creating a Community Criminal Justice Hub

On 29 January 1993, the shadow home secretary stated “we should be tough on crime and tough on the underlying causes of crime.” This became one of the most famous political phrases of the 1990s marking the beginning of a new era of political triangulation or the Third Way as Tony Blair advocated “moving the debate beyond the choice between personal and social responsibility.”

25 years on, a full quarter of a century, and it seems criminal justice has been going backwards, not forwards. For defence practitioners and defendants, the hope and expectation of a state, led by politicians, achieving real progress soon is seemingly slim.

So we’re exploring how the potential of collaboration between civil society organisations and criminal lawyers offers some semblance of an opportunity to make criminal justice, including the rehabilitation of offenders, much better.

Commons is based in Lambeth and we are engaging South London community groups and civil society to find out how our combined services and skills can be put to more use to better help those in need. 

Lambeth is one of the most densely populated parts of the country, with one of the most ethnically diverse populations in the country. Recent figures estimate that 43% of the population is BAME, and 38% of the population was born outside the UK. Lambeth’s demographic is skewed towards the young with around 45% of the population under 30 years of age. Whilst 37% of people in Lambeth live in the highest category areas of deprivation in the UK. In terms of mental health, 37,600 Lambeth residents (out of a total population of 318,000) have a common mental disorder, while 1.26% of people are registered with their GP as having a severe mental illness. First time entrants to the criminal justice system are on the increase, while re-offending rates among young people remain high, as does gang-related violence.

These factors all contribute to the challenges that Commons is dedicated to addressing. Despite battles with rising rents and rates and a difficult economic environment, Lambeth is an emerging hotbed of innovative thinkers and leaders in community engagement. As an example of this, we are working in partnership with a local mentorship scheme to assist a 19 year old Lambeth resident, who is overcoming an extremely difficult childhood and adolescence, to link him to the skills, education and employment opportunities he will need after his case. 

We believe the role of the collective or community, as opposed to just individuals or society, has an emerging potential for progress for those involved in the criminal justice system.

Read More

Commons Sense 01 – Disclosure

For our first Commons Sense we thought we would shine our (rechargeable) battery operated torch of truth on an under reported, little discussed issue in the criminal justice system; disclosure.

Alright, we have come a little late to this party, too late even to scuttle in and out leaving our unwanted Lambrusco of opinion on the side table of whataboutery. It seems everyone from Jerry (Jeremy) Hayes to Jeremy (Jerry) Wright has had their say. 

As a public service we thought we would helpfully distil what everyone (we agree with) has been saying about failures in disclosure: 

– they have been happening for years 

– they don’t just happen in sex cases 

– they don’t just happen in London but in every criminal justice area in every type of case every day 

FWIW we don’t agree with the Director of Public Prosecution view that there is no one in prison as a result of a disclosure failure because that’s statistically really, really improbable.

Why is this happening? A combination of mindset, training, cut backs, design of the legislation and growth in digital evidence. Yes it is all of those but we also think underpinning it all is: 

a) a retreat in attachment to fair trial rights in the face of instrumentalism (i.e. what’s in it for me if I disclose this evidence?),
b) a zero sum mentality ( If I disclose you may win and I may lose ), and
c) a technocratic fetish for the costs spreadsheet (doing it properly costs too much money and you know austerity…) 

If you go on Twitter, you can hear from police officers who rail against the hurdles put in their way to stop them doing the disclosure job correctly. The vast majority of Crown Prosecution Service lawyers are committed to their role as officers of the court with all the positive obligations that entails. 

But there is also something about the way organisations, charged with the most coercive powers of the state, operate now that facilitates a low cost, low morality decision-making process. This could be straight from the I, Daniel Blake landscape of withheld benefit payments for the destitute, fitness to work tests for the dying and the hostile, cut and paste send – them – back – to – where – they – came – from asylum approach of the Home Office.

Commons Sense says redefine police and prosecutorial roles to incorporate an ethical attachment to fairness and an understanding of the havoc the state can wreak when its powers are misused. Reinforce this with ongoing training. Discipline those who fall short, and prosecute failures if need be.  

You can call this applying human rights or in a post-Brexit world, you can sell it as a reinvigorated sense of fair play, a new commitment to traditional British values, if that’s your thing. Whatever you call it, a new ethos of fairness can only work in a criminal justice system with less slashing, outsourcing and suppressing, and more investment, attention and transparency. 

We will return to these themes in future Commons Sense tackling the issues of the day which may include but are not limited to
•    The inexorable v The inflexible: the dying days of patriarchy and flexible court hours  

•    Problem: increasing number of wrongful convictions. Solution: make appeals harder

•    Problem: decreasing number of out of court disposals.  Solution: make getting legal aid harder

•    Designing out the Defence: Robo tech v the rule of law aka dropping the shiny bauble of tech from a great height into the crumbling nest of justice crushing the dull looking but life affirming eggs stamped ‘Article 6: expiry date 2018’ aka  Fair Trial Rights go splat

•    “But that’s five times more than my monthly mortgage payment! ”:  Are Crown Court legal aid contributions legalised extortion ?

•    Performative punishment the wig and the dock: If it ain’t woke don’t fix it

•    “Surely your client knows whether they did it? “aka Managing out the burden of proof

•    Hey HM Courts Service! Inception output? That’s a thing?

And most importantly 
•    Blackstones v Archbold:  Who cares?

Read More