Jack Shepherd is a coward. A pathetic, mewling quisling of a man. He is also a convicted killer, having been found guilty of gross negligence manslaughter. He caused the death of 24 year-old Charlotte Brown by taking her out on the Thames in his defective speedboat – bought, he boasted, to “pull women” – and, fuelled by alcohol, allowing it to be driven at high speed until it fatefully struck a submerged object and capsized. The breathtaking self-regard displayed by Shepherd in the moments that followed – calling for help for himself alone, not the stricken Charlotte Brown – was matched only by his decision to abscond while on bail, meaning that the trial, conviction and imposition of a 6-year custodial sentence all took place in his absence. The police having not yet located him, Shepherd has not yet served a single day of the 6-year sentence. He is refusing to take a scintilla of responsibility for what he has done; the very least, one might have thought, he could do to begin to atone for the unbearable, irrevocable grief he has inflicted on Charlotte’s family.
In a final twist of the knife, as has been reported over the last two days, while on-the-run – presumably abroad – Shepherd has, through his lawyers, applied for permission to appeal against his conviction and sentence. And the Court of Appeal has granted permission, in relation to conviction at least. As Mr Shepherd qualifies for legal aid, which the Court has now granted for the appeal hearing, it means that, in the words of the Daily Mail, Shepherd can “milk taxpayers for cash while on the run”. MPs and tabloids have since lined up to condemn this state of affairs; a fugitive flipping the finger at justice while still benefitting from the largesse of the country whose laws he brazenly flouts. “If the legal aid rules permit a man on the run, who did not even attend his trial, to receive legal aid…then the rules need to be changed,” declared Lord Garnier QC, a former Solicitor General. Eager to soothe the Mail’s wrath, the Ministry of Justice has “ordered an urgent review” to see what can be done to close this “loophole”.
I can perhaps help. To begin, I’d urge anyone with an interest in this case to read this response by Tuckers Solicitors,the firm instructed by Jack Shepherd, which was published in reply to the Mail’s article. It sets out a few essentials that you may not have gleaned from the breathless reporting. For one, the claim that Tuckers Solicitors received “nearly £100,000” in legal aid to represent Shepherd is untrue – it was less than £30,000, which for a complex 4-week trial involving a homicide and, no doubt, technical expert evidence (experts who are paid out of that gross, VAT-inclusive figure), is not an unusual gross fee. I emphasise “gross” because, as with all legal aid expenditure “gotchas”, the headline figures (where accurate) always represent gross payments, inclusive of VAT, and represent months of work in advance of the trial by numerous legal and medical professionals, as well as the trial itself.
But the Tuckers response also helpfully sets out the duties of defence lawyers in situations where defendants abscond. It is not as uncommon as you may think. The first thing to note is that a defendant failing to attend court on bail does not automatically forfeit his right to legal representation. Sometimes, where a defendant fails to engage entirely with his lawyers and disappears, the solicitors and barrister will have insufficient instructions to act, and so will have to withdraw before the trial. But where a defendant has given instructions as to what his case is, and then refuses to attend court, his solicitors and barrister are under a professional duty to represent his interests as effectively as they can. They can’t simply assume guilt and walk away in disgust at the cowardice of their client – to do so would fly in the face of the role of defence lawyers. We do not judge our clients; that is the court’s job. In Shepherd’s case, Tuckers had prepared “95%” of the case for trial before Shepherd absconded, and so they, and the instructed barrister, were able to continue to act.
Where a defendant on bail doesn’t attend his trial, the court has two options. It can either adjourn so that he can be arrested and brought to court. Or it can proceed in his absence. All defendants are warned at their first hearing before the Crown Court that this can happen if they fail to attend. There is case law to guide judges on the situations where it will be appropriate to have a trial in absence, but in general terms, deliberately absconding will be viewed as you foregoing your right to attend your trial. The consequences of that are serious: you surrender your right to give evidence in your defence, or to hear any of the evidence against you. And, of course, because failing to surrender to bail is a criminal offence in its own right, you will be arrested and subsequently dealt with for that. This is a key point absent from most of the media commentary – whatever happens in this case, even if Shepherd wins his appeal, he still faces a custodial sentence for fleeing.
But underpinning all of this is the right to a fair trial. The Mail attributes this right, with typical misplaced hostility, to the European Convention on Human Rights, but while the right to a fair trial is indeed guaranteed by the Convention in Article 6, it has been ingrained in English and Welsh law for centuries. It is the foundation of our criminal justice system. It is not a privilege, but a right. And rights are not something that we only give to people we like. Justice is not earned, it is not dependent on a person being “deserving”; the core of our civilisation is the notion that we deal with everybody, however reprehensible, by the same fair standards. Even the most despicable criminals have the right not to be wrongly convicted.
So it is that, even if a defendant flees before his trial – even if he is a repeat offender who has previously committed the most odious crimes against us – the justice system ensures that his right to a fair trial is upheld. It doesn’t simply tell a jury to convict him on the basis that he has done a runner; the usual rules of procedure and evidence, carefully designed over centuries to ensure, as best we can, that the guilty are convicted and the innocent acquitted, still apply.
What then, of appeals? Surely, the question is posed by the reporting, if you flee the country, you shouldn’t be allowed to appeal? Certainly not with taxpayers’ money?
At face value, I agree – this looks like a shocking and baffling state of affairs. But stripping it down to its principles, it makes a little more sense. A key element of the right to a fair trial – to not be wrongly convicted – is a mechanism to appeal where the trial court gets things wrong. This, when you think about it, stands to reason. The right to a fair trial is meaningless if there is no way to enforce it. That is what an appeals system offers – a check on the safety of a conviction. Because even people who are convicted of appalling offences and abscond are still entitled not to be wrongly convicted. And the duties of defence lawyers to ensure that their clients – even horrid clients who have absconded – are not unfairly convicted, still apply.
The right to appeal can mean different things in different jurisdictions. Some countries give an automatic right to a full retrial; others, like England and Wales, impose strict criteria. You firstly have to successfully obtain permission (or “leave”) to appeal. This is done by a written application by the lawyers, which sets out the grounds of appeal and argues why the conviction is unsafe. On the legal aid point – the barrister and solicitors do not receive a penny extra for advising on appeal or drafting the application and grounds. It is all done for free. In practical terms, it provides a disincentive to the lawyers to positively advise on appeal unless they really believe it has merit.
For a conviction to be found “unsafe” is a very high threshold. If a High Court judge reading the application considers that you have a good argument that deserves a full hearing before the Court of Appeal, they will grant permission. To put this in context, 90% of all applications for permission to appeal are refused.
Jack Shepherd has been granted permission to appeal against his conviction (but not, contrary to the Mail’s claim on its front page today, his sentence). The reasons are not yet publicly known; Tuckers refer in their statement to “legal errors made during the trial”, but the full picture will become clear when the appeal is heard. However, the numbers alone tell you that, in order for permission to have been granted, there will be merit in these arguments. There is a genuine concern that something at his trial went seriously wrong. This is not some speculative attempt by lawyers to drum up funds by launching spurious appeals; if there was no merit, the application would be in the bin with the other 90% of applications and no legal aid would be authorised at all.
Where permission to appeal is granted – as in this case – the Court of Appeal will issue a representation order (legal aid), usually for a barrister only, to prepare and present the appeal at a full hearing. If the solicitor is required to do work for a criminal appeal, most of the time it is expected that they do it for free. So the implicit suggestion that Tuckers will receive some 5-figure windfall from the appeal is a fantasy. They will in all likelihood receive nothing. The cost to the legal aid budget of this appeal will be minimal – the gross fee for a junior barrister defending an appeal at the Court of Appeal will usually run to a few hundred pounds. For a QC, the rate will be higher.
So if this case isn’t actually about money, what is it about? I’d suggest it’s about two things. Firstly, there’s unarguably a jarring feeling caused by this case. I understand the rage. It is raw and primal and exacerbated by frustration. We can’t get Shepherd – the police have so far proved unable to track him down – but we can lash out at the fallible system which gives rights to people who don’t deserve them; who offend and re-offend and then offend again. But we have to temper these urges with a sober reminder of our first principles: justice is not dependent on good behaviour. Equality before the law does not mean equality for people we like. Absconding to avoid prison is dreadful, pusillanimous behaviour, but it is not the worst we see in the courts. What about those who perjure themselves? Or those who, after being convicted, take revenge against witnesses? Or commit contempt of court by shouting out? Or who breach prison rules by smuggling in contraband? All of these, and many more offences, demonstrate a complete disrespect for the legal system and an arrogant lack of remorse. Do we remove the right of appeal to these people too? Or do we just remove the few hundred quid in legal aid payable to the lawyers, meaning that only absconders with the means to pay privately are able to appeal?
Secondly, this case, and the way it has been presented, fits with a popular narrative about legal aid. It’s for people who don’t deserve it. It’s a gravy train, cash cow or whatever culinary or zoological metaphor the chief sub-editor prefers. And this, again, fails completely to understand why we have legal aid in the first place. Legal aid – modest sums far below market rate paid to lawyers acting for the public – is central to access to justice. If you don’t have legal advice and representation, you can’t meaningfully enforce your legal rights. If the state comes to take your child, or wrongly accuse you of a criminal offence, or if your landlord unlawfully evicts you, or your boss sexually harasses you, you want to be able to assert your rights. If you can afford to pay privately for lawyers, good for you. If you can’t, then, like the NHS, legal aid offers the safety net. Without it, we have a two-tier justice system. Those who can afford to pay represented by lawyers, and you, who can’t, left by yourself standing in court fighting the legal professionals instructed by the state or corporate behemoths. To revert to the health analogy, you’d be left to operate on yourself. This is why legal aid matters.
The problem is that, for successive governments, legal aid has provided a giant political football, to be kicked and slashed at in the name of sport, political distraction and saving a tiny amount of money. The cost of the criminal legal aid budget, following 40% cuts to the criminal justice system, is £850m per year – around 0.1% of total public spending. Yet we are encouraged at every turn to believe it is a extortionate burden, filling the pockets of greedy lawyers (many of whom in reality often work on legal aid cases for hourly rates below minimum wage). It’s a lie.
And the effects of the lie are devastating. In 2012, the Legal Aid, Sentencing and Punishment of Offenders Act removed legal aid entirely from swathes of the country’s most vulnerable. The results have been catastrophic. Victims of sexual and domestic violence have been cross-examined by their abusers in family proceedings; penniless victims of rogue landlords and employers have been denied legal representation; people wrongly refused benefits by DWP cock-up have been left destitute and unable to challenge the decisions; and innocent people have been forced to pay privately for criminal defence lawyers and, upon being acquitted, have been unable to claim their costs back, effectively bankrupting them. All of this was predicated on lies told by the Ministry of Justice about our spending on legal aid (“we have the most expensive legal aid system in the world” being the headline whopper), and dutifully trumpeted by the tabloids.
The MoJ promised to publish a full review into the devastating impact of LASPO by the end of 2018. They broke their promise. Six years after implementation, we are still waiting. Within 24 hours of the Mail calling for legal aid to be stripped from unpopular criminals like Jack Shepherd, the Ministry pledged to hold an “urgent review”.
This is the real agenda of this flurry of media reporting. Calculated, cynical and dishonest fearmongering of what legal aid is, how much it costs and what it is for, with a clanging silence when it comes to explaining to confused readers why legal aid exists. If I were equally cynical, I’d suggest that this antagonising of the public against legal aid is a precursor the publication of the overdue LASPO report which will be damning of the damage done to people’s lives, in the hope that public rage will be diverted onto the Jack Shepherds and their lawyers, instead of the real villains in the legal aid scandal – the government.