The Race to the Bottom
Decried as a form of “gutter politics”, Labour’s attack ad on Rishi Sunak didn’t go down well on Twitter – with 22 million views but just a little over 3,000 likes, and countless negative comments. Some people have defended it on the grounds that the media attention will have ensured it cut through to the people it is actually aimed at. Which is true – but makes clear that the people it is aimed at are deemed by the Labour Party to be deeply stupid. Though most left-leaning social media critics seemed more concerned with the ‘racial connotations’ of the ad than anything else – identity politics now being the only prism through which these people can view anything at all – the implied message that Rishi Sunak thinks child sexual abuse perpetrators should not face prison is obviously risible and literally nobody is going to see that advert and think it true.
The dirtiness of the attack ad is not the biggest problem, however. Yet whilst several legal professionals have provided critique from a law-focused perspective, amongst politicians it has seemingly been left to former Conservative MP Rory Stewart alone to make the point: “Is someone going to point out that this is about laws, sentencing guidelines and judicial practices? That were not and would not be different under Labour? Or talk about how ever tougher sentences have overcrowded prisons?”
We have an independent judiciary. Judges impose sentences based on the sentencing guidelines and the facts of a case. Not governments. It’s worth noting that Starmer himself, as Director of Public Prosecutions, sat on the Sentencing Council responsible for setting the guidelines until 2013. The 4,500 figure covers the period 2010-2022 and Rishi Sunak wasn’t even an MP until 2015. So the message really is ridiculous when you look at it more closely. Unless Labour is proposing the introduction of mandatory minimum sentences – which have their own issues, or an end to suspended sentences and judicial discretion in sentencing more generally, then the point is also extremely dishonest.
Sexual assault of a child under the age of 16 is not actually a specific offence, so it is unclear what exactly is being referred to. But it is certainly quite wide in what it would cover – in terms of the specific act (touching a 15-year-old’s thigh over clothing isn’t exactly the same thing as forcing them to touch bare genitals, for example), as well as the levels of harm and culpability inherent in any particular offence – which is why there are sentencing guidelines to begin with. Covering 12 years, the 4,500 figure is also relatively small when placed in context to the overall number of convictions – most people convicted of some sort of sexual offence against a child will indeed go to prison. Undoubtedly there will be some who’ve been very lucky not to get a custodial sentence – but if Labour believes that 4,500 adults have got off scot-free, they should point to some examples.
As The Secret Barrister pointed out in a tweet, the figure is likely to be substantially accounted for by adults convicted of offences that they committed as children. Also included will be defendants for whom a judge has reasoned that custody would be entirely inappropriate or counterproductive – such as somebody with autism where say six months in prison would do more harm than good or a pensioner convicted of a historic offence who has serious health conditions which could not be well managed in a custodial setting. Also included in the figure will be people who had effectively already served any custodial sentence that could have been handed down whilst on remand.
If the aim of sentencing is as much about rehabilitation and the prevention of crime as it is to do with punishment, then a suspended sentence or lengthy community order with rehabilitative work can be much more effective for some offences than simply locking somebody up for a year or so to do nothing – the waiting lists for offender courses in prison often about as long as the average wait to get to trial. Beyond that, sexual harm prevention orders (on top of the register) can also be extremely strict. Sexual offences, particularly against children, are deeply emotive – which is why Labour chose to run with it – but those 4,500 adults (whose cases we know nothing about) have only been “let off” if prison is seen to be the only acceptable punishment for any offence regardless of facts or circumstance – and if ‘punishment’ is seen to be the only thing that matters when it comes to justice.
Keir Starmer, who with his legal background obviously does understand the complexities of sentencing, has said he ‘stands by every word’ of the attack ad. The Labour Party itself has doubled down, and tripled down, with further ads accusing Rishi Sunak of believing that possession of a gun should not warrant a prison sentence and that thieves should go unpunished. It’s pretty dire stuff – and we’ve still got at least a year to go until an election. I’m not keen but am certainly curious to see how they can go lower.
Stop Me If You Think You’ve Heard This One Before
As part of Labour’s big “tough on crime” blitz, they’ve also just announced plans to tackle anti-social behaviour with new ‘Respect Orders’, which sound an awful lot like the old ASBOs. Naturally, no further justice funding proposals were announced alongside this. And Angela Raynor became the latest politician wheeled out to make the “Rape is effectively decriminalised” statement on behalf of the party – a statement that is as counterproductive as it is misleading. And not even very sincerely motivated when it comes from the same people who are quite comfortable allowing male rapists to be held in female prisons as long as they claim the ‘right’ pronouns.
I’ve written about the absurdity of the Labour/Tory tough-on-crime arms race before. It’s nothing more than populist posturing that makes nobody safer. Prison terms for almost all offences have increased over the past decade and we have the highest per capita prison population in Western Europe – the problems with our justice system are not caused by not being ‘tough’ enough. Yet Labour shows little interest in properly funding the justice system or having sensible, honest discussions about its workings and purpose. Nor have they shown much interest in addressing the collapse in funding for social services, when doing so would make it more likely that children at risk of sexual abuse would be protected – you’d think they would do so if the substance of their attack ad was something they had genuinely given much thought to. Based on Emily Thornberry’s quite frankly embarrassing interview on Radio 4’s Today program, it’s more than evident that they haven’t.
When Steve Reed says, “Labour is the party of law and order and will have zero tolerance for those who tolerate crime”, it would be laughable if it wasn’t so serious. I mean what the fuck does that even mean?
The Tories have also been making their own tough-sounding noises on issues they’ve suddenly identified as important in recent weeks. After a handful of recent high-profile murder cases in which the defendant has refused to attend court for sentencing after being convicted, the government has expressed their intent to force prisoners to do so going forward (Labour has done likewise). How exactly they would do this isn’t clear. Presumably, they’d have them physically dragged to court? And their eyes held open to force them to watch too? It’s cowardly not to attend, to face the families of the victims. But ultimately, it’s a ‘problem’ with no solution.
The Secret Barrister has recently written about this – with more insight than I can provide. But in summary, the prospect of extra time added to sentences that are already several decades long is unlikely to make any difference to a defendant’s willingness to attend court for sentencing. And physically forcing them to do so against their will not only puts the staff responsible for this at risk of harm but makes it more likely that they would disrupt the court proceedings, causing even more upset for the families and loved ones in attendance. The reality is that you can’t make somebody feel guilt, remorse, or a sense of duty to do the right thing. Pretending we can deliver that won’t ensure any more ‘justice’ than that already meted out by the verdict and the sentence itself; it’ll provide only public spectacle.
Yet that’s still not the strangest of apparent priorities for the Government. Against the advice of their own expert Advisory Council, Nitrous Oxide (laughing gas) is now going to be classified under the Misuse of Drugs Act – primarily because of concerns about littering. Though there have been a small number of reports of serious health problems caused by abuse of a drug that generally has very trivial side effects, the government hasn’t even attempted to justify its decision on that basis. So instead of a more enlightened and evidence-based approach to recreational drug use, we’re getting more of the same pointless criminalisation – even though nobody appeared to have been asking for it. And we’ll get that from Labour too.
Dominic Raab has also announced new powers that will allow him to override the Parole Board and block the release of ‘the most dangerous’ prisoners (or rather, most high profile prisoners) on the grounds of ‘public safety’ (or rather, political expediency). Non-retroactivity and the independence of the judicial process are core principles of a functioning justice system. This undermines both. Demonstrating just how little this has to do with any legitimately identified problem (the parole board, though not infallible, is already extremely cautious) was Dominic Raab’s appearance on Good Morning Britain last week, in which the only specific case cited in the discussion was one that had nothing to do with the parole system.
Raab had already introduced changes to the criteria for transfer to open conditions last year, again allowing himself the power to ignore recommendations from relevant stakeholders, including the parole board, and block proposed transfers of prisoners from closed conditions – something that has managed to not even do the thing it claims to be trying to achieve. The Head of the Parole Board has recently criticised the change as making the public less safe – as many prisoners are not being tested with controlled access to employment and local communities before release. But that’s what you get when justice policy is treated as little more than a game of ‘who can sound the toughest’.
The Alternative?
Not to be entirely upstaged on vacuous pronouncements, my own party, the Liberal Democrats, has just announced, a “burglary response guarantee so that all burglaries will be attended and properly investigated”. Well-meaning, of course – but about as meaningful as declaring ‘We want world peace’. It is a ‘guarantee’ distinctly lacking in detail – and it’s not as if the government thinks it’s okay not to investigate burglaries on principle. That’s not to come across as completely disparaging, it’s an important issue and we’ve recognised the need for extra police resources, and the mention of “A New National Online Crime Agency”, well I guess that’s exciting – but do I think any of our MPs could, if pressed, articulate the finer details for more than about 30 seconds? No, I do not.
It’s difficult to take anything we might say on criminal justice seriously when just last year, the barrister’s strike managed to pass us by entirely. As far as I’m aware, neither of our two Justice Spokespersons even commented on it – despite our party actually having recently passed policy relevant to the issue of legal aid funding. It begs the question as to why we bothered.
The law, of course, can be complex – and it’s most definitely messy. But it really is too important to be treated so superficially – just because it’s ‘hard’. It requires greater engagement than vague buzzwords, righteous-sounding tweets, and the occasional standing behind a sign for a photo-op.
Our justice system is massively underfunded; there are long delays for trials; many offences aren’t even being investigated to begin with; many victims of crime have little faith that they will see justice; there are serious issues with disclosure and ensuring the right to a fair trial for defendants; the wrongly accused can end up severely out of pocket even though they are innocent; the wrongly convicted face great barriers to clearing their name and even if they actually do, will almost certainly receive no compensation; our prisons are overcrowded with high rates of violence and self-harm; our probation services are overstretched; rehabilitation is little more than a box-ticking exercise; criminal barristers are leaving the profession and not enough new ones are joining because of inadequate remuneration.
These are serious issues and they require serious thought. And if politicians don’t quite get what the issues are, because the law is indeed complex and nobody can be an expert on everything, they should at least make an effort to try to. We don’t need more politicians demanding more prison places and longer sentences – we need politicians to engage properly with issues even when it might seem like there aren’t any votes in them.
For the silliest legal take I’ve seen in the past few weeks, it’s actually nothing above. There are a few contenders:
More than 100 eco-minded lawyers signed an open letter declaring that they would refuse to prosecute climate change protestors (the ones glueing themselves to roads and vandalising things). Naturally, they were given an opinion piece in The Guardian, written by none other than Jo Maugham, the fox-batting tax lawyer with a messiah complex whose Good Law Project is extremely successful in wasting people’s money, but not so much with actually winning cases. The undermining of the cab rank rule aside – none of the signatories are practising criminal barristers able to prosecute (many have never worked in criminal law at all), so the letter is nothing more than performance art. Why The Guardian gave it any credence is therefore unclear.
In response to the Equality and Human Rights Commission proposing to clarify the meaning of “sex” in the Equality Act – not ‘change’, because sex meaning biological sex was always what the Act intended – trans lobbying groups and activists have gone into meltdown. No rights would be removed by this clarification and the protected characteristic of Gender Reassignment would remain unchanged. But who needs facts, when you’ve got hyperbole. These are the same people demanding a ban on trans conversion therapy despite being unable to either define it or evidence it happening. They are the same people demanding Self-ID be passed in Scotland on the grounds that it’s just an admin issue, yet now arguing the opposite. Within my own party, they are the same people demanding we ignore expert legal advice on our transphobia definition for no other reason than they don’t like it. These are deeply unserious people. And any serious politician really should stop listening to anything they have to say about the law and think for themselves.
It’s Stonewall’s take that has been the most absurd, however; I mean, it’s bold of them to argue that they don’t think that ‘sex’ in the Equality Act means ‘biological sex’ when they have previously had as an explicit policy that they wish to remove single-sex exemptions from said Equality Act. Nancy Kelley let the mental gymnastics run away with her – actually going on to argue that not only are there no circumstances in which women should ever be allowed their own spaces, but lesbians should not have the right to exclude men from their spaces either. This is from the CEO of an organisation that purports to advocate for LGB people.
But it’s this from former Speaker of the US House of Representatives, Nancy Pelosi, that probably takes the title for the dumbest legal utterance from a public figure this year:
It should speak for itself.
If these are ‘progressive’ takes on the law, we really need to do better.
Democracy Coma 
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