From Bard to Bar to Bench: HH Wendy Joseph KC

Perhaps to prove I had read – and more crucially, absorbed – the important detail of HH Wendy Joseph KC’s book Unlawful Killings, on the way to meeting her I stopped off at the Little Waitrose by Clapham Common station and bought two packs of the poshest, chocolatiest biscuits money could buy. (They weren’t quite unlawful fillings but they were close.) Too often in the accounts of the murder trials, fashioned so deftly by the very recently retired HHJ Joseph KC, she arrives just too late from the Bench for afternoon tea to beat the greedy fingers of another judge to the last chocolate biscuit. So, I decided the very least I could do was to put that right. They went down very well, and this time there were plenty to go round.

Unlawful Killings was published in June to overwhelmingly positive reviews; 4.6/5 Amazon, 4.5/5 Good Reads. It is beautifully written; the composite, narrative tales of murder trials distil the main themes, one by one, of the many trials HHJ Joseph KC presided over. It is hard to categorise. It is part memoir, part fiction (none of the accounts are ‘true’ but drawn from many real trials to illuminate a dilemma or issue) and part polemic, articulating her conclusions from the unique vantage point of sitting on the bench at the Central Criminal Court (CCC) for so many years.

Wendy’s career in the law forms a perfect and inspiring arc of achievement; a girl from Cardiff with a love of English Literature (which she read at Cambridge until changing to law in her final year) who, in 2012, became only the third ever full-time female judge at the Old Bailey, after Nina Lowry in the late 80s and 90s, and Anne Goddard QC in the late 90s and early 2000s. She lost her father while still at school and her mum was nervous that the Bar was a poor choice of career, given the imperative of ‘needing to earn a living’.

Unexpectedly, given her conspicuous success, I discover Wendy wasn’t offered a tenancy at her first set in 3 Temple Gardens: ‘Nobody there took me seriously; they had their woman, they didn’t want another one.’ But she did have supporters; a young tenant at 3TG, Paul Smales (‘who died terribly young’), put her in touch with John Roberts, the first Black QC – ‘a lovely, lovely man, very generous’ – who had set up his own chambers in Stone Buildings, ‘a subterranean space for waifs and strays’, which didn’t have its own toilet (‘you had to go outside to use the communal one’). John offered Wendy a place there. She seized the opportunity, and Boyd Hopgood, her old clerk at 3TG, provided invaluable help too, ‘sending me a return every day for six months’, which he left behind the big old door at the entrance to 3TG. ‘This gave me the chance to be seen in the Magistrates’ Courts and from there I built up a network of solicitors.’ Her career took off, prosecuting and defending, moving to and then taking silk at 6KBW, the Bench at Snaresbrook and then the Old Bailey.

Wendy is acutely conscious of how lucky her generation was – university and Bar Finals fees paid by the local authority, and a maintenance grant all the way through – and the complete contrast with the current and more recent debt-laden generations. ‘I couldn’t possibly have done it without that support.’ Her mum also sent her £5 each week in an envelope. She has huge sympathy ‘for youngsters today… there is no money in legal aid crime’. She won’t be drawn into expressing positive support for the current action being taken by the Criminal Bar (as I write in August) but says that there is considerable sympathy for our plight among the Judiciary. She fears that the progress made on social diversity will go ‘back to how it was, mainly privately educated men, who knew the system and how to talk to people’.

‘I expect you to fit in’

On her first day at the Bailey she was taken to one side by the most senior judge and told, ‘Wendy, I expect you to fit in.’ We discuss what these words meant: ‘Don’t come in and be a woman.’ She was joining a posh, white, very male club, resistant to change. This was in 2012; it has the feel of a Dickens novel. Remarkably, just 10 years later there is now parity of female to male judges at the CCC with a raft of brilliant women recently appointed. The courtrooms no longer open to ‘My Lords the Queen’s Justices’, the words Wendy was required to enter to each day when first appointed, but to ‘My Lords and Ladies the Queen’s Justices’ (some ushers even reverse the order, and the building still stands!).

Wendy is sure the shift in gender balance made a very substantial difference to the culture. ‘The atmosphere is much more normal now. It isn’t normal to have a workplace with all men. To have a group of 16 men, day in day out exchanging views; not just the fact it was all men, but all men of a certain background: all white, all the same age, all broadly similar privileged educational backgrounds. If you have no women, or very few women, you are inevitably going to get sexist banter.’ Also, from a practical point of view, ‘it’s a matter of common sense, if your pool is broader you will have a better chance of getting the most appropriate judge for a particular case’. It doesn’t take much imagination to understand this. She instances as an example that it might be better to have the option of a female judge for a case involving child sexual abuse by a male authority figure.

Complete failure on the ethnicity front

However, no progress has been made on improving the ethnic diversity of judges: ‘Where we have failed completely and utterly is on the ethnicity front. It is wrong. The system has made some members of minorities feel it’s not a place for them and they don’t apply. It’s nonsense to think there aren’t enough good Black potential candidates.’ When I was writing Monday Messages for the CBA four years ago, I discovered there was only one full-time Black judge within the M25, HHJ Grace Amakye at Snaresbrook. ‘It is completely ludicrous. There is a much better balance in the Tribunal service.’ Why should Black communities fully trust our criminal courts until this changes? (My observation not Wendy’s).

On a related theme, we talk about joint enterprise, and whether the change to the law brought about by Jogee [2016] UKSC 8 has impacted the multi defendant murder trials which had been Wendy’s staple during her years at the Bailey. The recently retired judge pulls no punches on this topic either: ‘It’s just as well it’s gone, because intellectually it was based on a proposition that is not an acceptable proposition of law in our system… you have to have done or contributed to the act with the requisite intent. It’s a very basic principle of law and it just disappeared for 30 years. I think the Supreme Court was quite courageous in what they did because we could have been absolutely inundated with appeals.’

And then this: ‘Having said that, the Court of Appeal has been applying a rule that might seem pretty disingenuous. The current test appears to require proof an applicant would not have been convicted but for the doctrine of parasitic accessorial liability. If this is a correct reading of what is happening, it looks rather like a reversal of the burden of proof. There is currently before Parliament a Criminal Appeal (Amendment) Bill seeking to amend this test. We shall see what comes of it. Out of all the cases where secondary parties have been convicted of murder (during those 30 years when the test for secondary parties set the legal bar at a significantly lower level) they have allowed appeals in only two cases.’ The restrained language of ‘disingenuous’ is as strong as any careful lawyer gets but the meaning is crystal clear. The Court of Appeal, after all, refused the original Jogee appeal, before the Supreme Court acknowledged ‘the wrong turn’ the criminal law had taken. But now the Court of Appeal consistently fails to put right the gross miscarriages of justice done, disproportionately to Black boys and Black young men, in pre-Jogee joint enterprise cases. (Did the ‘wrong turn’ really mean almost nothing?) We are back to the posh all-white culture, prioritising the status quo again. There is almost no ethnic diversity in the Court of Appeal. It’s a very narrow social pool. We shouldn’t really be surprised by the results. This needs urgently to change.

‘Trying to bash it out of existence isn’t working’

She has a good amount to say about knife crime in her book, writing compellingly, as one might expect of someone whose teenage ambition was to be a writer, and with great humanity. The release of retirement allows her to speak freely about the inability of the law and increasingly harsh sentencing, most obviously the increased 25 year starting point for knife murders, to have had the slightest deterrent effect on the carrying of knives – ‘trying to bash it out of existence isn’t working’. We agree we need an independent, searching inquiry to try to identify what can truly be done to change behaviour. Wendy identifies increasing use of school exclusions, absent fathers and the glamourisation of knives and their use by the internet as obvious factors but says its roots are in socio-economic circumstances, rather than anything else. She immediately accepts that the sentences she was passing on countless young men, some of which were longer than the years they had been alive, was unlikely to rehabilitate them, deter anyone else, or ever be long enough for many families of victims: ‘Our law has not made up its mind what it wants to achieve. It hasn’t worked out the balance between punishment, rehabilitation, and pure retribution.’ But this is what the law required her to do.

Both from reading her book and talking to her, it is obvious Wendy found her time ‘judging’ immensely satisfying. She approached her work with wholehearted commitment, and seriousness; she was extremely popular with the Bar and must have acted as an inspiration to the female judges who have followed. Above all, it requires immense hard work – ‘I reckon I used to spend more than half as long again on the summing up as we had spent in court, sometimes three quarters as long again.’ The wasted theatre tickets and cancelled suppers with friends featured as part of the lot of judges in the book, as she confirms in real life. But she can take pride in the fact that she has never had a conviction overturned on appeal. I finished the book with a very strong reawakened sense of how important and difficult the job is for all of us involved in the criminal justice system, and how undervalued we are.

She praises the work ethic and quality of advocates at the independent Bar and worries about the impact on quality of the growing use of in-house advocates, particularly at the Crown Prosecution Service, who have not been through the same rigorous selection and training as those at the Bar: ‘Although there are some excellent ones, on the whole, they are just not as good.’ Low fees, too, risk squeezing out really bright people who haven’t got the financial backing. This matters: ‘Poor advocates miss points, and even when they see them they don’t know how to make them.’ She cares passionately about the profession, and wants it to be as diverse as possible and to thrive, not just survive: ‘It is a vital public service. It must be representative of the wider community. It just isn’t right to have one narrow privileged demographic with that much power.’

And she is convinced that juries trust calmer, modest advocates more than shouty, argumentative ones!