Category: Justice

Amber heard vs johnny depp

6/11/2022

483 words: 4-minute read

Earlier this month a jury in a Virginia court found in favour of Johnny Depp in his defamation suit against his ex-wife and fellow actor Amber Heard. This was Part Two of their battle over defamation and libel - in Part One Depp lost his November 2020 libel case against the Sun newspaper in the UK.

Reaction to the Virginia verdict has mostly focused on two issues: first, the potential disaster it represents for women who want to call out domestic violence in the public arena, particularly the courts, and second, the effect that televising the trial might have had on its outcome. Sometimes the two are elided as in Moira Donegan’s pointing out that screenshots of Heard’s weeping face were turned into a meme, her crying became a TikTok trend, and lip-sync re-enactments of her testimony went viral.

There is no doubt that misogyny and TV voyeurism are a toxic combination and it’s clear that, in any process involving these two features, women will do badly. In this sense the Virginia trial ran absolutely true to form.

But in focusing on misogyny and the televising of trials there’s a deeper problem that goes missing. Here’s a counterfactual question. Imagine a world in which there is no misogyny and no televising of trials: would we be guaranteed fairer outcomes in the judicial process?

The answer? Probably not. The most profound systemic issue here is neither misogyny nor television, it’s the adversarial judicial system that invites and even encourages the poisonous anatagonism that was the hallmark of the Heard-Depp trial. The mistake is to think that hostility is specific to this trial and is largely absent in all the others. Less obviously, but equally detrimentally, it is present in every single one of them.

This is because an adversarial system invites strategising and deceit, poor listening, and a lack of respect and concern - all of which were fully on display in Heard-Depp, and magnified by misogyny. What’s needed is a deliberative system in which participants:

treat each other with mutual respect and equal concern
listen to one another
speak truthfully, and in which,
there is no use of force, strategising or deceit, and no sign of partisanship, self-interest or ideology

Pipe dream? Perhaps, but no more than a world rid of misogyny. The difference is that, in a deliberative judicial system, misogyny would have a vanishingly small influence on proceedings, while in a world rid of misogyny but in other respects left the same, the judicial system will continue to turn out strategised, deceitful, disrespectful - and therefore fundamentally unfair - outcomes, for both women and men.

Tarana Burke, founder of #MeToo, gets it right: “The ‘me too’ movement isn’t dead, this system is dead. This is the same legal system that y’all have been relying on for justice and accountability for decades to no avail. When you get the verdict you want, ‘the movement works’ – when you don’t, it’s dead”.

memory and justice

9/20/2021

257 words: 2-minute read

In a recent interview in El País Semanal, Trinity College Dublin professor and psychiatrist Veronica O’Keane claimed that ‘to some extent all our memories are false’. This is quite a declaration - but one which in the day-to-day most of us recognise to contain a grain of truth. We remember things wrongly and sometimes we don’t remember them at all. At the very least, our memories are selective and subjective and this is enough to sow seeds of doubt when it comes to remembering the past.

Most of the time this doesn’t matter too much since in the normal run of things nothing much hangs on whether we’ve remembered events correctly or not. It’s mostly a matter of minor disputes and inconveniences.

But sometimes it matters a lot, such as in court cases, where the life chances of accusers and defendants can turn on whether events are remembered correctly or not. At this point O’Keane’s claim that ‘to some extent all our memories are false’ becomes severely problematic. She’s not saying that some of our memories are false some of the time but that they are all false all of the time, to some extent.

To some extent? To what extent, exactly? How are we supposed to calibrate her claim in the context of criminal justice where memory plays such a crucial role? Here is another recent article, in which Bob Dylan is accused of sexually abusing a 12-year-old in 1965. What would Professor O’Keane say if she was called to the witness stand by the defence?

Deliberative democracy and criminal justice

4/3/2021

649 words; 5-minute read

There are all sorts of types of decision-making in democracy and one is called ‘deliberative democracy’. It’s called that because it puts deliberation rather than counting votes at its heart. In deliberative democracy it’s the process rather than the outcome that counts. And the process is designed to reflect the belief that the best decisions are ones arrived at by discussion between free and equal people. Anything else is just a variation on coercion.

Here are some of the basic rules for good deliberation:

Participants should treat each other with mutual respect and equal concern
They should listen to one another
They should speak truthfully
There should be no use of force, strategising or deceit, and no sign of partisanship, self-interest or ideology

By the same token, decisions reached by strategising and deceit, and characterised by poor listening and a lack of respect and concern, will be bad ones.

Deliberative democracy might be accused of being massively impractical, or at the very least difficult to put into practice. But this doesn’t undermine its attractiveness as a regulative ideal, or something we should strive to approximate to when it comes to good decision-making. We might reasonably expect every institution charged with making good decisions to get as close to these ideals as possible.

But there’s one arena of decision-making - one which has the profoundest consequences for roughly 1.5 million UK citizens every year - where the principles of decision-making are the exact opposite of the ones above.

That arena is the English criminal justice system.

From arrest to sentence, the criminal justice system is defined by self-interest, strategising, deceit, lack of respect, dissembling, and a systematic failure to listen.

Self-interest is on display by everyone throughout. Take the police force, for instance. Its job is to secure convictions (definitely not justice), and police officers would be crazy to do anything that undermined that objective (what would we think of a police force that never secured convictions?). Police strategising is common (if they can interview without a lawyer present they’ll do so), as is deceit (evidence that might be useful to the defence is regularly withheld).

None of this means that police officers are behaving inappropriately. Far from it. They’re doing no more than what a non-deliberative approach to justice enjoins them to do: maximising the advantages they have to ensure they get as many convictions as possible.

Likewise, strategising is not only present in the courtroom, it is essential to how it works. Prosecution and defence plan and plot their way through to their desired outcome with little regard for what should actually count - truth and justice (understood as getting what one deserves).

This month, after one of the UK's biggest ever miscarriages of justice, 39 Post Office workers had their convictions for theft, fraud and false accounting quashed. It was revealed that one of the innocent accused was advised by his barrister to plead guilty to avoid a longer prison sentence. In fact this is standard practice in UK criminal justice (you get a third off your sentence if you plead guilty to whatever you've been charged with) - a practice which outside that system it is known as bribery. The maximum custodial sentence for bribery that can be imposed by the very court system that regularly uses it is ten years.

Finally, the consensual approach that characterises deliberative decision-making is completely absent in the criminal justice system, where the confrontational alternative is personified in the battles between prosecution and defence so beloved by TV dramas. And all of this in a mise-en-scène designed to emphasise inequality and hierarchy, and induce intimidation - the courtroom itself (raised platform for the judge, bowing and scraping, wigs and gowns).

The ‘Secret Barrister’, famed for supposedly lifting the lid on the failures of the criminal justice system, gets nowhere near the heart of the problem. Her or his claim that it’s all about a funding shortfall is a distraction from the real issue. Throwing more money at an abominable system would just make it better at being bad.

All in all, if someone was invited to come up with a process designed to produce unreliable, even obtuse, decisions, they’d be hard-pressed to come up with anything better than the English criminal justice system. We need to start again from the first principles of free and equal deliberation if we’re to have a criminal justice system worthy of the name.

decarceration, men and women

3/1/2021

742 words; 6-minute read

The UK government is planning on creating 500 more places for women in prison. In response, Sonia Sodha, chief leader writer at the Observer and a Guardian/Observer columnist, has written a powerful piece recommending the phasing out of women’s prisons altogether.

This is absolutely the right objective. The record regarding women and prisons is appalling: the number of women in UK prisons has doubled since 1993 (as if women are twice as bad as they were 27 years ago!); the use of community sentences has halved in a decade; 62% of women serve sentences of less than 6 months (up from 30% in 1993) causing massive disruption to their lives and those of their dependants. The government’s mindless response to this last point is to allow more children to sleep with their mothers in prison.

So yes, for a host of reasons women’s prisons should be done away with.

Interestingly, there is no suggestion in Sodha’s piece that men’s prisons should be done away with too. The reason why women’s prisons should be eliminated while men’s are retained is, she says, because ‘female offenders are very different from their male counterparts’.

How are they different?

First, says Sodha, men are ‘far more violent than women, and always have been’. This is absolutely true. ‘Prison sentences are most appropriate for dangerous and violent crime’, she continues. So because men commit the ‘vast majority’ of violent crime, men’s prisons must be retained.

But a 2019 report by the Prison Reform Trust shows that 69% of the 59,000 people sent to prison in 2018 had committed a non-violent offence. Some of these will have been women, but given that ‘only’ 5% of the people in prison in the UK are women, the vast majority of these non-violent offences will have been carried out by men.

So on Sodha’s criterion that prison should be reserved for violent criminals, two-thirds of men’s prisons should be closed down too.

A second reason she gives for why female offenders are different to their male counterparts is that ‘two-thirds of women in prison are survivors of domestic abuse’, and that while ‘not every female criminal is a victim … coercive abusive relationships can serve to draw women into crime’. This is also absolutely true and it’s a chilling reminder that behind many crimes lie stories of damaged lives.

But if a history of damage and disadvantage is a reason for an offender’s decarceration then perhaps this applies to histories other than those of abusive relationships too?

For example, 62% of people entering prison have a reading age of 11 or lower (four times greater than the general population). Similarly, a third of people (34%) assessed in prison in 2017–18 reported that they had a learning disability or difficulty. Low literacy leads to non/underemployment and a potential turn to crime for survival. And these statistics are themselves a reflection of profound structural disadvantage.

Just as not every female criminal is a victim, as Sodha says, not everyone with a low reading age or learning disability ends up in prison. But in both cases the chances of eventual imprisonment are increased. So once again, if a history of harm leads us to conclude that women’s prisons should be shut down, should not the same criterion be applied to men’s?

While Sodha is right about the specifics of the differences between female and male offenders (the former’s non-violent crimes are different to those of the latter, as is the nature of the harm they suffer that predisposes them to imprisonment), they share the key features that Sodha says should lead to the phase out - or at least a reduction in the number - of prisons: non-violent crime and a history of harm.

I very much hope that women’s prisons are phased out, or at the very least that the government’s plans to increase the number of places for women are abandoned, never to return.

And once that happens I look forward to Sodha turning her fire on incarceration in general, for there is more in the arguments that unite the genders against imprisonment than keeps them apart.

shamima begum

2/27/2021

744 words; 6-minute read

Yesterday, 26th February, the UK’s Supreme Court ruled that 21-year-old Shamima Begum would not be allowed to return to Britain from Syria to fight to have her UK citizenship restored.

In 2019 the then Home Secretary Sajid Javid took away her citizenship on the grounds that she was a threat to national security, a stance reaffirmed yesterday by the current Home Secretary, Priti Patel. Patel said, ‘The government will always take the strongest possible action to protect our national security and our priority remains maintaining the safety and security of our citizens’.

Begum fled the UK for Syria at the age of 15 to join Isis. She married a Dutch Isis fighter (as far as we know being held in a different camp) and she has had three children all of whom have died. She was captured by Syrian Kurds in 2019 and is now in the Al-Hol detention camp, along with around 11,000 other foreign nationals and their dependants.

In a June 2019 visit to the camp, Human Rights Watch found ‘overflowing latrines, sewage trickling into tattered tents, and residents drinking wash water from tanks containing worms. Young children with skin rashes, emaciated limbs, and swollen bellies sifted through mounds of stinking garbage under a scorching sun or lay limp on tent floors, their bodies dusted with dirt and flies. Children are dying from acute diarrhea and flu-like infections, aid groups and camp managers said’. In January this year there were twelve murders in the camp.

Begum’s case for returning to the UK to have her plea heard in person was based on the claim that is impossible for her to fight her case from a detention camp where she can’t have proper contact with her legal team.

In refusing to allow her to return the Supreme Court reiterated the belief that she is a threat to national security, and that no court could overrule the Home Secretary’s judgement in that regard.

Reaction to this decision has been predictably polarised. On the one hand there are those who say that no punishment is harsh enough for Begum given her association with Isis.

On the other are those who argue it’s ridiculous to regard a 21 year-old woman in a detention camp as a threat to national security; that she was underage when she left the UK and was likely groomed into doing so; and that in any case it’s illegal to leave someone effectively stateless by taking away their citizenship. (There is some dispute as to whether she has access to Bangladeshi citizenship or not).

Whatever arguments there may be over points of law, one thing is absolutely clear: yesterday’s decision condemns a young woman who has lost three children to unlimited detention in a camp in the conditions described above.

In other words the Supreme Court has in effect sided with those who reckon there’s no punishment harsh enough for Begum.

Who are the people - the actual, individual people - who are able to sleep at night knowing that this is what they’ve done? There are lots of them in the ‘justice’ factory, starting with Sajid Javid and Priti Patel, from whom we should expect absolutely nothing except heartless cruelty (they have form).

But what about Robert Reed, President of the Supreme Court, who got to read out the verdict? Watch him do so and marvel at the equanimity he displays as he bangs one nail after another into the life chances of a damaged young woman. It’s stunning, really, the way he manages to blot out the latrines, the murders, the sewage, the worm-infested water, the skin rashes, the emaciation, the garbage, dirt and flies. It’s hard not to marvel at the capacity he displays to obliterate even the tiniest vestige of compassion.

The Supreme Court’s decison was unanimous, which means that there are ten other people in the highest reaches of the system ready to renounce sympathy, mercy, kindness, grace in the name of … what? Ah yes, of course. Justice! Look at the smiles they take home with them while they condemn a vulnerable young woman, and by implication thousands of other women, men and children, to conditions they wouldn’t condone for their dogs.

Justice is supposed to be blind. How numbing to see that it’s heartless as well.

death row and rehabilitation

12/12/2020

(376 words; 3-minute read)

As Donald Trump ends his presidency with a round of legalised murders, ex-prisoner Adnan Khan tells of a show of solidarity, empathy and humanity that invites reflection from those of us on the outside who turn our backs on offenders, whatever they may have done.

Khan tells how 700 men live in the ‘Condemned Row’ units of San Quentin Prison, California. As they’re escorted round the prison, other inmates are forced to face the wall so as not to look at them. Khan wonders how they feel at this literal turning of backs, confirming the rejection they’ve already experienced from society at large.

‘But we would still find a way to attempt to acknowledge their humanity and offer some sort of solidarity when facing the wall’, says Khan. ‘We’d slightly turn our faces, peek, try to make eye contact and give them a nod. Sometimes the nod was just with our eyes. That subtle. And they’d nod back the same way. That was our only contact with them and our only form of communication … And that simple, subtle nod relayed a message of care, empathy and moral support and most importantly, each other’s worthiness of humanity’.

Who knows what risks Khan and his fellow inmates ran as they strove to give death row prisoners a moment’s respite from the relentless routine of rejection? Removal of privileges? Reduced chance of parole? Solitary confinement? Whatever, they reckoned it was worth it to return a smidgen of pride and self-worth to those whom a dehumanising system of ‘justice’ has permanently ostracised.

So what of those of us on the outside who can make Khan’s gestures of care, empathy and moral support to casualties of the criminal ‘justice’ system at absolutely no risk to ourselves? More particularly what of those of us who deliberately refuse to do so, even when handed the opportunity on a plate? Because it happens …

We could try taking a leaf out of Khan’s book, coming down off our high horses and doing a bit more of what we profess to do: care, empathise, and spread some love.

Windrush - 'sitting in limbo'

6/9/2020

(378 words - 3 minute read)

Last night the BBC showed the drama documentary, Sitting in Limbo, about the injustice and humiliation heaped on Anthony Bryan as a result of the Home Office’s ‘hostile environment’ policy towards immigrants.

Bryan was just one of at least 160 people (government figures) wrongfully detained or deported, and over 1000 claims for compensation have been lodged. As at 6th February only 3% of claims had been settled, which puts the hand-wringing of the current Home Office Minister, Priti Patel, into perspective.

Who was responsible for the hostile environment policy?

It’s easy to go after the Labour immigration minister who first invented the term, Liam Bryne, and it’s even easier to go after Theresa May who oversaw the deployment of ‘Go Home or Face Arrest’ vans.

But what Sitting in Limbo illustrated was the utter banality of evil. Without the collaboration of dozens of minor functionaries the policy would have fallen apart.

Bryan’s life was systematically dismantled by the immigration officers who arrested him (twice), the officials who booked him in to detention centres, the apparatchiks who demanded documentation from him that he’d already supplied, the jack-in-office who referred to his ‘alleged’ children’, and the driver of the van that took him 166 miles from London to the Verne detention centre on Portland, Dorset - among many, many others.

Any one of these people could have disrupted the hostile environment assembly line of shame and indignity by saying no, but none of them did. ‘I’m just doing my job’, said one officer asking Bryan for yet more proof of the 50 years he’d spent in the UK. ‘Yes,’ said Bryan, ‘a job that ruins people’s lives’.

Hannah Arendt coined the term ‘banality of evil’ after watching the trial of Adolf Eichmann in 1961. Some of the people who contributed to Nazi atrocities were evil, she said, but many weren’t. They were just humdrum cogs in a machine, 'following orders' - a defence against culpability rejected at the 1945-6 Nuremberg trials.

'A deportation order has been issued against you,' says one official as Bryan sits before him after months - years - battling to prove his right to remain. 'On your arrival in Jamaica you will receive the sum of £1000 to help you resettle'.

Was that official watching Sitting in Limbo last night? What was he thinking?

Notes from a cliff-edge