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August 2018

Ben Stokes Verdict

By | Criminal, Food for thought, news

No doubt you were aware of the Ben Stokes trial last week, with the England cricketer eventually being found “not guilty” of affray.

The question is: was the jury right to acquit him?

Here are the four main decisions they had to make:

  1. Did he use threats and violence to another person?
  2. Did he believe that it was necessary violence to defend himself or another?
  3. Was the force he used reasonable in the circumstances?
  4. Was his conduct likely to cause “a person of reasonable firmness present at the scene to fear for his personal safety?”

It is that final line that a significant proportion of the “affray” charge hangs on, but another important question is why the CPS did not charge Mr Stokes with assault.

We don’t know the answer to this question, but it seems likely that had that charge been brought from the very beginning, there could well have been a very different outcome to this case.

All we know is that the barrister advising the CPS at the beginning of the case did not consider an assault charge as appropriate, and unless we see the evidence and papers she considered, we do not know why.

What we DO know is that the barrister who brought the case in front of the court did apply to amend the indictment to add assault charges, only to be told it was too late by the Judge.

When the CPS were questioned on the subject, they gave an answer that gave very little away:

“We selected the charge of affray at the outset in accordance with the code for crown prosecutors. Upon further review Upon further review we considered that additional assault charges would also be appropriate. The Judge decided not to permit us to add these further charges. The original charge of affray adequately reflected the criminality of the case and we proceeded on that.”

As I said – giving very little away.

We can only speculate as to what the actual truth behind the failure to bring an assault charge is, but maybe a more honest answer might have been:

“We did not select assault because we forgot to tell the first barrister about the video tapes shown on the TV so she didn’t have the full facts”

(I make no allegation because we do not know what the reason was.)

In addition, there has also been a lot of questioning around why Stokes’ teammate Alex Hales wasn’t prosecuted, despite video footage seemingly showing him kicking somebody.

The CPS gave no explanation for this and the police gave another political type of statement which, again, tells us nothing:

“Early investigative advice was sought from the CPS in relation to Alex Hales’s involvement and a decision was made at a senior level to take no further action against him”

Again, I make no allegation, as we don’t truly know, but…

How do you feel about the fact that these organisations (the police and the CPS) that WE fund are simply not prepared to give us the facts when things go wrong?

In this case, it just feels like everyone knows that there’s something not quite right, but we’re not allowed to really question it!

John

Wildly Astray Intuition

By | Food for thought, news

I’m sure like me you were incredibly heartened by the Thai Cave rescue. It was a horrendous situation, but the bravery of the divers must be commended.

However, I have seen a few people describing the exercise as a ‘miracle’.

I have little doubt that the Thai government relied heavily on weather experts and flood hazard assessments carefully worked out to make a probabilistic risk assessment regarding the boys’ rescue.

All of us possess a super computer – it’s a fast, intuitive mode of thinking. It feels comfortable because it renders decision making fast, easy, intuitive.

In our ordinary lives it works well.

If we met a group of scientists trying to work out how to get a group of young boys out of a flooded cave 2 ½ miles under the surface of the world, we might not expect them to use their “intuition”.

Intuition reliably goes wildly astray when dealing with complexity and uncertainty.

Some solicitors (like us) – with some awareness of how the mind works, and its frailties – use a technique called “decision analysis” as a slow logical check on intuitive decision making; just like scientists check their intuitive decision with tried and trusted mathematical models and techniques.

Decision analysis is a tool used to value the multiple financial outcomes possible in litigation by looking at all of the possibilities, attempting to give an accurate judgment on the possible outcomes (what lawyers do anyway) to translate the client’s expectations into realistic probabilities.

It has to be admitted, that the assignment of a probability (in terms of a number) to a possible future event presupposes a frequency of similar events in the past which given an indication of their probability, and a lawyer is unable to work with those types of statistical models.

We work with precedent and evidence as applied to the facts to try and obtain the same result.

Here’s an example if you want to dig further without getting bogged down in legal jargon. It’s not strictly a legal video, but illustrates the point well:

https://www.youtube.com/watch?v=7OoKJHvsUbo

We normally draw up a decision tree by hand on intuitive modelling to start with and then begin to refine it.

We can then factor into it the facts we can prove, the facts which are doubtful, and the rule of law that applies in each scenario and thus build up a comprehensive picture for the client.

Costs recovery in law is only about 70% on a very good day. It is often unlikely that a client’s financial expectations will be met in a court of law and it is good for them to have an overview of outcomes based on agreed probabilities before they become committed.

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