|
Bad Girls: A Legal Viewpoint
by A. Konig
This analysis will attempt to explore and clarify the legal
context that underpins Bad Girls.
The prison is the most symbolic and powerful symbol of the
coercive power of the state. The punitive aspect of the prison
experience is often separated from the legal censure that attaches
to defendants before they enter the penal system. However, this
initial legal censure—the prologue, if you will—is both relevant
and central to the characters' journeys in Bad Girls, and throws new
light on old stories.
Perhaps one of the most interesting stories is that of Nikki
Wade; an inmate both innocent and guilty, both victim and offender.
It is this character, surely, that truly embodies the idea that the
coercive power of the state must be wielded responsibly; that
injustice must be confronted and interrogated. This notion,
therefore, begs the enquiry: what injustice does Nikki Wade suffer?
What road led Nikki Wade to the doors of Larkhall?
What happened to Nikki?
Nikki Wade killed a police officer (DS Gossard) who was in the midst
of attempting to rape Nikki's girlfriend (Trisha).
In legal terms?
Nikki was convicted of the common law offence of murder. She
would have been given a life sentence—which is mandatory—for
this crime. However, life sentences do not literally mean 'life' and
her minimum tariff was set at 10 years [minimum time served before
the opportunity of parole].
The ingredients of murder are twofold.
Actus reus refers to the physical manifestation of the crime; the
conduct itself. Mens rea refers to the state of mind of the
defendant.
Both elements must be satisfied in order to convict a person of
the common law offence of murder. The actus reus of murder and
manslaughter are the same, this being unlawfully killing a
reasonable person who is in being and under the King's Peace.
Let's unpack the important aspects of this definition. "Unlawful"
relates to the fact that some killing is lawful, for example if
there is a proven and accepted justification, such as self-defence.
The fact that Nikki was convicted of murder means that no
justification was accepted for her actions. "Killing" seems
self-explanatory, especially in Nikki Wade's case, but it means that
the defendant's actions must have been the legal cause of the death
of the victim. This traditionally becomes complex when we have
multiple causes. The case of McKechnie (1992) 94 Cr.App.R.51.
provides an interesting example: the defendant hit the victim over
the head with a television set and the injuries prevented the
doctors operating on the victim's duodenal ulcer. The medical cause
of death was a burst duodenal ulcer, but the defendant was
nevertheless held to have legally caused that death. A "reasonable
person" who is "in being" means that the individual must be a human
being capable of independent life: an unborn foetus for example,
cannot legally be a "reasonable person".
Mens rea is more complicated in both form and substance. Legal
blame must only attach where there is responsibility. Competing
conceptions of responsibility shape which indicators of blame are
deemed important by the courts and by society in general. An
"indicator of blame" essentially means a factor that points to an
individual's culpability for a crime. For example, motive (one
indicator of blame) would focus the court's attention not on the act
itself, but the reason for the act. Other indicators of blame are
someone's capacity to choose right from wrong, which might take into
account mental state, age and so on. If the law takes note of an
indicator of blame—it is then relevant in deciding whether to hold
the individual in question legally responsible on that basis.
With a "character conception" of responsibility, which places
emphasis on motive, a laudable motive might exonerate a heinous act
under this scheme. English law has traditionally rejected such an
approach and instead adopted the "capacity conception" of
responsibility where blame is placed at the feet of those who have
control over their actions and have chosen to commit a crime. The
process of choosing to commit a crime is a mental process and this
mental state is known as mens rea. This process is different for
each crime.
In murder, it can take two forms: intention to kill, or intention
to grievously harm. The latter has traditionally been controversial,
in that an individual not intending to kill may nevertheless be
convicted of murder when his actions cause death, rather than
grievous harm. Of course, "intention" itself is difficult to define
in practice, but the case of Hyam [1975] A.C. 55 held that foresight
of death or grievous bodily harm as a highly probable consequence of
one's actions was sufficient to constitute the mental element of
murder. This is controversial, because recognising there is a risk
that someone may die by your actions and intending that they die are
obviously different mental processes.
It would seem that Nikki Wade's killing of DS Gossard fulfils both
the actus reus and mens rea elements.
Why does this sit uncomfortably with us?
A conviction of murder does not necessarily arise just from
satisfaction of these two elements. There is a genuine sense of
difficulty in reconciling the legal condemnation Nikki received with
the act that Nikki committed. We might say that the death was an
accident; she only meant to stop DS Gossard from assaulting Trisha. We
might alternatively say that the death was intended, but it was in
done in defence of another. However, we might also say that Nikki
was provoked into killing DS Gossard; we know he laughed at her before
she inserted the bottle into his neck. These options give rise to a
number of legal possibilities that lawyers call 'defences'. A defence can completely exonerate the crime—resulting in Nikki
walking free from the court without any further involvement from the
law or prison authorities—or a defence can be 'partial'. A partial defence will turn a crime of murder, for example, into a lesser
crime, such as manslaughter.
Why weren't these possibilities explored in the initial trial?
There are three possibilities that are by no means mutually
exclusive. Firstly, it may have been an intentional device on the
part of the writers in order to create a convincingly realistic
successful appeal. This, however, tells us little about why in a
real legal sense; it gives us no understanding of the legal issues
involved. Assuming Nikki's story is one that echoes the plight of an
identical case in the real world, our second and third possibilities
reveal themes that are at the heart of Bad Girls. The second option
looks to the effect of discrimination; a theme pertinent to Nikki's
position as both a woman and a lesbian. Thirdly, we have the
possibility of professional incompetence; a flaw in her initial
legal representation.
Helena Kennedy is one of the most articulate proponents of the
argument that discrimination and prejudice mar the justice of the
English legal system. It pervades at all institutional levels and
explains why Nikki was arrested and her story not given credence,
and why her trial resulted in a conviction. In Ann Jones' "Women Who
Kill" it is explained that moral panics about women and crime
'coincide with the periods when women make strides towards equality
and that such panics may be a crude and perhaps even unconscious
attempt at controlling these advances.' Helena Kennedy poses the
question: Why is it that we feel differently about women committing
crime? "It always seems to me that crime is seen as an inevitable
extension of normal male behaviour, whereas women offenders are
thought to have breached sacred notions of what is deemed to be
truly female." Women are judged in reference to a limiting mesh of
ideals and under this view, Nikki offended twice. She broke the law,
and she broke social conventions; being a female and committing a
violent act. An additional reason Nikki's crime crossed boundaries
is undoubtedly due to her lesbianism. In killing a man, and
allegedly a sexually virulent man, Nikki's crime is the ultimate
manifestation of the wider societal stereotype (and fear) that
lesbians don't need men and in fact, they hate them.
Does the notion that Nikki was poorly represented at her original
trial take away from the relevant theme of discrimination? Indeed it
may, given that professional incompetence can successfully explain
Nikki's predicament without needing to rely on institutional
prejudice to explain the injustice.
Why was Nikki not placed upon the stand to give evidence that
would almost certainly have pointed to a defence that either
partially or wholly exonerated her? Why wasn't the issue of
provocation put to the jury? Why did the judge not raise the issue?
Why was Nikki's damning "and I'm glad the bastard's dead" statement
not challenged given that it was extracted from her after
implications of due process and police abuse?
Perhaps it makes Nikki's story less meaningful, but I would argue
that Bad Girls actually provides a more significant narrative if
prison becomes the consequence of professional incompetence and
human fallibility. It emphasises Nikki's struggle with the prison as
an institution almost entirely separate from the legal system that
sent her there. It also reinforces the idea that trust can and must
be placed in the right people; as Nikki places her trust in Helen
and finds salvation, this mirrors the preceding inverse situation
where faith was placed in a profession and a system that let her
down.
Of course, discrimination is a facet of error and fallibility,
and it does seem disingenuous that the creators of Bad Girls had
deliberately wanted to imply only that malpractice—over and above
prejudice—be the very root of injustice. It's worth, at least,
briefly exploring how discrimination may have informed Nikki's
experiences within the legal system, although this will be hesitant
as it will involve some speculation.
From the moment the trial begins, any speculation we undertake is
more dangerous and less indicative of any real discrimination. It is
highly unlikely her own legal team were disgusted by her sexual
orientation and actively sabotaged her trial, and the true, legal
injustices she suffered (no defence raised, no opportunity to be put
on the stand to explain) were faults of her legal team. It is
undoubtedly true it took a female, feminist legal team to win her
appeal, but they were also competent. We have two final
possibilities: the prosecution were complicit in the suppression of
evidence, and the trial judge allowed prejudice to affect his
decision not to direct the jury to defences they should consider.
Both scenarios are possible, but neither is explicitly referenced in
canon. However, I think it is sensible to consider Nikki's journey
and experiences as affected—to what extent, unknown—by prejudice
and discrimination.
How should Nikki's trial have been handled?
There are various ways to a challenge a murder charge when the
physical act of killing is unexplainable. The two most relevant to
Nikki's case are:
- voluntary manslaughter: provocation
- self defence
We will consider voluntary manslaughter first. This was the way
Nikki's original conviction was challenged at appeal. Punishment for
manslaughter can vary from imprisonment for life (Offences Against
the Person Act 1861 s5) to an absolute discharge (no punishment).
Voluntary manslaughter acknowledges that the accused killed with "malice aforethought" (an intention to unlawfully kill or an
intention to unlawfully cause grievous bodily harm) but there are
factors which the law regards as mitigating the gravity of the
offence. Provocation is one of those factors.
Voluntary manslaughter is not something an accused can be charged
with. Nikki and her legal team would have had to raise provocation
as a defence to the murder charge. A successful plea of provocation
would result in a conviction of voluntary manslaughter.
What does provocation mean?
Provocation means a sudden loss of self-control (A-G of Ceylon v
Perera [1953] AC 200) and can only be pleaded in relation to a
murder charge. The defence makes allowance for situations where the
law believes there is "proper occasion" for anger where the death
was an "overreaction" but that overreaction was not gross.
Provocation was largely fashioned by the courts, which means that it
is known as a common law defence. However, Parliament has had a hand
in shaping it and these elements are required to prove its
existence:
- actually causes in the defendant a sudden and temporary loss
of self-control as the result of which he kills the deceased
- was enough to make reasonable person do as he did
- enough to make that reasonable man to suffer such a loss of
self-control (c is the same as b)
It has proven apparent, in English Law, that provocation is
usually only successful where the act is done in the heat of passion
and that anger is not the only relevant emotion; frustration and
despair can also play a part in the provocation. Provocation will
not be successful where the killing contains an element of
deliberation, reflection or premeditation. However, it is not
necessary that the accused completely loses control to the extent
that he or she does not know their own mind.
One thing may be glaringly obvious to readers at this stage;
Nikki's situation and case falls almost perfectly into the
parameters for provocation. There is definitely a compelling
argument that her initial legal team fundamentally failed her in
neglecting to put this issue to the jury. One can immediately see
the potential difference it might have made to the outcome of the
trial. Instead of a murder charge, resulting in a mandatory life
sentence, the judge would have had the discretion to choose whatever
sentence he felt was most appropriate ranging from life imprisonment
to walking free from court.
The standards for provocation are legal standards constructed from a male perspective and
women have had many problems fulfilling the criteria. Women, for
cultural and physical reasons, are far less likely to respond to
provocation immediately. But, as Helena Kennedy argues, the legal
standards are fashioned on "instant ignition"; typically a male
response to anger. A women who poisons her abusive husband as he
sleeps because she is simply not strong enough to take him on after
he has battered her, will not be able to argue he provoked her, no
matter the degree of her despair. She is simply not "hot-headed"
enough to experience the sudden and temporary loss of self-control
necessary to fulfill the provocation standards. In fact, it is
somewhat ironic that Nikki Wade experiences—unusually in
statistical terms—an immediate, passionate, hot-headed
overreaction that perfectly fulfils the provocation criteria. The
defence is forgotten—deliberately or negligently—in the froth of
her murder trial.
The other alternative is that Nikki could have pleaded a whole
defence; this means that if successful, she would have been
completely exonerated of the crime. The most obvious choice would be
"public or private defence" also known as self-defence. There is
much that could be discussed about this defence; it is usually used
by law enforcement when injuries and fatalities occur during the
lawful effect of arrest. It is therefore very important that the
defence is clearly defined in order that law enforcement aren't
given the green light to subdue, abuse and injure indiscriminately
and unreasonably.
For our purposes, Nikki would have to show that the force used
was "reasonable in the circumstances", in either defending herself
or another from imminent attack, or preventing the commission of an
offence. This means that the use of force was justified (was there a
need?) and that the force used was not excessive (objectively
unreasonable in the circumstances?).
"I think they were wrong not to call you, it always makes you
look guilty" (Claire)
Nikki's solicitor makes a very interesting point when she informs
Nikki that her silence at trial almost certainly compounded the
appearance of her guilt. It is a signpost to an initially
ineffectual legal representation. However, it is also a nod towards
the Criminal Justice and Public Order Act 1994 (section 35) which
specifically allows for an adverse inference to be drawn by the jury
should the defendant not take the stand in her own defence. The
section specifically states: "Where this subsection applies, the
court shall, at the conclusion of the evidence for the prosecution,
satisfy itself (in the case of proceedings on indictment, in the
presence of the jury) that the accused is aware that the stage has
been reached at which evidence can be given for the defence and that
he can, if he wishes, give evidence and that, if he chooses not
to give evidence, or having been sworn, without good cause refuses
to answer any question, it will be permissible for the court or jury
to draw such inferences as appear proper from his failure to give
evidence or his refusal, without good cause, to answer any
question."
The italicised passage is the most relevant part of this section.
The phrase "inferences as appear proper" has been taken to mean that
the defendant's defence will not stand up to cross-examination by
the prosecution. In layman's terms, that the defence is weak or
fabricated, or the defendant will be easily angered by the
prosecution's questioning. Loss of temper in court is usually—and
sometimes unfortunately—damning. What is more, when the defendant
has a specific defence, such as self-defence, that adverse inference
will be stronger.
Nikki reveals that she was advised not to give evidence in her
own defence because of her inability to hold her temper. The result
was the jury's entitlement to view her silence as indicative of
likely guilt.
Overview of the Appeals Process
It's important to understand that the nature of an appeal is not
to—per se—argue that the jury simply came to the wrong verdict.
There has to be either fresh evidence or a mistake made in legal
terms (X or Y was not argued, or suggested to the jury; the
assumption being they may have come to a different conclusion). One
cannot ask the court to simply re-try the original evidence.
When an individual is charged with a criminal offence and the
Crown Prosecution Service decides to proceed with the case, there
are two courts that an individual would appear before. The first is
the Magistrates' Court. Magistrates are lay-persons and a trial in
this court proceeds without a jury. Therefore, trials that occur in
this court are summary offences (an offence considered minor and
attracting a lesser penalty). The second court is the Crown Court
and usually proceeds by way of jury trial, involving trials of
indictable offences (offences of a more serious nature), also
dealing with appeals from the Magistrates' Courts, and has greater
sentencing powers. Some offences are 'triable either way', which
means the defendant can choose to appear before the Magistrates'
Court or the Crown Court. Murder, however, is an indictable offence
and can only be tried before a jury in the Crown Court.
There are two ways an appeal can be formed: a challenge to the
sentence received, and a challenge to the conviction itself. Nikki
Wade made an appeal based on her conviction. This might seem
confusing, because it might have seemed that only her sentence was
reduced. Nikki appealed against her conviction for murder, and the
appeal was upheld. Her conviction was reduced to manslaughter, which
carries a lesser sentence and she was therefore released on time
served. If she was appealing on sentence alone, she would have had
to prove that there was something fundamentally unjust about the
sentence she received in proportion to the crime committed. In other
words, no matter how unfair we might think her sentence, it was
appropriate for the crime she was convicted of (murder).
Set out like this, it seems a fairly simple process. However, as
we know, the complexities of the procedure make it difficult and
time-consuming.
Usually, an appeal from a conviction in the Crown Court would
proceed as follows:
A form (known as the Notice and Grounds of Appeal, or NG) must be
filled in giving the reasons why you think the conviction or
sentence was wrong (which is the same thing as giving the grounds of
appeal) and then sent to the Crown Court where the conviction
occurred. That form will then by copied by the Crown Court and
copies of all the documents used at the original trial will be sent
to the Criminal Appeal Office, which is the administrative support
to the Court of Appeal. Nikki probably would have not filled in form
NG herself; Clare would most likely have done that for her. Usually,
form NG has to be sent to the Crown Court (or handed to a Prison
Officer) within 28 days from the date of conviction. If it is
outside those time limits, an extension will need to be provided.
This necessitates an explanation of the reasons why the form was
late. Nikki tells Monica not to "let her [appeal] slip like I did."
Unfortunately, there is no way of knowing at what stage Nikki let
hers "slip". Perhaps her paperwork had already been completed, and
she simply put a stay (paused) on the process. Perhaps she didn't
get the form in on time, in which case a reason (for late
application) such as "new evidence arising" would probably suffice.
Assuming this is accepted, the first stage is to receive leave
(permission) to appeal from a Single Judge. This takes considerable
time, because the case details must be prepared and entered into the
Criminal Appeals Office database. The casework will have to be
prepared to a sufficient extent to allow the judge to make a
decision whether or not to grant leave to appeal. This may have
involved further enquiries to Nikki's solicitor or barrister, and
possibly a requirement of further papers from the Crown Court.
If leave to appeal is granted or referred (case referred to the
Full Court of Appeal without having made a decision either way), a
Representation Order is usually granted to give an individual public
funding for a barrister. We can probably assume that Nikki paid for
her own barrister, as we know she was a wealthy businesswoman. It
can sometimes take up to a year to reach the court stage following
leave.
However, with Nikki, at this stage, leave to appeal was refused.
It should be pointed out that sometimes leave to appeal is granted
at the original trial. This is however unusual, because it is a way
of saying that the original Judge accepts the decision may not be
right. Once leave to appeal is refused, an individual can reapply
(within 14 days) to renew the application to appeal. This basically
means that the individual disagrees with the Single Judge's decision
and wants the Full Court of Appeal to consider the appeal. What if
permission to appeal was refused by the Full Court? This may also
have been what happened to Nikki (we have no way of knowing if leave
to appeal was refused by the Single Judge or the Full Court).
Why was Nikki's leave to appeal refused initially? There are a
number of possibilities and the script doesn't give much away.
Lawyers are particularly hesitant to regard decisions as
policy-based, but it may simply be that Nikki's crime was still felt
to be deserving of broad, public condemnation and an opportunity to
legally absolve her of responsibility was inappropriate.
Secondly, there may have been an absence of fresh evidence given
that Sally Ann Howe had not come forward at this point. However, I
find this possibility unlikely given the fact that the defence of
provocation was not submitted by Nikki's original legal team, nor
raised by the judge in his summing-up to the jury. Such an oversight
would usually be solid reason for permission to appeal.
The Criminal Cases Review Commission (CCRC) can help at either
stage of refusal (stages marked in green on the chart). What does
the CCRC do? Their principal role is to review the convictions of
people who believe they have been wrongly found guilty of a criminal
offence. The CCRC are able to seek further information about a case,
and carry out their own investigations. If Nikki had proceeded with
the CCRC, information relating to previous allegations against
DS Gossard may have arisen anyway. Once the CCRC investigations have
been completed, they then decide whether or not to refer the case to
the appropriate appeal court. It is important to note that the CCRC
has to 'help' within a strict, legal framework, and is therefore
unable to 'hear' the same evidence again, nor substitute their
decision for that taken by the jury.
Nikki Wade received leave to appeal by petitioning the Home
Office. As Helen points out, this is likely to be 'quicker', but it
is also more risky than applying through the CCRC. This is because
such an endeavour depends on a fleeting zeitgeist of support from
the public, and a perception of injustice that the Home Office would
be politically motivated to eradicate. All we know from the series
is that the Home Office sends Nikki's solicitor a letter informing
her that the Court of Appeal will consider her case. We assume from
this, that leave to appeal has been granted, which means Nikki and
her legal team are able to present her case to the full court.
Why did Nikki's appeal succeed eventually? In legal terms, the
appeal was successful because the court was satisfied that firstly,
the issue of provocation was not put to the original trial jury and
that the judge did not direct the jury to that defence.
Secondly, there was therefore a possibility that if the issue had
been raised, the outcome of Nikki's original trial may have been
different. Nikki's legal team argued that provocation was a
pertinent issue to the case; for this, they needed evidence of DS
Gossard's character and likely behaviour. The fact that the police
closed ranks on evidence relating to DS Gossard's character compels the
conclusion that the conviction was unsafe. Thus, the original murder
conviction was overturned and replaced with a conviction of
manslaughter. Nikki was released on time served.
What are the most important issues that this discussion has
introduced?
It is almost self-evident that one of the central themes of Bad
Girls—discrimination—is pivotal to Nikki's legal case. Women and
lesbians face an uphill struggle where prejudice is embedded within
the system.
However, from a legal perspective, the most important issue that
Bad Girls highlights is that prisons and the prison system have only
served to indirectly suppress legal challenges to sentences and
convictions. Helen was "unable" to comment on Monica's guilt,
despite the fact that Monica's character was largely struggling with
an overwhelming sense of injustice—rather than an inability to
settle to prison life. Helen was also unable to make a difference to
the legal censure Femi received—"I don't make the bloody law,
Nikki!"—and despite her efforts to make prison life more
comfortable for Femi, the viewer is reminded Helen's hands are tied.
Perhaps we could even look at Hollamby's distaste and distrust for
lawyers (listening at the door of Yvonne's private legal
consultation) as subliminally informing the viewer that prison does
not encompass the luxury of second (legal) chances. Nikki nursed a
bitter resentment of the system that only worsened as her sullen
attitude confirmed her "trouble-maker" status to the "screws". One
of the most powerful truths of the Helen and Nikki love story is
that Helen truly did rescue Nikki; she paved a route to contest
Nikki's conviction, providing resources and options that Nikki
barely knew existed.
Is it possible to go further than this, and argue that not only
does prison prevent challenges to incarceration, the prison and
legal system together work as insurmountable obstacles to
individuals being able to rejoin society? Statistics bear this out,
in that incarceration is correlative to recidivism. Prison actually
encourages and cements criminal behaviour. Bad Girls shows the
viewer that just as prison discourages legal recourse, it stands as
a bulwark in the face of rehabilitation and programs for change.
Society doesn't just believe prison is the end of the story, society
makes sure prison is the end of the story; prison does not easily
offer up exit routes—in any form.
Perhaps it is simply that institutionalised individuals,
accepting of their fate, are calmer and more easy to manage. Perhaps
it is more comfortable for society to believe that prison is simply
the end of the story; a holding pen that pauses lives and delivers
punishment. Helen Stewart recognised that this was not the case, and
Nikki Wade's story is testament to that realisation; a realisation
she brings to the consciousness of Bad Girls' viewers.
For further reference purposes:
The law relating to appeals from the Crown Court is largely
contained in the Criminal Appeal Act 1968, the Criminal Appeal Rules
1968 and the Criminal Appeal Act 1995.
http://cps.gov.uk/index.html
http://www.ccrc.gov.uk/canwe.htm
http://www.legalappeal.co.uk/pages/appeals_process/the_appeals_process.php
http://www.hmcourts-service.gov.uk/cms/1484.htm
|
