Guest lecturer highlights challenges to the legal profession
Are sentences passed in court for criminal offences too lenient? Or are they too harsh?
How the public views such sentences was one of the topics explored by guest lecturer Maura McGowan QC, when she addressed a gathering of attorneys, judges, magistrates, court staff and law school faculty members earlier this month. Others in the audience included Governor Helen Kilpatrick, Commissioner of Police David Baines and Deputy Commissioner Anthony Ennis.
Ms. McGowan, who was called to the bar in 1980, has extensive experience in representing defendants in criminal cases. She served last year as chairman of the Bar Council, which represents barristers in England and Wales. While in Cayman for a Grand Court case, she was invited to present the fourth annual lecture in a series organized by the Cayman Islands Courts and Judicial Administration. Her topic was criminal law – the challenges now and in the years ahead. Her perspective was that of U.K. practitioner, part-time judge and representative of the legal profession to the public.
She first posed a general question regarding public confidence in the criminal justice system: Do the public still trust the judges, the lawyers, the police and even the juries?
“The simple answer is yes,” she said. “In general terms, they do. Particularly, when asked the question in terms of, ‘Do you trust our system as opposed to that operating in any other jurisdiction?’ But when reacting to a news report of an individual case or statistics of conviction rates in rape cases or the alleged income of ‘fat cat’ lawyers, then the answer might well be a very resounding no.”
She pointed out that the age of automatic deference is over. “Judges, police and lawyers cannot expect to be given respect simply because of the position they hold,” she said.
Ms. McGowan noted that the U.K. public “always gobbles up” reports on sentences imposed, particularly for crimes or criminals of notoriety. “That the maximum sentence set down for most offenses is fixed by government goes unnoticed,” she emphasized.
She detailed several devices by which public opinion of sentencing is gauged.
“In England, if you log on to the YouGov website, you are helped as to how to complain about a sentence that is thought to be too low. But there is total silence as to what to do if a member of the public thinks the sentence is too high. Why? Well, the defendant will probably appeal it, but much more likely because no member of the public ever thinks a sentence is too high,” she said.
Another measure of public opinion may be seen in a U.K. annual advocacy course, which includes a mock trial for which members of the public volunteer to serve as jurors. Ms. McGowan explained that, because it is not a real trial, the jurors may be asked at the end the reason for their verdict. If the defendant has been convicted, they are asked what sentence should be imposed.
Revealing that the verdicts were almost always acquittals, she said the jurors’ answers were illuminating.
“It is a sexual assault case and the facts are deliberately designed to be balanced between prosecution and defense, but the law of averages would dictate more convictions than we get. Almost all jurors say they felt they should acquit because it was only one person’s word against another – a real challenge in such cases, where there are only ever two people present.
“When asked what sentence they would impose, in the event of a conviction, again almost all would not imprison. It is an unpleasant assault for which even the gentle sentencers amongst the faculty would give two to three years. It’s not at all scientific but it does show that whilst there is a general sense that sentences are too lenient, the reality is that the public would actually impose less if they were fixing the sentence. That experience is replicated in the mock sentencing exercises conducted at the open days which some courts run for their local communities.”
The challenge, Ms. McGowan indicated, is enabling the public to understand the sentencing process.
Substantial strides have been made in improving the way victims and witnesses of crime are treated, she said, although, “There will continue to be highly publicized instances in which complainants and witnesses leave court feeling that they have been the ones on trial.”
All judges and prosecutors in England and Wales must receive special training before dealing with cases of sexual assault, Ms. McGowan reported, and there is an increasing desire to see such training for those who defend. Victims who were drunk or behave irrationally after a sexual assault will no longer be treated as having invited the assault upon them, she said.
Many special measures have been introduced and no complainant in a sexual assault case has to face the alleged attacker across a court. The measures she referred to are similar to those already available in Cayman, such as a screen or video link.
Ms. McGowan spoke of the U.K. government’s cut in spending on the justice system and how it impacted criminal, civil and family matters, the physical infrastructure and court staff. An attorney’s remunerations in the commercial field have always been greater, but legal aid payments were good enough to attract talented lawyers to publicly-funded work. “If that ceases to be the position, then those people most vulnerable and most in need of good advice and representation will receive a service of lesser quality,” she said.
Justice Alexander Henderson presented the vote of thanks, calling Ms. McGowan’s lecture stimulating and though-provoking. He added a few provocative remarks of his own.
He suggested the people in the legal professions have the challenge of doing more public education on “how the system works and why we do what we do.”
He cited bedrock propositions of the system that were counter-intuitive. For example, everybody “knows” that heavier sentencing will reduce crime – except that every study in the last 25 years says it doesn’t.
On the topic of legal aid, everybody on the Internet seems to “know” it is a drain on the public purse. He suggested that cutting legal aid does not save money because unrepresented defendants result in longer trials, more appeals and more retrials.
Ms. McGowan’s lecture can be read in its entirety on the judicial website at www.judicial.ky/publications/speeches.